author: SOUTHWICK, P.J.,

text:
    Marcus ROBERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00886-COA.
    Court of Appeals of Mississippi.
    May 6, 2003.
    Rehearing Denied July 22, 2003.
    Certiorari Denied Oct. 23, 2003.

      Darnell Felton, Clarksdale, attorney for appellant.
    Office of the Attorney General by: Jeffrey A. Klingfuss, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

SOUTHWICK, P.J.,

for the court.

¶ 1. Marcus Roberson was indicted and tried for two murders. His first trial ended in a mistrial, as did his second. Roberson then moved for dismissal, asserting his double jeopardy rights. The lower court denied Roberson’s motion. He appeals from the denial, but we affirm.

¶ 2. Roberson was indicted for multiple counts of murder that grew out of a gang-related shooting at a hotel in Clarksdale. A hung jury after his trial in November 2000 caused a mistrial to be declared. At a second trial in March of 2001, a prosecution witness testified to a statement not provided to Roberson in discovery. Roberson alleged discovery violations and requested a mistrial. The trial judge found that discovery violations had indeed occurred and granted a second mistrial.

¶ 3. Roberson sought dismissal of the indictment on double jeopardy grounds. The lower court denied his request. Roberson’s appeal has been deflected here.

DISCUSSION

1. Jurisdiction

¶4. Since this is an appeal simply from the denial of a motion to dismiss, an obvious issue is whether we have jurisdiction to consider it. Generally, an appeal may be taken in a criminal case only from a final judgment. Miss.Code Ann. § 9-3-9 (Rev.2002). However, in certain limited circumstances, we may entertain interlocutory appeals. Beckwith v. State, 615 So.2d 1134, 1142 (Miss.1992); M.R.A.P. 5.

¶ 5. An immediate appeal regarding a denied double jeopardy claim is permitted.

[A defendant’s] rights under a double jeopardy claim in this case go beyond his right not to be convicted, and are of immediate urgency, justifying determination now. Because of the unique nature of the denial by a circuit court of a colorable double jeopardy claim, involving as it does the Constitutional right not to be prosecuted for the offense, it is final. This Court is authorized to treat it as a “final judgment” in a civil action under Miss.Code Ann. §§ 11-51-3 (Supp.1992), which authorizes an appeal from a final judgment, and Miss.Code Ann. §§ 9-3-9 (Supp.1992), which gives this Court jurisdiction of an appeal from any final judgment in the circuit court.

Beckwith, 615 So.2d at 1146; see also Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

¶ 6. Roberson’s claim is properly before this Court.

2. Double jeopardy

¶ 7. Roberson’s four-pronged challenge may be collapsed into a single dis-positive issue: have his double jeopardy rights been violated?

¶ 8. Both the federal and the state constitutions protect criminal defendants from being placed twice in jeopardy. U.S. CONST, amend. V; Miss. Const, art. 3, § 22 (1890). The protection begins “the moment the trial jury is selected and sworn to try the case.” Jones v. State, 398 So.2d 1312, 1314 (Miss.1981).

¶ 9. Here, after a jury was impaneled, the proceedings ended in mistrial before a verdict was obtained. In order to avoid a double jeopardy bar following a State-requested mistrial, it must be shown that there was a manifest necessity for granting the motion, but with a “degree of discretion” given the court in determining whether that necessity exists. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Generally, criminal defendants who request the mistrial are barred from subsequently asserting double jeopardy violations. Jenkins v. State, 759 So.2d 1229, 1234 (Miss.2000). In such circumstances, there is no double jeopardy defect in a new trial unless “the governmental conduct in question is intended to ‘goad’ the defendant” into asking for a mistrial. Oregon, 456 U.S. at 676, 102 S.Ct. 2083.

¶ 10. Some prosecutors might be tempted to seek a new beginning when they are dissatisfied with the direction that a trial has taken. Therefore, double jeopardy protections arise if the prosecutorial error was a purposeful attempt by the government to end the trial in order to have another, later and presumably better opportunity to convict the defendant.

¶ 11. Reviewing the record before us, we find that discovery violations occurred. The basis for Roberson’s requested mistrial was the failure of the State to disclose the anticipated testimony of Floyd Williams, a witness who was present at the time of the shootings. The discovery provided to Roberson indicated that Williams was present when an eyewitness excitedly ran over from the scene. However, on the stand, Williams testified that the eyewitness stated “that [the defendant] had just shot Frank.” In a conference out of the jury’s presence, the prosecutor asserted that he had orally informed defense counsel of the statement either on the previous Friday or a few days later on Monday. The testimony was given on the following Wednesday. Defense counsel denied that this information had been given him. It was also alleged that despite requests, the prosecutor did not provide addresses or other means to contact the witnesses who would be making these assertions.

¶ 12. The discrepancy between the explanation given in discovery that Williams had merely seen a frightened eyewitness and the testimony that identified Roberson as the shooter is substantial. After an initial hearing and then a continuation the next morning with an oral argument, the trial court granted a mistrial. The court also indicated that it would have a hearing on the fact that the district attorney’s office had “cost the county a lot of money again.”

¶ 13. Roberson alleges that this violation reveals “purposeful prosecutorial manipulation of its disclosure obligation.” Roberson also contends that the violation threatened “the harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict” him. Divans v. California, 434 U.S. 1303, 1303-04, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977).

¶ 14. Roberson bases his claim on the following facts:

(a) The prosecution’s discovery disclosures were misaddressed to Roberson’s counsel. Roberson contends that because other communications were correctly sent to his attorney’s physical address, the sending of discovery to an improperly numbered post office box demonstrates purposeful manipulation by the State.
(b) A meeting between Roberson’s counsel and one of the prosecution’s investigators yielded information not yet disclosed in discovery. Roberson argues that this demonstrates an intention by the district attorney to “shift the blame for not providing timely supplemental discovery on the police department.”
(c) The prosecution never provided Roberson with Floyd Williams’ address and phone number, despite being aware of his availability as the son of Coahoma County’s chief deputy. Williams subsequently provided an affidavit that he was interviewed by Roberson’s counsel immediately prior to trial.

¶ 15. Roberson submits that the lower court applied the incorrect legal standard to these facts in its assessment that “the discovery violation by the State was due to carelessness or negligence and was not intentional.” Roberson is correct in asserting that an improper prosecutorial intent may be inferred from the objective circumstances of the case. Oregon, 456 U.S. at 675, 102 S.Ct. 2083. That opinion also provides that a trial court’s fact finding that no intentional prosecutorial action occurred, if supported in the record, will be upheld. Id. at 679, 102 S.Ct. 2083.

¶ 16. There was no persuasive evidence that the State intended to “goad” or “provoke” Roberson into seeking a mistrial. State v. Blenden, 748 So.2d 77, 90 (Miss.1999). Consequently, his double jeopardy rights are not violated if there is a new trial.

¶ 17. THE ORDER OF THE CIRCUIT COURT OF COAHOMA COUNTY DENYING THE DEFENDANT’S MOTION TO DISMISS INDICTMENT IS AFFIRMED. COSTS ARE ASSESSED TO COAHOMA COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.

      . This opinion is substituted for that originally issued. The rehearing motion is granted.


source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    Edith BEVIS, Individually, and as Widow of Eddie Ray Bevis, Deceased, for and on behalf of all Wrongful Death Beneficiaries, Appellant, v. LINKOUS CONSTRUCTION COMPANY, INC. and Westinghouse Electric Corporation, Inc., Appellees.
    No. 2002-CA-00134-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    Rehearing Denied Aug. 12, 2003.
    Certiorari Denied Dec. 11, 2003.

      Timothy Taylor, Bobby Floyd Martin, Memphis, TN, attorneys for appellant.
    Louis G. Baine, Jan F. Gadow, Ridge-land, Todd Britton Murrah, Memphis, TN, attorneys for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Eddie Ray Bevis, an ironworker employed by Fischer Steel Company, was killed in a construction accident at a job site in Marshall County. At the time of the fatal accident, Fischer Steel was serving as a subcontractor to Linkous Construction Company, Inc., the primary contractor. The project was the construction of a distribution center for Westinghouse Electric Corporation, Inc., the owner of the real property.

¶ 2. Bevis’s surviving widow filed suit in Marshall County Circuit Court seeking damages for herself based largely on a loss of consortium claim. She also asserted a wrongful death claim on behalf of those beneficiaries identified in Mississippi’s wrongful death statute. Her suit was brought against Linkous and Westinghouse and Allen & Hoshall, Inc. and claimed that negligence on the part of these defendants proximately caused her husband’s death. The circuit court granted a motion by Linkous for summary judgment on a finding that, as to Linkous, a claim for benefits under Mississippi’s workers’ compensation was the exclusive remedy. Westinghouse successfully pursued a motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6) contending that the complaint failed to state a claim upon which relief could be granted. The trial court, in resolving the claims against these two entities, made the appropriate certifications under Mississippi Rule of Civil Procedure 54(b) to permit an interlocutory appeal. The claim against Allen & Hoshall, Inc., the design engineers for the project, is not before us. Ms. Bevis filed her notice of appeal as to both Westinghouse and Linkous and the two decisions are now before this Court for resolution. For reasons we will proceed to set out, we affirm the trial court.

I.

The Claim Against Westinghouse

¶ 3. The complaint alleges that Bevis, while in the course of his duties at the Westinghouse construction site, was working on a steel beam some thirty-five feet in the air when the beam collapsed and he fell to the ground, suffering injuries that ultimately led to his death a short time later.

