Devonte Easterling a/k/a Devontae Easterling v. State of Mississippi;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-01519-COA

DEVONTE EASTERLING A/K/A DEVONTAE APPELLANT
EASTERLING

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/27/2018
TRIAL JUDGE: HON. STANLEY ALEX SOREY
COURT FROM WHICH APPEALED: COVINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: W. TERRELL STUBBS
WADE THOMAS UNDERWOOD
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
SCOTT STUART
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 06/09/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GREENLEE, P.J., McDONALD AND LAWRENCE, JJ.

McDONALD, J., FOR THE COURT:

¶1. On July 26, 2018, a Covington County Circuit Court jury found Devontae Easterling

guilty of first-degree murder for shooting Joshua McDonald.1 The circuit court sentenced

him to life imprisonment in the custody of the Mississippi Department of Corrections.

Following the guilty verdict, Easterling filed a motion for a new trial (dated August 2, 2018)

and a first amended motion for judgment notwithstanding the verdict or, alternatively, a new

trial (dated August 17, 2018). The circuit court denied Easterling’s motion for a JNOV or

1
This individual has no relation to Judge McDonald.
a new trial on September 21, 2018.

¶2. Easterling appealed on October 19, 2018, raising the following issues: whether the

trial court erred (1) in not granting Easterling’s motion for a JNOV or, alternatively, a new

trial; (2) in not striking the testimony of the State’s ballistics expert, Lori Beall; (3) by

denying Easterling’s motion to suppress the admission of his handgun; (4) in granting the

State’s motion to suppress the victim’s toxicology report; (5) by failing to allow testimony

from defense witnesses Alexander Easterling and Tyisha Duckworth; (6) by prohibiting lay-

person testimony regarding the possible source of gun-powder residue found on a key

eyewitness; (7) in granting the State’s motion to exclude testimony regarding the prior

criminal acts of the victim and testifying witnesses; and (8) in not finding Easterling’s

representation deficient and in not finding that the combined errors of Easterling’s trial

counsel prejudiced Easterling. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. On August 18, 2016, Joshua Lee McDonald was shot and killed in his car near 1007

Jamesville Road in Mt. Olive, Mississippi (Covington County). Prior to the shooting,

McDonald and Edmond “Loc” Clark had been working on McDonald’s car. According to

Clark, a person named Devontae Easterling approached the car and shot McDonald. Officer

Layne McLaurin and Deputy Jonathan Anderson were dispatched to the location of the

shooting. Officer Joseph Barnes received a call from Deputy Anderson, telling him that

Easterling wanted to turn himself into the police.

¶4. Officer Barnes and his partner proceeded to Easterling’s grandmother’s (Charlene

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Easterling) house. Easterling came out and met the officers in the driveway. Officer Barnes

told Easterling to turn around. At that moment, Officer Barnes spotted a handgun in

Easterling’s back pocket. Officer Barnes seized the handgun and handcuffed and arrested

Easterling. The police later identified the handgun as a 9mm Jimenez handgun with the

serial number 365837. On the same day, Officer Russell Beasley informed Easterling of his

Miranda2 rights and interviewed him. Easterling denied killing McDonald.

¶5. On January 23, 2017, a Covington County grand jury indicted Easterling for the

murder of McDonald. Easterling’s counsel filed a motion to suppress evidence on July 5,

2018. He argued that the 9mm Jimenez handgun should not be admitted at trial because the

State failed to secure a valid search warrant before seizing it; therefore, under the Fourth

Amendment, the search and seizure of the gun was improper. The circuit court denied the

motion on July 19, 2018.

¶6. On July 11, 2018, the State filed a motion in limine to exclude the results of victim’s

toxicology report3 and several motions in limine to prohibit the defense from mentioning or

soliciting testimony about prior criminal acts of several witnesses and the victim.4

¶7. Easterling’s trial took place on July 25, 2018, and July 26, 2018. Clark testified that

on August 18, 2016, he was with McDonald from the morning until the time of the shooting

2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
The record on appeal contains no transcript of a hearing on the matter. But prior to
trial, the court excluded evidence of McDonald’s toxicology results.
4
The record on appeal contains no transcript of a hearing on the matter. But prior to
trial, the court excluded evidence of prior criminal acts of witnesses and the victim.

3
because they were working on McDonald’s car. He and McDonald were sitting in the car

when Easterling walked up on them. Clark stated he heard a shot and saw Easterling at his

door with a gun. After the shooting, Clark hid in the woods until he saw a car and

recognized the occupants as Travis Durr and Santana Keyes. Clark got in their car but did

not call the police because there was no phone available. Clark then rode to a friend’s house,

where he stayed until he spoke to Officer McLaurin.5

¶8. On cross-examination, Clark testified that there were drugs in the car at the time of

the shooting; however, he denied having used any drugs at the time. Clark also stated that

he could not recall what Easterling was wearing that day, what time of the day that the

shooting occurred, or when he contacted the police. However, Clark did remember that the

gun Easterling was carrying was black and silver, an automatic, and “looked to be a 9

millimeter or 40.” He recalled all this clearly because he was “looking down the barrel of

the gun when he seen it.” On redirect, Clark testified that he did not murder McDonald and

that he had no doubt in his mind who did: Devontae Easterling.

¶9. Outside the presence of the jury, the court ruled on Easterling’s motions in limine and

excluded the victim’s toxicology report as well as witnesses’ prior criminal-conviction

histories.

¶10. The State then called Kimberly Graves, who testified that on the day of the shooting,

she saw Easterling walking near “49 Jamesville” and picked him up before 12:00 p.m.

Graves stated that she did not see a gun on Easterling and that he was not acting erratic.

5
Clark did not remember when he contacted Officer McLaurin later that day.

4
After running a few errands, Graves dropped Easterling off at his grandmother’s house.

Williams, Barnes, McDonald, and Clark were all at the house. Graves then “boosted”

McDonald’s car. After boosting McDonald’s car, Williams and Barnes got into Graves’s car

and drove away. As Graves was driving away, she saw Easterling on the gravel road walking

down the hill toward McDonald’s car.

