IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-KA-01754-SCT ANDRE ANTONIO FAIRLEY a/k/a ANDRE FAIRLEY

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 07/14/2017 TRIAL JUDGE: HON. ROGER T. CLARK TRIAL COURT ATTORNEYS: JIM L. DAVIS, III W I LLIAM CROSBY PARKER CHRISTOPHER DEON CARTER COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MICHAEL W . CROSBY ANDRE A. FAIRLEY (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 05/02/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, C.J., MAX WELL AND BEAM, JJ. BEAM, JUSTICE, FOR THE COURT: ¶1. A n d r e F airley w as indicted by a Harrison County gra n d j u r y f o r o n e c o u n t o f possessing t wo or m ore gram s, but less than ten gram s of cocaine with intent t o distribute, and one count of possessing m ore than t hirty gram s, but l ess than one kilogram , of sy nthetic cannabinoid, with i ntent to d istribute. Following a j ury trial at which F a i rley represented
him self with the aid of

standby counsel, Fairley

was convicted of

both counts.¶2. The t rial court sentenced F a i r ley , a h abitual of f ender, to twenty y ears f

or count one and f ive y ears f

or count two, with the sentences to be served day f or day and concurrently

. Fairley appeals both his conviction s a n d s e ntences through appellate counsel 1 and pro se, claim ing num erous assignm ents of error. 2 Finding no reversible error, we af f i rm Fairley ’s convictions and sentences.
FACTS ¶3. On May 6, 2015, f ederal agents with D r u g E n f o r c e m e n t A g e n c y ( D EA) were patrolling neighborhoods in Gulf port, Mississipp i , d u r i ng the a gency ’s “ Violent Tracker Initiative.” Agent s B r i a

n N o r t o n , T o b y Schwartz, R aphael Bailey , and Justin McLauren were dressed in f

ull unif orm and were traveling in an unm arked vehicle. ¶4. The a gents s topped F a i r l e y a f t e r h e f a i l e d to s t op at a stop sign. Agent Norton approached Fairley , w ho was i n t he driver’s seat of his m inivan. A passenger, Jerm aine Jackson, was riding in the vehicle with Fairley

. ¶5. W h en Agent Norton a pproached, he told Fairley why they had stopped h im and asked
f or Fairley ’s driver’s license and proof of insurance. Agent N o r t o n testif ied that Fairley appeared nervous but t hat he was com p l i a n t

. H e s a id that Fairley was sweating, that his
f ingers were trem

bling, and that he was stuttering.

1 F airley ’s ap p e llate co u n sel, M ich ael C ro sb y , en te r e d an ap p earan ce af ter th e j u d g m en t o f

co n v ictio n w as en tered , an d h e rep resen ted F airley at th e sen ten cin g h earin g . 2 F airley also f

iled a m o tio n to am en d h i s p r o se b rief , w h ich w e g ran t. 2¶6. F a i r l e y f irst handed Agent Norton his TW IC 3 card rather than h is driver’s l i c e n s e . Fairley recognized his m istake and gave A gent Norton his d river’s license. Fairley did not have proof

of insurance. The vehicle was registered in Fairley ’ s nam e . ¶7. Agent Norton asked Fairley to step to the back of his vehicle, and Fairley com plied.
W h en Fairley exited the vehicle, Agent Norton patted him d own f or weapons. Agent Norton asked Fairley if there w ere any illegal drugs or weapons on him or in his vehicle. Fairley replied, “No guns.” Agent Norton again asked whether Fairley had any drugs, and Fairley said, “I have no guns in the vehicle.” ¶8. According to Agent Norton, these r esponses f rom Fairley prom

pted N orton to ask f

or Fairley ’ s c onsent to search the vehicle. Fairley consented and said, “No problem , I don’t have any guns.” ¶9. W h en Agent Norton searched Fairley ’ s v e h i c l e , h e o p e n e d a sunglasses case and
f ound a clear plastic bag with ten individual bags of a powder substance t hat A gent Norton believed wa s c o c a i n e . Agent Norton n ext f ound a bag in the vehicle’s back seat that contained a large am o unt of what he believed was “spice,” or sy nthetic m arijuana. ¶10. M a r i e P r i n c e , a f o r e nsic chem ist with the DEA, testif ied that s h e t e s t e d b o t h substances and conf

irm e d t h a t they c ontained 2.3 gram s of cocaine and 6 68.5 gram s of
sy nthetic cannabinoids, “AB-FUBINACA.”

3 T ran sp o r

t atio n Wo rk e r Id en tif

icatio n C red en tial ( T WIC ) card s are req u ired b y th e M aritim e T ran sp o rtatio n S ecu rity A ct f o r w o rk ers w h o n eed access to secu r e a reas o f th e n atio n ’s m aritim e f

acilities an d v e ssels. 4 6 U .S .C .A . § 7 0 1 0 5 (West 2 0 1 6 ). 3¶11. Af

ter discovering the drugs, Agent Norton placed Fairley and Jackson under arrest, and he advised them of their Miranda rights. 4 F airley s aid, “ L et the m an go. They ’re m ine.
It’s m ine.” Agent Norton s aid that Fairley clarif ied at the scene o f t he arrest that the cocaine

was his, and he asked A gent Norton to let Jackson go because Jackson h ad nothing to do with the drugs. Agent Norton said he learned that Jackson was on probation, so he thought Fairley

m ight be takin g u p f

o r h i m . W hen Agent Norton asked F airley m ore details a bout the cocaine, Fairley

described the cocaine and its location. ¶12. The agents transpor t e d F a i r l e y t o t h e G ulf port Police Departm e nt, where Agent
Norton and Agent Schwartz interviewed Fairley

. During the interview, Fairley asked Agent
N o r t o n h o w h e could go hom e that night. Agent N orton explained t o Fairley that he an d Agent Schwartz were with the DEA and that they were m erely assisting the Gulf port Police Departm ent. Agent Norton, however, t old Fairley that if he provided s o m e inf orm ation, his cooperation m ight be taken into consideration. ¶13. According t o t rial testim ony , Fairley m aint a i n e d t h r o u g h out the interview that the drugs were his. Fairley said that, b ecause he had been l aid of f f rom his of

f s hore job f

or nine

m onths, he had been supplem e nting h is incom e by selling c ocaine. He said that, e very week during those nine m onths, he would purchase h alf a n ounce of cocaine, r epackage it in units of either two-tenth s o r f

o u r - tenths of a gram , a nd sell the units f o r either twenty dollars or f orty dollars.

4 M ira n d a v. A r izo n a , 3 8 4 U .S

. 4 3 6 , 8 6 S . C t. 1 6 0 2 , 1 6 L . E d . 2 d 6 9 4 (1 9 6 6 ). 4¶14. As to the sy nthetic m a rijuana, Fairley purportedly told t he agents t hat h e had loaned

a f riend som e m oney to pay his rent. W hen the f riend could not repay the m oney , the f riend
gave Fairley s om e spice instead. Fairley s aid that he had b een looking f or s o m eone who could sell the spice but that he was having trouble f inding a seller. ¶15. According to the agents, Fairley ref used to nam e his suppliers. Agent Norton said that Fairley wanted a guarantee that he would be released in exchange f or his c ooperation. W hen Agent Norton said he could not guarantee any thing, Fairley

ended the interview. ¶16. Agent Norton testif ied that he used his personal r ecorder to record the i nterview with Fairley

. But because a num ber of people w ere arrested during the DEA’s Violent Tracker Initiative, he inadvertently taped over Fairley ’s interview. ¶17. Agent Schwartz conf irm ed Agent Norton’s account of what happened. Both agents testif i ed that as a m atter of DEA policy , all DEA interviews are conducted with two of f icers. This policy exists to p rotect the f acts and to ensure that the interviewee’s statem ents are not

m isinterpreted or m i srem em b e red. Agent Schwartz’s account of Fairley ’s i nterview was the

sam e as Agent N orton’s; Agent Schwartz testif ied that taping over Fairley ’s interview had been accidental. ¶18. Fairley represented h im s elf throughout trial. He cal l e d n o w i t n e s s e s and did not testif y . Fairley cross-exam ined Agent Norton and Agent Schwartz about the evidence in the

case. S pecif

ically , Fairley questioned the a gents about an individual nam e d W illi e Lee Keller.

