                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2002-KA-01344-SCT

BARON L. EASTER

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        7/18/2002
TRIAL JUDGE:                             HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED:               LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  JAMES A. WILLIAMS
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: W. GLENN WATTS
DISTRICT ATTORNEY:                       BILBO MITCHELL
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED - 05/06/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE WALLER, P.J., EASLEY AND DICKINSON, JJ.

      EASLEY, JUSTICE, FOR THE COURT:

                             PROCEDURAL HISTORY

¶1.   On November 15, 2001, Baron L. Easter (Easter) was indicted by a Lauderdale

County grand jury for the sell or transfer of 20.25 grams of cocaine to Agent Neil Grogan

(Agent Grogan) of the Mississippi Bureau of Narcotics (MBN) and an unnamed confidential

informant for $800, within 1,500 feet of a public park. The indictment also alleged that

Easter had two prior convictions on felony drug charges and was therefore subject to

enhanced sentencing under Miss. Code Ann. § 41-29-147 as a habitual offender under Miss.
Code Ann. § 99-19-81 (Rev. 2000). Attorney J. Steward Parrish (Attorney Parrish) was

appointed to represent Easter.

¶2.    Easter's trial was held on June 17 and 18, 2002, before Circuit Court Judge Robert W.

Bailey. Easter had previously been granted a continuance on March 26, 2002, to allow him

time to retain his own counsel. Before trial on June 17, 2002, Easter asked the trial court to

allow him to represent himself. The trial court denied the request for a continuance based

on the previous continuance. Easter agreed to allow Attorney Parrish to represent him. The

trial court further expressed concern as to Easter's request to represent himself due to the

extensive sentence he could face because of the enhancements sought by the State.

¶3.    Due to the difficulty in representing Easter, the State and the defense, outside the

presence of the trial judge, conducted plea bargain negotiations on the record before trial on

June 17, 2002. The State's original plea offer was 20 years to serve as a habitual offender,

meaning day for day. Attorney Parrish got the State to amend the plea offer to 15 years

nonhabitual or 30 years with 17 suspended, 13 to serve and 5 years post-release supervision.

Attorney Parrish advised his client to take the offer of 15 years as a non-habitual offender.

Easter insisted on standing trial, rejecting his attorney's advice.

¶4.    Easter stood trial, and the jury found Easter guilty of the sale of cocaine. Easter was

sentenced as a habitual offender based on his two previous separate felony convictions of

possession of cocaine on January 30, 1997, and delivery of marijuana on January 30, 1997.

The trial court dismissed the State's enhancement request for sale of cocaine within 1,500

feet of a park. Easter was sentenced to serve a term of 40 years in the custody of the

Mississippi Department of Corrections not to be reduced or suspended. The trial court

                                               2
ordered that Easter not be eligible for early release or probation in accordance with Miss.

Code Ann. § 99-19-81 as a habitual offender. Easter was further fined $5,000 and assessed

a $300 appearance bond fee, $100 crime lab fee and $248 court cost. Easter filed a motion

for J.N.O.V. or for a new trial which was denied by the trial court. Easter now appeals to

this Court.

                                         FACTS

¶5.    Agent Grogan testified that on May 22, 2001, he worked undercover with a

confidential informant, Chris Thompson (Thompson), in Lauderdale County, Mississippi,

to purchase cocaine from sellers in the area. Agents Allen Ward (Agent Ward) and James

Regan (Agent Regan) also worked with Thompson on May 22, 2001. Thompson had

previously been arrested for possession of cocaine, and he agreed to assist the MBN as a

confidential informant in a buy-bust sting operation to get his drug source.

¶6.    Thompson telephoned Easter to purchase $800 worth of cocaine. The meeting place

was set at the Apple Dollar Store on Highway 19. Easter then telephoned Thompson back

and changed the location to McDonald's. Both telephone conversations were recorded.

Thompson testified that he and Easter knew each other's cell phone numbers. Thompson

gave Easter's name to the MBN. Thompson had known Easter approximately a year and a

half. Thompson stated that they referred to each other as "B" for Baron and "C" for Chris.

Thompson testified he recognized and identified Easter's voice on the telephone. Agent

Grogan testified that he was present when Thompson telephoned Easter. Thompson testified

that the tape was an accurate and unaltered recording of the conversation. References to



                                             3
other transactions on the tape recordings were deleted based on the defense's objection

before the tape was admitted. After the deletions, the defense did not object to the tape.

¶7.    Before going to the exchange, Thompson and his vehicle were searched by one of the

agents to verify that there were no drugs present. Thompson wore a wire transmitter to the

buy.

¶8.    Agent Grogan rode with Thompson to the buy. Agents Ward and Regan provided

back-up. When Thompson and Agent Grogan arrived at the McDonald's parking lot,

Thompson spotted Easter's vehicle next door in the parking lot at Trucker's Supply.

Thompson pulled over to Trucker's Supply and parked next to Easter's vehicle, driver's side

to driver's side. Agent Grogan gave Thompson the $800 to buy the cocaine. Thompson

gave the money to Easter. Easter threw a zip-lock bag, containing aluminum foil wrapped

around the cocaine, wrapped in a camouflage bandana. Thompson handed the cocaine to

Agent Grogan.

¶9.    Agent Grogan testified he was approximately 6 or 7 feet from Easter, and it was about

6:25 p.m. and still daylight outside. Agent Grogan identified Easter at trial as sitting at the

counsel table. Thompson also testified that he had no doubt that it was Easter who was at

the exchange. Thompson also identified Easter in the courtroom.

¶10.   Brandi Goodman, with the Mississippi Crime Laboratory in Meridian, testified that

her testing on the substance determined that the State's exhibit 2 contained cocaine with a

total weight of 20.25 grams. Easter did not testify at trial, choosing to exercise his right to

remain silent.



                                              4
¶11.   At the conclusion of the State's case, Easter made a motion for directed verdict that

the State did not meet its prima facie burden as to the sale of cocaine or sale within 1,500

feet of a park. The trial court denied the motion as to the sale, but it sustained Easter's

motion for directed verdict as to the sale within 1,500 feet of the park.

¶12.   Easter was found guilty and was sentenced to an enhanced sentence as a habitual

offender to 40 years in the custody of the Mississippi Department of Corrections. The trial

court denied Easter's motion for J.N.O.V. or new trial. Easter now appeals to this Court

raising the following issues:

       I.     Whether Easter was denied a fair trial as a result of the trial
              court's comments.

       II.    Whether the trial court should have granted a mistrial.

       III.   Whether there was credible, substantial evidence to support the
              jury's verdict.

       IV.    Whether the trial court violated Batson v. Kentucky.

       V.     Whether Easter received effective assistance of counsel.


                                   LEGAL ANALYSIS

                                I. Trial Court's Comments

¶13.   Easter argues that he was denied a fair trial based on comments made by the trial

court during voir dire; Agent Grogan's testimony; and Thompson's testimony.
¶14. In Thompson v. State, 468 So.2d 852, 853-54 (Miss. 1985), quoting Green v. State,

97 Miss. 834, 53 So.2d 415 (1910), this Court stated:

       'It is a matter of common knowledge that jurors, as well as officers in
       attendance upon court, are very susceptible to the influence of the judge. The
       sheriff and his deputies, as a rule, are anxious to do his bidding; and jurors

                                              5
       watch closely his conduct, and give attention to his language, that they may,
       if possible ascertain his leaning to one side or the other, which, if known, often
       largely influences their verdict. He cannot be too careful and guarded in
       language and conduct in the presence of the jury, to avoid prejudice to either
       party.'

