IN THE SUPREME COURT OF MISSISSIPPI

NO. 98-KA-00091-SCT

CERDICK D. GARY a/k/a CEDRICK D. GARY a/k/a CEDRICK DEESHAWN GARY a/k/a

CEDRICK DESHAWN GARY

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 07/18/1994

TRIAL JUDGE: HON. RICHARD W. McKENZIE

COURT FROM WHICH

APPEALED:

FORREST COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: THOMAS MICHAEL REED

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEIRDRE McCRORY

DISTRICT ATTORNEY: E. LINDSAY CARTER

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED IN PART, VACATED IN PART, AND REMANDED

- 06/01/2000

MOTION FOR REHEARING

FILED:

MANDATE ISSUED: 6/22/2000

EN BANC.

MILLS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. This matter came before us from the Forrest County Circuit Court. Cedrick D. Gary was convicted of

armed robbery and sentenced to 45 years in the custody of the Mississippi Department of Corrections.

STATEMENT OF FACTS

¶2. On the night of March 21, 1994, Phillip Rhodes ("Rhodes") and James McBeth ("McBeth") were riding

around Hattiesburg, Mississippi, in a 1985 Chevrolet pickup truck that belonged to Rhodes's father. At the

intersection of North 21st Street and Quinn Street, Rhodes and McBeth were waived down by Terry

Robertson(1) ("Robertson") and Cedrick D. Gary ("Gary"), two former school friends. Robertson and Gary

requested a ride and were allowed to enter the truck with Rhodes and McBeth.

¶3. Since the facts of the case become contradictory at this point, it is necessary to address both sides

separately. According to the testimony of both Rhodes and McBeth, Robertson and Gary entered the
truck, and the four were seated from driver side to passenger side as follows: McBeth (driver), Robertson,

Gary, and Rhodes. Shortly thereafter, Robertson put a .22 caliber handgun to McBeth's head and ordered

him to stop the truck. McBeth stopped the truck, put it in park, and sat there. Robertson then reached

over, turned off the ignition, and instructed Rhodes and McBeth to exit the vehicle. According to the

testimony of Rhodes and McBeth, McBeth and Robertson exited on the driver's side of the vehicle, while

Rhodes and Gary exited on the passenger's side.

¶4. McBeth testified that, after exiting the driver's side, Robertson continued to point the gun at him and

demanded money. Rhodes testified that Gary, after exiting on the passenger's side, demanded money from

him as well. Rhodes testified that he gave Gary the money, and Gary then hit him with a closed fist twice in

the head and once in the shoulder. McBeth corroborated Rhodes's testimony by saying he witnessed Gary

hit Rhodes three times. McBeth further testified that when Gary began hitting Rhodes, Robertson "turned to

watch," and McBeth was able to hide his money in his sock. Robertson took $2 off the dashboard of the

truck.

¶5. Additionally, McBeth testified that Robertson then walked to the passenger side, exchanged words with

Rhodes, walked back to the driver's side, pointed the gun at McBeth, and ordered everyone to get back

into the truck. Rhodes refused and told McBeth to run. According to the testimony of both Rhodes and

McBeth, after they began running Robertson and Gary jumped in the truck. A shot was fired from the

passenger side of the truck, and both Rhodes and McBeth testified that Gary was on the passenger side.

Rhodes and McBeth ran to Rhodes's house on Melba Street and called the police. Officer Ted Socha was

summoned, and the truck was found on 25th Avenue shortly thereafter.

¶6. Gary's testimony is substantially different. According to Gary, Robertson and Gary entered the truck,

and the four were seated from driver side to passenger side as follows: Rhodes (driver), Robertson, Gary,

and McBeth. Gary testified that Robertson pulled out a .22 caliber handgun and told Rhodes to turn off the

truck. Gary stated that Rhodes and Robertson exited on the driver's side of the vehicle, while he and

McBeth exited on the passenger's side. Gary testified that upon exiting the truck Robertson placed the gun

to Rhodes's head and demanded his money.(2) Gary further testified that Rhodes initially did not give

Robertson the money and asked him why he was doing this. Gary then testified that he walked over to the

driver's side of the vehicle where Robertson and Rhodes were located. Gary contends that he punched

Rhodes in the head once in order to "save him." Gary asserts that he was trying to save Rhodes's life by

punching him in the head "so he would be quiet." Rhodes then gave up the money. According to Gary's

testimony, he took no money from either McBeth or Rhodes, and only Robertson received the money.

¶7. Rhodes and McBeth fled. Gary testified that he drove the truck and that Robertson was on the

passenger side. As Gary drove, "[Robertson] stuck the gun out the window and fired a shot." Gary testified

that he stopped the truck three to four blocks later on 25th Avenue and ran to his house on Third Street.

Gary argues that he was only following Robertson's directions because he was "scared" and "had never

seen him in that type of anger before." Gary contends that he did not know of the gun prior to the event,

never touched the gun, and only took the truck under the direction of Robertson.

¶8. On July 12, 1994, Gary was convicted in the Circuit Court of Forrest County on a charge of armed

robbery and was sentenced to a term of 45 years in the custody of the Mississippi Department of

Corrections. The personal property alleged to have been taken by Robertson and Gary was $7 in U.S.

currency and a 1985 Chevrolet Silverado Truck. On August 1, 1994, a Motion for New Trial and /or
J.N.O.V. was filed. This motion was heard and denied by the circuit court on January 8, 1998. A Notice of

Appeal was filed on January 20, 1998, but no Brief of the Appellant was filed. Consequently, substitute

counsel was appointed, and this appeal was perfected to this Court.

