IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 1998-KA-01099-COA

WALTER WHITE APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/05/1998

TRIAL JUDGE: HON. ROBERT LOUIS GOZA JR.

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JOHN M. COLETTE

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JOHN R. HENRY JR.

DISTRICT ATTORNEY: RICHARD D. MITCHELL

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: 03/27/1998: SALE OF CRYSTAL METHAMPHETAMINE -

COUNT I, COUNT II AND COUNT III - TO SERVE A

TERM OF EIGHT (8) YEARS UNDER COUNT I, A TERM

OF EIGHT (8) UNDER COUNT II AND A TERM OF

EIGHT (8) YEARS UNDER COUNT III. COUNT I AND II

SHALL BE SERVED CONCURRENTLY AND THE

SENTENCE UNDER COUNT III SHALL BE SERVED

CONSECUTIVELY TO THEM

DISPOSITION: AFFIRMED - 02/01/2000

MOTION FOR REHEARING FILED: 02/03/2000; denied 4/4/2000

CERTIORARI FILED: 4/14/2000; granted 9/14/2000

MANDATE ISSUED:

BEFORE KING, P.J., BRIDGES, AND MOORE, JJ.

MOORE, J., FOR THE COURT:

¶1. Walter White was found guilty by a Rankin County Circuit Court jury of selling crystal

methamphetamine on three separate occasions. On appeal he contends that his constitutional rights were

violated by the trial court's refusal to permit him to cross-examine a prosecution witness about a prior

conviction; that his constitutional rights to a fair trial were violated by prosecutorial misconduct; and that the

trial court erred in refusing to grant him a new trial because of prosecutorial discovery violations or that the

overwhelming weight of the evidence demanded a judgment notwithstanding the verdict. We disagree with
all the assignments of error and affirm.

FACTS

¶2. Rankin County law enforcement officials used Robert Shedd as a confidential informant to purchase

different amounts of crystal methamphetamine from White on March 19 and 20, 1995 and April 5, 1995.

On the respective dates, Shedd purchased $200, $1600 and $3000 worth of crystal methamphetamine

from White at White's truck shop where he repaired tractor trucks. On each occasion, Shedd was wired

with audio recording equipment for each buy, and he was given the usual briefing and debriefing along with

being searched before and after each transaction.

¶3. In addition to the testimony of the confidential informant, the State offered the testimony of Brandon

Narcotics Officer Bruce Kirby and Alan Spears, an agent with the Jackson office of the Federal Bureau of

Investigations (F.B.I.). Kirby testified about each occasion on which Shedd purchased drugs from White.

He explained that he and others listened via the audio equipment on Shedd to his conversations with White

and the others who were present at the time Shedd made his purchases. Kirby stated that while he did not

eye witness the transactions, he was able to identify Shedd's voice on the tapes made of the deals.

¶4. Spears was contacted by the Mississippi Bureau of Narcotics in March of 1995 concerning a purchase

of crystal methamphetamine. The Mississippi Bureau requested U.S. funds in the amount of $3,000 to

make the purchase. Spears provided the funds to the Mississippi officials and assisted them in the April 5,

1995 surveillance of Shedd's purchase of crystal methamphetamine from White.

¶5. White, who elected not to testify, presented testimony of a neighbor and his wife who both indicated

that White was not in the business of selling narcotics. Rather, he was a truck driver and bought, repaired,

and sold trucks.

¶6. Prior to trial White moved the trial court to allow him to cross-examine the confidential informant about

a prior arrest and a prior conviction unrelated to his activities as a confidential informant. The trial court

denied the motion ruling that such testimony was inadmissible because it did not bear on Shedd's veracity.

¶7. The Rankin County jury hearing the case convicted White on the three counts of selling crystal

methamphetamine. White, a first-time offender, was sentenced to serve eight years on each count, Counts I

and II to be served concurrently, and Count III to be served consecutively to the sentences in Counts I and

II. The trial court suspended the sentence imposed as to Count III, pending the successful completion of a

five-year probation. After the denial of his post-trial motions, White perfected this appeal.

