Daner Ford v. State of Mississippi

COLEMAN, JUSTICE,

FOR THE COURT:

¶1. A jury found Daner Ford guilty of acting in concert to bring about the death of Marvin Stuckett, for a firearm enhancement, and for being a convicted felon in possession of a firearm. The trial court sentenced him as a habitual offender to a term of life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved, Ford appeals. Discerning no error, we affirm.

FACTS

¶2. At approximately 3:00 a.m. on September 7, 2008, Marvin Stuckett was fatally shot outside his home on Stockton Drive, in Greenville, Mississippi. Witnesses testified that the sounds of the gunshots indicated two weapons: a semiautomatic rifle and a large-caliber pistol. *489One witness saw what looked like a white Chevy Caprice driving outside, but witnesses otherwise could not identify the shooters. Stuckett was found lying in his neighbor’s carport. First responders transferred him to the hospital, where he succumbed to his injuries.

¶3. Officer Terence Wigfall and Sergeant Elton Foster of the Greenville Police Department arrived first on the scene. They interviewed witnesses, observed the scene, and began to collect evidence. In particular, Foster collected from the ground three shells of the type fired from semi-automatic assault rifles and one round of the type fired from pistols. An assault rifle and rifle magazine were found inside a nearby vehicle and taken into evidence. At trial, witness testimony and ballistics established that the rifle and magazine had not been used in the shooting.

¶4. Interviews subsequent to Stuckett’s murder revealed that the shooting had been the culmination of longstanding tension between two groups of men that had come to a head earlier that evening at a nightclub in town named Southern Whispers, where an acquaintance of all the parties was having a birthday party. Daner Ford and Carlos Smith had years of friction between them and the two men had a terse verbal exchange at the club.'Stuckett was a friend of Smith’s and was at the nightclub that evening, along with their other friends Nick Harmon and David Shanklin. Daner Ford was accompanied at the club by his cousins Stevenson Ford and Jessie Lee and his other friends Jonathan Robinson and Freddie Harris. Smith testified at Daner Ford’s trial that before Daner Ford left Smith and Smith’s friends, Daner Ford said that he was “going to kill one of you.”

¶5. Later in the evening, Daner Ford and Carlos Smith “got to tussling,” resulting in club security breaking the fight up and separating the two men. Stevenson Ford also engaged in a physical altercation with Smith and Harmon. Harmon testified that when security kicked out of the club Stuckett, Stevenson Ford, Robinson, and himself, Daner Ford was still outside, shirt off, shouting threats about “killing one of them “n—-s” before running off into the night. Stuckett was outside when the threats were shouted.

¶6. Stuckett remained in Harmon’s company for a while before parting ways with him and heading toward his house on Stockton Drive in his vehicle. He was shot to death soon after. Witness statements and tips called in to police led the investigators to locate and arrest Jessie Lee at a gas station in the early morning hours of September 7, 2008. Lee confessed his role in the shooting on Stockton Drive and named several others involved: Daner Ford and Stevenson Ford, Harris, Robinson, and Kendrick Johnson. According to Lee, he was driving his blue Chevy with Stevenson Ford, Robinson, and Johnson as his passengers. He was following Harris, who had Daner Ford as his passenger in his green Chevy. The two cars of men allegedly were on their way to another club when a third car ran a red light. Harris made a U-turn through a nearby gas station to follow it. Stevenson Ford told Lee to follow Harris, so Lee made a similar U-turn and followed. Lee thought that the men were now headed toward Harris’s mother’s house, but they ended up on Stockton Drive, where Stevenson Ford told Lee to pull over and stop, despite Harris’s vehicle being somewhere else up the road and out of sight.

¶7. Lee testified that Daner Ford approached his car from the front, and that Daner Ford was carrying a rifle. Daner Ford crossed in front of the car, went into a nearby yard, and then Lee heard gun*490shots from behind him. Lee ducked his head, as he thought the shots were “right behind [his] head.” When he raised his head- again, he saw that Stevenson Ford had exited the car and was shooting “back towards the way we just came in.” Lee heard somebody shout, “Don’t do it, OJ,”1 but didn’t recognize the voice. Lee testified that he heard five to ten gunshots, and then Stevenson Ford and Daner Ford climbed into Lee’s car. Daner Ford brought the rifle with him into the back seat, joking that Stevenson Ford nearly had shot him in the head, and telling the other passengers to forget that they had seen him.

