author: THOMAS, J., MYERS, J.,

text:
    George C. STODGHILL, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KM-01585-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.
    Rehearing Denied June 15, 2004.

      Julie Ann Epps, Samuel H. Wilkins, Jackson, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. George Stodghill appeals his misdemeanor conviction of first offense driving under the influence by the Amite County Circuit Court. He assigns two points of error by the trial court:

I. STODGHILL’S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY APPLIED THE WRONG STANDARD IN DETERMINING WHETHER OR NOT STODGHILL HAD MET THE REQUIREMENTS OF SHOWING THE DEFENSE OF NECESSITY.

II. STODGHILL’S CONVICTION MUST BE REVERSED BECAUSE, APPLYING THE CORRECT STANDARD ON THE DEFENSE OF NECESSITY, THE EVIDENCE IS INSUFFICIENT TO SUPPORT HIS CONVICTION.

FACTS

¶ 2. In June 2001, George Stodghill and his girlfriend, Carla Kenny, were staying at a country cabin in the woods of Amite County. Stodghill’s adult son and daughter and their respective spouses were also guests at the cabin. In the evening of June 10, the family held an outdoor barbeque during which all of the adults consumed various amounts of alcoholic beverages. Stodghill drank three bourbons before retiring for the night with Kenny at approximately 9:30 p.m.

¶ 3. A few hours later Stodghill awoke to find Kenny violently ill with seizure-like activity. Kenny collapsed and Stodghill instructed his daughter, Hope, to call 911 on the cellular phone but, due to the rural location, the connection was disrupted repeatedly. After making two separate calls, Hope was still uncertain whether the emergency operator had actually been able to ascertain their location. After waiting a while for an ambulance to arrive, Stodghill felt Kenny was too ill to wait any longer and decided to drive her to the hospital for emergency attention.

¶ 4. On the way, Stodghill was stopped by a state trooper for speeding and crossing the center line. The trooper reported smelling alcohol on Stodghill and requested Stodghill submit to a sobriety test. Stodghill refused after explaining the emergency. The trooper refused to allow Stodghill to proceed but did call an ambulance for Kenny. Based upon Stodghill’s refusal to submit to sobriety tests, he was arrested for driving under the influence.

¶ 5. Stodghill elected to proceed to trial and defended upon the ground of necessity. The trial court found Stodghill guilty and imposed a sentence of forty-eight hours in jail and a $1000 fine but suspended both due to the mitigating circumstances. At a hearing on a motion for new trial, the court further explained it found necessity an inadequate defense because Stodghill had failed to exhaust all possible alternatives before driving a vehicle after consuming alcohol.

ANALYSIS

¶ 6. On appeal, Stodghill argues the lower court applied the incorrect legal standard by failing to consider the reasonableness of his actions. The State argues that Stodghill’s interpretation is unacceptable as overly subjective and necessity does not depend upon the defendant’s subjective analysis of the circumstances. Whether or not the lower court applied an incorrect legal standard is a question of law of which we conduct a de novo review. Robertson v. Robertson, 812 So.2d 998, 1000(¶ 4) (Miss.Ct.App.2001).

¶ 7. In finding that Stodghill had failed to meet the requirements of a necessity defense, the court made the following statement:

I think the Court’s finding is essentially to establish the defense of necessity requires a further factual showing than what was made in this case. I find that there were other alternatives that could have been resorted to clearly without that individual knowing that he had consumed an amount of alcohol that he had to personally undertake driving the lady that was sick all the way from his camp to the hospital in MeComb. I think it goes a little further than just the state of the mind of the individual because clearly that would be subject to quite an amount of abuse and some other factors that go into that.

¶ 8. Necessity is a defense which, if applicable, will excuse conduct which would otherwise be criminal in nature. Knight v. State, 601 So.2d 403, 405 (Miss.1992). The defense requires a showing of a reasonable belief of imminent serious danger to one’s self or another from a specific harm. McMillan v. City of Jackson, 701 So.2d 1105, 1107 (¶¶6, 9) (Miss. 1997). In making this determination, three elements must be established by the defendant: (1) the act charged must have been done to prevent a significant evil; (2) there must have been no adequate alternative; and (3) the harm caused must not have been disproportionate to the harm avoided. Id. at (¶ 8).

¶ 9. In making the determination of what Stodghill was required to prove for a necessity defense, the trial court focused only upon the availability of alternatives while expressly rejecting the notion that Stodghill’s reasons for his actions were at all important because they were too subjective and the defense would be subject to abuse. There are two difficulties with this approach. It ignores the requirement of reasonableness, an objective not subjective legal standard that makes no allowances for intoxication. Taylor v. State, 452 So.2d 441, 446 (Miss.1984). Although a defendant may sincerely believe his actions are justified while in an intoxicated state, it is the sober status which determines reasonableness. Necessity will not excuse objectively unreasonable actions. The circumstances must be viewed from the perspective of the defendant and the reasonableness of his actions in response to those circumstances measured by the objective standard. The abuse the trial judge feared due to defendants subjectively rationalizing their criminal actions simply cannot occur.

¶ 10. The second difficulty lies with the basis of the lower court’s determination that Stodghill had alternatives open to him and therefore could not seek shelter in his chosen defense. However, the court never found exactly, or even generally, what alternatives were available and whether or not they were adequate under the circumstances.

¶ 11. In this case, all of the adults had been drinking alcohol, an activity which is legal for persons over the age of twenty-one but nevertheless impaired all those in the house to some degree. Telephoning for assistance was not reliably possible, whether to 911 or some other, presumably wholly sober, individual who could transport Kenny to a hospital. There was no evidence at all that a neighbor actually existed or that there was some intermediate point between the cabin and the hospital where Stodghill could have stopped for assistance.

¶ 12. In theory, Stodghill could have elected to wait longer for an ambulance, despite the lack of surety whether one was on its way. This could classify as an alternative to driving Kenny himself. But the reasonable standard also applies to the adequacy of the alternatives available. Having any alternative no matter how unreasonable under the circumstances does not negate the necessity defense by virtue of its mere existence. Whether or not a viable alternative exists is that familiar standard of how a reasonably prudent man would act under the same set of circumstances.

¶ 13. It would certainly appear that Stodghill met the requirements of the necessity defense. As we understand the trial court’s comments, there does not appear to have been any question of the actual severity of Kenny’s illness. However, given the extremely limited fact-finding made by the lower court, we are hesitant to enter a final decision in this matter. Instead, we remand to the trial court for further findings of fact based upon the existing record and consistent with the legal standards discussed in this opinion.

¶ 14. We wish to clarify that each claim of necessity is to be determined from the unique set of facts of a case. Here, where a sudden violent illness manifests itself in a secluded, rural location, attempts to summon help were fruitless and time was clearly of the essence, Stodghill’s decision to drive after drinking may be excused as necessary. Under other circumstances, it would not, particularly if the results of the decision were to cause significantly more damage than it was intended to remedy.

¶ 15. THE JUDGMENT OF THE AM-ITE COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED TO AMITE COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR. MYERS, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

MYERS, J.,

Dissenting:

¶ 16. The majority finds that the case sub judice requires reversal for two reasons. First, because the trial court applied the incorrect legal standard with respect to the defense of necessity. Second, because the trial court erred in determining that Stodghill had other adequate alternatives. I see no basis for refusing to affirm the trial court’s decision. As a result, I respectfully dissent.

¶ 17. The majority finds the trial court erred in not applying an objective standard of reasonableness. I disagree. At the post-trial hearing, it was Stodghill’s counsel that argued for a subjective legal standard of reasonableness. Only in response to Stodghill’s argument did the trial judge then state the following: “I think it goes a little further than just the state of the mind of the individual because clearly that would be subject to quite an amount of abuse and some other factors that go into that.” I interpret this evidence to mean that the trial court did, in fact, apply an objective standard of reasonableness. In other words, Stodghill argued for a subjective standard of reasonableness which the trial court ultimately rejected.

¶ 18. The majority also finds that the trial court erred in determining that Stodghill had alternatives without finding “exactly, or even generally, what alternatives were available and whether or not they were adequate under the circumstances.” I disagree. The trial court specifically ruled that Stodghill had failed to prove that personally driving Kenny the entire distance from the hunting camp to the hospital was the only adequate alternative. The trial court noted that other alternatives existed that proved to be more reasonable than Stodghill’s decision. In support of this, the court noted that Stodg-hill’s daughter placed a call with 911 and the dispatcher confirmed their location. In addition, Stodghill’s counsel admitted that “objectively there may have been a closer place that [Stodghill] could have taken [Kenny], but the case law says that it’s what [Stodghill] reasonably believes.” I find no error. As a result, I would affirm the trial court’s conviction.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Robert Preston COOPER, III, Appellant, v. Aaron MISSEY, Appellee.
    No. 2003-CA-00080-COA.
    Court of Appeals of Mississippi.
    March 2, 2004.
    Rehearing Denied May 25, 2004.