¶ 4. The complaint alleges that the corporation “contracted for the construction of a distribution center ... in Marshall County, Mississippi.” The next paragraph of the complaint alleges that Linkous was the contractor for the project. After those preliminary allegations, the sole remaining information relating to Westinghouse is paragraph 18 of the complaint, which we quote in full:

18. Your Plaintiff would aver that Defendant Westinghouse was negligent in that it failed to properly inspect and properly provide a reasonably safe workplace; use reasonable care to prevent bodily injury or death to those persons working in areas where they might reasonably be expected to work; that it had a duty to safeguard against injuries arising from construction operations and to correct and remove reasonably foreseeable causes of danger and adequately warn of dangerous conditions existing on the job site premises and to ensure that the construction site was safe and proceeding according to proper design specifications. That this failure to inspect and warn was the proximate cause of Plaintiffs severe injuries, death and damages.

¶ 5. Westinghouse, relying on established Mississippi case law generally absolving a property owner from liability for the negligent acts of an independent contractor involved in a construction or improvement project on the property, moved for judgment on the pleadings. In the alternative, Westinghouse asked that Ms. Bevis be required to offer a more definite statement of the facts relied upon to support her claim as permitted by Mississippi Rule of Civil Procedure 12(e). In a response to that motion, Ms. Bevis declared her position that the complaint provided adequate notice of the nature of her claim and “therefore a more definite statement is unnecessary.” It was with th& case in that posture that the circuit court granted Westinghouse’s motion to dismiss for failure to state a claim upon which relief could be granted.

¶ 6. Our review of such action is de novo. Arnona v. Smith, 749 So.2d 68(116) (Miss.1999). We must accept as true all well-pled allegations in the complaint. Id. A motion to dismiss under Rule 12(b)(6) should be granted (and affirmed on appeal) only when, based on a review of the complaint, it appears beyond doubt that the plaintiff would be unable to prove any set of facts that would support a right of recovery. Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990).

¶ 7. The well-pled facts in this case, insofar as a claim against Westinghouse is concerned, are that Westinghouse owned a parcel of real property, that it contracted with Linkous to construct a warehouse on the property, that Bevis was working as an employee of one of Linkous’s subcontractors when he was killed in a fall occasioned by the collapse of a structure on which Bevis was working, and that the structure collapsed because the general contractor, Linkous, improperly installed replacement anchor bolts intended to secure the steel beam that collapsed when the bolts subsequently failed. The remaining allegations relating to Westinghouse consist of general allegations of the existence of various duties allegedly owed by Westinghouse to Bevis without any attendant explanation of the facts that would give rise to these duties.

¶ 8. Looking solely at the facts set out in the complaint, therefore, we must consider whether a recognized theory exists in Mississippi negligence law that would permit recovery by Ms. Bevis and the remaining wrongful death beneficiaries against Westinghouse. We conclude that such a theory does not exist and that the trial court did not err in dismissing Westinghouse.

¶ 9. We begin our analysis with a recognition of the general principle of law that a property owner who contracts for repairs or improvements to the property is not hable for injuries to workers on the premises arising out of the acts or omissions of the contractor. Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 185 (Miss.1989). As to the premises owner in circumstances such as are alleged to have existed in this case, the duty is to surrender to the contractor a reasonably safe working environment, which would include a duty to warn of hidden hazards or defects on the property that existed prior to the commencement of the work. Mississippi Power Co. v. Brooks, 309 So.2d 863, 866 (Miss.1975). Any duty to warn of hazards arising out of the construction itself — assuming such duty could be shown to exist — is deemed satisfied by a showing that the contractor had actual knowledge of the hazardous condition. Jones v. James Reeves Contractors, Inc., 701 So.2d 774, 783 (Miss.1997). The ensuing duty to warn or otherwise protect those individuals on the property as employees and agents of the contractor rests solely with the contractor. This shift in the duty to warn and protect from the owner to the contractor includes any such duties owed to the contractor’s subcontractors and employees of those subcontractors. Coho Resources, Inc. v. McCarthy, 829 So.2d 1 (¶ 31) (Miss.2002).

¶ 10. The hazardous condition complained of in this case did not arise out of a condition of the property created by the owner or existing on the property in a concealed state at the commencement of the project. Rather, it was a hazard created by the contractor, Linkous, in the course of completing its duties under the construction contract. In such a situation, it is logically impossible to argue that Lin-kous had no knowledge of the condition or that Westinghouse somehow had an awareness of both the fact of the hazardous condition and an appreciation of the dangerous nature of the condition that was superior to that of Linkous, the general contractor and the entity that created the alleged hazard. While Ms. Bevis, in her brief, strongly urges that the facts showed that Westinghouse contractually retained significant control over the course of the construction contract, there is no such assertion to be found in the complaint.

¶ 11. A review of the above-quoted paragraph 18 of the complaint reveals that it does nothing more than change the violation of a number of duties allegedly owed by Westinghouse to Bevis. However, they are nothing more than assertions of legal conclusions without any underlying allegations setting out a factual scenario giving rise to the alleged duties. Taking the facts as set out in Ms. Bevis’s complaint and applying the existing case law of this state, we are left unavoidably with the conclusion that Bevis was injured as the result of a hazardous condition on the premises created by the general contractor, Linkous, and for which Westinghouse had no duty, as to Bevis, to warn or otherwise protect against.

¶ 12. Ms. Bevis, in her brief, relies heavily on materials in the record that do not form a part of her complaint. They include quotes from various contractual documents and excerpts from depositions. There is no indication in the record that the trial court relied upon these matters in dismissing the complaint under Rule 12(b)(6). Reliance upon such documents would, under the rules of procedure, have converted the matter to a summary judgment proceeding, which would have required the court to significantly alter its method of proceeding to dispose of Westinghouse’s motion. Jones v. Regency Toyota, Inc., 798 So.2d 474(¶3) (Miss.2001).

¶ 13. There is nothing in the record to suggest that the court did so. On the face of the complaint — which is the limit of our inquiry in the present stage of the proceedings against the defendant, Westinghouse — we find ourselves faced with the situation where the well-pled facts simply do not give rise to any legally-recognized theory of liability against Westinghouse arising solely on principles of law existing under the general heading of premises liability. Rather, we conclude that the rule of law announced by the Mississippi Supreme Court in James Reeves, holding that actual knowledge on the part of the contractor of a hazardous condition absolves the property owner of any further duty to warn or otherwise protect the contractor and its employees, compels a finding that the complaint fails to state a cognizable claim. James Reeves Contractors, Inc., 701 So.2d at 783.

¶ 14. Any alleged duty of Westinghouse beyond the obligation to warn would not have its foundation in premises liability law, but would involve claims that Westinghouse had affirmative duties, either de-facto or dejure in origin, to supervise and inspect the work of its contractor such as were found to exist in Coho Resources, Inc., 829 So.2d at (¶¶ 32-33). Duties such as these are not founded on premises liability law, but arise out of the assumption of certain responsibilities to supervise and inspect an on-going construction project. Such duties are not invoked by a complaint that does nothing other than allege ownership of the real property in one entity (Westinghouse) and the creation of a hazardous condition by an independent contractor working on the property (Linkous) that causes injury to an employee of a subcontractor. This is an entirely different theory of negligence that would require the pleading of facts giving rise to such a claim, i e., the fact that Westinghouse maintained such a degree of control over the means and method of construction as to give rise to a duty, as suggested in Coho, “to supervise in a safe manner.” Id. at (¶ 33).

¶ 15. The absence of any such factual allegations in the complaint, combined with Ms. Bevis’s persistent assertion that a more definite statement was unnecessary to put Westinghouse on notice as to the true nature of her claim of negligence, leads us inevitably to the conclusion that the complaint as drafted fails to state a claim under which relief would be appropriate under any recognizable theories of liability existing in Mississippi law. In that situation, we are satisfied that the trial court did not err in dismissing the complaint as to Westinghouse, and we affirm.

II.

The Claim Against Linkous

¶ 16. Ms. Bevis acknowledges a threshold impediment to her claim sounding in negligence against Linkous, which she admits was acting as the general contractor for the project. The impediment is the rule that employees of subcontractors are deemed to be statutory employees of the general contractor for purposes of the workers’ compensation laws and that, so long as coverage is provided either by the subcontractor or the contractor, recovery under workers’ compensation is the injured worker’s sole remedy. Miss.Code Ann. § 71-3-7 (Rev.2000); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 63 (Miss.1997).

¶ 17. On appeal, she seeks to avoid the application of what has come to be known as the “exclusivity defense” that was successfully asserted by Linkous at the circuit court level by two different routes. First, she urges reconsideration of the exclusivity defense on the apparent basis that the analysis of Richmond cannot stand up to logical scrutiny. Alternatively, she claims that the facts of this case would support the contention that Bevis’s injuries were incurred as the result of an intentional tort on the part of Linkous, which is excepted from the exclusivity rule.

A.

Reconsideration of the Exclusivity Defense

¶ 18. This Court, sitting as an intermediate appellate court, is bound by established precedent as set out by the Mississippi Supreme Court and we do not have the authority to overrule the decisions of that court. Kennedy v. State, 766 So.2d 64(¶ 3) (Miss.Ct.App.2000). Reconsideration of the rule in this case could only result from an election by the supreme court to grant certiorari as to this issue.

¶ 19. As a variation on her argument, Ms. Bevis suggests that, because Linkous actually performed the work that led to her husband’s injuries, the contractor was not, at the time, acting in its role as general contractor, but was, instead, performing essentially as any other subcontractor on the job and thus not entitled to the protections afforded under section 71-3-7. It is, in fact, true that a subcontractor on a project may be liable in tort for injuries to the employees of other subcontractors if the appropriate showing of negligence is made. Morris v. W.E. Blain & Sons, Inc., 511 So.2d 945, 949 (Miss.1987).

¶ 20. However, this Court is unaware of any authority supporting the proposition that a general contractor must refrain from doing any actual work on the project and, instead, act solely in a supervisory capacity in order to claim the benefit of immunity afforded a statutory employer under the workers’ compensation act. We are not persuaded that this is, or even ought to be, the law.