¶11. Layne McLaurin, of the Covington County Sheriff’s Office, testified that he was

dispatched to the area of Jamesville Road where the shooting took place. McLaurin found

McDonald in the car. McLaurin noticed two spent casings near the passenger side of the

vehicle and two unfired bullet casings several feet from the vehicle toward Jamesville Road.

McLaurin later spoke with Clark, who said that Easterling had shot McDonald. McLaurin

testified that he and deputies with the Covington County Sheriff’s Office took Easterling into

custody at his grandmother’s house and confiscated the handgun found on him. Officer

Barnes testified that at the time he arrested Easterling, the gun was in Easterling’s back

pocket in plain view.

¶12. The State presented its next witness, medical examiner Dr. Mark Levaughn, who

performed the autopsy of McDonald and removed a bullet from his back. Dr. Levaughn

stated that the entry wound was on the right side of the neck. From there, the bullet passed

through the vertebrae and continued into the tissue of McDonald’s back. Dr. Levaughn

further stated that McDonald’s cause of death was a gunshot wound to his neck and that the

manner of death was homicide.

¶13. The State also called Lori Beall, a ballistics expert, who testified that one of the spent

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casing at the scene came from Easterling’s gun. She also examined the bullet recovered from

McDonald’s body, but she could not determine whether the bullet came from the Jimenez

9mm handgun.

¶14. At the close of the State’s evidence, Easterling moved for a directed verdict, arguing

that the State had failed to prove all of the elements of murder. The court denied the motion.

¶15. Charlene Easterling, Devontae Easterling’s grandmother, testified for the defense and

presented a slightly different version of the events prior to the shooting. She said Dominique

Williams and Corey Barnes were in her house, but she made them leave. As they were

leaving, she saw Clark and McDonald in front of her yard trying to crank McDonald’s car.

Charlene told them to leave as well because “[she] was tired of them always messing up.”

Clark and McDonald still could not get the car to start, so they pushed the car to Calvin’s

(Easterling’s father) house down the hill. Shortly after, Charlene stated that she heard what

she thought were firecrackers at around 12:45 p.m. Charlene testified that she did not see

Easterling until after the shooting when Graves dropped him off at her house. On cross-

examination, the State reminded Charlene that in her statement given on the day of

McDonald’s death, she stated that prior to the shooting she had seen Easterling with

Williams, Barnes, Clark, and McDonald. However, Charlene said that she was mistaken

when she gave that statement and that Devontae would not kill anyone.

¶16. Following Charlene’s testimony, the court excused the jurors to address motions

concerning the defense’s next witnesses. The defense proffered Alexander “Al” Easterling’s

(Devontae Easterling’s first cousin) testimony about his conversations with both Corey

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Barnes and Travis Durr. The defense also proffered Tyisha Duckworth’s testimony about

her conversation with Barnes on the night of the shooting. The State objected to both

Easterling’s and Duckworth’s testimony on hearsay grounds. The court sustained the

objections. Easterling called no other witnesses.

¶17. Both sides rested. After being instructed on the law and hearing closing arguments,

the jury found Easterling guilty of first-degree murder, which by statute resulted in a sentence

of life imprisonment.

¶18. Easterling’s counsel filed a motion for a new trial on August 2, 2018. In support of

a new trial, Easterling’s counsel argued that the circuit court erred in failing to allow two

witnesses, Al Easterling and Tyisha Duckworth, to testify, which affected the outcome of the

case. That same day, Easterling’s trial counsel filed a motion to withdraw, and Easterling

obtained new counsel on August 9, 2018.

¶19. On August 17, 2018, Easterling’s new counsel filed the first amended motion for a

JNOV or, in the alternative, a new trial.6 The circuit court denied Easterling’s motion on

September 21, 2018, because the court found that sufficient evidence existed to support the

jury’s finding that Easterling was guilty of first-degree murder beyond a reasonable doubt.

¶20. On October 19, 2018, Easterling appealed from the conviction and the order denying

his motion for a JNOV or a new trial. On appeal, Easterling argues that the circuit court

erred (1) in not granting Easterling’s motion for a JNOV or a new trial; (2) in not striking the

testimony of Lori Beall; (3) by denying Easterling’s motion to suppress evidence regarding

6
The issues raised on appeal were included in the amended motion for a new trial.

7
the handgun; (4) in granting the State’s motion to suppress evidence regarding the toxicology

report; (5) by failing to allow the testimony of Alexander Easterling and Tyisha Duckworth;

(6) by failing to allow lay-person testimony regarding the possible source of gun powder

residue found at the scene; (7) in granting the State’s motion to exclude testimony regarding

the prior criminal acts of Corey Barnes, Santana Keyes, Edmund Clark, and Joshua

McDonald; and (8) in finding that Easterling’s trial counsel was not deficient and in not

finding that the combined errors of trial counsel prejudiced Easterling.

DISCUSSION

I. Whether the circuit court erred in denying Easterling’s motion for
a JNOV or, alternatively, a new trial.

¶21. This court’s standard of review for a trial court’s grant or denial of a motion for a

JNOV is de novo. McCray v. State, 263 So. 3d 1021, 1028 (¶24) (Miss. Ct. App. 2018). A

motion for a JNOV challenges the legal sufficiency of the evidence, and we will affirm the

denial of a JNOV motion when, viewing the evidence in a light most favorable to the

prosecution, “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Ross v. State, 288 So. 3d 317, 321-22 (¶15) (Miss. 2020). “A

conviction is sufficiently supported when it can be established, beyond a reasonable doubt,

that every element of the offense was present.” Phillips v. State, 285 So. 3d 685, 692 (¶26)

(Miss. Ct. App. 2019), cert. denied, 284 So. 3d 754 (Miss. 2019). “We will reverse only

where with respect to one or more of the elements of the offense charged, the evidence so

considered is such that reasonable and fair minded jurors could only find the accused not

guilty.” McCray, 263 So. 3d at 1029 (¶24).

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¶22. The Mississippi Supreme Court has stated:

The critical inquiry is whether the evidence shows “beyond a reasonable doubt
that [the] accused committed the act charged, and that he did so under such
circumstances that every element of the offense existed; and where the
evidence fails to meet this test it is insufficient to support a conviction.”
However, this inquiry does not require a court to ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable doubt.
Instead, the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.