      Jessica S. Upshaw, Harris Bell Williams, Pascagoula, attorneys for appellant.
    James N. Compton, Biloxi, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Robert Preston Cooper, III brought a personal injury action against Aaron Missey in the Circuit Court of Jackson County, Mississippi. The parties agreed to waive their right to a jury trial and to submit by briefs and oral arguments the disputed issues between the two of them. A hearing was held and the trial court entered an order denying the motion for judgment in favor of Cooper. As a result, Cooper filed a timely notice of appeal requesting our review of the following issues:

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT MISSEY HAD NO DUTY TO RENDER AID TO COOPER UNDER MISSISSIPPI LAW AND EVEN IF A DUTY EXISTED, THAT MISSEY DID NOT BREACH IT
II. WHETHER THE TRIAL COURT ERRED IN NOT INTERPRETING THE INSURANCE POLICY TO ALLOW EACH OF THE THREE OCCASIONS ON WHICH MISSEY MOVED COOPER WITHOUT OBTAINING MEDICAL TREATMENT TO CONSTITUTE A SEPARATE OCCURRENCE UNDER THE POLICY

STATEMENT OF FACTS

¶2. Cooper attended a party at Missey’s parent’s house. Missey’s parents were working overseas at the time. Many people at the party were consuming alcohol and using drugs. Missey did not know Cooper before hand but the two young men met at the party. As the party progressed, Cooper became very intoxicated and passed out on a couch in the living room. At approximately two o’clock in the morning, Cooper awoke and urinated on the living room floor. Another guest notified Missey of Cooper’s behavior. Missey confronted Cooper and punched him in the face. Cooper fell to the floor. Immediately thereafter, a guest named Justin Stark proceeded to stomp on Cooper’s head three times. This rendered Cooper unconscious.

¶ 3. Missey and others immediately moved Cooper out into the front yard of the house. Approximately one hour later, Missey and others moved Cooper from the front yard to the side of the house near a wooded field. Around four o’clock in the morning, Missey and others moved Cooper from the side of the house into Cooper’s truck. Finally, around noon, Missey called for medical assistance.

¶ 4. Stark was charged and convicted for aggravated assault. Missey was charged with the same crime, but ultimately pled guilty to accessory after the fact. In addition, the parties entered into a settlement where Allstate, the insurance carrier for Missey’s family’s homeowner policy, paid Cooper $100,000, without an admission of liability. The policy provided coverage for family liability in the amount of up to $100,000 per occurrence.

¶ 5. Pursuant to the settlement agreement, Cooper brought suit to attempt to recover additional benefits under the Allstate policy if Missey was found to be negligent and if each move of Cooper was deemed a separate occurrence under the policy. The parties agreed that if Cooper proved that Missey owed a duty to obtain medical treatment and breached that duty, then the elements of causation and damage were admitted. The parties also agreed to waive their respective rights to a jury trial.

¶ 6. The trial court found that: (1) Mis-sey had no duty to render aid to Cooper under Mississippi law; (2) even if a duty existed, Missey did not breach it; and (3) even if Missey breached a duty, the breach would constitute one “occurrence” under the policy terms so that Allstate has paid its full obligation in settlement of Cooper’s claim. Aggrieved by this result, Cooper perfected the present appeal.

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT MISSEY HAD NO DUTY TO RENDER AID TO COOPER UNDER MISSISSIPPI LAW AND EVEN IF A DUTY EXISTED, THAT MISSEY DID NOT BREACH IT.

¶ 7. Cooper argues that Missey owed him a duty to obtain medical treatment which he breached on three separate occasions. In support of this argument, Cooper directs our attention to the common law, the Allstate policy itself, and the Restatement of Torts, Second. Missey argues that there is no duty for a social host to render medical aid to a licensee guest under Mississippi law. In' addition, Missey argues that Cooper has failed to challenge any of the trial court’s factual findings.

¶ 8. The appropriate standard of review on a question of fact requires us to affirm the decision of a trial court sitting without a jury and based upon substantial evidence unless that decision is manifestly wrong. Pride Oil Co., Inc. v. Tommy Brooks Oil Co., 761 So.2d 187, 193 (¶ 18) (Miss.2000). In order for Cooper to prevail on his claim, he must prove by a preponderance of the evidence the elements of duty, breach, causation, and damages. May v. V.F.W. Post No. 2589, 577 So.2d 372, 375 (Miss.1991). Since the parties have stipulated the two final elements, we need only address the elements of duty and breach.

A. Duty

¶ 9. The trial judge ruled that Cooper was a licensee despite the fact that he was not specifically invited. As a licensee, Mis-sey owed Cooper a duty to refrain from willfully or wantonly injuring him. Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011 (Miss.1978). The trial court found no evidence that Missey had willfully or wantonly injured Cooper. Instead, the claim before the trial court was that “Missey failed to render aid when he knew or should have known that Cooper needed medical attention.”

¶ 10. Cooper asks this Court to not limit its focus of whether a duty existed solely on the concepts of invitee, licensee, and trespasser because this case does not arise from a condition on the premise. However, the Mississippi Supreme Court has consistently held that the duty owed to an entrant of property is determined by his status under the common law system. Little by Little v. Bell, 719 So.2d 757, 760 (¶ 14) (Miss.1998).

¶ 11. Cooper relies on two Mississippi cases in support of his claim that Missey owed him a duty to render aid. Dyche v. Vicksburg S. & P.R. Co., 79 Miss. 361, 30 So. 711 (Miss.1901); Chadwick v. Bush, 174 Miss. 75, 163 So. 823 (Miss.1935). In Dyche, a man was severely injured by a caboose owned by the defendant railroad. Dyche entered the caboose when it was still disconnected from the engine. Dyche got off the caboose and stepped behind it to “answer a call of nature.” At this time a kicking switch was engaged and several cars rolled down the track striking the caboose. The caboose ran over Dyche and crushed his leg. The defendant railroad company transported Dyche to an employee doctor. Dyche was then transported to a hospital in Vicksburg. However, the entire trip took approximately thirteen hours despite the short distance. The trial court ruled that the defendant was not liable for Dyche’s injuries but the Mississippi Supreme Court reversed. The supreme court found that while the defendant was not liable for the initial injury it ultimately became liable because the railroad company assumed charge of Dyche’s treatment. In the case sub judice, Missey never undertook the treatment of Cooper. Instead, Missey moved Cooper three times for reasons other than to provide care.

¶ 12. Chadwick dealt with an automobile accident where a wide-body truck did not have lights to warn traffic of its size. The Mississippi Supreme Court held that no specific statute was necessary to impose a duty to use care in driving an automobile. While we agree with the statement of law announced in Chadwick, we find Cooper’s reliance on it misplaced. Chadwick in no way supports the notion that a social host has a duty to render aid to a guest.

¶ 13. We find neither of these cases to be on point with the instant case, and neither establish a duty to render aid under Mississippi law. Similarly, there is no Mississippi statute that establishes such a duty.

¶ 14. Likewise, we find no support in the policy itself that imposes a duty on the insured to obtain emergency medical treatment for someone seriously injured on the homeowner’s premises. The policy in question states that Allstate “will pay reasonable expenses incurred by an insured person for first aid to other persons at the time of an accident involving bodily injury covered under this policy.” This language does not create a duty. Instead, it merely provides for reimbursement.

¶ 15. Finally, Cooper directs our attention to Sections 314A, 322, and 324 of the Restatement of Torts, Second. Section 314A notes that in special relationships a duty to aid or protect arises. Cooper argues that a special relationship existed between Missey and himself for two reasons. First, because Missey was a possessor of land who held it open to members of the public who entered in response to his invitation. Second, because Missey voluntarily took custody of Cooper under circumstances such as to deprive Cooper of his normal opportunities for protection.

¶ 16. Mississippi has not adopted this section of the Restatement as authority. In addition, the special relationships required to trigger such a duty are not present in the instant case. Section 314A(3) deals with a possessor of land who holds his property out to the public for commercial purposes. Missey had a social party at his parents’ house. Section 314A(4) is also inapplicable because Missey never undertook the custody of Cooper. Unlike Dyche, Missey never assumed the medical care of Cooper.

¶ 17. Section 322 refers to the duty to aid one harmed by the actor’s conduct, who is then helpless and subject to further harm. Like Section 314A, this section has not been adopted in Mississippi and is also inapplicable. Stark is the one who rendered Cooper helpless. Moreover, it was not obvious that action needed to be taken to prevent future harm.

¶ 18. Section 324 states that one who, being under no duty to do so, takes charge of another who is helpless can be liable if he fails to secure the safety of that person or discontinues his aid or protection thereby leaving the other in a worse position. As noted above, Missey never undertook charge of Cooper. Missey never moved Cooper for medical reasons. This section is inapplicable as well. As a result, we hold that the trial judge was not manifestly wrong in finding no duty on Missey’s part.

B. Breach

¶ 19. Assuming arguendo, that Mississippi had adopted a duty to render aid, the trial court nonetheless found that Cooper had failed to prove by a preponderance of the evidence that Missey knew or should have known that Cooper was in need of medical assistance, as is required for the imposition of such a duty. The trial court ruled in this manner because the evidence presented regarding this issue was decidedly conflicting. Two young women present at the party testified that it was obvious that Cooper needed medical attention. However, one of those young women later gave conflicting testimony as to exactly when Cooper’s appearance changed from the stomping.