5¶19. The a gents te s t i f i e d t h at “W illie Lee Keller” was the f ile nam e f

or all of the arrests during t he Violent Tracker Initiative. Agent Adam Gibbons worked f o r t he Gulf

port Police Departm ent but was assigned to the DEA task f orce. Agent Gibbons explained t hat Keller

was a cocaine dealer who h ad been investigated b y the task f orce since 2011. Agent Gibbons described the Keller f

ile as a “f iling c abinet” with m any f olders. “Andre Fa i r l e y [ w a s ] a f older i n t he K eller f

ile.” Ag e n t Schwartz described the f ile nam e as a “book with m any chapters.” ¶20. All of t h e agents who testif ied said that Fairley was not being t ried f or a n y of Keller’s actions. They said that the f i l e nam e should h ave b een redacted f rom the docum ents associated with Fairley ’s case but that it inad v e r t e n t l y a ppeared on a num ber of pages in Fairley ’s f

ile. ¶21. Fairley also argued that none of the agents had seiz e d t h e sunglasses case in which the cocaine wa s f

o u n d

. Fairley claim ed that the photographs that showed t he drugs in his veh i c le had been taken at the police departm ent and not at the scene of the traf f ic stop, im p ly ing that the drugs had been planted. Alternatively , Fairley im plied that he was being prosecuted because he ref u sed to work with the DEA agents. ¶22. Norton testif

i ed that he did not seize t he s unglasses case, because it l acked evidentiary value. He said that the drugs were the only m a t erial evidence in the case. ¶23. Agent Gibbons test i f i e d t h a t the photographs were taken at the scene o f the traf f ic stop, and he told the jury that he recognized a house in one o f the photographs. In response
to a question asked by

Fairley during cross-exam ination about a “parking line” depicted in

6one of the photographs, Agent Gibbons said that the white l ine is a f og line or road line, not

a parking-space line. A gent Gibbons said the parking-space lin e s at the Gulf port Police Departm ent are y e llow, not white. ¶24. In response to F airley ’s suggestion t hat he was being set up or prosecuted because he ref us e d t o c o o p erate, A gent S chwartz said that Fairley was arrested because d rugs were f ound in h is vehicle a f

ter a routine traf

f ic stop. The a r

rest w a s n o t p e r s onal, and Agent Schwartz did not know who Fairley was bef ore that day

. ¶25. W h en questioned about why Fairley w as not issued a t icket f o r running a stop sign, Agent Norton testif

i ed that he did not issue a traf f ic citation because Fairley was c om pliant, and he did not want to “kick a h orse while it’s down.” A gent Norton s a id that he h ad to have Fairley ’s v ehicle m o v ed to get it out of the roadway

. He had two options: have the vehicle towed o r have an agent drive it. Agent Norton said that Fairley consen t e d t o o n e o f the agents driving the vehicle. Both Agent Schwartz and Agent Gibbons agreed that t he decision

not to issue a traf

f ic citation w as not unusual. Agent Gibbons also said that a s uspect is less likely to cooperate later if they have to pay

to get their car out of

the im pound lot. ¶26. The jury f

ound Fairley g u i l t y o f possessing c ocaine and sy nthetic m arijuana with intent to distribute. This appeal f ollowed.
DISCUSSION
I. Whether t he trial court erred b y adm itting Rule 404( b ) evidence w ithout c onducting a n on-the-r e c o r d Rule 403 analy sis or providing a lim iting jury instruction.

7¶27. At trial, the State sought to introduce evidence that Fairley had been convicted in 1994

of possession of m arijuana with intent to distribute. Fairley objected, stating, “I object, Rule
403.” The tria l c o u r t r e s p onded, “Okay

. I believe it’s Rule 404.” The State said, “Your Honor, d o we need to have a hearing outside the p resence of the jury ? ” T h e t r i al court replied, “No. Rule 404 allows the introduction of evidence of this ty pe to pr o v e i n tent or

m otive. So the objection is overruled.” ¶28. Rule 404(b) of

the Mississippi Rules of

Evidence then provided, 5
Evidence o f other c r i me s, wrongs, or acts is not adm i ssible to prove the character of a person in order to show that he acted in co nf orm ity therewith. It m ay , however, be adm is s i b l e f or other p urposes such as proof of m otive, oppor t u n i ty , intent, preparation, plan, k nowledge, i dentity , or absence of m istake or accident. ¶29. In Swington v. S

tate , this Court r eiterated t hat, “[ e]vidence o f prior involvem ent in the drug trade is a dm issibl e t o p r o v e intent to distribute.” Swington v. State , 742 So. 2d 1106, 1111 (Miss. 1999) (citing Holland v. S tate , 6 56 So. 2d 1192, 1196 (Miss. 1995)). This includes evidence of a prior conviction sim ilar to the crim e c h arged. I d. ¶30. Swington explained, Prior convictions or wrongf ul acts m ay not i m

p ly that the def

endant is the ty

pe of person likely to c om m i t t he crim e charged. J enkins v. State , 507 So. 2d 89, 92 ( M i s s . 1987). However, such evidence m ay be adm itted f or other evidentiary p urposes such as proof of m o tive, o pportunity , intent, p reparation, plan, k nowledge, identity , or absence o f m istake or a c c i d e n t pursuant to M.R.E. 404(b). See Robinson v. S tate , 497 So. 2 d 440, 442 (Miss. 1986). In Sm ith , 6 5 6 So. 2d at 99, this Court held t hat “evidence o f prior a cts o f f ered to show i ntent to distribute is n ot barred by M.R.E. 404 and i s properly

5 R u le 4 0 4 ( b ) w as am en d ed in 2 0 1 6 as p art o f th e g en eral resty lin g o f th e ev id en ce ru les. 8adm issible if it passes m uster under M.R. E

. 4 03 and is accom p anied by a proper lim iting instruction.” Swington , 742 So. 2d at 1112. ¶31. “To be sure, [ however,] evidence adm issible under Rule 4 04(b) is also subject to the prejudice test of Rule 403,” and the trial c ourt is required “to consider whether i ts probative value on the issues of m o tive, opportunity and intent [ are] substantially outweighed by the danger of unf

air prejudice.” Hoops v. State , 681 So. 2d 521, 5 30-31 (Miss. 1996) (quoting
Watts v. State , 635 So. 2d 1364, 1368 (Miss. 1994)). And, “while a judge’s on-the-record analy sis is recom m ended

. . . , the lack of such analy s i s i s h arm less unless w e deem the evidence to be patently

prejudicial.” Jones v. State , 920 So. 2d 465, 476 (Miss. 2006). ¶32. According to the record, Fairley told t he jury during opening statem ents that he had been f ram ed because he “wouldn’t be a snitch f or the DEA.” F airley said th e S t a t e’s case against him was b ased upon “perjured, f alsif ied, and redacted docum ents that they indicted [ him ] w ith.” And the “charging docum ent” i n the case was actually f or “a guy nam e W illie
Lee Kel l e r . ” F a i r ley also indicated that any a ssertion by t he DEA that h e (Fairley ) had purportedly told t hem t hat the s p i c e b e l o n ged to Jackson and that the cocaine b elonged to him (Fairley ), was f

alse. F airley said that he instead told th e of f icers that, “W hatever y ou f ind, guns, drugs, whatever, give it all to m e, l et m y f riend g o. He [ has] f

our y ears over top of his head. I can stand the charge because I ha[ ven’t] been in trouble in 17 y e ars.” ¶33. During cross-exam ination, Fairley asked Agent N orton w hy they did not im pound his vehicle, given t h e a mo u n t o f drugs allegedly f ound inside it and given his (Fairley ’s) background. And Fairley q uestioned Agent Norton’s testim ony that Fairley adm i tted to t hem