¶8. After dropping his passengers at Stevenson Ford’s house, Jessie Lee parked at his grandmother’s house for about half an hour and then went to a Double Quick to get gas. By this time, Stuckett had been transported to the hospital, and Officer Tisaby had been alerted that a vehicle associated with the shooting was parked at the Double Quick. Soon after his arrest at the Double Quick, Lee gave a statement to the police and ultimately pleaded guilty to being an accessory after the fact,

¶9. Daner Ford gave a recorded statement to the police during the daytime hours of September 7, 2008. Detective Erica .Brown conducted the interview and testified that she noticed an abrasion on Ford’s nose, which Daner Ford told her was from the fight with Smith at Southern Whispers. In the recorded interview, Dan-er Ford recounted the altercation with Smith and stated that, after leaving Southern Whispers, Daner Ford went to Stevenson Ford’s house and “laid out.” He walked to his own home around 4:00 or 4:30 a.m. Daner Ford stated that he did not have a problem with Stuckett; that his problem was with Smith. The police then allowed Daner Ford to leave the station.

¶10. On Monday, September 8, 2008, the police department issued warrants for Daner Ford, Stevenson Ford, Harris, and Robinson. Stevenson Ford, Harris, and Robinson were arrested at Stevenson Ford’s residence. Investigator Delano Wilson contacted T. George Kelly, Ford’s attorney, and Kelly said that he would try to get Daner Ford to turn himself in. Kelly never made contact with Daner Ford. The police used a trap and trace and, , on September 15, 2008,- received a signal from Daner Ford’s cell phone near his mother’s house. Daner Ford’s brother consented to a search of the house. The police discovered Daner Ford in the attic, where he was taken into custody.

Ifll. On March 2, 2009, a grand jury indicted Ford on two counts within a three-count indictment. Count I alleged that Stevenson Ford, Daner Ford, Jonathan Robinson, Freddie Harris, and Jessie Lee, “each acting in concert with the other, ... did unlawfully, willfully, feloniously, and of their malice aforethought, then there kill and murder” Manvin Stuckett. Count I further alleged that Daner Ford had displayed a firearm during Stuckett’s murder, in violation of Section 97-37-37 of the Mississippi Code. Count II alleged that Ford, a previously convicted felon, was in possession of an assault rifle. Count III concerned only Robinson. On August 7, 2009, the Circuit Court of Washington County severed the trials of the co-defendants. On November 16, 2010, the trial judge entered an order amending Daner Ford’s indictment to charge him as a habitual offender.

¶12. At trial, the State presented as witnesses Jessie Coats, Tyrone Smith, Sergeant Foster, Officer Wigfall, Carlos Smith, Nick Harmon, Christopher York, *491Officer Tisaby, Detective Brown, Dr. Thomas Deering, Starks Hathcock, Jessie Lee, and Delando Wilson. After the State rested, Daner Ford moved for a directed verdict, which the court denied. The defense rested without presenting any witnesses. The jury found Daner Ford guilty as charged. On Daner Ford’s request, the trial court polled the jury.

¶13. On November 29, 2010, Daner Ford moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied the motion with a written opinion. On April 20, 2015, the circuit court granted Ford’s motion to re-open the appeal deadline. Ford thereafter timely filed his notice of appeal.

ANALYSIS

I. The trial court did not err when it denied Daner Ford’s motion for a mistrial and instead instructed the jury to disregard improper witness testimony.

¶14. Daner Ford’s first assignment of error is that the State purposefully elicited prejudicial testimony from Smith and that the trial court erred when it denied his motion for a mistrial and instead instructed the jury to ignore Smith’s statement. The Court reviews the denial of a motion for a mistrial for abuse of discretion. Flora v. State, 925 So.2d 797, 804 (¶ 5) (Miss.2006) (citing Spann v. State, 771 So.2d 883, 889 (Miss.2000)).

This Court has held that a trial judge is best suited to determine the prejudicial effect of an objectionable remark and is given considerable discretion in deciding whether the remark is so prejudicial as to merit a mistrial. Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990). Unless “serious and irreparable damage” results from an improper comment, the judge should “admonish the jury then and there to disregard the improper comment,” Johnson v. State, 477 So.2d 196, 210 (Miss.1985). While deference is given to decisions of trial judges, each case must stand on its own facts in order to determine whether a particular decision constitutes reversible error. Henderson v. State, 403 So.2d 139, 140 (Miss.1981).