ISSUES

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED WHITE

FULL AND OPEN CROSS-EXAMINATION OF SHEDD IN VIOLATION OF WHITE'S

STATE AND FEDERAL CONSTITUTIONAL RIGHTS.

II. THE TRIAL COURT ERRED IN FAILING TO GRANT WHITE A JUDGMENT

NOTWITHSTANDING THE VERDICT.

III. THE TRIAL COURT ERRED IN FAILING TO GRANT WHITE A NEW TRIAL.
IV. THE STATE'S FAILURE TO COMPLY WITH RULE 4.06 PROVIDING WHITE

COMPLETE PRETRIAL DISCOVERY VIOLATED WHITE'S CONSTITUTIONAL RIGHTS

TO DUE PROCESS.

V. PROSECUTORIAL MISCONDUCT VIOLATED WHITE'S RIGHTS UNDER THE FIFTH,

SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE THREE SECTIONS FOURTEEN, TWENTY-SIX AND

TWENTY-EIGHT OF THE MISSISSIPPI CONSTITUTION OF 1890.

VI. THE CUMULATIVE IMPACT OF THE ERRORS AT TRIAL VIOLATED WHITE'S

RIGHT TO A FAIR TRIAL UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS

TO THE CONSTITUTION.

DISCUSSION

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED WHITE

FULL AND OPEN CROSS-EXAMINATION OF SHEDD IN VIOLATION OF WHITE'S

STATE AND FEDERAL CONSTITUTIONAL RIGHTS.

¶8. White specifically asserts that his Sixth Amendment right to confront the witnesses testifying against him

was violated by the trial court's refusal to allow him to cross-examine Shedd about his prior criminal

conviction. Before trial, counsel for White requested that he be allowed to cross-examine Shedd concerning

a 1990 arrest which occurred in Mississippi and a Texas criminal conviction for possession of narcotics.

White argued that under Mississippi Rule of Evidence 609 he was entitled to delve into Shedd's prior

criminal record on cross-examination. The trial court ruled that the arrest was clearly inadmissible pursuant

to Rule 609 and that because the Texas conviction did not bear on Shedd's veracity, it was likewise

inadmissible. In his reply brief, White argues that the trial court's failure to perform a sua sponte, on-therecord evaluation of the probative value of such testimony requires reversal. In addition, White submits that

the trial court failed to make a distinction between Rules 609(a)(1) and (2) of the Mississippi Rules of

Evidence.

¶9. Rule 609 provides:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a

crime shall be admitted if elicited from him or established by public record during cross-examination

but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law

under which he was convicted, and the court determines that the probative value of admitting this

evidence outweighs its prejudicial effect on a party or (2) involved dishonesty or false statement,

regardless of the punishment.

M.R.E. 609. In findings of fact and conclusions of law in response to White's motion for new trial, the trial

court determined first that Shedd's 1990 arrest which did not lead to a conviction was clearly inadmissible

under Mississippi Rules 608 and 609. Next, the trial court opined: "[P]ursuant to MRE 609 and the factors

set forth in Peterson v. State, 518 So. 2d 632, 636 (Miss. 1987), that the drug conviction of Roy Shedd

was inadmissible for impeachment purposes. The prejudicial effect of any mention of Shedd's conviction
would have far outweighed any possible probative value." The trial court also pointed out that the Texas

conviction occurred after Shedd assisted law enforcement officials in procuring the crystal

methamphetamine from White and after Shedd submitted a written statement regarding his involvement in

the drug transactions with White. The trial court further concluded in its post-trial findings that Shedd was

"not subject to a credibility attack under MRE 609. Furthermore, Shedd was cross examined from . . .[his

written] statement at trial by the Defendant's attorney and no major inconsistencies were revealed."