9that he had purchased the cocaine to sell it and that he had been looking to deliver the spice

to som eone else. Fairley also attem pted to advance the theory that the drugs m a y have been planted by the a g e n t s by suggesting that the photographs purportedly taken of the drugs at the scene of the traf

f ic stop actually had been taken later at the police s tation. Fairley f urther

attem pted to create the im

pression that the real culprit in the m atter was W illie Lee Keller. ¶34. Based upon the f

oregoing, the State’s prior-conviction e v i d e n c e w a s r e l e v a n t to Fairley ’s knowledge of the drugs’ presence, h is intent to distribute the drugs, and the absence of m i stake or accident. And b y overruling Fairley ’s Rule 403 objection t o t h e priorconviction evidence, the trial court perhaps had determ ined t hat its p robative value exceeded
any u nf air p rejudice to Fairley , given the inf e r ences and claim s raised b y Fairley during opening statem ents and cross-exam ination. In any event, however, we agree with Presiding Justice Kitchens that Fairley properly m ade (or attem pted to m ake) a Rule 403 o bjection with regard t o the prior-conviction evidence, and the t rial court should h ave ruled or r esponded

to it accordingly

. See Jones , 920 So. 2d at 476. But any error on the part o f the trial court in not doing so was harm less. Id. ¶35. Again, F airley told the jury that the e vidence w ould show he was f ram e d because he would not be a “snitch” f or the DEA. He insinuated that the drugs w e r e p l a nted in his vehicle b y the agents af

ter they drove his vehicle to the p olice station f rom the scene of the stop. A nd he d isputed having t old the agents that h e had purchased the cocaine to sell it and that he had sought a seller f o r the spice.

1 0¶36. Further, this Court has held that evidence of other crim es m ay be adm issible to tell the

com plete story

. Palm er v

. State , 939 So. 2d 792, 795 (Miss. 2 005). Fairley m entioned the
f act o f his past “trouble” and his h a v ing a “background.” And he used that to try to sow doubt i n t he jury ’s m ind. In attem p ting t o im

ply that the agents had planted the drugs, Fairley quest i o n e d w h y his vehicle was n ot im pounded, given the f

act of his background and the

am o u nt of drugs allegedly f ound in it. Fairley a lso tried to suggest his innocence by subm itting that, if indeed he was guilty of t he c r i m e s f o r which he had been accused, then why would he not c ooperate w ith the authorities, particularly given his past trouble? Accordingly , evidence o f F airley ’s p r i or conviction provided the jury a m ore com plete picture of f actual circum stances introduced by Fairley

. ¶37. Lastly , contrary to Fairley ’s claim on a ppeal , t h e t r i a l c o u r t subm itted a lim iting instruction to the jury . Jury instruction S-6 stated, The Court instructs the Jury that any e v idence of prior bad acts or crim es of the def endant m ay be considered solely f o r the purpose of determ ining the def endant’s intent or knowledge in this c ase. I f t he def endant has com m itted bad acts or c rim es, t h ey are not evidence corroborating or s u ggesting the def endant is guilty of

the crim e charged in this case. ¶38. For these reasons, we f ind no m erit to this issue.
II. Whether the t rial c ourt erred b y not granting a m istrial on its ow n m otion after Agen t S c h w artz testified about Fairley ’s h abitualoffender status. ¶39. Bef

ore t rial, the State f

iled a m otion i n lim ine to prohibit Fairley f rom m entioning his potential sentence. F a irley objected and argued that it was not f air that while he f

aced enhanced sentencing and was s ubject to being sentenced as a habitual of f e nder, he could not

1 1m ention f

acts relating to sentencing at trial. The trial court ruled that Fairley would not be allowed to m ention any potential sentence during the g uilt phase at trial. Fairley argued that this w as an attem

pt to conceal those f

acts. The trial court explained, h owever, that f a c t s related to sentencing were not relevant during the guilt phase. ¶40. W h en Fairley

cross-exam ined Agent Schwartz, the f ollowing exchange occurred: Fairley : Now, a gain, Norton also stated that I of f ered to work with y ou guy s. My qu e s t i on is this: W hy if I of f ered to work w ith y ou guy s am I here today

looking at y ou guy s? The State: Y o u r H o nor, I’m going t o o b j e c t

. N o w i t ’ s a s k i n g f o r speculation of

why this i ndividual, what h e was thinking i n his question to M r. S chwartz. W hy he is acting the way he’s acting. It’s com pletely im proper, Your Honor. The Court: All right. I think h e said why is he here i f he w as asking them

about w orking with the police, and I think this witness can answer that question. Schwartz: Sure. It doesn’t m ake s e nse why y ou’re here because y ou have

a lot to lose. From w hat I und e r s tand, y ou’re a habitual of f ender, if I understand that correctly

. The Court: W ait, wait, wait. Don’t talk about any thing - - Schwartz: He asked. The Court: - - about that. Schwartz: Yes, sir. The Court: All right. Go on to another question, Mr. Fairley

. Schwartz: It’s probably not a good question to ask. Fairley : That’s a great question to ask because I really want to know that.

Of f icer Norton stated the sam e thing. And y ou stated that y ’ all keep i t to the narrative. So I really w anted to know i f I cam e to

1 2y ou with that ty pe of of f er I shouldn’t be i n this situation. I just need the jury to know that, I wouldn’t be in this if I cam e to y ou with that of

f er. Y’all cam e to m e with that of f er. The Court: All right. That’s an illegal question. Fairley : I’m

sorry , again, Your Honor. It’s hard to - - The Court: So I’m going to sustain the objection to that. ¶41. F a i r l e y argues f

or the f irst tim e on appeal that the habitual-of f ender c o mme n t b y Agent Schwartz constituted reversible plain error. W e disagree. ¶42. T h e c o mme nt regarding Fairley ’s h abitual-of f e nder statu s c a me f

r o m F a i r l e y ’ s question to A gent Schwartz. Fairley did not o bject to it, a nd he adm ittedly wanted the jury

to hear it. “A def

endant cannot com

p lain on appeal o f alleged errors invited or induced by
him self .” Singleton v. State , 518 So. 2d 653, 655 (Miss. 1998) (citing Davis v. State , 472 So. 2d 428, 432 (Miss. 1985)). Accordingly , this issue is without m erit.
III. Whether the trial court erred by allow ing character evidence of w itnesses to be adm itted. ¶43. Fairley argues f

o r the f irst tim e on appeal that Rule 608 of t he M ississippi Rules of Evidence was violated because witnesses g av e s p e c i fi c e x a m p l e s c o n c e r

n i n g o t h e r w itnesses’ reputations f

or truthf u lness. W e f

ind that the issue is waived because Fairley did not object

to a n y s u c h testim ony when it was presented at t rial. See Rubenstein v. State , 941 So. 2d 735, 752 (Miss. 2006) (Failure to object to im p roper questioning waives the error.).
IV. Whether the S tate im properly com m ented on Fairley ’s right not to testify .

1 3¶44. For the f irst tim e on a

ppeal, Fairley claim s the State drew the jury ’s attention to his
f ailure to testif

y at t rial w i t h t h e f

ollowing com m ent, which was m ade during closing
argum ent: These are individuals doing their job, doing what we want as f ar as com ing in and a ssisting o ur local law enf orcem ent, and they have to take this witness stand and they ’re subject to cross-exam ination, s ubjected to being called liars. See, b ecause that’s what i t com es down to. W ho do y ou b elieve, right? W e ’ve knocked down every one of these distractions and it c om es d own to w ho y ou believe. ¶45. F a irley did not object to this argum ent at trial; t heref ore, h i s c l a i m o n a p p e a l i s considered waived. S

e e Evans v. State , 226 So. 3d 1, 31 ( Miss. 2017). P r o c e dural bar notwithstanding, this assignm ent of error is without m erit. ¶46. Attorney s are given wide latitude in m aking closing argum ents. As discussed in the previous issue, Fairley challenged t he credibility and truthf ulness of the State’s witnesses during his cross-exam inations. The State’s closing argum ent responded. This w a s f air and
pro p e r , and it did not directly or indirectly bring attention to the f act that Fairley had exercised his constitutional right not to testif y . V. Whether the trial c ourt erred in accepti n g Agent Schw artz as an ex pert w itness and in f

ailing to instruct the jury regarding ex pert testim ony . ¶47. For the f

irst tim e on appeal, Fairley claim s t he State com m i tted a d iscovery violation b y f ailing to subm it n otice of its i ntent to call an e xpert w itness at t rial. Also, f or the f irst tim e on appeal, Fairley claim s the trial c ourt and Fairley ’s standby c o unsel f ailed t o present a lim iting instruction regarding the consideration of expert testim ony .