B.

The Intentional Tort Exception to the Exclusivity Defense

¶ 21. Alternatively, Ms. Bevis contends that the circumstances of this case create a justiciable question as to whether Linkous’s conduct constituted a wilful and purposeful effort to inflict injury, thus creating a recognized exception to the contention that workers’ compensation recovery is the sole remedy available. We find this argument untenable. The exception urged by Ms. Bevis simply cannot be stretched to fit the essentially uncontested critical facts of the case as they relate to Linkous’s actions. In that light, it must be remembered that the matter of Linkous’s liability reaches this Court by a different direction than did the matter of the claim against Westinghouse. Linkous successfully pursued a claim for summary judgment under Rule 56, which allows the court to consider the pleadings, depositions, answers to interrogatories, admissions on file and affidavits. M.R.C.P. 56.

¶ 22. It is from our de novo review of those same pleadings and other materials that were considered by the trial court that we glean information which, when viewed in the light most favorable to Ms. Bevis as the non-moving party, would show these facts. Two bolts, set at a depth of approximately 12 inches in concrete, intended to anchor an upright steel column were somehow damaged prior to the erection of the column. Linkous sought the advice of Allen & Hoshall, as consulting engineers on the project, and was advised to bore out the concrete to a depth of 10 inches below the surface, insert new anchor bolts, and secure them by filling the bored holes with a material called “Por-Rok.” In the course of boring two new holes for the bolts, Linkous was unable to bore lower than six inches in one hole and four inches in the other after apparently striking steel or some other material impervious to efforts to drill through it.

¶ 23. Linkous proceeded to set the bolts in these holes that were less than the optimum suggested by the design engineers but made no effort to inform anyone of this fact or to warn others who might be working in the area. The upright column contained a plate that fit over the bolts protruding from the ground that permitted the column to then be secured by the installation of nuts, and the column was installed by that method. It was during the course of Bevis’s work that the stresses occasioned by the installation of the cross beam caused movement in the upright beam which pulled the shortened bolts from their concrete and “Por-Rok” mooring, causing the upright beam to then collapse and hurl Bevis to the ground.

¶ 24. Conceding that these facts could be proven by a preponderance of the evidence, we are of the opinion that this would not give rise to tort liability on the part of Linkous under any recognized exception to the exclusivity rule created by the Mississippi Workers’ Compensation Act. There have been attempts in the past, when the circumstances of an employee’s injury appear particularly egregious, to impose liability in tort on the employer rather than limit the injured worker to the benefits afforded under workers’ compensation. Those efforts often use as their foundation the 1984 case of Miller v. McRae’s, Inc., 444 So.2d 868 (Miss.1984). In that case, Miller, an employee of McRae’s, claimed that she was forced against her will to remain in store offices while she was questioned regarding a sum of money determined to be missing from Miller’s department. Id. at 869. She brought an action for false imprisonment and McRae’s successfully defended against the action by convincing the circuit court that, because the injuries allegedly occurred during the course of Miller’s employment, her sole remedy was a claim under workers’ compensation laws. Id. at 370.

¶25. On appeal, the Mississippi Supreme Court reversed and remanded. The court noted that workers’ compensation laws, by statutory definition, are limited to providing benefits for “accidental injury or accidental death arising out of and in the course of employment....” Id. (citing Miss.Code Ann. § 71 — 3—3(b) (Rev. 2000)). The supreme court concluded that the trial court had focused entirely on the proposition that Miller’s alleged emotional injuries occurred in the course of her employment, but failed to consider the requirement that the injuries must have arisen out of an accident. The court then concluded that “[ojbviously, any injuries sustained as the result of a false imprisonment are not the result of an accident, but rather from a willful act.” Id.

¶ 26. Properly interpreted, therefore, Miller does not stand for the proposition that a worker injured in a job-related accident can “opt out” of a workers’ compensation claim and pursue a claim in tort if he can show that the conduct of his employer in creating the circumstances causing his injury was particularly offensive or even reprehensible. Instead, Miller stands for the very limited principle that, if the employee is injured by a purposeful and wilful act of the employer, the claim is simply not cognizable under workers’ compensation law because it did not arise as the result of a work-related accident.

¶ 27. Subsequent attempts to expand the limited holding of Miller to exclude a particular claim from workers’ compensation and permit an employee to proceed against his employer in tort have been unsuccessful. In Griffin v. Futorian Corp, a worker was seriously injured for a second time in almost identical circumstances when he fell into the blade of a sawing machine. He sought to engraft an exception to the exclusivity provisions of workers’ compensation law, apparently relying on a claim of bad faith on the part of his employer for its obstinate failure to properly correct a demonstrably hazardous work environment. Griffin v. Futorian Corp., 533 So.2d 461, 463-464 (Miss.1988). The supreme court declined to do so and said that Miller remained the sole recognized means of avoiding an exclusivity claim by a defendant employer. The court went on to state that, in order to defeat such a claim, the plaintiff must show (a) that the injury was caused by the willful act of another employee acting in the course of his employment and (b) the injury must be one that is not compensable under the act. Griffin, 533 So.2d at 464. We have some difficulty in understanding the need for a two-part test of the nature first plainly articulated in Griffin since it would appear under the rationale of Miller that a claim that failed either prong (a) or prong (b) of the test would, by definition, fail the other. In all events, it is quite plain from a reading of Griffin that only wilfully inflicted injuries are excepted from the exclusivity provisions of workers’ compensation law because such injuries do not, at any point in the analysis, invoke the concept of an accidental injury.

¶ 28. The more recent case of Peaster v. David New Drilling Co., Inc., represents yet another attempt to expand the holding in Miller. Peaster, 642 So.2d 344 (Miss.1994). In Peaster, Jimmy Wilcox-son, an employee of the drilling company was assisting in efforts to lower a drill rig onto a trailer. He was standing between the trailer and the truck intended to be used to tow the trailer when the trailer’s brakes gave way and the employee was pinned between the trailer and the truck. Wilcoxson died as a result of his injuries and his mother, Vennie Peaster, brought a wrongful death suit against the employer, claiming that the employer wilfully failed to maintain the truck with knowledge that this created a situation where an accident giving rise to an injury was a substantial certainty. Peaster, 642 So.2d at 346. Her contention was that this wilful failure to act in the face of certain injury was the legal equivalent of a wilful intention to injure. The supreme court, conceding for purposes of analysis that the employer’s actions could arguably constitute gross negligence, nevertheless, said this was an insufficient basis to take the case outside Miller. Id. at 348.

¶ 29. Alternatively, Peaster sought to have the supreme court recognize an exception to the exclusivity rule for the situation where an employer permits a condition to exist that is so hazardous that an injury is substantially certain. As we understand Peaster’s contention, for purposes of this second argument she conceded the distinction between gross negligence or even conduct found to be in reckless disregard for the safety of others and the sort of wilful conduct described in Miller and sought to have injuries based on the former conduct excepted from the exclusivity rule, at least in those situations where the hazardous behavior makes an injury of some sort “substantially certain.” Peaster, 642 So.2d at 348-49. The supreme court declined to create such an exception, saying that such an interpretation of the law in its present state was not warranted and that any such increase in the exposure of employers to tort liability for employees injured on the job would require legislative action. Id. at 349.

¶ 30. There is no contention in this case, nor is there any evidence that supports such a contention, that Linkous purposely installed the anchor bolts at something less than the optimal depth suggested by the engineers for the specific purpose of causing the collapse of the column. Taken in the light most favorable to Ms. Bevis’s theory of the case, Linkous’s failure to properly repair the damaged bolts cannot be logically described as anything but gross negligence or reckless indifference. Under the plain language of the various Mississippi Supreme Court cases that have considered the issue, such a determination would not, as a matter of law, permit Ms. Bevis to pursue this wrongful death claim against Linkous instead of seeking those death benefits afforded for a work-related accidental death under Mississippi’s workers’ compensation laws. The trial court did not err in granting summary judgment to Linkous.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Dannie Ray SHARKEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00020-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    Rehearing Denied Aug. 5, 2003.
    Certiorari Denied Oct. 30, 2003.
    Imhotep-Alkebu Lan, Chokwe Lumum-ba, Jackson, attorneys for appellant.
    Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Dannie Ray Sharkey was found guilty of armed robbery by an Attala County Circuit Court jury and was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections as a habitual offender. Aggrieved by his conviction, Sharkey has appealed. He advances two issues that he claims warrant relief. First, he says that he received ineffective assistance of counsel in the course of his trial. As his second issue on appeal, Sharkey claims that the trial court committed reversible error when it refused his requested jury instruction intended to enlighten jurors as to the concept of reasonable doubt. Finding no error, we affirm the conviction.

I.

Facts

¶ 2. During the afternoon of October 9, 2000, a masked individual wielding a gun entered the Kosciusko Check and Title offices and demanded that both cash registers be opened. The owner and the store manager witnessed the robber take the money from the registers and exit through the front door. The owner’s wife, who was also present, had been hiding under the counter during the robbery. She and the owner followed the robber out of the building and saw him leaving the parking lot in a white Explorer.

¶ 3. A passing motorist, determining that something was amiss, pursued the Explorer. The motorist, familiar with the roads in the area, took a road that intersected with the road the Explorer was traveling on. This maneuver caused the motorist to momentarily lose sight of the Explorer. However, the motorist managed to get a good view of the driver of the Explorer when the vehicle hit a ditch, spun around, and proceeded back toward the motorist. Eventually, the robber abandoned the Explorer and disappeared into a woody area.