Flora, 925 So.2d at 804 (¶ 5).

¶15. The statement in dispute occurs at the beginning of Smith’s testimony, while the prosecutor was establishing for the jury the acquaintance between Smith and Ford:

Q: Did you know Daner Ford before that night?
A: Yes, sir.
Q: Did how long had you known him?
A: Since junior high.
Q: And did you all go to school together or around the same age?
A: Well, you know, I went to school, you know what I’m saying.
Q: Okay, but you all were around the same age?
A: Yes, sir,
Q: Now, prior to that night, had you and Daner Ford ever had bad blood?
A: No, sir.
Q: Had there ever been any problem between the two of you?
A: Back in like ’94 he had shot me.
Q: Now—
Mr. Kelly: Your Honor, objection.

(Emphasis added.) The attorneys approached the bench, where the trial court heard argument on the objection. Daner Ford’s attorney first argued that the 1994 shooting had not been revealed to the defense, and when the State rebutted that argument, the defense argued that the statement was improper character evidence in violation of Mississippi .Rule of *492Evidence 404(b). The State replied that it had intended only to show the jury that Smith and Daner Ford were not friends and had a history of not being friends, but that the State had not sought to elicit the particular statement about the prior shooting. The defense responded that the “bad blood” between Smith and Daner Ford was irrelevant to Stuckett’s murder, but the trial court replied the poor relationship did seem relevant, as “the confusion arose at Southern Whispers, and they already had bad blood, and that is what got everybody riled up.”

¶16. The trial court denied the motion for a mistrial and then turned to the jury, stating: “The Court is going to instruct you to disregard the question and the answer as it relates to the bad blood between these two gentlemen culminating in an act in 1994. Disregard that, no consideration of it during deliberations.” The State then proceeded with questioning about the activity at Southern Whispers the night of Stuckett’s murder, and the 1994 shooting was not mentioned by either party again.

¶17. Now on appeal, Daner Ford argues that the denial of a mistrial was an abuse of discretion, as Smith’s statement inflamed and prejudiced the jury. We disagree. The trial court properly followed our guidance in Flora, 925 So.2d at 804 (¶ 5). The trial court heard significant bench argument from both the State and Daner Ford’s trial counsel before denying the motion for a mistrial. The court then instructed the jury to disregard Smith’s statement, and no further mention was made of the 1994 shooting. Even if Smith’s statement from the witness stand indeed were inadmissible and irrelevant, that error would not be so “serious and irreparable” that it would warrant a mistrial. Id.

¶18. Daner Ford contends that the jury could not have ignored Smith’s statement, even when instructed to do so by the trial court. Daner Ford argues that the trial court’s admonishment served only to highlight the inadmissible statement. We disagree. First, Daner Ford’s trial counsel failed to object contemporaneously to the trial court’s admonition, waiving the assignment of error. See Watts v. State, 733 So.2d 214, 232-33 (¶ 53) (Miss.1999) (holding that a failure to make a contemporaneous objection to allegations of prosecu-torial misconduct during closing arguments waived the issue for appeal); see also Latiker v. State, 918 So.2d 68, 74 (¶14) (Miss.2005) (“If a contemporaneous objection is not made, an appellant must rely on the plain error rule to raise the unpreserved argument on appeal.”) (citing Watts, 733 So.2d at 233). Second, “[w]hen the court sustains objections to improper testimony of witnesses ..., it is presumed, unless otherwise shown, that the jury followed the directions of the trial judge to disregard such testimony.” Holifield v. State, 275 So.2d 851, 856 (Miss.1973). Dan-er Ford fails to show otherwise and therefore has not overcome the presumption that a jury follows the instructions of a trial judge to disregard inadmissible testimony.

¶19. We hold that Ford’s first assignment of error is without merit.

II. The trial court did not err in granting a flight instruction.

¶20. Because Stuckett’s murder occurred in the early morning hours of September 7, 2008, and because Daner Ford voluntarily went to the police department and gave a videotaped statement that same morning, Daner Ford contends that the trial court erred in giving a flight instruction to the jury. “We will overturn a trial court’s giving of a jury instruction only where the trial court abused its discretion.” Drummer v. State, 167 So.3d 1180, 1186 (¶ 19) (Miss.2015) (citing Hig*493gins v. State, 725 So.2d 220, 223 (¶ 15) (Miss.1998)). “[J]ury instructions must be read ‘as a whole with no one instruction taken out of context.’ ” Id. (quoting Jackson v. State, 645 So.2d 921, 924 (Miss. 1994)). However, “flight evidence is controversial and must be handled with care.” United States v. Benedetti, 433 F.3d 111, 116 (1st Cir.2005).