1 4¶48. This assignm ent of error is waived because Fairley did not o bject t o this t estim ony at trial. Procedural bar notwithstanding, this issue is without m e r it. ¶49. As the State p o ints o u t, prior to trial, the State s ubm itted a witness-disclosure list. I t contained asterisks by the nam e s of people whom the State expected t o testif y as expert witnesses. Agent Norton and Agent Bailey were expected t o t estif y a s experts i n t h e f

ield of narcotics. And Marie Price was expected to testif y a s an expert in the f

ield of drug and

c h e mical analy sis. An asterisk was placed b y Agent Schwartz’s nam e, a lthough his nam e

w a s not m entioned in t he f ootnote denoting which witnesses were expected to testif y a s experts. The State contends this was a scrivener’s error. ¶50. Nevertheless, when Agent Schwartz was tendered at trial as an expert in t he f ield of drug investigations and drug traf f icking, Fairley did not object. Theref ore, Fairley cannot

now be h eard to com

plain about a discovery violation. See Brewer v . State , 725 S o. 2d 106, 121 (Miss. 1998). ¶51. As to Fairl e y ’ s c l a im that no lim iting instruction about the consideration of expert testim o ny was provided, the record shows otherw i s e. The trial c ourt subm i tted a general instruction, which thoroughly instructed the jury how s uch testim ony should be c onsidered. Instruction C-8 stated, The rules of evidence p r ovi d e t h a t where scientif ic, technical, or other specialized knowledge m ight assist the jury in understanding the evidence or in determ ining a f

act in issue, a witness qualif ied as an expert by knowledge, skill[ ,] experience [ , ] training or education, m ay testif y and state his opinion concerning such m atters. You will recall that several individuals have testif ied as e xperts in this case either in person o r by deposition. You should consider each expert o pinion r eceived in evidence in this case and give it such weight as y ou m ay think it deserves. If y ou shoul d d e c i d e t h a t the opinion of an

1 5expert witness is not b ased upon suf f icient education and e x perience, or if y ou should c onclude that the reasons given in s upport of the opinion are not sound, or that t he opinion i s outweighed by o ther evidence, t hen y o u ma y disregard the opinion entirely

. VI. Whether the trial c ourt erred in instructing the jury t hrough Jury Instructions S-8, S-9, and S-10. ¶52. Fairley claim s the f o llowing i n s t r u c t i o n s g r a n t e d b y t he trial court f or the State constituted im

perm issible com m ents on the evidence:
S-8: The Court instructs the Jury that the decision to stop an autom obile is reasonable where t he police have probable cause to believe t hat a traf f ic violation has occurred.
S-9: The Court instructs the Jury that during a lawf u l t raf f ic stop an of

f i cer m a y order a passenger out of

the car as a precautionary m easure[ .]
S-10: The C ourt i nstructs the Jury that there is no requirem ent that an of f i cer issue a citation f

or the predicate traf

f ic violation to have a valid traf f ic stop. ¶53. No objection w a s ma de at trial t o Instructions S-8 and S-9. W hile standby counsel objected to Instruction S-10, coun s e l did not s tate his reason f or the objection. Theref

ore, this issue is waived. See Morgan v. S tate , 741 So. 2 d 2 4 6 , 253 ( Miss. 1999) (“In order to
preserve a jury instruction issue o n appeal, a party m u st m ake a s p e c i f

i c objection to the proposed instruction in order to allow the lower court to consider the issue.” (citing Watson v. State , 483 So. 2d 1326, 1329 (Miss. 1986))). ¶54. Procedural bar notwithstanding, we f i nd no reversible error with t he s e instructions. No instruction touched on the question the j ury had to decide—whether Fairley was guilty of possession of a controlled s u bsta n c e with intent to distribute. Nor did the instructions
encourage the jury to a ssign weight to any of the evidence. Each i nstruction sim ply inf orm ed

1 6the jury of the law as it pertained to the evidence presented at trial. Accordingly , this issue

is without m erit.
VII. Whether Fairley received ineffective assistance of counsel. ¶55. Fairley claim s that standby counsel r endered i n e f f e c t i v e assistance of c ounsel by
f ailing to subm it a spoilation i nstruction r egarding the lost recording of his i nterview. Fairley also claim s the trial judge ref used to dism iss the charges in this case despite a two-y ear delay , prim arily because Fairley ’s counsel at the tim e signed of f on ten continuances; but no hearing

w a s c o n d u cted regarding inef f ective assistance of counsel. Fairley subm its that this issue should be preserved f

or a post-conviction relief hearing. ¶56. The S tate subm its that b oth claim s are w ithout m erit. First, the State argues that self

r e p r e s e ntation generally precludes a claim t hat standby counsel rendered inef f ecti v e assistance. Estelle v. State , 558 So. 2d 8 43, 847 (Miss. 1990). This i s b ecause when the def endant waives the right to counsel and r epresents him self , standby c ounsel lacks authority

or c ontrol to render inef

f e ctive assistance of counsel. Id. The State, however, a lso subm its

t h a t b e c a u s e Fairley utilized counsel’s assistance when it cam e to presenting jury ins t r u c t i o n s , Fairley ’s inef

f ective-assistance-of

-counsel claim m ay not be autom atically barred. Regardless, though, the State m aintains that this claim i s m eritless. ¶57. In his pro se brief , Fairley claim s that J a m e s D a v i s , w h o m F a i r l e y had hired to represent him , rendered inef f ective assistance o f counsel f or f iling a “f raudulent suppression

m otion,” f

or a llowing the State to r e q u e s t a n am endm ent to Fairley ’s indictm ent, f or threatening a nd coercing Fairley verbally to enter into a plea agreem ent with the prosecution,

1 7f

or f ailing to com

plete discovery , and f

or f ailing to adequately represent Fairley at a critical

m otion hearing. Fairley s ubm its, however, that these claim s are m ore appropriate in a postconviction relief proceeding, and he requests that he be a l lowed to p reserve these claim s f or such a proceeding. Fairley cites Rule 22(b) of t he Mississippi Rules of Appellate Procedure. ¶58. “In order to prevail on an inef f ective-assistance-of

- counsel claim , a def

e ndant m ust
prove that h i s a t torney ’s perf orm ance was def

icient, and t hat the d ef

iciency was so substantial as to deprive the def endant of a f

air trial.” Dartez v

. State , 177 So. 3 d 420, 423 (Miss. 2015) ( citing Holly v. State , 716 So. 2d 979, 989 (Miss. 1998)); see also S trickland v. Washington , 466 U.S. 668, 687-96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). ¶59. As to t h e spoilation claim , we agree w i t h t h e S t a t e . I n order “to b e e n titled to a spoilation instruction there m ust be evidence of intentional destruction of the evi dence.” Snyder v. State , 174 So. 3d 331, 337-38 (Miss. Ct. App. 2015) (em phas is om itted) (citing Hardy v. State , 137 S o. 3d 289, 303 (Miss. 2014)). “ W ithou t e vidence of i ntentional destruction, there is no presum ption the unpreserved evidence would have been f avorable.”
I d . ( citing J

ohnston v. State , 618 So. 2d 9 0, 92 (Miss. 1993)). Here, no evidence wa s presented at trial that the a udio recording of Fairley ’s interview was p urposef u lly taped over

or erased in bad f

aith. T heref

ore, Fairley was n ot entitled to a s poilation instruction, and the claim f ails under both Strickland prongs. ¶60. As to the speedy -trial claim , Fairley presented h is claim to the t rial court p rior to trial. Fairley claim ed that all the c ontinuances were sought because the State had not com pleted discovery

. The trial court, however, f ound (and the r ecord shows) that twelve continuance