¶ 4. Police searched the Explorer and found the driver’s license of Dannie Shar-key and a copy of the vehicle title, showing ownership in Cassandra Sharkey. A wallet, checkbook and social security card were also found in the Explorer, all bearing the identifying information of Dannie Sharkey. A police officer stopped Sharkey later that day as Sharkey walked along a highway. Sharkey had $180 in bills and $14 in quarters on his person at the time he was stopped. A total of $3,936 had been taken from the check and title business. The motorist who gave initial pursuit later identified Sharkey as the driver of the Explorer in a photographic lineup. The owner of the check and title business was acquainted with Sharkey as a frequent business customer and confirmed that Sharkey’s general physique matched that of the robber. Additionally, the store manager viewed photographs taken of Sharkey after his detention and confirmed that the clothes Sharkey was wearing appeared to be the same as those worn by the robber.

II.

Ineffective Assistance of Counsel

¶ 5. Sharkey bases his claim of ineffective assistance of counsel on two alleged failures by defense counsel to perform up to constitutionally-mandated levels of competence. One instance was defense counsel’s failure to subpoena a particular witness that Sharkey now contends had evidence crucial to his defense. The other was counsel’s failure to request a circumstantial evidence jury instruction.

¶ 6. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show from the record that his counsel’s performance was deficient, and that the defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Analysis begins with the assumption that counsel’s performance met minimal standards of professional competence. Conner v. State, 684 So.2d 608, 610 (Miss.1996). The appellate court has to consider the totality of the circumstances in order to determine whether counsel’s actions were both deficient and prejudicial. Id. There is no constitutional guarantee to errorless counsel. Strickland, 466 U.S. at 686, 104 S.Ct. 2052.

¶ 7. In order to meet the second prong of the Strickland test, Sharkey has the burden to “show a ‘reasonable probability’ that, but for counsel’s unprofessional errors, a different outcome would have resulted at trial.” Id. at 694, 104 S.Ct. 2052. A reasonable probability has been said to be one sufficient to undermine confidence in the outcome of the proceeding. Id. Keeping this test in mind, we review Shar-key’s allegations of ineffective assistance of counsel.

¶ 8. Sharkey did not take the stand during his trial, but, from statements given investigating officers, it would appear that his defense was that he had been at a casino during the robbery and that he was carjacked by the actual robber and later abandoned, and that he was making his way back toward town on foot when he was picked up. He claimed at a new trial motion hearing that trial counsel refused his request to have a witness named Ike Barnes subpoenaed for trial as being a witness who could, in some way, substantiate this defense. There was no showing at the hearing as to what specific evidence Barnes could give relevant to the defense. An allegation of ineffective assistance of counsel based on the failure to properly prepare must state how any additional investigation, such as interviewing witnesses or investigating facts, would have significantly aided the defense during the course of the trial. Brown v. State, 798 So.2d 481, 495 (¶ 17) (Miss.2001).

¶ 9. Where the record on direct appeal does not provide sufficient information to permit the reviewing court to meaningfully consider the merits of a claim of ineffective assistance, the appellate court should deny relief without prejudice so as to preserve the opportunity for later, complete consideration of the matter in a post-conviction relief hearing where there is the possibility that additional evidence may be presented. Read v. State, 430 So.2d 832, 837 (Miss.1983); Foreman v. State, 830 So.2d 1278, 1280(¶ 9) (Miss.Ct.App.2002). In order to fully explore Shar-key’s claim, it would be necessary to consider matters not in this record. We, therefore, find that the appropriate resolution of Sharkey’s claim of ineffective assistance of counsel on this issue is to deny relief without prejudice.

¶ 10. Sharkey also maintains that trial counsel’s failure to request a circumstantial evidence instruction amounted to ineffective assistance. The rule is well established that when the collection of admitted evidence is either direct evidence, or a combination of both direct and circumstantial evidence, circumstantial evidence jury instructions are not warranted. Sullivan v. State, 749 So.2d 983, 992 (¶ 20) (Miss.1999). The evidence must be wholly circumstantial to warrant a circumstantial evidence instruction. Id. In this case, the passing motorist pursued Sharkey as he fled in the white Explorer and actually saw his face. The owner, the owner’s wife, and the store manager were able to match the description of the robber to a frequent customer of the business. In fight of the eyewitness identification, Sharkey was not entitled to a circumstantial evidence instruction. It is a matter of simple logic that counsel’s performance cannot be rendered constitutionally ineffective for his failure to ask for an instruction that was not warranted under established case law.

III.

Requested Jury Instruction

¶ 11. Sharkey requested a jury instruction dealing with reasonable doubt in the following form:

The court instructs the jury for the defendant, that under the law, the term “reasonable doubt” as used in the courts, in the instructions to juries, as the law, in the trial of cases, is a sacred and substantial right of a defendant charged with a criminal offense, given and guaranteed unto him by the law of the land, and that such reasonable doubt may arise from the testimony or from the lack of testimony and that, under the law, it is the sworn duty of the jury and each member thereof, that if there is a reasonable doubt in the minds of this jury, as to the guilt of the defendant as charged in the indictment, to return a verdict of Not Guilty.

¶ 12. The trial judge refused to grant the instruction and Sharkey claims that to be reversible error. Jury instructions must be read as a whole, not independently, in assessing claims of error on appeal. Pulphus v. State, 782 So.2d 1220, 1225 (¶ 19) (Miss.2001). The court gave two instructions that spoke to the issue of reasonable doubt in the following form:

The law presumes every person charged with the commission of a crime to be innocent. This presumption places upon the State the burden of proving the defendant guilty of every material element of the crime with which the defendant is charged. Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the defendant is guilty. The presumption of innocence attends the defendant throughout the trial and prevails at its close unless overcome by evidence which satisfies the jury of the defendant’s guilt beyond a reasonable doubt. The defendant is not required to prove his innocence.
The burden of proof in this ease is on the State to prove the defendant’s guilt beyond a reasonable doubt. The Defendant is not required to prove anything in this cause or to testify in his own behalf. You must not hold the fact that the defendant did not testify in this case against him or as any evidence of guilt.

¶ 18. The court may properly refuse an instruction on the basis that the matter addressed is “fairly covered elsewhere in the instructions.... ” Cohen v. State, 732 So.2d 867, 872 (¶ 13) (Miss.1998). We conclude that the two instructions given adequately informed the jury as to the proper standard by which to determine the defendant’s guilt or innocence and that it was not error to refuse this third instruction speaking to the same concept.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.

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


author: LEE, J.,

text:
    Sheila JOSEPH, Issac Joseph and Donna Thomas, Appellants, v. THE CITY OF MOSS POINT, a Body Politic; and Garlon P. Cole, in his Representative Capacity, Appellees.
    No. 2002-CA-00872-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    Rehearing Denied Aug. 26, 2003.

      Bradley Wade Rath, Memphis, TN, Russell S. Gill, Biloxi, attorneys for appellant.
    Nathaniel A. Bosio, Mobile, AL, Robert W. Wilkinson, Pascagoula, John B. Edwards, II, Jackson, attorneys for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J.,

for the court.

¶ 1. On March 19, 1999, driver Sheila Joseph, her husband Isaac Joseph, Donna Thomas and Larry Patterson were in a car stopped at a traffic light when they were hit from behind by Moss Point Police Officer Garlón Cole, who was driving his patrol car. Sheila Joseph and her passengers were injured in the collision, and they sued the City of Moss Point and Officer Cole in his official capacity for driving recklessly.

¶ 2. On May 6, 2002, at the close of the' appellants’ case-in-chief, the Jackson County Circuit Court dismissed the case, finding the appellants had failed to show that the officer’s actions rose to the level of reckless disregard of the safety and well being of others. On appeal, the appellants argue that the trial court erred in dismissing their case. We review the arguments and find no error; thus, we affirm.

DISCUSSION

I. DID THE TRIAL COURT ERR IN DISMISSING THE APPELLANT’S CASE?

¶3. The trial judge dismissed this case pursuant to M.R.C.P. 41(b) at the close of the appellants’ case-in-chief for failure to show a right to relief.

In considering a motion to dismiss, the judge should consider “the evidence fairly, as distinguished from in the light most favorable to the plaintiff,” and the judge should dismiss the ease if it would find for the defendant. “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiffs evidence were all the evidence offered in the case.” “This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to M.R.C.P. 41(b).”

Stewart v. Merchants Nat’l Bank, 700 So.2d 255, 259 (Miss.1997) (citations omitted).

¶ 4. The appellants argue that Officer Cole’s reckless actions did not fall under the Mississippi Tort Claims Act and, thus, he was not immune from liability. The relevant statute which is part of the Tort Claims Act states:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... (c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury....

Miss.Code Ann. § ll-46-9(l)(c) (Rev. 2002).

¶ 5. In this case, Officer Cole testified that he was stopped at a traffic light in Moss Point, and directly in front of him, the appellants’ car was stopped at the same light. The lane to the left was a left turn lane. Officer Cole explained that while he was stopped, he was reading a warrant in his hand. Out of his peripheral vision, he notice the cars to the left of him moving, and at that point he instinctively took his foot from the brake and applied it to the gas pedal. He looked up to see that the appellants’ car was not moving, and he slammed on his brakes, but ended up bumping the rear of the appellants’ car. The appellants claim that Officer Cole’s act of not paying attention was reckless and, thus, he was not immune from liability under the Tort Claims Act.

¶ 6. In Turner v. City of Ruleville, 735 So.2d 226(¶ 2) (Miss.1999), Turner was injured when the car in which she was a passenger collided with a car being operated by a drunk driver. Turner sued the City of Ruleville, complaining that just pri- or to the accident the drunk driver had been stopped by a Ruleville police officer who found him to be driving without a valid driver’s license, driving while visibly intoxicated, operating the vehicle in an erratic fashion and driving without his headlights on. Id. Turner specifically alleged that although the officer knew that Smith was intoxicated and incapable of driving his vehicle in a safe and prudent manner, he allowed Smith to continue driving, which constituted reckless disregard for her safety as a fellow traveler. Id. The supreme court found that the term “reckless disregard” as used in Miss.Code Ann. § ll-46-9(l)(c) embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act. Id. at (¶ 19). In reversing the trial court’s dismissal, the supreme court found that the officer’s willful disregard for the safety of others was synonymous with willfulness and wantonness. Id. at (¶ 21).