ANALYSIS

1) WHETHER THE COURT ERRED IN FAILING TO SUSTAIN THE BATSON

CHALLENGE RAISED BY THE DEFENDANT AT TRIAL

¶9. In Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) the Court held that

a defendant may establish a prima facie case of purposeful discrimination during jury selection based solely

on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To

establish the prima facie case under Batson, a defendant must show the following:

[He] is a member of a cognizable racial group, and that the prosecutor has exercised peremptory

challenges to remove from the venire members of the defendant's race. Second, the defendant is

entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute

a jury selection practice which permits "those to discriminate who are of a mind to discriminate."

Finally, the defendant must show that the facts and other relevant circumstances raise an inference that

the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Walters v. State, 720 So. 2d 856, 865 (Miss. 1998). "The burden then shifts to the State to come

forward with a race-neutral explanation for challenging the jurors." Mack v. State, 650 So. 2d 1289, 1296

(Miss. 1994). Finally, the trial court must determine whether the objecting party has met its burden to prove

that there has been purposeful discrimination in the exercise of the peremptory challenge. Walters, 720

So.2d at 865.

¶10. "We accord great deference to the trial court in determining whether the offered explanation under the

unique circumstances of the case is truly a race-neutral reason." Id. "[A] trial judge's factual findings relative

to a prosecutor's use of peremptory challenges on minority persons ... will not be reversed unless they

appear clearly erroneous or against the overwhelming weight of the evidence." Stewart v. State, 662 So.

2d 552, 558 (Miss. 1995). "This perspective is wholly consistent with our unflagging support of the trial

court as the proper forum for resolution of factual controversies." Id.

¶11. Gary contends that the State used its peremptory challenges in an unconstitutional manner, specifically

alleging that the State had "effectively disenfranchised members of the black race" since 8 of the State's 13

peremptory challenges were against black veniremen. Gary also relies on Hatten v. State, 628 So. 2d 294

(Miss. 1993), and asserts that the trial court failed to make an on-the-record factual finding that the

explanations offered by the State were race neutral. After the State provided reasons for its peremptory

challenges, the trial judge made the following statement:

With the exception of the gentlemen who is the accountant I would say under the Batson decision that

I don't think any of these, both for the State or the defense, were stricken along racial lines or to

constitute a jury that is racially consistent...

¶12. Gary argues that a mere conclusive statement made by the trial court as to whether it finds a

discriminatory purpose or race neutrality is not the specific finding required by Hatten. "We place our trust

in the trial judges to determine whether or not a discriminatory motive underlies the prosecutor's articulated
reasons... [A trial judge], in determining which explanations are sufficiently race-neutral and which are not,

should have an equally 'clear and reasonably specific' explanation for his ruling." Id. at 299. Furthermore,

Hatten requires "an on the record, factual determination, of the merits of the reasons cited by the State."

Id. at 298. Mere broad conclusions at the end of the Batson process will not suffice. However, where a

trial judge fails to elucidate such a specific explanation for each race neutral reason given, we will not

remand the case for that Batson-related purpose alone. This Court is fully capable of balancing the Batson

factors in cases such as this one. Continued remand of such cases only wastes the trial court's limited

resources and acts to further delay justice.

¶13. Before moving to a review of those race-neutral reasons, we point out that the record clearly illustrates

that Gary's counsel offered no rebuttal to the State's explanations for its peremptory strikes. In Bush v.

State, 585 So.2d 1262 (Miss. 1991), we stated that if a racially neutral explanation is offered the

defendant can rebut the explanation. Id. at 1268. If the defendant makes no rebuttal, the trial judge must

base his decision only on the explanations given by the State. Id. On appellate review this decision is given

great deference, and we will reverse only when such decisions are clearly erroneous. Lockett v. State, 517

So.2d 1346, 1349-50 (Miss. 1987). Therefore, we review the trial court's ruling on the strikes under a

harmless error analysis.

¶14. The record shows that the State used eight (8) of its thirteen (13) strikes to dismiss black venire

members. The State offered race neutral reasons for all eight (8) strikes. As noted previously, Gary did not

rebut any of these reasons. Only now does he raise objections to the probity of these strikes. Nevertheless,

a review of the State's explanations clearly illustrates that the dismissal of all eight were, in fact, done for

race-neutral reasons. The first was excluded for having written bad checks. The second was excluded for

inattentiveness. The third did not complete the juror questionnaire. The fourth was excluded because her

daughter-in-law is employed by the district attorney's office. The fifth was excluded for inattentiveness. The

sixth was excluded because he failed to disclose that he had been a victim of a crime. The seventh failed to

sign the juror questionnaire. Finally, the eighth failed to complete the juror questionnaire. We have

previously held all of these explanations to be race-neutral on previous occasions.(3)

¶15. Therefore, we find no error in the trial court's Batson ruling. Gary's first assignment of error is without

merit.

2) WHETHER THE JURY VERDICT IS CONTRARY TO THE OVERWHELMING

WEIGHT OF THE EVIDENCE PRODUCED AT TRIAL

¶16. Gary asserts in his brief that "he was merely a bystander and was unaware of Robertson's intent to rob

the victims." Consequently, Gary contends that the evidence produced at trial was "clearly insufficient to

support a verdict of guilty." As such, Gary requests this Court reverse and remand his case for a new trial.