1 8m otions were f iled by Fairley ’ s f

orm er counsel, Jam es Davis, on behalf of the d ef ense. Ten of t he m otions i ndicated that the continuance was necessary to com p lete d iscovery f

or the def ense. The o ther two m o t ions indicated that the continuance w as necessary because def ense counsel was not available f or trial on the scheduled dates. ¶61. The t rial cou

r t d e n i e d F a i r l e y ’ s s p e e d

y - t rial claim , f

i nding that Fairley was represented by counsel who signed the m otions on Fairley ’s behalf . The trial court told Fairley that he

m ay have had an inef

f e ctive-assistance-of

-counsel claim against h is f orm er counsel if

, as Fairley claim ed, he had instructed c o u n s e l o therwise. But the c ourt explained that such a claim would be a m atter f

or post-conviction relief

in the event Fairley

was convicted. ¶62. W e agree w ith the trial court that this claim cannot be a dequately addressed on direct appeal, because it involves alleged f acts that exist o utside the record. See Archer v. State , 986 So. 2d 951, 955 ( Miss. 2008) (explaining that inef f ective-assistance claim s, generally ,

are m ore appropriately brough t during post-conviction r elief proceedings because a reviewing court is l im ited to the t rial court r ecord on direct appeal). T h e r e f o r e , F a irley ’s inef f ective-assistance-of

-counsel claim with regard to his speed y -trial rights is dism issed without p reju d i c e s o t h a t Fairley , if he chooses, m ay assert this claim f or a f uture postconviction relief

petition. See R ead v. State , 430 So. 2d 832, 837 (Miss. 1983). ¶63. We a l s o agree with F airley that the other inef f ective-assistance-of

-counsel cla i ms raised in his pro se brief cannot be addressed on direct appeal because t hey involve alleged
f acts not apparent f

r om the appellate record. Accordingly , t hose claim s also are dism issed without prejudice.

1 9VIII. Wheth er the t rial court erred in sentencing Fairley as a habitual offender. ¶64. F a i r l e y c laim s the trial court com m i tted r eversible error by ref u s i n g t o c o n s i d e r evidence in support of a sentence less than the m axim um and by f

ailing to c onsider Clowers

v. State , 522 So. 2 d 762 (Miss. 1988). A t the sentencing hearing, Fairley ’s counsel argued that Clowers supported his argum ent that the trial court had discretion in sentencing and that the trial court should sentence Fairley t o a t e r m less than the m axim um sentence, despite Fairley ’s habitual-of

f ender status. ¶65. The trial court held that because Fairley was a habitual of f ender, it would n ot deviate
f rom the m axim

um sentence. The trial court said,
I’m tired of

getting written up about it so I’m not going to change - - I m ean, I’m not going to deviate f rom the m axim

um sentence because that’s what the statute say s, that upon conviction that a def endant sh a l l be sentenced to the m axim um sentence in the case. ¶66. In C

lowers , the d e f

endant, a habitual of

f ender, had been c onvicted of f orging a $250 check. Clowers , 5 22 So. 2d at 763. As a h abitual of f e nder, the def

endant was subject to the

ma n d atory m axim

um sentence of f

if teen y e a rs without parole. Id. B u t t he t r i a l c o u r t im p osed a sentence of less than f if t een y e ars because it determ ined t h a t t he m andatory

m axim u m sentence was disproportionate to the crim e. Id. O n c r oss-appeal, this Court af f irm ed the trial court’s sentence. Id. at 765. The Clowers C ourt said,
T h e f act that t he t rial judge lacks sentencing discretion does not necessa r i l y m ean the prescribed sentence m e e ts f ederal constitutional p r o p o r tionality requirem ents. Notwithstanding [ Mississippi Code Section] 99-19-81, the trial court has a

uthority to review a particular sentence in l ight of constitutional

2 0principles of p roportionality as expressed in S olem v. H

e lm [ , 463 U .S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)]. 6
Clowers , 5 22 So. 2d at 765. ¶67. Clowers , however, a lso expressed that its holding in the case was n ot the rule, but the exception. Id. Clowers explained that it was not establishing a l itm u s test f or p roportionality and t hat “outside the con t e x t o f capital punishm ent, successf ul challenges to the proportionality of a particular sentence [ will be] exceedingly rare.” Id. (alterat i o n i n original) (em phasis om i tted) (quoting Solem , 463 U.S. at 289-90). ¶68. I n H

o o ps v. S tate , this Court recognized that the United Sta t e s S u p r e m e C o u r t overruled Solem in Harm elin v. Michigan , 501 U.S. 957, 965-66, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), “to the e xtent that i t f ound a guarantee in the proportionality in the Eighth
Am endm ent.” H

oops v. State , 6 81 So. 2d 521, 538 (Miss. 1 9 9 6 ) ( c i ting Sm allwood v. Johnson , 73 F.3d 1343, 1346 n.4 (5th Cir. 1996)). Hoops n oted that Sol e m is a pplicable only i f a thres h o l d com

parison o f the crim e c om m itted with t he sentence im posed leads to

an inf erence of “ gross disproportionality .” Hoops , 681 So. 2d at 538 (quoting Sm allwood , 73 F.3d at 1347). ¶69. No such showing was m ade at F a i r l e y ’ s s e n t e n c i n g , a nd h is sentences raise no
inf eren c e o f gross d ispropotionality

. See Tate v. State , 912 So. 2d 919, 934 (Miss. 2005)

6 In S o lem , th e U n ited S tates S u p rem e C o u rt h eld , u n d er th e E ig h th A m en d m en t o f U n ited S tates C o n stitu tio n , th at a c rim in al sen ten c e m u st n o t b e d isp ro p o rtio n ate t o t he c r im e f o r w h ich th e d e f

en d an t is b ein g sen t en ced

. S o lem , 4 6 3 U .S . at 2 9 0 . T h e S u p rem e C o u rt set f o rth o b j ectiv e f acto rs to g u id e p ro p o rtio n ality an aly sis in each case: “ (i) th e g rav ity o f th e o f f en se an d th e h arsh n ess o f th e p en alty ; (ii) th e sen ten ces im p o sed o n o t h er crim in als in th e sam e j u r isd ictio n ; an d ( iii) t h e sen ten c es im p o sed f o r co m m i ssio n o f th e sam e crim e in o th er j u risd ictio n s.” Id . at 2 9 2

. 2 1(f

i nding sixty -y ear drug-related sentence , “ [ t ] hough certainly h arsh,” was “not ‘grossly disproportionate’ to [ the] crim e”). The record shows that although Fairley w as eligible f or sentencin g e nhancem ent as a prior drug of f e n der, the trial court declined to im pose an enhanced sentence. S

ee Miss. C ode Ann. § 41-29-147 (Rev. 2018). T h e trial court noted that t he only decision it had l ef t to m ake was whether to order Fairley ’ s sentences to run concurrently

or consecutively

. In its discretion, the trial court ordered the f orm er. ¶70. This issue is without m erit.
IX . Whether the trial court erred by deny ing Fairley ’ s request f o r bond pending appeal. ¶71. Fairley ’ s appellate c ounsel claim s o n a p p e a l t h a t the t rial court’s ref usal t o release Fairley f rom custody p e nding appeal, despite Fairley ’s overwhelm ing qualif ication f or such, denied Fairley his statutory and constitutional rights. He contends that when the trial court

was asked to consider Section 99-35-115, it ref used to consider b ail, despite large com m unity support, only because the def e ndant was sentenced as a habitual o f f ender. F airley also has
f iled a pro se petition with this Court f or writ of habeas corpus, asserting the sam e claim

. ¶72. As this C ourt has explained, “[ B ] a i l i s a fu n d a m e n t a l , c o n s t i t

utionally p rotected right.”
Benson v. State , 5 5 1 So. 2 d 188, 194 (Miss. 1989) (quoting Resolute Ins. Co. v . State , 233
So. 2d 7 8 8 , 7 8 9 ( Miss. 1970)). That right, however, is not autom atic, and t he decision to grant or deny bail “rests in the sound d iscretion o f the judicial of f icer.” Id. (quoting Lee v. Lawson , 375 So. 2d 1019, 1024 (Miss. 1979)). “If bail [ p e n d i ng appeal] is denied, the j u dicial of

f icer s hall place the reasons f or such denial of record in the case.” Miss. Co d e Ann. § 99-35-115(2)(b) (Rev. 2015).