¶ 7. In Maye v. Pearl River County, 758 So.2d 391 (Miss.1999), a deputy was backing out of a driveway which was below street level. Id. at (¶ 2). The deputy checked his rearview mirrors, but was unable to see if the way was clear. Id. at (¶ 3). He preceded to back up when he collided with another vehicle. Id. The other driver testified that she saw the car coming towards her, put her foot on her brake and honked at him, but to no avail. Id. at (¶ 4). The supreme court found the officer acted with conscious indifference to the consequences when he backed out knowing he could not see what was behind him, and this constituted reckless disregard such that he was not immune from liability. Id. at (¶¶ 21-22).

¶ 8. In Maldonado v. Kelly, 768 So.2d 906(¶ 2) (Miss.2000), the police officer approached a dangerous intersection, stopped, looked both ways, then proceeded. His view, however, was partially obstructed, and when he entered the intersection he hit another vehicle. Id. at (¶ 3). The supreme court reversed the trial court and found no indication that the officer acted with deliberate disregard to the consequences of attempting to cross the intersection, but, to the contrary, took steps to ensure it was safe to cross. Id. at (¶ 12).

¶ 9. The facts of the present case show that Officer Cole was remiss in paying attention to traffic directly in his lane, but that his reaction in prematurely moving forward was more of a reflex in response to his seeing traffic to the side moving than a blatant exhibition of recklessness. As the judge found, Officer Cole was guilty of simple negligence and nothing more, which kept him under the immunity umbrella of the Tort Claims Act. When we view the facts of the present case with the supreme court’s findings in similar cases, we find that Officer Cole’s actions, too, evince no recklessness. Thus, we cannot find the trial judge was erroneous in granting the motion to dismiss.

¶10. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Patterson’s action has already been resolved, so he is not a party to this case.


author: MYERS, J.,

text:
    Kevin D. VAUGHN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00374-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    Rehearing Denied July 15, 2003.
    Certiorari Denied Oct. 16, 2003.

      Dan W. Duggan, Brandon, Attorney for Appellant.
    Office of the Attorney General by John R. Henry, Attorney for Appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J.,

for the court.

¶ 1. Kevin Vaughn was tried for aggravated assault before the Circuit Court of Rankin County on March 6, 2002. On that day, the jury returned a verdict of guilty. Two days later, the trial judge sentenced Vaughn to serve twelve years in the custody of the Mississippi Department of Corrections. Vaughn moved for a new trial and for a judgment notwithstanding the verdict. The trial court denied his motion, and Vaughn now appeals to this Court, raising the following issues:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT GRANTING A JURY INSTRUCTION FOR SIMPLE ASSAULT.
II. WHETHER THE TRIAL COURT ERRED IN NOT DIRECTING A VERDICT IN FAVOR OF VAUGHN, OR IN THE ALTERNATIVE, A JUDGMENT NOTWITHSTANDING THE VERDICT.

FACTS

¶ 2. On May 28, 2001, Vaughn attended a family barbecue at the home of his ex-girlfriend, Tonya Washington. Apparently, Vaughn was not an invited guest. Vaughn approached Washington about renewing their relationship. It is not clear what happened next. Either Washington or Vaughn produced a knife, and began attacking the other. Washington was stabbed in the neck and arm, and the top of Vaughn’s head was cut.

¶ 3. Washington later testified Vaughn became angry when she refused his romantic advances and he then produced a butcher knife. Several other witnesses supported her testimony. According to Vaughn, though, it was Washington who produced a knife. He alleges that she cut him and members of her family converged on him, forcing him to leave the premises.

¶ 4. The jury, after considering the evidence, returned a verdict of guilty. The trial judge sentenced Vaughn to twelve years in prison.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT GRANTING A JURY INSTRUCTION FOR SIMPLE ASSAULT.

¶ 5. Vaughn believes he was entitled to have his proposed jury instruction D-7 submitted to the jury. This instruction would have allowed the jury to return a verdict for simple assault. D-7 reads:

The court instructs the jury that if you find that the state has failed to prove any one of the essential elements of the crime of AGGRAVATED ASSAULT, you must find the defendant not guilty. You will then proceed with your deliberations to decide whether the state has proved beyond a reasonable doubt all the elements of the lesser crime of SIMPLE ASSAULT. If warranted by the evidence, you may find the defendant guilty of a crime lesser than AGGRAVATED ASSAULT. However, notwithstanding that right, it is your duty to accept the law as given to you by the court. If the facts and the law warrant a conviction for the crime of AGGRAVATED ASSAULT, then it is your duty to make such a finding, uninfluenced by your power to find a lesser offense. This provision is not designed to relieve you from the performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge, but does justify a verdict for SIMPLE ASSAULT.
SIMPLE ASSAULT is defined as an a attempt to cause or purposely, knowingly or recklessly causes bodily injury to another.

¶ 6. “A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Humphrey v. State, 759 So.2d 368, 380(¶ 33) (Miss.2000) (emphasis added). It is the last provision that causes Vaughn’s proposed instruction to fail.

¶ 7. The evidence presented by the State showed that Vaughn showed up unexpectedly and attacked Washington after she rejected him. The evidence presented by Vaughn naturally painted a different picture. Vaughn claims Washington’s mother invited him to the Washington house to serve as a cook at a barbecue. He alleges that after he was through cooking, Washington called him over to talk and indicated she wanted to whisper something to him. He claims that when he leaned over to hear her, Washington tried to stab him, but only succeeded in cutting his head. He testified that he did not try to use force to defend himself. According to Vaughn, when he could finally escape from Washington, he fled to his sister’s house. In short, no evidence would support the simple assault instruction. Refusing to grant the instruction was not an error.

II. WHETHER THE TRIAL COURT ERRED IN NOT DIRECTING A VERDICT IN FAVOR OF VAUGHN, OR IN THE ALTERNATIVE, A JUDGMENT NOTWITHSTANDING THE VERDICT.

¶ 8. Although Vaughn phrases his issue differently, he is challenging the sufficiency of the evidence. Bingham v. State, 723 So.2d 1193, 1195(116) (Miss.Ct.App.1998). Reviewing both the denial of the directed verdict and the denial of a JNOV requires us to examine the evidence presented in the light most favorable to the State. If a reasonable juror could not have found Vaughn guilty beyond a reasonable doubt, then we must find that it was error not to have granted either a directed verdict or a JNOV. Id. at (¶¶ 7-8).

¶ 9. We have already summarized the evidence presented during the trial. Four different witnesses corroborated the State’s evidence, including Washington. Vaughn was the only witness to relate a different story. As such, it was very possible for a reasonable juror to find Vaughn guilty. We find that Vaughn’s second issue has no merit.

If 10. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


text:
    Johnny SMITH v. Robert JOHNSON, Commissioner of the Mississippi Department of Corrections.
    No. 2001-CP-00277-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    Rehearing Denied Aug. 12, 2003.
    Certiorari Denied Dec. 11, 2003.
    Johnny Smith (pro se), attorney for appellant.
    Office of the Attorney General, by Jane L. Mapp, attorney for appellee.
    Before KING, P.J., GRIFFIS, and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. Johnny Smith, a Mississippi Department of Corrections inmate, filed suit alleging that prison officials denied him due process by revoking his good time credits without a judicial hearing. From the dismissal of his suit, Smith appeals asserting:

WHETHER THE CIRCUIT COURT ERRED IN DISMISSING THE CASE

STATEMENT OF FACTS

¶ 2. On October 25, 2000, Smith filed a petition with the circuit court seeking judicial relief. Smith claims that he was denied due process rights because the prison officials revoked his good time credits without a judicial hearing. The circuit court dismissed the complaint. Smith was granted permission to appeal in forma pau-peris.

LEGAL ANALYSIS

¶ 3. Smith is correct in his assertion that Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) does create certain minimum due process protection prior to revocation of earned time, but he is mistaken as to the minimum due process requirements. As addressed by the Court in Lewis v. State, 761 So.2d 922 (Miss.Ct.App.2000), the MDOC disciplinary procedures afford offenders sufficient due process. Smith fails to show that the MDOC procedures were not followed.

¶4. Smith also notes that one of his violations was overturned, but the revoked earned time was not restored. Smith did not state whether he has exhausted his MDOC administrative remedies. As such, we do not address this issue.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. COSTS OF APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: KING, P.J.,

text:
    Bob G. WILLIS and Timothy Carey Willis, Appellants, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01021-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    Rehearing Denied July 22, 2003.
    Certiorari Denied Dec. 4, 2003.
    Bob G. Willis (Pro Se), Timothy Carey Willis (Pro Se), Attorneys for Appellant.
    Office of the Attorney General, By: Billy L. Gore, Attorney for Appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   KING, P.J.,

for the court.

¶ 1. Bob and Timothy Willis are brothers and non-residents of the State of Mississippi. They and several others were arrested when an eighteen-wheeler loaded with marijuana was confiscated in Forrest County in May 1980. Following their arrest, Bob and Timothy Willis pleaded guilty to two separate offenses, namely, the attempted sale of a controlled substance and the attempted sale of marijuana. As a consequence of their guilty pleas, no prison time was ordered; however, the Willises were each ordered to pay fines in the amount of $30,000 on each conviction. Almost twenty years later, in August 1999, the Willises filed separate but similar pleadings in the Circuit Court of Forrest County styled “Motion for Posh-Conviction Relief.” Amended motions were later filed in November 1999 alleging, among other things, the following:

That the sentences given for Charges I and II were violative of § § § 41-29-139(c)(1) and 41-29-139(c)(2)(A) and 41-29 — 149(f) of the Mississippi Code of 1972, as amended, with respect to the failure to impose sentences of time, and, therefore, these sentences are void and statutorily impermissible....

