IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2012-KA-00363-COA DEX TER JOHNSON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/05/2007 TRIAL JUDGE: HON. KENNETH L. THOMAS COURT FROM W HICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JOHN M. COLETTE SHERW OOD ALEXANDER COLETTE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, KIDNAPPING, AND COUNT II, MURDER, AND SENTENCED TO THIRTY YEARS FOR COUNT I, AND LIFE W ITHOUT THE POSSIBILITY OF PAROLE FOR COUNT II, W I TH THE SENTENCES IN COUNTS I AND II TO RUN CONCURRENTLY TO EACH OTHER BUT CONSECUTIVELY TO ANY PREVIOUSLY IMPOSED SENTENCE, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY $3,944 IN RESTITUTION AND $156 TO THE CRIME VICTIMS’ COMPENSATION FUND DISPOSITION: AFFIRMED - 10/27/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ. BARNES, J., FOR THE COURT:¶1. Dexter Johnson appeals h is convictions f or k idnapping and m

urder on the b ases that he received i n e f

f e c t i v e assistance of counsel, and the trial court abused its d iscretion in dism issing two jurors during the trial. Finding no error, we af f i rm . SUMMARY OF FACTS AND PROCEDURAL HISTORY ¶2. On the af

ternoon of August 1, 2 005, Robert H ill Sm ith and Jim Bu c k F r a z i er were riding in Frazier’s car, w hen they p assed Johnson’s h om e. Spy ing Sm ith i n the car, Johnson f ollowed the m en b ecause Sm ith owed him a pproxim ately $65. Johnson stopped Frazier and Sm ith and a

p p r o a c h e d t h e car with a gun in his hand. J ohnson got into the back seat of Frazier’s car and ordered S m ith to give him the m oney he owed, pointing the gun at Sm ith’s leg. Johnson then f

orced Sm ith to get into Johnson’s c ar, and they drove away . Frazier did not see Sm ith and Johnson again. ¶3. The f

ollowing m orning, a Bolivar County road w orker cutting grass o n Cut-Of f Road f ound Sm ith’s dead body i n a corn f ield. S m ith h ad b e e n s h ot several tim es: twice in the

arm , three tim es in the b ack, and o nce in the b ack of the head. There were a lso abrasions on the lef t side of his f

ace. U pon hearing of Sm ith’s death, Frazier contacted l aw enf orcem ent and gave a statem ent about the incide n t t h a t had occurred the p revious day

. Johnson was

arr ested, and he provided a statem ent to p olice, conf essing that he shot Sm ith. Johnson adm itted that he abducted Sm i th a t gunpoint, b u t c l a i me d that he only intended to “scare” Sm ith into giving him the m oney . W hen the two m en reached Cut-of f Road, S m ith started f ight i n g w i t h him

. D uring the tussle, Johnson f elt Sm i th “poke” him with an object. He responded by s hooting Sm ith and dragging his body into the corn f ield. Although Johnson

2originally said he disposed of the g un in a nearby lake, J o h n s o n later directed law

enf orcem ent to a b oarding house he occasionally f requented, where they f

ound a loaded gun that m atched the 9 m illim e ter shell casings f ound near Sm ith’s body

at the crim e scene. 1 ¶4. Johnson was charged with kidnapping and m u r d e r . A f

t e r a jury trial in Bolivar Cou n t y C i r cuit Court on October 1-4, 2 007, Johnson was convicted on both counts and sentenced to thirty y ears f or C ount One, kidnapping, and l if e without parole f

or Count Two,

m urder, to be served in the custody of the Mississippi Departm ent of Corrections. ¶5. Af ter the trial c o u r t d e n i e d h i s num erous posttrial m otions, Johnson a ppealed his convictions, asserting that he received inef f ective assistance of counsel and that the trial
court a bused its di s c r e t i o n i n d ism issing two jurors d uring the trial. W e f

ind no error and af f irm the judgm e nt. DISCUSSION I. Whether J ohnson w as denied h i s right to effective a ssistance of counsel. ¶6. Johnson subm its that he was denied ef f ective a ssistance o f c o u n s el due to def ense counsel’s decision not to cha l lenge the adm i ssibility of his taped conf e s sion through a m otion to suppress, and his f

ailure to m ove f

or a m istrial af

ter the dism i ssal of

two jurors. ¶7. A claim of inef

f ective assist a n c e o f counsel on d irect appeal “ should be addressed only when ‘(1) the r ecord af f irm atively s hows inef

f ectiveness of constitutional dim ensions,

or (2) the parties stipulate that the record is adequate to allow the appellate court to m ake the f inding without consideration of the f indings of f

act of the trial judge.’” Collins v . State , 70

1 N o b u llets w ere reco v ered f ro m S m i th ’s b o d y . 3So. 3d 1144, 1147-48 (¶17) (Miss. Ct. A pp. 2 011) (quoting Colenburg v. State, 735 So. 2d

