for the Court:
¶ 1. A jury in the Hinds County Circuit Court found Antonio Smith guilty of armed robbery. On appeal, Smith argues: (1) the State impermissibly referenced his post-Miranda silence; (2) the trial court erroneously admitted evidence of drugs found in his vehicle; (3) the State violated Batson in exercising its peremptory strikes; and (4) the trial court erred in denying his proposed misidentification instruction. Finding no reversible error, we affirm.
FACTS
¶ 2. On April 30, 2006, an armed robbery occurred at a Jackson, Mississippi gas station. The gunman approached the store clerk, Patricia Gordon, and asked her for some Black & Mild cigars. When the man handed Gordon a five-dollar bill, she opened the cash register. The gunman then demanded, “Give me all the money,” and brandished a firearm he had hidden beneath his shirt. Gordon gathered the money from the register and placed it on the counter. The gunman took the money and cigars, then left the store.
¶ 3. Gordon immediately called 911. She told authorities the robber’s vehicle had a personalized license plate, reading “TY ROSE.” This license plate was registered to Rosenna Adams (Smith’s wife) for a GMC Yukon. A check of the personalized plate led police to Smith’s residence, where a GMC Yukon with “TY ROSE” on its tag was parked. Smith allegedly ran inside the house and refused to answer the door. Officers dispatched a SWAT team to the house, and a three-hour stand off ensued. Smith was eventually removed from the house and arrested. After obtaining Adams’s consent, police searched the Yukon and found a pack of Black & Mild cigars on the front floorboard and another pack on the rear floorboard. Officers also seized five plastic bags containing a “green leafy” substance, allegedly marijuana, from the rear seat of the vehicle.
¶ 4. On the date of the robbery, Gordon gave a written statement to police. She reported being robbed at gunpoint by a black male driving an “SUV” with “Ty Rose” on its license plate. The next day, an officer presented Gordon with a photographic lineup, and she identified Smith as the man who had robbed the gas station. At Smith’s trial, Gordon again identified Smith as the armed robber and described the “Yukon” he had driven with “TY ROSE” on the tag.
¶ 5. Smith testified in his own defense and denied robbing the gas station: He also denied he had ever visited the particular gas station where the robbery occurred. But he acknowledged he is sometimes called “Ty” and has a tattoo bearing that nickname. He also admitted the vehicle with “TY ROSE” on the license plate was his. He explained “TY ROSE” was a. combination of his and his wife Rosenna’s names. He claimed he had purchased the Black & Mild cigars found in his vehicle at a “local discount tobacco store.”
¶ 6. The jury found Smith guilty of armed robbery. The circuit court sentenced him to fifteen years, with ten to serve and five suspended. Smith timely appealed.
DISCUSSION
I. Comment on Right to Remain Silent
¶ 7. Smith claims the State improperly commented on his post-Miranda silence, first during an officer’s testimony and later during closing argument.
A. Officer’s Testimony
¶ 8. Smith’s first challenge is based on the following exchange during Officer Kent Daniels’s testimony:
[The State]: Okay. Did you have any contact with the suspect?
[Officer Daniels]: Once they brought the suspect out the house, I had a patrol officer to transport him downtown to the unit, and I came down and advised him of his Miranda rights, and told him, you know, we want to get a statement from him of what happened, and he refused to give me a statement.
(Emphasis added). Smith’s counsel objected at this point, and the parties approached the bench. The bench conference was neither recorded nor described in the record. However, after the State had concluded its case and the jury had been excused, defense counsel addressed the comment: “You’re Honor, we just want to put on the record about the objection to [the] statement about the plaintiffs [sic] refused to talk. The Supreme Court has said numerous times that whether the defendant decides to talk to officers should not be mentioned[.]” Our review shows Smith’s counsel neither requested a mistrial nor a curative instruction. And the trial court did not discuss or rule on his objection, but instead moved on to other issues.