¶21. In general, “flight is admissible as evidence of consciousness of guilt.” Fuselier v. State, 702 So.2d 388, 390 (¶ 4) (Miss.1997) (citing Williams v. State, 667 So.2d 15, 23 (Miss.1996)). That said, “an instruction that flight may be considered as a circumstance of guilt or guilty knowledge is appropriate” only under certain circumstances. Reynolds v. State, 658 So.2d 852, 856 (Miss.1995) (quoting Fuselier v. State, 468 So.2d 45, 57 (Miss.1985)). The Court has adopted a two-prong test for evaluating flight instructions: “(1) Only unexplained flight merits a flight instruction; and (2) flight instructions are to be given only in cases where that circumstance has considerable probative value.” States v. State, 88 So.3d 749, 758 (¶ 36) (Miss.2012).

¶22. As to the first prong, Dan-er Ford has not provided an alternative explanation for why he hid in his mother’s attic—thereby leaving as the only explanation that he was fleeing from arrest. By arguing that he had given a videotaped statement to police, Daner Ford intimates that there may have been a superseding cause for why he hid from the police, but he stops short of offering that cause. His omission is fatal to the instant assertion of error.

Resolution of the issue [of flight instructions] requires an examination of the term “unexplained” in the context of flight evidence. It is only when the defendant fled for some reason independent of the crime that the flight is considered to be “explained.” Austin[ v. State], 784 So.2d [186, 194 (Miss.2001) ] (stating that “evidence of flight is inadmissible when independent reasons exist to explain the flight”).... Flight is “unexplained” if there is no explanation for it other than the defendant’s guilt or guilty knowledge. Austin, 784 So.2d at 194.

Harrell v. State, 134 So.3d 266, 276 (¶ 34) (Miss.2014). Daner Ford has failed to provide a “reason independent of the crime” to explain why he hid in the attic of his mother’s house, rendering his flight “unexplained.” As to the second prong, by the time the police had searched Daner Ford’s mother’s house, Daner Ford’s family members and friends had been arrested and charged with Stuckett’s murder. His own videotaped statement placed him with the persons who had been arrested for Stuck-ett’s murder. His flight from police was, therefore, a “circumstance of considerable probative value.”

¶23. Daner Ford’s flight from police fits within the two-pronged test provided by States and Harrell. Additionally, the flight instruction did not require that the jury view Daner Ford’s flight as evidence of guilt. The instruction read as follows:

You will determine from all the facts whether such flight or hiding was from a conscious sense of guilt or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt of [sic] innocence of the Defendant, DANER FORD.

The instruction permitted the jury to determine if Daner Ford had fled from the police, but advised that “such flight or hiding,” and any guilty knowledge perceived therefrom, “is to be considered in connection with all other events in this case.” Finally, the flight instruction was one of twenty-two instructions given to *494Daner Ford’s jury. In dissent, Justice Lamar cites specially concurring opinions authored by former Justice Carlson, in which Justice Carlson wrote that flight instructions are limited to flight from the scene of the crime.. (Lamar, J., dissenting, at ¶ 44). However, applicable caselaw approves the giving of flight instructions when the flight occurred to avoid arrest, whether it occurred from the scene of the crime or not. See Warren v. State, 709 So.2d 415, 419-20 (Miss.1998) (Defendant fled officer attempting to question defendant at defendant’s home after the crime in question occurred at another’s residence); Brown v. State, 690 So.2d 276, 293-94 (Miss.1996) (Defendant fled his workplace, which was not the scene of the crime, to avoid authorities after promising to remain to be available for questioning). We hold that the trial court did not abuse its discretion in giving a flight instruction to the jury for its consideration.

III. Daner Ford’s trial counsel rendered effective assistance.

¶24. Daner Ford alleges that he received ineffective assistance of counsel at his trial because his trial counsel improperly elicited testimony that Stevenson Ford already had been convicted of Stuckett’s' murder, and because his trial counsel failed to object to witness testimony about comments Daner Ford had made at Southern Whispers. The general practice of the Court while reviewing a defendant’s direct appeal is to decline to address the merits of an ineffective-assistance claim. Archer v. State, 986 So.2d 951, 955 (¶ 15) (Miss.2008). Daner Ford insists that the record is eom-pléte and ripe for review of a claim of ineffective assistance of counsel. We agree, and we hold that he received effective assistance of counsel and that the assignment of error is without merit.

