author: 19S0L GOTHARD, Judge.

text:
    Joan Marosz GRAVLEY, Individually and in her Capacity as the Natural Tutrix of the Minor Children, Kevin Gravley and Rochelle Gravley v. STATE FARM INSURANCE COMPANY, Parish of Jefferson and State of Louisiana, Department of Transportation and Development and Gary L. Sheffler.
    No. 03-CA-0120.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 29, 2003.
    Rehearing Denied Sept. 3, 2003.
    Stephen D. Enright, Jr., Connick & Conniek, Metairie, LA, for Defendants/Appellants.
    Leonard L. Levenson, New Orleans, LA, and Zara Zeringue, Metairie, LA, for Plaintiffs/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and CLARENCE E. McMANUS.
   19S0L GOTHARD, Judge.

In this wrongful death action, defendant, State of Louisiana, Department of Transportation and Development (DOTD), appeals a decision by the trial court that found it 50% liable for damages sustained in the automobile accident, which were set at $850,000. For reasons that follow, we reverse the finding that DOTD is liable for this accident.

The record shows that, on July 9, 1986, Carl Gravley was killed in an automobile accident on Louisiana Highway 45 when his vehicle failed to negotiate “Fleming’s Curve,” crossed the center line and collided with a vehicle traveling in the opposite direction driven by Gary Sheffler. At the time of the accident, Gravley was intoxicated, with a blood alcohol level of .24. Grav-ley’s widow and two children filed this wrongful death action against the driver of the other vehicle, his insurance company and DOTD.

The litigation in this action was protracted and did not go to trial on the merits before the bench until February 20, 2002. It is important to note that on April 13, 1998, the trial court rendered a partial summary judgment which found | othat Fleming’s Curve is unreasonably dangerous as a matter of law pursuant to Martin v. DOTD, 95-139 (La.App. 5 Cir.11/15/95), 665 So.2d 457, writ denied, 95-2983 (La.12/14/95), 666 So.2d 657. However, in that same ruling, the trial court denied the motion for summary judgment on the issue of whether the curve was a cause-in-fact of the accident. Thus, the matter went to trial on causation and quantum, with DOTD as the only remaining defendant.

Post trial memoranda were filed and considered, and a judgment was rendered from the bench on April 22, 2002. The judgment was reduced to writing and signed on June 4, 2002. That judgment held in favor of plaintiffs, finding that liability should be split 50-50 between Grav-ley and DOTD. The judgment further awarded damages of $850,000, which were reduced to $425,000 because of the finding of 50% fault on the part of Gravley. DOTD appeals that judgment, arguing that the trial court erred in assessing fault on the part of DOTD, and in awarding excessive damages.

At trial Joan Gravley, the widow of Carl Gravley, testified that the couple had been married since 1970 and had two children, who were 12 and 13 at the time of the accident in 1986. Ms. Gravley described her husband as a “cool, calm kind of guy,” who enjoyed spending his leisure time fishing. She also testified that Carl was very involved with his children and spent as much time with the family as his work permitted. Mr. Gravley was employed with F.W. Woolworth Company as a co-manager at the time of his death. He had been with the company for over fifteen years and worked long hours. He was the main breadwinner of the family, and was earning about $28,000 per year at the time of his death in 1986. She described the last day of her husband’s life as a happy family day. She continued in her testimony, describing the emotional distress she experienced when she got the call from the hospital telling her of the accident, and during the aftermath of making funeral arrangements. She also described the adverse impact Carl’s death |4had on the family in terms of emotional and financial tolls. She explained that, although Carl’s drinking was a problem between the couple, their relationship was good overall.

On cross-examination, Mrs. Gravley testified that her husband often went fishing in Lafitte and was familiar with the roadway on which the accident occurred. Mrs. Gravley also testified that Mr. Gravley’s drinking was a problem for them and that he had spent six weeks in F. Edward Hebert Hospital in treatment for alcoholism. The treatment worked for about one year, after which Mr. Gravley began to drink again.

The court also heard testimony from Mr. Gravley’s daughter, Rochelle Gravley Og-eron, who was twelve when her father died. She spoke lovingly of her time with her father before his death, and described him as a family man who spent Sundays with his family. She also testified that her father went to Lafitte often to fish.

Mr. Gravley’s son Kevin, who was thirteen at the time of the accident, described his life with his father as a happy one in which they would interact in many father/son activities such as sports and fishing. Kevin testified that he went fishing with his father and that his father had two favorite spots. The Jean Lafitte National Park and the Harvey Locks were the two fishing spots to which the duo would go. He also stated that his father traveled the road to Lafitte and the curve in the road at which the accident happened often and knew it well.

Mr. Gary Scheffler, the driver of the other car involved in the accident, testified that he and his wife were traveling south on Highway 45 toward Lafitte. When they approached a curve, Mr. Scheffler saw a truck approaching in the opposite direction that was not making the curve well and was crossing over into the oncoming lane. Mr. Scheffler stated that he knew the other vehicle would not make the turn. Mr. Scheffler tried to veer far enough off the road to avoid the | ¡¡accident, but was unable to do so. He testified that the accident happened so fast, he could not avoid the oncoming truck driven by Mr. Gravley. Mr. Scheffler explained that he had already come out of the curve and was on the shoulder of the road when the oncoming vehicle struck his truck. Mr. Scheffler stated that his family owned a camp in Lafitte and he was familiar with the roadway and the curve, known as Fleming’s Curve.

The record also contains documentary evidence of the toxicology report on Mr. Gravley that shows his blood alcohol level was .24, numerous photographs of the accident scene, and a large plot plan of the curve near which the accident occurred.

There are also depositions of various experts in accident reconstruction. One of those experts, Raymond Burkart, testified that the Gravley vehicle went off the roadway on the right side and attempted to steer back onto the travel portion of the roadway, but overcompensated and went into the oncoming lane. Mr. Burkart opined that the sequence of events that occurred after the vehicle went off of the roadway would have occurred regardless of the condition of the driver. However, Mr. Burkart also testified that the level of intoxication may have caused the vehicle to go off the roadway initially, and would cause a delayed reaction and impaired judgment in getting back onto the roadway. Mr. Burkart further testified that the vehicle left the roadway prior to the curve, and the attempt to recover maneuver occurred in the curve. Mr. Burkart testified that a driver with Mr. Gravley’s blood alcohol level would be “highly impaired.” Mr. Burkart stated that Mr. Gravley was traveling about 40 to 45 MPH when the accident happened, which is within the speed limit at that point of the highway. He also testified that, while Mr. Gravley’s intoxication may have been a factor in the initial problem of leaving the roadway, the overcompensation to return to the roadway might not have been effected by the intoxication because it happened in the middle of the curve. |fiHowever, Mr. Burkart stated that Mr. Gravley’s impaired condition and resulting slower reaction time did prevent him from taking the evasive action necessary to avoid the oncoming traffic and return to the right lane in time to avoid the accident. Nevertheless, Mr. Burkart did state that, in his opinion, the roadway was a cause of the accident.

Mr. Joseph Blaschke, another expert who offered testimony in a deposition, stated that he found the sole cause of the accident was driver error. Mr. Blaschke testified that Mr. Gravley was traveling at an excessive rate of speed, and was “extremely impaired” by the consumption of alcohol.

After consideration of the evidence and testimony offered at trial and by deposition, the trial court ruled that the roadway was a cause-in-fact of the accident, and that fault would be apportioned equally between DOTD and Gravley.

CAUSATION

Because this accident occurred in 1986, the plaintiff is only required to prove the traditional elements of strict liability under La. C.C. art. 2817. Dupree v. City of New Orleans, 99-8651 (La.8/31/00), 765 So.2d 1002. Therefore, the plaintiff had to prove that: (1) the DOTD owned or had custody of the thing that caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; and (3) the defect was a cause-in-fact of the accident. Id. Plaintiffs in this case do not have to show knowledge of the defect pursuant to La. R.S. 9:2800.

There is no question that DOTD had custody of the roadway, and as previously stated, the issue of whether the roadway is unreasonably dangerous has already been decided against DOTD in summary judgment, and that ruling has not been appealed. Thus, our inquiry will not include a discussion on those issues. The only remaining issue is whether the plaintiffs met the burden of proving the defect was a cause-in-fact of the accident.

|7In making the ruling in the instant case, the trial court relied on Petre v. State Ex Rel. DOTD, 01-0876 (La.4/3/02), 817 So.2d 1107. In Petre, the Louisiana Supreme Court considered the question of whether DOTD can be held liable for an accident when the intoxication of the vehicle’s driver was a major cause of the accident. In Petre, the court refused to create a hard and fast rule that an intoxicated driver cannot recover from DOTD for injuries sustained in an accident on an unreasonably dangerous roadway. Rather, the court used the manifest error standard to review the finding that road conditions were a cause-in-fact of the accident. Further, the Petre court analyzed the allocation of fault on a traditional manifest error/clearly wrong standard of review that included consideration of the factors set out in Watson v. State Farm Fire & Casualty Co., 469 So.2d 967, 974 (La.1985). The Petre court stated:

Whether or not we agree with the equal allocation of fault between Ms. Petre and DOTD, we find it difficult, if not impossible, to conclude that the district court’s reasoning was manifestly erroneous. In analyzing the allocation of fault of the parties, the court of appeal correctly applied the manifest error standard. Petre, 775 So.2d at 1265. Furthermore, the court of appeal was correct in applying the Watson factors, which include the following: 1) whether the conduct results from inadvertence or involved an awareness of the danger; 2) how great a risk was created by the conduct; 3) the significance of what was sought by the conduct; 4) the capacities of the actor, whether superior or inferi- or; and 5) any extenuating circumstances that might require the actor to proceed in haste, without proper thought.
Id. 817 So.2d at 1114-1115.