¶ 9. When reviewing challenges to comments on post-Miranda silence, we are generally faced with a trial court’s denial of a motion for a mistrial, which we review for abuse of discretion. Gilbert v. State,
¶ 10. The Fifth Amendment to the United States Constitution provides: “No person ... shall be compelled in any criminal case to be a witness against himself[.]” The Fourteenth Amendment incorporates this right to the states. Chamberlin v. State,
¶ 11. The United States Supreme Court has held that a criminal defendant’s post-Miranda silence may not be used by the government to impeach the defendant’s exculpatory testimony. See Doyle v. Ohio,
¶ 12. It is “improper and ordinarily, reversible error to comment on the accused’s post-Miranda silence.” Emery v. State,
¶ 13. We do not find the natural and probable effect of Officer Daniels’s comment was to unjustly prejudice Smith. It does not appear the prosecutor intentionally elicited this comment, as it was not directly responsive to the prosecutor’s question. The challenged testimony, while legally improper, appears to be the officer’s mere recitation of the facts about his contact with Smith. We further note this comment was the sole reference, over the course of Smith’s trial, to his post-Miranda silence. The prosecutor did not suggest to the jury that Smith was guilty because he exercised his right to remain silent. Nor did the State use Smith’s silence to impeach his testimony. The procedural bar aside, we find the lone unsolicited reference to Smith’s post-Miranda silence does not warrant reversal.
B. Closing Argument
¶ 14. Smith next claims the prosecutor’s closing argument (1) impermissibly referenced his right to remain silent and (2) shifted the burden of proof from the State to the defense.
¶ 15. We find these arguments are similarly procedurally barred because Smith failed to raise a specific and contemporaneous objection during closing arguments. See, e.g., Swington v. State,
¶ 16. After the jury had been excused to begin deliberations, defense counsel challenged the State’s allegedly impermissible references to Smith’s decision not to testify about certain matters at trial. Soon after, he requested a mistrial claiming the State had shifted the burden of proof. Our supreme court has held “a motion for mistrial after the jury has retired to consider its verdict comes too late.” Williams v. State,
¶ 17. Though his untimely request for a mistrial serves as a procedural bar, our review reveals Smith’s asserted challenge at trial differs from the ground he now advances on appeal. His objection at trial dealt with the State’s mention of matters Smith elected to avoid while testifying. Yet on appeal, he latches to a different ground, arguing the State impermissibly commented, during its closing argument, on his pretrial exercise of his right to remain silent.
¶ 18. The record shows the State made no reference during closing arguments to Smith’s pretrial silence. Rather, the prosecutor’s closing focused on Smith’s trial testimony and the fact that it did not square with other evidence. Such arguments have been deemed permissible. See Jordan v. State,
¶ 19. We find this issue both procedurally barred and without merit.
II. “Green Leafy Substance”
¶ 20. Smith next claims the trial court’s admission of evidence of a “green leafy substance” recovered from his vehicle violates Rules 901 and 404(b) of the Mississippi Rules of Evidence.
A. Procedural Issues
¶ 21. Though Smith raised his Rule 404(b) argument in the trial court, the State contends this issue is procedurally barred because he failed to re-assert it in his motion for new trial. We disagree. It is true that certain errors — such as an argument that the verdict is against the weight of the evidence — must be raised in a motion for new trial to preserve the issue for appeal. Hughey v. State,
B. Rule 404(b)
¶ 22. We review the trial court’s admission or exclusion of evidence for an abuse of discretion. Terrell v. State,
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Rule 404(b) “prevent[s] the State from raising the inference that the accused has committed other crimes and is therefore likely to be guilty of the offense charged.” White v. State,
¶ 23. For a judge to admit evidence under Rule 404(b): (1) the evidence must “be relevant to prove a material issue other than the defendant’s character,” and (2) “the probative value of the evidence must outweigh the prejudicial effect.” Davis v. State,
¶ 24. Smith filed a motion in limine, arguing admission of evidence of marijuana seized from his vehicle violated Rule 404(b). Though the State did not file a written response, it argued during the pretrial motion hearing on the day of the trial that the evidence fell within an exception to Rule 404(b) to show motive. The State also contended the evidence was necessary to depict the “complete story” of the armed robbery.
¶ 25. The trial judge apparently misinterpreted the nature of the 404(b) issue. Instead, he seemed primarily concerned about the substance being authenticated as marijuana. He deferred ruling on the admissibility of the evidence, instructing:
[T]he defendant states that there is indication that witnesses may say the defendant was in possession of marijuana. The court finds that that will not be admissible unless there is someone that will give testimony that the substance was indeed marijuana that was found in the automobile. Otherwise, it would be hearsay and it would not be admissible unless the substance was indeed tested and determined to be marijuana.
Later, Officer Charles Taylor testified outside the presence of the jury that he was familiar with certain controlled substances from his experience in law enforcement. Based on his experience, he believed the substance seized from Smith’s vehicle “appear[ed] to be marijuana.” But he admitted the substance had not been chemically tested to verify it was marijuana.