The Court further stated:

       The great danger, particularly in a criminal case, is that the weight and dignity
       of the court accompanies each question or comment, although not so intended
       by the judge, and are very likely to be interpreted by the jury as the court's
       approval of the witness and her testimony, thereby lending unity to it and thus
       diverting the jurors' attention from their responsibility of deciding the case
       from the evidence, untainted, as heard by them from the witness stand.

Thompson, 468 So.2d at 854.

       A.     Voir Dire

¶15.   Easter contends that the trial court denied him a fair trial and unduly prejudiced his

case by commenting during voir dire of the prospective jury panel as to "presumption of

innocence." Easter alleges that this comment corroborated the description stated on close

by the State, enhancing the State's position with the jury. In order to examine the alleged

reversible error, it is necessary to see the trial court's remarks. The record reflects the

following statement by the trial court:

       Now, this is a criminal case. It's not a civil case. There are certain general
       concepts that apply in all criminal cases in our judicial system. The first
       concept deals with a term that you will hear used throughout the trial. You
       will also see it used in the written instructions on the law that will be given to
       you at the conclusion of the trial by -- that will be given by the Court, and that
       term is called the "presumption of innocence." That is, every defendant is
       presumed to be innocent until they are convicted by a jury. And I make this
       statement to you because a lot of times, attorneys during voir dire before
       you've heard any evidence or received any testimony will ask you, how many
       of you think my client is or could be guilty because they're here on trial? And
       my answer to that is every defendant at this stage of the proceedings are
       presumed to be innocent until they're convicted by a jury. Obviously, you

                                               6
       haven't heard any testimony, so technically if the trial was to stop now, you
       would be required to find every defendant not guilty.

¶16.   This Court finds that the trial court's opening remarks on voir dire did not constitute

reversible error. Easter's argument is without merit. Moreover, the record reflects that the

defense never offered a contemporaneous objection at trial nor raised the issue with the trial

court in his motion for a new trial. In Johnson v. Gray, 859 So.2d 1006, 1015 (Miss. 2003),

this Court stated:

       There is a general requirement that objections must be raised at the trial level.
       In re S.A.M., 826 So.2d 1266, 1277 (Miss. 2002); In re V.R., 725 So.2d 241,
       245 (Miss. 1998). See Riley v. Doemer, 677 So.2d at 743 n. 3; Smith v. State,
       572 So.2d 847, 848 (Miss. 1990); Burney v. State, 515 So.2d 1154, 1156-57
       (Miss. 1987). This Court has stated that "[i]f no contemporaneous objection
       is made, the error, if any, is waived." Dorrough v. Wilkes, 817 So.2d 567,
       577 (Miss. 2002) (quoting Walker v. State, 671 So.2d 581, 597 (Miss. 1995);
       Hill v. State, 432 So.2d 427, 439 (Miss. 1983)).

Therefore, we find that this issue is without merit.

       B.     Agent Grogan's Testimony

¶17.   Easter argues that the trial court erred in allowing Agent Grogan to testify as to

whether it was standard operating procedure for people involved in a drug transaction to

disguise what they were discussing. Easter claims that the trial court allowed Agent Grogan

to supply an expert opinion without being qualified as an expert. The record reflects the

following exchange:

       Mr. Davis [State]:           Agent Grogan, were you present when the
                                    confidential informant placed a phone call to the
                                    defendant on this date?
       Agent Grogan:                Yes, sir.
       State:                       Were you able to listen to the conversation that
                                    ensued between them?
       Agent Grogan:                Yes, sir.

                                              7
State:                   Now, when these, how many of these types of
                         conversations have you witnessed in law
                         enforcement would you say?
Agent Grogan:            Probably hundreds I imagine.
State:                   All right. Is it normal or is it kind of standard
                         operating procedure for people involved in that to
                         kind of disguise what they're talking about, or do
                         they come out and say, I will sell you two ounces
                         of cocaine?
Mr. Parrish [Defense]:   Your, Honor, at this time, we're going to object.
                         This is calling for an expert opinion, and he hasn't
                         been tendered as an expert at all.
State:                   Judge, he can give his personal opinion based on
                         his experience as a law enforcement officer.
The Court:               All right. Well, I'll let you voir dire him on his
                         qualifications if you'd like to do that now.
Defense:                 Your, Honor, we'd object. He has not been
                         disclosed to the defendants as an expert witness.
                         He's been disclosed to us as a fact witness. If he's
                         going to start testifying as to his opinion about
                         how drug deals -- based upon his training and
                         experience, then he's getting into the expert range,
                         and that's what we're objecting on because we're
                         not able to prepare to rebut that.
State:                   Your Honor, if I may, a lay witness can -- a fact
                         witness can give their opinion.
The Court:               I think this officer can give an opinion based
                         upon his experience. He's worked for -- been
                         an agent for MBN for over four years.
Defense:                 It's two and a half, Judge, but --
The Court:               Two and a half years.
Defense:                 We would object to him being able to give
                         opinion testimony other than to -- observations
                         that he -- as he observed whatever facts he's going
                         to testify about.
The Court:               All right. Well, your objection's noted. It will be
                         overruled. He'll be subject to cross-examination.
State:                   Thank you, Judge.
State:                   During these types of conversations between
                         somebody wanted to purchase and somebody
                         wanting to see narcotics, it is standard -- the
                         normal course of business, I guess, code words or
                         synonyms to be used rather than people to say, I

                                   8
                                    want one ounce of cocaine, and the seller to say,
                                    I will sell you one ounce of cocaine?
       Agent Grogan:                Yes, sir.

(emphasis added).

¶18.   In overruling the defense's objection, the trial court determined that Agent Grogan

was able to render his opinion based on his experience as a MBN agent. The Mississippi

Court of Appeals was faced with a factually similar situation. In Jones v. State, 754 So.2d

476, 484 (Miss. Ct. App. 1999), the defense asserted that Detective Steve Renfroe presented

expert testimony without being qualified as an expert. Detective Renfroe's testimony

explained how he determined what evidence was relevant and what should be recovered

from a crime scene. Id. Detective Renfroe also provided testimony explaining why the

scales, the walkie-talkies and the metal detector all had evidentiary value in a narcotics

arrest. Id. The court found "that Detective Renfroe did not give an opinion as contemplated

in Mississippi Rule of Evidence 702. Instead, he answered questions based on his

experiences as a narcotics officer." Id.