¶ 2. An evidentiary hearing was held in April 2001 at which the Willises were represented by counsel. The Willises themselves were incarcerated in a federal correctional facility in Marianna, Florida and waived their appearance. The trial court entered an order and opinion denying the requested relief on the ground that, among other things, a sentence without a period of incarceration was within the authority of the trial court judge. This pro se appeal is from that denial of their motion. Finding that this Court lacks jurisdiction, the appeals are dismissed.

¶ 3. The preeminent requirement of the Post-Conviction Collateral Relief Act is that the petitioner be “a prisoner in custody under sentence of a court of record of the State of Mississippi.” Miss.Code Ann. § 99-39-5 (Rev.2000). The Willises are not now, nor have they ever been, imprisoned under sentence of a court of record of the State of Mississippi as far as this Court is aware. As a result, the trial court did not possess the requisite jurisdiction to rule on the motion; consequently, no jurisdiction is conferred upon this Court. Id. The appeals are dismissed.

¶ 4. THE APPEAL OF TIMOTHY CAREY WILLIS OF THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS DISMISSED. THE APPEAL OF BOB G. WILLIS OF THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS DISMISSED. COSTS OF APPEALS ARE ASSESSED TO THE APPELLANTS.

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


text:
    Terry McCLINE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00921-COA.
    Court of Appeals of Mississippi.
    May 20, 2003.
    Rehearing Denied Aug. 12, 2003.

      Terry McCline, Pro Se, attorney for appellant.
    Office of the Attorney General by: John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., LEE, and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Terry McCline appeals his conviction in the Sunflower County Circuit Court of armed carjacking, armed robbery and conspiracy to commit armed robbery. As error, McCline claims double jeopardy, ineffective assistance of counsel, an excessive sentence, and that trial counsel appeared without authorization of the court. We disagree and affirm.

FACTS

¶ 2. On August 9, 2000, three men in a red car forced a Dixie Tobacco and Candy Company delivery truck off the road just outside of Shaw, Mississippi. Once the truck had stopped, two masked men emerged from the car and approached the truck. One of the individuals was armed with a pistol. The driver and a second Dixie employee were ordered out of the truck. The culprits then drove the truck and the red car away.

¶ 3. The robbery was witnessed by Shay Thomas, who was traveling the same road on his way to work. Thomas immediately called police, notified them of a robbery in progress, and then picked up the two Dixie employees. Police were able to begin a chase of the vehicles. Eventually the two men in the Dixie truck stopped, abandoned the truck and continued their flight in the red car.

¶ 4. The driver of the red car ran off the road into a ditch. The three occupants fled on foot, two going north, the third, Terry McCline, heading south. While police apprehended the other two men, McCline returned to the car and tried to drive it out of the ditch. When police noticed his return, McCline ran into the woods, leaving behind one of his shoes. Approximately two hours later, police located McCline and placed him under arrest. All three men were later indicted on charges of armed carjacking, armed robbery and conspiracy.

¶ 5. Each indictee was offered a plea bargain by the district attorney’s office. In exchange for a guilty plea, the prosecution would recommend a ten-year sentence on all charges. All but McCline accepted the deal. McCline went to trial and was found guilty on all charges. He received a sentence of thirty years for the carjacking, forty-five years for the armed robbery and five years for conspiracy, each to be served consecutively.

¶ 6. McCline terminated his trial counsel’s representation for the appeal. Nevertheless, counsel filed notice of appeal and submitted a brief. McCline filed a pro se motion with the supreme court to have counsel removed and have the brief submitted through counsel stricken from the appellate record. The court granted the motion to remove counsel and allowed McCline to proceed pro se, but denied the motion to have the brief stricken as a moot issue.

¶ 7. McCline submitted a brief. We analyze the issues he presents, since trial counsel has been dismissed. The State had filed a brief opposing the issue raised in counsel’s brief but, after three enlargements of time, failed to answer the pro se brief submitted by McCline.

DISCUSSION

1. Double jeopardy

¶8. McCline alleges that he was subjected to double jeopardy in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution. He argues that armed robbery and armed carjacking are “predecessors and require proof of each other in order to be established.” McCline also states that the charges are double jeopardy because they all arose from the same incident.

¶ 9. A defendant faces double jeopardy when prosecuted a second time for the same crime following either conviction or acquittal, or when he receives multiple punishments for the same crime. White v. State, 702 So.2d 107, 109 (Miss.1997). To determine whether two charges actually comprise only one actual crime, we apply the “same elements” test. This test looks to whether each offense requires proof of some element not contained in the other. Id. If not, double jeopardy prohibits additional prosecutions or successive punishments. Id.

¶ 10. Armed carjacking and armed robbery contain overlapping elements. Both require the removal of another’s property through the use, threatened use or display of a weapon. Miss.Code Ann. § 97-3-117(2) (Rev.2000); Miss.Code Ann. § 97-3-79 (Rev.2000). However, the mere fact that there is substantial overlap in the proof necessary to establish each crime does not constitute double jeopardy. No double jeopardy exists if each offense contains an element not contained in the other. Bannister v. State, 731 So.2d 583, 586 (Miss.1999).

¶ 11. The offense of armed carjacking required that the State prove that McCline took a motor vehicle while utilizing a weapon. The armed robbery for which McCline was convicted was the taking of money from the occupants of the truck, not for the taking of the vehicle itself. Proof supported that McCline committed two different crimes and received one punishment for each.

2. Ineffective assistance

¶ 12. McCline argues that he was prejudiced by ineffective assistance of counsel due to trial counsel’s failure to object to double jeopardy, and failure to object to the State’s findings of fact which noted the robbery and carjacking occurred August 9, 2001, rather than in the year 2000.

¶ 13. Review of claims of ineffective assistance of counsel is made under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The claimant must show two things: (1) deficient performance by counsel, and (2) prejudice to the defendant due to counsel’s deficiencies. Id. at 687, 104 S.Ct. 2052. “Prejudice” has been held to mean that, but for counsel’s inadequacies, the trial outcome would have been different. Cole v. State, 666 So.2d 767, 775 (Miss.1995).

¶ 14. We have already discussed the issue of double jeopardy. Trial counsel will not be held ineffective for declining to make a spurious legal argument.

¶ 15. The statement of facts to which McCline objects is actually a memorandum issued by the Sunflower County Sheriffs Department. It described the physical evidence taken into custody by police on the day that McCline was arrested. This included the various items of clothing, such as the masks worn by the robbers and retrieved at the scene of the arrest. It is not clear whether this was an internal police memo or prepared in anticipation of trial. It does refer to the crimes having occurred in the year 2001 rather than in 2000.

¶ 16. McCline argues that he was prejudiced by his attorney’s failure to object to this error. He does not say how he was prejudiced. Without a showing of prejudice, McCline has failed to show that any error by his attorney contributed to his conviction.

S. Excessive punishment

¶ 17. McCline’s third argument is that the sentences received are excessive because they aggregate to a term greater than his life expectancy and were far in excess of what his co-indictees received.

¶ 18. In general, a sentence which falls within the permissible range designated by statute will not be disturbed on appeal. Corley v. State, 586 So.2d 1814, 1319 (Miss.1988). The exception to this rule is for proof of disproportionality. Hoops v. State, 681 So.2d 521, 538 (Miss.1996). The disproportionality that McCline claims, however, is between his sentence and those received by the other participants of the crime. The threshold inquiry on a claim of disproportionality is whether the punishment is excessive for the crime committed. Id. Unless the appellant can make this first showing, a comparison with sentences imposed on other defendants is irrelevant. Id.

¶ 19. McCline also complains that the aggregation of the sentences, eighty years, exceeds his life expectancy and is thus excessive. Each sentence imposed for conviction of multiple offenses is to be imposed without respect to each other, even where the several offenses grew out of a single unbroken chain of events. Erwin v. State, 557 So.2d 799, 803 (Miss.1990). This remains true even though the aggregation of the sentences exceeds the defendant’s actuarial life expectancy. Id. Thus, we look not to the aggregate for determining whether a sentence is excessive, but each sentence compared to each crime in isolation.

¶ 20. Each of the sentences McCline received was within the statutory limits. He received the maximum penalty for the armed carjacking and conspiracy. The maximum penalty for armed robbery is life imprisonment if the jury so decides. Miss.Code Ann. § 97-3-79 (Rev.2000). Where the jury is unable to agree on a sentence of life imprisonment, the court is to set a sentence reasonably less than life. Erwin, 557 So.2d at 803. The sentence imposed for the armed robbery was forty-five years. At age twenty-three, McCline’s age at trial, forty-five years is a term reasonably less than a life term. Each of the sentences McCline received are within the statutory boundaries and while severe are not excessive.

If . Appointment of defense counsel

¶ 21. McCline’s final complaint is that no official record exists to show that defense counsel, W.S. Stuckey, was properly appointed to represent McCline. Stuckey represented McCline throughout the trial without protest from McCline.

¶ 22. McCline does not explain how the absence of an appointment order from the record has injured or prejudiced him, nor does he cite any authority to support his contention that this requires his conviction to be vacated. As such, this argument merits no further consideration.

¶ 23. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I ARMED CARJACKING AND SENTENCE OF THIRTY YEARS; COUNT II ARMED ROBBERY AND SENTENCE OF FORTY-FIVE YEARS; AND COUNT III CONSPIRACY AND SENTENCE OF FIVE YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCES TO RUN CONSECUTIVELY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, J.J., CONCUR.


author: THOMAS, J.,

text:
    Antwon Leshay ELLIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00266-COA.
    Court of Appeals of Mississippi.
    May 20, 2003.
    Rehearing Denied Aug. 26, 2003.