1099, 1101 (¶5) (Miss. Ct. App. 1999)). Theref ore, “ inef f ective assistance claim s are m ore appropriately brought during post-conviction proceedings

. . . because[ , ] d u r i ng direct appeals[ ,] the Court is lim ited to the trial c ourt record in its r eview of t h e c l a i m, a n d t here

m ay be i nstances in which insuf f icient evidence exists within the record to address the claim adequately .” Cage v. State , 14 9 S o . 3d 1038, 1046 (¶22) (Miss. 2014). However, a claim

m ay be brought on direct a ppeal “if such issues a r e based on f acts f ully a pparent f rom the record.” Id . (quoting M.R.A.P. 22(b)). ¶8. As the parties have m ade no st i p u l a t i o n a s to the adequacy of the r ecord, we m ust inquire w hether the record af f i rm atively shows that Johnson was denied ef f ective assistance of counsel. “[ W ]here the r ecord cannot support an inef f ective assistance of counse l claim

on direct appeal, the a

ppropriate conclusion is to deny relief , p reserving the def

endant’s right
to argue the sam e issue through a petition f or post-conviction relief

.” McClendon v. State , 152 So. 3d 1189, 1192 (¶12) (Miss. Ct. App. 2014) ( quoting A guilar v. State , 847 So. 2d 871, 878 (¶17) (Miss. Ct. A pp. 2 002)). Here we f ind that all of Johnson’s c l aim s are conf ined to the record and can b e f

ound w i t h i n t h e trial transcript; s o we will c onsider his inef fectiveassistance-of

- counsel claim

. A. Counsel’s Failure to Contest the Adm issibility of J ohnson’s Statem ent ¶9. Def

ense counsel f

iled a m otion to suppress Johnson’s statem e nt on April 3, 2 006. The

m otion a sserted t h a t s t atem e nts m ade by Johnson to law enf orcem ent “ w ere the result of persistent an d r e peated i nterrogations by num erous law enf orcem ent of

f icers and in the

4absence o f counsel and w ithout an intelligent or knowing w a i ver of counsel.” A hearing to

determ ine whether Johnson’s statem ent was voluntary was requested. ¶10. However, once the trial b egan, def ense counsel inf

orm ed the circuit court that there

was no objection to allo w i n g t h e s t atem ent i nto evidence. Counsel stated: “ [ A ]s a trial
strat e g y , we have n o objection to the statem ent c o m ing i n because w e believe it’s been
tam pered with.” The circuit judge concluded that if the def ense was “going t o concede the adm issibility

of [ the statem ent,] the [ c]ourt [ would] let it in.” ¶11. In order to prevail o n a claim of inef f ective assistance of

counsel, a def

endant m ust show (1) that his def

ense counsel’s perf

orm ance was def

ici e n t, and (2) that the def icient perf orm ance was prejudicial to his def ense. Strickland v. W

ashington, 4 66 U.S. 668, 687 (1984). “ The determ i nation of whether counse l ’ s p e r f orm ance was both def

icient and prejudicial m

ust be d eterm ined f

r om the ‘totality of the circum stances.’” Harris v. State , 979 So. 2d 7 21, 730 (¶25) (Miss. Ct. App. 2008) (quoting W y nn v. State , 964 So. 2d 1196, 1200 (¶11) (Miss. Ct. App. 2007)). “W h en r eviewing a claim of inef f e ctive assistance of counsel, ‘a c ourt m ust indulge a strong presum ption that counsel’s conduct f alls w ithin the wide range of reasonable prof

essional assistance; that is, the def endant m ust overcom e the presum

ption that, under the circum s t a n c e s, the challenged action m ight be considered sound trial strategy

. ’ ” Herrington v. State , 102 So. 3d 1241, 1244-45 (¶11) ( M i s s. C t

. App. 2012) (quoting Strickland, 46 6 U

. S. at 6 89). Trial counsel’s decisions on “whether or not to f ile certain m otions, call witnesses, ask certain questions, or m ake certain objections f a ll within the am bit o f trial s trategy and c annot give rise to an inef f ective assistance of counsel claim .”

