text:
    Bashir AL-FATAH a/k/a Fasaha Al-Fatah, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00285-COA.
    Court of Appeals of Mississippi.
    April 15, 2003.
    Rehearing Denied July 29, 2003.

      Imhotep Alkebu-Lan, Chokwe Lumum-ba, Jackson, Attorneys for Appellant.
    Office of the Attorney General, by Jean Smith Vaughan, Attorney for Appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Bashir Al-Fatah, also known as Fasaha Al-Fatah, was convicted of burglary of a dwelling and aggravated assault with a deadly weapon in the Circuit Court of Lowndes County. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections for the burglary conviction and ten years for the aggravated assault conviction with the sentences to run concurrently. Aggrieved, he asserts the following issues on appeal:

I. THE TRIAL COURT ERRED IN FAILING TO GRANT AL-FATAH’S MOTION FOR A DIRECTED VERDICT BECAUSE THE EVIDENCE OF GUILT OF AGGRAVATED ASSAULT WAS INSUFFICIENT AS A MATTER OF LAW.
II. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE A VIDEOTAPE RECORDING OF THE SEARCH OF AL-FATAH’S HOME.
III. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT.
IV. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF PRIOR CONVICTIONS OF AL-FATAH’S WITNESS UNDER MISSISSIPPI RULES OF EVIDENCE 609.
V. THE PROSECUTION’S MISCONDUCT DEPRIVED AL-FATAH OF A FAIR TRIAL.
VI. AL-FATAH’S CONVICTION IS VOID BECAUSE HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

Finding no error, we affirm.

FACTS

¶ 2. On the night of November 16, 1999, Dearius Hayes and his sister Shameka were asleep in the early morning hours in their home in Columbus, Mississippi. Dearius testified that he was awakened by a shock on his right shoulder to find two men in the house. Dearius let out a yell which woke Shameka. Both men were dressed in black from head to foot and were described as being dressed like “Ninja warriors” or martial artists. One of the men had a stun gun and Dearius struggled with him. During the struggle, Dearius was able to lift his mask and recognized the man as Seitu Al-Fatah, the father of Bashir. The other man was holding Shameka on the couch to keep her from seeing what was happening with her brother. Shameka testified that she recognized both men as being Seitu and Bashir Al-Fatah due to their voices and demeanor, since both lived in her neighborhood.

¶ 3. Dearius testified that he was able to get a metal object which turned out to be a knife away from Seitu, and that he saw Bashir begin to pull something out that looked like a sword. Dearius testified that he was able to get the sword out of Ba-shir’s hand but at some point he was cut by either the sword or knife by grabbing them around the blades. Shameka tried to use the phone to call the police but the line had been unplugged. The intruders left after Dearius had taken the sword and knife from them, and the police were then called. Dearius’s hand was bandaged by paramedics, but he would later have to go to the hospital for stitches when it would not heal correctly. When the police arrived, Dearius gave them a glove which had come off during the struggle, the knife, and the sword. A flexible baton was also found on the floor. The Hayeses gave the names of Seitu and Bashir Al-Fatah and a search warrant was obtained and was executed later that morning. At the Al-Fatah home, a stun gun was found as was a holder that fit the sword.

ANALYSIS

I. DID THE TRIAL COURT ERR IN FAILING TO GRANT AL-FATAH’S MOTION FOR A DIRECTED VERDICT BECAUSE THE EVIDENCE OF GUILT OF AGGRAVATED ASSAULT WAS INSUFFICIENT AS A MATTER OF LAW?

¶ 4. Al-Fatah asserts that the trial court erred in failing to grant his motion for a directed verdict because the evidence of guilt of aggravated assault was insufficient as a matter of law. Al-Fatah bases his assertion on the testimony of Dearius Hayes that he did not know which weapon caused his injuries and he did not remember seeing Bashir Al-Fatah with the knife. Al-Fatah therefore argues that the State failed to prove beyond a reasonable doubt that he committed aggravated assault as defined by statute.

¶ 5. A motion for a directed verdict challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.” Meshell v. State, 506 So.2d 989, 990 (Miss.1987). See also Haymond v. State, 478 So.2d 297, 300 (Miss.1985); Fairley v. State, 467 So.2d 894, 902 (Miss.1985). “We proceed by considering all of the evidence — not just that supporting the case for the prosecution— in the light most consistent with the verdict.” Benson v. State, 551 So.2d 188, 192-3 (Miss.1989). ‘We give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Id. at 193. This Court should reverse only where, “with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty.” Alexander v. State, 759 So.2d 411, 421(¶23) (Miss.2000) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)).

¶6. The State put on proof that Bashir Al-Fatah acted with his father Sei-tu in entering the Hayes home and attacking Dearius. Dearius saw both weapons but could not say for certain which one injured his hand. Both the knife and the sword were introduced into evidence as was the stun gun used to awaken Dearius. Also, a scabbard found at Al-Fatah’s home that perfectly fit one of the edged weapons left behind at the Hayeses’ home was introduced. Shameka Hayes testified that she knew both of the intruders and that she saw some of the struggle between the men. Miss.Code Ann. § 97-3-7 (Rev. 2001) states the following:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.

¶ 7. The State showed that both men had entered the Hayes home in the middle of the night clothed in black and were armed with various edged weapons as well as a baton and a stun gun. It is for the jury to determine whether the weapons were deadly under the aggravated assault statute. Walls v. State, 759 So.2d 483, 487(¶11) (Miss.Ct.App.2000). The State showed that Dearius was injured during a struggle with Al-Fatah and the evidence was sufficient that a reasonable and fair-minded juror could find Ba-shir Al-Fatah guilty. This issue is without merit.

II. DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE A VIDEOTAPE RECORDING OF THE SEARCH OF AL-FATAH’S HOME?

¶ 8. Al-Fatah asserts that the trial judge erred in admitting a videotape of the search of his home. Al-Fatah argues that the videotape showed various martial arts weapons and that since several of them were introduced into evidence, the video was needlessly cumulative evidence. Also, Al-Fatah asserts that the video’s probative value was outweighed by its prejudicial effect of showing all of the combative equipment in his house. The trial court reasoned that the video was admissible because it helped identify the defendant as well as tie his identity in with the assault, since the intruders were dressed in all black like martial artists.

¶ 9. “The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990). The discretion of the trial judge, however, must be exercised within the boundaries of the Mississippi Rules of Evidence. Id. The trial judge in this case found that the items in the video identified Al-Fatah with the crime under Mississippi Rules of Evidence 404(b). As clearly stated by M.R.E. 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 10. “The admissibility of videotapes is considered under the same analysis as the admissibility of photographs.” Berry v. State, 703 So.2d 269, 278(¶19) (Miss.1997) (citing Holland v. State, 587 So.2d 848, 864-65 (Miss.1991)). Photographs that are gruesome or inflammatory and lack an evidentiary purpose are always inadmissible as evidence. McFee v. State, 511 So.2d 130, 134 (Miss.1987).

¶ 11. Like the case in Holland, the video in this case was duplicative of other evidence that was admitted at trial. If it was allowed at all, it should have been redacted in order to show only the items connected directly to the incident at the Hayeses’ home. The video in Holland was found to be harmless error because the content along with the other evidence rendered it non-prejudicial. Holland, 587 So.2d at 864. Similarly in Berry, the video was found to be harmless because “on balance, it does not appear that the cumulative nature of this particular video would cause the jury to give undue credit to the heinous, atrocious, and cruel nature of this crime.” Berry, 703 So.2d at 278(¶ 21). As in the above cases, the admission of the video in this case was harmless as its cumulative nature did not prejudice Al-Fatah.

III. DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND THE INDICTMENT?

¶ 12. Al-Fatah asserts that the trial court erred in allowing the State to amend the indictment to specify that Dearius Hayes was injured by “a knife or sword” rather than simply a knife. The trial judge found that the amendment was one of form and not substance and that the State could call the “sharp-edged instrument” a knife or a sword. An indictment may only be amended at trial if the amendment is immaterial to the merits of the case and the defense will not be prejudiced by the amendment. Griffin v. State, 584 So.2d 1274, 1276 (Miss.1991). However, amendments as to the substance of the charge must be made by the grand jury. The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made. Id.

¶ 13. Al-Fatah was not hampered in his defense of claiming that he was not at the Hayeses’ home or that he was mistakenly identified by the victims. The amendment was one of form in clarifying the terms for the weapons used to cut the victim. Dear-ius Hayes testified that he did not know whether it was the knife or the sword that cut him in the struggle at his home. There was no error in the amendment of the indictment. This issue is without merit.

IV. DID THE TRIAL COURT ERR IN ADMITTING EVIDENCE OF PRIOR CONVICTIONS OF AL-FATAH’S WITNESS UNDER MISSISSIPPI RULES OF EVIDENCE 609?

¶ 14. Al-Fatah asserts that the trial court erred in admitting evidence of the prior convictions of his only witness, Ernie Vidrine, who testified that he had previous convictions of burglary of a dwelling and receiving stolen property. Vidrine testified that the Hayeses were making the whole story up and that they were attempting to get revenge against Al-Fatah. According to Vidrine, Dearius Hayes cut himself on a flower pot and concocted the whole incident.

¶ 15. In order to determine if prior convictions should be admitted under M.R.E. 609, the Mississippi Supreme Court has stated that the following factors should be examined by the trial judge in order to weigh the probative value of convictions against their prejudicial effect:

(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witness’ subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant’s testimony.
(5) The centrality of the credibility issue.

Peterson v. State, 518 So.2d 632, 636 (Miss.1987).

¶ 16. Although Vidrine’s conviction of burglary first appears to show relatively little impeachment value, the trial judge found that it was admissible by the State to show that Vidrine was in jail and did not have personal knowledge of the relationship between Al-Fatah and the Hayeses and was only allowed into evidence after Vidrine admitted that he did not know Al-Fatah. The point in time of Vidrine’s last conviction was 1993 and he was sentenced to serve eight years with the Mississippi Department of Corrections. This was important because he would have been in jail when the alleged incident occurred in November 1999. The similarity of the crimes would not be a factor because Vidrine was not the defendant. Vidrine’s testimony was directly opposite to all of the other evidence admitted at trial. Although he was the only witness for the defense, he did not explain the physical items found at the Hayes home nor how he received his information about Hayes’ relationship with Al-Fatah. The importance of Vidrine’s credibility is central to Al-Fatah’s defense, but the trial judge found that Vidrine’s prior record was admissible to impeach his statements which directly contradicted the victim of the crime.

¶ 17. If the witness to be impeached through the admission of prior convictions is not a party, any prejudice to that non-party witness is irrelevant as a non-party can suffer no prejudice. Young v. State, 731 So.2d 1145, 1151(¶ 39) (Miss.1999). In Young, the Mississippi Supreme Court emphasized that, where a party is being impeached through the use of prior convictions, a Peterson-type balancing test “is necessary to prevent a defendant from being convicted on the basis of a prior bad act rather than on the evidence presented at trial regarding the present crime.” Young, 731 So.2d at 1150. However, when the witness being impeached is not a party, that potential problem does not exist and therefore, even where the non-party witness being impeached is one party’s primary or sole witness, evidence of a pri- or conviction of that witness must be admitted if the requirements of Rule 609(a) and (b) are met. Id. at 1150-51. Vidrine was not a party, and the trial court was ■within its discretion in allowing the State to impeach his statements with his prior record. This issue is without merit.

V. DID THE PROSECUTION’S MISCONDUCT DEPRIVE AL-FATAH OF A FAIR TRIAL?

¶ 18. Al-Fatah asserts that the trial court erred in allowing prosecutorial misconduct which deprived him of a fair trial. In its cross-examination of defense witness Vidrine, the prosecutor attempted to elicit testimony from Vidrine that he was in custody under indictment and that he held a grudge against the Lowndes County District Attorney’s Office. Al-Fatah objected to the line of questioning and the trial court sustained the objection. In closing argument, the prosecutor made the statement that the witness was in jail for “another reason” and again the trial judge sustained Al-Fatah’s objection and instructed the jury to disregard the remark.

¶ 19. “This Court assumes that juries follow the instructions given to them by the trial court.” Collins v. State, 594 So.2d 29, 35 (Miss.1992). “Attorneys are to be given wide latitude in making their closing arguments.” Wilcher v. State, 697 So.2d 1087, 1110(¶ 39) (Miss.1997) (citing Jimpson v. State, 532 So.2d 985, 991 (Miss.1988); Johnson v. State, 477 So.2d 196, 209 (Miss.1985); Shook v. State, 552 So.2d 841, 851 (Miss.1989)). “The circuit judge is in the best position to weigh the consequences of the objectionable argument, and unless serious and irreparable damage has been done, admonish the jury then and there to disregard the improper comment.” Johnson v. State, 477 So.2d 196, 210 (Miss.1985). The trial judge in this case did just that, and found that the comments by the prosecutor were not prejudicial to the extent that a mistrial was in order. This issue is without merit.

VI. WAS AL-FATAH’S CONVICTION VOID BECAUSE HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 20. Al-Fatah asserts that he received ineffective assistance of counsel and that his conviction is therefore void. In order to prove ineffective assistance of counsel, Al-Fatah must establish by a preponderance of the evidence that (1) counsel’s performance was defective, and (2) that defect was so prejudicial as to prevent Al-Fatah from having a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Moody v. State, 644 So.2d 451, 456 (Miss.1994). Al-Fatah faces a strong yet rebuttable presumption that counsel performed adequately, and he must show a reasonable probability that barring counsel’s errors, the result of the trial would have been different. Moody, 644 So.2d at 456. This Court looks at the totality of the circumstances, with deference towards counsel’s actions, to find a factual basis for the claim. Id. Should we find that Al-Fatah’s counsel was ineffective, the appropriate remedy is remand for a new trail. Id.

¶21. Al-Fatah argues that his trial counsel was deficient in several areas, including failing to note the race of the jurors on the jury list for the record, failure to challenge several jurors for cause, and failing to make several objections to questions which Al-Fatah asserts were leading during direct examination of the State’s witnesses. The State argues that Al-Fatah’s counsel was using trial strategy when it failed to object to leading questions and that failure to note race on the jury list does not in itself indicate constitutionally ineffective representation. Also, the State asserts that Al-Fatah has failed to meet the second prong of the Strickland test and show that the ineffective assistance, if any, was so prejudicial as to prevent Al-Fatah from having a fair trial.

¶ 22. Failing to note the race of the jurors on the jury list does not raise an issue under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), nor does it rise to the level of ineffective assistance of counsel under any authority shown to this Court. Al-Fatah asserts that he was prevented from making a Batson argument due to the lack of race on the jury list, but he fails to cite any authority which supports this position. “Failure to cite authority engenders a procedural bar, and this court will not review the unsupported issues.” Davis v. State, 750 So.2d 552, 561(¶ 37) (Miss.Ct.App.1999) (citing Williams v. State, 708 So.2d 1358, 1361(¶ 12) (Miss.1998)).

