CARLTON, J., for the Court:
¶ 1. Jeffrey Kleckner was indicted by a grand jury of Union County in October 2008 for three counts of the sexual battery of AB,
¶ 2. On appeal, Kleckner raises the following assignments of error, which we quote:
¶ 3. Finding each assignment of error without merit, we affirm.
¶ 4. AB confided to her cousin, Whitney Grose, that Jeffrey Kleckner, AB's cousin, had sexually assaulted her on numerous occasions during the past several years. The Union County Sheriff's Department was contacted, and it began an investigation. Angie Floyd, a forensic-interview specialist with the Children's Advocacy Center in Tupelo, Mississippi, interviewed AB on September 9, 2008. Floyd, who was accepted as an expert in child forensic interviewing, testified that AB "disclosed abuse and that she did appear to be consistent with that of a child [who] had been sexually abused."
¶ 5. According to the testimony of Roger Garner, an investigator with the Union County Sheriff's Department, Kleckner was arrested at his girlfriend's home in Blue Mountain, Mississippi. Investigator Garner testified that Kleckner gave a written statement to the police after waiving his rights. Investigator Garner read Kleckner's statement to the jury at trial:
¶ 6. Chris Aldridge, a Baptist minister and sworn commissioned deputy to serve as chaplain, was present during Kleckner's arrest and subsequent interview at the Union County Jail. Aldridge testified that he observed Investigator Garner give Kleckner his Miranda warnings at his time of arrest. According to Aldridge, Investigator Garner also read Kleckner his rights once at the police station, and Kleckner signed the waiver-of-rights form. Aldridge also identified the statement read by Investigator Garner as having been made by Kleckner.
¶ 7. On October 21, 2008, a grand jury before the Union County Circuit Court returned a multi-count indictment charging Kleckner with three counts of sexual battery in violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2006) and one count of touching a child for lustful purposes in violation of Mississippi Code Annotated section 97-5-23 (Rev. 2006). On April 27, 2009, Joe T. Gay, entered an appearance as defense attorney for Kleckner. A trial by jury subsequently was held on September 16-18, 2009, and a jury convicted Kleckner on all four counts. The trial court then sentenced Kleckner to three concurrent life sentences
¶ 8. On December 8, 2009, Gay, Kleckner's trial counsel, withdrew as counsel for Kleckner, and new counsel, Gregory M. Hunsucker, entered an appearance. Subsequently, on February 18, 2010, Kleckner filed in the trial court a "Motion to Correct and Enlarge the Record," an "Extraordinary Motion for New Trial," and a "Request to Clerk for Juror Information." Kleckner then filed a M.R.A.P. 10(e)/21(e) petition with this Court, seeking oral argument on the petition and leave for the trial court for conduct an evidentiary hearing on the pending motions or, alternatively, correction and expansion of the record. This Court granted Kleckner's motion in part, remanding the case to the trial court for consideration as to whether the record should be supplemented or corrected.
¶ 9. Subsequently, on June 11, 2010, Kleckner filed a "URCCC 2.01 Motion and for Other Relief" in the trial court.
¶ 10. Additional facts, as necessary, will be discussed during our analysis and discussion of the issues.
¶ 11. Kleckner raises a majority of his issues for the first time on appeal. "Generally, a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because otherwise it is procedurally barred." Parker v. State, 30 So.3d 1222, 1227 (¶ 14) (Miss.2010). "Plain error exists where such error affects the defendant's substantive/fundamental rights, even though no objection was made at trial." Id. Thus, where Kleckner's substantive and fundamental rights are affected, this Court will apply the plain-error doctrine in reviewing the alleged errors. Also, as many of Kleckner's issues are interrelated, we will combine them for efficiency's sake.
¶ 12. Kleckner argues that the trial court's failure to have the in-chambers hearing on his motion for a continuance violates his due-process rights; the supplemental
¶ 13. Kleckner's multi-count indictment was filed on October 21, 2008. Gay, who represented Kleckner during the trial proceedings, entered an appearance on April 27, 2009. Gay filed several motions for discovery that same day. Kleckner was scheduled for trial on September 14, 2009. On September 11, 2009, Kleckner was admitted to Oxford Baptist Hospital where he remained until being discharged on September 15, 2009. On September 14, 2009, defense counsel made an ore tenus motion for a continuance. A hearing occurred in chambers, but no record was made. The trial was postponed until September 16, 2009. At the beginning of the trial on September 16, defense counsel announced to the court, "We are ready, Your Honor."