5Id . at 1245 (¶11) (quoting Carr v. State, 873 So. 2d 991, 1003 (¶27) (Miss. 2004)).

¶12. Def

ense counsel adm itted t o the trial court that the decision to withdraw the m otion
to suppress Johnson’s statem ent, challenging its adm issibility , w as trial strategy

. Co u n sel subm itted: Your Honor, we’re not f

i ghting the adm issibility of the stateme n t

. W e want the statem e nt in j u s t a s b a d as [ the State] do[ es]. W e w ant t o be able to demonstrate how the statem ent was o btained and how the statem ent was not f ree. In f act

. . . we e xpect a perjury to occur in this case. I’m not going to state exactly what it is r ight now. I’m g oing to l ay the trap when it com es, but it’s already occurred at a prelim inary hearing. And I ’ve got to prove it to the jury

. This is part of our def ense, and it’s som e thing that the jury is entitled to hear. Def ense counsel then asserted in the opening statem ent that Johnson’s c onf essio n “was coerced as a result of him being put in the h o l e , [ and] his f am ily threatened[ .]” Counsel

cross-exam ined an o f

f icer present during the taping of the statem ent as to whether Johnson

was coerced into conf

essing, a nd h e insinuated that the audio tape had been shut of f during portions of the statem ent. Finally , jury instruction D

- 3 B, which w as given by the court, instructed the jury to “consider a ll of the e vidence, including the c ircumstances under which
any statement m ay have been made .” T hus, it i s e vident f ro m t h e r e c o r d that def

ense counsel’s decision not to contest the adm issibility of the statem ent was within the am bit of trial strategy and, theref

ore, d oes not give rise to a claim of inef f e ctive assistance of counsel. ¶13. Johnson has also f ailed t o establish that i f d e f e n s e c o u n s e l had not withdrawn the

m otion f rom conside r a t i on, Johnson’s s tatem ent w ould have been suppressed by the trial
court. See Robinson v. State , 806 So. 2d 1170, 1175 (¶14) (Miss. Ct. App. 2002) (rejecting the claim that counsel’s f

ailure to call f

or a hearing on a m otion to suppress was inef f ective

6assistance of c ounsel, a s Robinson dem onstrated “nothing which would lead [ this Court] to

believe the conf

ession would have been suppressed”). A s such, n othing s upports Johnson’s

c l a i m t h a t c o u n sel’s f a ilure to contest the statem ent’s adm i ssibility p rejudiced his d e fe n s e a n d constituted inef

f ective assistance of

counsel. B. Counsel’s Failure to Move for a Mis t r i a l upon the Dism issal of Jurors ¶14. As we will d i s c u s s i n g r e a t e r detail in our analy sis of the next issue, the trial judge dism issed two jurors during the trial and replaced them with alternate jurors. Johnson asserts that “trial c ounsel’s p e r f o r m a nce f

ell below that w hich is guaranteed by the Sixth Am endm ent when he f

ailed to m ove f

o r a m i strial upon the trial court’s d ism issal of t wo jurors during the trial.” Reviewin g t h e record, w e f ind Johnson h as f

ailed t o show he suf f e red any p rejudice f

rom the court’s dism issal of

the jurors and, had counsel m oved f or

a m istrial af

ter the dism issal of the two jurors, the result of the proceedings w ould have been dif f erent. Theref

o re, we f i nd no m erit to this issue. II. Whether the trial court abused its discretion by dism issing tw o jurors during the trial. ¶15. Johnson argues the trial c ourt abused its d iscretion in dism issing two jurors during the trial. A f t er Juror 10 f

ailed to show u

p f or trial on the second day , inf orm ing the court that she had to take her daughter to a doctor in J a c k s o n, the judge replaced the juror with an alternate. The second j uror, Juror 3 (Kenneth Green), was observed by the State acknowledging a m em

ber o f the def

endant’s f am ily on his way out of the court room . Af ter the trial judge questioned Green, the judge d ism issed him and replaced him with a n alternate.