¶ 20. Missey, Stark, and another guest testified that they did not know that Cooper needed medical attention, but instead thought he was unconscious from a combination of alcohol and drug use along with the stomping. This testimony gives credibility to the statements made by guests who testified that they believed that Cooper’s unconscious state after the incident was more a need to sleep off his excesses, rather than a need for immediate medical attention. In addition, no one else at the party called for medical assistance and the appearance of swelling and bruising occurred only after the passage of time.

¶ 21. From this evidence, the trial court found that Cooper was unable to prove by a preponderance of evidence that medical treatment was needed at the time of the stomping or shortly thereafter. Assuming Cooper’s injuries were obvious at the time he was placed in his truck, Allstate has already compensated Cooper for one occurrence. As a result, we hold that the trial judge was not manifestly wrong in finding no breach on Missey’s part.

II. WHETHER THE TRIAL COURT ERRED IN NOT INTERPRETING THE INSURANCE POLICY TO ALLOW EACH OF THE THREE OCCASIONS ON WHICH MISSEY MOVED COOPER WITHOUT OBTAINING MEDICAL TREATMENT TO CONSTITUTE A SEPARATE OCCURRENCE UNDER THE POLICY

¶ 22. Cooper argues the trial court erred in not interpreting the policy to allow for separate occurrences. Cooper argues that the Allstate policy in question is ambiguous. As a result, Cooper argues it should be interpreted in favor of coverage. Missey argues that the policy is not ambiguous. Missey further argues that a failure to render aid, even if actionable in Mississippi, is a continuous failure.

¶ 23. The trial court found the issue of ambiguity to be moot in light of finding no duty and no breach. However, the trial judge’s order states that “even if the language is ambiguous so that it could arguably allow for the finding of more than one occurrence for a single condition, the [cjourt finds that such an interpretation is unwarranted in the instant case.” The trial judge stated that since the alleged negligence is a failure to render aid that, even if actionable, this repeated failure constituted only one occurrence because it was a “continuous and repeated exposure to the same general conditions.” This is exactly how occurrence is defined in the Allstate policy.

¶ 24. Cooper cites two Mississippi cases that support a finding of multiple occurrences. Crum v. Johnson, 809 So.2d 663 (Miss.2002); Universal Underwriters Ins. Co. v. Ford, 734 So.2d 173 (Miss.1999). In Crum, two women were attacked by two dogs owned by Johnson. Crum was bitten by both dogs. The other lady was only bitten by one dog. The Johnson’s homeowner’s policy defined occurrence the same way it is defined in the Allstate policy. The supreme court found that each woman injured by each dog constituted a separate occurrence.

¶ 25. Ford involved an employee who embezzled money from her employer on 175 different occasions. The issue was whether the 175 different embezzlements constituted one occurrence or 175 occurrences under the insurance policy. The Ford court looked to Business Interiors, Inc. v. Aetna Cas. & Sur. Co., 751 F.2d 361 (10th Cir.1984), which held that an occurrence was determined by the cause or causes of the resulting injury. Ford, 734 So.2d at 177 (¶ 20). Ford elaborated on Business Interiors, Inc. by holding that “a factual issue of whether multiple acts are sufficiently related to constitute one occurrence of loss only arises where the applicable policy language unambiguously states that multiple acts may be so treated.” Id. at (¶ 21). Since the policy did not unambiguously state that multiple injuries may not result in multiple occurrences, the Ford court found the policy to be ambiguous and held that each act of embezzlement constituted a separate occurrence.

¶26. Despite the similarities, we find Crum and Ford distinguishable from the instant case. In Crum, the two injured women argued that each person injured by each dog was a separate occurrence. In the instant case, we have only one person. In Ford, there were multiple criminal acts of embezzlement. In the instant case, the alleged negligence is a failure to render aid or a delay in seeking medical attention. Unlike Crum and Ford, there are no multiple acts in the instant case. In other words, Cooper is not arguing that Missey was negligent in physically moving him from the house to three different locations around the property. Instead, Cooper is merely arguing that Missey was negligent in not seeking immediate medical assistance or that each delay or omission constituted a separate occurrence.

¶ 27. Even if we assume that Cooper’s condition was such that Missey knew or should have known that Cooper needed medical assistance, that knowledge and the resulting failure to seek medical assistance continued unbroken until the time that Missey ultimately called for an ambulance. As Missey suggests, there is no evidence that would break the chain of negligence once Cooper’s condition rose to a level that demanded medical assistance. If we follow Cooper’s argument, every minute could constitute a separate occurrence under the policy.

¶ 28. More importantly, the settlement agreement requires that Missey must be negligent and that each move constitute a separate occurrence in order for Cooper to recover additional proceeds under the policy. Since we hold the trial judge was not manifestly wrong in finding no negligent conduct on Missey’s part, a finding of separate occurrences would not in and of itself entitle Cooper to an additional award. As a result, we agree with the trial judge’s ruling that the three separate times Cooper was moved constituted only one occurrence under the Allstate policy.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: CHANDLER, J.,

text:
    Eric Shautey McDONALD a/k/a Eric Wash, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-02051-COA.
    Court of Appeals of Mississippi.
    May 4, 2004.
    Rehearing Denied Aug. 24, 2004.

      James A. Williams, Meridian, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Eric McDonald was convicted of armed robbery and sentenced to thirty years in the custody of the Mississippi Department of Corrections. Feeling aggrieved, McDonald appeals citing numerous errors. We identify the following issues in his appeal, although stated differently than stated in his brief.

I. WHETHER THE TRIAL JUDGE MADE IMPROPER COMMENTS DURING TRIAL.

II. WHETHER THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED THE DEFENDANT’S MOTION FOR A MISTRIAL.

III. WHETHER THE TRIAL COURT ERRED IN ADMITTING CERTAIN ITEMS INTO EVIDENCE.

IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO ASK THE JURY IF ANYONE HAD DISCUSSED THE CASE AT THE BEGINNING OF THE SECOND DAY OF TRIAL.

V. WHETHER THE TRIAL COURT ERRED IN REQUIRING THE JURY TO CONTINUE TO DELIBERATE.

VI. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT’S MOTION FOR A DIRECTED VERDICT.

VII. WHETHER THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH REGARD TO THE ELEMENTS CONTAINED IN MCDONALD’S INDICTMENT AND WHETHER THE JURY WAS PROPERLY INSTRUCTED CONCERNING ACCOMPLICE TESTIMONY.

VIII. WHETHER THE STATE PROVIDED SUFFICIENT EVIDENCE TO PROVE THE ARMED ROBBERY WAS COMMITTED WITH VIOLENCE.

IX. WHETHER THE JURY VERDICT WAS AGAINST THE ■ OVERWHELMING WEIGHT OF THE EVIDENCE AND WHETHER THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S MOTION FOR A NEW TRIAL.

X. WHETHER THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶2. Finding no merit, we affirm the ruling of the trial court.

FACTS

¶ 3. On March 23, 2002, Eric McDonald and Donnie Lard drove to a Texaco store in Scooba, Mississippi. McDonald entered the store and found three employees at work. After purchasing some gum, McDonald returned to the car and waited for the customers to leave the store. McDonald then re-entered the store with a sawed-off shotgun and demanded all of the money in the cash register. The cashier, Megan Grace, complied with McDonald’s command and gave him the money.

¶ 4. Jennie Huett arrived at the Texaco store as McDonald was exiting the store. Huett identified the suspect as being an African American male. She described the getaway car as being a late 1980 model Buick that was red or burgundy in color. At the time of the crime, Lard owned a burgundy colored 1990 Buick LeSabre.

¶ 5. Officer William Powell of the Scooba Police Department retrieved a surveillance video of the robbery and took a statement from each clerk. The store clerks identified the robber as an African American male wearing a black shirt with a red logo on it. The clerks stated the suspect was approximately five feet nine inches tall and weighed one hundred sixty pounds.

¶ 6. Following the crime, Lard was arrested on a separate charge. While in custody, Lard confessed to driving the getaway car in the Texaco store robbery. Lard also implicated McDonald as an accomplice in the robbery.

¶ 7. Faye Powell, Police Chief of the Scooba Police Department, went to the house of McDonald’s grandmother to search for evidence that might link McDonald to the crime. Chief Powell, after receiving permission to search the house, discovered a shirt that was identical to the one worn by the person seen in the surveillance video committing the robbery. McDonald’s mother also provided the police with a picture of her son. This picture depicted McDonald wearing the same shirt that the robber was wearing in the surveillance video.

¶ 8. McDonald surrendered to the police after learning that a warrant was issued for his arrest. The police noticed that McDonald was wearing shoes that matched the ones worn by the robber in the surveillance video. The police seized the shoes and placed McDonald under arrest.