¶19.   This Court finds that the trial court did not commit reversible error in allowing Agent

Grogan to testify, based on his experience as a narcotics agent for the MBN transactions, that

it was not uncommon for there to be use of code to disguise the drug transaction. This issue

is without merit.

       C.     Thompson's Testimony

¶20.   Easter contends that the trial court committed reversible error by stating to Thompson

during his direct examination by the State, "Let's just get on to this transaction, please." It



                                              9
is necessary to examine the comment in the proper context. The record reflects the following

exchange:

       State:        Chris, if we can back up a little bit. But how did all this come
                     about? How did you know you were supposed to meet him?
       Thompson:     I had talked to him on the phone.
       State:        Okay. When did you talk to him?
       Thompson:     Around lunch.
       State:        Okay. And who was present when you made that phone call?
       Thompson:     Neil Grogan and Alan Ward.
       State:        And do you remember where you were?
       Thompson:     At the MBN office.
       State:        And during that conversation around noon, tell us a little be
                     about what happened, what the conversation was about.
       Thompson:     He said he couldn't -- wasn't able to get in touch with me
                     and my phone had been messed up. He asked about some
                     other transactions that we –
       Defense:      Objection. We need to be heard outside the presence of the
                     jury.
       The Court:    All right. Sustained. Let's just get on to this transaction,
                     please.
       State:        Chris, just dealing with this particular transaction, did you and
                     Mr. Easter agree to meet somewhere?
       Thompson:     Yes.
       State:        And where was that?
       Thompson:     At the Apple store on Highway 19 South.
       State:        And did you -- what did you talk about doing at the Apple
                     store?
       Thompson:     Trading some money for cocaine.

(emphasis added).

¶21.   Clearly, Thompson was already testifying as to the transaction in question that

involved Thompson working with MBN as a confidential informant to arrange an exchange

with Easter. The trial court's comment was an immediate response to the defense's objection

to Thompson discussing other transactions he had with Easter. The trial court's comment

was made to instruct Thompson to testify only as to the transaction in question. Obviously,


                                             10
the jury was aware that the State had alleged that a transaction of cocaine for money had

occurred. The trial court only acted to limit testimony to one transaction in question. The

trial court did not offer a finding that a drug deal had definitely occurred. We find that this

issue is without merit.

¶22.   Next, Easter contends that the trial court committed reversible error when it

commented on the quality of the tape recording of the telephone conversation. The trial

court, outside the presence of the jury, played the tape recording of the two telephone

conversations before allowing the tape to be played to the jury. The record reflects that the

defense's objection to the tape of the telephone conversation was to exclude the introductory

part of the recording as "the first part of the tape is going to get into 404 (b) activity."1

¶23.   The trial court ordered the deletion of the introduction part of the conversation before

the tapes could be played to the jury. The trial court also commented on the poor quality of

the tape outside the presence of the jury. The trial court found that the tape was offered to

show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of

mistake or accident, and under M.R.E. 403, the tape was certainly relevant and more

probative than prejudicial.




       1
           M.R.E. 404 (b) provides:
               (b)     Other Crimes, Wrongs, or Acts. Evidence of other crimes,
                       wrongs, or acts is not admissible to prove the character of a
                       person in order to show that he acted in conformity therewith.
                       It may, however, be admissible for other purposes such as
                       proof of motive, opportunity, intent, preparation, plan,
                       knowledge, identity, or absence of mistake or accident.

                                                 11
¶24.   It is after the conference outside the presence of the jury that the alleged error

occurred when the jury was brought back into the courtroom and Thompson resumed his

testimony. The record reflects the following transpired:

       The Court:   Mr. White, you want to bring the jury in, please.
                    (THE JURY RETURNED TO THE COURTROOM AT 10:05
                    A.M., AND THE PROCEEDINGS RESUMED AS
                    FOLLOWS, TO-WIT:)
       The Court:   Ms. Heidelberg [State], you may proceed.
       State:       Yes, sir. Judge, at this time, we'd like to play the tape for the
                    jury, please....
       The Court:   Yes, sir.
                    (AUDIOTAPE BEING PLAYED FOR THE JURY.)
       State:       Okay. Chris, let me ask you just a few questions about that.
                    What exactly was that that the jury just heard?
       Thompson:    It's a conversation between me and Baron.
       State:       Okay. And I notice that you didn't call him Baron. What did
                    you call him when you placed the phone call?
       Thompson:    "B."
       State:       Okay. And you didn't identify yourself -- well, how did you
                    identify yourself?
       Thompson:    As "C."
       State:       Okay. So what does "B" stand for?
       Thompson:    Baron.
       State:       And "C" stands for?
       Thompson:    Chris.
       State:       Okay. You didn't hold a conversation with him -- a drug-related
                    conversation with him during that particular phone call, and
                    why not? What happened?
       Thompson:    He wanted to call me back. For whatever reason I don't know.
       State:       Okay. And did he call you back?
       Thompson:    Yes...
       State:       Judge, if we may proceed with the telephone call that was
                    placed back to Chris.
       The Court:   Okay.
                    (AUDIOTAPE BEING PLAYED FOR THE JURY.)
       State:       And, Chris, during that conversation when Mr. Easter called
                    you back, did you all discuss -- well, what did you discuss at
                    that particular time?
       Defense:     Objection, your Honor. Under the Best Evidence Rule, the tape
                    speaks for itself. For this witness to then interpret his

                                            12
                     understanding of the tape is improper bolstering. They've
                     entered this into evidence, and the jury's free to examine it at
                     their leisure and give it whatever weight and credibility they
                     determine, but this is improper.
       The Court:    All right. Your objection's going to be overruled. The quality
                     is not that great. This witness will be subject to cross-
                     examination. He was part of the conversation, so I'll allow
                     you to ask him questions about the contents of that tape....
       The Court:    You may answer the question.

(emphasis added).

¶25.   In Stromas v. State, 618 So.2d 116, 119 (Miss. 1993), this Court stated:

       Certainly a tape recording of the alleged drug transaction is relevant. See
       Miss. R. Evid. 401. The tape's admission makes the drug transaction more
       likely to have taken place. See Butler, 592 So.2d at 984.

¶26.   Tape recordings may be received into evidence as long as the proper predicate has

been established. Middlebrook v. State, 555 So.2d 1009, 1012 (Miss. 1990). "The mere fact

that portions of a recording are unintelligible does not by itself render the recording

inadmissible." Middlebrook, 555 So.2d at 1012; Frank v. State, 749 So.2d 1241, 1243

(Miss. Ct. App. 1999). See also Oatis v. State, 726 So.2d 1230, 1235 (Miss. Ct. App. 1998).

Transcripts provided to the jury to follow along with the tape recording have also been

allowed. See Frank, 749 So.2d at 1243 (transcripts can be used to assist the jury in

determining who is speaking and discerning what is being said).

¶27.   This Court finds that the trial court's comment did not indicate its leaning toward the

State's witness nor was it likely to influence the jury's verdict. This issue is without merit.