¶17. As distinguished from a judgment notwithstanding the verdict, a motion for a new trial asks that the

jury's guilty verdict be vacated on grounds related to the weight, not sufficiency, of the evidence presented

at trial. May v. State, 460 So. 2d 778, 781 (Miss. 1984). "We will not order a new trial unless convinced

that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be

to sanction an unconscionable injustice." Groseclose v. State, 440 So. 2d 297, 300 (Miss. 1983). "Any

less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal

justice system." Id. "The Supreme Court will reverse the lower court's denial of a motion for new trial only

if, by denying, the court abused its discretion." Gleeton v. State, 716 So. 2d 1083,1089 (Miss. 1998).
¶18. Furthermore, we are to consider all evidence in the light most favorable to the prosecution, accepting

all credible evidence consistent with the verdict as true. Ashford v. State, 583 So. 2d 1279,1281 (Miss.

1991). We must also accept all reasonable inferences drawn from the evidence that are consistent with the

verdict. Id. In Ashford, this Court held:

[O]nce the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that

the defendant be discharged short of a conclusion on our part that given the evidence, taken in the

light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable

doubt that the defendant was guilty.

Id. "Matters regarding the weight and credibility of evidence must be resolved by the jury." Fisher v.

State, 481 So. 2d 203, 212 (Miss. 1985).

¶19. Although the testimony presented by both sides in this case is very contradictory, the State provided

ample evidence to support the jury's verdict. On April 6, 1994, Gary was indicted for the offense of armed

robbery. Jury instruction S-1 was given at trial and defined the offense as follows:

The Court instructs the jury that if you find from the evidence in this case, beyond a reasonable doubt,

that Cedrick Deshawn Gary, ...did unlawfully, wilfully, and feloniously commit an assault upon the

person of one James McBeth and Phillip Rhodes, with a certain deadly weapon, to wit: a .22 caliber

pistol, by threatening the said James McBeth and Phillip Rhodes with said deadly weapon, and did

feloniously put the said James McBeth and Phillip Rhodes in fear of immediate bodily injury to their

persons, by the exhibition of said deadly weapon as aforesaid, with the unlawful and felonious intent

to steal, did unlawfully, wilfully and feloniously take, steal and carry away from the person of and in

the presence of and against the will of the said James McBeth and Phillip Rhodes, certain personal

property, to wit: a 1985 Chevy Silverado truck,...and $7.00 U.S. currency, and of the personal

property of James McBeth and Phillip Rhodes then you shall find the defendant, Cedrick Deshawn

Gary, guilty of the crime of Armed Robbery.

Additionally, the Court gave Instruction S-3 which read as follows:

An "accomplice" is someone who knowingly, voluntarily, and with common intent with the principal

offender unites in the commission of a crime.

If you find from the evidence in this case beyond a reasonable doubt that Cedrick Deshawn Gary, on

the 21st day of March, 1994, did knowingly, voluntarily and with common intent with Terry

Robertson, unite in the commission of the crime of Armed Robbery, then you shall find the defendant

guilty.

¶20. Gary contends that because he did not actually possess the gun, he should not be held accountable for

armed robbery. Both sides agree that Robertson was the person in possession of the gun at the time the

robbery began to take place. Both sides also agree that Gary never held or pointed the gun at Rhodes or

McBeth while demanding their money. It is disputed, however, who actually shot the gun as Robertson and

Gary sped away in the stolen truck. According to the testimony of both Rhodes and McBeth, as they began

to run they noticed Gary entering the truck on the passenger side and do not believe that Gary and

Robertson had time to switch sides before the shot was fired.(4) Gary, however, asserts that he was driving

the truck and that Robertson was the person who actually fired the shot.
¶21. Gary's argument also ignores the concept of accomplice liability as set forth in Instruction S-3. Gary

admits he hit Rhodes once to "save Rhodes's life", although the number of times he did so is disputed. Gary

himself testified that he hit Rhodes prior to Rhodes's giving up the money.(5) No where in the record is there

any indication that Robertson "forced" Gary to participate in this robbery, nor is there any testimony that

Rhodes ever held the gun on Gary. Gary asserts that he was scared and simply "following instructions."

However, the record makes no mention of Gary ever questioning what Robertson told him to do. Gary

never voiced any objection to the robbery, did not try to flee, and proceeded, according to his own

testimony, to steal the truck.

¶22. Where there was contradictory evidence at trial necessitating a factual determination, the Court has

held the lower court did not abuse its discretion in refusing to grant the appellant a new trial. Crenshaw v.

State, 520 So. 2d 131, 135 (Miss. 1988). In the present case, the jury's verdict was not so contrary to the

overwhelming weight of evidence as to constitute an unconscionable injustice. "A reviewing court cannot

and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in

arriving at its verdict." Groseclose, 440 So.2d at 300. "It is enough that the conflicting evidence presented a

factual dispute for jury resolution." Id. It was quite possible and reasonable for the jury, upon the evidence

given it at trial, to ultimately conclude that Gary was an accomplice and therefore guilty of armed robbery.

The evidence presented was in conflict, the jury resolved the dispute, and this Court will not disturb the trial

court's denial of Gary's motion for a new trial.

3) WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE A JURY

INSTRUCTION OF ACCESSORY AFTER THE FACT

¶23. In the present case, Gary submitted an instruction regarding accessory after the fact. Instruction D-14

read as follows:

The Court instructs the jury that an accessory after the fact is one who conceals, receives, relieves,

aids or assists any person, knowing that such person has committed a felony, with intent to enable

such a person to escape or avoid arrest, trial, conviction or punishment, after the commission of such

felony.

The Court further instructs the jury that CEDRICK GARY is not required to establish that he was an

accessory after the fact to your satisfaction, but if the evidence or lack of evidence in this case raises

in the minds of the jury reasonable doubt as to whether the Defendant was only an accessory after the

fact, then, in that event, you must give him the benefit of the doubt and may not convict CEDRICK

GARY of the crime of armed robbery, and therefore, it would be your sworn duty to return a verdict

of not guilty.

When this instruction was submitted, the State objected by stating there was "no evidence that he was an

accessory after the fact...." Gary argued that the instruction was a valid instruction under Gangl v. State,

539 So. 2d 132 (Miss. 1989). After hearing argument by counsel, the court ruled as follows:

Let me say that I think that obviously that the instruction is a valid instruction as has been perceived

by our Supreme Court, but I think that you also have to consider the factual situation, and in this

particular case there are insufficient factual situations before this jury for this court to grant

this particular instruction.
(emphasis added). Furthermore, the State does not challenge the validity of the instruction itself, but asserts

that its use here would have been improper because no evidence was provided at trial to support the

instruction.

¶24. When reviewing challenges to jury instructions, whether granted or denied by the trial court, this Court

applies the following standard:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of

context. A defendant is entitled to have jury instructions given which present his theory of the case,

however, this entitlement is limited in that the court may refuse an instruction which incorrectly states

the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Heidel v. State, 587 So. 2d 835, 842 (Miss. 1991)(citations and footnote omitted)(emphasis added).

Furthermore, the standard for determining whether an evidentiary basis exists is as follows:

[A] lesser included offense instruction should be granted unless the trial judge - - and ultimately this

Court - - can say, taking the evidence in the light most favorable to the accused, and considering all

reasonable references which may be drawn in favor of the accused from the evidence, that no

reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty

of at least one essential element of the principal charge).

Harper v. State, 478 So. 2d 1017, 1021 (Miss. 1985). If a rational or a reasonable jury could have found

Gary not guilty of the principal offense charged in the indictment yet guilty of the lesser-included offense,

then the lesser-included offense instruction should have been granted. Evans v. State, 725 So.2d 613, 664

(Miss. 1997).

¶25. In support of his assertion that this instruction should have been given, Gary relies on Hester v. State,

602 So. 2d 869 (Miss. 1992), and specifically cites the following in his brief:

Even though based on meager evidence and highly unlikely, a defendant is entitled to have every legal

defense he asserts to be submitted as a factual issue for determination by the jury under proper

instruction of the court. Where a defendant's proffered instruction has an evidentiary basis, properly

states the law, and is the only instruction presenting his theory of the case, refusal to grant it

constitutes reversible error.

Id. at 872 (citations omitted)(emphasis added). In the present case, however, accessory after the fact was

not Gary's sole theory of defense. Instruction D-15 was also given by the Court and reads as follows:

The Court instructs the jury that under the laws of the State of Mississippi, duress is a defense to the

crime charged in the indictment.

Accordingly, if you find that Cedrick Gary's actions, if any, were the result of duress created by Terry

Robertson, then it is your sworn duty to find Cedrick Gary not guilty to the crime of Armed Robbery.

¶26. Throughout his trial testimony, Gary asserts that his actions were the result of being scared and that he

was simply following Robertson's instructions. Nowhere in the record does Gary, or anyone else, ever

indicate that he only assisted after the crime was completed. Instead, Gary contended throughout his trial

that he was acting under duress and should be held innocent of the crime charged. Gary's testimony at trial,
where he admitted that he punched Rhodes (who then handed over the money) and stole the truck,

supports participation during, not after, the offense. There is no other version of the transaction which would

support an accessory after the fact instruction.

¶27. "[L]esser offense instructions should not be granted indiscriminately, and only where there is an

evidentiary basis in the record." Gangl, 539 So.2d at 136. Upon reviewing the evidence in the light most

favorable to Gary, this Court finds no evidentiary foundation was placed before the jury which would have

enabled it to find Gary participated only as an accessory after the fact. Accordingly, Gary's argument that

the trial court erred in refusing to grant the accessory after the fact instruction is without merit.

4) WHETHER THE TRIAL COURT ERRED BY NOT CONSIDERING THE YOUTH

COURT ACT PURSUANT TO MISS. CODE ANN. § 43-21-159 WHEN SENTENCING

THE DEFENDANT

¶28. Gary contends that the trial court erred in not considering the Youth Court Act during sentencing

because he was only 17 years old at the time the armed robbery took place. The State maintains that Gary

is not entitled to a reduction of his sentence per se, but "acknowledges that he is entitled to have the trial

court consider alternative sentencing ... and to state on the record the facts underlying its ultimate decision."