¶10. The State argues that the trial record does not show that White raised the issue of being denied his

constitutional right to confront a witness at the trial level. While conceding that White advanced a due

process argument at trial, the State asserts on appeal that White waived any argument of a constitutional

violation concerning the confrontation of witnesses as the matter was not properly preserved by an

objection at trial and/or a statement of the argument in White's motion for new trial. The State insists that

even if properly preserved, the argument is without merit. The State contends that there was no connection

between Shedd's Texas conviction and White's sale of crystal methamphetamine, and that the conviction

occurred a significant time after White's sales to Shedd.

¶11. The party seeking to use a prior conviction for impeachment purposes under M.R.E. 609 is required

"to show that the conduct giving rise to the prior conviction was such that it bears upon the witness's

propensity for truthfulness." Tillman v. State, 606 So. 2d 1103, 1107 (Miss. 1992); see also Saucier v.

State, 562 So. 2d 1238, 1245 (Miss. 1990); McInnis v. State, 527 So. 2d 84, 88 (Miss. 1988). This is

the "threshold inquiry for 609(a)(1) analysis." Bennett v. State, 738 So. 2d 300 (¶8) (Miss. Ct. App.

1999). "This applies whether the prosecutor is attempting to impeach a defendant or whether a defendant is

attempting to impeach a witness. Id. (citing Saucier, 562 So. 2d at 1245). Once a prima facie showing that

the conduct giving rise to the prior conviction concerns the witness's veracity is established, the trial court is

required to consider and balance the factors set out in Peterson v. State, 518 So. 2d 632, 636 (Miss.

1987). M.R.E. 609; Johnson v. State, 723 So. 2d 1205 (¶ 29) (Miss. Ct. App. 1998). The analysis

requires an on-the-record balancing of such factors as: (1) impeachment value of the prior offense; (2) date

of the prior conviction; (3) similarity between the past and presently charged offenses; (4) importance of

defendant's [or witness's] testimony; and (5) whether credibility is central. Peterson, 518 So. 2d at 636.

The trial judge is required to make an on-the-record determination on whether the probative value of the

prior conviction outweighs its prejudicial effect. Id. However, until a prima facie showing that the conduct

giving rise to the prior conviction concerns the witness's veracity is made, there is nothing for the trial court

to balance or weigh against the prejudicial effect. McInnis, 527 So. 2d at 88. In McGee v. State, 569 So.

2d 1191 (Miss. 1990), the Mississippi Supreme Court reiterated its position on Rule 609(a) ruling as

follows:

The mandate of our cases is that the prosecution has a threshold burden of showing prima facie the

prior conviction's probative value. The prosecution must demonstrate how the conduct, of which the

prior conviction is but convincing evidence "may suggest the witness less than credible." We say this

once again that Rule 609 declares prior convictions admissible (if at all) solely on the witness'

propensity for truthfulness, and not to show a propensity on the part of the defendant to have acted

on the present occasion in conformity with the criminal character suggested by the previous

conviction.

Pugh v. State, 584 So. 2d 781, 784 (Miss. 1991).
¶12. Pursuant to M.R.E. 609(a)(1) and case law as stated above, the trial court, when faced with a

question of the admissibility of a witness's prior conviction, must perform a balancing test to determine the

prejudicial effect if any on a party to the action and whether the probative value of such evidence outweighs

any prejudicial effect found. The record in this case discloses that defense counsel raised the issue before

trial and out of the presence of the jury in the trial judge's chambers. The in-chambers discussions were not

made part of the record. Rather, defense counsel was allowed to re-state his objections on-the-record

immediately preceding trial at which time the trial court indicated that it would stand by its earlier ruling that

Shedd's prior conviction was inadmissible because such evidence did not concern his veracity. It is

noteworthy that, while not required in this instance, White did not proffer the testimony of Shedd about his

prior conviction. Additionally, there is no other evidence in the record evincing Shedd's prior conviction.