¶ 9. The store clerks were shown a lineup of possible suspects. Each clerk identified McDonald as the person who robbed the store. McDonald wrote a letter to Lard while in custody awaiting trial and urged Lard to refuse to give a statement to the police. Lard replied by asking McDonald to confess to the crime because the police had arrested Richard Naylor believing that he was the robber. Naylor and McDonald have very similar facial features. Naylor was never charged with the Texaco robbery and was subsequently released.

¶ 10. McDonald’s trial began on October 29, 2002. Each store clerk testified and identified McDonald as the person who robbed the store. The surveillance tape was placed into evidence as were McDonald’s shirt and shoes which were compared to the items worn by the robber in the video. Lard testified that McDonald committed the robbery.

¶ 11. The jury found McDonald guilty of armed robbery on October 30, 2002. McDonald’s motion for a new trial and his motion for judgment notwithstanding the verdict were denied.

LAW AND ANALYSIS

I. WHETHER THE TRIAL JUDGE MADE IMPROPER COMMENTS DURING TRIAL.

¶ 12. McDonald alleges the trial judge made the following improper comments in front of the jury which were prejudicial to McDonald.

A. Admonishing the jury to refrain from discussing the facts of the case.

¶ 13. McDonald argues the trial judge erred in telling the jury not to discuss the facts of the case after voir dire. McDonald asserts that by describing evidence presented in voir dire as facts, the court communicated to the jury that the judge knew and had already decided what the facts were.

¶ 14. The standard of review in examining the conduct of voir dire is abuse of discretion. Berry v. State, 575 So.2d 1, 9 (Miss.1990) (citing Billiot v. State, 454 So.2d 445, 457 (Miss.1984)). Abuse of discretion will only be found where a defendant shows clear prejudice resulting from undue lack of constraint on the prosecution or undue constraint of the defense. Davis v. State, 684 So.2d 643, 652 (Miss.1996).

¶ 15. There was no contemporaneous objection made to the judge’s statement to the jury. Failure to object to the argument at trial is fatal to McDonald’s attempt to appeal this issue. Mack v. State, 650 So.2d 1289, 1320 (Miss.1994). Notwithstanding the procedural bar, McDonald fails to meet the necessary burden of proof to make his claim. “[Tjhere is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate this reversible error to this court.” Branch v. State, 347 So.2d 957, 958 (Miss.1977).

¶ 16. The trial judge was well within his discretion in telling the jury not to discuss the facts of the case after voir dire. In fact, this instruction properly insured the sanctity of the jury process. This prevented the prospective jurors from discussing the case among themselves pri- or to the time for their deliberation.

B. Commenting on the letter exchanged between Lard and McDonald.

¶ 17. McDonald argues the trial judge erred when he described the letter McDonald sent to Lard as a statement against interest. By describing the letter to the jury as a statement against interest, McDonald argues the trial judge imposed his own interpretation of the letter between McDonald and Lard, thereby-thwarting McDonald’s attempt to explain the true meaning of the letter.

¶ 18. At trial, the State questioned Lard concerning a handwritten letter that he and McDonald had exchanged in jail. McDonald objected to the letter as hearsay. The trial judge ruled that the letter was a statement against interest and was admissible as an exception to the hearsay rule. M.R.E. 801(d)(2). “Trial judges may explain their rulings on evidentiary objections as long as they do not comment upon the evidence in a prejudicial manner.” Wells v. State, 698 So.2d 497, 510 (Miss.1997). The comment did not prejudice McDonald’s defense.

C. Lard’s guilty plea.

¶ 19. McDonald argues that the trial judge made improper comments concerning Lard’s guilty plea. McDonald’s counsel questioned whether Lard’s guilty plea would be withdrawn if he failed to name McDonald as the robber. The trial judge noted on the record several times that Lard had already been adjudicated guilty. McDonald asserts the statements warrant reversal for the same reason that telling a jury a co-defendant was previously convicted by a jury is reversible error.

¶ 20. The Mississippi Supreme Court has held that it is improper to introduce an accomplice’s conviction of the same crime for which the defendant is being tried. See, e.g., Johns v. State, 592 So.2d 86, 89 (Miss.1991); Henderson v. State, 403 So.2d 139, 141 (Miss.1981). These cases stood for the proposition that:

where two or more persons are jointly indicted for the same offense but are separately tried, a judgment of conviction against one of them is not competent evidence on the trial of the other because such plea of guilty or conviction is no evidence of the guilt of the party being tried.

Johns v. State, 592 So.2d 86, 90 (Miss.1991) (quoting Buckley v. State, 223 So.2d 524, 528 (Miss.1969)).

¶ 21. However, the court in White v. State, 616 So.2d 304, 308 (Miss.1993) held that although it was error to admit evidence of a guilty plea of an alleged co-conspirator, it was not reversible error. The court, in White, distinguished Johns because a plea of guilty is not synonymous with a conviction by a separate tribunal, holding that:

[W]e are dealing with a plea of guilty in the instant case; that is, a prior admission of guilt, which is consistent with the testimony at trial. This is a significant distinction because prior statements have evidentiary value different from prior findings of other tribunals. Moreover, whether an error in admitting this evidence is sufficiently prejudicial to warrant reversal may be resolved differently where the offending evidence is no more than a repetition of what is said by the witness before a jury and subject to cross examination, as opposed to evidence of the collective judgment of another jury. ...

White, 616 So.2d at 307. See also Henderson v. State, 732 So.2d 211, 215 (Miss.1999).

¶ 22. On cross-examination Lard was questioned extensively about the nature of any sentencing arrangement he was receiving from the State. Even without Lard’s testimony about any previous guilty plea, he made a detailed, in-court confession of his guilt. When Lard testified that he had previously pleaded guilty to the armed robbery with which McDonald was charged, he added nothing to his otherwise competent testimony. Under these circumstances, the judge’s comments concerning adjudication cannot be deemed error sufficient to warrant reversal.

D. Authenticating the videotape.

¶ 23. McDonald alleges the trial judge erred in allowing the store clerks to jointly authenticate the surveillance videotape before testifying. McDonald argues the actions of the judge revealed to the jury that the judge was partisan against McDonald at trial.

¶ 24. Mississippi Rules of Evidence 901 requires that a document must be authenticated prior to its admission into evidence. In Johnston v. State, 567 So.2d 237, 238 (Miss.1990), our supreme court stated:

The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused. Hentz v. State, 542 So.2d 914, 917 (Miss.1989). The discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence. Under M.R.E. 901, authentication and identification are conditions precedent to admissibility. Generally these serve simply to establish that a matter is what it is claimed to be.

¶ 25. In our review of the record, we note that the trial court, for the purpose of efficiency and trial management, allowed the three witnesses to jointly authenticate a surveillance video. The jury was not present in the courtroom during this procedure. We do not interpret the judge’s action as an act of partiality or a deliberate attempt to coach the witnesses or improperly refresh the witnesses’ memory before they were to testify. All three witnesses were present when the robbery was committed and had individually identified McDonald as the culprit in a photographic lineup. The record does not reflect that McDonald objected to the authentication procedure; therefore, he is procedurally barred from raising this issue on appeal. Mack, 650 So.2d at 1320. This assignment of error is without merit.

E. Trial judge’s comment to rephrase a question.

¶ 26. McDonald also argues the trial judge erred when he asked the State to rephrase a question presented to Lard. McDonald made no objection at trial so he is procedurally barred from raising the issue. Mack, 650 So.2d at 1320. Aside from the procedural bar, we find that the statements by the trial judge were within his discretion and a proper method of managing the trial. The issue regarding comments by the trial judge is without merit.

II. WHETHER THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED THE DEFENDANT’S MOTION FOR A MISTRIAL.

¶ 27. McDonald argues a mistrial was warranted after juror forty-four revealed in voir dire that McDonald was incarcerated in the Lauderdale County Jail. McDonald asserts the trial judge should have questioned the panel as to whether they could disregard the juror’s remark and decide the case on the evidence.

¶ 28. The standard of review for a trial court’s decision regarding whether to grant a mistrial is abuse of discretion. Caston v. State, 823 So.2d 473, 492 (Miss.2002). The Uniform Circuit and County Court Rule 3.12 concerning mistrials states:

Upon motion of any party, the court may declare a mistrial if there occurs during the trial, either inside or outside the courtroom, misconduct by the party, the party’s attorneys, or someone acting at the behest of the party or the party’s attorney, resulting in substantial and irreparable prejudice to the movant’s case.
Upon motion of a party or its own motion, the court may declare a mistrial if:
1. The trial cannot proceed in conformity with law; or
2. It appears there is no reasonable probability of the jury’s agreement

¶ 29. In the case sub judice, the trial judge found no prejudice because it would be obvious to any potential juror that McDonald had been arrested. It would also be reasonable for a juror to assume McDonald would have been incarcerated in a jail at some point. This assignment of error is without merit.

III. WHETHER THE TRIAL COURT ERRED IN ADMITTING CERTAIN ITEMS INTO EVIDENCE.

¶ 80. McDonald alleges three assignments of error by the trial judge in admitting items into evidence. The trial court’s admission of evidence will not be disturbed absent an abuse of discretion. Rambus v. State, 804 So.2d 1052, 1059 (¶20) (Miss.Ct. App.2001).