¶23. Al-Fatah also asserts that trial counsel failed to challenge several jurors for cause due to inferences that they knew Al-Fatah or one of the officers that took part in the investigation. The jurors were asked if their situations would affect their ability to be fair and impartial to which they responded in the negative. The Fifth Circuit Court of Appeals considers an attorney’s actions during voir dire to be a matter of trial strategy, which “cannot be the basis for a claim of ineffective assistance of counsel unless counsel’s tactics are shown to be ‘so ill chosen that it permeates the entire trial with obvious unfairness.’ ” Burns v. State, 813 So.2d 668, 675-76(¶ 22) (Miss.2001) (citing Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995) (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983))). Al-Fatah has failed to make such a showing.

¶24. Al-Fatah asserts that trial counsel’s failure to object to leading questions on direct examination by the State amounts to ineffective assistance of counsel. The procedure used by one attorney is not to be judged by the “hindsight and method another attorney might have used” under similar circumstances. Parham v. State, 229 So.2d 582, 583 (Miss.1969). “This Court must apply a heavy measure of deference to counsel’s judgments.” Wiley v. State, 517 So.2d 1373, 1379 (Miss.1987). Al-Fatah has failed to show that his counsel’s performance was ineffective or that he was prejudiced as required for him to show under the test set forth in Strickland. Al-Fatah was entitled to a fair trial not a perfect one, nor was he entitled to a constitutionally error-less counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988). This issue is without merit.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF COUNT I BURGLARY OF OCCUPIED DWELLING WITH A DEADLY WEAPON AND SENTENCE OF TWENTY YEARS; AND COUNT II AGGRAVATED ASSAULT WITH A DEADLY WEAPON AND SENTENCE OF TEN YEARS ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO RUN CONCURRENTLY WITH COUNT I IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Melissa J. HARRELL, Appellant/Cross-Appellee, v. TIME WARNER/CAPITOL CABLEVISION AND TRAVELERS CASUALTY AND SURETY COMPANY, Appellees/Cross-Appellants.
    No. 2001-WC-01989-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.
    Rehearing Denied Aug. 26, 2003.

      Lance L. Stevens, Jackson, attorney for appellant.
    Phillip Perkins Embry, Oxford, Richard Mack Edmonson, Jackson, attorneys for appellees.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Melissa J. Harrell appeals from a decision of the Circuit Court of the First Judicial District of Hinds County, which affirmed in part and reversed in part the decision of the Workers’ Compensation Commission. Harrell argues that the circuit court erred in affirming the Commission’s decision that Harrell failed to prove by a preponderance of the evidence that her interstitial cystitis was caused or contributed to by a work-related injury. The employer and carrier have cross-appealed, and argue that the circuit court erred in reversing the Commission’s decision that Harrell failed to prove that a right shoulder injury was work-related.

¶2. We find that substantial evidence supported the decision of the Commission. Therefore, we reverse that portion of the circuit court’s decision reversing the decision of the Commission. We reinstate the decision of the Commission.

FACTS

¶ 3. Melissa J. Harrell fell at work on June 6, 1994. The employer paid Harrell temporary total disability benefits covering intervals from June 9, 1994 to October 20,1997, and permanent partial disability benefits from October 21, 1997 until September 20, 1999. On February 18, 1998, Harrell filed a petition to controvert, claiming that she had sustained work-related injuries to her lower back and right shoulder, and that the lower back injury caused a urological condition called interstitial cystitis. The employer and carrier admitted the compensability of the back injury, but denied the compensability of the other injuries.

¶ 4. After a hearing, the administrative law judge found that Harrell had failed to prove by a preponderance of the evidence that her compensable back injury caused or contributed to the interstitial cystitis. The judge further found that Harrell had failed to prove that the right shoulder injury was work-related. The judge awarded Harrell permanent partial disability benefits for the back injury in the amount of $29.28 for 450 weeks from October 6, 1997, the date of maximum medical improvement, with credit allowed for amounts previously paid. The judge also ordered the employer and carrier to pay for any medical services and supplies reasonably required to treat the back injury.

¶ 5. Harrell appealed to the Workers’ Compensation Commission. The Commission affirmed the opinion of the administrative law judge. Harrell appealed to the circuit court. The circuit court ruled that there was substantial evidence to support the Commission’s finding that Harrell had failed to prove that the interstitial cystitis was compensable. The court ruled that there was not substantial evidence to support the Commission’s decision that Harrell did not sustain a compensable right shoulder injury.

STANDARD OF REVIEW

¶ 6. This Court applies the same standard of review as the circuit court. State Tax Comm’n v. Vicksburg Terminal, Inc., 592 So.2d 959, 961 (Miss.1991). This Court will affirm the findings and order of the Commission if they are supported by substantial evidence. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994). We will reverse only when the Commission’s findings and order are clearly erroneous and contrary to the overwhelming weight of the evidence. Id. If there is substantial evidence to support the Commission’s decision, the Commission must be affirmed “even though the evidence would convince this Court otherwise, were we the fact finder.” Fought v. Stuart C. Irby Co., 528 So.2d 314, 317 (Miss.1988).

LAW AND ANALYSIS

I. DID THE CIRCUIT COURT ERR IN AFFIRMING THE FINDING OF THE COMMISSION THAT HARRELL FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT HER COMPENSA-BLE BACK INJURY CAUSED OR CONTRIBUTED TO THE INTERSTITIAL CYSTITIS?

¶ 7. To establish entitlement to benefits under the workers’ compensation scheme, the claimant bears the burden of proving by a preponderance of the evidence each element of the claim of disability. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 12 (Miss.1994). The elements are: (1) an accidental injury, (2) arising out of and in the course of employment, and (3) a causal connection between the injury and the claimed disability. Id. A pre-existing condition is not always a bar to recovery for a disability. Rather, if the employment aggravated, accelerated, or combined with the pre-existing condition to produce the disability, the disability arose out of the employment and the claimant is entitled to compensation for the disability. Id. at 13.

¶ 8. The administrative law judge found that the medical testimony failed to relate Harrell’s interstitial cystitis to her com-pensable back injury to a reasonable degree of medical certainty, and concluded that Harrell had not proven a causal connection between the compensable back injury and the interstitial cystitis. Harrell argues this finding was error. We review the evidence before the administrative law judge and the opinion of the administrative law judge that was affirmed by the Commission.

¶ 9. Harrell testified that she was hired by Capitol Cablevision in 1984, when she was twenty-four years old. Harrell worked as a telemarketing and sales representative. Her duties included handling the concerns of customers who came to the office, including billing issues, scheduling pay-per-view events, and checking converter boxes, remotes, and cabling. In 1992, she was assigned the additional duty of taking payments from customers. On June 6, 1994, Harrell was carrying company mail to Budding C. As she walked up a ramp that led to Building C, her foot caught a mat and she fell forward. She landed with her right palm down on the ramp and her right elbow in her stomach. Harrell testified that she immediately reported the fall to her employer and a Report of Injury B-8 form was filled out indicating that she injured her back and right shoulder.

¶ 10. Harrell went back to work two days after the fall. She continued working at Capitol Cablevision until November 1994, when she was terminated because she had exhausted her leave for the year and was requesting further leave to have an emergency hysterectomy. In August 1995, Harrell began working at Truvision/Wireless One as a corporate telesales and telemarketing supervisor. She was terminated on August 6, 1996, due to a corporate merger. Harrell testified that she has been unemployed since leaving Truvision/Wireless One.