Latiker v. State, 918 So. 2d 68, 72 (¶10) (Miss. 2005) (citation omitted).

¶23. In addition, an appellant must state with specificity where the evidence falls short.

In Riley v. State, 11 So. 3d 751, 753 (¶10) (Miss. Ct. App. 2008), Riley filed a motion for a

JNOV or, alternatively, a new trial, arguing that “the verdict of the jury is contrary to law and

the weight of evidence.” But Riley was not specific about how the jury’s verdict was

contrary to law. Id. “A motion for a directed verdict on the grounds that the State has failed

to make out a prima facie case must state specifically wherein the State has failed to make

out a prima facie case.” Id. Such specificity is also required in a motion for a JNOV. Id. If

not specifically argued before the trial court, it is waived because issues may not be raised

for the first time on appeal. Id.

¶24. “This Court’s standard of review of a trial court’s denial of a motion for a new trial

[challenging the weight of the evidence] is abuse of discretion.” Goldsmith v. State, 195 So.

3d 207, 212 (¶17) (Miss. Ct. App. 2016). When reviewing the denial of a motion for a new

trial, we weigh the evidence in the light most favorable to the verdict and “will only disturb

a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it

9
to stand would sanction an unconscionable injustice.” Bishop, 282 So. 3d at 641 (¶31). We

are not required to decide—and in fact we must refrain from deciding—whether we think the

State proved the elements.” Lenoir v. State, 222 So. 3d 273, 279 (¶25) (Miss. 2017).

“Rather, we must decide whether a reasonable juror could rationally say that the State did.”

Id.

¶25. Easterling was convicted under Mississippi Code Annotated section 97-3-19(1)(a)

(Rev. 2014), which defines first-degree murder as the following: “The killing of a human

being without the authority of law by any means or in any manner . . . [w]hen done with

deliberate design to effect the death of the person killed, or of any human being[.]” In order

to prove first-degree murder, the State must prove beyond a reasonable doubt that Easterling

(1) killed McDonald; (2) without authority of law; and (3) did so with deliberate design to

effect McDonald’s death.

¶26. In this case, the court properly instructed the jury on the elements of first-degree

murder as follows:

If you find from the evidence in this case beyond a reasonable doubt that: 1)
On or about August 18, 2016, in Covington County, Mississippi; 2) Devontae
Easterling unlawfully, without the authority of law, and with a deliberate
design to effect the death of Joshua Lee McDonald killed Joshua Lee
McDonald, a human being, by shooting Joshua Lee McDonald; then you shall
find Devontae Easterling guilty as charged of first-degree murder.

Furthermore, the jury was instructed on the meaning of “deliberate design” as including “an

intent to kill without authority of law, and not being legally excusable.” Specifically, the jury

instructions for “deliberate design” stated:

“Deliberate” always indicates full awareness of what one is doing, and

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generally implies careful unhurried consideration of the consequences.
“Design” means to calculate, plan, or contemplate. “Deliberate Design” to kill
a person may be formed very quickly, and perhaps only moments before the
act of killing the person. However, a “deliberate design” cannot be formed at
the very moment of the fatal act.[7]

¶27. Here, Easterling argues that “all of the physical evidence provided by the State at trial

was circumstantial.” Even the State’s expert, he says, could not conclusively determine that

the weapon found on Easterling was the gun that was used to kill the victim. Additionally,

Easterling argues that the eyewitness, Clark, could not remember time the shooting occurred,

what Easterling was wearing the day of the shooting, or how much time had elapsed before

he (Clark) contacted the police. But Easterling fails to specify what evidence was lacking

to prove any critical element of the crime. In essence, Easterling argues that in his opinion

the evidence was weak, but he does not argue that it was insufficient to prove the crime was

committed.

¶28. Accepting as true all the evidence favorable to the State, we find that the evidence was

sufficient for the jury to find Easterling killed McDonald with deliberate design without

authority of law. The State presented several witnesses, including an eyewitness who

testified to seeing Easterling shoot McDonald deliberately, another witness who saw

Easterling walk toward McDonald’s car moments before the shooting, and an expert witness

who identified that at least one of the shell casings from the scene of the shooting matched

the handgun that was found on Easterling. Easterling’s sole witness (his grandmother) made

conflicting statements regarding Easterling’s whereabouts prior to the shooting. Therefore,

7
These jury instructions are appropriate as held in Owens v. State, 269 So. 3d 1280
(¶25) (Miss. Ct. App. 2018).

11
the court correctly denied the motion for a JNOV or new trial because there was sufficient

evidence to support the jury’s finding that Easterling was guilty of first-degree murder.

II. Whether the circuit court committed error in admitting the
testimony of Lori Beall, the State’s ballistic’s expert.

¶29. Easterling argues that the circuit court erred in not striking the testimony of the State’s

ballistic expert Lori Beall because she compared a firearm’s characteristics to fingerprints

and because she stated that the science she used had no margin of error. At trial, Beall

described the methodology for performing a firearms comparison, stating that “you can have

consecutively manufactured firearms that have different characteristics. It’s just like your

fingerprints.” The defense also argued that Beall’s testimony should have been stricken

because she could not give opinions to an absolute certainty. After review of the record, we

find that the circuit court did not abuse its discretion in allowing Beall to testify.

¶30. Lori Beall, the regional lab manager of the Mississippi Forensics Laboratory had

testified as a ballistics expert witness thirty-four times. She said that the firearm taken from

Easterling was a Jimenez 9mm semi-automatic handgun. Beall examined two fired casings,

two unfired bullets from the crime scene, and a bullet retrieved from the body. Beall stated

to a reasonable degree of scientific certainty that one of the fired casings was from

Easterling’s Jimenez 9mm handgun. But she was unable to determine whether the other

casings, including the projectile, were spent from the same handgun.

¶31. Being “mindful that ‘the admission of expert testimony is within the discretion of the

trial court, we will not reverse a trial court’s decision to admit expert testimony unless the

decision was arbitrary and clearly erroneous, amounting to an abuse of discretion.’” Willie

12
v. State, 274 So. 3d 934, 938 (¶12) (Miss. Ct. App. 2018), cert. denied, 272 So. 3d 130 (Miss.