¶29. Miss. Code Ann. § 43-21-159(3)(Supp. 1993)(6) provided in relevant part as follows:

[I]f any child shall be convicted by any circuit court, the trial judge may in his discretion, commit such

child to the county jail for any term not in excess of one (1) year, or he may suspend sentence and

release on probation, or commit such child to the custody of the Department of Corrections or

impose a fine as though such child was an adult, under such terms and conditions as he may

prescribe....

When providing alternative methods of sentencing for minors, the trial judge should consider seriously those

alternatives enumerated in the statute, the presence or absence of care facilities for minor offenders, and the

punishment provided by statute. May v. State, 398 So. 2d 1331, 1340 (Miss. 1981). In Erwin, this Court

has held:

There are still alternatives set out in the Youth Court Act which the circuit court judge should consider

in imposing sentence on a child. While it seems most unlikely that the Court would suspend the

sentence, impose a fine, commit the child to the county jail for a term which cannot exceed one year in

a case which even approaches the callous brutality involved in this case, it is, nevertheless, possible

that under different circumstances and with extenuating factors involved, a court might utilize one of

the alternatives set out.

Erwin v. State, 557 So. 2d 799, 802 (Miss. 1990). Furthermore, Erwin held that "it is appropriate for

the trial judge to see to it that the record clearly reflects the reasons which prompted him to exercise his

discretion in utilizing or not utilizing the alternatives afforded." Id. at 802-03. Accordingly, the trial court

"should let the record disclose the facts which prompted the exercise of his discretion either way." Id. at

803.

¶30. In the present case, the trial court was aware that Gary was a minor and sentenced him to a term of 45

years in the custody of the Mississippi Department of Corrections. Aware that Gary was only 17 years old

and had no prior offenses, the trial court failed to state on the record whether it considered the provisions of
the Youth Court Act before sentencing Gary to the 45-year term. Gary is entitled to have the trial court

state explicitly on the record whether it considered alternative sentencing under Miss. Code Ann. § 43-21-

159(3)(Supp.1993). Therefore, this Court remands this case to the circuit court for consideration of

alternative sentencing under the Youth Court Act. Furthermore, the circuit court must disclose, on the

record, the underlying facts for its ultimate decision of whether to utilize the Youth Court Act.

5) WHETHER THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL WHEN TRIAL COUNSEL FAILED TO ARGUE FOR SENTENCING

PURSUANT TO THE YOUTH COURT ACT

¶31. Gary asserts that he was denied effective assistance of counsel when his trial counsel failed to argue

that he should be sentenced under the Youth Court Act. When evaluating an ineffective assistance of

counsel claim, this Court applies the following standard: In order to prevail on a claim of ineffective

assistance of counsel, a defendant must prove (1) that his attorney's overall performance was deficient and

(2) that the deficient performance, if any, was so substantial as to prejudice the defendant and deprive him

of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674

(1984). Furthermore, there is a "strong but rebuttable presumption that counsel's conduct falls within the

wide range of reasonable professional assistance." Walters v. State, 720 So. 2d 856, 868 (Miss. 1998).

To overcome this presumption, "[t]he defendant must show that there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been different." Schmitt v.

State, 560 So.2d 148, 154 (Miss. 1990). "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Id. "Only where it is reasonably probable that, but for the attorney's errors, the

outcome of the trial would have been different will this Court find the counsel's performance was deficient."

Id.

¶32. In Foster v. State, 687 So. 2d 1124, 1128 (Miss. 1996), this Court denied Foster's application for

post-conviction relief. Foster was a 17-year-old, first-time offender, who was found guilty of capital murder

and sentenced to death. One issue raised by Foster was whether his defense counsel was ineffective in

failing to request a transfer to Youth Court. This Court held:

We have repeatedly held that a defendant is procedurally barred by waiver from making a challenge

to a capital sentencing scheme as a whole in a petition for post-conviction relief where the issue was

capable of determination at trial and/or on direct appeal but was not raised, and defendant failed to

show cause or actual prejudice for not raising the issue on direct appeal.

687 So. 2d at 1135. Foster goes even further to say:

In this regard, Foster's application for post-conviction relief cites no authority stating that it is

ineffective for counsel to not request a special hearing to determine transfer to youth court.

Id. However, no authority existed before Foster. "This Court may, in its discretion, choose not to review

an assignment of error that is not supported by authority." White v. State, 702 So. 2d 107, 108 (Miss.

1997). However, failure to cite authority is not an absolute bar. Id.

¶33. The present case is distinguishable from Foster. In Foster, Foster was convicted of capital murder,

whereas Gary was a 17-year-old convicted of armed robbery. Gary did not possess the gun, punched a

victim once, by his own admission, and left the scene driving the victims' truck. The Court in Foster
concluded that Foster had a "violent, selfish nature, exhibited uncooperative tendencies and, according to

the Whitfield Report, had the maturity to know right from wrong." Foster, 687 So.2d at 1136. The Foster

Court went even further to say, "Attorney Farrow [Foster's trial counsel] would be hard-pressed to

convince a judge that his client would not have committed these types of acts six months from the time of

the crime...." In the present case, however, Gary had no prior record, nor was he ever known to have

violent tendencies. Additionally, the ineffective assistance of counsel claim is being brought by Gary on

direct appeal, unlike Foster, who "merely camouflaged the issue by couching the claim" on a motion for

post-conviction relief. Id. at 1135.