¶ 11. In March, 1996, while employed with Truvision/Wireless One, Harrell began experiencing severe weakness and pain in the pelvic region. She made an appointment with her gynecologist, Dr. Darden North. Dr. North discovered blood in Harrell’s urine. Harrell was already scheduled to have a gynecological procedure called a right oophorectomy, and Dr. North invited a urologist, Dr. Charles Secrest, to examine Harrell’s bladder while she was under general anesthesia. After the procedure, Dr. Secrest diagnosed Harrell with a bladder disorder called interstitial cystitis. Harrell began seeing Dr. Secrest and Dr. John Aldridge, both of the Mississippi Urology Clinic, for treatment for the disorder.

¶ 12. Harrell testified about her symptoms from interstitial cystitis. Harrell stated that she experiences severely frequent urination, usually urinating forty to seventy times within one hour and a half. She stated that on an almost daily basis her bladder goes into spasm and will not release urine, forcing her to use a catheter in order to void. Harrell testified that she “lives in pain,” and that her pain rapidly fluctuates in severity. She stated that she is unable to do housework, attend a job, or sit or stand for any period of time -without excruciating pain. She stated that her urologists have not released her to return to work.

¶ 13. On cross-examination, Harrell testified about two prior back surgeries resulting from non-work-related injuries. In 1989, Harrell initially injured her back when she bent over to pick up a laundry basket. In 1991, Harrell experienced back pain and, on April 17, 1991, Dr. Bernard Patrick performed surgery for a bulging and protruding disk at the right L5-S1 level. In October 1991, while seven months pregnant, Harrell returned to Dr. Patrick complaining of back pain. Harrell reinjured her back in January 1994, while bending over to lift her child. On February 8, 1994, Dr. Patrick performed a second back surgery at the same location. Harrell returned to work after the surgery on May 2, 1994, approximately one month before her fall. She testified that after she returned to work and before her fall, she was “doing quite well” and was able to do her job.

¶ 14. The administrative law judge admitted Harrell’s extensive medical records. The records of Dr. Bernard Patrick indicate that Harrell injured her back in 1989 while bending over to pick up a wastebasket, and that she subsequently experienced occasional back pain. In February 1991, Harrell had an acute episode of back pain that caused her absence from work for two weeks. In April 1991, Harrell had a severe acute attack with right leg radiation that resulted in her first surgery. During the surgery, Dr. Patrick removed a centrally extruded disc at the right L5-S1 level and explored the L4-5 level and found it to be normal. Harrell was released to return to work on March 1, 1992.

¶ 15. Harrell did well until January 28, 1994, when she returned to Dr. Patrick complaining that when she bent over to lift her child, her back “popped” and she experienced burning pain radiating from the sacrum to the neck. An MRI showed a recurrent disc rupture at the site of the prior surgery, and a second surgery was performed on February 8, 1994, to remove a recurrent extruded disc fragment. Harrell was released following this surgery, but from February 26, 1994 to March 4, 1994, she was rehospitalized due to lower back and bilateral leg pain. Harrell returned to Dr. Patrick on May 20, 1994, complaining of low back pain. Dr. Patrick prescribed Xanax and recommended that Harrell continue to wear a full corset for at least another month.

¶ 16. The records of the MEA Medical Clinic indicate that Harrell sought treatment for low back pain on several occasions in June 1994, and that she attributed the pain to her recent fall at work. Harrell again saw Dr. Patrick approximately two months after the fall at work. Harrell complained that, since the fall, she had suffered worsening low back pain and increasing low back spasm, with spasms extending from the low back to the neck. Dr. Patrick recommended physical therapy. Twenty days later, Harrell returned and reported that she was worse with physical therapy. Dr. Patrick ordered a myelogram, isotope bone scan, and post-myelogram CT, which were all normal. On January 10, 1995, Dr. Patrick indicated that he believed Harrell could perform secretarial work but should be restricted from stooping, bending, or heavy lifting. On May 2, 1995, Harrell returned, again complaining of low back pain, but Dr. Patrick was unable to explain the persisting chronic nature of the pain and referred Harrell to Dr. Russell Blaylock.

¶ 17. The medical records of Dr. Blay-lock reveal that he saw Harrell once, on May 9, 1995. Harrell reported her prior back surgeries and the fall at work. Dr. Blaylock performed a neurological examination and recommended a right sacroiliac joint injection. Dr. Blaylock also performed a lumbar MRI that revealed mild degenerative and post-operative changes at the right L5-S1 level.

¶ 18. The medical records of Dr. William Thompson indicate that he saw Harrell at the referral of Dr. Patrick on May 23,1995. Harrell complained of increasing lower back and radiating right leg pain. Dr. Thompson diagnosed her as having a post-laminectomy status of continued back and leg pain, and recommended a trial of epidural steroid injections.

¶ 19. The medical records of Dr. Rand Voorhies at the Oschner Clinic indicate that Harrell saw Dr. Voorhies several times between May and October of 1996. Harrell told Dr. Voorhies that she had been diagnosed with interstitial cystitis. She complained of back pain and loss of bladder and bowel control. An MRI of the lumbar spine indicated degenerative disc disease at L4-5 and L5-S1, and possible scar tissue at L5-S1. Dr. Voorhies referred Harrell to Dr. Charles Aprill, who opined that the L4-5 disc was abnormal. Dr. Voorhies thought there was a possibility that Harrell would benefit from further surgery in the form of a lumbar fusion. He also referred Harrell to the Colon & Rectal Department for diagnosis of her bladder and bowel problems. However, on October 29, 1996, a conflict arose between Harrell and the physicians at Oschner and Dr. Voorhies recommended that Harrell be transferred back to a practitioner in the Jackson area.

¶ 20. The medical records of Dr. David Collipp reflect that Dr. Collipp saw Harrell on April 30,1997, on referral from Dr. Lon Alexander, whose records were not introduced into evidence. Harrell reported the fall at work, her prior surgeries, and her diagnosis of interstitial cystitis. She also reported headaches coinciding with neck pain. Dr. Collipp diagnosed lumbar and cervical strains, and also recommended that Dr. Secrest perform urodynamies for the bladder condition. Additionally, Dr. Collipp ordered a functional capacity evaluation (FCE) for Harrell’s chronic low back pain.

¶ 21. The FCE was performed on October 2, 1997. The FCE report stated that Harrell complained of low back pain and shoulder pain radiating up her neck and between her shoulder blades. The FCE report noted that Harrell was “completely self-limited by complaints of pain,” such that the evaluation team was unable to observe signs of physiological máximums. The report stated that on Waddell’s testing, Harrell scored a positive three out of five, which is consistent with symptom magnification. The report concluded that it was difficult to evaluate Harrell due to her focus on the pain, and that there was pain amplification and symptom exaggeration. The FCE report recommended that Harrell be released to work at a sedentary fight level.

¶ 22. After reviewing the FCE, Dr. Col-lipp assessed Harrell relative to the June 6, 1994 injury, and assigned a date of maximum medical recovery of October 6, 1997. He assigned a 12% permanent physical impairment rating to the body as a whole due to Harrell’s pre-existing back injuries, and an additional 5% permanent physical impairment rating due to the work-related injury. On October 6, 1997, Dr. Collipp opined that Harrell could return to work at a sedentary fight level.