¶ 26. Following Officer Taylor’s testimony, the trial court ruled the evidence concerning the green-leafy substance was admissible, finding:
[T]he witness ... can give testimony as to any and all items that he observed .... [T]he defendant will be allowed to cross-examine him as to what he collected and observed. So the green leafy substance, the witness can give testimony in his opinion what he believes it to be; and, likewise the defendant can cross-examine him regarding that opinion.
While the State and defense both cited Rule 404(b), the judge did not mention Rule 404(b) in his ruling. Officer Taylor then testified in the jury’s presence that he had seized “five packs of green vegetable material” from Smith’s vehicle. He testified the substance “appear[ed] to be marijuana.” The record reveals the physical substance was admitted into evidence. On cross-examination, Officer Taylor admitted he was unsure whether Smith had been
¶ 27. Our supreme court has held that “[p]roof of another crime is admissible ... where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged[.]” Mack v. State,
¶ 28. Here, the State’s proffered reason for admission of the drug evidence was to show Smith’s motive for committing the robbery. But the trial judge apparently failed to recognize the nature of the State’s request and did not perform the two-prong 404(b) inquiry. And inexplicably, after the evidence was admitted, the State apparently abandoned this theory. Instead, both sides haggled over whether the substance was indeed marijuana. The State presented no evidence that Smith robbed the gas station for money to purchase drugs, nor did it even mention this purported motive to the jury during closing arguments.
¶ 29. Smith relies on the supreme court’s reversal of a drug-distribution conviction in Spraggins v. State,
¶ 30. We find the facts here more akin to those confronted by our supreme court in Waits. In Watts, the supreme court found error in a trial court’s admission of evidence that the defendant used money stolen from a homicide victim to purchase crack cocaine. Watts,
¶ 31. We are faced with a similar predicament. We cannot speculate that Smith’s motive for committing robbery was to finance drug activity, where the State offered no proof showing that to be the case. Therefore, we conclude the trial judge erred in admitting evidence concerning the green-leafy substance seized from Smith’s Yukon. Because we find error in the admission of the substance, we need not address Smith’s Rule 901 argument. But our inquiry does not end here. Like the supreme court in Watts, we must also consider whether the admission of drug evidence affected a substantial right requiring reversal, or if in light of overwhelming evidence of Smith’s guilt, it may be deemed harmless error. See also Webster v. State,
¶ 32. The supreme court has refused to reverse based on an improper admission under Rule 404(b) “[w]here the prejudice from [the] erroneous admission ... dims in comparison to other overwhelming evidence[.]” Carter,
¶ 33. Here, the store clerk, Gordon, unequivocally identified Smith as the armed robber. She testified, consistent with her police statement, that she had seen the armed robber leave in a vehicle with a personalized license plate, reading “TY ROSE.” Gordon also identified Smith from a photo lineup. Though Smith denied he had robbed the gas station, which he claimed he had never visited, he admitted he is sometimes called “Ty.” And more importantly, he admitted the Yukon bearing the personalized plate that Gordon had described was his. Further, when authorities arrived at his home, Smith barricaded himself inside and refused to come out. Jurors heard evidence that a SWAT team engaged in a three-hour standoff to remove him. Officers also recovered Black & Mild cigars from his vehicle — the same brand of cigars Gordon testified Smith had stolen from the convenience store.
¶ 34. Considering similar erroneous admissions of other-acts evidence, the supreme court has found harmless error in an improper Rule 404(b) admission. Carter,
¶ 35. Smith, an African American male, alleges the State violated Batson v. Kentucky,
¶ 36. The record reveals both sides made Batson objections during voir dire. The State first raised a so-called “reverse Batson challenge,” alleging the defense had struck Caucasian venire members solely based on their race. The trial judge found the State had not yet shown the defense had excluded white venire members in a discriminatory manner. Soon after, defense counsel raised a Batson challenge, pointing to the State’s use of its first seven peremptory challenges to strike black venire members. .The State responded: “We tendered some [African Americans] as well as struck some. There is no race reason with it.” The prosecutor also noted the venire members were predominantly African American; thus, it was “almost impossible not to strike some of the African American jurors.” The trial judge denied the Batson challenge. Later, the State again raised Batson, advising the judge that Smith had stricken every white venire member on the panel. Observing the State had “struck African American jurors as well,” the court denied the State’s reverse-Batson claim.