¶34. Consequently, we find no procedural bar exists and choose to address this issue upon appeal. We

must first determine whether Gary's trial counsel was deficient by not arguing that Gary be sentenced under

the Youth Court Act. Upon sentencing, the trial court confirmed that Gary was 17 years old. Subsequently,

Gary was sentenced to 45 years in the custody of the Mississippi Department of Corrections. Gary's trial

counsel, however, failed to bring alternative sentencing under the Youth Court Act to the trial court's

attention. Sentencing, is one of the most crucial and important stages in the trial process. A primary goal of

a defense attorney is to minimize the amount of time his or her client is sentenced to serve. Accordingly,

Gary's trial counsel was clearly deficient in not raising this argument before the trial court.

¶35. Secondly, we must determine whether the trial counsel's deficiency was so substantial as to prejudice

the defense. Gary was sentenced to 45 years in the custody of the Mississippi Department of Corrections.

There is a reasonable probability, had the trial counsel brought the alternative sentencing under the Youth

Court Act to the court's attention, that the outcome of the proceeding would have been different. Gary was

17 and had no prior offenses. Had trial counsel mentioned, and the trial court accepted, the alternative

sentencing, Gary would have spent, at most, one year in the county jail.

¶36. While the trial court was not required to sentence Gary under the Youth Court Act, the court was

required to consider the alternative sentencing, and counsel's failure to suggest such was prejudicial to

Gary's case. The difference between a 45-year prison term for an adult offender and a one-year term in

county jail for a minor is substantial. Clearly, Gary's counsel was ineffective by not bringing the alternative

sentencing to the court's attention.

6) THE SENTENCE RECEIVED BY THE DEFENDANT WAS EXCESSIVE,

DISPROPORTIONATE, AND CONSTITUTED CRUEL AND UNUSUAL

PUNISHMENT

¶37. Gary asserts that the imposition of a 45-year prison term upon a 17-year-old first offender, who was

eligible for sentencing under the Youth Court Act, was disproportionate to the crime for which he was

convicted. Given our previous disposition of issue 4 above, this issue is moot.

7) WHETHER THE DEFENDANT WAS DENIED HIS RIGHT TO A SPEEDY APPEAL

¶38. Gary was convicted by a jury of armed robbery in the Circuit Court of Forrest County on July 12,

1994. On August 1, 1994, Gary's trial counsel, Honorable Jeff Bradley, filed a Motion for a New Trial or

in the Alternative J.N.O.V. Bradley took no further action, the motion remained inactive, and no notice of

appeal was ever filed. On June 15, 1995, Gary filed a pro se Motion to Dismiss Court Appointed Counsel,

citing ineffective assistance of counsel. On September 5, 1995, Gary also filed a pro se Motion for

Production of Trial Transcripts and Relevant Documents. He then filed a Petition for a Writ of Habeas
Corpus, followed by a Petition for Writ of Mandamus. On January 12, 1996, the Petition for Writ of

Mandamus was denied. Gary again filed a Petition for Trial Transcript in the Circuit Court of Forrest

County on July 26, 1996, which was accompanied by Gary's Memorandum Brief in Support of Motion for

Transcript.

¶39. County Court Judge Michael McPhail responded to the motion on October 21, 1996. Following that

response, Circuit Court Judge Richard McKenzie granted Gary's Petition for Trial Transcript on October

31, 1996. The Court then entered an order dismissing the second Petition for Writ of Mandamus. On

January 2, 1997, the Circuit Court of Forrest County granted the request of the court reporter for a 45-day

extension to complete the transcription of the record.

¶40. On April 15, 1997, the Circuit Court of Forrest County entered an order appointing new counsel for

Gary, J. B. Van Slyke. Van Slyke had been appointed Public Defender in Forrest County following the

death of Bradley in November of 1996. His new counsel was granted an additional 30 days to file an

Amended Motion for New Trial or in the Alternative J.N.O.V. However, no amended motion was ever

filed. A hearing was held on this motion on January 8, 1998, in the Circuit Court of Forrest County. After

the hearing, Gary's motion was denied.

¶41. On January 29, 1998, new counsel filed a Notice of Appeal in the Circuit Court of Forrest County.

On June 24, 1998, Gary filed his pro se Motion to Dismiss Counsel. On October 31, 1998, Gary was

notified that his appeal was dismissed due to the failure of defense counsel to file a brief on his behalf. On

January 26, 1999, the Court entered an Order disposing of the Petition for Writ of Mandamus, but granting

Gary 30 days in which to file his brief. On February 18, 1999, the Court entered an Order disposing of

Gary's Motion for Appointment of Counsel and Motion to Hold Briefing in Abeyance and remanded to

Forrest County for appointment of counsel. Honorable Michael Reed was appointed and perfected this

appeal.

¶42. This Court has noted that "the remedy for denial of a speedy appeal is not clear since this Court has

never recognized such a right and does not do so now." Kolberg v. State, 704 So. 2d 1307, 1320 (Miss.

1997). Furthermore, "this Court has previously taken the position that where no other reversible error

exists, then the reversal on the grounds of a denial of a speedy appeal is inappropriate." Lanier v. State,

684 So. 2d 93, 100 (Miss. 1996).

¶43. The appropriate test for determining whether a defendant has been denied his right to a speedy appeal

is set forth in Lanier as follows:

These four factors are the "[L]ength of delay, the reason for the delay, the defendant's assertion of his

right, and prejudice to the defendant." With respect to the factor of prejudice, ... "it should be

assessed in light of the interests of defendants which the speedy trial right was designed to

protect...."We identify three similar interests for prompt appeals: (1) prevention of oppressive

incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the

outcome of their appeals; and (3) limitation of the possibility that a convicted person's grounds for

appeal, and his or her defenses in case of reversal and retrial, might be impaired.