¶ 23. Dr. Robert McGuire performed an independent medical examination of Harrell on February 8, 1999, at the request of the administrative law judge. Harrell told Dr. McGuire about the fall and alleged that she injured her back and right shoulder. Dr. McGuire reviewed the records of the other doctors. Dr. McGuire opined that Harrell was still having a fair amount of back pain and that a surgical fusion would not alter the situation significantly. He stated that he had no problems relating the fall as an aggravator of her preexisting back condition. Dr. McGuire offered to defer the causation of the bladder problems to Drs. Secrest and Aldridge.

¶ 24. The deposition of Dr. Charles Sec-rest was admitted. Dr. Secrest testified that he is board certified in urology. Dr. Secrest stated that he first saw Harrell on March 14, 1996, when he performed a cys-toscopy, a procedure to look into the bladder with a scope. He found a limited bladder capacity. He noted that the lining of the bladder was cracked and bleeding, which is consistent with interstitial cystitis. Dr. Secrest defined interstitial cystitis as “a painful bladder condition of undetermined cause” that presents with symptoms such as pelvic pain, urinary frequency, and urinary retention. He stated that it is a benign disease, but it is chronic and can wax and wane over a period of time. He again stated that there is no known cause for the condition.

¶ 25. On April 3, 1996, Dr. Secrest performed a bladder washing to rule out cancer. The procedure confirmed his impression of interstitial cystitis. On May 13, 1997, he performed videourodynamics, a functional test of the bladder analogous to an EKG. The test showed pelvic floor spasticity, which confirmed interstitial cystitis, and ruled out a neurogenic bladder as the cause of Harrell’s symptoms. Dr. Secrest stated that, given Harrell’s prior back injuries, anything related to her back could possibly have an impact on her developing interstitial cystitis. He stated it would be impossible for him to say which event or culmination of events may have led to the disorder. Dr. Secrest stated that he thought the interstitial cystitis was related in some way to nerve damage, but that he had no way of knowing which of Harrell’s injuries or surgeries could have caused it. He stated that it was feasible that scar tissue from the first or second surgeries contributed to the disorder.

¶26. The deposition of Dr. John Al-dridge was admitted. Dr. Aldridge testified that he evaluated Harrell on July 16, 1996, at the request of Dr. Secrest. Dr. Aldridge stated that Harrell complained of bladder discomfort, frequent urination, and pain with intercourse. Dr. Aldridge opined that Harrell’s urological problem was neurogenic and could have been related to her lower back problems. However, he was unable to opine as to which of the back surgeries or injuries caused or contributed to any neurogenic bladder disorder or interstitial cystitis that Harrell may have. Dr. Aldridge testified that he could not relate Harrell’s bladder condition to the work-related back injury or to the surgeries to a reasonable degree of medical certainty. He stated that the condition could be related to scar tissue from one of the surgeries.

¶27. The deposition of Dr. Jackson Fowler was admitted. Dr. Fowler testified that he is the Chief of the Division of Urology at University Medical Center. Dr. Fowler stated that he saw Harrell once, on September 27, 1999. He reviewed her prior medical records, but due to her extensive records did not perform a physical evaluation. Dr. Fowler’s evaluation focused on Harrell’s urological complaints. Harrell reported urinary frequency and urgency, a sensation of incomplete bladder emptying, and discomfort with intercourse. Dr. Fowler’s report stated that her symptoms and the cystoscopic findings are consistent with her diagnosis of interstitial cystitis. He stated that after reviewing her records, he concluded she did not have neurogenic bladder dysfunction.

¶ 28. Dr. Fowler opined that there was no conclusive reason to believe the work-related back injury led to the urological disorder. He cited three considerations informing his conclusion. Firstly, he was not aware of any convincing evidence that back or neurologic disorders produce interstitial cystitis. Secondly, there was an almost two year delay between the fall and the onset of symptoms. Thirdly, Harrell had a history of back problems preceding the fall, making it difficult to implicate the fall as the cause of the disorder. He stated that his opinion was based on a reasonable degree of medical certainty.

¶ 29. Based on the above evidence, the administrative law judge concluded that Harrell had failed to prove by a preponderance of the evidence that her work-related back injury caused or contributed to her interstitial cystitis. The Commission affirmed this decision. We find the Commission’s decision was supported by substantial evidence. Drs. Secrest and Al-dridge, Harrell’s treating urologists, testified that the cause of interstitial cystitis is unknown. Both urologists testified that back injuries could have been a factor in the development of Harrell’s bladder condition. However, both urologists were unable to state to a reasonable degree of medical certainty that the work-related back injury of June 6, 1994, rather than Harrell’s previous surgeries, or some other element, caused or contributed to the interstitial cystitis. Additionally, symptoms of the bladder disorder did not manifest until two years after the work-related injury.

¶ 30. Harrell argues that the administrative law judge erroneously relied on Dr. Fowler’s statement that back injuries have not been linked to interstitial cystitis, and that Drs. Secrest and Al-dridge testified about new medical literature establishing a possible link between back injuries and interstitial cystitis. The opinion of the administrative law judge does not rely on Dr. Fowler’s statement, but rather on the inability of any expert, including Harrell’s treating physicians, to state that there was anything more than a possibility that the work-related injury caused or contributed to the interstitial cystitis. It is well-established that recovery under the worker’s compensation scheme must rest upon reasonable probabilities, not upon mere possibilities. Burnley Shirt Corp. v. Simmons, 204 So.2d 451, 454 (Miss.1967).

¶ 31. Harrell further argues that her case is analogous to Sharpe v. Choctaw Electronics, 767 So.2d 1002 (Miss.2000). In Sharpe, the claimant was exposed to chemical irritants in the work environment and developed respiratory problems. Id. at (¶ 13). Sharpe had no pre-existing pulmonary problems, and had not been exposed to chemical irritants prior to employment with Choctaw. Id. at (¶ 4). It was established that the majority of the chemicals to which Sharpe was exposed are known to cause pulmonary distress. Id. at (¶ 6). Experts testified that it was possible that the condition and the conditions of employment were related. Id. at (¶¶ 14, 17). No expert could testify to any other potential cause of Sharpe’s condition. Id. at (¶¶ 14-17). The Commission found that Sharpe had failed to prove a compen-sable injury. Id. at (¶ 9).

¶ 32. The supreme court reversed the Commission, stating that “[t]he connections between Sharpe’s work environment and his health are simply too numerous to be purely coincidental.” Id. at (¶ 20). Though no expert stated to a reasonable degree of medical certainty that Sharpe’s condition resulted from his exposure to toxic chemicals at work, the court concluded that Sharpe had proven that his injury was causally linked to his employment. Id. at (¶ 18). The court based its conclusion on findings that “Sharpe (1) suffered no pulmonary problems prior to his employment at Choctaw; (2) has demonstrated the presence of a lung ailment and/or shortness of breath; (3) has been exposed to substances at Choctaw which cause pulmonary distress; and (4) has been advised by every expert to avoid exposure to chemical irritants for fear of aggravation of the condition.” Id.

¶ 33. Harrell argues that she proved that her interstitial cystitis is causally connected to her work-related injury because she showed that she has a urological problem, and that she suffered no urological problems prior to her employment with Capitol Cablevision. While these facts parallel Sharpe, Harrell faded to prove that a work-related fall could be a probable cause of interstitial cystitis. In the instant case, none of the physicians was able to establish anything more than a speculative link between a fall resulting in a back injury and interstitial cystitis, or between a fall aggravating prior back injuries and interstitial cystitis. Unlike the established link between the types of chemicals at Choctaw and development of respiratory problems, interstitial cystitis is, definitively, a disorder of unknown etiology. The Commission’s conclusion that Harrell failed to prove by a preponderance of the evidence that her bladder condition was caused or contributed to by her work-related injury was supported by substantial evidence.