2019).

¶32. Under our modified Daubert8 standard, expert testimony should be admitted under

Mississippi Rule of Evidence 702 if the witness is qualified and the witness’s testimony

“assists the trier of fact in determining or understanding a fact at issue.” Koch v. State, 222

So. 3d 1088, 1094 (¶21) (Miss. Ct. App. 2017). In Mississippi Transportation Commission

v. McLemore, 863 So. 2d 31 (Miss. 2003), the Mississippi Supreme Court adopted the

Daubert standard for determining the admissibility of expert witness testimony, stating:

The United States Supreme Court in Daubert adopted a non-exhaustive,
illustrative list of reliability factors for determining the admissibility of expert
witness testimony. The focus of this analysis “must be solely on principles and
methodology, not on the conclusions they generate.” These factors include
whether the theory or technique can be and has been tested; whether it has
been subjected to peer review and publication; whether, in respect to a
particular technique, there is a high known or potential rate of error; whether
there are standards controlling the technique’s operation; and whether the
theory or technique enjoys general acceptance within a relevant scientific
community. The applicability of these factors depends on the nature of the
issue, the expert’s particular expertise, and the subject of the testimony. The
Daubert Court emphasized that the reliability inquiry contemplated by Rule
702 “is a flexible one.”

Id. at 36-37 (¶13) (citations omitted).

¶33. Willie v. State is instructive on the issues in this case. In Willie, the State offered

Bryon McIntire as an expert in the field of toolmarking and firearm examination. Willie, 274

So. 3d at 936 (¶5). Despite the defense’s objection, the circuit court ruled that McIntire was

qualified and allowed his testimony. Id. McIntire testified that based on a “reasonable

8
Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).

13
degree of scientific certainty,” the shell casing found at the murder scene was fired from the

9mm handgun found in Lewis’s SUV. Id. On appeal, Willie argued that circuit court erred

in qualifying and allowing McIntire’s testimony because it was conclusory, because the

scientific methods were “questionable” and because McIntire did not provide a margin-of-

error regarding the science of firearm identification. Id. We rejected these arguments. Id.

at 939 (¶16).

¶34. Willie particularly took issue with McIntire’s failure to provide a margin-of-error rate

related to the method he utilized while also stating that he reached his conclusion to a

reasonable degree of scientific certainty. Id. at (¶15). When asked by defense counsel about

the margin of error, McIntire replied, “I understand what you’re talking about with ‘margin

of error,’ but we do not have a reporting procedure for a margin of error.” Id. We did not

find McIntire’s failure to cite any margin of error warranted reversal. Id. at 939 (¶16). We

noted the United States Supreme Court said in Daubert:

The inquiry envisioned by Federal Rule of Evidence 702 is, we emphasize, a
flexible one. Its overarching subject is the scientific validity and thus the
evidentiary relevance and reliability of the principles that underlie a proposed
submission. The focus, of course, must be solely on principles and
methodology, not on the conclusions that they generate.

Id. at 939 (¶16). Additionally, we acknowledged that other courts have supported the

admissibility of such testimony and upheld an examiner’s determination that a bullet or

casing came from the defendant’s gun to within a “reasonable degree of scientific certainty.”

Therefore, the circuit court did not err in qualifying McIntire as an expert or allowing his

testimony. Id. at 940 (¶18).

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¶35. Here, like the expert in Willie, Beall testified that she formed her opinions within a

“reasonable scientific certainty.” Beall determined that one of the casings found at the

murder scene was fired from the firearm that the police later found on Easterling. During

direct examination of Beall, the State asked the following questions to which Beall

responded:

Q. What test, if any, did you perform on this fire casing?

A. Part of my examination on the firearm is to test fire it. And I test fired
this firearm six times. And I take my known test fires and I do a
side-by-side comparison to the unknown to this casing. So I did my
side-by-side comparison where I looked for, first to verify class
characteristics which would be the caliber and the shape of the fire pin
impression on this casing to verify that they were the same. Once I
verified the class characteristics, then I look for individual
characteristics on those casings.

Q. What was the result?

A. I determined that this casing was fired in the firearm.

Q. And you say this firearm, which firearm are you referring to?

A. The Jimenez 9 millimeter, I’m not sure what exhibit, sir. State’s
Exhibit Number 4 State’s Exhibit 4, the casing in State’s Exhibit 7 was
fired in State’s Exhibit 4.

Q. Based on your education, training and experience, are you able to say
that within a reasonable degree of scientific certainty?

A. Yes.

Therefore, Beall’s testimony was properly admitted.

¶36. Easterling also takes issue with Beall’s statement that the tool marks on guns were

“just like your fingerprints.” But Beall was merely making an analogy to fingerprints to

15
illustrate for the jury that guns have individual characteristics.9 Easterling also argues that

the circuit court should have given a limiting instruction to the jury regarding Beall’s

statement. Beall’s testimony was admissible, so there was no need for limiting instruction.

In addition, Easterling did not request limiting instruction during the trial. Therefore, the

issue was not preserved for appeal.10 We find no error here.

III. Whether the circuit court committed error in denying Easterling’s
motion to suppress the admission of the handgun as evidence.

¶37. The State called Joseph Barnes, Easterling’s arresting officer from the City of Collins

Police Department, who testified that he found a gun in Easterling’s back pocket. Officer

Barnes said he received a call from Deputy Anderson that Easterling “was going to turn

himself in . . . and asked us to go the house.” When Officer Barnes and his partner arrived

at Easterling’s mother’s house and were walking up the driveway, Easterling came out of the

house. Easterling headed toward them, and they met at the carport. Officer Barnes asked

Easterling to turn around. Officer Barnes testified that he saw a firearm (later identified as

a Jimenez 9mm handgun) in Easterling’s back pocket in plain view. After removing the

firearm, Officer Barnes testified that he followed protocol, taking the magazine out of the

firearm and checking to make sure that there was nothing in the chamber.