2 2¶73. On the other h and, “denial of b ail is not a ground f or rev e r s a l o f t h e judgm ent [ of conviction or sentence] rendered against the def endant.” Benson , 551 So. 2 d at 195. And,

as a m a tter of course, actions challenging the trial court’s d enial of bail ty pically are brought through habeas corpus procedures. Id. ¶74. As the State points out, the trial court f ollowed the statutory requirem e nts of Section
99-35-115 in evaluating F airley ’s request and stating f or the record its reason f

or d eny ing the request. T he trial court f

ound t hat Fairley is a repeat of f ender o f the crim es f

o r which he was convicted, and “there’s no w ay to prohibit that kind of activity if h e were to rem ain on bond” pending appeal. ¶75. The record evidence supports the trial court’s f inding, and w e cannot s ay that the trial

court abu s e d i ts discretion in deny ing Fairley request f or bail. This issue is w ithout m erit, and we deny

Fairley ’s m otion in this Court.
X . Whether the trial court erred by a llow ing Fai r l e y ’s selfrepresentation. ¶76. I n h i s pro se brief , Fairley claim s the trial court com m itted reversible error by ( 1 ) allowing Fairley

to proceed pro se without providing adequate warnings about t he dangers and disadvantages of

self -representation as required under Faretta v. California , 422 U.S. 806, 95 S

. Ct. 2525, 45 L. Ed. 2d 562 ( 1975); and (2) f a iling to in q u i r e i n t o n u m erous conf licts of interest that existed between Fairley and his f orm er counsel, Davis. ¶77. Fairley ’ s trial occurred on June 2 7 and 28, 2 017. Fairley rem ained out of jail on bond

unt il his conviction. Trial previously was scheduled f or May 8, 2017, af

ter num erous

2 3continuances h ad been granted by the trial court. On May 8, b ef ore t rial was set to begin that day , Fairley

inf orm ed the trial judge that he wanted to f i re Davis. ¶78. The judge initially told Fairley

no, instructing Fairley

that h e “can’t just com e in on the day of trial and f

ire y our lawy er.” The j udge then relented som e w hat af ter learning that Davis was not court appointed; also, an o t h e r case on t he c o urt’s docket was s cheduled to begin the next day , May 9. The t ri a l judge told Fairley his case would be c ontinued if the other case went to trial. ¶79. The j udge then asked Fairley when he expected to hire another attorney

. Fairley t old the judge t hat he h ad been t alking to NAACP and ACLU. The judge then inf orm ed Fairley that the c o urt was n o t going to “wait ar o u n d ” until Fairley f ound new counsel. He told Fairley that h e was going to put Fairley ’s case back on t he docket and that i t would be “tried as soon as we can get to it.” ¶80. The next day , May 9 , t he trial judge inf orm ed Fairley that his case would have to be continued to May 15, 2 0 1 7 , d u e to the other c ase on the court’s docket. T he judge told
F airley that he would allow Davis to withdraw f rom t he case and that Fairley c oul d r e t a i n other counsel or represent him self , because he h a d t h e r ight to either. Fairley responded, “Okay .” ¶81. The f

ollowing week, on May 1 5, Fairley a p peared bef

ore the judge w ithout counsel. The judge asked Fairley if he had retained new counsel. F airley t old the judge, “ No. I don’t

want o ne.” Fairley said he was ready to “hear the case” him s e lf

. The judge inf

orm ed Fairley he would have to conduct a hearing to m ake Fairley aware o f “all that’s involved in try ing

2 4the case by y ourself

. ” The judge then asked the parties w h e n they would be a vailable f or trial. The State requested June 26, 2017. Fairley , however, inf orm ed the judge t hat he would

not be av a i l a b l e t hat day because t hat was h is m o ther’s birthday , and his f am ily had a celebration planned since h is m other h ad died recently

. The judge set the c a se f or June 27,
2017. ¶82. During the May

15 hearing, the judge explained to Fairley that, even though he had the right to proceed pro s e, doing so was unadvis a b l e . The judge inf orm ed Fairley that he had the opportunity to h ire another attorney and that i f he did not have the m oney to hire an attorney , the court w ould a ppoint one. The judge explained t o Fairley that h e would not be given special treatm ent if he proceeded pro se. “The [ c]ourt will n ot relax or disregard the

r u les of evidence, procedure or courtroom protocol f or y o u, and y ou will have t o c o n d u c t
y ourself within the sam e rules that lawy ers do who have legal training. ” T h e j udge told Fairley that statistics show proceeding in a case pro se “increases the likelihood of an adverse

outcom e o f t he case.” And “self -representation is alm ost alway s unwise.” The judge reiterated that Fairley would not receive special treatm ent and that Fairley “m ust f ollow all of the technical rules of substantive law, crim inal p rocedure, and e vidence in t he m aking of

m otions, objections and p resentation of the evidence, in jury selections and argum ent, even if y ou don’t know what the rules are.” ¶83. Fairley said h e understood what the j udge was say ing, but he w anted t o object f or the record about proceeding pro se. Fairley said, “I want to h ear the case m y self

. And I f or the record will not be pro se because I am not a practicing lawy er or work f or any law f irm .”

2 5¶84. The judge responded as f ollows:
W ell, y ou’re going to be classif i ed as pro s e. Pro se m e ans representing y ourself

. And if y ou don’t have a lawy er, y ou’ll have to com e in and t he f irst thing we do is pick a jury by voir dire. The State gets to ask questions. You get to ask questions. Af

ter that, we c h o o s e - - y ou and the State choose 12 people to try

the case. Then the case g o es to trial, and y o u m ake o pening statem ents, and t hen the State p u ts on its evidence. You get to c r oss-exam ine their w itnesses. A nd then when the State rests, y ou get t o p u t on y our evidence a nd the State gets to cross-exam ine y our witnesses. Then y o u m ake f inal argum ent to the jury

. I read the jury the instructions of law that a pply to the f

acts t hat they f

ind, and then the jury

is retired to consider its verdict. That’s kind of

how the procedure of

the case will work. Okay ? ¶85. Fairley indicated that he understood. The judge then inf orm ed Fairley that he would hear any pretrial m otions. ¶86. On June 22, 2 0 17, Fairley appeared in court and inf orm ed the judge he w as not going

to retain new counsel. T he judge again caution e d Fairley a bout the dangers of self

representation. He r eiterated that Fairley would not r eceive special treatm ent, and he again explained in general how t rials are conducted u nder the rules, to which Fairley would be bound. Over Fairley ’s objection, the judge appointed Geof f Germ a ny as standby counsel f or Fairley

. ¶87. Both our f

ederal and s tate constitutions provide that every def endant has the right to conduct his or her own def ense. Grim v. State , 102 So. 3d 10 7 3 , 1 0 7 6 ( M iss. 2012);
Howard v. State , 697 So. 2d 415, 420 (Miss. 1 997) (citi n g U

. S. Const. am ends. VI, XIV; Miss. Const. art. 3, § 26). A ref usal to allow a def

endant who voluntarily

and intelligently

e l ects to represent him s elf is a violation of his or her constitutional rights and require s

2 6reversal. Gray v. State , 351 So. 2d 1342, 1345 (Miss. 1 977); see also Faretta , 422 U.S. at

835. ¶88. The procedure f

or evaluating a def

endant’s dem and to represent him self previously was f ound in Rule 8.05 of

the Unif orm Rules of Circuit and County

Court Practice:
W hen the court learns that a def endant desires t o ac t a s his/her o wn attorney , the court shall on the record conduct an exam ination of the def endant to determ ine i f the def

endant knowingly and voluntarily desires to act as his/her own attorney . The court shall inf orm the def endant that:
1. The d e f

endant has a right to an a ttorney , and if the def endant cannot af

f o rd an attorney , the state will appoint one f ree of charge to the def

endant to d ef

end or assist the def

e ndant in his/her def

ense. 2. The def

endant has the right to conduct the def ense and that the def

endant m ay elect to c onduct t he def ense and a l l o w w h a tever role (s)he desires to his/her attorney