II. DID THE CIRCUIT COURT ERR IN REVERSING THE DECISION OF THE COMMISSION THAT HARRELL FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT HER RIGHT SHOULDER INJURY WAS WORK-RELATED?

¶ 34. This issue has been raised on cross-appeal by Time Wamer/Capitol Cablevision. The administrative law judge concluded that Harrell failed to prove by a preponderance of the evidence that she had sustained an injury to her right shoulder during her fall at work on June 6, 1994. The judge based his conclusion on the fact that there was no documentation of a problem with the Harrell’s right shoulder until the FCE on October 1,1997. The circuit court reversed, finding that the decision was not supported by substantial evidence.

¶ 35. We review the record pertaining to Harrell’s shoulder injury. At the hearing, Harrell stated that after her fall, a Report of Injury B-3 form was completed indicating a shoulder injury. Harrell testified that she reported a shoulder injury from the fall to “every doctor she saw,” and specified Drs. Patrick, Blaylock, Col-lipp, McGuire, and the doctor at the MEA Clinic. She stated that she had suffered no intervening events affecting her shoulder since the fall.

¶ 36. The record contains no B-3 form. Harrell’s medical records show that two days after the fall, Harrell visited the MEA Medical Clinic, seeking treatment for a back injury. The clinic’s records do not mention a shoulder injury. In August 1994, Harrell saw Dr. Patrick regarding the work-related back injury, but Dr. Patrick’s records do not mention a shoulder injury. Likewise, Drs. Blaylock, Thompson and Voorhies did not note any shoulder problem. The 1997 FCE notes shoulder pain. On February 8,1999, during the examination by Dr. McGuire, Harrell attributed a progressive right shoulder injury to the fall. Dr. McGuire checked the shoulder and found a possible rotator cuff tear. He opined that the condition could have been caused by that type of fall, and recommended that Harrell see a shoulder specialist.

¶ 37. Harrell had the burden to prove beyond speculation and conjecture that she sustained the shoulder injury in the course and scope of her employment. Coleman v. Chattanooga Container Corp., 377 So.2d 606, 608 (Miss.1979) (quoting Flintkote Co. v. Jackson, 192 So.2d 395, 397 (Miss.1966)). The record reveals no documentation of any shoulder problem until the 1997 FCE, approximately three years after Harrell’s fall at work. Harrell’s own unsubstantiated testimony was the primary evidence of a shoulder injury sustained in the fall. Dr. McGuire’s opinion that the fall could have caused the shoulder injury was formed five years after the fall, and is not of such significance that the administrative law judge was bound to conclude that Harrell carried the burden of proof. Hudson v. Keystone Seneca Wire Cloth Co., 482 So.2d 226, 227-28 (Miss.1986). We find that the decision of the administrative law judge, as affirmed by the Commission, was supported by substantial evidence.

¶ 38. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED ON DIRECT APPEAL AND REVERSED AND RENDERED ON CROSS-APPEAL. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPELLEE.

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

      . In his deposition, Dr. Jackson Fowler stated that "neurogenic bladder dysfunction” refers "to a number of disorders where for one reason or another the nerves that make the bladder work don’t work correctly.”


author: IRVING, J.,

text:
    Roosevelt MAXWELL a/k/a Roosevelt Maxwell, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01583-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.
    Rehearing Denied July 29, 2003.

      Jason E. Tate, McComb, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   IRVING, J.,

for the court.

¶ 1. Roosevelt Maxwell, a/k/a Roosevelt Maxwell, Jr., was convicted in the Circuit Court of Lincoln County on charges of murder and shooting into a dwelling. Feeling aggrieved by the judgment of conviction, Maxwell has perfected this appeal in which he raises three issues: (1) whether the trial court erred when it refused to grant his requested lesser-included offense jury instruction on manslaughter, (2) whether he was denied effective assistance of counsel, and (3) whether the verdict of the jury is against the overwhelming evidence.

¶ 2. We find no merit in these assertions of error; therefore, we affirm the decision of the trial court.

FACTS

¶ 3. On March 3, 2000, at approximately 12:58 in the afternoon, several gunshots were fired in the Blades’ Trailer Park in Lincoln County, Mississippi. Investigator Lance Falvey of the Lincoln County Sheriffs Department was dispatched to the trailer park at the corner of Booker and Washington Avenue. When he arrived, he observed both a number of people gathered in the street and Emergency Medical Services personnel on the scene. Upon closer examination, he observed Tonya Smith, who had been shot in the head, lying on the floor of her small trailer home.

¶4. Falvey inquired whether anyone from the crowd knew what had happened. Someone blurted out the name “Rocking-ham,” and the officer broadcasted this name through his dispatch radio. Shortly thereafter, another officer presented himself on the radio, advised all units to disregard the earlier “Rockingham” information, and announced he had the actual name of the suspect. That name was Roosevelt Maxwell.

¶ 5. After securing the area and taking initial photographs of the crime scene, Fal-vey investigated the trailer and found a trace of daylight piercing through a small hole in the trailer’s fiberglass canopy. He determined this opening to be a bullet hole. Falvey found no other holes in the trailer’s walls, no shell casings, nor a murder weapon.

¶ 6. After more officers had arrived, Fal-vey investigated a trail where the suspect allegedly ran after the shooting. The trail led the officer to the house of Barry Wade. Falvey noticed that the back door of the house was kicked it. After surveying the outside of the premises and determining that Wade was not at his residence, Falvey returned to the crime scene.

¶ 7. Approximately an hour after the incident, officers found Maxwell at his mother’s house and arrested him. Upon arrest, Maxwell was wearing a pullover shirt and black jeans. He appeared dirty with bits of leaves and trash on his person. Also, he was sweating profusely. Initial eyewitness accounts indicated that the suspect was wearing a green and yellow striped shirt with a pair of green shorts. After his arrest, Maxwell was brought to the crime scene.

¶ 8. While at the crime scene, a gun residue test was administered to Maxwell by an officer. Maxwell, soon thereafter, asked to speak solely to Arluster Henderson, the chief of police for the city of Brookhaven. Maxwell asked Henderson what had transpired, and Henderson informed him that witnesses had identified Maxwell as the shooter of a lady in the trailer park. Maxwell responded, “I only shot in the air three or four times.”

¶ 9. Maxwell was subsequently indicted for, and convicted of, the murder of Tonya and of shooting into a dwelling.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. The Lesser-included Offense Instruction

¶ 10. Maxwell argues that the trial court erred by refusing to grant his requested lesser-included offense jury instruction for manslaughter. While acknowledging that he voluntarily refused to allow the manslaughter instruction to be submitted to the jury, Maxwell, nevertheless, proclaims that the trial court was ultimately responsible for refusing to submit the manslaughter instruction to the jury. He therefore explains that since the jury was not allowed to consider the manslaughter instruction, his case should be reversed and remanded.

¶ 11. Our supreme court has often stated that a defendant is entitled to have his theory of defense presented to the jury. Drake v. State, 800 So.2d 508, 518(¶ 42) (Miss.2001) (citing Triplett v. State, 672 So.2d 1184, 1186 (Miss.1996)). However, the same court has also recognized that a defendant’s act of refusing an instruction on a lesser-included offense can sometimes be a sound trial tactic on the part of the defense. See Hiter v. State, 660 So.2d 961 (Miss.1995).