In accordance with Petre, we will review the issues of causation and allocation of fault using the manifest standard and the five factors of Watson. These factors are an elaboration on the concept of assessing the percentages of fault by consideration of the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. Watson, supra, quoting from Section 2(b) of the Uniform Comparative Fault Act and the Comments thereto.

| sIn the instant case, the roadway was found to be unreasonably dangerous and that fact is not in dispute. It is also undisputed that Gravley’s level of intoxication at the time of the accident caused him to veer off the roadway, and was a major cause of the accident. In collisions that occur as a result of a motorist’s act of driving his vehicle into that part of the roadway reserved exclusively for traffic proceeding from the opposite direction, there is a presumption of negligence. Cross v. State, 95-858, 95-859, 95-860 (La.App. 5 Cir. 2/27/96), 670 So.2d 1324. The burden then shifts to the motorist to show by clear and convincing evidence that his sudden presence in the opposing lane of traffic was due to unexpected and unforeseen circumstance over which he had no control and that he did not contribute to the mishap. Alford v. Estate of Zanca, 552 So.2d 7, 13 (La.App. 5 Cir.1989). “Clear and convincing” evidence means that the driver who crosses into the opposite lane of travel must clearly exhibit that his conduct in no way contributed to the accident. Cross, supra, 670 So.2d at 1327.

It is clear from the record that the trial court found each party equally liable because it was following Petre. However, as previously noted, Petre did not require a strict 50-50 split of liability. The majority opinion in Petre merely found that the trial court was not manifestly erroneous under the facts in that case. In Petre an intoxicated driver left the paved portion of the roadway, and, because of a ditch was unable to negotiate the vehicle back onto safe ground, causing the car to become airborne. Petre involved a one-car accident in which the driver did not cross the center line. The trial court found the dangerous condition of the shoulder and the ditch along side of the roadway was a cause of the accident.

In the instant case, unlike Petre, Mr. Gravley traveled into the opposite lane of traffic and must bear the presumption of negligence. Further, our plaintiffs must show, by clear and convincing evidence, that no error in his driving caused his presence in the opposite lane of traffic. We find the plaintiffs herein have failed to 1 flmeet that burden, and the trial court was clearly wrong when it ruled that DOTD was partially liable for the accident.

Mr. Gravley was very familiar with the roadway. There is ample testimony that Gravley traveled this road often to reach his favorite fishing spot, without mishap. There is also evidence to show that Mr. Gravley was traveling at a rate of speed of about 40 to 45 miles per hour when he went off of the roadway, and was intoxicated with an alcohol blood level of over twice the legal limit. There is no evidence that any other factor caused Mr. Gravley to leave the roadway before approaching the curve. Although the design of the roadway could have contributed to his inability to recover from the initial driving error, it is also evident that his level of intoxication affected his judgment and reaction time, making it unlikely that he could return safely to the roadway. Mr. Gravley was driving drunk at 40 to 45 miles per hour around a dangerous curve he knew well. Because of his high level of intoxication he left the roadway before he even reached the curve and overcorrected to attempt a return to the highway surface, causing him to cross over into the oncoming lane of traffic. His level of intoxication, which affected his judgment and reaction time, prevented him from recovering after he overcompensated for the excursion off the roadway. Under these facts we find that Mr. Gravley was 100% at fault in the accident and we reverse the trial court’s allocation of 50% to DOTD.

DOTD also appeals the award of damages. Because we find Mr. Gravley 100% at fault in this accident, this issue is moot.

For the foregoing reasons, the judgment of the trial court is reversed insofar as it finds DOTD at fault in this accident and judgment is rendered finding Mr. Gravley 100% at fault in the accident.

REVERSED.

      . The other driver and his insurer, originally named as defendants, were released on summary judgment. Thus, at the time of trial the only defendant remaining was DOTD.


source: Caselaw Access Project

author: LEDWARD A. DUFRESNE, JR., Chief Judge.

license: Public Domain

text:
    Brenda TRICHE, v. Gladys ROSS and Her Insurance Liability Carrier, Allstate Insurance Company Gladys Ross, v. Brenda C. Triche and State Farm Mutual Automobile Insurance Company.
    Nos. 03-CA-327, 03-CA-328.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 29, 2003.
    Rehearing Denied Sept. 3, 2003.
    Stephen P. Bruno, New Orleans, LA, for Defendan1>-Appellant.
    Ramona N. Wallis, New Orleans, LA, for Defendant-Appellant.
    Kelly C. Ellis, Metairie, LA, for Defendant-Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   LEDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Gladys Ross and her insurer, Allstate Insurance Co., defendants-appellants, from an adverse judgment in favor of Brenda Triche, plaintiff-appellee, in this rear-end automobile collision case. Because we find no manifest error in the factual findings of the trial judge, we affirm.

The accident in question occurred on Sunday, July 30, 2000, at raid-morning on the westbound I — 10 in Kenner, Louisiana. Brenda Triehe, the following driver, testified that there was a light rain falling and that she was going about 45 mph in the center lane of the three lane roadway. She said that she was about five or six car lengths behind the car in front of her when suddenly that car swerved into the right lane. At that point she saw the backup lights of Gladys Ross’s car in front of her and said that the car was indeed backing up. Triehe said that she applied her brakes, but skidded on the wet road and struck the Ross car. She said further that she was unable to change lanes to avoid the collision because of traffic in the lanes on either side of her.

A.J. Delaneauville, Triche’s son-in-law, was in the passenger seat. He said that when the car in front of them veered into the right lane he saw the white |sback-up lights of the Ross vehicle. However, he was unsure if it was actually backing up.

Officer Michael Archuleta investigated the accident. He testified that Triehe did not tell him anything about the Ross vehicle backing up or about seeing white backup lights. He further stated that Ross told him she had missed her exit from the interstate. He described the weather as light rain, and the road as wet, but without puddles.

Gladys Ross testified that she was driving about 40 mph. She denied missing her exit. She said that she was going to her home in Sunset, Louisiana which was miles further west and had no intention of stopping until she got there. She also denied backing up.

Both parties filed suit and the matters were consolidated for a judge trial. After hearing the above evidence the trial judge rendered a judgment awarding Triehe slightly less than nine-thousand dollars in total damages, and dismissing Ross’s suit. In his reasons for judgment delivered from the bench the trial judge stated:

Obviously, this is a no middle ground case. I can’t zig and zag too much. I’m going to have to be very simplistic and zero in on the primary and only issue, that being whether or not this is a traditional rear-ender or, as the other side says, Ms. Ross was in the process of backing her vehicle on a state road.
Ms. Ross denies backing and says she was hit from the rear by the Triehe vehicle. Ms. Triehe says that she saw, specifically, Ms. Ross backing up, and that testimony is aided somewhat by her son-in-law, who supports her testimony by saying he saw the white backup lights on indicating that the Ross vehicle was in the process of backing up.
What gives me help in this, rightly or wrongly, but, what leads me to my conclusion what is more likely than not that happened, was Ms. Ross’s statement that she may have passed up her exit.
That leads me to believe and find that because of that, she was in the process of backing her vehicle and thus her actions constituted the sole and proximate cause of this accident.

Ross and her insurer now appeal.

The only issue on appeal is whether the trier of fact was manifestly erroneous in making his factual findings. In Rosell v. ESCO, 549 So.2d 840 (La.1989) the court stated that an appellate court may not set aside factual findings |4made by the trier of fact unless those findings are manifestly erroneous or clearly wrong. It went on to say that where the entire record shows that the trier of fact has made reasonable determinations as to the credibility of conflicting witnesses, such determinations “can virtually never be manifestly erroneous or clearly wrong.” (at 845).

Here, the trier of fact found the rendition of events offered by Triehe more credible than that of Ross. Considering the entire trial transcript, we find no manifest error in this determination. Admittedly there were inconsistencies in Triche’s version, particularly the testimony of the investigating officer that Triehe did not mention to him at the scene that Ross was backing up. However, that same officer testified that Ross told him she had missed her exit, a fact which Ross denied. Ultimately the case was decided on the basis of credibility determinations as to the various witnesses, and we find nothing in the testimony of those believed by the trier of fact to have been so inconsistent or implausible, or so contradicted by documentary evidence so as to have rendered it unbelievable by a reasonable trier of fact. Rosell v. ESCO, supra, (at 845-45). That being the case, we must affirm the judgment of the trial court.

For the foregoing reasons the judgment of the trial court in these consolidated cases is hereby affirmed.

AFFIRMED


author: | gPARRO, J.

text:
    TERREBONNE PARISH SCHOOL BOARD v. BASS ENTERPRISES PRODUCTION COMPANY and Franks Petroleum, Inc.
    No. 2002 CA 2119.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 8, 2003.
    Rehearings Denied Sept. 11 and 30, 2003.

      Michael X. St. Martin, Joseph G. Jevic, III, St. Martin & Williams, Houma, A.J. Gray, III, Wade T. Visconte, The Gray Law Firm, Lake Charles, for Plaintiff-Appellant Terrebonne Parish School Board.
    Charles D. Marshall, Jr., David N. Schell, Jr., Milling Benson Woodward L.L.P., New Orleans, for Defendant-Ap-pellee Bass Enterprises Production Co.
    J. William Fleming, F. Drake Lee, Jr., Cook, Yancey, King & Galloway, Shreveport, for Defendant-Appellee Franks Petroleum, Inc.
    Before: PARRO, McDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | gPARRO, J.

Terrebonne Parish School Board (TPSB) appeals a judgment granting motions for summary judgment in favor of Bass Enterprises Production Company (Bass) and Franks Petroleum, Inc. (Franks), dismissing its claims against them on the basis that they were prescribed. Finding there is an “indispensable” party who has not been joined in the suit, we set aside the judgment of the district court and remand the case.