. 3. The court will not r elax or disregard the rules of evidence, procedure or courtroom protocol f

o r the def endant and that the def

endant will be bound by and have to conduct h im self /herself within the sam e rules as an attorney , t hat these rules are n o t sim

ple and that w ithout legal advice h is/her ability to d ef end him self /herself will be ham

pered.
4. The right to proceed pro se us u a l l y i n c r e a ses the likelihood o f a trial outcom e unf

avorable to the def

endant. 5. Other m atters as the court deem s appropriate.
URCCC 8.05. 7 ¶89. Fairley claim s on appeal that the trial court was a ware that he was not “com petent o f
l a w ” to proceed pro s e when, at t he May 1, 2017, hearing, the trial judge “took i ssue” t h a t

7 T h e M ississip p i R u les o f C rim in al P ro ced u re rep l aced th e U n if o rm R u les o f C ircu it an d C o u n ty C o u rt P ractice relatin g to crim in a l p ractice, ef f ectiv e Ju ly 1 , 2 0 1 7

. S

ee M R C rP 7 .1 (c) (w a iv er o f rig h t to co u n sel). A t th e t im e o f F airley ’s trial, U n if o rm R u le o f C ircu it an d C o u n ty

C o u rt P ractice 8 .0 5 w as still in ef f ect. 2 7Fairley h ad neither the law-school education nor t he y ear s o f experience to interpret the

Constitution. At that point, F airley say s t he trial j udge s hould have s topped the proceedings and d eterm ined his c om

petency t o r epresent him self , because the judge was in the best position to see that he n eeded counsel. And, a ccording t o Fairley , th e t r i a l judge was obligated to protect his f

undam ental rights. ¶90. Based on our review of the record, no reason t o conduct a R ule 8.05 colloquy at the May 1 hearing was apparent, because Fairley still was represented by D avis and gave no indication that h e i ntended to f ire Davis. Also, the judge’s com m ent about Fairley ’s lack of legal education was in response to an argum e nt Fairley had m ade about his speedy -tr ial rights. ¶91. As m entioned above, Fairley claim ed t hat his attorney had signed of f on a num

ber of continuances without Fairley ’s consent. Fairley told the trial judge he did not think that the judge was “honor[ ing] t he Constitution on both ends of the spectrum

. . . .” Fairley said “I’ve been raped of

m y rights.” ¶92. The judge a dm onished Fairley , telling him that “y ou need to be caref ul how y ou say things because this is a court of law.” Fairley said he understood and that all he was asking

was “f or the law to b e passed and rendered a c cording t o the C onstitution.” T he judge replied,
I understand that’s y our interpretation of t he Constitution. These three lawy ers and m y self have been t hrough three y e ars of law school and

. . . have s t udied law and tried it now f

o r 30 to 5 0 y ears. A n d s o y ou have a right to y o ur interpretation of the C onstitution

. . . and y o ur case. But if I don’t rule the way y ou think I should, y ou have a right to appeal af ter trial. You have a right to

2 8appeal any decision that’s r e n d e r ed by a jury

. I don’t know what a jury is

going to do. I don’t know what the case is about. . . . ¶93. Again, Fairley m ade no m ention t o the judge at the May 1 hearing that he wanted to
f ire his at t orney . Fairley f irst d id so at the May 8 hearing. T hen, at the May 15 hearing, when it becam e clear to the judge that Fairley ref used to hire n ew counsel or a ccept courtappointed counsel if F airley could not af f ord c o u n s e l , the judge conducted a Rule 8.05 colloquy

. The judge did s o again at the June 22 hearing to m ake sure Fairley knowingly and voluntarily

intended to act as his own attorney

. ¶94. The trial judge, in his d iscretion, a ppointed standby counsel f o r Fairley , over Fairley ’s objection. See Faretta , 422 U .S. at 834 n.46 (“Of course, a State m ay —even over objection by the accused—appoint a ‘standby counsel’ to aid the accused . . . .”). ¶95. Based on the record, Fairley ’s claim that t h e t r i a l c o u rt allowed h im to proceed pro

se without pro v i d i n g a dequate w arnings about the d angers and disadvantages of self

representation is incorrect. The trial judge m ade Fairley aware m ultiple tim es, and Fairley
k n o w i ngly d isregarded t he judge’s adm onition “with ey es open” and proceeded to trial , representi n g h i m s e l f

. Faretta , 422 U.S. at 835 (quoting Adam s v. United States ex rel.
McCann , 317 U.S. 269, 279, 6 3 S. Ct. 236, 8 7 L

. Ed. 2 68 (1942)). Accordingly , t his claim is without m erit.
CONCLUSION ¶96. Finding no reversible error, we af f irm Fairley ’s convictions and sentences.
AFFIRMED.

2 9RANDOLPH, C.J., COLEMAN, MAX W ELL, CHAMBE R L I N, ISHEE AND

GRIFFIS, JJ., CONCUR. KING, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JO I N E D B Y K I T C H E N S , P . J . K

ITCHENS, P.J., C ONCURS IN PART A N D IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J. KING, PRESIDING JUSTICE, SPECIALLY CONCURRING: ¶97. I agree with this Court’s decision to a f f irm Andre Fairley ’ s convictions and sentences.
I write s eparately to express m y concerns regarding the trial court’s appointm ent of standby counsel the day bef

ore Fairley ’s crim inal trial began. ¶98. The United States Suprem e Court has recognized that the Sixth Am e ndm e nt gives a def endant the r ight to conduct his own def ense. F aretta v. California , 422 U.S. 806, 95 S.
Ct. 2525, 45 L. Ed. 2d 562 (1975). However, courts m ay turn to “hy

brid representation” to protect the def

endant’s right to counsel w hile also protecting his right to self -representation. Metcalf v. State , 6 29 So. 2d 558, 562 (Miss. 1993). T he role o f standby counsel “includes,

am ong ot h e r things, the n e cessity of preparing as a dequately as possible to assum e a m ore active role in the trial, should the need arise.” Howard v. State , 701 So. 2d 274, 285 (Miss. 1997), abrogated on other grounds by Hearn v. S tate , 3 So. 3 d 772, 730 n.11 (Miss. 2008).
It additionally includes the obligation “to provide the def endant with adequate assistance in accordance with t he def

e n d a n t ’ s r e q u e sts.” Hill v. State , 134 So. 3d 7 21, 725 n.1 (Miss. 2014). ¶99. H e re, t he trial c ourt appointed standby c o unsel on June 2 6, 2017, t h e d a y b e f o r e Fairley ’s t rial began. This inevitably lef t Fairley ’ s standby counsel with i nadequate tim e to becom e f am iliar with his case. The trial court recognized that standby counsel knew “nothing

3 0about t he case” and w ould n o t b e allowed to cross-exam ine witnesses because “ he knows

nothing about the f

acts of the case,” but the trial c ourt stated also that counsel would be able

to p rovide assistance on procedural issues. In m y opinion, Fairley would have been better served h ad the trial court appointed standby c o unsel f ar enough in advance to allow counsel to adequately

prepare should Fairley

need him to assum e a m ore active role. ¶100. The t rial court had advance notice t hat Fairley d id not f ully u n d e r s t a n d the law and needed a ssistance d espite his decision to d ef end him s elf