¶ 12. In Hiter, the defendant declined a manslaughter instruction and pursued a strategy that forced the jury to choose between convicting the defendant of murder or accepting the proffered theory of self-defense. Hiter, 660 So.2d at 965. The Hiter decision made absolutely clear that, where defense counsel’s objection to a manslaughter instruction is part of trial strategy, the mere fact that there was sufficient evidence on the record to support the manslaughter instruction does not require reversal:

It is clear from the record of facts that there was an evidentiary basis for a manslaughter instruction. Despite the strong evidentiary basis for the submission of such an instruction, it is equally clear from the record that counsel purposefully prevented the jury from considering the lesser included offense.... Counsel’s decision to refuse a manslaughter instruction, coupled with his decision to employ a defense based entirely on self-defense, was apparently his chosen strategy of representation. Attorneys are permitted wide latitude in their choice and employment of defense strategy.

Id. (emphasis added).

¶ 13. The trial judge in this case properly refused to give an instruction on the lesser-included offense of manslaughter since Maxwell and his counsel objected to such an instruction. In the case-at-bar, as Maxwell’s counsel and the prosecutor reviewed the proposed jury instructions, Maxwell expressly stated that he did not want a manslaughter instruction given. His intentions were also communicated through his counsel. Even after Maxwell had refused to allow the instruction to be given, the trial judge revisited the issue, and again, Maxwell was unswerving in his position that the instruction should not be given. Maxwell’s decision was clearly indicative of a strategy to prevent the jury from returning what he feared may have been a compromised verdict on the murder charge. He gambled and lost. He cannot now place blame on the trial court by asserting that the trial judge should have given the instruction anyway because the trial judge is obligated to give instructions which are undergirded with an evidentiary basis. This assignment of error is without merit.

2. Ineffective Assistance of Counsel

¶ 14. Maxwell complains that his attorney’s assistance was deficient because she failed to request a manslaughter instruction. Moreover, Maxwell asserts that his counsel’s assistance was ineffective because she failed to make a Miranda objection to Henderson’s testimony regarding Maxwell’s incriminating statement.

¶ 15. Our standard of review for a claim of ineffective assistance of counsel is a two-part test: the defendant must prove, under the totality of the circumstances, that (1) his attorney’s performance was deficient and (2) the deficiency deprived the defendant of a fair trial. Jackson v. State, 815 So.2d 1196, 1200(¶ 8) (Miss.2002) (citing Hiter, 660 So.2d at 965 (Miss.1995)). This review is highly deferential to the attorney, with a strong presumption that the attorney’s conduct fell within the wide range of reasonable professional assistance. Id. With respect to the overall performance of the attorney, “counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy” and cannot give rise to an ineffective assistance of counsel claim. Id. (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)).

¶ 16. A defendant claiming ineffective assistance of counsel has the burden of proving not only that counsel’s performance was deficient, but also that he was prejudiced thereby. Jackson, 815 So.2d at 1200(¶ 9) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Additionally, the defendant must show that there is a reasonable probability that, but for his attorney’s errors, he would have received a different result in the trial court. Id. (citing Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992)). Finally, the court, based upon the totality of the circumstances, must then determine whether counsel’s performance was both deficient and prejudicial. Id. (citing Carney v. State, 525 So.2d 776, 780 (Miss.1988)).

¶ 17. We do not find that Maxwell’s counsel was ineffective in the assistance provided in Maxwell’s defense. Maxwell’s counsel’s failure to request a jury instruction for manslaughter did not constitute ineffective assistance. As we enunciated earlier, Maxwell himself made the determination that a manslaughter instruction should not be requested, and that decision was purely strategic. Moreover, his counsel’s failure to make a Miranda objection to Henderson’s testimony does not amount to a deficiency in his counsel’s representation. Henderson did not interrogate Maxwell. It was Maxwell who asked to speak with Henderson. After doing so, and in response to the answer Henderson gave to Maxwell’s question, Maxwell volunteered the statement that he shot into the air. There was no basis for a Miranda challenge.

3. Motion for Directed Verdict

¶ 18. The final issue Maxwell raises on appeal is whether the trial court erred in denying his motion for directed verdict. The legal sufficiency of the State’s evidence may be tested by a motion for a directed verdict, a request for a peremptory instruction, and a motion for a JNOV; the standard of review of each is essentially the same. Dickey v. State, 819 So.2d 1253, 1256(¶ 9) (Miss.2002) (citing Ellis v. State, 778 So.2d 114, 117(117) (Miss.2000)). The evidence must be viewed in the light most favorable to the State and this Court must accept as true all the evidence which supports the guilty verdict without weighing the credibility of the evidence. Id. The prosecution receives the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. (citing McFee v. State, 511 So.2d 130, 133-34 (Miss.1987)). This Court will reverse only where reasonable and fair-minded jurors could only find the accused not guilty. Id. (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)).

¶ 19. Here, the evidence offered by the State is such that fair-minded jurors could find Maxwell guilty as charged. Anthony Blue testified that he was present during the incident, that he witnessed the shooting, and that he communicated to the police that Maxwell had killed Tonya. Michael Beasley testified that he saw Maxwell run behind Tonya’s trailer immediately after the shooting. Kevin Butler, a visitor at Tonya’s trailer at the time she was shot, testified that the shots came from the direction where he had seen Maxwell standing shortly before the shots were fired.

¶20. Lance Falvey, a deputy sheriff, gave testimony about the crime scene where he discovered a bullet hole in the trailer. He investigated the alleged escape path of the suspect where he eventually came to the home of Barry Wade. The back door of Wade’s home was kicked in. Falvey testified that Maxwell appeared very dirty with bits of leaves and trash on his person and that Maxwell was sweating profusely on a cool afternoon. Barry Wade verified that the back door of his home was kicked in and that a pair of black pants was taken from his residence.

¶21. Bruce Jackson, an investigator, testified that he administered a gun residue test to Maxwell. David Whitehead, the forensic scientist who reviewed the residue test given to Maxwell, testified that Maxwell had “been in the environment of a discharged weapon.” Chief Henderson testified that upon his informing Maxwell that witnesses had indicated that Maxwell had shot Tonya, Maxwell’s response was “I only shot in the air three or four times.”

¶ 22. We find that the evidence of Maxwell’s guilt was overwhelming. Therefore, we hold that the trial judge properly refused to direct a verdict in Maxwell’s favor. The judgement of the trial court is affirmed.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF COUNT ONE, MURDER, AND SENTENCE OF LIFE; AND COUNT TWO, SHOOTING INTO A DWELLING, AND SENTENCE OF TEN YEARS ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO RUN CONCURRENTLY AND PAY $3,365 IN RESTITUTION TO THE CRIME VICTIM’S COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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

      . In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that police are required to apprise a criminal defendant of his right to an attorney and to have the attorney present during custodial interrogation so as to protect the defendant against self incrimination.


author: LEE, J.,

text:
    Michael MIMS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00613-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.
    Rehearing Denied Aug. 19, 2003.
    Certiorari Denied Oct. 9, 2003.

      Dan W. Duggan, Brandon, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On May 2, 2000, Michael Mims sold crack cocaine to two confidential informants for the Laurel Police Department, a transaction which was recorded on audiotape by one of the informants. Mims was incarcerated in January of 2001, indicted by the grand jury on March 26, 2001, and arraigned on April 9, 2001. On April 3, 2002, a jury in the Circuit Court of Jones County found Michael Mims guilty of sale of a controlled substance. The trial judge sentenced Mims to thirty years in the custody of the Mississippi Department of Corrections, with fifteen years suspended. Mims now appeals his conviction to this Court asserting the following issues: (1) he was denied his constitutional and statutory rights to a speedy trial; and (2) the trial court erred in not granting a directed verdict in Mims’ favor, or in the alternative, granting a judgment notwithstanding the verdict. Finding no merit to either issue, we affirm.