¶ 14. Kleckner argues that he was not given adequate time to prepare for trial due to Kleckner's hospitalization because the trial court denied Gay's ore tenus motion for a continuance.
¶ 15. The decision to grant or deny a motion for a continuance falls within the sound discretion of the trial court. McFadden v. State, 929 So.2d 365, 369 (¶ 16) (Miss.Ct.App.2006). This Court will only reverse "when manifest injustice appears to have resulted from the decision to deny the continuance." Hilliard v. State, 42 So.3d 653, 655 (¶ 7) (Miss.Ct.App.2010) (quoting Watson v. State, 991 So.2d 662, 667 (¶ 13) (Miss.Ct.App.2008)).
¶ 16. "The question of whether defendant had a reasonable opportunity to prepare to confront the State's evidence at trial depends upon the particular facts and circumstances of each case." Reuben v. State, 517 So.2d 1383, 1386 (Miss.1987). In this case, Kleckner and Gay, his trial counsel, had from April 2009 until September 2009 to prepare for trial. Gay, at the post-remand hearing, testified that he "prepared some months in advance because it was preset one time," and he testified to meeting with Kleckner for approximately two-and one-half hours on September 9, 2009. Further, the record fails to demonstrate that the assistant district attorney acted in a manner that violated Kleckner's constitutional rights. Instead, the record shows that defense counsel announced that the defense was ready for trial. After reviewing the record, we cannot find that the trial court abused its discretion in denying Kleckner's motion for a continuance. There has been no showing of manifest injustice. See Stack v. State, 860 So.2d 687, 692 (¶ 9) (Miss.2003) (noting that the Mississippi Supreme Court has upheld numerous denials of motions for continuance where the defense counsel had a limited amount of time to prepare for trial). This issue is without merit.
¶ 17. Kleckner argues that the trial court erred in admitting his officer-written confession without holding a hearing, and that the State failed to meet its burden by showing through expert medical testimony that Kleckner was able to give a knowing and voluntary waiver and confession. Kleckner also contends that the State committed a Brady
¶ 18. Kleckner argues that the trial court was required to hold an evidentiary hearing to determine if his statement should have been suppressed. As noted by the State, Kleckner is essentially arguing that the trial court has the duty to conduct a suppression hearing sua sponte. This Court has held that "[w]hen a criminal defendant objects to the admission of his confession, arguing it was involuntary, the trial court must conduct a hearing outside the presence of the jury. At the hearing, the burden is on the State to prove voluntariness beyond a reasonable doubt." Pinkston v. State, 50 So.3d 1027, 1029 (¶ 8) (Miss.Ct.App.2010) (emphasis added and internal citations omitted). In
¶ 19. Kleckner argues that in responding to his discovery requests, the State failed to disclose exculpatory evidence of his medical condition
¶ 20. "In Brady, the United States Supreme Court held that `the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" Thomas v. State, 45 So.3d 1217, 1220 (¶ 9) (Miss.Ct.App.2010) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). This Court has held:
¶ 21. Further, under prong four, "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. at (¶ 10) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). "A `reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression `undermines confidence in the outcome of the trial.'" Id.
¶ 22. After reviewing the record, we find that Kleckner failed to prove that a Brady violation occurred. Kleckner fails to demonstrate that he satisfies even the first and second Brady factors, which require proof that the defendant did not possess the evidence and could not have obtained the evidence through reasonable diligence. Kleckner was aware of his medical condition at the time he gave his statement, of which he could have advised his trial counsel if his condition had affected his ability to give a voluntary statement. After receiving this information, Kleckner's counsel could have made a specific discovery request or could have filed a motion to compel his jail medical records. Furthermore, since Kleckner failed to adequately present the voluntariness issue to the trial court prior to trial, the issue was not before the trial court, and there was no reason for the State to believe that his jail medical records were relevant, much less exculpatory. Based on the foregoing, Kleckner's argument is without merit.
¶ 24. Kleckner contends that the admission of the officer-written confession was plain error requiring reversal because Investigator Garner continued to question him after he had asserted his right to remain silent. We find no merit to this argument.