Id. at 98 (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (5th Cir. 1980)(citations omitted)). "[A]

showing of prejudice is necessary to make out a claim of a denial of a speedy appeal." Id. at 100.

Prejudice, in this case, cannot be determined at this level. Accordingly, we decline to resolve this issue, but
Gary shall be allowed to raise the issue of prejudice before the circuit court.

8) WHETHER GARY'S TRIAL AND APPELLATE COUNSEL RENDERED

INEFFECTIVE ASSISTANCE OF COUNSEL WITH REGARD TO THEIR FAILURE TO

PERFECT A TIMELY APPEAL

¶44. When evaluating an ineffective assistance of counsel claim, this Court applies the following standard: In

order to prevail on a claim of ineffective assistance of counsel, a defendant must prove (1) that his attorney's

overall performance was deficient and (2) that the deficient performance, if any, was so substantial as to

prejudice the defendant and deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Both parts of the test must be satisfied before a defendant may prove ineffective assistance of counsel.

Lindsay v. State, 720 So. 2d 182, 184 (Miss. 1998). Furthermore, there is a presumption that trial

counsel is competent and that counsel's conduct is reasonable. Id.

¶45. Gary's first court-appointed counsel was Jeff Bradley, who died in November of 1996. On January

29, 1998, Gary's next appointed counsel appealed but ultimately failed to file a brief on Gary's behalf

resulting in the dismissal of the appeal on October 31, 1998. Although these delays were unfortunate and

represented unprofessional lapses in timely performance, Gary fails to set forth how the failure to perfect a

timely appeal has affected the outcome of his case.

¶46. Specifically, Gary must prove that, under the totality of the circumstances, prejudice resulted from a

deficiency in counsel's performance. Earley v. State, 595 So. 2d 430, 433 (Miss. 1992). Although, the

failure of counsel to timely perfect Gary's appeal is considered deficient, Gary has failed to show exactly

how he was prejudiced by this deficiency. Potential prejudice cannot be shown until Gary is retried or

resentenced at the trial court level. Therefore, Gary's assertion that he received ineffective assistance of

counsel due to counsel's failure to timely appeal is without merit.

9) WHETHER THE CUMULATIVE ERRORS AT TRIAL AND IN THE APPEAL

PROCESS CONSTITUTE A VIOLATION OF GARY'S RIGHT TO A FAIR TRIAL

¶47. Gary argues on appeal that the accumulation of errors in the trial, if not taken as error sufficient to

reverse and remand for a new trial individually, are sufficient to reverse and remand if taken as a whole.

Gary cites to Jenkins v. State, 607 So.2d 1171, 1183 (Miss.1992), wherein we stated, "This Court has

often ruled that errors in the lower court that do not require reversal standing alone may nonetheless taken

cumulatively require reversal."

¶48. Although we vacate in part and remand for resentencing, the remaining assertions made by Gary are

not of such significance as to have denied Gary a fundamentally fair trial. This is not a case requiring reversal

on the ground that the cumulative effect of all errors deprived the defendant of a fair trial. Accordingly, we

find this issue to be without merit.

CONCLUSION

¶49. The trial court erred by not making specific findings of fact on the merits of the proffered reasons for

exercising strikes in accordance with Hatten. However, this error was harmless. Additionally, the trial court

erred by not disclosing on the record whether it considered the Youth Court Act during sentencing.

Furthermore, it was error for trial counsel not to argue for the alternative sentencing under the Youth Court

Act at trial. All other errors asserted by Gary are without merit.
¶50. Therefore, Gary's sentence of 45 years in the custody of the Mississippi Department of Corrections is

vacated, and this case is remanded to the circuit court for resentencing where the trial judge must consider

the Youth Court Act and state on the record his reasons for or against utilization of the Act. In all other

respects, the judgment of the Forrest County Circuit Court is affirmed.

¶51. AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

PRATHER, C.J., SMITH, WALLER, COBB AND DIAZ, JJ., CONCUR. BANKS, P.J.,

DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, J.

PITTMAN, P.J., NOT PARTICIPATING.

BANKS, PRESIDING JUSTICE, DISSENTING:

¶52. Because, in my view, this Court can neither adequately nor effectively assess the factual validity of

race-neutral reasons given in response to challenges to discriminatory use of peremptory jury strikes, I

respectfully dissent.

¶53. In my view, the majority misreads Hatten v. State, 628 So.2d 294 (Miss. 1993). A mere conclusory

statement made by the trial court as to whether it finds a discriminatory purpose or race neutrality is not the

specific finding required by Hatten. One purpose of the Hatten command is to allow a reviewing Court to

examine the reason behind the trial court's ruling. "Obviously, where a trial court offers clear factual findings

relative to its decision to accept the State's reason[s] for peremptory strikes, the guesswork surrounding the

trial court's ruling is eliminated upon appeal of a Batson issue to this Court." Hatten, 628 So.2d at 298.