¶ 31. McDonald argues the trial judge erred in admitting Chief Powell’s testimony concerning the ownership of a shirt found at the house of McDonald’s grandmother. He alleges Chief Powell lacked personal knowledge and is merely speculating as to the ownership of the shirt.

¶ 32. McDonald also alleges it was error to admit a photograph that showed McDonald wearing a shirt like the one the robber wore on the surveillance video.

¶ 33. The record does not reflect that McDonald objected to the testimony of Chief Powell or the admission of the photograph. McDonald failed to raise the issue in the trial court; therefore, he is procedurally barred from raising these issues on appeal. Mack, 650 So.2d at 1320.

¶ 34. McDonald also argues the trial judge erred in admitting a letter that he exchanged with Lard. The trial judge ruled the note was a statement against interest. McDonald argues the letter bolstered Lard’s testimony. As previously discussed, the letter was admissible and the trial judge did not abuse his discretion. This assignment of error is without merit.

IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO ASK THE JURY IF ANYONE HAD DISCUSSED THE CASE AT THE BEGINNING OF THE SECOND DAY OF TRIAL.

¶ 35. McDonald argues the trial judge erred when he failed to inquire on the second day of trial whether any juror had discussed the case or seen accounts in the media.

¶ 36. The trial judge admonished the jury not to discuss the case with anyone following the conclusion of the first day of trial. The trial judge also told the jury not to read newspapers or look at any media broadcasts related to the trial. But there is no evidence in the record to indicate the judge asked the jury whether anyone had violated his instructions.

¶ 37. The jury is presumed to follow the judge’s admonitions. Walker v. State, 671 So.2d 581, 618 (Miss.1995). There is nothing to indicate the jury did not comply with the judge’s admonitions in this case.

¶ 38. McDonald has done nothing to overcome the presumption that the jury did as instructed. This assignment of error is without merit.

V.WHETHER THE TRIAL COURT ERRED IN REQUIRING THE JURY TO CONTINUE TO DELIBERATE.

¶ 39. McDonald argues the trial court erred when it required the jury to keep deliberating without giving a Sharp-lin instruction to the jury. When the jury returned from deliberating, the verdict had been reached but was not in proper form. The judge told the jury to return to the jury room and amend the verdict so it would comply with the jury instructions.

¶ 40. Approximately six minutes later, the jury returned and presented the judge with a verdict. While the judge was polling the jury, one juror indicated it was not his verdict and the judge instructed the jury to return to the jury room to continue the deliberations. After deliberating thirty minutes, the jury returned a unanimous verdict of guilty.

¶ 41. “It is within the sound discretion of the trial judge as to how long he will keep the jury in deliberation, and this discretion will not be reviewed on appeal unless there has been a clear abuse of discretion.” Dixon v. State, 306 So.2d 302, 304 (Miss.1975) (quoting Gordon v. State, 149 So.2d 475, 477 (Miss.1963)). If a trial judge believes there is a possibility that a jury might reach a verdict, he may return the jury for further deliberations by simply instructing the jury to continue its deliberations or he may give the Sharplin instruction. Brantley v. State, 610 So.2d 1139, 1142 (Miss.1992).

¶ 42. McDonald’s alternative argument of ineffective assistance of counsel due to counsel’s failure to require verbal assent by all jurors and to object to continued jury deliberations is also without merit. The jury deliberated for three hours and ten minutes. None of the jurors expressed a desire to recess deliberations at any time. We find that the trial judge acted within his judicial discretion in instructing the jury to continue its deliberations and there was no basis for objection by counsel.

VI. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT’S MOTION FOR A DIRECTED VERDICT.

¶43. Motions for directed verdict and motions for JNOV are for the purpose of challenging the legal sufficiency of the evidence. Noe v. State, 616 So.2d 298, 302 (Miss.1993); Strong v. State, 600 So.2d 199, 201 (Miss.1992). In reviewing the sufficiency of the evidence questions, the court is required to view the evidence in the light favorable to the State, giving it the benefit of all reasonable inferences which may be drawn from the evidence, and accepting as true that evidence which supports guilt. McClain v. State, 625 So.2d 774, 778 (Miss.1993). It must not weigh the evidence or its credibility as that is the province of the jury. Id. The court may only reverse if the evidence is such that fair-minded jurors could only find the defendant not guilty. Id.

¶ 44. There was substantial evidence proving all elements of the crime. The circuit court correctly denied the motion for a directed verdict. McDonald’s argument is without merit.

VII. WHETHER THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH REGARD TO THE ELEMENTS CONTAINED IN MCDONALD’S INDICTMENT AND WHETHER THE JURY WAS PROPERLY INSTRUCTED CONCERNING ACCOMPLICE TESTIMONY.

¶ 45. McDonald alleges that jury instruction C-8 failed to track the indictment. The indictment in relevant part reads:

Eric Shautey McDonald ... in said county and state on or about the twenty-third day of March, A.D., 2002 did wil-fully, unlawfully and feloniously take the personal property of BURNS & BURNS DBA BURNS & BURNS TEXACO, SCOOBA, MISS., consisting of seven hundred three dollars (703.00) in good and lawful currency of the United States, from the persons and presence of Latasha Jones, Megan Grace, and Barbara Boyd, against the persons’ will, by violence to said persons by the exhibition of a deadly weapon, to wit: a sawed-off shotgun, putting the said employees in fear of immediate* injury to said person.

Jury instruction C-8, in its relevant part reads:

The Court instructs the jury that you should find from the evidence in this case, beyond a reasonable doubt:
1. On or about the twenty-third day of March, 2002 in Kemper County, Mississippi;
2. The Defendant, Eric McDonald, acting alone or with another, did willfully and unlawfully take the personal property of Burns and Burns Texaco in Scooba, from the person or presence of Megan Grace, Barbara Boyd and Latasha Jones from their persons or presence and against their will, by violence to then-person or by putting such person in fear of immediate injury to their person;
3. By the exhibition of a deadly weapon.

¶ 46. At the close of the trial, the State and McDonald submitted jury instructions to the trial court. McDonald’s counsel objected to the State’s jury instruction S-l for failure to contain language that the robbery was committed by violence. The trial court sustained the objection. After S-l was rejected, the court drafted C-8 to which McDonald renewed his objection arguing that it failed to follow the indictment.

¶ 47. An instruction which fails to instruct the jury in language that tracks the indictment does not necessarily render it fatally defective. Duplantis v. State, 708 So.2d 1327, 1344 (Miss.1998) (citing Doss v. State, 709 So.2d 369 (Miss.1996)); Berry v. State, 575 So.2d 1, 13 (Miss.1990). The jury instruction at issue properly addresses all material elements of the indictment.

¶ 48. McDonald also argues that an instruction on accomplice testimony was required. Lard was an accomplice to the robbery and he testified at trial claiming McDonald committed the robbery. Because this testimony bolstered the store clerk’s testimony which identified McDonald as the robber, McDonald argues he was entitled to an accomplice instruction.

¶ 49. The granting of a cautionary instruction regarding accomplice testimony is discretionary with the trial court. Wheeler v. State, 560 So.2d 171, 172 (Miss.1990).

¶ 50. McDonald did not request an accomplice instruction. Therefore, he is proeedurally barred from raising this issue for the first time on appeal. Mack, 650 So.2d at 1320. Notwithstanding the procedural bar, Lard’s testimony was corroborated with credible evidence of video images and eyewitness accounts that McDonald was the person who robbed the store. The trial judge did not abuse his discretion by omitting an instruction regarding the accomplice’s testimony. The assignment of error pertaining to jury instructions is without merit.

VIII. WHETHER THE STATE PROVIDED SUFFICIENT EVIDENCE TO PROVE THE ARMED ROBBERY WAS COMMITTED WITH VIOLENCE.

¶ 51. McDonald argues that his indictment for armed robbery alleged violence but none was proven by the State. Mississippi Code Annotated Section 97-3-79 (Supp.2003) provides that armed robbery may be committed by use of a deadly weapon to be proved by violence applied to the person or by exhibition of a deadly weapon. McDonald was identified on video brandishing a weapon in a store clerk’s face and demanding money. This evidence is sufficient to prove all elements of the crime. This assignment of error is without merit.

IX. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S MOTION FOR A NEW TRIAL.

¶ 52. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is well settled. “[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Dudley, 719 So.2d at 182. “This Court does not have the task of reweighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001).

¶ 53. Accepting as true all evidence favorable to the State, there was more than sufficient evidence to support the jury’s findings.