¶ 25. In addressing a similar application of the request for counsel, the Mississippi Supreme Court, quoting the United States Supreme Court, stated as follows:
Barnes v. State, 30 So.3d 313, 316-17 (¶ 9) (Miss.2010) (quoting Davis v. United States, 512 U.S. 452, 462, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)).
¶ 26. In describing his interview with Kleckner, Investigator Garner testified that Kleckner told him that he fondled the victim and placed his fingers inside her vagina. Investigator Garner testified that he asked Kleckner if he licked the victim. Kleckner replied that he did not think he needed to say anything else but, then again "[there are] two sides to everything." Investigator Garner testified that he asked Kleckner again, and Kleckner indicated that he did not want to say anything further. Investigator Garner testified that he then stopped the interview.
¶ 27. As evidenced above, Kleckner failed to make an unambiguous, unequivocal assertion of his right to remain silent, and the officer was not compelled to stop the questioning. Barnes, 30 So.3d at 318 (¶ 15) ("Pursuant to Davis, Barnes failed to make an unambiguous, unequivocal request for an attorney, and Lewis had no obligation to stop questioning her."). The officer asked Kleckner about one act the victim said he had committed, and Kleckner said he did not want to answer any more questions. The officer asked the question again and then ended questioning. There was no violation of Kleckner's right not to give evidence against himself, and, even if there had been, the one allegedly inappropriate question did not yield any evidence. Kleckner had already given the information that incriminated him before he said that he did not want to answer any more questions. This issue is without merit.
¶ 28. Kleckner argues that constitutional plain error occurred in violation of his fundamental right to remain silent when Investigator Garner improperly testified concerning Kleckner's invocation of his right to remain silent. Kleckner takes issue with portions of Investigator Garner's testimony during both direct examination and cross-examination.
¶ 29. During direct examination of Investigator Garner by the State, the following exchange occurred:
Defense counsel did not offer any objections to the above testimony at trial. Then, during cross-examination of Investigator Garner by defense counsel, the following exchange took place:
¶ 30. The record shows that defense counsel offered no objection to Investigator Garner's testimony during direct examination by the State, and Investigator Garner was responding to questions from defense counsel during cross-examination. Further, we acknowledge that our supreme court has provided guidance regarding the difference between commenting on a defendant's failure to testify and responding to an asserted defense. In Dora v. State, 986 So.2d 917, 923 (¶ 11) (Miss.2008), the supreme court explained:
¶ 31. Kleckner argues that his Fourth Amendment rights were violated when he was seized from Carson's home without a search warrant.
¶ 32. According to testimony presented at trial, the officers armed with an arrest warrant for Kleckner entered by Carson's consent without objection from Kleckner.
¶ 33. Kleckner argues that both his statutory and constitutional speedy-trial rights were violated. The record shows that Kleckner raised no speedy-trial demand with the trial court; therefore, his statutory claim is procedurally barred. Patterson v. State, 79 So.3d 549, 549-50 (¶ 7) (Miss.Ct.App.2011).
¶ 34. The Mississippi Supreme Court has set forth the standard of review we must employ when reviewing constitutional speedy-trial claims that are raised for the first time on appeal:
Dora, 986 So.2d at 925 (¶ 19). "The Dora court went on to note that Terry `Dora seeks to leapfrog over the required plain-error analysis by making Barker-genre assertions, i.e., prejudice caused by length of delay, prejudice by virtue of the amended indictment which included prior felony convictions, and prejudice due to a change in a witness's testimony.'" Patterson, 79 So.3d at 550 (¶ 8) (footnote omitted).
¶ 35. Similarly, in this case, Kleckner makes blanket assertions of prejudice rather than pointing out any instance of actual prejudice. Kleckner simply claims that he:
Kleckner then contends that "one of his alibi witnesses, both of whom are aging and whom the State has been informed of, is now incompetent," and that "the fact that had he been tried within 270 days, he would not have been hospitalized during the [three] days scheduled for critical and intensive pretrial preparation by Mr. Gay."
¶ 36. In making his argument, Kleckner cites no case for the proposition that delays of any particular length automatically overcome the procedural bar or constitute plain error, and this Court knows of no such authority. Moreover, Kleckner failed to provide the State with notice of any alibi witnesses or the relevance of the testimony of these alleged witnesses. In Dora, three years, three months, and six days passed between Dora's arrest and subsequent trial. Id. at (¶ 9) (citation omitted). The record shows that Kleckner was arrested on September 10, 2008; he was indicted on October 21, 2008; a capias was served and arraignment was waived on November 10, 2008; a trial-setting order was entered on June 10, 2009, which set the trial for September 14, 2009; and his trial commenced on September 16, 2009.