FACTUAL AND PROCEDURAL BACKGROUND

Section 16, Township 17 South, Range 13 East (the property) lies in Terrebonne Parish, and TPSB has the right to a proportionate share of any revenues derived from the property. On September 14, 1977, TPSB entered into a mineral lease with Bass and Franks covering the property, which is marshland located in a coastal wetland area of the parish. Among its provisions, the lease granted the mineral lessee the right to dredge canals. Bass dredged a canal to gain access to the drilling site and drilled a well; it was a dry hole, which was plugged and abandoned in July 1978. No additional operations were conducted on the property by Bass and Franks and no rentals were paid, so after three years, the lease terminated in accordance with its terms. Bass and Franks had no further involvement with the property.

In October 1999, TPSB filed this suit against Bass and Franks in its capacity as an owner and mineral lessor of the property, alleging the defendants had breached their contractual duty required by the mineral lease to restore the property, “to the 13extent reasonably possible of accomplishment, ... to a condition as nearly equivalent to that which existed before” they conducted their drilling operations. TPSB claimed the access canal had adversely impacted this coastal wetland property by the physical removal of marsh terrain, creation of spoil banks, and impairment of the natural flow of water over and across the property. TPSB asserted that the continued existence of the canal and spoil banks on the property was causing the destruction of the land, as erosion, loss of vegetation, and subsidence slowly and inexorably transformed it from stable marshland to open water. TPSB further alleged that, because the alteration of the marsh ecology had been a gradual and continuing process, it was unaware of its claim until sometime within the year prior to filing suit. TPSB urged the doctrine of contra non valentem as a defense to any assertion that its claims had prescribed. In the alternative, it alleged the failure to rectify the damage constituted a continuing tort and a continuing trespass, precluding the tolling of the prescriptive period. TPSB sought damages in an amount sufficient to restore the property to its original condition.

Eventually, Bass and Franks filed motions for summary judgment, asserting TPSB’s contract and tort claims were prescribed. The motions were supported with affidavits, a copy of the 1977 mineral lease, a copy of the 1978 operating agreement, a copy of the 1978 plug and abandon report, TPSB’s responses to various discovery requests, a copy of a 1985 mineral lease between TPSB and a different lessee, a copy of a newspaper article, minutes from TPSB meetings in 1981 and 1982, a transcript of TPSB committee proceedings in 1996, and copies of judgments from other lawsuits concerning the same issues. TPSB opposed the motions on the basis that the State of Louisiana (the State) retained an ownership interest in all sixteenth section lands, and prescription could not run against the State, even if those properties were administered by a state agency or other political subdivision. It further argued that, with respect to sixteenth section lands, the State and TPSB were solidary obligees vis-a-vis Bass and Franks, and therefore, the constitutional provision that prescription shall not run against the State operated to the benefit of TPSB also.

14After a hearing, the trial court granted the motions for summary judgment, finding that all of TPSB’s claims against Bass and Franks had prescribed. A judgment to that effect was signed April 30, 2002, and this appeal followed. TPSB re-urges on appeal the arguments it made to the trial court, namely, that Louisiana’s constitutional prohibition of prescription running against the State may be invoked by TPSB and is applicable to its claims concerning the sixteenth section property.

DISCUSSION

Having reviewed the record in its entirety, this court is struck by the absence of the St. Mary Parish School Board (SMPSB) from this lawsuit, despite the facts that: (1) a portion of the township within which this sixteenth section property lies is located in St. Mary Parish, thereby entitling SMPSB to a proportionate share of the revenues from the property; and (2) SMPSB was one of the lessors in the mineral lease with Bass and Franks, the alleged breach of which is ultimately the basis for the claims in this lawsuit. As previously noted, although Bass and Franks filed an exception raising the objection of nonjoinder of a party under Louisiana Code of Civil Procedure articles 641 and 642, the exception was never set for hearing and was not ruled on before the district court adjudicated the motions for summary judgment, dismissing TPSB’s claims as prescribed.

The threshold issue for this court, therefore, is whether SMPSB should have been joined as a party to these proceedings. Article 641 of the Louisiana Code of Civil Procedure provides that a person shall be joined as a party in the action when he claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may, as a practical matter, impair or impede his ability to protect that interest or may leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations. LSA-C.C.P. art. 641. Articles 641 through 646 were amended by 1995 La. Acts, No. 662, § 1. Prior to those amendments, the party described in Article 641 was referred to as an | [¡indispensable party, and there could be no adjudication unless all indispensable parties were joined in the action. See Matherne v. Guilliot, 544 So.2d 723, 725 (La.App. 3rd Cir.), writ denied, 551 So.2d 633 (La.1989). While the latter provision no longer appears in Article 641, by using the word, “shall,” the article still makes mandatory the joinder of the person described in Article 641 as a party to the suit. Stephenson v. Nations Credit Fin. Svces Corp., 98-1689 (La.App. 1st Cir.9/24/99), 754 So.2d 1011, 1018.

Thus, an adjudication made without making a person described in Article 641 a party to the litigation is an absolute nullity. Stephenson, 754 So.2d at 1018-19; Frey v. American Quarter Horse Ass’n, 95-157 (La.App. 5th Cir.7/25/95), 659 So.2d 849, 852. The analysis of whether there is an unjoined indispensable party must be made prior to any adjudication, not after it. Frey, 659 So.2d at 852. As was the case before the 1995 amendment to these articles, the failure to join a party to an action may be pleaded in the peremptory exception, or may be noticed by the trial or appellate court on its own motion. LSA-C.C.P. arts. 645 and 927; Stephenson, 754 So.2d at 1018.

After careful consideration and with some reluctance, this court has concluded that SMPSB must be joined in this action. While we would prefer to address the merits of the arguments presented on appeal, we are constrained to set aside the judgment of the trial court and remand this matter for the joinder of SMPSB.

As noted by Bass and Franks in their exception, a portion of Township 17 South, Range 13 East lies in St. Mary Parish. Louisiana Revised Statute 41:640 entities SMPSB to a proportionate share of the proceeds or revenues derived from the sixteenth section property at issue in this case in proportion to the percentage of the township lying in St. Mary Parish. The 1977 mineral lease with Bass and Franks was entered into by the State Mineral Board on behalf of both TPSB and SMPSB as lessors. It clearly stated that although the leased property is situated entirely within Terrebonne Parish, the township | s“is located 83.08% in the Parish of Terrebonne and 16.92% in the Parish of St. Mary,” and authorized and directed the mineral lessee to pay any and all rentals and royalties to the two lessors separately and in those proportions. In addition to being contractually required by the lease, this proportionate division is mandated by Louisiana law. See LSA-R.S. 41:640(B). Because contractual proceeds and revenues attributable to the property are clearly divisible between the school boards of the two parishes, they are not solidary obligees with respect to any such revenues. See LSA-C.C. arts. 1789 and 1790. We believe the proportionate division of contractual proceeds and revenues mandated by the statute is also applicable to damages for breach of any such contract. Therefore, Louisiana Code of Civil Procedure article 643, which allows a solidary obligee to sue to enforce a solidary right without the necessity of joining all other solidary obligees in the action, is not applicable to the contractual claims in this case.

It might appear from the divisibility of the revenues and proceeds that either or both parties could sue for their respective interests in the appropriate district court or courts, making it unnecessary to join SMPSB in this action. However, although TPSB and SMPSB have distinct and divisible rights to any proceeds attributable to the property, any decision rendered for or against TPSB on the particular claims made in this case will, as a practical matter, impede or limit SMPSB’s ability to protect its similar interests in the property. Using the district court’s judgment in this case as an example, if this court were to affirm the judgment that TPSB’s claims were prescribed, SMPSB would be impeded or limited in its ability to assert similar claims against Bass and Franks, without ever having had the opportunity to protect those interests. On the other hand, if SMPSB were to file a separate suit making similar claims in another |7district court, which then concluded on the basis of the facts and argument presented to it that these claims had not prescribed, the defendants would be subject to a substantial risk of incurring inconsistent obligations with respect to the property. In addition, the two parties having the exact same interests in the property would have inconsistent rights to recover on their-claims. TPSB would be precluded from recovering its 83.08% of whatever damages might be recovered, while SMPSB could conceivably recover its 16.92% based on the same claims regarding the same property.

These are the precise reasons requiring joinder of an absent party, as set out in Article 641. It is axiomatic that courts are without power to adjudicate the rights of a person who is not a party to the litigation or appropriately represented. When an appellate court notices the absence of indispensable parties to a suit on appeal, the appropriate remedy is to set aside the judgment and remand the matter for joinder of the absent parties and retrial. State, Through Dep’t of Highways v. Lamar Adver. Co. of La., Inc., 279 So.2d 671, 675 (La.1973); see also Rainey v. Entergy Gulf States, Inc., 01-2414 (La.App. 1st Cir.7/2/03), - So.2d -, 2003 WL 21513390 (per curiam, on rehearing).

CONCLUSION

For the foregoing reasons, we set aside the judgment of the district court on the motions for summary judgment and remand the case for joinder of the St. Mary Parish School Board pursuant to Louisiana Code of Civil Procedure articles 644 and 646 and for further proceedings in accordance "with this opinion.

JUDGMENT SET ASIDE AND REMANDED.

      . The United States Congress donated certain lands to Louisiana and other states for public educational purposes. See 43 U.S.C. § 871a. Known as "sixteenth section” lands, they were the sixteenth section of every township and could be conveyed by the State to parish school boards to be used for educational purposes. See LSA-R.S. 41:631; Cacioppo v. Tangipahoa Parish School Bd., 404 So.2d 945, 946 (La.1981). See also Terrebonne Parish School Board ex rel. Public Schools of Terrebonne Parish v. Texaco, Inc., 178 So.2d 428 (La.App. 1st Cir.), writ refused, 248 La. 465, 179 So.2d 640 (1965), cert. denied, 384 U.S. 950, 86 S.Ct. 1568, 16 L.Ed.2d 546 (1966). School boards are authorized to lease sixteenth section lands for the development and production of minerals. See LSA-R.S. 30:151-158 and 41:640.