7Johnson argues that there was not suf f icient cause to dism iss these jurors. ¶16. Mississippi Code Annotated section 13-5-67 ( Rev. 2012) governs the replacem ent of regular j urors with alternates, p roviding that “[ a]lternate j urors i n the order i n which they are called s h all replace jurors w ho, prior to the t i me t h e jury retires to consider its verdict, becom e unable or disqualif ied to perf

orm their duties.” “The decision to dism iss a juror f or good cause and the subsequent replacem e n t with an alternate is com pletely within the trial court’s discretion.” M

cCoy v. State , 820 So. 2 d 2 5, 29 (¶11) (Miss. Ct. App. 2002) (citing Stevens v. State, 513 So. 2 d 603, 6 0 4 ( M i s s. 1987)). However, a trial court d oes not have authority to dism i ss and replace a juror arbitrarily

. Id

. ¶17. At the start of the second f ull day of trial, Juror 10 sent w ord that she had to take her child to see a doctor in Jackson. The trial judge noted that she would “obviously

. . . have
to be replaced.” No objection w as m ade by def ense counsel. W e f

ind that the court was well within i ts d iscretion to dism iss Juror 10, as she f ailed to a ppear f or trial a nd was out of town. ¶18. W e also f

ind no abuse of discretion i n the dism issal of Juror 3. At the c onclusion of the t estim ony , and af

ter the jurors had been dism issed f or the day , the S tate alerted the judge that Juror 3 had “passed by one of the m en who was sitting with the def endant’s f a m ily , and

. . . . he reached out and touched him

. They gave each other som e kind of touch o r whatever, he s m i led and laughed a nd w alked on out of the courtroom .” The trial judge questioned Juror 3 the f ollowing m orning. The juror said that the m an had “bum ped” him , a nd he t old the m an not to talk to him . He did acknowledge sm iling at the gentlem an. The p erson in question, however, was no t in attendance that day

. Def ense counsel objected to dism issing Juror 3,

8arguing “there was n o indication of wrongdoing other than sm iling to an i ndividual who we

don’t even know was a m em ber of the [ def

endant’s] f

am ily

. ” However, the trial judge f ound the juror’s replies to the c ourt’s questions “ at least g a v e credence, verif i cation[ ,] or af f irm ation” to the State’s assertion that he sm iled and brushed arm s with the individual in the courtroom

. Theref

o r e, he dism issed Juror 3, and replaced him with an alternate. ¶19. W e f

ind no abuse of discretion in the trial court’s dism issal of the two jurors. Further, Johnson h as f

ailed to show that he suf

f ered a ny p rejudice by the d ism issal and replacem ent of the j urors. See McCoy , 820 So. 2d at 30 (¶13) (The def endant bears the burden of proving the dism issal of a juror, and the subsequent replacem ent w ith an alternate, “result[ s] in som e f orm of prejudice.”). A d ef

endant is “not entitled to any particular juror, only t o a f air and im p artial j ury .” Smith v. State , 724 So. 2d 2 80, 328 (¶193) (Miss. 1998) (citation om itted). Johnson m ade no attem

pt to show any actual prejudice suf f ered by the dism i ssal of the jurors. W e f ind this issue is without m erit. ¶20. Finding no errors on appeal, we af f irm the judgm ent. ¶21. T H E JUDGMENT O F THE CIRCUIT COURT OF THE FIRST JU D I C I A L DISTRICT OF BOLIVAR COUNTY O F C O N VICTION OF COUNT I, KIDNAPPING, AND COUNT II, MURDER, AND SENTENCE OF THIRTY YEARS FOR COUNT I, A ND LIFE WITHOUT THE POSSIBILITY OF PAROLE FOR COUNT II, WITH T HE SENTENCES IN C OUNTS I AND II TO RUN CONCURRENTLY TO E AC H O THER B UT CONSECUTIVELY TO ANY PREVIOUSLY I MPOSED S ENTENCE IN THE CUSTODY O F THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY $3,944 IN R E S T I T UTION AND $156 TO THE C RIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING AND GRIFFIS, P .JJ., ISHEE, CARLTON, M AX WELL, FAIR AND WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

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