¶ 54. A motion for a new trial also asks the Court to hold that the verdict was contrary to the overwhelming weight of the evidence. Crowley v. State, 791 So.2d 249, 253 (¶ 15) (Miss.Ct.App.2000), citing Lane v. State, 562 So.2d 1235, 1237 (Miss.1990). When a motion for a new trial is made, the court must accept as true all evidence that favors the verdict. Young-blood v. State, 759 So.2d 479, 483 (¶ 17) (Miss.Ct.App.2000) (citing Veal v. State, 585 So.2d 693, 695 (Miss.1991)). The grant or denial of a motion for a new trial rests within the sound discretion of the court. Conners v. State, 822 So.2d 290, 293(¶ 6) (Miss.2001). That discretion should only be used to avoid an unconscionable injustice. Id. Unless the reviewing court upon an examination of that evidence finds it so lacking that to allow the verdict to stand would sanction an unconscionable justice, the motion for a new trial should be denied. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 55. As previously stated, there was substantial evidence to support the conviction. The circuit court did not abuse its discretion in denying these two motions.

X.WHETHER THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 56. McDonald’s remaining assignments of error are ineffective assistance of counsel claims at various points in the proceedings. We review claims of ineffective assistance of counsel based upon a two part inquiry: (1) whether counsel’s performance was deficient; and. (2) whether that deficiency caused prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984). Deficient performance is evaluated by whether counsel’s advice falls outside objective parameters of professional reasonableness. Id. at 687-88. Prejudice is measured by whether the result of the proceedings would have been different but for counsel’s deficiency. Cole v. State, 666 So.2d 767, 775 (Miss.1995).

¶ 57. An appellate court applies “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001).

¶ 58. To avoid a lengthy discussion pertaining to the twenty-five instances of alleged ineffective assistance of counsel to which McDonald alludes, we address collectively all claims of ineffective assistance of counsel. Each instance of claimed ineffective assistance of counsel was analyzed in accordance with Strickland and found to contain no merit.

¶ 59. With respect to McDonald’s specific claim that counsel failed to investigate, McDonald provides no evidence or assertions of what counsel should have investigated or how such an investigation would have impacted his case favorably. A petitioner must allege with specificity and detail the claimed ineffective assistance and how such actions, or inactions, prejudiced him. Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990).

¶ 60. McDonald argues his attorney failed to investigate mitigating evidence in preparation for his case and failed to conduct interviews with witnesses. Although McDonald has made the above assertions, he did not provide a list of witnesses nor did he provide affidavits which set forth the facts and evidence to support the claims. Moore v. State, 676 So.2d 244, 246 (Miss.1996).

¶ 61. With respect to the overall performance of the attorney, “counsel’s failure to file certain motions, call certain witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy.” Cole v. State, 666 So.2d 767, 777 (Miss.1995). There is no evidence that counsel was ineffective in this case because counsel’s tactics and strategy were in all likelihood the best available course to pursue.

¶ 62. Considering the overwhelming evidence of McDonald’s guilt, this Court cannot conclude that McDonald’s trial attorney’s performance as a whole fell below the standard of reasonableness and that the mistakes, if any, were serious enough to erode confidence in the outcome of the trial below. Coleman v. State, 749 So.2d 1003, 1012 (¶ 27) (Miss.1999). This assignment of error is without merit.

¶ 63. THE JUDGMENT OF THE CIRCUIT COURT OF KEMPER COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAY RESTITUTION OF $703 IS AFFIRMED. THIS SENTENCE SHALL RUN CONSECUTIVELY TO SENTENCE IN CAUSE NO. 411-02. COSTS OF THIS APPEAL ARE ASSESSED TO KEM-PER COUNTY.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR.


author: IRVING, J.,

text:
    Fredrick Antwain SMITH a/k/a Fredric Antwain Smith a/k/a Fredrick Smith a/k/a Fredric Smith, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-00256-COA.
    Court of Appeals of Mississippi.
    May 4, 2004.
    Rehearing Denied Sept. 7, 2004.

      John Keith Perry, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. On December 2, 2002, a DeSoto County jury convicted Fredric Atitwain Smith of conspiracy and attempt to commit grand larceny. He was sentenced to two five-year consecutive sentences as an habitual offender in the custody of the Mississippi Department of Corrections. Smith now appeals and asserts that the trial court erred (1) in denying his motion for a JNOV, or in the alternative for a new trial, (2) in allowing lay testimony of the value of automobile rims, and (3) in convicting him of conspiracy to commit grand larceny because the evidence was insufficient to support that charge.

¶ 2. We agree that the evidence was insufficient to support the conspiracy conviction. Therefore, we reverse and render the conspiracy conviction but affirm the attempt to commit grand larceny conviction.

FACTS

¶ 3. On January 24, 2002, Susan Brooks was asleep in her home when she was awakened by a noise outside. Susan looked out the window and observed an individual under her carport jacking up her son’s pickup truck. Shortly thereafter, a car pulled up, and the man jacking up her son’s truck ran and hid behind the house. Later, the man came back out and started jacking up the truck again. Susan opened the door and went outside. The man that she had seen jacking up the truck had left by the time she got the door opened. According to Susan, the man in the car “was slow [sic] leaving.” Susan ran up to the car but then decided that was not a good idea. She then went back into the house, called the police, and provided them with a description of both men.

¶ 4. The police stopped a man walking along the highway matching the description provided by Susan. On the scene, Susan identified the man as Fredrick Smith. When Smith was apprehended, the police found a lug nut in his pocket that fit the rims of the victim’s truck. In a photo line-up, Susan later identified Dwight Smith as the other man seen driving the car.

¶ 5. Smith was indicted for conspiracy and attempted grand larceny. At the conclusion of his trial, he was found guilty of both counts. Thereafter, Smith filed post-trial motions which were denied. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Sufficiency of the Evidence and Denial of Motion for a New Trial

¶ 6. Smith first contends that the trial court erred in denying his motion for a JNOY, or in the alternative, for a new trial. In support of his contention, he makes two arguments: the State failed to establish a valid chain of custody of the lug nut found in his pocket and the trial court erred in allowing Sammy Brooks to give a lay opinion regarding the value of the truck rims which he purchased for his son. Smith specifically claims that the State failed to produce any admissible evidence regarding the value of the rims, that the trial court should not have allowed the jury to hear testimony regarding the lug nut, and that the detective in charge of the evidence should have been presented as a witness to testify to his findings concerning the lug nut. Smith reasons that had the trial court not erred in these rulings, the evidence either would have been insufficient to convict him or so insubstantial that any verdict returned would not have been able to withstand a motion for a new trial.

¶ 7. We consider Smith’s arguments under our familiar standard of review. We are authorized to reverse only when the evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.” McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 8. At trial, David Meredith, an off-duty police officer at the time of the incident, testified that he heard a call come in about a theft in progress and thereafter observed Smith walking alongside the shoulder of the highway. Meredith further testified that after performing a pat-down for weapons, he located a lug nut in Smith’s pocket. Meredith was then shown the lug nut by the prosecutor and asked if it was the lug nut that he had found in Smith’s pocket. Meredith stated that “he believed so,” and that it “looked like it.” The prosecutor then attempted to have the lug nut admitted into evidence. However Smith’s counsel objected, and the trial court, though not specifically sustaining the objection, did not admit the lug nut into evidence. Our review of the record reveals that the State did not attempt to revive the matter. Thus, the lug nut was never admitted into evidence.

¶ 9. We find that Smith’s arguments concerning defects in the chain of custody of the lug nut are simply irrelevant. As stated earlier, the trial judge did not allow the lug nut to be admitted into evidence. However, even if the judge had allowed the lug nut to be admitted into evidence, Smith’s objection would not be well taken. It is well-settled law that “the failure of the prosecution to establish all of the links in the chain of custody implicates the weight to be accorded the evidence by the jury, not its admissibility.” Muscolino v. State, 803 So.2d 1240, 1244(¶ 19) (Miss.Ct.App.2002).

¶ 10. We also find that Smith’s argument — that the trial court erred in allowing Susan’s husband, Sammy, to testify regarding the value of the rims because he did not have a receipt of purchase, nor was he qualified as an expert — is without merit. Although Smith contends that the trial court erred in allowing testimony of the value of the rims, our examination of the record reveals that the witness testified as to the purchase price, not the value of the rims, as Smith argues. Sammy testified that he paid between three and four thousand dollars for the rims, but he did not testify as to their current value. Therefore, we find no error in the admission of Sammy’s testimony, for he was entitled to testify to things within his personal knowledge.

¶ 11. We agree, however, with Smith that the prosecution failed to present any direct evidence as to the value of the rims. However, Sammy testified that he paid between three and four thousand dollars for the rims. Although this was not direct testimony of the value of the rims, we find that it circumstantially provided a basis from which the jury could infer that the rims were worth at least $250 because of the amount of the purchase price. While this is not the strongest evidence that could have been, and should have been presented, we cannot say that no fair-minded juror could find Smith guilty on this evidence or that allowing the verdict to stand will amount to an unconscionable injustice.

(S) Conspiracy to Commit Grand Larceny

¶ 12. Finally, Smith claims that there is insufficient evidence to support his conviction of conspiracy to commit grand larceny based on Susan’s testimony. Smith further contends that the State failed to establish a valid case of conspiracy between him and the driver of the car.