      .Although the property lies entirely in Terre-bonne Parish, the township in which this sixteenth section property lies is located partly in Terrebonne Parish and partly in St. Mary Parish. Therefore, pursuant to Louisiana law, the school boards of both parishes were parties to the mineral lease and were to receive a proportionate share of any revenues. See LSA-R.S. 41:640. However, the St. Mary Parish School Board was not a party to this suit. An exception raising the objection of nonjoinder of a party was filed by Bass and Franks, but there is no indication in the record that this exception was ruled on by the district court before it adjudicated the motions for summary judgment.

      . On the other hand, Article 643 provides that one or more solidary obligees may sue to enforce a solidary right without the necessity of joining the other solidary obligee(s) in the action.

      . Under Louisiana Code of Civil Procedure article 644, if a party subject to the jurisdiction of the court should join as a plaintiff, but refuses or fails to do so, he may be joined as a defendant and required to assert his rights in the action or be precluded thereafter from asserting them.

      . Louisiana Civil Code article 1789 provides that when a joint obligation is divisible, each joint obligee is entitled to receive only his portion. Article 1790 states that an obligation is solidary for the obligees only when it gives each obligee the right to demand the whole performance from the common obli-gor.

      . Although we conclude that the joinder of SMPSB is required before the breach of contract claim can be adjudicated, we express no opinion as to whether the same principles concerning divisibility of revenues and proceeds would extend to damages attributable to the tort claims concerning the property.

      .We note that an action arising from the breach of a lease of immovable property may be brought either in the parish where the immovable property is situated or in the parish where the defendant is domiciled. LSA-C.C.P. art. 80(A)(3). It appears from the petition that neither of the defendants in this case is domiciled in Terrebonne Parish, where the property is situated. Therefore, the possibility of a separate suit in another court exists.


author: EASLEY, J., CARLSON, J.,

text:
    Jamie RANDOLPH a/k/a Jamie Estus Randolph v. STATE of Mississippi.
    No. 1999-KA-02119-SCT.
    Supreme Court of Mississippi.
    Jan. 10, 2002.
    Rehearing Denied Nov. 21, 2002.

      Clifton S. Gaddis, Jeffrey Loewer Hall, Hattiesburg, Attorneys for Appellant.
    Office of the Attorney General by: Jean Smith Vaughan, Attorneys for Appellee.
   EASLEY, J.,

for the Court.

¶ 1. Jamie Randolph (“Randolph”) was tried and convicted in the Forrest County Circuit Court of two counts of capital murder with the underlying offense of robbery of Ezra Keyes and Marques Williams. Randolph was sentenced to two consecutive life imprisonments without the possibility of parole for both counts. Following the denial of his motion for JNOV or in the alternative for a new trial, Randolph appealed to this Court.

FACTS

¶2. Randolph did not testify at trial. Beau Christopher Bates (“Bates”) was indicted with Randolph as a co-defendant. Bates did testify at trial. According to Bates’s testimony, on April 10, 1998, Randolph called and asked Bates to pick him up at his grandmother’s house. Bates borrowed his girlfriend’s, Yana Bowden (“Bowden”), car to get Randolph. While in the car, Randolph allegedly told Bates he wanted to rob Ezra Keyes (“Keyes”), a.k.a. “Two-Tone”, and asked to borrow Bates’s gun. Randolph had mentioned robbing either Keyes or Tim Coleman (“Coleman”) a few weeks earlier. When they arrived at Randolph’s house, he went inside and paged Keyes. Randolph told Bates that he was going to page Keyes and ask for some “weed.” When Keyes arrived with another person, Randolph allegedly got into Keyes car. A few minutes later, Randolph got out of the car, went into the house, returned, and got back into Keyes’s car again. Then Bates heard two gunshots. Randolph told Bates to drive Keyes’s car because he was too nervous. Bates looked into the car and saw two people. The people were not alive. Keyes was in the driver seat, and Marques Williams, as Bates later learned, was in the passenger seat. Bates drove the car with the two bodies in it. At one point they stopped the cars, and Bates thought he saw something move out of the corner of his eye. Bates told Randolph that Keyes was scaring him. Randolph told Bates to get the gun out of the backseat and shoot Keyes. Bates shot Keyes in the chest.

¶ 3. Bates testified that he and Randolph took the car to an area where they parked and smoked. Then, Randolph started a fire in the car. Bates tried to extinguish the fire. Randolph told Bates that he was starting the fire to destroy all of the evidence. They burned some of their clothing, a tee-shirt and a jacket, in the fire.

¶ 4. Randolph and Bates left the area in Bowden’s car and returned to Carlo Bow-den’s house. When they arrived at the house, Bates asked Randolph for a wet wash cloth to clean himself; some of the blood was on him. Bates, also, had a shower and took off the pants he was wearing. Randolph stated that he had to leave Hattiesburg. The next morning, Randolph jumped into Bryan Croom’s car and that was the last time that Bates saw him. Bates later burned the rest of his clothes under a bridge.

¶ 5. Bryan Croom (“Croom”) testified that he and Coleman took Randolph to the bus station in New Orleans. Randolph borrowed money from Coleman. Then Coleman and Croom left and returned to the coast. Croom testified that on April 10 he passed Randolph’s house. He saw Randolph and Bates in Yana Bowden’s car. Croom did not stop. As Croom left Rawls Springs, he saw Keyes’s car; the vehicle was going towards Rawls Springs.

¶ 6. Mrs. Geraldine Lorch Bates (“Geraldine”) is Bates’s aunt. On Sunday April, 11, 1998, she discovered a burnt vehicle in an abandoned driveway on Lee Road in Forrest County. Jeff Byrd (“Byrd”), a crime scene technician, went to the crime scene and saw two burnt bodies in a car. One body was lying between the two front seats, and the second body was on its side leaning out the passenger door. The gas tank lid was open. A burnt .45 caliber semi-automatic Remington hand gun and some shell cases were found on the passenger side of the car.

¶7. The issues presented by Randolph overlap in certain instances and can be addressed more efficiently by combining some issues as follows:

I. Whether the verdict of the jury was against the overwhelming weight of the evidence.

II. Whether the trial court erred in denying defendant’s Motion for Directed Verdict at the close of the State’s case. Whether the trial court erred in failing to grant the defendant’s peremptory instruction that the jury must find the defendant not guilty. Whether the trial court erred in sentencing the defendant to the crime of capital murder, where defendant alleges he should have been sentenced to murder for the reason that there was insufficient proof of the underlying crime of robbery.

III. Whether the trial court erred when it overruled defendant’s objection to Motion to suppress statement of the defendant made by Eddie Clark, for the reason that said statement was admitted in violation of the Fifth and Sixth Amendment Right to Counsel of the United States’ Constitution and the Fourteenth Amendment to the Constitution of the United States of America and to the Constitution of the State of Mississippi.

IV. Whether the trial court erred in sustaining each and every objection of the State and in overruling each and every objection by the defendant.

V. Whether the trial court erred in refusing and/or amending defendant’s proposed jury instructions.

VI. Whether the trial court erred in allowing the prosecution to make prejudicial and inflammatory statements in closing arguments.

VII. Whether the trial court erred in the selection of the jury and in the State’s use of peremptory challenges.

VIII. Whether the trial court erred in the admission of testimony by Bryan Croom.

IX. Whether the trial court erred in admitting evidence of flight and granting a flight instruction.

X. Whether the trial court erred in admitting photographs of the crime scene and the victims.

ANALYSIS

I. Whether the verdict of the jury was against the overwhelming weight of the evidence.

¶ 8. Randolph asserts that the jury verdict was against the overwhelming weight of the evidence. He maintains that his conviction was based solely on unsubstantiated testimony of Bates, the co-defendant. Bates testified to killing Williams. Randolph also asserts no physical evidence substantiates Bates’s testimony or ties Randolph to the crime scenes. Further, Randolph distinguishes his case from Holmes v. State, 660 So.2d 1225 (Miss.1995), which holds that the testimony from a single credible witness is sufficient to sustain a conviction. He claims that the motives of a co-defendant to testify untruthfully is stronger than a victim to testify untruthfully.

¶ 9. A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). A reversal is warranted only if the lower court abused its discretion in denying a motion for new trial. Id. (citing Gleeton v. State, 716 So.2d 1083, 1088 (Miss.1998)). This Court held in McFee v. State, 511 So.2d 130, 133 (Miss.1987), that it has limited authority to interfere with a jury verdict. The court looks at all the evidence in the light that is most consistent with the jury verdict. Id. The prosecution is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Id.

[ I]f there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

Id. at 133-34. See also May v. State, 460 So.2d 778, 781 (Miss.1984). This Court has held that a new trial will not be given unless the verdict is so contrary to the overwhelming weight of the evidence that an unconscionable injustice would occur by allowing the verdict to stand. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 10. As to the credibility of witnesses, this Court in Gathright v. State, 380 So.2d 1276 (Miss.1980), has held that “in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court.” Gathright, 380 So.2d at 1277 (citing Davis v. State, 320 So.2d 789 (Miss.1975)).

¶ 11. In the case sub judice, the testimony at trial was that a few weeks prior to the crime, Randolph mentioned wanting to rob either Keyes or Coleman. On the night in question, Randolph allegedly told Bates he wanted to rob Keyes and asked to borrow Bates’s gun. Randolph told Bates that he was going to page Keyes and ask for some “weed.” Keyes arrived with another person, and Randolph got into Keyes’s car. Randolph got out of the car, went into the house, returned, and got back into Keyes’s car again. Bates heard two gunshots. Randolph told Bates to drive Keyes’s car because he was too nervous to drive. Keyes was in the driver’s seat, and Marques Williams was in the passenger seat. Bates drove the car with the bodies of Keyes and Marques Williams in it. They stopped the cars, and Bates thought he saw something move out of the corner of his eye. Randolph allegedly told Bates to get the gun out of the backseat and shoot Keyes. Bates shot Keyes in the chest, and they took the car to an area where they parked and smoked. Then, Randolph started a fire in the car to destroy all of the evidence.