¶ 37. As established above, approximately one year elapsed between Kleckner's initial arrest and his trial. We note that this amount of time is significantly less than the amount of time that elapsed in Dora; nonetheless, our supreme court affirmed Dora's conviction. After reviewing the record, we find no prejudice or reason to do otherwise in this case. This issue is without merit.
¶ 38. Kleckner argues that he failed to receive a trial by a fair and impartial jury, which violated his fundamental constitutional rights. Specifically, Kleckner points
¶ 39. On the "Juror Information Form," Juror 43, Neely A. (Cousar) Robertson, listed Margaret Cousar as her mother and Chris Robertson as her spouse who is an investigator with the New Albany Police Department. During voir dire, the State asked the jury the following question:
(Emphasis added). Kleckner asserts that Juror 43's failure to speak up during voir dire and disclose that her mother worked at the sheriff's department, the investigating agency in this case, and that the juror's husband worked at the New Albany Police Department, denied him a fair and impartial jury.
¶ 40. In a similar situation, Buckley v. State, 772 So.2d 1059, 1063-65 (¶¶ 12-20) (Miss.2000), the Mississippi Supreme Court found that voir dire questions as to whether any potential juror or any member of a potential juror's family was related to any police or law enforcement officer, sheriff, or "what have you," was ambiguous as it related to a potential juror whose daughter worked as a part-time police dispatcher for the Newton Police Department. The supreme court held that the potential juror's failure to respond did not warrant a new trial. Id. at 1064-65 (¶¶ 19-20). In this case, the pertinent question asked by the State to the jurors during voir dire was if they could be fair and impartial despite being related to a law enforcement officer. The question asked was not whether they were related to a law enforcement officer. See Mariner Health Care, Inc. v. Estate of Edwards, 964 So.2d 1138, 1147-48 (¶ 19) (Miss.2007) ("There is no unbending rule for every situation that might arise on the voir dire of prospective jurors. Rather, each case must be decided based on the facts presented. Additionally, we must consider the relationship between the question posed and the juror's knowledge.") (internal citations omitted). Accordingly, this issue is without merit.
¶ 41. As to Kleckner's argument that a prohibited conversation between a juror and AB's uncle occurred, violating his right to a fair and an impartial jury, we also find no merit. In making this argument, Kleckner asks for a change in the present state of the law, citing to Greer v. State, 755 So.2d 511 (Miss.Ct.App.1999), urging this Court to consider adopting a per se disqualification of any juror violating the express terms of Rule 3.06 of the Uniform Rules of Circuit and County Court, as Juror 61 allegedly did in this case. This Court in Greer provided that "[w]henever there is a question concerning outside influencing of a jury, the trial judge himself ought to examine the jury carefully to ensure that the jury's deliberations are based on the evidence produced
¶ 42. Kleckner argues that his three life sentences, without possibility of parole, plus his consecutive, fifteen year sentence violates his Eighth Amendment constitutional rights and/or his Article 3, Section 28 rights of the Mississippi Constitution. Kleckner also argues that the trial court erred by sentencing him without holding a sentencing hearing in violation of his due-process rights. We find no merit to these allegations.
¶ 43. The Mississippi Supreme Court has held:
Johnson v. State, 950 So.2d 178, 183 (¶¶ 22-23) (Miss.2007) (citation omitted).
¶ 44. The relevant sentencing statutes are Mississippi Code Annotated section 97-3-101(3) (Rev. 2006) and section 97-5-23(1). Section 97-3-101(3) provides:
Section 97-5-23(1) states as follows:
¶ 45. Kleckner was convicted of three counts of sexual battery under section 97-3-95(1)(d) and one count of touching a child for lustful purposes under section 97-5-23. The trial court sentenced Kleckner to three concurrent life sentences for the sexual-battery charges and to a consecutive sentence of fifteen years for the charge of touching a child for lustful purposes. "The sentence[s] imposed by the trial court [were] within the statutory limitation and ... within the sound discretion of the learned trial judge." Johnson, 950 So.2d at 183 (¶ 25). Accordingly, we find that this issue is without merit.