                                        II. Mistrial

¶28.   On appeal, Easter contends that the trial court should have granted a mistrial based

on Thompson's testimony that mentioned other transactions. The State did not question

                                              13
Thompson regarding any other transactions to prompt Thompson's response. When

Thompson state, "He asked about some other transactions...," the trial court sustained the

defense's objection. Thompson did not state any details regarding other transactions. This

was fully discussed in the previous issue. In this issue, Easter approaches the issue from the

standpoint of whether a mistrial was appropriate based on the comment.

¶29.   In Caston v. State, 823 So. 2d 473, 492 (Miss. 2002), this Court set out the standard

of review for a motion for mistrial as follows:

       “Whether to grant a motion for mistrial is within the sound discretion of the
       trial court. The standard of review for denial of a motion for mistrial is abuse
       of discretion.” Pulphus v. State, 782 So.2d 1220, 1222 (Miss. 2001)(citations
       omitted); Spann v. State, 771 So.2d 883, 889 (Miss.2000); Johnson v. State,
       666 So.2d 784, 794 (Miss. 1995); Hoops v. State, 681 So.2d 521 (Miss. 1996).
       “The failure of the court to grant a motion for mistrial will not be overturned
       on appeal unless the trial court abused it discretion.” Bass v. State, 597 So.2d
       182, 191 (Miss. 1992).

Indeed, the Uniform Circuit and County Court Rule 3.12 concerning mistrials states:

       Upon motion of any party, the court may declare a mistrial if there occurs
       during the trial, either inside or outside the courtroom, misconduct by the
       party, the party's attorneys, or someone acting at the behest of the party or the
       party's attorney, resulting in substantial and irreparable prejudice to the
       movant's case.

¶30.   Upon motion of a party or its own motion, the court may declare a mistrial if:
            1.     The trial cannot proceed in conformity with law; or
            2.     It appears there is no reasonable probability of the jury's
                   agreement upon a verdict.

¶31.   Besides sustaining the defense's objection, the trial court prepared and offered to grant

a limiting instruction to the jury. The defense refused the instruction as a strategic decision.

The record reflects:



                                              14
       The Court:    All right. Those will be given. I prepared another instruction.
                     There was some testimony during -- taken during Chris
                     Thompson's testimony. It was very limited that dealt with
                     maybe some prior transactions between Chris Thompson, the
                     C.I., and this defendant. There was an objection made. We
                     moved on. I sustained it, and nothing else was said about that.
                     In an abundance of caution, I'm offering C-8 at the bottom
                     which is a limiting instruction, under 404 (b) instruction if the
                     defendant wants it given. If you don't want me to give it, then
                     I will not give it. Mr. Parrish, what's your position on this?
       Defense:      Your Honor, based upon the Court's prompt action hearing the
                     objection, I think we would only be harmed by reminding the
                     jury of that, and I would ask the Court not to give it.
       The Court:    All right. Then I will not give it. It will be refused. All right.
                     That concludes the Court's instructions.

The defense did not renew any motion for a mistrial.

¶32.   Here, the facts demonstrate that the trial court acted properly in accordance with our

holding in Smith v. State, 656 So.2d 95, 100 (Miss. 1995). In Smith, this Court stated that

the trial court should grant a limiting instruction if M.R.E. 404 (b) evidence is admitted and

passes the M.R.E. 403 hurdle, unless the party objecting to the evidence refuses to allow the

court to give the limiting instruction. Id. In Smith, the State argued that the defense should

be allowed the option to refuse the cautionary instruction to avoid further mention of the past

acts if they choose to do so. Id. at 99. The Court stated specifically:

       We have promulgated M.R.E. 105 which clearly contemplates that restrictive
       instructions be given upon request and as the Comment acknowledges, that in
       the absence of a request, there is no error. M.R.E. 105 and Comment. We are
       loath to reverse for plain error in the face of a rule so clear. We say for the
       future, however, that wherever 404(b) evidence is offered and there is an
       objection which is overruled, the objection shall be deemed an invocation of
       the right to MRE 403 balancing analysis and a limiting instruction. The court
       shall conduct an MRE analysis and, if the evidence passes that hurdle, give a
       limiting instruction unless the party objecting to the evidence objects to giving
       the limiting instruction.


                                              15
Id. at 100.

¶33.   The Mississippi Court of Appeals held that the harmless error analysis is not

precluded when the trial court fails to give a required instruction even where M.R.E. 404 (b)

evidence was given. Lindsey v. State, 754 So.2d 506, 515 (Miss. Ct. App. 1999).

Furthermore, Lindsey reiterates our holding in Smith, stating:

       In support of his contention that the trial court's failure to give a cautionary
       instruction warrants reversal, Lindsey cites Smith v. State, 656 So.2d 95
       (Miss. 1995). We point out that Smith does not mandate a reversal for failure
       of the trial judge to give a cautionary instruction even though we said as much
       in Moss v. State, 727 So.2d 720, 725 (Miss. Ct. App. 1998). As stated earlier
       in this opinion, Smith does hold that once an objection is made to 404(b)
       evidence, as was done here, the trial court should sua sponte, give a limiting
       instruction unless objection is registered by the defense.

Lindsey, 754 So.2d at 515.

¶34.   It is a well-settled rule in this State that a mistrial is reserved for those instances where

the trial court cannot take any action which would correct improper occurrences inside or

outside the courtroom. Walker v. State, 671 So.2d 581, 621 (Miss. 1995). "[T]rial judges

are peculiarly situated so as to decide (better and more logically than anyone else) when a

trial should be discontinued." Davis v. State, 530 So.2d 694, 697 (Miss. 1988) (quoting

Schwarzauer v. State, 339 So.2d 980, 982 (Miss. 1976)).

¶35.   As the defense refused to allow the trial court to grant the limiting instruction and

based on the trial court immediately sustaining the defense's objection, this issue does not

merit reversal.

                               III. Denial of Directed Verdict




                                                16
¶36.   In Jefferson v. State, 818 So.2d 1099, 1110-11 (Miss. 2002), this Court held that the

standard of review for denials of motions for directed verdict, judgment notwithstanding the

verdict and a request for a peremptory instruction is the same. A directed verdict, judgment

notwithstanding a verdict and a request for peremptory instruction all challenge the legal

sufficiency of the evidence presented at trial. Id. "Since each requires consideration of the

evidence before the court when made, this Court properly reviews the ruling on the last

occasion the challenge was made in the trial court. This occurred when the Circuit Court

overruled [the] motion for JNOV." McClain v. State, 625 So.2d 774, 778 (Miss. 1993)

(citing Wetz v. State, 503 So.2d 803, 807-08 (Miss. 1987)). See also Edwards v. State, 800

So.2d 454, 462 (Miss. 2001) (The standard of review for a JNOV and a directed verdict are

the same and implicate the sufficiency of the evidence. All challenge the legal sufficiency

of the evidence. The appellate court properly reviews the ruling on the last occasion the

challenge was made in the trial court, when the Circuit Court overruled the JNOV.).

¶37.   The trial court granted a directed verdict as to the sale within 1,500 feet of Bonita

Lakes Park. However, the trial court denied the motion for directed verdict as to the sale.