¶ 12. Randolph and Bates went to Carlos Bowden’s (brother of Yana Bowden) house to wash themselves. Randolph stated that he had to leave Hattiesburg, and the next morning, he left with Croom. Croom and Coleman took Randolph to the bus station in New Orleans and gave him money before returning to the coast.

¶ 13. Based on the testimony at trial, the jury was provided substantial evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgement could have reached, and did reach, a verdict of guilty of two capital murders. Randolph clearly had the intent to rob Keyes and Mil the two victims. In addition, Randolph’s actions of burning the car and victims to destroy evidence and leaving Hattiesburg the following day was presented to the jury for consideration. As to Randolph’s assertion that his situation is distinguishable from Holmes, it must be remembered that the jury weighs the evidence and credibility of the testimony from witnesses. Gathright, 380 So.2d at 1277. In this case, the jury weighed all the evidence and accepted the testimony of witnesses against Randolph and determined his guilt. This Court finds that the issue is without merit.

II. Whether the trial court erred in denying defendant’s Motion for Directed Verdict at the closing of the State’s; whether the trial court erred in failing to grant the defendant’s peremptory instruction that the jury must find the defendant not guilty; whether the trial court erred in sentencing the defendant to the crime of capital murder, where defendant alleges he should have been sentenced to murder for the reason that there was insufficient proof of the underlying crime of robbery.

¶ 14. Randolph asserts that the State failed to prove the underlying crime necessary for a conviction of capital murder. Randolph was charged with capital murder and the underlying crime of robbery. He claims that while the evidence may suffice for a double murder conviction, the evidence did not establish beyond a reasonable doubt that he deprived or even attempted to deprive anyone of their personal property. Randolph relies upon this same reasoning concerning whether the trial court erred in failing to give a peremptory instruction requiring a verdict of “not guilty” and concerning whether the trial court erred in sentencing him to the crime of capital murder instead of murder because the evidence alleged was insufficient proof of the underlying crime of robbery.

¶ 15. Because issues involving directed verdicts, JNOVs, and peremptory instructions all challenge the legal sufficiency of the evidence, these issues will be addressed together.

Standard of Review

¶ 16. The standards of review for a denial of a directed verdict, peremptory instruction and a JNOV are identical. Coleman v. State, 697 So.2d 777, 787 (Miss.1997). In McClain v. State, 625 So.2d 774, 778 (Miss.1993), this Court held that a motion for JNOV, motion for directed verdict and a request for peremptory instruction challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d at 778. “Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court. This occurred when the Circuit Court overruled [the] motion for JNOV.” McClain, 625 So.2d at 778 (citing Wetz v. State, 503 So.2d 803, 807-08 (Miss.1987)). On the issue of legal sufficiency, this Court held in Wetz v. State, 503 So.2d at 808, that reversal can only occur when the evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.”

¶ 17. Capital murder is defined as:

The killing of a human being without the authority of law by any means or manner shall be capital murder in the following cases ... (e) When done with or without any design to effect death, by any person engaged in the commission of the crime of ... robbery ...

Miss.Code Ann. § 97-8-19(2) (2000). Robbery is defined in Miss.Code Ann. § 97-3-73 (2000) as follows:

Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.

¶ 18. The elements of robbery are “(1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence.” Caldwell v. State, 481 So.2d 850, 853 (Miss.1985) (citing Glenn v. State, 439 So.2d 678, 680 (Miss.1983) (quoting Crocker v. State, 272 So.2d 664, 665 (Miss.1973))), vacated on other grounds, 479 U.S. 1075, 107 S.Ct. 1269, 94 L.Ed.2d 130 (1987).

¶ 19. In the case sub judice, the last challenge to the sufficiency of the evidence was made when the defense filed a written Motion for JNOV or in the alternative New Trial. The trial judge and defense counsel referred to the issues as a Motion for New Trial even though the written motion was in terms of a JNOV or new trial. The trial court denied the motion after hearing oral arguments stating simply that the motion was not “meritorious.”

¶ 20. At trial, the testimony established that Randolph wanted to rob someone a few weeks prior to the murders. Bates testified that Randolph stated he wanted to borrow his gun and rob Keyes that night and actually called Keyes for “weed.” In addition, Randolph got into Keyes car then went in the house and returned to Keyes vehicle and gun shots were heard by Bates shortly thereafter. Clearly, Randolph had the intent to rob Keyes, and he shot the two victims in the car using deadly force. The car was subsequently burnt to destroy evidence. Further, Bates and Bowden testified to Randolph leaving with Croom. While Croom testified that he left Hattiesburg with Randolph and dropped him off at the bus station in New Orleans. Consequently, there is evidence in the record which is sufficient to support the jury verdict that Randolph was guilty of capital murder with the underlying crime of robbery. It is clear that a reasonable, fair-minded juror could find beyond a reasonable doubt that Randolph was guilty of robbery and capital murder. Therefore, this Court finds that the State proved the crime of capital murder with the underlying crime of robbery and this issue is without merit.

III. Whether the trial court erred when it overruled defendant’s objection to Motion to suppress statement of the defendant made by Eddie Clark, for the reason that said statement was admitted in violation of the Fifth and Sixth Amendment Right to Counsel of the United States Constitution and the Fourteenth Amendment to the Constitution of the United States of America and to the Constitution of the State of Mississippi.

¶ 21. Randolph asserts that the trial judge abused his discretion in the admission of his statement to the authorities. He argues that his statement was inadmissible because it was made after he invoked his right to counsel, not in the presence of his counsel and it violated his Fifth Amendment right to counsel. Eddie Clark (“Clark”), investigator with the Forrest County Sheriffs Department, testified that he interviewed Randolph on April 30,1998. Clark informed Randolph of his Miranda rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Randolph stated that he understood his rights and signed the form to that effect. However, Randolph did not sign the waiver of the rights and requested a lawyer. Clark terminated the interview at that time. Upon terminating the interview, Randolph stated “Man, I am six feet tall; I have done dug a hole and fell into it so far that I can’t see out of it.”

Standard of Review

¶ 22. During a suppression hearing, the trial judge sits as a fact finder. Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996). On appeal, the trial judge’s findings can only be reversed for manifest error or if they are against the overwhelming weight of the evidence. Id.

¶ 23. An accused must be informed of his constitutional right, particularly his right to counsel and right to remain silent and the consequences of waiving those rights before police may initiate interrogation. Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694 (1966). Once a person in custody invokes the right to counsel, any interrogation “must cease until an attorney is present.” Minnick v. Mississippi. 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). An accused is not subject to further interrogations by authorities, unless the accused initiates the communication. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981).

¶ 24. In Riddle v. State, 580 So.2d 1195, 1199 (Miss.1991), this Court clarified this issue by holding the following:

Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), reaffirmed and reinforced Miranda, Edwards, and Roberson, stating:
... [A] fair reading of Edwards and subsequent cases ... bar[s] police-initiated interrogation unless the accused has counsel with him at the time of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.

This Court also recognized a caveat and held that “[i]f the accused indicates in any manner that he wishes access to counsel, interrogation without counsel is allowed only if the accused himself initiates it.” Id. (citations omitted). In Minnick, the United States Supreme Court held that “Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities.” Minnick v. Mississippi, 498 U.S. 146, 156, 111 S.Ct. 486, 492, 112 L.Ed.2d 489 (1990).

¶ 25. The trial court ruled that the statement was voluntary and provided the following reasoning:

... I took the opportunity of going over my notes during the recess and satisfying my mind that the Miranda rights had been given this defendant and he indicated that he understood those rights. When asked to sign the waiver of rights, he indicated he would not sign and wanted to see an attorney. And I think everybody in here agrees as that point in time that stops or tolls the running of any interrogation. If they have to go back to re-interrogate him, then if he starts to make any statement that is not voluntary, then they would have to re-Mirandize him and go through the process all over again; I think everybody here agrees with that. But that’s apparently not what happened in this case. Apparently, after he indicated he wanted to see a lawyer, this defendant apparently at that point, and according to the testimony of the witness, ceased the interrogation. And it was only after that that the voluntary statement was made, and as such, the Court would rule that it would not be necessary for him to be re-Mirandized since it was, in fact, a voluntary statement made by the defendant. That being the case, I will allow that to be asked in the presence of the jury.

¶ 26. If the voluntariness of a confession is in question, the accused has a right to determine if the confession was actually voluntary in nature. Kircher v. State, 753 So.2d 1017, 1024 (Miss.1999). In Agee v. State, 185 So.2d 671, 673 (Miss.1966), the procedure was set forth which requires an evidentiary hearing. Id. The State has the burden of proving all facts prerequisite to admissibility beyond a reasonable doubt. Id. (citing Cox v. State, 586 So.2d 761, 763 (Miss.1991); Neal v. State, 451 So.2d 743, 753 (Miss.1984)). “ ‘This burden is met and a prima facie case made out by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward.’ ” Id. (quoting Cox v. State, 586 So.2d 761 (Miss.1991)).

¶ 27. In the case sub judice, Randolph does not challenge the voluntariness of the statement, but rather, that the statement was made after he invoked his right to counsel and with no counsel present. Furthermore, he claims that the statement was vague and nebulous and does not have a close nexus to the crime in which he was charged. Despite Randolph’s reliance upon invoking the right to counsel, the issue before this Court goes right to the heart of the voluntariness of the statement. Testimony showed that Randolph did not sign a waiver of rights and requested a lawyer. The authorities stopped the interview at this point in compliance with Minnick. Without solicitation from the authorities, Randolph, then made his statement. The trial court determined that the statement was voluntary based upon testimony given by Clark. Accordingly, this Court finds that the issue is without merit.