Counsel for White mentioned the existence of a NCIC (National Crime Information Center) report that was

given to him by the prosecutor shortly before trial; however, the document was not made part of the

appellate record. The only offer White made to the trial court was his argument that Shedd was a convicted

felon and that the jury was entitled to the information that the State's primary witness was not an "ordinary

citizen," but rather a convicted felon.

¶13. Post-trial and in response to White's motion for new trial, the trial judge made findings of fact and

conclusions of law and, in effect, conducted the required 609 balancing test finding that the prejudicial effect

of such evidence outweighed its probative value. In reaching this conclusion, the trial court opined that

Shedd's prior "violation of the controlled substances law . . . offers little, if any, impeachment value." The

trial court gave significant consideration to the fact that Shedd's conviction occurred after the transactions

with White transpired and his written statement submitted to law enforcement officials.

¶14. It is not necessary for us to evaluate this matter under the Peterson analysis because we find that

White did not make a threshold showing that the prior conviction related to Shedd's veracity. As such, the

trial court was not required to perform an on-the-record and at-trial balancing of the Peterson factors.

White failed in his burden to show the trial court how the prior conviction related to Shedd's ability to tell

the truth. Accordingly, we find that this issue is without merit.

II. THE TRIAL COURT ERRED IN FAILING TO GRANT WHITE A JUDGMENT

NOTWITHSTANDING THE VERDICT.

¶15. Under this assignment of error, White asserts that the lower court erred when it denied White a

judgment notwithstanding the verdict because the evidence was insufficient to support the jury's verdict, that

verdict was "manifestly against the weight of the evidence," and because no reasonable jury could have

found White guilty based on the evidence presented by the State. White attacks the credibility of the State's

evidence pointing out that of the three witnesses testifying on behalf of the State, the confidential informant

was the only witness who could verify that the drug transactions involved White and not the others who

were in White's shop at the time of the purchases. White further maintains that the confidential informant's

testimony is unreliable because he was a police informant being paid by the "government" to make the drug

purchases. He asserts that the testimony of the two law enforcement officers was insufficient to support the

verdict because neither of them witnessed the drug transaction.

¶16. In opposition, the State contends that the evidence was in fact sufficient to support the verdict against

the Appellant. Shedd, the confidential informant, testified that he had known White since 1980 and

identified White as the one from whom he made the purchases of drugs. Further, Shedd denied that he
purchased the crystal methamphetamine from any of the others present during the transactions. Rather,

Shedd was certain that he bought the illegal substances from Walter White. Kirby and Spears did not

eyewitness the drug transactions. Rather, they listened to the drug deal while it took place. Their testimony

corroborated Shedd's description of the deals.

¶17. White's challenge of the weight of the evidence is misplaced here. A challenge to the weight of the

evidence is considered when a motion for new trial is made rather than on a motion for a judgment of a

acquittal notwithstanding the verdict. Butler v. State, 544 So. 2d 816, 819 (Miss. 1989).

A motion for judgment notwithstanding the verdict, after the jury verdict is returned, essentially tests

the legal sufficiency of the evidence that supports a guilty verdict. The standard of review for such

claims is familiar:

The motion for judgment of acquittal notwithstanding the verdict tests the legal sufficiency of the

evidence supporting the verdict of guilty. It is in effect a renewal of the defendant's request for a

peremptory instruction made at the close of all the evidence. It asks the court to hold, as a matter of

law, that the verdict may not stand and that the defendant must be finally discharged.

Where a defendant has moved for jnov, the trial court must consider all of the evidence which

supports the State's case--in a light most favorable to the State. The State must be given the benefit of

all favorable inferences that may reasonably be drawn from the evidence. Glass v. State, 278 So. 2d

384, 386 (Miss. 1973). If the facts and inferences 'so considered' point in favor of the defendant with

sufficient force that reasonable men could not have found beyond a reasonable doubt that the

defendant was guilty, granting the motion is required. On the other hand, if there is substantial

evidence opposed to the motion--that is, evidence of such quality and weight that having in mind the

beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of

impartial judgment might reach different conclusions-- the motion should be denied.