Easter argues that the trial court erred in denying his motion for directed verdict as to the sale

of cocaine. Easter contends that the State did not prove all allegations contained in the

indictment. Easter claims that the State did not prove that Easter sold cocaine to Agent

Grogan. The trial court denied the motion stating:

       The Court:     The jury is out. You may make your motion.
       Defense:       Your Honor, at this time, we'd make a motion for a directed
                      verdict of acquittal based primarily on two lacks of evidence.
                      The State hasn't reached their prima facie burden in showing
                      that Easter sold anything to Agent Neil Grogan. The testimony

                                               17
             was that money was supplied to Grogan who then gave it to the
             confidential informant who then handed it to Baron Easter, and
             Baron Easter then either handed it or tossed it back into the
             vehicle which landed in the informant's lap. In the indictment,
             Mr. Easter was charged with selling to both of them, and there's
             been no evidence, not even to a prima facie level that he sold or
             delivered anything to Agent Grogan. Therefore, because the
             State has to meet each and every element as they allege in the
             indictment, then we're entitled to a directed verdict of acquittal.
             Likewise, they have not proved any sale within 1500 feet of a
             public park. There's been no testimony that Bonita Lakes is a
             public park or that the sale took place within 1500 feet of that
             public park.... But in the indictment, an element of this offense
             and what the State has been telling the jury since opening
             argument, since voir dire is that an element of this crime was
             within 1500 feet of a public park. They made this an element of
             the crime. They have produced no evidence. They haven't met
             their burden, and we're entitled to a directed verdict of
             acquittal....
State:       Yes, sir. Judge, the 1500 feet is for enhancement purposes in
             this. All it does is substantiate the sentence and make it a
             doubling factor. Also, it is proper for the evidence -- the
             indictment to conform to the evidence presented at trial which
             is completely proper. There's no surprise to the defendant that
             he was charged with selling cocaine. It would have been an
             additional measure of defense to defend on those grounds; but
             as for an acquittal, no, sir. The 1500 feet, we submit a prima
             facie case has been proven that it is just right -- at trial, that the
             park is within 1500 feet of the location of the sale. However, it
             is for enhancements purposes only as to sentencing. That's its
             only purpose. And along those lines, we have met our prima
             facie case as to all elements contained in the indictment. If you
             don't feel that we've proven 1500 feet, the indictment can
             conform to the evidence presented at trial.
The Court:   What about the evidence as to any cocaine being sold to Agent
             Grogan?
State:       Judge, it's sell or transfer approximately 20.25 grams. Now, the
             -- I think the Supreme Court has been very broad in their
             definition of a transfer, and because of this type of trade, the
             drug trade, that they can deliver or transfer these narcotics
             passing from person to person. It equivocates to a transfer. It
             went to the confidential informant -- went to the informant and
             then to Mr. Easter -- no, I'm sorry -- then to Agent Grogan.

                                      18
       The Court:    I mean, I don't think it's a big deal. The sale was -- the money
                     was given from Grogan to the C.I. to the defendant, and the
                     defendant gave the dope from him to the C.I. who gave it to
                     then Agent Grogan, so I guess we'll take that up on instructions.
                     But motions on directed verdicts, the test that the Court uses is
                     all evidence that has been introduced by the State is to be
                     accepted as true together with all sound or reasonable inferences
                     that may be drawn from the evidence and to disregard evidence
                     favorable to the defendant. If there is sufficient evidence to
                     support the jury's verdict of guilty, then the motion for a
                     directed verdict must be denied. I'm going to grant it as to the
                     sale taking place within 1500 fee of a park even through it's in
                     the indictment. The Court will give an instruction on the
                     essential elements to sale of cocaine only and delete that part in
                     the instructions.

¶38.   In McClain v. State, 625 So.2d at 778, this Court stated that when the sufficiency of

the evidence is challenged, the prosecution was entitled to have the evidence in support of

its case taken as true together with all reasonable inferences. Furthermore, this Court in Noe

v. State, 616 So.2d 298, 302 (Miss. 1993), held that when the sufficiency of the evidence is

challenged the evidence favorable to the State must be accepted as true with all reasonable

inferences, disregarding evidence favorable to the defendant. The Court stated:

       In judging the sufficiency of the evidence on a motion for directed verdict, or
       request for peremptory instruction, the trial judge is required to accept as true
       all of the evidence that is favorable to the state, including all reasonable
       inferences that be drawn therefrom, and to disregard evidence favorable to the
       defendant. Clemons v. State, 460 So.2d 835 (Miss. 1984).

616 So.2d at 302.

¶39.   In the case sub judice, Agent Grogan and Thompson identified Easter as the person

from whom they purchased the powder cocaine on May 22, 2001. They had no doubts that

this was the person from whom they purchased cocaine for $800. State's Exhibit 2 was

identified by Goodman as being 20.25 ounces of cocaine. Easter did not testify or present

                                              19
any witnesses in his behalf. Both Agent Grogan and Thompson testified, corroborating each

other, that the cocaine in the cloth was passed from Easter to Thompson and from Thompson

to Agent Grogan, who then kept it in his custody and control until it could be scientifically

identified by appropriate test at the Mississippi Crime Laboratory. The evidence is legally

sufficient to support the sale of cocaine part of the indictment in this case. The trial judge

did not err in denying the motion for directed verdict as to the sale of cocaine. Accordingly,

this Court finds that this issue is without merit.

                                         IV. Batson

¶40.   Easter argues that the State's use of its peremptory challenges violated Batson v.

Kentucky, 476 U.S. 79, 85-86, 106 S.Ct. 1712, 1716-17, 90 L.Ed.2d 69, 80 (1986). Easter

states in his brief that 10 of the 35 venire persons were black. The record reflects that the

petit jury was composed of 9 whites and 3 blacks.

¶41.   On appeal, Easter takes issue with the State's line of questioning on voir dire that

inquired into whether any close friend or relative had a felony conviction. The State also

inquired as to misdemeanor convictions. The record reflects that the State's line of

questioning was to determine if any of the prospective jurors had any bias or hard feelings

against law enforcement or prosecutors. The State also asked the prospective jurors if any

of them had personally been victims of a crime and whether that experience would affect

their ability to be impartial.




                                              20
¶42.   On appeal, Easter focuses his argument on whether that the trial court should have

conducted a Batson hearing when the State struck Juror 11, Earma Grady.2 During voir dire,

Juror 11 had informed the trial court that one of her relatives had been convicted for murder

in another jurisdiction. The record reflects that the defense voiced no objection to the State's

use of a peremptory strike as to Juror 11. In fact, there was no objection to any of the State's

peremptory strikes. Likewise, there was no objection by the State to any of the defense's

peremptory strikes. The record provides:

       The Court:      All right. The State needs to submit a panel of 12 to the
                       defendant....
       State:          Strike 2, strike 5.
       The Court:      Wait a minute. 2 is S-1. 5 is S-2.
       State:          8.
       The Court:      8 is S-3.
       State:          11. [Earma Grady]
       The Court:      11 is S-4.
       State:          Accept through 17.
       The Court:      One, two, three, four, five, six, seven, eight, nine, ten, eleven
                       and twelve. All right. Mr. Parrish (Defense), you only have to
                       announce through Number 17.
       Defense:        Strike 3.
       The Court:      3 will be D-1.
       Defense:        7.
       The Court:      7 will be D-2.
       Defense:        9.
       The Court:      9 will be D-3.
       Defense:        And 17.
       The Court:      17 will be D-4. Eight jurors. We need --
       State:          Judge, about 18, I don't know if we anticipate this going to
                       Wednesday.