IV. Whether the trial court erred in sustaining each and every objection of the State and in overruling each and every objection by the defendant.

¶ 28. Randolph asserts that the trial court abused its discretion and was outside the boundaries of the Mississippi Rules of Evidence in sustaining every objection by the State and overruling every objection by the defendant. However, Randolph fails to cite any specific instance from the record which demonstrates that the trial court abused its discretion or exceeded the M.R.E. in ruling on objections. Instead, Randolph broadly refers to each and every objection in the record.

¶ 29. This Court in Alexander v. State, 759 So.2d 411, 418 (Miss.2000), held the following:

There is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to this Court. Branch v. State, 347 So.2d 957, 958 (Miss.1977). Supporting the argument of his issues with reasons and authorities is part of an appellant’s burden on appeal. Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982).

In Govan v. State, 591 So.2d 428, 431 (Miss.1991), this Court did not review a weight of the evidence argument in which defendant stated that the defense’s witness disputed the proof provided by the State and only ten lines was given by the defendant in his argument. “In the absence of meaningful argument and citation of authority, this Court generally will not consider the assignment of error.” Id. at 430. See also Stidham v. State, 750 So.2d 1238 (Miss.1999) (the appellant has a duty to show by plausible argument with supporting authorities how the lower court erred); Rush v. State, 749 So.2d 1024, 1026 (Miss.1999)(appellate court did not address six issues raised on appeal where appellant did not discuss or cite authority); Sumrall v. State, 758 So.2d 1091, 1094 (Miss.Ct.App.2000)(an issue not argued in brief is considered abandoned and waived).

¶ 30. In the case sub judice, Randolph only makes the above cursory argument without either citing to specific instances in the record of an abuse of discretion by the trial court or without further reason or explanation. Therefore, this Court finds that because there is no meaningful argument on this issue for appellate review, the issue is considered waived.

V. Whether the trial court erred in refusing and/or amending defendant’s proposed jury instructions.

¶ 31. Randolph next complains that the trial court erred in refusing four jury instructions.

Standard of review

¶ 32. This Court recently, stated that standard of review for a challenge to a jury instruction in Agnew v. State, 783 So.2d 699, 701 (Miss.2001) as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. 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.

(citations omitted). See also Woodham v. State, 779 So.2d 158 (Miss.2001); Cohen v. State, 732 So.2d 867 (Miss.1998); Heidel v. State, 587 So.2d 835 (Miss.1991). “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Coleman v. State, 697 So.2d at 782 (quoting Collins v. State, 691 So.2d 918 (Miss.1997)).

A. Instructions D-l and D-10

¶ 33. Jury instructions D-l and D-10 pertain to the lesser offense of manslaughter. The State argued'that the facts did not justify the manslaughter instructions and a lesser murder instruction was already accepted by the court. Both instructions were denied by the court. At trial, the new trial hearing and on appeal, Randolph provides no evidentiary support for allowing the instructions. See Agnew, 783 So.2d at 702. This Court has held that the appellant has a duty to show how the trial court erred by plausible argument with supporting authority. Stidham v. State, 750 So.2d 1238, 1243 (Miss.1999). Randolph failed to adequately support his assertion; and therefore, this Court finds that this issue is without merit.

B. Jury Instruction D-ll

¶34. Randolph asserts that no evidence was presented at trial that indicated he committed or intended to commit robbery. The instruction read as follows:

The Court instructs the jury that in order to find the defendant guilty of capital murder, killing during the commission of a robbery, you must find beyond a reasonable doubt that the defendant intended to rob the victim prior to committing the facts that lead to his death.

The State argued that the instruction was an incorrect statement of law. The trial court determined that the intent to rob could be simultaneous to the act of killing rather than prior to the killing as stated in the proposed instruction. The trial court allowed Randolph to amend the instruction, but he chose to keep the instruction as written. Consequently, the trial court refused the instruction.

¶ 35. As to Randolph’s assertion that no evidence was presented at trial indicating he either committed or intended to commit a robbery, the record reflects otherwise, and the contention is in error. Bates testified that Randolph stated a few weeks prior to the crime that Randolph wanted to rob either Keyes or Coleman. On the night of the crime, Randolph asked Bates if he could borrow his gun to rob Keyes. Then Randolph initiated contact with Keyes for drugs. When speaking with Keyes, Randolph persuaded Keyes to meet him.

¶ 36. Randolph clearly had the intent to rob Keyes. In addition, Randolph had the opportunity to correct the instruction and have it submitted to the jury. Randolph chose not to make the amendments. The trial court was within its discretion to refuse an incorrect statement of law. See Agnew, 783 So.2d at 702. Therefore, the issue is without merit.

C. Jury Instruction D-24

¶ 37. Randolph claims that Jury Instruction D-24 pertaining to a theory of the case was erroneously denied by the trial court. The instruction read as follows:

The court instructs the jury that if the evidence in this case presents two reasonable theories, one tending to indicate the Defendant, Jamie Randolph, is guilty and the other tending to indicate that he is innocent, it is the jury’s duty to accept the theory favorable to the Defendant, Jamie Randolph, and find him not guilty.

A defendant is entitled to have jury instructions given which present his theory of the case. Adams v. State, 772 So.2d 1010, 1015 (Miss.2000). Randolph asserted that the theory was that Bowden was the accomplice. The State argued that there was no theory of the case presented by Randolph. The State further asserted that had Randolph taken the stand then there may have been another theory. The trial court refused the instruction. This Court finds that when a proposed instruction is unsupported by the evidence, the trial court is within its discretion to refuse the instruction. Agnew, 783 So.2d at 701. This issue without merit.

VI. Whether the trial court erred in allowing the prosecution to make prejudicial and inflammatory statements in closing arguments.

¶ 38. Randolph asserts that the prosecution made prejudicial and inflammatory statements about his drug use during closing argument. Randolph concedes that he did not contemporaneously object to the comment at trial; and therefore, the trial judge did not have the opportunity to admonish the jury to ignore the remark. Nevertheless, Randolph urges this Court to consider the comment. The only argument that Randolph asserts for not objecting at trial to the comment is for “strategy reasons.” Randolph included this issue in his Motion for New Trial which was denied in totality by the trial court.

¶ 39. In Williams v. State, 512 So.2d 666, 670 (Miss.1987), defense counsel did not object to prosecutor’s closing argument, and this Court held that “[t]he failure of an objection is fatal.” Id. at 670 (citing Johnson v. State, 477 So.2d 196 (Miss.1985)). This Court has held that “[i]f no contemporaneous objection is made, the error, if any, is waived.” Walker v. State, 671 So.2d 581, 597 (Miss.1995) (citing Foster v. State, 639 So.2d 1263, 1270 (Miss.1994)). The contemporaneous objection rule is in place to enable the court to correct an error with proper instructions to the jury whenever possible. Gray v. State, 487 So.2d 1304, 1312 (Miss.1986) (citing Baker v. State 327 So.2d 288, 292-93 (Miss.1976)). To preserve an issue for appeal a contemporaneous objection must be made. Ratliff v. State, 313 So.2d 386 (Miss.1975). See also Box v. State, 610 So.2d 1148 (Miss.1992)(defendant failed to contemporaneously object to the prosecutor’s remarks during closing argument and a motion for mistrial, made after jury verdict of guilty, was deemed too late); Monk v. State, 532 So.2d 592, 600 (Miss.1988)(eontemporaneous objection during closing argument must be made, otherwise it is waived); Gray v. State, 487 So.2d 1304 (Miss.1986)(contemporaneous objection during prosecution’s closing argument must be made or it is deemed waived); and Coleman v. State, 378 So.2d 640, 649 (Miss.1979) (defendant failed to object to a statement by the district attorney in closing argument and a motion for mistrial after the jury had retired was deemed too late).

¶ 40. In the case sub judice, Randolph admits that he did not contemporaneously object to the remark. In addition, he does not specifically cite the location in the record where the prosecution allegedly made an inflammatory remark pertaining to “drug use” during the closing argument. This Court finds that the law is well settled on the point of the necessity of contemporaneous objections during closing arguments at trial. An objection was not made by Randolph during the prosecution’s closing argument, and thus this issue is waived on appeal.

VII. Whether the trial court erred in the selection of the jury and in the State’s use of peremptory challenges.

¶ 41. Randolph asserts that the trial court erred in ruling that the defense did not make a prima facie case under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State struck seven (7) African-American jurors from the venire out of ten total peremptory challenges exercised by the State. Randolph is African-American. Furthermore, Randolph claims that the facts and circumstances raise the inference that the seven strikes were made for the sole purpose of striking minorities. In support of his argument, Randolph asserts that the State, in response to defense counsel’s remark to the trial court that the State used seven challenges to remove African-Americans, replied “Damn right.” The response by the State is, in Randolph’s opinion, evidence that the strikes were intentionally used to keep African-Americans off the jury panel.

Standard of Review

¶ 42. A reversal will only occur if the factual findings of the trial judge appear to be “clearly erroneous or against the overwhelming weight of the evidence.” Tanner v. State, 764 So.2d 385, 393 (Miss.2000) (citing Stewart v. State, 662 So.2d 552, 558 (Miss.1995)); Davis v. State, 551 So.2d 165, 171 (Miss.1989). “On appellate review, the trial court’s determinations under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), are accorded great deference because they are based, in a large part, on credibility.” Coleman v. State, 697 So.2d 777, 785 (Miss.1997)(citing Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987)). The term “great deference” has been defined in the Batson context as meaning an insulation from appellate reversal any trial findings which are not clearly erroneous. Lockett v. State, 517 So.2d at 1349.

¶ 43. In Batson, the United States Supreme Court held that a peremptory challenge cannot be used to exclude venire-persons from jury service based, on their race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). A peremptory challenge based on race constitutes a violation of equal protection. Id. at 98, 106 S.Ct. 1712.