¶ 46. Kleckner next argues that the trial court's sentencing him to the maximum sentences on all four counts, including three life sentences without the possibility of parole, without a sentencing hearing violated his due-process rights. In support of his argument, Kleckner cites to Rule 10.04(B) of the Uniform Rules of Circuit and County Court.
¶ 47. Kleckner argues that the prosecution's closing argument, referring to Kleckner's invocation of his right to remain silent, appealing to localism, and inflaming the jury's passions violated his rights under the Fifth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution, his due-process rights to a fair trial, and his fundamental right to an impartial jury. Because timely objections were not made at trial, Kleckner relies on the plain-error doctrine. Specifically, Kleckner takes issue with the following statements by the prosecutor:
¶ 48. Because Kleckner's attorney did not raise a contemporaneous objection at trial, this issue is procedurally barred from appellate review unless it constitutes plain error. See Morris v. State, 963 So.2d 1170, 1178 (¶ 27) (Miss.Ct.App. 2007). As noted at the outset of our discussion, only an error that affects the defendant's substantial rights rises to the level of plain error. Taylor, 754 So.2d at 603 (¶ 11). "To determine if plain error has occurred, this Court must determine if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial." Cox v. State, 793 So.2d 591, 597 (¶ 22) (Miss.2001) (citations omitted).
¶ 49. In reviewing claims of a prosecutor's misconduct in closing argument, this Court has provided the following standard:
¶ 50. We are unable to find that the prosecutor's statements were improper. More importantly, in keeping in mind the strength of the evidence against Kleckner, we are unable to find that the natural and probable effect of the prosecutor's statements was to create such prejudice against Kleckner as to result in a decision influenced by the prejudice so created. See id. In other words, the record does not evidence that, absent the State's comments, the jury would have found Kleckner not guilty of the crimes for which he was convicted. See Bailey v. State, 952 So.2d 225, 232 (¶¶ 10-11) (Miss.Ct.App.2006). Because we find no plain error present, this issue is without merit.
¶ 51. Kleckner argues that the trial court erred by permitting a "forensic" interviewing "expert" to testify when AB had already testified, and alternatively, the trial court erred by failing to give a limiting instruction on the weight to be accorded the "expert's" testimony.
¶ 52. Several factors undermine Kleckner's claim of reversible error in this case. First, the testimony and evidence in question was not objected to by Kleckner at trial. In general, issues that were not raised at trial are barred from our consideration on appeal. Gunn v. State, 56 So.3d 568, 572 (¶ 17) (Miss.2011). However, Kleckner will still be entitled to relief if he can show that any of his complaints rise to the level of plain error. Blanchard v. State, 55 So.3d 1074, 1077 (¶ 16) (Miss. 2011). "Plain error exists where such error affects the defendant's substantive/fundamental rights, even though no objection was made at trial." Parker v. State, 30 So.3d 1222, 1227 (¶ 14) (Miss.2010). After reviewing the record, we find that Kleckner's assertions of error as stated above fail to rise to the level of plain error. See Ross v. State, 954 So.2d 968, 995 (¶ 51) (Miss.2007) ("[T]he admission of evidence is within the discretion of the trial court, and courts have been instructed to construe
¶ 53. These contentions of error are without merit.
¶ 54. Kleckner argues that if the inadmissible evidence had been excluded, there would not be sufficient evidence to support any of his convictions. When reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to the State to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The evidence presented at trial included the testimony of AB as to the sexual misconduct of Kleckner; witness testimony that AB was twelve-years old and Kleckner was over the age of eighteen
¶ 55. With new appellate counsel, Kleckner argues that his trial counsel rendered ineffective assistance in violation of his constitutional rights. Specifically, Kleckner contends that he was denied counsel at a critical stage in the proceedings and that his trial counsel did not subject the prosecution's case to meaningful adversarial testing. He bases his claim on his attorney's alleged failure to: (1) effectively cross-examine AB, the arresting officer, and the "forensic" interviewing expert; (2) object to the State's continual leading questions and repetitive summarization of AB's testimony; (3) object and move to strike the medical opinion testimony of the arresting officer; (4) file a motion to suppress Kleckner's officer-written confession; (5) file a proper motion for a continuance, to make a record of the in-chambers hearing, to object on the record when trial commenced, and to bring to the court's attention the observed and marked change in Kleckner's behavior at trial; (6) identify the "juror insider" and strike her, or to at least make an exception to preserve error as to the tainted juror; (7) object to the State's introduction of the arrest warrants and a justice court affidavit into evidence, all rank hearsay; (8) file a motion to quash the multi-count indictment; (9) file anything more than a pro forma motion for a JNOV or, in the alternative, a new trial; and (10) request a sentencing hearing. Kleckner also argues that his counsel rendered ineffective assistance by introducing testimonial documents at trial, including justice court affidavits, the officer's report, and the Family Resource Center report.