9
Beall said (during her voir dire), “So therefore, the individual characteristics change
from firearm to firearm. You can have consecutively manufactured firearms that have
different individual characteristics. It’s just like your fingerprints. It’s individual to you.
A firearm is individual to that firearm.”
10
Pursuant to Mississippi Rules of Evidence 105, the burden to request a limiting
instruction remains with trial counsel. Fulgham v. State, 46 So. 3d 396, 399 (¶14) (Miss.
Ct. App. 2010).

16
¶38. After the State questioned Officer Barnes outside the presence of the jury, the defense

argued that the evidence of handgun should be suppressed because Officer Barnes had no

search warrant. The court stated that under the Terry doctrine,11 the plain-view doctrine, and

due to a search incident to arrest, the officers legally seized the handgun.

¶39. Easterling argues that the circuit court erred in denying his motion to suppress the

evidence of the handgun because the State did not have an arrest warrant or a search warrant

when the gun was seized. Easterling also argues that use of the “Terry stop” doctrine or the

“plain-view” and “search incident to arrest” doctrines did not justify the handgun’s

confiscation. For the following reasons, we find that the circuit court did not err.

¶40. “Taking into consideration the totality of the circumstances, this Court only reverses

a trial court’s denial of a motion to suppress if the trial court manifestly erred or ruled

contrary to the overwhelming weight of the evidence.” Nowell v. State, 246 So. 3d 77, 81

(¶17) (Miss. Ct. App. 2018).

¶41. “The Fourth Amendment of the United States Constitution and Article 3, Section 23

of the Mississippi Constitution guarantee a person’s right to be free from unreasonable

searches and seizures.” May v. State, 222 So. 3d 1074, 1078 (¶7) (Miss. Ct. App. 2016). “As

a general rule, our state and federal Constitutions prohibit searches without a valid warrant

unless an exception applies.” Id. “The State bears the burden to show that a warrantless

search falls under one of the permissible exceptions.” Id. “[E]xcepted from the warrant

requirement are items within a police officer’s plain view or plain feel.” Id. at (¶8). If no

11
Terry v. Ohio, 392 U.S. 1 (1968).

17
exception is found, the evidence seized as a result of the search “should be suppressed as

fruit of the poisonous tree.” Id. at (¶7) (quoting Walker v. State, 881 So. 2d 820, 827 (¶7)

(Miss. 2004). “A search is not unreasonable when it is based on probable cause.” Id.

(quoting State v. Woods, 866 So. 2d 422, 427 (¶16) (Miss. 2003)). Probable cause for a

warrantless search “exists where the facts and circumstances within the arresting officer’s

knowledge and of which he had reasonably trustworthy information are sufficient in

themselves to warrant a man of reasonable caution to believe that an offense has been or is

being committed.” Id. at 1081 (¶18).

¶42. The court supported its ruling under the three doctrines. Mostly used in cases of

investigatory stops, the Terry doctrine states that “there must be a narrowly drawn authority

to permit a reasonable search for weapons for the protection of the police officer, where he

has reason to believe that he is dealing with an armed and dangerous individual, regardless

of whether he has probable cause to arrest the individual for a crime.” Terry v. Ohio, 392

U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968). “[B]efore conducting an

investigatory, or Terry stop, officers are required to have “reasonable suspicion, grounded

in specific and articulable facts, that a person they encounter was involved in a felony . . . or

some objective manifestation that the person stopped is or is about to be engaged in criminal

activity.” Cooper v. State, 145 So. 3d 1164, 1168 (¶11) (Miss. 2014). According to the

plain-view doctrine, a police officer may seize an object in plain view if the officer can see

it from a place he has a lawful right to be, the object’s “incriminating character is readily

apparent, and the officer has a lawful right of access to the evidence.” Hoskins v. State, 172

18
So. 3d 1242, 1248 (¶12) (Miss. Ct. App. 2015). A search incident to arrest is an “exception

to the warrant requirement if founded upon the reasonable concern that the arrestee might

have a weapon on his person or within reach, and that he may attempt to destroy evidence

which is within his grasp.” White v. State, 735 So. 2d 221, 224 (¶8) (Miss. 1999).

When an officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous
to the officer or to others, it would appear to be clearly unreasonable to deny
the officer the power to take necessary measures to determine whether the
person is in fact carrying a weapon and to neutralize the threat of physical
harm.

Cole v. State, 242 So. 3d 31, 42 (¶32) (Miss. 2018) (quoting Terry, 392 U.S. at 24).

¶43. Easterling argues that because Officer Barnes illegally trespassed on the property, any

evidence found should have been excluded. However, in Waldrop v. State, 544 So. 2d 834,

838 (¶56) (Miss. 1989), the Mississippi Supreme Court stated:

It is not objectionable for an officer to come up upon that part of the property
which has “been open to the public common use.” The route which any visitor
to a residence would use is not private in the Fourth Amendment sense, and
thus if police take that route “for the purpose of making a general inquiry” or
for some other legitimate reason, they are free “to keep their eyes open . . . .”

(Citing 1 Wayne R. LaFave, Search and Seizure, § 2.3, at 318 (1978)). This Court continued

quoting the treatise by stating:

Thus, when the police come on to private property to conduct an investigation
or for some other legitimate purpose and restrict their movements to places
visitors could be expected to go (e.g., walkways, driveways, porches),
observations made from such vantage points are not covered by the Fourth
Amendment.

Id. (citing 1 Wayne R. LaFave, Search and Seizure, § 2.3, at 318 (1978)).

¶44. In this case, Officer Barnes had a legitimate reason to be at Easterling’s grandmother’s

19
house, namely to arrest Easterling who was turning himself in. When Easterling came

outside and turned around as Officer Barnes requested, Officer Barnes saw the gun in his

back pocket. Officer Barnes had the authority per Terry12 to take necessary measures to

protect himself and others around him, so a patdown of Easterling was warranted.

Additionally, when Easterling turned around, Officer Barnes saw the firearm in plain view.

Therefore, because Officer Barnes had a legitimate reason to be on the property, the gun was

found during a search incident to arrest, and the handgun was in plain view, we find no error

in the court’s denial of the motion to suppress the evidence of the handgun.

IV. Whether the circuit court committed error in granting the State’s
motion to suppress evidence regarding McDonald’s toxicology
report.