Butler, 544 So. 2d at 819 (citing Parker v. State, 484 So. 2d 1033, 1036 (Miss. 1986) (other citations

omitted)).

¶18. Viewing the evidence in a light most favorable to the verdict in this case, there was sufficient evidence

to support the jury's verdict. Shedd's testimony was that White was the person from whom he purchased

crystal methamphetamine. Law enforcement officers corroborated Shedd's testimony that he made three

purchases of the illegal substance from White. Testimony of a single witness is sufficient to support a

conviction. Doby v. State, 532 So. 2d 584, 590 (Miss. 1988). In this case, there was sufficient evidence

on which to base White's conviction. Accordingly, we conclude that the trial court did not commit error in

denying White a judgment notwithstanding the verdict.

III. THE TRIAL COURT ERRED IN FAILING TO GRANT WHITE A NEW TRIAL.

¶19. Here, White again contests the credibility of Shedd's testimony. However, this issue was not preserved

for our review. Pursuant to McLemore v. State, 669 So. 2d 19, 24 (Miss. 1996), an appellant must have

included in his motion for new trial the argument that the verdict was against the overwhelming weight of the

evidence in order for the matter to be preserved for our review. See also Jackson v. State, 423 So. 2d

129, 131 (Miss. 1982). White's motion for new trial did not include a challenge to the weight of the

evidence. Rather, the motion focused solely on the issue of Shedd's credibility and the contention that it was
error for the trial court to limit the defense's cross-examination of Shedd. Thus, this issue is barred from

review. Notwithstanding the Appellant's failure to properly raise the matter in his motion for a new trial, the

issue lacks any merit.

¶20. White bases his argument on the his allegation that Shedd's testimony is not worthy of belief because

he is a "convicted felon, indicted suspect, and paid informant of law enforcement." Interestingly, the only

conflicting evidence was that of the two defense witnesses who were not present at the time of the drug

transactions and who testified as to White's reputation and their belief that White was not a drug dealer.

¶21. A motion for a new trial "implicates the trial court's sound discretion." McClain v. State, 625 So. 2d

774, 781 (Miss. 1993). Whether to grant a new trial is a decision resting in the sound discretion of the trial

court, and the motion should not be granted except to prevent an unconscionable injustice. Id. Therefore,

we are authorized to reverse only for abuse of discretion, and on review we accept as true all evidence

favorable to the State. The responsibility of weighing and considering conflicting evidence, evaluating the

credibility of witnesses, and determining whose testimony should be believed is the function of the jury. Id.

The jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as

testimonial defects of perception, memory, and sincerity. Noe v. State, 616 So. 2d 298, 302 (Miss. 1993).

"It is not for this Court to pass upon the credibility of witnesses and where evidence justifies the verdict it

must be accepted as having been found worthy of belief." Williams v. State, 427 So. 2d 100, 104 (Miss.

1983). As to matters upon which the evidence was in conflict, the court should assume that the jury

resolved the conflict in a manner consistent with the verdict. Gossett v. State, 660 So. 2d 1285, 1294

(Miss. 1995).

¶22. The jury was charged with the responsibility of judging the credibility of Shedd's testimony, and it is

not the place of this court to judge the credibility of witness testimony. Further, it cannot be said that the

overwhelming weight of the evidence points towards White's innocence. Therefore, we rule that the trial

court did not abuse its discretion in denying White's motion for new trial.

IV. THE STATE'S FAILURE TO COMPLY WITH RULE 4.06 PROVIDING WHITE

COMPLETE PRETRIAL DISCOVERY VIOLATED WHITE'S CONSTITUTIONAL RIGHTS

TO DUE PROCESS.