¶25. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Puckett v. State, 879 So.2d 920, 935 (¶ 43) (Miss.2004) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)) (internal quotations removed); see also Stringer v. State, 454 So.2d 468 (Miss.1984) (applying the Strickland factors to a Mississippi criminal appeal). The burden lies with the defendant to rebut the presumption that his trial counsel acted reasonably and strategically. Wilcher v. State, 863 So.2d 776, 799 (¶ 42) (Miss.2003) (citing Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.1984) (denying a federal petition for habeas corpus relief)). Specifically, a defendant must show (1) that his counsel’s performance was deficient, and (2) that the deficiency prejudiced his defense. Puckett, 879 So.2d at 935 (¶ 46). A defendant shows that he has been prejudiced by alleging, with specificity, that “but for such purported actions by ineffective counsel, the results of the trial court decision would have been different.” Ford v. State, 708 So.2d 73, 75 (Miss.1998) (citing Smith v. State, 434 So.2d 212, 219 (Miss.1983)).

¶26. Daner Ford argues that his trial counsel rendered ineffective assistance of counsel when counsel elicited testimony from Lee that Stevenson Ford already had been found guilty for Stuckett’s murder in a separate trial. “The general rule in this state is that where two. or more persons are jointly indicted for the same offense, but are separately tried, a judgment of conviction ... is not competent evidence on the trial of the other.” Robinson v. State, 465 So.2d 1065, 1068 (Miss. 1985). We have held that it is improper for the State to produce such evidence for the jury, as it prejudices the jury against the codefendant on trial. McCray v. State, 293 *495So.2d 807, 808-09 (Miss.1974). A review of the record reveals that, in the case sub judice, Daner Ford’s trial counsel sought to elicit the testimony for the purpose of impeaching Lee, a witness for the State. At Stevenson Ford’s trial, Lee had testified that he had seen Daner Ford shoot the rifle; now at Daner Ford’s trial, Lee testified that he had seen Daner Ford carrying the rifle and that he had heard shots, but that he did not actually see Daner Ford take the action of shooting the gun.

¶27. On appeal, Daner Ford does not provide the Court with evidence from the record that the decision by his trial counsel was not strategic, and he therefore fails to rebut our strong and highly deferential presumption “that counsel’s conduct fell within the wide range of reasonable professional assistance.” Hiter v. State, 660 So.2d 961, 965 (Miss.1995). Further, Daner Ford has failed to show the Court that his counsel’s alleged error prejudiced his defense. See Puckett, 879 So.2d at 935 (¶ 46).

¶28. Daner Ford also argues that his trial counsel erroneously withdrew an objection to witness testimony. Both Harmon and Smith testified that Daner Ford had made threats about potentially killing someone that night; Daner Ford’s counsel did not object to Harmon’s testimony and objected but then withdrew his objection to Smith’s testimony. A review of the transcript shows that the repeated hearsay statements were admissions by a party-opponent under Mississippi Rule of Evidence 801(d)(2)(A)2 and therefore admissible. Defense counsel’s retraction of his objection to Smith’s testimony and lack of objection to Harmon’s testimony were in line with the Mississippi Rules of Evidence and did not - constitute ineffective assistance.

¶29. The assignment of error is without merit.

IV. The trial court did not err when it sentenced Ford as a habitual offender without first conducting a bifurcated sentencing hearing.

¶30. ■ Ford argues that the trial court- erred when it sentenced Ford as a habitual offender because the trial court did not first conduct a bifurcated sentencing hearing. He alleges that the order to amend his indictment appeared spontaneously within the record and that the record contained no indication that his trial counsel was present, made any argument, or had any knowledge of the order to amend. Our review of the record reveals that the State, made an in-chambers ore tenus motion before trial and that Daner Ford and his defense counsel both were present.

¶31. When the State made its ore terms motion, Daner Ford and his defense counsel both were present and both participated in the discussion. Defense counsel even admitted on the record that he represented Daner Ford in the cases that the State had presented to the judge as proof of Daner Ford’s previous -felonies. Defense counsel had an opportunity to object to the amendment of the indictment and did not do so. Defense counsel did not dispute the validity of the convictions. The text of the trial transcript soundly controverts Daner Ford’s assertion that the order to amend his indictment appeared without a motion or hearing.