¶ 37. The Equal Protection Clause of the Fourteenth Amendment forbids the State from exercising peremptory challenges based solely on race. Johnson v. State,
(1) the defendant must make out a pri-ma facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose;
(2) once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible, race-neutral justifications for the strikes; and
(3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination,
Pruitt v. State,
¶ 38. Smith claims the trial court erred in “failing to follow through the Batson process.” In response, the State argues Smith’s Batson claim necessarily fails because all jurors selected were African Americans — the same race as Smith. Although the record does not indicate the racial composition of the jury, Smith does not dispute the State’s allegation that the seated jury was solely comprised of African Americans.
IV. Jury Instruction
¶ 40. Our standard for reviewing jury instructions is well established. A criminal defendant is entitled to jury instructions that present his theory of the case even if the supporting evidence “is weak, inconsistent, or of doubtful credibility.” Banyard v. State,
¶ 41. Smith argues the jury was not properly instructed on his defense of mis-identification. He alleges his proposed jury instruction D-6, which the trial court refused, was a “more complete” instruction than instruction S-3 — the instruction given on eyewitness identification. Instruction S-3 reads:
The burden is on the State to prove beyond a reasonable doubt that the offense was committed and that the defendant was the person who committed it. You have heard the evidence regarding the identification of the defendant as the person who committed the crime. In this connection, you should consider the witness’s opportunity to observe the criminal act and the person committing it, including the length of time the witness had to observe the person committing the crime, the witness’s state of mind, and any other circumstances surrounding the event. You should also consider the witness’s certainty or lack of certainty, the accuracy of any prior description, and the witness’s credibility or lack of credibility, as well as any other factor surrounding the identification. You have heard evidence that pri- or to this trial, the witness, Patricia Gordon, identified the defendant, Antonio Smith, by viewing a photographic spread which contained his photograph.
The identification of the defendant by a single eyewitness, as the person who committed the crime, if believed beyond a reasonable doubt, can be enough evidence to convict the defendant.
It is for you to determine the reliability of any identification and give it the weight you believe it deserves.
Instruction D-6 proposed the following:
The Court instructs the jury that one of the issues in this case is the identification of ANTONIA TYRONE SMITH as the person who committed the crime. The State has the burden of proving identity beyond a reasonable doubt. Identification testimony is an expression of belief or impression by the witness, and its value may depend upon your consideration of several factors. Some of the factors which you may consider are:
1) The witness’s capacity and opportunity to observe the offender. This include[s], among other things, the length of time available for observation, the distance from which the witness observed, the lighting, and whether the person who committed the crime was a prior acquaintance of the witness;
2) The degree of certainty expressed by the witness regarding the identification and the circumstances under which it was made, including whether it is the product of the witness’s own recollection;
3) The occasion, if any, on which the witness failed to make an identification of ANTONIA TYRONE SMITH or made an identification that was inconsistent with the identification at trial; and
4) The occasions, if any, on which the witness made an identification that was consistent with the identification at the trial, and the circumstances surrounding such identification.
The State has the burden of proving every element of the crime charged, and this burden specifically include[s] the identity of ANTONIA TYRONE SMITH as the person who committed the crime for which he is on trial. If after considering the identification testimony in light of all the proof you have a reasonable doubt that ANTONIA TYRONE SMITH is the person who committed the crime, you must find ANTONIA TYRONE SMITH not guilty.
¶ 42. Comparing the two instructions, we do not see any information in the refused instruction D-6 that was not fairly covered by S-3. Both instruct the jury that the State is required to prove identity beyond a reasonable doubt. And each contains a list of factors for assessing whether the State has done so. There is no particular factor in instruction D-6 that is not covered by instruction S-3 or encompassed within one of the factors outlined in S-3. “[T]rial judges are not required to grant repetitious instructions.” Davis v. State,
¶ 43. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS, WITH FIVE YEARS SUSPENDED AND TEN YEARS TO SERVE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
Notes
. We note that defense counsel's failure to immediately specify the ground for the objection did not waive this issue because the ground for the objection is obvious. See M.R.E. 103(a)(1) (stating specific objection only required “if the specific ground was not apparent from the context[.]”); see also Murphy v. State,
. The Doyle rule is not without exception. Doyle itself provided: "[T]he fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest.” Doyle,
. We note that Jordan was vacated on other grounds by Jordan v. Mississippi,