¶23. White argues that on the eve of trial he learned that the State had an FBI transcript of the recordings

the State had previously provided to White of the drug transactions. White conceded that he had a copy of

the tapes, but argues that he was ill-prepared at trial because he was not provided a copy of the transcripts

of the tapes prepared by the FBI. Further, he argues that he was entitled to review the transcript and to be

given the opportunity to seek expert assistance to refute the State's claim of reliable transcription. He

asserts that it was error for the trial court to deny him a continuance arguing that he was entitled to

continuance of his trial to allow him to review the transcript prior to trial. In addition, White, relying on Ake

v. Oklahoma, 470 U.S. 68 (1985), argues that the he was deprived of his "constitutional right to equal

access to expert assistance." Even though the trial court prohibited the State from using the FBI transcript at

trial, White contends that he was prevented from evaluating all the evidence against him and as a result his

rights under the Eight and Fourteenth Amendments were violated.

¶24. The State first points out that the record does not show that White requested a continuance to review

the FBI transcript. Prior to trial, White complained to the trial court about having not been provided with the

FBI transcript in discovery. However, White's objection on this issue is unclear. He did not ask the trial
court for a continuance or mistrial. White concedes that the State gave him copies of the tapes and argued

to the trial court that he was somehow prejudiced by not receiving a copy of the FBI transcript. In the

proceedings prior to trial, the trial court did not make a ruling on the matter. Later during trial, Officer Kirby

identified the tape which contained the recording of the March 19,1995 transaction between Shedd and

White. Counsel for the Appellant stated that he had the "same objection" concerning the tape adding only

that the State failed to lay the proper predicate for the introduction of the tape into evidence. The record

reflects that an off-the-record bench conference took place presumably on this issue. However, the

resolution of this matter, if one was made during the bench conference, was not made part of this record.

The FBI transcripts were not introduced by the State nor have the transcripts been made part of the record

for purposes of appeal. The State also points out that White did not include this issue in his motion for new

trial thus barring our review of this matter on appeal.

¶25. First, the matter was not properly preserved for our review as it was not included in White's motion

for a new trial nor did White request a continuance; the Appellant's objection at trial is unclear and not

specific; and there is no ruling by the trial judge in the record for this Court to find erroneous. Even if

properly preserved for appeal, this issue lacks merit on the basis that White was not prejudiced. The trial

court did not allow the State to use the transcripts at trial, and White had in his possession prior to trial a

copy of the tape introduced by the State. Finally, White did not request a continuance of his trial during trial

or assert that the trial court erred in refusing a continuance in his motion for new trial.

V. PROSECUTORIAL MISCONDUCT VIOLATED WHITE'S RIGHTS UNDER THE FIFTH,

SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE THREE SECTIONS FOURTEEN, TWENTY-SIX AND

TWENTY-EIGHT OF THE MISSISSIPPI CONSTITUTION OF 1890.

¶26. White contends that misconduct on the part of the State's attorney violated his rights under the state

and federal constitutions to a fair trial. Specifically, White points to three certain instances of prosecutorial

misconduct. First, White was offended by the prosecutor's question of Spears: "did you have any type of

case name for this operation?" White argues that this question prejudiced him because it led the jury to

believe that he was involved in other and even "greater" crimes. He maintains that "[o]peration names are

usually used for military activities and investigations into multinational cartels." After stating his objection, the

trial court overruled his protest to the question. Secondly, White urges that he was prejudiced when the

prosecutor stated to Spears: "How much in the drug lingo. . . let's educate the jury here, how long will a

gram of crystal meth last . . . ." Lastly, White objects to language used by the prosecutor to describe White

during closing statements. In his final argument, the prosecutor referred to White as the "worse guy" or

"worse kid in the world." White made the proper objections which were overruled by the trial court.

¶27. In response, the State contends that White failed to properly preserve this issue for appeal. The State

points out that White did not move for a mistrial at the time such statements were made and that this

assignment of error was not included in White's motion for new trial. Relying on Anderson v. State, 724

So. 2d 475 (Miss. Ct. App. 1998) for its position, the State asserts that this assignment of error is,

therefore, not properly before this Court.