¶45. Easterling argues that the circuit court erred in prohibiting the admission of

McDonald’s toxicology report, which showed that McDonald had ingested illegal drugs.13

Easterling says the report was not offered to prove that McDonald acted in conformity with

any violent tendencies, but instead it would be used as circumstantial evidence to prove that

McDonald was a known drug dealer, which made him a target for murder.

¶46. “This Court reviews a trial court’s admission or exclusion of evidence for an abuse

12
“Police officers may detain a person for a brief, investigatory stop consistent with
the Fourth Amendment when the officers have ‘reasonable suspicion, grounded in specific
and articulable facts . . .’ that allows the officers to conclude the suspect is wanted in
connection with criminal behavior.” Eaddy v. State, 63 So. 3d 1209, 1213 (¶14) (Miss.
2011) (quoting Walker v. State, 881 So. 2d 820, 826 (¶10) (Miss. 2004)).
13
Although there is no order or hearing transcript on the motion to suppress
McDonald’s toxicology report, the court stated at trial the toxicology report would not be
admitted.

20
of discretion.” Thompson v. State, 157 So. 3d 844, 851 (¶20) (Miss. Ct. App. 2015).

Mississippi Rule of Evidence 404 generally prohibits the admission of evidence of a person’s

character for the purpose of proving that he or she acted in conformity with that character on

a particular occasion. M.R.E. 404(a). Evidence of “other crimes, wrongs or acts” is

inadmissible as character evidence, but it may be admitted for other purposes, such as “proof

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

or accident.” M.R.E. 404(b). “[A] trial judge should filter the evidence through Mississippi

Rule of Evidence 403 and determine whether the evidence’s probative value outweighs its

prejudicial effect to the defendant.” Shoemaker v. State, 256 So. 3d 604, 613 (¶36) (Miss.

Ct. App. 2018). “Where the evidence’s probative value outweighs its prejudice, the trial

judge may admit the evidence.” Id. at 613-14 (¶36).

¶47. Easterling argues that the case which the State argued to suppress the toxicology

report, Lewis v. State, 198 So. 3d 431 (Miss. Ct. App. 2016), is distinguishable from this

case. However, the State used Lewis not to show a correlation between the facts of this case

and Lewis, but to state the law regarding admissibility of a victim’s intoxication. In Lewis,

we said that “[i]n order for character evidence of a victim’s intoxication to be admissible, the

defendant must offer evidence of an overt act of aggression perpetrated against him by the

victim and show that the alleged intoxication increased the victim’s propensity for violence

at the time of the crime.” Id. at 434 (¶10).

¶48. In this case, Easterling failed to show how McDonald’s toxicology report would have

been relevant. Specifically, the defense argues that the evidence would have been used “to

show that the victim was a well known drug user and distributor and that these facts were the

21
motivation behind the actions of true killer, Corey Barnes.” This reason is attenuated at best.

Showing that McDonald had drugs in his system shows he may have been a drug user, but

it does not prove he was a drug dealer. No other proof was entered to establish that

McDonald was a drug dealer or a target for murder. There was no evidence that McDonald

acted aggressively toward Easterling. Because there is no evidence in the record that shows

that toxicology report would have been used for a reason other than to show McDonald’s

character, we find no error in the court’s decision.

V. Whether the circuit court committed error in failing to include the
testimonies of Alexander Easterling and Tyisha Duckworth.

¶49. Easterling argues that the circuit court erred in excluding the testimonies of Alexander

Easterling and Tyisha Duckworth. They both were expected to testify about conversations

they had with another potential witness, Corey Barnes. Easterling claims that both

testimonies were admissible under hearsay exceptions. At trial, Easterling’s counsel stated

that both Al’s and Duckworth’s testimony should have been allowed under Mississippi Rules

of Evidence 803(1).14 But, in his brief, Easterling argues that his trial counsel used the wrong

hearsay exception and Mississippi Rules of Evidence 804(b)(3) (statement against interest)

should have been used instead. Either way, we agree with the circuit court’s ruling.

¶50. Rule 804 contains hearsay exceptions applicable when the declarant is unavailable as

a witness. Rule 804(b)(3) states:

A statement which was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to subject him to

14
Present sense impression is “a statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it.” M.R.E. 803(1).

22
civil or criminal liability, or to render invalid a claim by him against another,
that a reasonable man in his position would not have made the statement unless
he believed it to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the
statement.

M.R.E. 804(b)(3). The three requirements must be met before a “statement against interest”

may be admitted under this rule: (1) the declarant must be unavailable; (2) the statement must

have clearly subjected the declarant to criminal liability; and (3) “corroborating

circumstances” must “clearly indicate the statement’s trustworthiness.” Small v. State, 224

So. 3d 1272, 1276 (¶12) (Miss. Ct. App. 2017).

¶51. “The rule provides that a statement tending to expose the declarant to criminal liability

and offered to exculpate the accused is not admissible unless corroborating circumstances

clearly indicate the trustworthiness of the statement.” Lacy v. State, 700 So. 2d 602, 606

(¶14) (Miss. 1997) (citation and internal quotation mark omitted). Courts have considered

the following factors in assessing reliability: “whether the guilt of the declarant is

inconsistent with the guilt of the accused, whether the declarant was so situated that he might

have committed the crime, the timing of the declaration and its spontaneity, the relationship

between the declarant and the party to whom the declaration was made, and the existence of

independent corroborating facts.” Hughes v. State, No. 2018-CA-01506-COA, 2020 WL

634061, at *9 (¶59) (Miss. Ct. App. Feb. 11, 2020) (quoting Lacy, 700 So. 2d at 607 (¶17)

(other citation omitted). “The corroboration requirement required by Rule 804(b)(3)(B) need

not be ‘absolute,’ and ‘the sufficiency of the corroboration must be assessed in light of the

importance of the evidence and the offeror’s fundamental constitutional right to present

23
evidence.’” Id. (quoting Williams v. State, 174 So. 3d 275, 281 (¶28) (Miss. Ct. App. 2014)).