       2
          The record reflects that an exchange occurred between the State and Juror 11, Earma
Grady, where the State effectively apologized for having to ask the same questions more than once
to the same jury pool in drawing their juries and for requiring that the prospective jury pool spend
its day with them. The record is silent as to what reaction might have prompted the exchange.
However, this Court finds that this could have factored into the State's reason for exercising one of
its peremptory strikes on Juror 11.

                                                 21
       The Court:    All right. She's been excused for Wednesday.
       Defense:      Judge, I can't see it going until Wednesday, but out of an
                     abundance of caution, I don't mind.
       The Court:    Do y'all have any -- all right. I'll excuse her for cause. I don't
                     know that we're going to be through by Wednesday. We might
                     be. All right. We've got eight jurors. We need four more
                     starting with Juror Number 19. What says the State? State has
                     used three strikes -- four strikes.
       State:        Take the next four, Judge.
       The Court:    State takes 19, 20, 21 and 22. Mr. Parrish, the defendant has
                     used four strikes also.
       Defense:      We'll strike 19.
       The Court:    19 will be the defendant's fifth strike.
       Defense:      And 21.
       The Court:    21 will be the defendant's sixth and final strike, so that gives us
                     -- that puts 20 as the ninth juror and 22 as the tenth juror. Andy,
                     23 and 24?
       State:        One moment, please, Judge.
       State:        Strike 24, Judge.
       The Court:    24 will be the State's fifth strike.
       State:        Accept 26.
       The Court:    You take 23 and 25?
       State:        25 was struck for cause, wasn't she, Judge?
       The Court:    Yeah.
       State:        23 and 26.
       The Court:    23 and 26. All right. We need two alternates starting with 27
                     and 28. What says the State?
       State:        Strike 27.
       The Court:    All right. The State uses its alternate strike on 27. Steward, 28
                     and 29?
       Defense:      Judge, that's acceptable with us.
       The Court:    Okay. 28 will be the first alternate. 29 will be the second
                     alternate. All right. For the record, the jury will be composed
                     of Jurors Number 1, 4, 6, 10, 13, 14, 15, 16, 20, 22, 23, 26. The
                     first alternate will be 28. The second alternate will be 29. I'll go
                     out and announce the jury, give the jury some instructions,
                     swear in the bailiff. We'll hear opening statements, invoke the
                     rule before we do opening, and then we'll see where we are
                     timewise. Okay?

¶43.   In Conner v. State, 632 So.2d 1239, 1264 (Miss. 1993), the Court stated that failure

to object to the prosecution's use of peremptory strikes waived this issue on appeal:

                                              22
       We cannot address this issue because Conner never objected to the
       prosecution's peremptory challenges. This has often held that a party waives
       any and all claims regarding the composition of his jury if he fails to raise an
       objection before the jury is sworn. See Shaw v. State, 540 So.2d 26, 27 (Miss.
       1989). Thomas v. State, 517 So.2d 1285, 1827 (Miss. 1987).... The error if
       any is precluded from review.

¶44.   The line of questioning by the State was clearly not improper. Therefore, we are only

left to discuss the peremptory strikes in the record. Since there is no objection to the use of

the peremptory strikes or any record to review on appeal, this Court finds that this issue is

without merit.

                            V. Effective Assistance of Counsel

¶45.   Easter argues that his trial counsel, Attorney Parrish, provided ineffective assistance

of counsel in representing him. The law regarding ineffective assistance of counsel is well

settled. We have stated that:

       The benchmark for judging any claim of ineffectiveness [of counsel] must be
       whether counsel's conduct so undermined the proper functioning of the
       adversarial process that the trial cannot be relied on as having produced a just
       result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064,
       80 L.Ed.2d 674 (1984). The test is two pronged: The defendant must
       demonstrate that his counsel's performance was deficient, and that the
       deficiency prejudiced the defense of the case. Strickland, 466 U.S. at 687, 104
       S.Ct. at 2064; Washington v. State, 620 So.2d 966 (Miss.1993). 'This requires
       showing that counsel's errors were so serious as to deprive the defendant of a
       fair trial, a trial whose result is reliable. Unless a defendant makes both
       showings, it cannot be said that the conviction or death sentence resulted from
       a breakdown in the adversary process that renders the result unreliable.'
       Stringer v. State, 454 So.2d 468, 477 (Miss.1984), citing Strickland v.
       Washington, 466 U.S. at 687, 104 S.Ct. at 2064. 'In any case presenting an
       ineffectiveness claim, the performance inquiry must be whether counsel's
       assistance was reasonable considering all the circumstances.' Stringer at 477,
       citing Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; State v. Tokman, 564
       So.2d 1339, 1343 (Miss.1990).



                                              23
       Judicial scrutiny of counsel's performance must be highly deferential. (citation
       omitted) ... A fair assessment of attorney performance requires that every
       effort be made to eliminate the distorting effects of hindsight, to reconstruct
       the circumstances of counsel's challenged conduct, and to evaluate the conduct
       from counsel's perspective at the time. Because of the difficulties inherent in
       making the evaluation, a court must indulge a strong presumption that
       counsel's conduct falls within the wide range of reasonable professional
       assistance; that is, the defendant must overcome the presumption that, under
       the circumstances, the challenged action 'might be considered sound trial
       strategy.' Stringer at 477; Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. In
       short, defense counsel is presumed competent. Johnson v. State, 476 So.2d
       1195, 1204 (Miss.1985); Washington v. State, 620 So.2d 966 (Miss.1993).

       Then, to determine the second prong of prejudice to the defense, the standard
       is 'a reasonable probability that, but for counsel's unprofessional errors, the
       result of the proceeding would have been different.' Mohr v. State, 584 So.2d
       426, 430 (Miss.1991). This means a 'probability sufficient to undermine the
       confidence in the outcome.' Id. The question here is whether there is a
       reasonable probability that, absent the errors, the sentencer--including an
       appellate court, to the extent it independently reweighs the evidence--would
       have concluded that the balance of the aggravating and mitigating
       circumstances did not warrant death. Strickland, 466 U.S. at 695, 104 S.Ct.
       at 2068.

       There is no constitutional right then to errorless counsel. Cabello v. State, 524
       So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991)
       (right to effective counsel does not entitle defendant to have an attorney who
       makes no mistakes at trial; defendant just has right to have competent
       counsel). If the post-conviction application fails on either of the Strickland
       prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281
       (Miss.1987); Mohr v. State, 584 So.2d 426 (Miss.1991).

Foster v. State, 687 So.2d 1124, 1129-30 (Miss. 1996).