¶28. Even if this Court were to find that the issue of prosecutorial misconduct was properly preserved for

appellate review, the State maintains the issue lacks merit. Before an answer was given to the question, "did

you have any type of case name for this operation?", defense counsel objected, the trial judge sustained the
objection, and the question was never answered. As to the question regarding drug lingo, defense counsel

timely objected, and the trial court responded: "I think the jury is entitled to know the quantity, how much

space it occupied, how much it is. If Officer Kirby can give them some idea of the bulk of an ounce."

Thereafter, a bench conference occurred the result of which is not included in the record. However, in the

following testimony, Officer Kirby explained where and when he received the crystal methamphetamine.

¶29. In the State's closing, the following occurred:

BY MR. MITCHELL [PROSECUTOR]: I thought it was kind of neat the way Mr. Colette brought

in his sons, Sherwood and Zack. You know you walk in and say who did it, it wasn't me, it was

somebody else. That is your defense. That is their defense. Wasn't me, somebody else. Maybe drugs

were sold here. I think Mr. Colette just about conceded the fact that drugs were sold out of that

shop. So just like your two children at home, I didn't do it, it was the neighbor kids, worse kid in the

world, I didn't do it, it was the worse guy....

BY MR. COLETTE: Objection, improper closing argument.

BY THE COURT: Overruled.

¶30. The State argues that White's argument concerning these instances of alleged misconduct are

unfounded and lack any basis in fact. Further the State contends that White's failure to request a mistrial at

the time the statements were made or questions asked evinces White's satisfaction with the trial court's

resolution to situation.

¶31. The standard of review this Court applies to lawyer misconduct during opening or closing statements is

"whether the natural and probable effect of improper argument is to create unjust prejudice against the

accused so as to result in a decision influenced by prejudice." Harvey v. State, 666 So. 2d 798, 801

(Miss. 1995). The trial court must exercise considerable discretion in applying this test and considering the

circumstances of each case when ruling on whether arguments are overly prejudicial. Id.

¶32. First, we rule that White wholly failed to preserve this issue for appeal when he failed to include it in his

motion for new trial. Notwithstanding a procedural bar, the statements made by the prosecutor were

properly handled by the trial court. Furthermore, none of the allegations of misconduct even taken together

created such prejudice against White that his conviction was a result influenced by prejudice. As such, we

affirm the trial court on this issue.

VI. THE CUMULATIVE IMPACT OF THE ERRORS AT TRIAL VIOLATED WHITE'S

RIGHT TO A FAIR TRIAL UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS

TO THE CONSTITUTION.

¶33. White argues that the cumulative effect of the trial court's errors denied him his state and federal

constitutional rights to a fair trial. This Court may reverse a conviction and/or sentence because the

cumulative effect of trial errors taken independently would not compel reversal. See Jenkins v. State, 607

So. 2d 1171, 1183-84 (Miss. 1992); Hansen v. State, 592 So. 2d 114, 153 (Miss. 1991). Moreover, a

criminal defendant is not entitled to a perfect trial, only a fair trial. Sand v. State, 467 So. 2d 907, 911

(Miss. 1985).

¶34. As indicated in the previous discussions, we have determined that the trial court did not commit
reversible error. Accordingly, this issue lacks merit.

¶35. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF THREE

COUNTS OF THE SALE OF CRYSTAL METHAMPHETAMINE AND SENTENCE OF

EIGHT (8) YEARS UNDER COUNT I, EIGHT (8) YEARS UNDER COUNT II AND EIGHT

(8) YEARS UNDER COUNT III, WITH THE TERMS IN COUNT I AND II TO BE SERVED

CONCURRENTLY AND THE SENTENCE UNDER COUNT III SHALL BE SERVED

CONSECUTIVELY TO THE TERMS FOR COUNT I AND COUNT II, ALL TO BE SERVED

IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND

FORFEIT RIGHT TO OPERATE A MOTOR VEHICLE FOR SIX MONTHS IS AFFIRMED.

ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, DIAZ, IRVING, LEE, PAYNE,

AND THOMAS, JJ., CONCUR.