¶ 13. Smith relies on Franklin v. State, 676 So.2d 287 (Miss.1996) to support his claim. In Franklin, Roderick Franklin and Glen Jackson were among a group of five boys who decided to “mess with” an elderly homeless man. Id. at 288. The teenagers threw rocks at and kicked the victim. Shortly thereafter, one of the other three boys in the group left, came back with a gun and shot the victim. Id. All of the boys were convicted of conspiracy to commit murder. Id. Our supreme court, finding that the only evidence of conspiracy in the case was the fact that Franklin and Jackson went with the other boys to • “mess with” the victim, overturned their conviction. Id. at 289. The court found this evidence insufficient and held that there was no evidence of a “union of the minds” between the boy who pulled the trigger and the appellants. Id.

¶ 14. Smith properly advances that for there to be a conspiracy, “there must be a recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purpose.” Id. at 288. “The conspiracy agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators.” Id. Thus, “the existence of a conspiracy, and a defendant’s membership in it, may be proved entirely by circumstantial evidence.” Id.

¶ 15. The State’s theory of the case was that Smith and the driver of the car had engaged in a prior conspiracy to steal the rims. We find, however, an absence of any evidence of a “union of the minds” of Smith and the driver of the car. As stated earlier in this opinion, when the driver of the car pulled in Susan’s driveway, Smith ran and hid behind the house. Clearly if these two parties were acting in concert, Smith would have recognized his co-conspirator. Also, there would have been no reason for Smith to run upon the arrival of his co-conspirator. Further, the evidence is that when Susan came out of the house, Smith had already left on foot. He did not get into the car even though the car was still in Susan’s driveway, pulling away very slowly. Smith was later found, not in the car, but walking along a roadway.

¶ 16. On cross-examination, Susan testified to the following about the driver of the car and Smith:

Q: Did you see the two individuals talking at all?
A: No.
Q: Did you receive any sort of a letter or anything from the individual saying that they had a conversation or anything?
A: No.
Q: Did you see the person who was taking the wheel off of the car approach the other car at all?
A: No.
Q: Did you see him attempt to place anything in that other car at all?
A: No.
Q: Was the trunk of that other car open?
A: I didn’t see the trunk.
Q: Did you see any doors on that other car open at all?
A: No.

¶ 17. Additional evidence of the alleged conspiracy was offered by Susan’s neighbor, Richard Harris. Harris testified that he saw a four-door “blueish green” dark colored car pull into his driveway before proceeding on to the Brooks’s driveway. He stated that he saw the car door open, but did not see anyone get out. Harris further testified that he observed this car as it pulled out of the Brooks’s driveway, passing him as it was leaving the area.

¶ 18. As we have already observed, and as indicated by the above passage, the only connection between Smith and the driver of the car is the fact that when the car pulled into the Brooks’s driveway, Smith ran but later came back and continued to jack up the truck while the car was still in the driveway. Susan was sure that the man who was doing the jacking saw the man in the car. However, there is no evidence that the two men ever talked, that Smith ever approached the driver, or put anything in the car. Although the rims were removed from the truck, no attempt was made to put them into the car that was in the driveway.

¶ 19. We find that the evidence was insufficient to prove that Smith and the driver of the car had entered into a common plan to commit grand larceny. While the appearance of the car in the Brooks’s driveway is somewhat puzzling, a finding, on the evidence presented, that its appearance was due to the furtherance of a conspiracy to steal the rims off of the Brooks’s truck would be an impermissible stretch.

¶ 20. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF COUNT ONE IS REVERSED AND RENDERED, AND THE JUDGMENT OF CONVICTION OF COUNT TWO, ATTEMPT TO COMMIT GRAND LARCENY, AND SENTENCE OF FIVE YEARS, AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND FINE OF $1,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Willie James THOMAS, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CA-01928-COA.
    Court of Appeals of Mississippi.
    June 1, 2004.
    Rehearing Denied Sept. 7, 2004.

      Bobby T. Vance, Batesville, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Willie James Thomas pled guilty to two counts of sale of cocaine. He filed a motion for post-conviction relief (PCR), arguing (1) that the plea was involuntary because he was misinformed by counsel about his parole eligibility and (2) that he received ineffective assistance due to his counsel’s erroneous advice, failure to investigate, and failure to file an appeal from the conviction. The Circuit Court of Adams County summarily dismissed the PCR. Thomas appeals, arguing that he is entitled to an evidentiary hearing at which he will prove the merits of his claims.

FACTS

¶ 2. Thomas was indicted for two counts of sale of cocaine on July 30, 1996. Thomas pled guilty to both counts at a hearing on December 3, 1996, in the Circuit Court of Adams County. After exploring the voluntariness of Thomas’ plea, the circuit court accepted the pleas and sentenced Thomas to serve twelve years on each count of sale of cocaine, to run concurrently and to run concurrently with a prior sentence for armed robbery that had been imposed by the Circuit Court of Adams County in a separate proceeding.

¶ 3. Thomas filed a timely PCR attacking the guilty plea. In the PCR, Thomas alleged that, during plea negotiations, his attorney informed him that he would be eligible for parole if he pled guilty to the cocaine sales. He asserted that, contrary to counsel’s advice, his prior armed robbery conviction rendered him ineligible for parole. Thomas stated that, if he had known that he was actually ineligible for parole, he would not have entered the guilty plea and would have proceeded to trial. Thomas contended that his reliance on the attorney’s erroneous advice rendered his plea involuntary, and that the erroneous advice constituted ineffective assistance of counsel. Thomas further argued that his counsel’s performance was ineffective due to failure to investigate the crime and failure to file an appeal from the conviction or to advise Thomas of his right to appeal.

¶ 4. Thomas filed an amended PCR that included his own affidavit. In the affidavit, Thomas made the following allegations:

1. On September 12, 1996,1 was indicted by the Grand Jury of Adams County for an Armed Robbery of which I was not guilty.
2. The attorney who represented me on that charge failed to investigate the case against me and instead, insisted that I enter a guilty plea.
3. Although I repeatedly asked my attorney to file a motion for discovery he refused to do so. My attorney told me that I should enter a guilty plea and did not need discovery.
4. My attorney told me that if I entered a guilty plea to the charge of Armed Robbery that I would be eligible for parole.
5. It was only after I entered the plea and was sentenced that I learned that I was not eligible for parole for that charge. If I had known that I was ineligible for parole, I would not have entered a guilty plea, but would have insisted on a trial.
6. My attorney did not tell me that I had a right to appeal my conviction. If I had been so informed I would have file [sic] an appeal, because my plea was involuntary and based on incorrect information from my attorney.

¶ 5. The circuit court found that, while Thomas’ PCR sought relief from the cocaine sales conviction, his arguments were directed at his separate plea and conviction for armed robbery. The court found that Thomas’ guilty plea to the cocaine sales was knowingly and voluntarily entered. The court held that Thomas was not entitled to any relief and dismissed the PCR without a hearing.

STANDARD OF REVIEW

¶ 6. According to Mississippi Code Annotated section 99-39-11(2) (Rev.2000), the lower court may summarily dismiss a PCR “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” The procedural posture of an appeal from the summary dismissal of a PCR is analogous to that of an appeal from the dismissal of a civil action for failure to state a claim. Young v. State, 731 So.2d 1120, 1122(¶ 6) (Miss.1999). The appellate court must review the record de novo to determine whether the movant has demonstrated a claim that is proeedurally alive and that “present[s] a substantial showing of the denial of a state or federal right.” Miss.Code Ann. § 99-39-27(5) (Supp.2003); Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999).

LAW AND ANALYSIS

¶ 7. The basis for the lower court’s dismissal of Thomas’ PCR was its finding that Thomas’ arguments attacked a separate judgment of conviction from the one identified for collateral attack. Mississippi Code Annotated section 99-39-9(1) (Supp. 2003) requires that a movant for post-conviction relief state “[t]he identity of the proceedings in which the prisoner was convicted” and swear to “specific facts” within his personal knowledge. Miss.Code Ann. § 99-39-9(l)(a) and (d) (Supp.2003). Thomas’ PCR clearly identifies his judgment of conviction for two sales of cocaine as that which he intends to collaterally attack. However, Thomas’ affidavit addresses the events of a plea of guilty to armed robbery, a conviction that was not embraced by the judgment of conviction for two sales of cocaine.

¶ 8. Besides Thomas’ affidavit, none of the documents in the record pertain to the armed robbery conviction; the entirety of the record concerns the cocaine sales conviction. Notwithstanding the affidavit, Thomas’ amended motion and memorandum of law contain sworn, specific allegations of fact that attack his cocaine sales conviction, as required by Mississippi Code Annotated section 99 — 39—9(l)(d). The lower court erred by finding that Thomas failed to allege flaws in his cocaine sales conviction because he clearly did so in his motion and memorandum of law. Thus, we proceed to the merits of Thomas’ arguments concerning his cocaine sales plea. We observe that we are unable to review the legality of Thomas’ armed robbery plea because a post-conviction movant may claim relief against one judgment only. Miss.Code Ann. § 99-39-9(2) (Supp.2003).