       A.     Defense Counsel Statements

¶46.   Easter takes issue with two statements made by Attorney Parrish at trial. First, Easter

alleges that during voir dire, Attorney Parrish instructed the prospective jury that it would

require the jury to find some "technicality" to find Easter not guilty. This is not accurate.



                                              24
Not taking the statement out of context, the record reflects that Attorney Parrish actually

questioned the jury as follows:

       Parrish:      Does everybody on the panel understand that everything you
                     just heard right there wasn't evidence? The only evidence
                     you're going to hear in this case, the only evidence that you
                     could consider is the evidence that you hear from that witness
                     standing (indicating); not what I say, not what Vel or Andy
                     says. Does everybody understand that?
                                    (NO RESPONSE)
       Parrish:      Does everybody understand that the State's burden is to prove
                     every element of the crime beyond a reasonable doubt; and by
                     that I mean, should they fail to prove one element even though
                     you find the other ones, does everybody understand that even
                     though that might be what we call a technicality, it would be
                     your duty as a juror to come back with a not guilty verdict?
                     Does anybody have a problem with technicalities in the law?
                                    (NO RESPONSE)
       Parrish:      By your silence, I'm assuming that you understand that if one
                     part doesn't get proven, then it's not guilty even thought you
                     believe everything else?
                                    (NO RESPONSE)

We find that the question taken as a whole and in the proper context did not instruct the jury

that it would take a "technicality" to find Easter not guilty as claimed on appeal. Therefore,

this statement did not constitute ineffective assistance of counsel.

¶47.   Second, Easter alleges that Attorney Parrish lent credibility to the State's case by

stating in his first sentence on opening statement that, "Well, Mr. Davis pretty much laid out

the facts as I understand them from discovery." Again, placing the statement back in the

proper context of the complete opening statement, Attorney Parrish's clearly does not

concede Easter's guilt. Attorney Parrish's opening statement emphasized that there were

conflicts in the evidence and a lack of evidence that would create reasonable doubt. In order



                                             25
to review the statement in the proper context, the record reflects that Attorney Parrish's

complete opening statement was as follows:

              Well, Mr. Davis pretty much laid out the facts as I understand them
      from discovery. That still doesn't mean that they have proven anything yet.
      I anticipate when the evidence is done and the Judge instructs you on the law,
      he'll talk to you about reasonable doubt, and he's going to tell you that
      reasonable doubt can arise from lack of evidence. It can arise from a conflict
      of evidence.
              Now, like the Judge said, I can't predict what's going to happen in this
      case. We don't have depositions in criminal cases in Mississippi, so I don't
      know exactly how the testimony is going to be developed from the witness
      stand, but I anticipate there's going to be some conflict in the evidence; that
      one person's going to say, you know, it was black, and the other person is
      going to say that is was white. One person is going to say that is was one
      thing, and another person is going to say that's another thing. That's the
      conflict in the evidence, and that -- if you're looking for it and you see, it can
      give rise to reasonable doubt.
              Again, there's going to be, I believe, a lack of evidence. You're going
      to hear about this tape of this alleged sale, and we've listened to this tape
      today. It's about eight seconds long, and you're going to have the opportunity
      to hear it. What you're not going to hear is any conversation of saying, Here's
      $800; here's three-quarters of an ounce of cocaine. That's not going to happen.
      You're going to hear two voices for about eight seconds; one of them saying,
      Hey, how you doing? The other one saying, I'm good; how you doing? Okay.
      See you later. That's it.
              Now, the primary proof that the State's going to be using I anticipate is
      going to be the testimony of this Thompson boy. Okay? And I anticipate that
      his testimony is going to be developed perhaps on direct but for certain on
      cross-examination by me talking about how he got to where he was working
      as a snitch for the cops. And the fact of the matter is he's the drug dealer.
      Okay? He's the drug dealer. He got caught....
              And he's going to testify about his illegal activities and how he got
      arrested; and in turn for getting a lenient sentence, he worked off -- okay -- he
      worked off his -- some of his punishment. And part of working that off was
      to make sure that this man (indicating) was charged with this crime.
              Now, like I said, I don't -- I can't anticipate everything that's going to
      happen, but I can tell you two things based upon trying cases for several years;
      that is, there's going to be conflict. There's no doubt about it. There's going
      to be a lack of evidence. The State's already admitted -- those surveillance
      agents, the guys that were surveilling him didn't see what happened. There's
      no video. There's no money. There's no fingerprints. What you've got is a

                                             26
       convicted felon and a drug agent who saw Mr. Easter for the first time that
       day, an unidentified black man; so we've already got at least one other suspect
       that was sitting in the truck. We don't know who that was. We don't even
       know that Baron Easter was there. He's just charged with being there. That's
       what I'm telling you, conflict and lack of evidence. And when it's over, there's
       reasonable doubt. And if there's reasonable doubt, by you oath, you must
       acquit. Thank you.

Clearly, the opening statement focused on reasonable doubt and raised possible conflicts and

questions in the evidence. Again, this Court finds that taking the statement in the proper

context and reviewing the complete opening statement, the statement did not constitute

ineffective assistance of counsel.

       B.       Lack of Objection

¶48.   Easter also contends that the defense counsel failed to aggressively defend him at

trial. First, Easter alleges that Agent Grogan was allowed to give hearsay from Thompson

that Easter was his drug source. The record reflects that following exchange:

       State:               [W]ere you working with MBN... in an undercover
                            operation on May 22nd, 2001?
       Agent Grogan:        Yes, sir.
       State:               And what other officers were involved with that
                            operation?
       Agent Grogan:        Agents Alan Ward and James Reagan.
       State:               Who else was involved with that operation?
       Agent Grogan:        The C.I.
       State:                And who was that?
       Agent Grogan:        Chris Thompson.
       State:               And what was the plan for that day?
       Agent Grogan:        We contacted an individual.
       State:               Who was the individual?
       Agent Grogan:        Baron Easter. He was going to sell us an ounce of
                            powder cocaine for $800.
       State:               All right. Who made this call?
       Agent Grogan:        Chris Thompson did.
       State:               Okay. Now, can you tell the jury why -- why Chris was
                            working for you, Neil?

                                             27
       Agent Grogan:        Chris has been arrested earlier that month on a drug
                            charge, and he was going to help us get his source.

¶49.   In his testimony Thompson confirmed that he supplied Easter's name to the MBN to

set up a sting. The record reflects the following:

       State:        [O]n or about May 22nd, 2001, were you involved with the
                     Mississippi Bureau of Narcotics?
       Thompson:     Yes....
       State:        Okay. And I guess because of your -- Well, why were you --
                     how would you be able to do that? Why were you able to get in
                     to get other drugs?
       Thompson:     Because I was selling it....
       State:        What, if any, plan did you have on May 22nd that involved the
                     Mississippi Bureau of Narcotics?
       Thompson:     I was supposed to get in contact with Baron Easter and set up a
                     buy.
       State:        Okay. And when you say you were supposed to get in contact
                     with Baron Easter, now, earlier you said you had worked out a
                     deal where you were trying to get drugs for them. Did you give
                     them the information, the name of Baron Easter; or did they
                     provide that name for you?
       Thompson:     I gave it to them.
       State:        Okay. So Baron Easter was someone that you had contact with?
       Thompson:     Yes.