¶ 44. The necessary steps to resolve a peremptory challenge based upon Batson are cited in Stewart v. State, 662 So.2d at 557-58, as follows:

1.The party objecting to the peremptory challenge must first make a prima facie showing that race was the criteria for the exercise of the peremptory challenge.
2. If this initial showing is successful, the party desiring to exercise the challenge has the burden to offer a race-neutral explanation for striking the potential juror.
3. The trial court must then determine whether the objecting party has met their burden to prove there has been purposeful discrimination in the exercise of peremptory challenges.

To establish the first prong, a prima facie case under Batson, the objecting party must show (1) that he/she is a member of a “cognizable racial group,” (2) the prosecutor has exercised peremptory challenges toward the elimination of prospective jurors of his race, and (3) the facts and circumstances raised an inference the prosecutor used his peremptory challenges for the purpose of striking minorities. Conerly v. State, 544 So.2d 1370, 1372 (Miss.1989).

¶ 45. In the case sub judice, the trial court cited Batson and listed the three requirements for a prima facie ease pursuant to Batson in its ruling. As to the remark by the State concerning the exclusion of the seven prospective jurors, the record reflects the following:

THE COURT: For Batson purposes, let me go through, because we left off with Orr, the additional members of the African American race stricken by the state, additional jurors, were none?
MR. HELFRICH: Gloria Williams, No. 36. S8 was Tony Madden Caucasian.
THE COURT: 36 was S7. That is the only African-American stricken.
MR. GADDIS: Right. First seven challenges exercised by the state in this case struck blacks from the jury.
MR. HELFRICH: Damn right.
MR. GADDIS: Mr. Helfrich admits that by saying — .
MR. HELFRICH: That’s correct. There are race neutral reasons for said strikes.
MR. GADDIS: If the Court please, I would like for the Court to make whatever time is necessary — .

When read in context, the statements made by the prosecution acknowledged that the strikes were made with race neutral reasons. However, the trial court listening to all the comments found that Randolph’s motion did not overcome a prima facie case.

¶ 46. The State wanted to supply its reasoning on the record, but the trial court would not allow this in light of this Court’s ruling in Puckett v. State, 787 So.2d 322 (Miss.1999). During the trial, Puckett raised a Batson challenge. Puckett v. State, 788 So.2d 752 (Miss.2001). Before the trial court determined if Puckett made a prima facie case pursuant to Batson, the State offered reasons for the peremptory strikes. Id. Once reasons were offered by the State, the trial judge did not make on-the-record factual determination and inquiry independently as required by Hatten v. State, 628 So.2d 294 (Miss.1993) regarding each peremptory challenge. Id. This Court remanded the case to the trial court for a Batson hearing. Id.

¶ 47. The record does not reflect the composition of the venire. While the trial court determined that there was no prima facie case, the judge provided no reasoning for this Court’s review. Normally, a trial court ruling is given great deference. Coleman, 697 So.2d at 785. The trial court determined that Randolph did not make a prima facie case and, therefore, no further analysis would be required.

¶ 48. Since the reasoning and venire information for the denial of the prima facie case is not provided, this Court may analyze the peremptory strikes based upon the race neutral reasons cited on the record by the State during the motion for new trial. The race-neutral reasons for the peremptory strikes listed by the State were as follows:

1. S-l: venire person’s family member had pending drug charges, prosecutor previously represented venire person’s son and son had a pending case in the prosecutor’s office;
2. S-2: venire person’s husband had been charged with aggravated assault and she had to pay fines to the prosecutor’s office for bad checks;
3. S-3: venire person had dealings with the prosecutor’s office, saw a newscast, stated in individual voir dire that she was not sure if she could sign a death penalty verdict and she knew witness Bates;
4. S^4: venire person stated friends and family were arrested often on drug charges;
5. S-5: venire person was previously charged with a DUI in Forrest County and the case was also a Forrest County case;
6. S-6: venire person’s brother was arrested for murder in Illinois, her cousin had pending drug charges and she thought the trial judge presided over her lunacy hearing;
7. S-7: venire person stated she would not be comfortable sitting in judgment of her peers, brother had been arrested for strong arm robbery and she wavered on whether she could sign a death penalty verdict;
8. S-8: venire person was Caucasian and had past criminal charges;
9. S-9: venire person was Caucasian and on voir dire state she did not want to impose the death penalty but states on the questionnaire that she favored the death penalty in certain crimes, especially against children; and
10.S — 10: venire person did not believe in the death penalty and was not very responsive to questions in individual or general voir dire.

¶49. In Baldwin v. State, 784 So.2d 148, 155 (Miss.2001) this Court has upheld Batson race-neutral reason because of a juror’s body language; demeanor; criminal history of prior arrests and convictions of a juror or a relative, including driving under the influence (DUI); social work and other types of employment; stated positions with respect to the death penalty; and discrepancies between juror questionnaires and voir dire. The Court in Baldwin stated that these reasons were also in the Lockett v. State, 517 So.2d at 1356-57, list, which is not exhaustive. Id. See also Gary v. State, 760 So.2d 743 (Miss.2000)(aecepted race neutral reasons for striking jurors included writing bad cheeks; being inattentive; and failure to disclose that juror was a victim of a crime); Kelly v. State, 783 So.2d 744 (Miss.Ct.App.2000)(accepted race neutral reasons for striking juror included that juror read about the case in the newspaper; had gone to school with the defendant; was friends with defendant’s brother and other family members; and she knew witnesses on both sides). Clearly, this Court has upheld all the race neutral reasons for peremptory strikes expressed by the State.

¶ 50. The trial court did not err in its ruling. Great deference is afforded to a trial court’s ruling. The record reflects the reasons for the State’s strikes at the new trial. A review of the proffered reasons demonstrate that the race neutral reasons have been accepted by this Court. Therefore, this issue is without merit. In the alternative, any error as to the trial court’s ruling is harmless in light of the race neutral reasons presented by the State.

VIII. Whether the trial court erred in the admission of testimony by Brian Croom.

¶ 51. Randolph asserts that the admission of Brian Croom’s testimony was erroneous and a discovery violation pursuant to Box v. State, 437 So.2d 19 (Miss.1983). On the third day of trial, Croom stated that he saw the car of the victim, Keyes, riding toward Rawls Springs on the night of the murders. The trial court was informed of this statement as soon as it was discovered by the State.

¶ 52. This Court has enumerated the following procedures when a discovery violation is asserted before the trial court:

1. Upon defense objection, the trial court should give the defendant a reasonable opportunity to become familiar with the undisclosed evidence by interviewing the witness, inspecting the physical evidence, etc.
2. If, after this opportunity for familiarization, the defendant believes É& may be prejudiced by lack of opportunity to prepare to meet the evidence, he must request a continuance. Failure to do so constitutes a waiver of the issue.
3. If the defendant does request a continuance, the State may choose to proceed with trial and forego using the undisclosed evidence. If the State is not willing to proceed without the evidence, the trial court must grant the requested continuance.

Norris v. State, 735 So.2d 363, 364 (Miss.1999)(citing Cole v. State, 525 So.2d 365, 367-68 (Miss.1987)). When the State fails to follow discovery procedures a reversal is not warranted in every case. Box v. State, 437 So.2d at 21. This Court has held that a “[n]on-discovered evidence may be admitted at trial if the party against whom that evidence is offered is given a reasonable opportunity to make adequate accommodation.” Robinson v. State, 508 So.2d 1067, 1071 (Miss.1987).

¶ 53. In the case sub judice, defense counsel claimed that they needed time to investigate the witness. The trial court overruled the Box objection by defense counsel. However, the trial court did allow defense counsel time to interview the witness prior to resuming trial the next day. In his brief, Randolph states that he was given a “reasonable opportunity to familiarize himself with the evidence by interviewing the witness on the evening before his testimony.”

¶ 54. This Court finds that the trial court did not abuse its discretion in admitting Croom’s testimony. The trial court denied the Box motion. Croom was already a listed witness in the trial and was disclosed to the defense. The trial court correctly limited Croom’s testimony to information of his own personal knowledge. Croom’s testimony before the jury was that he saw Randolph and Bates in Bow-den’s car. As Croom was leaving town, he saw Keyes’s car going toward Rawls Springs. The defense was allowed time before the next day of trial to question Croom about his testimony. Croom was leaving town after bringing a friend home. Even though the additional information Croom offered was not known by the prosecution or defense, both sides had knowledge of Croom’s identity since he was already on the witness list and scheduled to testify at trial. Therefore, the issue is without merit.

IX. Whether the trial court erred in admitting evidence of flight and granting a flight instruction.

¶ 55. Randolph next complains that the trial court erred in giving flight instructions to the jury. Randolph contends that the facts of his case are similar to Fuselier v. State, 468 So.2d 45 (1985). As such, the submission of the jury instruction S-10 and S-ll was prejudicial and resulted in his conviction. Randolph requests a reversal of the jury verdict.

¶ 56. In regard to flight instructions, this Court has held that “flight is a circumstance from which an inference of guilt may be drawn and considered along with all the other facts and circumstances connected with the case.” Hubbard v. State, 187 So.2d 885, 886 (Miss.1966). In Brown v. State, 690 So.2d 276, 294 (Miss.1996), this Court held:

“[A]n instruction that flight may be considered as a circumstance of guilt or guilty knowledge is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.” Reynolds v. State, 658 So.2d 852, 856 (Miss.1995) (quoting Fuselier v. State, 468 So.2d 45, 57 (Miss.1985)). When determining whether a flight instruction is appropriate, we further have explained that two considerations are paramount:
1. Only unexplained flight merits a flight instruction.
2. Flight instructions are to be given only in cases where that circumstance has considerable probative value. Banks v. State, 631 So.2d 748, 751 (Miss.1994) (quoting Pannell v. State, 455 So.2d 785, 788 (Miss.1984)).