A. Alexander “Al” Easterling’s Proffered Testimony

¶52. Al testified that Corey Barnes15 told him that “next time he [Barnes] get a chance, he

[Barnes] was going to kill and rob him [McDonald] and go to Texas.” Al testified that the

conversation occurred about two weeks prior to the shooting.

¶53. The Mississippi Supreme Court stated that “corroboration requires that there must

exist some circumstance in the making of the statement itself which would indicate its

reliability . . . .” Lacy v. State, 700 So. 2d 602, 607 (¶16) (Miss. 1997) (citing M.R.E.

804(b)(3) cmt.). The statement’s trustworthiness must be “clearly indicated.” M.R.E.

804(b)(3). “Unless such a statement can be corroborated as reliable, it will be excluded.”

M.R.E. 804(b)(3), advisory committee note. In this case, Corey’s statement had not been

properly corroborated as required in Rule 804(b)(3). In Lacy, the Mississippi Supreme Court

cited factors that can be considered in determining whether the corroboration requirement

was met:

Whether the guilt of the declarant is inconsistent with the guilt of the accused,
whether the declarant was so situated that he might have committed the crime,
the timing of the declaration and its spontaneity, the relationship between the
declarant and the party to whom the declaration was made, and the existence
of independent corroborating facts.

Id. In this case, Corey’s statement was not properly corroborated as required in Rule.

804(b)(3). Corey did not appear at trial. There was no testimony that Corey and McDonald

had a history of violent encounters or that there was animosity between them. More

15
Although both parties subpoenaed Corey, he failed to appear in court.

24
importantly, Graves testified that Corey was in the car with her leaving the scene before the

shooting occurred. Therefore, her testimony did not corroborate but instead contradicted the

truthfulness of the hearsay statement.

¶54. Additionally, during his proffer, Al began to testify about a conversation that he had

with Durr and about a conversation that Durr had with Corey on the day of the shooting. The

court interrupted Al before he related the substance of that conversation between Durr and

Corey.16 Although we do not know what Corey may have said to Durr, such testimony is

inadmissible as double hearsay, and the court correctly excluded it. Hearsay within hearsay

is excluded by the rule against hearsay unless each part of the combined statements conforms

with an exception to the rule. M.R.E. 805. In Hawkins, we found that double hearsay existed

when a deponent merely stated another person’s recollection of another employee’s

statements. Hawkins v. Heck Yea Quarter Horses LLC, No. 2016-CA-00215-COA, 2016

WL 9402885, at *3 (¶13) (Miss. Ct. App. Jan. 13, 2016), aff’d, 249 So. 3d 400 (Miss. 2018).

In this case, we are uncertain about what Corey said to Durr, but we know when Durr was

talking to Al, Durr was not making a statement against his [Durr’s] interest. So there was

no hearsay exception to that conversation. Like Hawkins, Al attempted to merely repeat the

information that Durr told him regarding his [Durr] conversation with Corey. This is double

hearsay and was properly excluded.

16
The court should not have sustained any objection during proffer, but should have
allowed Al to continue his testimony. “[W]hen testimony is not allowed at trial, a record of
the proffered testimony must be made in order to preserve the point for appeal.” Young v.
State, 194 So. 3d 904, 908 (¶16) (Miss. Ct. App. 2016). “Without a proffer this Court
cannot “know what testimony was excluded.” Id. However, based on the record, Al’s
testimony was still hearsay and not subject to any exceptions.

25
B. Tyisha Duckworth’s Proffered Testimony

¶55. During her proffer, Duckworth testified in response to the defense’s questioning as

follows:

Q. Tell the date and time . . . .

A. Well, it was a day well, the day it happened was that night and I was
getting off work from Sanderson Farms and I seen Corey Barnes in the
apartments and he was like, what’s up cuz. And I was like, nothing,
what up. And he was like, you ain’t heard. And I was like, no, heard
what. And he was like, I knocked him off and I ain’t got to worry
about it no more . . . .

Q. Coco Barnes came to you and is your understanding based on the
totality of the conversation that he was referring to the death of Josh
McDonald?

A. I guess.

STATE: Again, Your Honor. She said having to guess. This is hearsay.

Q. I want you to just tell us what you know, what you think.

A. I don’t know what he was referring to. I don’t know if he was talking
about the death or what happened or what.

¶56. Duckworth could not conclusively state that Barnes was referring to McDonald.

“[T]he proponent is required to show that the statement clearly and directly implicates the

declarant himself in criminal conduct.” Fontaine v. State, 256 So. 3d 615, 624 (¶28) (Miss.

Ct. App. 2018) (quoting Hartfield v. State, 161 So. 3d 125, 136 (¶15) (Miss. 2015)).

Moreover, there was no proof of corroborating circumstances indicating the trustworthiness

of Barnes’ statements. To the contrary, Graves testified that she left the scene with Barnes

prior to the shooting, undermining the reliability of the hearsay statements of Barnes.

26
Accordingly, we find no error.

VI. Whether the circuit court committed error in failing to allow lay
person testimony regarding the possible source of gun powder
residue found at the scene.

¶57. Easterling’s next argues that the trial court erred when it sustained the State’s

objection to questions put to Clark about the gun residue found on his hands. The defense

asked Clark about the gun shot residue that was found on him:

Q. Can you explain to the jury why they found gun shot residue on your
hands that day?

A. Yeah because I guess I was in the car.

The State did not object. The defense further questioned Clark:

Q. You can’t explain that can you?

STATE: Objection, calls for speculation.

STATE: Your Honor, gunshot residue is a scientific. It takes a scientific
scientist to come up to - -

THE COURT: Sustained.

STATE: -- testify to that.

Q. Can you explain why you would have some gun particles on your
body - -

STATE: Same objection.

THE COURT: Sustained.

Q. Do you deny that you had gun shot particles on your hand?

STATE: Same objection.

THE COURT: Sustained.

27
Contrary to appellant’s argument, the jury did hear testimony from Clark, a layman, that he

had gun residue on his hands. The jury also heard Clark’s explanation of how he thought it

got there. The State did not move to have the testimony stricken. That the circuit court

sustained an objection to further questions does not negate the fact that Easterling’s desired

testimony was presented to the jury. The subsequent questions asked were merely repetitive.

Therefore, this issue is without merit.