      Dan W. Duggan, Brandon, attorney for appellant.
    Office Of The Attorney General, by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., THOMAS, LEE and IRVING, JJ.
   THOMAS, J.,

for the court.

¶ 1. Antwon Ellis was convicted of capital murder and sentenced to life in the custody of the Mississippi Department of Corrections without parole. Aggrieved he asserts the following:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT GRANTED THE STATE’S MOTION IN LIMINE AND REFUSED TO ALLOW THE APPELLANT TO CROSS-EXAMINE YOUNGBLOOD ABOUT HIS ARREST FOR BRIBERY.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT GRANTING A MISTRIAL WHEN THE CLARION LEDGER RAN AN ARTICLE STATING THAT ELLIS HAD BEEN CONVICTED OF THIS MURDER BEFORE.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT GRANTING JURY INSTRUCTION D-7A.
IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT DIRECTING A VERDICT IN FAVOR OF ELLIS, OR IN THE ALTERNATIVE A JNOV.

Finding no error, we affirm.

FACTS

¶ 2. On July 25, 1997, Thomas Tapp was shot and lolled in front of his place of business, the Little Store, a general convenience store located on Medgar Evers Boulevard, in Jackson. He was found in the front of the store with his keys and a padlock to the store on the ground, and a large amount of cash was found nearby. Five individuals were later arrested for the capital murder of Tapp.

¶ 8. Testimony determined that the intent of the group was to commit a robbery of the convenience store and the liquor store adjacent to the convenience store. Robinson, a confessed accomplice, testified that Ellis instructed him to act as a lookout and that Ellis was brandishing a nine millimeter handgun. This witness testified that as he was acting as a lookout he heard a shot and upon coming to the front of the building he witnessed Tapp slumped over holding his chest. He then saw a different accomplice grab a bag from Tapp and grab the register from the store. He testified that Ellis was the triggerman and that he heard nine gunshots fired by Ellis and the other armed accomplice, called Mike-Mike in the record.

¶ 4. The attendant at the liquor store testified that after he was shot in the back he heard another gunshot and heard Tapp groan, but due to his injury he was unable to identify any of the assailants.

¶ 5. The State presented testimony from Detective Youngblood who testified to the chronology of the gathering of evidence. Youngblood was the detective assigned to the case at its outset. Youngblood questioned all the suspects individually, including Ellis. At the initial questioning Ellis told Youngblood that he had nothing to do with the robbery and knew nothing of it. During a second interview just hours later Youngblood informed Ellis of the interviews of the other accomplices taking place at the same time. At this point Ellis told Youngblood that he was a part of the crime, but that he only acted as the lookout man.

¶ 6. Out of the presence of the jury, Ellis’ counsel informed the court of his desire to attack Youngblood’s character by questioning him regarding a bribery charge against him. The State brought a motion in limine to prevent this testimony from reaching the jury. Ellis’ counsel informed the trial judge that he learned that Youngblood had been arrested on a bribery charge for allegedly taking money from alleged drug dealers. Youngblood was never indicted. He has since resigned from his position as detective, according to him, for other reasons. The trial court granted the State’s motion in limine.

¶ 7. At the close of the State’s case-in-chief, Ellis requested a directed verdict which was denied. Ellis elected not to testify and presented no other witnesses to provide testimony regarding his defense. The jury returned a guilty verdict and the jury poll revealed a unanimous verdict.

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR WHEN IT GRANTED THE STATE’S MOTION IN LIMINE AND REFUSED TO ALLOW THE APPELLANT TO CROSS-EXAMINE YOUNGBLOOD ABOUT HIS ARREST FOR BRIBERY?

¶ 8. Ellis argues that Ins defense was hampered by the trial judge’s grant of the State’s motion in limine regarding Detective Youngblood’s prior arrest for allegedly accepting money from drug dealers. Ellis contends that he should have been allowed to elicit testimony regarding this prior bad act as it was probative of truthfulness and went to the credibility of the witness.

¶ 9. The admissibility and relevancy of evidence is within the discretion of the trial court and, absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. Reynolds v. State, 784 So.2d 929, 932(¶7) (Miss.2001). “As long as the trial court remains within the confines of the Mississippi Rules of Evidence, its decision to admit or exclude evidence will be accorded a high degree of deference.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990). Additionally, “the admission or exclusion of evidence must result in prejudice or harm, if a cause is to be reversed on that account.” Jackson v. State, 594 So.2d 20, 25 (Miss.1992).

In this case we are faced with this question: Under what circumstances may one cross-examine a witness under Rule 608(b) about specific instances of past conduct not resulting in a conviction when the sole purpose of such line of questioning is to destroy the witness’s credibility for truthfulness? When will it be permitted, and what is its effect? These questions embrace our entire inquiry in this case. Prior to promulgating the M.R.E., cross-examination of a witness about specific instances of past conduct not connected with the case was considered irrelevant and impermissible when the purpose was to impeach his character. Baxter v. Rounsaville, 193 So.2d 735 (Miss.1967); Tippit v. Hunter, 205 So.2d 267 (Miss.1967); Bailey v. State, 67 Miss. 333, 7 So. 348 (1890); Stewart v. State, 263 So.2d 754 (Miss.1972); Pierce v. State, 213 So.2d 769 (Miss.1968); Gallion v. State, 469 So.2d 1247, appeal after remand 517 So.2d 1364.

Brent v. State, 632 So.2d 936, 943 (Miss.1994). The proffered conduct must be such as to reflect upon the witness’s character for truthfulness. Id at 944. Proee-durally, before counsel attempts an inquiry on cross-examination as to specific acts of past conduct not resulting in a conviction he should inform the trial judge that he intends to do so. Id. The trial judge can then conduct a hearing outside the presence of the jury. Following this, the trial judge can determine first if the conduct reflects upon the witness’s honesty, and if so, weigh the probative value against the danger of unfair prejudice, as required under Rule 403 and also determine whether admission of the evidence will advance the ascertainment of the truth in the case. Id. “The relevancy and admissibility of evidence is largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Peterson v. State, 671 So.2d 647, 658 (Miss.1996). “Furthermore, a party must do more than simply show some technical error has occurred before he will be entitled to a reversal on the exclusion or admission of evidence; there must be some showing of prejudice.” Pham v. State, 716 So.2d 1100, 1102(¶ 12) (Miss.1998).

¶ 10. The accused in a criminal trial has a fundamental right implicit in the confrontation clauses of our state and federal constitutions to cross-examine witnesses testifying against him. U.S. Const. amend. VI; Miss. Const. art. 3, § 26; Kolberg v. State, 829 So.2d 29, 74 (¶ 126) (Miss.2002). However, the rule does not allow cross-examination on any matter affecting the credibility of -witnesses without restraint. The privilege only extends to any matter that is relevant. White v. State, 532 So.2d 1207, 1217 (Miss.1988). Accordingly, “the scope of cross-examination though ordinarily broad, is within the sound discretion of the trial court and the trial court possesses inherent power to limit cross-examination to relevant matters.” Heflin v. State, 643 So.2d 512, 518 (Miss.1994), reversed on other grounds.

¶ 11. The trial judge opined and made findings that the testimony regarding Detective Youngblood’s alleged bribery charge was irrelevant to his character and truthfulness in the matter before the court. We cannot find anything in the record or in the briefs where Ellis claims that his confession to Youngblood was in any way illegally elicited or portrayed wrongly.

¶ 12. The questions regarding Young-blood’s alleged prior bad acts were too far removed to be relevant. There is a very distinct and substantive difference between alleged, unsubstantiated bad acts and prior bad acts. Ellis complains of not being allowed to elicit testimony regarding bad acts with no attendant evidence to support its truth. The admission of such unfounded allegations would only cloud the minds of the jurors and would have no probative value.

II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN NOT GRANTING A MISTRIAL WHEN THE CLARION LEDGER RAN AN ARTICLE STATING THAT ELLIS HAD BEEN CONVICTED OF THIS MURDER BEFORE?

¶ 13. Ellis contends that he was not afforded a fair trial as the jury was tainted by a newspaper article reporting that Ellis was on trial for a second time regarding this murder and that the jury-returned a guilty verdict in the first trial but it was being retried after the Mississippi Supreme Court reversed the previous conviction. Though Ellis has not shown how he was prejudiced by this article, as none of the jurors had seen the article, he still contends error. Ellis cites Johnson v. State, 476 So.2d 1195 (Miss.1985), and contends that Johnson was identical to his situation. First, Johnson involved a motion for change of venue which was never made by Ellis and second, in the case at bar not one juror had seen the article or heard anything about the article regarding Ellis’ prior guilty verdict.

¶ 14. The granting of a motion for a mistrial is within the sound discretion of the trial court. Bass v. State, 597 So.2d 182, 191 (Miss.1992). Failure of a trial court to grant a mistrial will not be overturned on appeal without a showing that the judge abused his or her discretion. Id.

¶ 15. We have declared that “a jury’s verdict must be based upon the evidence and not affected by extraneous influences.” Fuselier v. State, 468 So.2d 45, 57 (Miss.1985).

¶ 16. The jurors’ promises to follow the law “must be given considerable deference.” Porter v. State, 616 So.2d 899, 906 (Miss.1993), citing Scott v. Ball, 595 So.2d 848, 850 (Miss.1992). Prospective jurors “who say that they could follow the evidence and the instructions of the court should be retained, and those who cannot follow the instructions of the court should be released.” Armstrong v. State, 214 So.2d 589, 593 (Miss.1968).