¶ 56. The Mississippi Supreme Court has adopted the standard as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to analyze a claim of ineffective assistance of counsel. Johnson v. State, 29 So.3d 738, 745 (¶ 20) (Miss.2009). In order to prevail under Strickland, Kleckner must show that (1) his counsel rendered a deficient performance, and that (2) the deficiency prejudiced his defense. Id. The
¶ 57. Furthermore, the merits of a claim of ineffective assistance of counsel brought on direct appeal should be addressed only when "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Jackson, 73 So.3d at 1181 (¶ 20). The supreme court has held:
Id. "If this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm `without prejudice to the defendant's right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.'" Id. "Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record." Id.
¶ 58. As set forth above, Kleckner asserts several alleged instances of deficient representation. Kleckner, however, faces a great burden to prove that such deficiencies amounted to ineffective assistance of counsel. Further, our review of the record reveals that we have no reason to second guess counsel's trial strategy.
¶ 59. As this Court held in Hancock v. State, 964 So.2d 1167, 1175 (¶ 18) (Miss.Ct.App.2007):
See also Jackson, 73 So.3d at 1181-82 (¶ 22).
¶ 60. After reviewing the record, we find no obvious deficiencies that rose to the level of ineffective assistance of counsel. We further find no merit to Kleckner's claim that he was denied counsel at a critical stage in the proceedings. The record shows that Gay had ample opportunity to prepare for trial and was not denied access to his client. As previously discussed, Gay testified at the post-remand
¶ 61. Based on the foregoing, we deny relief on this issue without prejudice so that Kleckner may, if he desires to do so, present an ineffective-assistance-of-counsel claim in a motion for post-conviction collateral relief.
¶ 62. Alleging many of the same errors, Kleckner cites United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), for the propositions that his counsel was absent during a critical stage of trial, i.e., pre-trial preparation; that his counsel failed to subject the prosecution's case to meaningful adversarial testing; and that his counsel was called upon to render assistance under circumstances where the possibility of any lawyer, even a fully competent one, providing effective assistance was small. The Supreme Court in Cronic, found that "there are circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Johnson, 29 So.3d at 748 (¶ 34) (quoting Cronic, 466 U.S. at 658, 104 S.Ct. 2039). The Court in Cronic provided three instances in which prejudice was presumed: "(1) when counsel is completely denied; (2) when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; (3) and when counsel is called upon to render assistance under circumstances where competent counsel very likely could not." Id. (citing Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039). Further, the Supreme Court has held that a proper analysis falls under Strickland, not Cronic, when "respondent's argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points." Id. (quoting Bell, 535 U.S. at 697, 122 S.Ct. 1843). "For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind." Id.
¶ 63. After reviewing the record, we find that the present case is properly analyzed under Strickland, since Kleckner argues specific failures of his counsel, not failure as a whole. We also find, for the reasons previously set forth, that Kleckner was not denied counsel during a critical stage of trial. Accordingly, we find Kleckner's argument under Cronic to be without merit.
¶ 64. In his conclusion, Kleckner argues that if this Court finds no reversible error was committed, then the Court should find that his assignments of error reveal, at the very minimum, harmless error. Kleckner asserts that the number of harmless errors committed by the trial court should have a sufficient cumulative effect to result in prejudice to his defense requiring a new trial or vacation of his sentence. "However, where `there [is] no reversible error in any part ... there is no reversible error to the whole.'" Johnson v. State, 760 So.2d 33, 38 (¶ 17) (Miss.Ct. App.2000) (quoting McFee v. State, 511 So.2d 130, 136 (Miss.1987)). Because we find no merit in any of Kleckner's assignments of error, we will not reverse his conviction based upon cumulative error.
¶ 65.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE AND FAIR, JJ., CONCUR. BARNES, MAXWELL AND RUSSELL, JJ., CONCUR IN PART AND IN THE RESULT. ROBERTS, J., NOT PARTICIPATING.