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Swington v. State6/17/1999
where it examines the effect of the admission of the other prior sale in this case with respect to ineffective assistance of counsel, that the prior conviction is sufficient standing alone is directly contrary to our holding in Smith v. State. Maj. Op. ante p. 14. A prior conviction is not sufficient proof of intent standing alone to warrant conviction. Smith v. State, 656 So. 2d at 100-01. I agree with the majority, however, that Reed's testimony and the circumstances under which Swington was found with the substance were sufficient evidence for conviction. More important, given our standard of review, is the question whether the testimony concerning the prior sale was such as to have a significant impact upon the verdict of the jury. In other words, the error was harmless if at all, not because other evidence was sufficient, but because, in light of the other evidence, when compared to the weight and potential for unfair prejudice of the questionable evidence, we can say beyond a reasonable doubt that the use of the questionable evidence did not make a difference. See Clemons v. State, 593 So. 2d 1004, 1006-07 (Miss. 1992); Holmes v. State, 537 So. 2d 882, 884 (Miss. 1988). It follows that counsel was not constitutionally deficient for the failure to have sought a continuance on this account.
. While the failure to follow the guidelines first announced in Box v. State, 437 So. 2d 19-22 (Miss. 1983) (Robertson, J., specially Concurring), may not have been sufficient standing alone, after all, it was only more testimony from the same addicted witness, that transgression together with the handling of the prior conviction leads to the Conclusion that counsel's performance overall was constitutionally defective to the point that we cannot say with confidence that the same result would have obtained but for counsel's ineffectiveness. There were other failings, none of which would lead to reversal individually, but which collectively demonstrate overall ineffectiveness.
. I would reverse this conviction for ineffective assistance of counsel and remand for a new trial. See Stewart v. State, 229 So. 2d 53, 56-57 (Miss. 1969).
SULLIVAN, P.J., AND McRAE, J., JOIN THIS OPINION.
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