VII. Whether the circuit court committed error in granting the State’s
Motion to Exclude Testimony regarding prior criminal acts of
Corey Barnes, Santana Keyes, Edmond Clark, and Joshua
McDonald.

¶58. The admission or exclusion of evidence by the trial court is reviewed for abuse of

discretion. Horton v. State, 253 So. 3d 334, 339 (¶16) (Miss. Ct. App. 2018). We will

reverse the court’s decision “only if such discretion has been abused and a substantial right

of a party has been affected.” Id.

¶59. Generally, evidence of a victim’s prior criminal acts are not admissible under Rule

404 of the Mississippi Rules of Evidence if entered to prove that the victim acted in

accordance with his character. “Evidence of a crime, wrong, or other act is not admissible

to prove a person’s character in order to show that on a particular occasion the person acted

in accordance with the character.” M.R.E. 404(b)(1). However, evidence may be admitted

“for another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” M.R.E. 404(b)(2). Evidence

of a prior criminal history may also be used in some circumstances to impeach a testifying

witness. M.R.E. 609. Under Rule 609(a), the following rules apply to attacking a witness’s

28
character for truthfulness of that witness’s criminal conviction by evidence of a criminal

conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or
by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, when the witness is not a
party; and
(B) must be admitted when the witness is a party, if the probative value
of the evidence outweighs its prejudicial effect to that party; and
(2) for any crime regardless of the punishment, the evidence must be admitted
if the court can readily determine that establishing the elements of the crime
required proving – or the witness’s admitting – a dishonest act or false
statement.

M.R.E. 609(a).

A. Joshua McDonald (the deceased)

¶60. Easterling argues that McDonald’s criminal history would have served as proof that

he was a drug dealer and a target for murder. McDonald’s criminal history includes felony

and misdemeanor arrests and/or convictions for possession of controlled substance while in

possession of a firearm, possession of marijuana, and DUI and other traffic related offenses.

However, Easterling fails to show how McDonald’s prior criminal offenses could possibly

prove he was a drug dealer, which led to his murder. There were no charge relating to drug

dealing and no testimony that McDonald was a drug dealer. There is no evidence of any

conspiracy to kill McDonald because he was a dealer. Accordingly, McDonald’s criminal

record was irrelevant and immaterial.

B. Edmond Clark

¶61. Easterling argues that Clark’s prior criminal history would have served as proof that

he had the motive and intent to participate in a conspiracy to kill McDonald. However,

29
Clark’s criminal history includes a DUI and careless driving arrest/citation.17 Easterling fails

to show how a DUI and careless driving conviction could possibly prove that Clark had a

motive to murder McDonald. Furthermore, none of Clark’s prior criminal acts could have

been used to impeach him as a witness under Rule 609, which limits impeachment to felony

convictions or misdemeanors related to truthfulness.

C. Corey Barnes

¶62. Easterling argues that “any evidence the previous arrests and convictions of Corey

Barnes would not have been submitted to prove . . . he acted in accordance with said

character, but rather to prove that he [had] the motive and intent.” Specifically, Easterling

argues that Corey’s criminal record would have shown that Corey had a motive to rob and

murder McDonald. Although, Corey’s criminal history includes sale of cocaine and

aggravated domestic violence, Corey failed to appear at trial.18 Had he testified, these

offenses may have been used to impeach him. But in his absence, his prior criminal acts

could not be placed into evidence.

D. Santana Keyes

¶63. Easterling argues that Keyes’s “previous arrest and conviction combined with the

other factual inferences show that she had a motive to help Corey Barnes rob and murder

Joshua McDonald and frame the Defendant [Easterling].” Keyes had a criminal history of

17
There is a reference to criminal history in the 1990s, which is not detailed.
18
According to the record, Corey was in Texas and could not be located at the time
of the trial.

30
sale of methamphetamine. However, like Corey, Santana Keyes did not testify at trial,19 so

her criminal acts could not be used for impeachment or placed into evidence without her

testifying.

¶64. Finding the criminal history of the witnesses and the victim irrelevant and/or

inapplicable under Rule 404(b) or its exceptions, we hold that this issue is without merit.

VIII. Whether the circuit counsel’s actions were “deficient” and whether
the combined errors of the Easterling’s counsel prejudiced
Easterling.

¶65. [A] claim [for ineffective assistance of counsel] may be raised and addressed “on

direct appeal if the presented issues are based on facts fully apparent from the record.” Story

v. State, No. 2018-KA-00464-COA, 2019 WL 5704135, at *5 (¶21) (Miss. Ct. App. Nov. 5,

2019), cert. denied, Order, No. 2018-CT-004640SCT (Miss. May 19, 2020). Specifically,

this court addresses ineffective-assistance-of-counsel claims on direct appeal only where “[1]

the record affirmatively shows ineffectiveness of constitutional dimensions, or [2] the parties

stipulate that the record is adequate and the Court determines that findings of fact by a trial

judge able to consider the demeanor of witnesses, etc., are not needed. Bell v. State, 202 So.

3d 1239, 1242 (¶12) (Miss 2016). “[G]enerally, ineffective-assistance-of-counsel claims are

more appropriately brought during post-conviction proceedings.” Dartez v. State, 177 So.

3d 420, 422-23 (¶18) (Miss. 2015). An appellate court is limited to the trial-court record in

its review of the claims, and there may be instances in which insufficient evidence and/or

information exists within the record to address the claim adequately. Id. In such a case, the

19
According to the record, Keyes was in prison and not called as a witness at the time
of the trial.

31
appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue

through a motion for post-conviction collateral relief (PCR). Id.

¶66. After reviewing the record, we do not find it prudent to address the ineffective-

assistance-of-counsel issue at this time. We find this issue best left for a PCR motion.

Therefore, we decline to address the ineffective assistance of counsel issue.

CONCLUSION

¶67. Finding no merit to Easterling’s claims, we affirm the conviction and sentence of the

Covington County Circuit Court. Easterling’s claims of ineffective assistance of counsel are

dismissed without prejudice to his right to raise those issues in a properly filed PCR motion.

¶68. AFFIRMED.

CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS,
LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. BARNES, C.J.,
CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.

32