¶32. As to the issue of whéther Daner Ford was entitled to a bifurcated trial, Mississippi Code Section 99-19-81 *496states that a person who has been twice convicted of

any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of (1) year or more in any state and/or federal penal institution ... shall be sentenced to the maximum term of imprisonment for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole of probation.

Miss. Code Ann. § 99-19-81 (Rev. 2015). For a habitual-offender sentence to be proper, all the Court requires is that the defendant be indicted as a habitual offender, that the State prove the previous offenses by competent evidence, and that the defendant have reasonable opportunity to challenge the State’s proof. Grayer v. State, 120 So.3d 964, 969 (¶ 18) (Miss.2018). The purpose of a bifurcated trial where a defendant has been indicted as a habitual offender “is to preclude jury knowledge of prior convictions, except as otherwise admissible.” Keyes v. State, 549 So.2d 949, 951 (Miss.1989). By contrast, “the law strongly encourages, if it does not direct, the sentencing judge to become wholly familiar with the defendant’s prior record before passing sentence.” Id.

¶33. The Court has held that “[a] jury is to decide the question of guilt and subsequently the circuit judge is to serve as the finder of fact in determining whether the habitual offender part of the indictment is established by the requisite degree of proof.” Seely v. State, 451 So.2d 213, 215 (Miss.1984). In the case sub judice, the jury returned a guilty verdict and then was dismissed from the courtroom. Only after their departure did the trial judge proceed to sentence Daner Ford. The trial judge asked if the defendant had anything to say before doing so. Further, the State reminded the trial judge about the habitual-offender amendment, and defense counsel did not object or contest the order during the time it took for the clerk to retrieve the amending order from the case file.

¶34. In Carr v. State, 178 So.3d 344, 348-49 (¶¶ 10-12) (Miss.Ct.App.2014), the defendant argued that the trial court had erred by not admitting his prior convictions into evidence after the departure of the jury. The Court of Appeals first noted that the lack of contemporaneous objection waived the issue on appeal, but went on to state that “Carr does not take issue with the admissibility of the convictions, only that the proper procedure was not followed.” Id. (¶ 12). The case sub judice is analogous. In the pretrial hearing, Daner Ford and his defense counsel stipulated to the validity of the prior convictions and do not now contest their admissibility, or the trial judge’s consideration of them during the sentencing phase of his trial. Instead, he argues that he was not afforded a proper bifurcated hearing, which the trial transcript contradicts.

¶35. The assignment of error is without merit.

CONCLUSION

¶36. The Court holds that none of the four issues Daner Ford asserts on appeal holds merit. The trial court did not abuse its discretion when it admonished the jury to disregard witness testimony rather than declare a mistrial. The trial court did not abuse its discretion when it granted a flight instruction to the jury. Daner Ford’s allegations of ineffective assistance of counsel do not pass the two-pronged test prescribed by Puckett. Finally, Daner Ford’s assertion that the trial court did not provide defense counsel the opportunity to object to his amended indictment as a *497habitual offender is factually incorrect. We affirm the convictions'and sentences.

¶37. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT, AS A HABITUAL OFFENDER; CONVICTION OF ENHANCED BY A FIREARM AND SENTENCE OF FIVE (5) YEARS, AS A HABITUAL OFFENDER, TO BE SERVED CONSECUTIVELY TO THE MURDER CONVICTIOÑ, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF FELON IN POSSESSION OF A FIREARM AND SENTENCE OF TEN (10) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONCURRENTLY WITH THE SENTENCE OF FIREARM ENHANCEMENT AND CONSECUTIVELY TO THE SENTENCE OF MURDER. APPELLANT SHALL PAY COURT COSTS IN THE AMOUNT OF $322 AND TWO (2) PERCENT BOND FEE.

WALLER, C.J., RANDOLPH, P.J., MAXWELL AND BEAM, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.; LAMAR, J., JOINS IN PART. LAMAR, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY DICKINSON, P.J., AND KITCHENS, J. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J.; LAMAR, J., JOINS IN PART.

. “OJ” is Stevenson Ford's nickname.

. "A statement is not hearsay if ... [t]he statement is offered against a party and is ... the party's own statement, either in an individual ór a representative capacity[.]” M.R.E. 801(d)(2)(A).