See also M.R.E. 404(b). However, the evidence of flight is inadmissible if “there is an independent reason for flight known by the court which cannot be explained to the jury because of its prejudicial effect upon the defendant.” Fuselier v. State, 702 So.2d 388, 390 (Miss.1997).

¶ 57. In Fuselier, this Court reversed and remanded the conviction and sentence based upon the improper admission of flight evidence and flight instructions. Fuselier v. State, 468 So.2d at 57. Fuselier was a prison escapee at the time of his flight from law enforcement and his arrest for murder. He claimed that as an escapee, he had an independent reason for fleeing from authorities other than the murder of Gunter. Id. The Court acknowledged that Fuselier was in a “no-win situation be either being required to explain his flight and the fact that he was a prison escapee or not explaining the flight and subjecting himself to a flight instruction.” Id. On a later appeal, this Court again reversed and remanded the conviction and sentence. Fuselier v. State, 702 So.2d 388 (Miss.1997). In the later trial, flight evidence was admitted but no flight instruction was given to the jury. Id.

¶ 58. In Mack v. State, 650 So.2d 1289, 1310 (Miss.1994), a prison escapee was driving a stolen car at the time of arrest and this Court found that allowing flight evidence was error but that admission was harmless. This Court held that the flight evidence “palefd] in comparison to more direct evidence of guilt.” Id. Among the evidence cited was the fact that his two companions stated that Mack killed Fulton. Some of the other evidence presented at trial placed Mack at the crime scene by other witnesses, blood was on the vehicle that Mack drove, and Mack threatened to kill a teenager if he revealed what he had seen. Id.; but see Tavares v. State 725 So.2d 803 (Miss.1998)(defendant did not appear on the day of her trial, bond was revoked and a warrant was issued for arrest at the time she was apprehended, however defendant denied the flight occurred and the trial court did not commit reversible error in admitting evidence and flight instructions).

¶ 59. Randolph claims that by allowing the flight instructions, S-10 and S-ll, his flight to Arizona was probative of his guilt and similar to Fuselier. The basis for this argument by Randolph turns on the fact that when he was arrested in Arizona for the murder charge he was also subject to the jurisdiction of the trial court because of a warrant for possession of a controlled substance and auto burglary. Randolph argues that the other charges pending against him act as an independent reason to explain his flight and were known by the trial court. He asserts that he is in the same position as Fuselier of either testifying or remaining silent and subjecting himself to a cloud of guilt.

¶ 60. A review of the record reveals that Investigator Clark testified in a proffer before the court that Randolph was in custody on April 30, 1998, for two warrants for murder and a warrant for possession of a controlled substance. There was an apparent indictment for auto burglary, however, Clark testified that he was not aware of that allegation. Nevertheless, the case sub judice is distinguishable from Fuselier. First, in Fuselier, the defendant was a prison escapee at the time of his flight and under those circumstances he would logically run from authorities. While Randolph had a possession warrant and an alleged indictment for auto burglary at the time of his flight, it is not known whether he even knew of the warrant or indictment for these crimes. In other words, Randolph, unlike Fuselier, was not eluding a current prison sentence and detention period, which an escapee would be fully aware of and have full knowledge, at the time of his flight from Hattiesburg. Second, in Fuselier, the case relied mainly on circumstantial evidence, whereas the case before this Court more closely resembles Mack. There is sufficient direct evidence of Randolph’s guilt apart from any inference regarding his flight. Any error that may have occurred in granting the flight instruction does not rise to the level of reversible error. . Therefore, the trial court did not err in admitting the flight evidence and instructions, or to the extent that any error was committed, it was harmless error, consistent with our holding in Mack. This issue is without merit.

X. Whether the trial court erred in admitting photographs of the crime scene and the victims.

¶ 61. Randolph asserts that the trial court erred in allowing certain crime scene photographs into evidence. Without identifying the particular photographs at issue other than citing burned victims and an arm with a watch, Randolph maintains that there was no probative value to the pictures especially since the identity of the victims was not at issue. To support his complaint, Randolph relies on Davis v. State, 551 So.2d 165 (Miss.1989).

Standard of Review

¶ 62. This Court held that the admissibility of pictures of gruesome crime scenes is within the sound discretion of the trial court. Chatman v. State, 761 So.2d 851, 854 (Miss.2000). Reversal of the trial court "will occur only where there is a clear abuse of discretion. Id.; Davis v. State, 551 So.2d at 173. “The discretion of the trial judge ‘runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.’ ” Spann v. State 771 So.2d 883, 895 (Miss.2000)(quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)). Photographs are considered to have evidentiary value in the following instances:

1. “aid in describing the circumstances of the killing;
2. describe the location of the body and cause of death;
3. supplement or clarify witness testimony.”

Spann v. State, 771 So.2d at 895 (quoting Westbrook v. State, 658 So.2d 847(Miss.1995)).

¶ 63. In Davis v. State, 551 So.2d at 173, this Court held that “photographs of the victim should not ordinarily be admitted into evidence where the killing is not contradicted or denied, and the corpus de-licti and the identity of the deceased have been established.” However, this Court stated that photographs of bodies may be admitted into evidence if they have probative value, are not too gruesome and are not used in an overly prejudicial or inflammatory way in a criminal case. Id. In Davis, this Court recognized that the defendant killed the victim and as such there was no need to establish the identity of the killer or victim. Id. The Court did find that the photographs had probative value and were properly admitted into evidence. Id.

¶ 64. Randolph erroneously claims that the photographs had no probative value especially because the identity of the victims was not an issue. First, it is important to note that unlike Davis, defense counsel denied that Randolph had anything to do with the murder of either Keyes or Williams. Second, the trial court admitted the photographs in an effort to be consistent with the admission of a videotape of the crime scene. Third, Jeff Byrd testified that Captain Rigel took the photographs. In his testimony, Byrd described the position of the victims bodies as found at the scene. Clearly, the photographs had probative value in relation to the condition of the bodies as found by authorities and the position of the bodies at the scene. Accordingly, this issue is without merit.

CONCLUSION

¶ 65. For these reasons, the judgment of the Forrest County Circuit Court is affirmed.

¶ 66. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED.

COUNT II: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED.

SENTENCES ARE TO RUN CONSECUTIVELY.

McRAE, P.J., WALLER, DIAZ AND GRAVES, JJ., CONCUR. SMITH, P.J., AND COBB, J., CONCUR IN RESULT ONLY. CARLSON, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, P.J., WALLER AND COBB, JJ. PITTMAN, C.J., NOT PARTICIPATING.

CARLSON, J.,

Concurring:

¶ 67. I agree with the conclusion reached by the majority, and I join its opinion. I write separately to address in more detail a few of the issues discussed by the majority.

¶ 68. As to Jury Instruction D-24, I agree that this instruction was properly refused by the trial court. This instruction is the so-called “two-theory instruction” which we have said should be granted only in a case based entirely upon circumstantial evidence. Kitchens v. State, 300 So.2d 922, 926 (Miss.1974)(citing Coward v. State, 223 Miss. 538, 78 So.2d 605 (1955)). A circumstantial evidence case (for the purposes of granting a “two-theory” instruction) is one in which there is neither an eyewitness nor a confession to the crime. Mangum v. State, 762 So.2d 337, 344 (Miss.2000)(citing Stringfellow v. State, 595 So.2d 1320, 1322 (Miss.1992)); Keys v. State, 478 So.2d 266, 267 (Miss.1985). Clearly, the case before us today is not based entirely on circumstantial evidence, and the trial court’s denial of Jury Instruction D-24 was, therefore, eminently correct.

¶ 69. Concerning Randolph’s claim of a discovery violation based on the admission of Brian Croom’s testimony, the trial court clearly did not abuse its discretion in allowing this testimony, for the reasons stated by the majority and consistent with the cases cited, beginning with Box v. State, 437 So.2d 19. The factors set out in Box and its progeny have now been codified, for easy reference, via the discovery rule found in the Mississippi Uniform Rules of Circuit and County Court Practice, cited as “URCCC”, as judicially enacted by this Court, effective, May 1, 1995. See URCCC 9.04(1).

¶ 70. While I agree with the majority that the giving of the “flight instruction” was proper, based on the facts and circumstances of this particular case, and the applicable case law, the use of the flight instruction in this state can be described in one word — “dangerous.” In my years of experience as a trial judge, the flight instruction was very seldom requested by the prosecution and almost never given. It simply is not needed. While evidence of flight might be relevant, no legitimate purpose is served by the jury receiving an instruction from the trial court (which heightens the importance of the evidence in the eyes of the jury) highlighting for the jury the fact that the jury can consider evidence of flight as “a circumstance of guilt or guilty knowledge” when “that flight is unexplained and somehow probative of guilt or guilty knowledge.” See Reynolds v. State, 658 So.2d 852, 856 (Miss.1995); Fuselier v. State, 468 So.2d 45, 57 (Miss.1985). The term “unexplained flight” is somewhat nebulous, anyway, and a trial court, by giving a flight instruction, simply puts itself in a position of possibly placing reversible error in an otherwise clean record. If a trial court persists in giving a flight instruction, I suggest that it do so with great caution.

¶ 71. All of this having been said, I agree with the majority that this case should be affirmed.

SMITH, P.J., WALLER AND COBB, JJ., JOIN THIS OPINION.

      . Presumably it is the statement in reference to where Keyes’s burnt car was found by Mrs. Lorch. "But Chris also told you that that's where he and the defendant, Jamie Randolph, used to go and sit and hide and smoke dope.”

      . Since the filing of the appeal in this case, this Court has denied Puckett's motion for rehearing and affirmed the trial court's denial of the Batson motion. Puckett v. State, 788 So.2d 752 (Miss.2001).

      . Presumably the photographs in issue are State’s Exhibits 14, 15 and 16.