¶54. The fundamental principles of our judicial branch of government are clear. "Trial and appellate courts

have separate institutional roles. Our role is that of an appellate court and not as triers of fact." Tricon

Metals & Servs., Inc. v. Topp, 516 So.2d 236, 239 (Miss. 1987). Unlike trial courts, appellate courts do

not have the opportunity to observe the manner and demeanor of the speakers and participants in

proceedings below. Metcalf v. State, 629 So.2d 558, 566 (Miss. 1993); Culbreath v. Johnson, 427

So.2d 705, 709 (Miss. 1983).

We sit as an appellate court, and as such are ill equipped to find facts. Pragmatically speaking it is

essential that we have from our trial courts findings of fact upon which we may rely, for, if we had to

find the facts anew in every case coming before us, we would become even further bogged down in

the dispatch and management of our caseload. Beyond that, even if we wanted to be fact finders,

our capacity for such is limited in that we have only a cold, printed record to review. The

trial judge who hears the witnesses live, observes their demeanor and in general smells the

smoke of the battle is by his very position far better equipped to make findings of fact which

will have the reliability that we need and desire.

McCarty v. State, 554 So.2d 909, 912 (Miss. 1989)(emphasis added)(quoting Gavin v. State, 473

So.2d 952, 955 (Miss. 1985)); see also Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105

S.Ct. 1504, 1512, 84 L.Ed.2d 518, 529 (1985); Culbreath, 427 So.2d at 707-08.

¶55. It is clear from Hatten that the trial judge is required to find both subsidiary and ultimate facts on

Batson charges and further to articulate these findings in the record. Hatten, 628 So. 2d at 298. At this

pivotal point in a trial, it is imperative that the trial court supply specific reasons for its decision to allow the
strike of a prospective juror, including an assessment of the factual underpinning for the proffered reason.

As noted in Hatten, "'We place our trust in the trial judges to determine whether a discriminatory motive

underlies the prosecutor's articulated reasons'.... '[T]he trial judge, in determining which explanations are

sufficiently race-neutral and which are not, should give an equally 'clear and reasonably specific'

explanation for his ruling.'" Id. at 299 (emphasis added) (quoting Lockett v. State, 517 So. 2d 1346,

1352 (Miss. 1987)). Here, there was no "clear and reasonably specific" explanation for the trial court's

ruling. The trial judge merely stated that he did not think "any of these [potential jurors], both for the State

or the defense, were stricken along racial lines or to constitute a jury that is racially consistent . . . " This is a

conclusion without the benefit of a 'clear and reasonably specific' explanation. Hatten requires more.

¶56. Essentially, the majority opinion allows this Court to review and find facts. It allows this Court, from a

cold record, to make all of the factual determinations necessary to the determination of whether the prima

facie case of racial motivation for the strike has been overcome. Where the reason for a strike is based

upon a verbal response made by the prospective juror, there need be no finding that the response was

made, for the record would show that. Hatten requires a finding where the reason given is subject to

dispute as to its factual basis. It would be very difficult for this Court, from a cold record, to determine if

prospective jurors were, for example, inattentive. This point is illustrated here. The State struck two black

prospective jurors, Angels Whiteside and Prince Woullard, for inattentiveness and lack of eye contact with

the prosecutor. The trial court's response to the assertion of lack of eye contact was, "I don't know what

you are talking about." Nevertheless, the peremptory strikes were allowed. There is no explanation or

reason given by the trial court reflecting that it was determined that the potential jurors were in fact

inattentive or lacked eye contact. These assertions regarding eye contact and inattentiveness, as reasons for

striking the jurors, cannot be ascertained from the record. It is reversible error when the trial judge does not

make specific findings of fact explaining the reason for its ruling on strikes in accordance with Hatten.

Puckett v. State, 737 So.2d 322, 337 (Miss. 1999); Bounds v. State, 688 So.2d 1362, 1367 (Miss.

1997). Accordingly, in my view, the trial court erred in not making on the record findings pertaining to these

issues. This Court is in no position to make those findings. This case should be reversed and remanded to

the trial court.

¶57. Therefore, I must respectfully dissent.

McRAE, J., JOINS THIS OPINION.

1. For the sake of consistency, this Court will refer to this person as Terry "Robertson", as indicated in the

transcript and Gary's brief, although the State refers throughout its brief to this person as Terry "Robinson".

2. Gary also contradicted this testimony and denied that Robertson robbed Rhodes on the driver's side.

3. With respect to the writing of bad checks see Brewer v. State, 725 So.2d 106, 122 (Miss. 1998). For

inattentiveness see Mack v. State, 650 So.2d 1289, 1299 (Miss. 1994). For relations to prosecution/law

enforcement see generally Mhoon v. State, 464 So.2d 77 (Miss. 1985). For failure to disclose being a

victim of a crime see Dase v. State, 356 So.2d 1179 (Miss.1978).

4. It should be noted that Rhodes's testimony at trial is different than his statement to the police, which

stated Robertson, and not Gary, was on the passenger side of the vehicle.

5. Rhodes testified that Gary hit him 3 times after he gave up his money.
6. This statute was amended effective July 1, 1994, and now provides in pertinent part that "[i]f the case is

not transferred to the youth court and the youth is convicted of a crime by any circuit court, the trial judge

shall sentence the youth as though such youth was an adult." Miss. Code Ann. § 43-21-159(4)(Supp.

1999)(emphasis added). Because this amendment took effect after the crime was committed, it does not

apply to Gary's case. Miss. Code Ann. § 99-19-1 (1994).