¶ 17. In the case at bar, the trial judge polled the jury as a group regarding the newspaper article and not one of them had read it or knew anything about it.

III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN NOT GRANTING JURY INSTRUCTION D-7A?

¶ 18. Ellis contends that the evidence supported a lesser-ineluded offense instruction. Ellis argues the evidence was not consistent regarding the probability that Ellis shot Tapp. He argues that this evidence calls for the court to include a lesser-offense instruction of manslaughter.

¶ 19. When reviewing jury instructions, our test is to read them together, as a whole, without singling out one instruction or taking them out of context. Woodham v. State, 779 So.2d 158, 162-63(¶ 25) (Miss.2001). Furthermore, an instruction must not be given to the jury if there is no evidence to support the instruction. A court may refuse an instruction when it incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Agnew v. State, 783 So.2d 699, 702(¶ 10) (Miss.2001); Phillips v. State, 794 So.2d 1034, 1036-1037(¶ 8) (Miss.2001).

¶ 20. The trial judge refused to grant instruction D-7A because there was no evidence to support a lesser-offense instruction. Ellis presented no evidence in support of any lesser offense or any possible defenses to his actions. Ellis intentionally killed Tapp during the commission of an armed robbery; this is capital murder. The Mississippi Supreme Court in discussing when lesser-included offense instructions should be granted, stated:

[a] lesser-included offense instruction should be granted unless the trial judge and ultimately this Court can say, taking the evidence in the light most favorable to the accused and considering all the reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of a lesser-included offense (conversely, not guilty of at least one essential element of the principal charge).

McGowan v. State, 541 So.2d 1027, 1028 (Miss.1989). Ballenger v. State 667 So.2d 1242, 1255 (Miss.1995). This issue is without merit.

IV. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN NOT DIRECTING A VERDICT IN FAVOR OF ELLIS, OR IN THE ALTERNATIVE A JNOV?

¶ 21. Ellis contends that the trial court committed reversible error in not directing a verdict, or in the alternative, granting a JNOV. Ellis claims that even though no evidence was presented by him pertaining to a defense of the charge the trial court should have granted a directed verdict on his behalf, which would have, in essence, adjudged the evidence and testimony presented by the State untrue.

¶22. Our supreme court stated the applicable standard of review in McClain v. State, 625 So.2d 774, 778 (Miss.1993):

In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the accused’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

(citations omitted). “If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.” Meshell v. State, 506 So.2d 989, 990 (Miss.1987). See also Haymond v. State, 478 So.2d 297, 300 (Miss.1985); Fairley v. State, 467 So.2d 894, 902 (Miss.1985).

¶ 23. The evidence presented by the State was more than sufficient to sustain a guilty verdict. This issue is without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO RUN CONSECUTIVELY TO 97-1-095 AND 97-3-215 — COUNTS I AND II IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST HINDS COUNTY.

McMILLIN, G.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Desmond Earl PHILLIPS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00195-COA.
    Court of Appeals of Mississippi.
    May 20, 2003.
    Rehearing Denied Aug. 19, 2003.

      Desmond Earl Phillips (pro se), attorney for appellant.
    Office of the Attorney General by: Billy L. Gore, attorney for appellee.
    Before KING, P.J., THOMAS, and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Desmond Earl Phillips, pro se, appeals an order of the Circuit Court of Lafayette County, Mississippi, denying his petition for post-conviction relief. Aggrieved, he asserts the following issues:

I. APPELLANT IS NOT BARRED FROM PROSECUTING THIS CIVIL CAUSE, ESPECIALLY WHERE APPELLEE WILL NOT BE PREJUDICED THEREBY.
II. THE CIRCUIT COURT JUDGE WAS ASSIGNED TO THIS CASE ERRONEOUSLY, THUS, SHOULD HAVE RECUSED HIMSELF.
III. THE CIRCUIT COURT JUDGE ERRONEOUSLY DENIED APPELLANT AN EVIDENTIARY HEARING BY VIOLATING THE “LAW OF THE CASE” DOCTRINE.

Finding no error, we affirm.

PROCEDURAL HISTORY AND FACTS

¶ 2. Desmond Earl Phillips pled guilty to a reduced charge of conspiracy to commit forgery on April 12, 1983. On July 11, 1983, Phillips was sentenced to five years, which was suspended, and he was placed on probation for a period of five years. On April 9, 1999, Phillips filed a “Petition for Post-Conviction Relief from Prior Judgment of Conviction Used to Enhance Current Sentence,” claiming he was never informed that by pleading guilty he was waiving his right against self-incrimination. On August 18, 2000, Phillips filed a supplemental brief alleging that his suspended sentence was not authorized by statute and was illegal because when he pled guilty he already had a prior conviction. Circuit Judge Kenneth Coleman dismissed the motions without an evidentiary hearing, ruling that the claims were time barred. Phillips then filed a motion to amend, alter, and vacate order, and also requested that Judge Coleman recuse himself. Judge Coleman granted this motion. Circuit Judge Henry Lackey was assigned the case and denied Phillips’ motions as being time barred. Phillips again filed motions to amend, alter, and vacate order, and for Judge Lackey to recuse himself. These motions were denied and Phillips perfected his appeal to this Court.

ANALYSIS

I. IS APPELLANT BARRED FROM PROSECUTING THIS CIVIL CAUSE, WHERE APPELLEE WILL NOT BE PREJUDICED THEREBY?

¶ 3. Phillips asserts that he is not barred from bringing his motion for post-conviction relief because it is in regard to an illegal sentence and is therefore exempt from the time bar as a fundamental right. United States v. Sine, 461 F.Supp. 565, 568 (D.C.S.C.1978). According to Phillips, he had prior felony convictions on his record and therefore his being given a suspended sentence and probation was illegal under Miss.Code Ann. § 47-7-38 (Rev.2000).

¶ 4. This Court reviews the denial of post-conviction relief under an abuse of discretion standard. Mitchell v. State, 754 So.2d 519, 521(¶ 7) (Miss.Ct.App.1999). As in the case of Shaw v. State, 803 So.2d 1282 (Miss.Ct.App.2002), there is a problem in that Phillips has already served the sentence for which he now complains. Phillips was sentenced to five years, which was suspended, and was placed on probation for five years in 1983. Therefore, his sentence expired in 1988. Mississippi Code Annotated Section 99-39-5(1), which deals with the grounds for relief afforded by our post-conviction statutes, clearly states “[a]ny prisoner in custody under sentence of a court of record of the State of Mississippi who claims that the conviction or the sentence ...” Miss.Code Ann. § 99-39-5(1) (Rev.2000). This language indicates that for someone to be able to take advantage of our post-conviction laws they must be currently incarcerated for a crime for which they were convicted by a Mississippi court. Shaw, 803 So.2d at 1284(¶ 7). Because it appears Philhps was never incarcerated for the crimes he was convicted for in 1983 and is no longer on probation for them, then he is unable to challenge the sentence through the use of a motion for post-conviction relief. Id.

¶ 5. The statute of limitations for filing a petition for post-conviction relief is three years after a guilty plea is entered. Miss.Code Ann. § 99-39-5(2) (Rev.2000). Phillips pled guilty in 1983, but § 99-39-5(2) was not passed until April 17, 1984. When a conviction predates the adoption of the post-conviction relief statutes in 1984, the inmate has three years in which to file a petition for relief. Odom v. State, 483 So.2d 343, 344 (Miss.1986). Therefore, Phillips’ last opportunity to seek post-conviction remedies ended in 1987. Phillips argues that his case falls into the exception to the statute, which states as follows:

Excepted from the three-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.

Miss.Code Ann. § 99-39-5(2) (Rev.2000). Phillips argues his fundamental right to enter a knowing and intelligent guilty plea is involved because the trial court never explained to him the rights he was giving up by pleading guilty. If Phillips had filed this motion for post-conviction relief within the three-year statutory period, and while he was still serving his sentence, then perhaps his claim would have more merit. However, our post-conviction statutes are available only to those serving a sentence for the crime for which they were convicted by a Mississippi court of record. Since Phillips is not currently incarcerated for his conspiracy to commit forgery conviction for which he now complains, then the issue of whether the statute of limitations has run is moot. Shaw, 803 So.2d at 1284(¶ 8).

II. WAS THE CIRCUIT COURT JUDGE ASSIGNED TO THIS CASE ERRONEOUSLY, THUS, SHOULD HE HAVE RECUSED HIMSELF?

¶ 6. Phillips contends that Judge Lackey should have recused himself because he was assigned Phillips’ case by Judge Coleman, who recused himself because he was the district attorney at the time Phillips was indicted. Lacking any showing of impropriety or the appearance of partiality, Phillips fails to demonstrate any reason to this Court why he should be allowed to overcome the time bar which took effect over sixteen years ago. This issue is without merit.

III. DID THE CIRCUIT COURT JUDGE ERRONEOUSLY DENY APPELLANT AN EVIDENTIA-RY HEARING BY VIOLATING THE “LAW OF THE CASE” DOCTRINE?

¶ 7. Phillips asserts that an order was issued on October 18, 1999, which authorized an evidentiary hearing. This evidentiary hearing never occurred, because the trial court dismissed Phillips’ motion for post-conviction relief due to the time bar. The trial court did not err in dismissing Phillips’ motion under Miss. Code Ann. § 99-39-5(2) (Supp.2002) as being time barred. The statute waives the time bar when the supreme court of this State or of the United States has handed down a decision that would have changed the outcome of the case, when new and nearly conclusive exculpatory evidence is presented that had not been reasonably discoverable at the time of trial, or when the argument is that the sentence has expired or that probation or parole has been improperly revoked. Id. Scott v. State 791 So.2d 313, 314(¶ 3) (Miss.Ct.App.2001). Phillips fails to meet any of these requirements. This issue is without merit.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

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