¶50.   Thompson's testimony provided that he supplied Easter's name to the MBN to arrange

a transaction to get drugs. Agent Grogan testified that the purpose of working with a

confidential informant was to get the informant to help arrange sting operations to apprehend

other violators. We find that not objecting to Agent Grogan's statement, "he was going to

help get his source," did not amount to ineffective assistance of counsel.

¶51.   Second, Easter also contends that the trial counsel did not aggressively defend him

by not objecting to Agent Grogan's account about "something else later on in the week."

However, what the "something else" was not stated. Agent Grogan did not say that it


                                             28
involved another drug transaction. Also, the State did not ask Agent Grogan as to any other

conversation. The record reflects the following exchange:

       State:                After you received the dope, what happened -- or I'm
                             sorry-- the suspected substance, what happened?
       Agent Grogan:         Mr. Easter and Chris Thompson had a little discussion
                             about something else later on in the week, and then we
                             left and went down Highway 19 and got back on the
                             interstate going toward our office.

Besides the fact that the "something else" was not identified or referenced as any other drug

activity, it is also reasonable that the trial strategy was to avoid drawing further attention to

the statement. This Court finds that this did not constitute ineffective assistance of counsel.

¶52.   Third, Easter alleges that the trial counsel did not raise any disparity in treatment

between Thompson and Easter. However, Attorney Parrish did attempt to discredit

Thompson as a witness. The record reflects the following:

       Parrish:       Now, let's talk about the reason that you're testifying here today.
                      You got arrested for selling drugs?
       Thompson:      No, sir.
       Parrish:       You got arrested for possessing a -- possession with intent to
                      sell drugs?
       Thompson:      Yes, sir.
       Parrish:       Okay. And they told you that if you didn't snitch on other
                      people, they'd send you to prison for 20 or 30 years; is that
                      correct?
       Thompson:      No.
       Parrish:       Okay. What did they tell you?
       Thompson:      They told me that I would have a better chance if I helped them.
                      They didn't tell me I had to snitch. They didn't force me to or
                      anything like that.
       Parrish:       They didn't force you to snitch?
       Thompson:      No.
       Parrish:       Okay. And you've pled guilty to a felony?
       Thompson:      Yes, sir.
       Parrish:       Drug felony?
       Thompson:      I did.

                                               29
       Parrish:  And you got a probationary sentence; correct?
       Thompson: Yes, sir.
       Parrish:  And that was because of your help in this investigation is that
                 correct?
       Thompson: Yes.
       Parrish:  So it would be safe to say to avoid prison, you're willing to turn
                 in anybody that you could find to save yourself; is that correct?
       Thompson: No.

We find that this allegation is without merit.

       C.     Previously Addressed Issue

¶53.   Easter argues that it amounted to ineffective assistance of counsel for his counsel not

to have made a Batson challenge when Juror 11 was struck. The lack of a Batson challenge

was addressed in issue IV. Therefore, we will not address it again in detail. However, there

were 10 blacks out of the 35 venire panel. Three out of the 12 jurors that served were black.

Easter only contests the State's use of its peremptory challenge as to Juror 11. As discussed

in Issue IV, there was no error in striking Juror 11. Alternatively, as discussed in footnote

2 in issue IV, there was an exchange between the State and Juror 11 during questioning.

This Court finds that in the case sub judice the lack of a Batson challenge does not merit

reversal.

       D.     Pretrial Hearing

¶54.   Finally, Easter alleges on appeal that trial counsel should have requested a pretrial

hearing on whether Easter's 2 prior drug convictions could be used for impeachment if he

took the stand to testify. However, Easter did not testify at trial so his prior convictions were

not introduced to the jury. The prior convictions were only examined by the trial court on

sentencing to determine if enhancement for habitual offender status was proper. Whether


                                               30
Attorney Parrish's decision not to call Easter to testify amounted to ineffective assistance of

counsel is the real issue before this Court.

¶55.   On appeal, Easter's appellate counsel does not address any possible trial strategy by

Attorney Parrish for not calling Easter to testify. For instance, Attorney Parrish may have

feared voice recognition since the State was introducing 2 taped conversations into

evidence. Various other possible trial strategy theories may exist to support the decision not

to call Easter to the stand. Easter does not present any support in the form of affidavits or

any proposed testimony as to any ineffective assistance of counsel. In fact, Easter does not

present any evidence of ineffective assistance of counsel to merit reversal.

¶56.   In King v. State, 679 So. 2d 208, 209-10 (Miss. 1996), the Kings claimed that their

attorneys advised them that it would better if they did not testify themselves since they had

prior convictions. No witnesses were called to testify by the defense. Id. at 210. Citing

Alexander v. State, 503 So.2d 235, 240 (Miss. 1987) and Buckelew v. United States, 575

F.2d 515, 521 (5th Cir. 1978), this Court held that "[d]ecisions regarding which witnesses

to call are peculiarly within the gambit of trial strategy." King, 679 So.2d at 211. The Court

further stated that:

       The Kings' habitual offender status certainly highlights their 'unlikely status
       as candidates for the witness stand,' and gives added credibility to counsel's
       strategy. We do not undertake this opportunity to second guess obvious trial
       strategy...Nor are we enlightened by the affidavits of the three supposed ready,
       willing and able other witnesses.

Id. at 212. We find that this issue does not merit reversal.

¶57.   In conclusion, Easter fails to establish that he received ineffective assistance of

counsel at trial. In fact, the record reflects that Easter's trial counsel had a difficult case to

                                               31
defend given the 2 eyewitnesses that testified as to the sale and the taped recorded

conversations. Furthermore, in this case, we have the unusual situation of having a record

which reflects that Attorney Parrish had negotiated a 15 year non-habitual sentence in

exchange for Easter pleading guilty. The record demonstrates that Attorney Parrish advised

Easter to take the plea but Easter refused. Attorney Parrish was successful as a result of his

motion for directed verdict to have the trial court dismiss the portion of the indictment which

dealt with the sale being within 1,500 feet of a public park. Easter fails to establish that his

defense was prejudiced as a result of Attorney Parrish's representation.

                                      CONCLUSION

¶58.   For the foregoing reasons, this Court affirms the judgment of the Circuit Court of

Lauderdale County, Mississippi.

¶59. CONVICTION OF SALE OF COCAINE AND SENTENCE OF FORTY
YEARS (40) IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT THE POSSIBILITY OR BENEFIT OF PROBATION
OR PAROLE, TOGETHER WITH ALL COSTS AND FEES, AFFIRMED.
APPELLANT IS GIVEN CREDIT FOR 35 DAYS SERVED.

    SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES AND
DICKINSON, JJ.,    CONCUR.   DIAZ AND RANDOLPH, JJ., NOT
PARTICIPATING.




                                              32