I. Involuntary plea

¶ 9. Thomas alleges that his plea was involuntary because it was entered in response to erroneous advice from his attorney that he was eligible for parole. A guilty plea is binding on a defendant only if it is entered voluntarily and intelligently. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). A plea is considered “voluntary and intelligent” only if the defendant is informed of the nature of the charge against him and the consequences of the plea. Id. Before the trial court may accept a guilty plea, the court must “determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea.” URCCC 8.04(3). As part of its voluntariness inquiry, the court must determine whether the accused understands the minimum and maximum sentences for the charge. URCCC 8.04(4)(b).

¶ 10. Because parole is a matter of legislative grace, parole eligibility or non-eligibility is not considered a “consequence” of a guilty plea. Ware v. State, 379 So.2d 904, 907 (Miss.1980). Therefore, it is not a prerequisite to a voluntary plea that the defendant understand the nature of parole, his eligibility for parole, and the circumstances under which it may be granted. Id. However, a plea is involuntary if a defendant is affirmatively misinformed regarding the possibility of parole and pleads guilty in reliance on the misinformation. Fairley v. State, 834 So.3d 704, 706 (¶ 8) (Miss.2003). In this case, Thomas alleges that he pled guilty to the cocaine sales in reliance on advice from his attorney that he was eligible for parole. Thomas contends he later discovered that, pursuant to Mississippi Code Annotated section 47 — 7—3(d)(ii) (Supp.2003), he was not eligible for parole because of his status as a convicted armed robber.

¶ 11. A prisoner may be released early on parole if eligible and pursuant to a determination by the State Parole Board. Miss.Code Ann. § 47-7-17 (Rev.2000). Thomas correctly argues that he was never eligible for parole release from his cocaine sale sentences, but he has misidentified the controlling statutory law. Mississippi Code Annotated section 47-7-3(d)(ii) (Supp.2003) pertains to convictions for robbery, attempted robbery, or carjacking through the display of a deadly firearm, and to drive-by shooting convictions. The statute indeed forecloses armed robbers convicted after October 1, 1994, from parole eligibility. Thomas argues that, pursuant to this statute, his sentence for armed robbery precluded his eligibility to be paroled from his concurrent sentences for two sales of cocaine. Thomas contends that, but for his service of the overlapping sentence for armed robbery, he would have been eligible for parole release from his cocaine sale sentences.

¶ 12. Thomas’ ineligibility to be paroled from his cocaine sale sentences actually emanated from a different subsection of the statute. Section 47-7-3(g) (Rev.2000) provides that “[n]o person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30, 1995.” Thomas was convicted of two sales of cocaine on December 3, 1996. Therefore, despite Thomas’ creative argument under subsection (d)(ii), he was plainly ineligible for parole release from the cocaine sales sentences pursuant to subsection (g). Any advice by counsel that Thomas would have been eligible for parole if he pled guilty to the cocaine sales was erroneous. If, as Thomas alleges, he pled guilty in response to the erroneous advice, then the guilty plea was involuntary. Hall v. State, 800 So.2d 1202, 1206 (¶ 13) (Miss.Ct.App.2001).

¶ 13. Even if a defendant receives erroneous advice from defense counsel, any misunderstanding created by this advice may be corrected by the court during the voluntariness inquiry. Donnelly v. State, 841 So.2d 207, 211(¶ 7) (Miss.Ct.App. 2003). We look to the transcript of Thomas’ plea hearing to determine whether the alleged misadvice by Thomas’ attorney was corrected by the circuit court. The transcript reveals that, while the court informed Thomas of the maximum and minimum sentences and of his eligibility for earned time release, the court never said anything about parole. As the court never discussed parole eligibility with Thomas, the alleged misadvice by counsel went uncorrected. Further, although the docket sheet reflects that Thomas filed a petition to enter a guilty plea, that petition is not in the record. Therefore, we are unable to discern whether or not Thomas was correctly informed about his parole eligibility by the plea petition. See Rodolfich v. State, 858 So.2d 221, 224 (¶¶ 9-11) (Miss.Ct.App.2003).

¶ 14. “Our supreme court has held that a defendant who alleges that his plea is not voluntary because of his reliance on his attorney’s faulty advice regarding the possibility of parole, is entitled to an eviden-tiary hearing on the question of voluntariness.” Stewart v. State, 845 So.2d 744, 747 (¶ 10) (Miss.Ct.App.2003) (citing Washington v. State, 620 So.2d 966, 967 (Miss.1993)). Thomas made exactly these allegations in his PCR motion, and his allegations stand uncontradicted by the record. Therefore, Thomas is entitled to an eviden-tiary hearing.

II. Ineffective assistance of counsel

¶ 15. Thomas claims that he received ineffective assistance of counsel because his attorney misadvised him about parole eligibility, failed to investigate the charges, and failed to advise him of his right to appeal or to file an appeal on his behalf. This Court applies the two-part test from Strickland v. Washington to a claim for reversal of a guilty plea. Harris v. State, 806 So.2d 1127, 1130 (¶ 10) (Miss.2002) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under Strickland, a claimant bears the burden of proof to show (1) that counsel’s performance was deficient and (2) that the deficiency prejudiced the claimant. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). In order to succeed, the claimant must overcome the strong presumption that counsel’s performance was reasonable. Id. at 969. The claimant may overcome the presumption by showing that, but for counsel’s deficient performance, a different result would have occurred. Id. at 968 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). When determining whether a claimant received ineffective assistance, this Court examines the totality of the circumstances. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). We address Thomas’ claims one at a time.

A. Advice on .parole eligibility

¶ 16. Thomas alleges that his attorney erroneously told him that he would be eligible for parole if he entered a guilty plea. As discussed above, Thomas was not eligible for parole. Any contrary advice by counsel was wrong and constituted deficient performance. See Donnelly, 841 So.2d at 211(¶ 8). To show prejudice, Thomas must prove that he would not have pled guilty but for the incorrect advice. Harris, 806 So.2d at (¶ 11). In his PCR motion, Thomas states that, if he had known he was not eligible for parole, he would have opted for a trial. This contention is grounds for showing prejudice under Strickland unless the record reveals that Thomas received correct advice from some other source. Donnelly, 841 So.2d at 211(¶ 8). The plea hearing transcript and other evidence submitted in this case do not show that Thomas ever received correct information about his parole eligibility. Therefore, Thomas has successfully alleged that he received ineffective assistance of counsel due to his attorney’s incorrect advice about parole eligibility. He is entitled to an evidentiary hearing to explore the merits of this claim.

B. Failure to investigate

¶ 17. Thomas argues that his attorney deficiently failed to perform an independent investigation of the case and to file for discovery. Thomas contends that his attorney should have interviewed potential witnesses and otherwise investigated the facts and circumstances of the case. Thomas contends that a proper investigation of the case by counsel would have revealed sufficient evidence of Thomas’ innocence to imbue Thomas with the confidence to go to trial.

¶ 18. Thomas states that there was evidence to be discovered by counsel that would have supported his innocence, but he does not specifically allege what favorable evidence existed and how it would have benefited his case. Allegations of ineffective assistance of counsel must be made with specificity and detail. Garner v. State, 864 So.2d 1005, 1008 (¶ 13) (Miss. Ct.App.2004). “[I]n order to establish that failure to investigate a line of defense constituted ineffective assistance, a petitioner must show that knowledge of the uninves-tigated evidence would have caused counsel to vary his course.” King v. State, 503 So.2d 271, 275 (Miss.1987). Thomas’ general allegation that an investigation by counsel would have discovered evidence that would have prompted Thomas to opt for a trial is too nebulous to overcome the presumption that counsel’s actions were reasonable. This issue is without merit.

C. Failure to file an appeal or inform Thomas of the right to appeal

¶ 19. Thomas next argues that his counsel was ineffective for failure to pursue an appeal from his conviction. This argument is without merit. At the plea hearing, the court fully informed Thomas that a guilty plea would waive his right to appeal from an adverse judgment after a trial. As there is no right of appeal from a conviction entered pursuant to a guilty plea, counsel could not have been ineffective for failing to assist Thomas in filing an appeal from his conviction.

CONCLUSION

¶20. We reverse and remand for an evidentiary hearing consistent with this opinion on the issues of (1) whether or not Thomas’ plea was involuntary due to his reliance on incorrect information about his parole eligibility and (2) whether Thomas received ineffective assistance of counsel due to incorrect advice about parole eligibility.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY IS REVERSED AND REMANDED FOR AN EVIDENTIARY HEARING ON THE ISSUES OF INVOLUNTARY PLEA AND INEFFECTIVE ASSISTANCE OF COUNSEL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . The record does not disclose the date of Thomas' armed robbery conviction. Due to Thomas' reliance on § 47-7-3(d)(ii), we assume arguendo that the conviction occurred after October 1, 1994.

      . Mississippi Code Annotated section 47-7-3(g) was modified in 2002 to provide parole eligibility for some first offenders convicted of nonviolent crimes after January 1, 2000. As Thomas’ cocaine sales conviction occurred before January 1, 2000, the amendment is inapplicable to his conviction.