. For exam

ple, during a h earing on May 1, 2017, Fairley a sserted rights under the Unif orm Com m ercial Code and r equested that the court place a delegation-of -authority order into t he record signed by e i ther the president of the United States or the g overnor of Mississippi. At this point, if not b ef ore, t he trial court

was aware that Fairley could greatly benef it f rom standby counsel. A s this Court previously has stated, the role of appointed counsel of ten becom es blurred when counsel is requested to r em ain and assist t he def endant w ho wishes to carry o ut his own def e nse. However, if each p a rty will zealously f ulf ill t heir role, we can ensure that the trial courts are not placed i n s u c h a n unenviable p osition in term s of the num ber of errors or potential errors, while at the sam e tim e honor the right to counsel and ensure c onf

idence in the reliability , f

airness, and outcom e of such trials.
Howard , 701 So. 2d at 286. ¶101. Because standby c ounsel was appointed the day bef ore t rial, he was u nable to prepare, and he was unable to p r ovide F airley with adequate a ssistance. S u c h a late appointm ent rendered standby counsel v irtually useless. Theref ore, in m y

opinion, the trial court should

3 1h a v e a p p ointed standby counsel f ar enough in a dvance to give counsel the opportunity t o adequately

prepare and to zealously

f u lf ill his role as advisor. KITCHENS, P.J., JOINS THIS OPINION. KITCHENS, PRESIDING J U STICE, CONCURRING I N PART AND IN RESULT: ¶102. With respect, I disagree with this C ourt’s f inding t h a t n o e r r o r o c c u r r e d i n t h e adm ission of Fairley ’s 1994 conviction f or possession of m arijuana w ith intent to distribute. The conviction undoubtedly was m ore prejudicial than probative, a n d nothing indicates that the trial court c onsidered i ts adm issibility under Mississippi Rule of Evidence 403, despite Fairley ’s explicit Rule 403 objection. The f ollowing constitutes the entirety of the discussion of the issue at the trial:

[ THE PROSECUTOR] : Y o u r Honor, at this tim e we’d of f er S tate’s Exhibit 7 into evidence. THE COURT: All right. Objection? THE DEFENDANT: I object. I object, Rule 403. THE COURT: Okay . I believe it’s rule 404. [ THE PROSECUTOR]: Then, Y our Honor, do we n e e d t o h ave a hearing outside the presence of the jury ?
THE C OURT: No. R

ule 404 allows the introduction of e vidence of this ty pe to prove intent or m o tive. So the objection is overruled. ¶103. Fairley argues t h a t t h e t rial court erred by a d m itting the prior conviction without perf orm ing t he b alancing analy sis required by Rule 403. I a gree. “[ T]his Court h as held that

ev i d e n c e . . . adm issible under Rule 404(b) m u st b e tested under Rule 403” bef ore it is

3 2adm itted into e vidence. Tate v. State , 912 So. 2d 919 , 9 2 5 ( M i ss. 2005) (citing Jenkins v.

State , 507 So. 2d 89, 93 (Miss. 1987), abrogated by Pitchford v. State , 45 So. 3d 216, 246 n.75 (Miss. 2010)). Regarding the balancing test under Rule 403, this Court has said that
To be s ure, evidence adm issible under R ule 404(b) is al s o s ubject to the prejudice test of Rule 403; that is, even though the Circuit C o ur t considered the evidence a t issue adm issible under Rule 404(b), it was still required by Rule 403 t o consider whether its probative value on the i s s u e s o f m otive, opportunity and intent was substa ntially outweighed by the danger of unf air prejudic e . In this sense Rule 403 is an ultim ate f ilter through w hich all otherwise adm issible evidence m ust pass. Hoops v. State , 681 So. 2 d 5 2 1 , 530-31 (Miss. 1 996) (quoting Watts v. State , 635 So. 2d 1364, 1368 (Miss. 1994)). ¶104. Although we consistently have said that all evidence otherwise adm issible m ust pass through t he Rule 4 0 3 f

i l t e r, our requirem ents f

o r the level o f f

act f inding under Rule 403 have f luctuated. In Tate , the trial transcript showed t h a t the trial court had n ot considered Rule 403 bef

ore adm i tting Tate’s prior convictions f or sale of m arijuana u nder Rule 404(b).
Tate , 912 So. 2d at 925. A s in this case, the trial judge never m entioned the word prejudice , and the judge’s com m e nts indicated a m istaken belief t hat this ty pe of e v idence a l w a y s is adm issible. Id. Finding error, we held that “[ w ] hile prior convictions which have been f ound relevant u nder M.R.E. 401, and which satisf y M.R.E. 404(b) m a y be potentially adm issible

t o p r o v e disposition, they m ay be allowed into e v idence only af ter passing a Rule 4 03 balancing test, which m

ust b e c onducted on the record.” Id. a t 926 ( em phasis om itted) (citing
Holland v. State , 656 So. 2d 1192, 1196-97 (Miss. 1995); Jenkins , 507 So. 2d at 89).

3 3¶105. The Court retreated f rom Tate ’s strict requirem ent of on-the-record f act f indings in
Jones v . S tate , 920 So. 2d 465 (Miss. 2006). Jones argued that his c onviction m ust be reversed because the trial c o u rt did not perf orm an on-the-record analy s i s under R ule 403.
Jones , 920 So. 2 d at 475. W ithout acknowledging Tate , we held that an on-the-record Rule
403 analy sis i s recom m ended, b ut not required

. Id. at 476. W e f ound that the lack of such analy sis would be deem ed harm less u n less the evidence is “patently prejudicial.” Id.
Because the evidence at issue in Jones was not patently prejudicial a nd becaus e t h e t r ial court’s f ailure to conduct an on the record R ule 403 analy sis did not af f ect the def

endant’s rights, the Court f

ound no e r r o r . I

d. W e reaf

f i rm ed that reasoning in Corrothers v. State when we held that “[ a] trial judge’s f ailure to articulate Rule 403’s ‘m agic words’ does not
create a presum

ption that the trial c ourt did not c onsider the requirem ents of R ule 403 bef

ore adm itting evidence.” Corrothers v . State , 148 So. 3d 278, 310-11 (Miss. 2014) (citing Tate v. State , 20 So. 3d 623, 639 (Miss. 2009)). ¶106. Here, as in T

ate , 912 So. 2d at 925, the trial court’s com m e ntary strongly suggests that

no R ule 4 0 3 a n a ly sis occurred. F airley explicitly o bjected to the a dm ission of the prior conviction under Rule 403. But rather than evaluating whether probative v alue of the prior convi c t i on o utweighed its prejudicial ef f ect, as Fairley e xpressly requested, the trial court told him that t h e p r o p er objection was under Rule 404, not Rule 4 03. Then, the trial court
went on to say t hat R

ule 404(b) a llows such evidence to show i n t ent o r m otive, “[ s]o the objection is overruled.” W hile this Court requires neither m agic words nor explicit on-therecord balancing, nothing suggests that the trial court i n Fairley ’s c ase actually weighed the

3 4probative value o f the 1994 conviction against its prejudicial ef f ect as m andated by Rule 403.
To the contrary , the transcript indicates that the trial court’s decision w as lim ited only to an analy sis of adm i ssibility under Rule 404(b). W hile t his Court d oes not dem a nd m agic words,

we should not assum e b lindly that every a dm issibility decision i m plicitly includes a Rule 403 analy sis, especially when the trial transcript clearly indicates otherwise. ¶107. I would hold t hat the trial court e r r e d b y n ot considering Rule 403 at all, i n spite of Fairley ’s proper Rule 403 objection. Further, I would f i nd that Fairley ’s 1994 conviction was i n a d mi s s i ble, because it was m ore prejudicial t han probative. Fairley was on trial f o r possession of two gram s or m ore, but less than ten g ram s, of cocaine and possession of m ore than thirty gram s, but less t han one kilogram , o f s y nthetic cannabinoids. T he date of his crim es was May 6, 2015. The 1994 conviction was f o r possession of

m arijuana with intent

to distribute. That conviction occurred t wenty -one y ears b ef ore the c rim e s f

or which Fairley

was on t rial and involved d if f erent drugs. Due t o the prior c o nviction’s r em o teness in tim e, and, m o re m inim ally , the f act that dif

f erent d rugs were involved, t he prior conviction f rom 1994 was of scant relevance to F airley ’s intent o r m otive on M ay 6, 2015. I would hold that the trial court erred by adm itting the 1 994 conviction, b ecause it was m ore prejudicial than probative. But because the trial court gave a proper lim i ting instruction, restricting the jury
f rom considering the 1994 c onviction as evidence of guilt and because the e r r o r had little likelihood of changing the result of F a i r l e y ’s trial, t he adm ission of the conviction was harm less error. See Roberts v. State , 234 So. 3d 1251, 1264 (Miss. 2017) (citing Chapm an

3 5v. California , 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). Theref ore, I concur with the m ajority ’s decision to af f irm Fairley ’s convictions. KING, P.J., JOINS THIS OPINION.

3 6