DISCUSSION OF ISSUES

I. WAS MIMS DENIED HIS CONSTITUTIONAL OR STATUTORY RIGHT TO A SPEEDY TRIAL?

¶ 2. With his first issue, Mims claims that the trial court committed reversible error in not dismissing his case at the pretrial hearing because his right to a speedy trial had been violated. Specifically, Mims contends that his right to a speedy trial was violated under the United States Constitution, the Mississippi Constitution, and Miss.Code Ann. § 99-17-1 (Rev.2000). As Mims addresses his constitutional right and statutory right to a speedy trial, we will address each separately. With little assistance from the State’s brief concerning the issues at hand, we now look to our standard of review in claims of speedy trial violations:

Review of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under this Court’s standard of review, this Court will uphold a decision based on substantial, credible evidence. If no probative evidence supports the trial court’s finding of good cause, this Court will ordinarily reverse. The state bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion.

DeLoach v. State, 722 So.2d 512(¶ 12) (Miss.1998) (citations omitted).

a. Constitutional right to a speedy trial

¶ 3. The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), employed a four pronged balancing test in determining whether a defendant had been deprived of his right to a speedy trial. The four prongs are (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Arthur v. State, 735 So.2d 213(¶ 11) (Miss.1999). We look to these factors as they apply to Mims’ case.

¶ 4. Mims’ constitutional right to a speedy trial attached at the time of his arrest, which was sometime in January 2001. The record does not contain a specific date of the arrest. However, the Mississippi Supreme Court has said that a delay of more than eight months is presumptively prejudicial. DeLoach, 722 So.2d at (¶ 16). The length of delay in this case was well over eight months; therefore, we must look to the next factor.

¶5. The second factor requires that we look to the reason for the delay. “Once there is a finding that the delay is presumptively prejudicial, the burden shifts to the prosecution to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons.” Id. at (¶ 17). In the arraignment order, Mims and the State agreed to a continuance of over a month. No other motions for continuance were filed and Mims does not specifically state any reasons for delay. At trial, the State does mention that the docket was congested. If that was the case, the Mississippi Supreme Court has stated that an overcrowded docket will not be weighed heavily against the State. McGhee v. State, 657 So.2d 799, 802 (Miss.1995). However, “where the defendant has not caused the delay and the State does not show good cause for that delay, this Court weighs this factor against the prosecution.” Lee v. State, 759 So.2d 1264(¶21) (Miss.Ct.App.2000). We count this factor lightly against the State.

¶ 6. The third factor concerns Mims’ assertion of his right to a speedy trial. Mims filed his motion to dismiss for violation of his right to speedy trial on March 25, 2002, a little over one week before the trial commenced. “A defendant has no duty to bring himself to trial.... Still he gains far more points under this prong of the Barker test where he had demanded a speedy trial.” Brengettcy v. State, 794 So.2d 987(¶ 17) (Miss.2001). The Mississippi Supreme Court has also stated that a motion for dismissal based on violation of the right to a speedy trial and a demand for a speedy trial are not equivalent, with regard to the Barker analysis, as one seeks discharge and the other an immediate trial. Perry v. State, 637 So.2d 871, 875 (Miss.1994). See also Adams v. State, 583 So.2d 165, 169-70 (Miss.1991) (holding that demand for dismissal coupled with demand for instant trial is insufficient to weigh third Barker prong in defendant’s favor where motion came after bulk of delay had elapsed). Here, we have no indication that Mims ever filed a motion demanding a speedy trial, only that he filed a motion to dismiss prior to trial. We find the third factor weighs against Mims.

¶ 7. The fourth factor concerns prejudice suffered by the defendant. This includes prejudice in preparing his defense and loss of liberty he suffered due to the delay. Perry, 637 So.2d at 876. The Mississippi Supreme Court has identified three main considerations in determining whether the accused has been prejudiced by lengthy delay: “(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.” Jefferson v. State, 818 So.2d 1099(¶ 21) (Miss.2002). Mims claims that the delay automatically raised concerns about the oppressiveness of his pretrial incarceration. Mims also claims that it was difficult to meet with his attorney in order to prepare for trial because he was in jail in Ellisville and his attorney was in Brandon. Actually, it must be noted that Mims was in jail because his bond had been revoked as a result of two other felony charges. Mims fails to provide specific evidence concerning anxiety he suffered or any specific injury to his ability to prepare a defense. We find that Mims has failed to show any prejudice, and this factor weighs in favor of the State.

¶ 8. Our final obligation under Barker is to weigh the factors. “The balancing test set forth in Barker must be applied on a case by case basis under the particular facts of the case under consideration.” Birkley v. State, 750 So.2d 1245(¶ 30) (Miss.1999). While not considering lightly the fact that a delay did exist, we recognize that Mims failed to assert his right to a speedy trial, did not object to any delays, other than filing the week before trial a motion to dismiss for failure to provide a speedy trial, and has importantly failed to show he suffered any actual prejudice due to the delay. Thus, we cannot find Mims’ constitutional right to a speedy trial was violated.

b. Statutory right to a speedy trial

¶ 9. Mims briefly mentions that his right to a speedy trial was violated under Miss. Code Ann. § 99-17-1 (Rev.2000), which states as follows:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

¶ 10. Mims was arraigned on April 9, 2001. In the arraignment order, the judge stated that, upon request by both the prosecuting attorney and the defense attorney, the case would be continued until May 21, 2001. The next date mentioned concerning a trial date was at a hearing on March 25, 2002, concerning Mims’ motion to dismiss for a speedy trial violation. This motion was filed over two months after the 270 day deadline elapsed. Evidently the trial date was set for March 27, 2002, but the prosecution and the defense attorney had reached a prior agreement to ask for a continuance until the next week. The trial commenced April 3, 2002.

¶ 11. Mims failed to raise this issue within 270 days of his arraignment and, therefore, acquiesced to the delay. Malone v. State, 829 So.2d 1253(¶ 11) (Miss.Ct.App.2002). See also Walton v. State, 678 So.2d 645, 649-50 (Miss.1996). This argument is without merit.

II. DID THE TRIAL COURT ERRED IN DENYING MIMS’ MOTION FOR A DIRECTED VERDICT, OR IN THE ALTERNATIVE, A JUDGMENT NOTWITHSTANDING THE VERDICT?

¶ 12. With his other issue, Mims claims that the trial court committed reversible error in not directing a verdict for Mims, or in the alternative, granting a judgment notwithstanding the verdict. Specifically, Mims contends that the inconsistencies in the evidence demand a reversal. We look to our standard of review concerning directed verdicts. When reviewing a denial of a motion for directed verdict, “the court must review the evidence in the fight most favorable to the [S]tate, accept as true all the evidence supporting the guilty verdict, and give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). The court wifi reverse only when reasonable and fair-minded jurors could find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Furthermore, it is within the discretion of the jury to accept or reject testimony by a witness, and the jury “may give consideration to all inferences flowing from the testimony.” Mangum v. State, 762 So.2d 337(¶ 12) (Miss.2000) (quoting Grooms v. State, 357 So.2d 292, 295 (Miss.1978)).

¶ 13. We find sufficient evidence existed to deny Mims’ motion for a directed verdict. The jury was allowed to hear an audiotape of Mims selling crack cocaine to a confidential informant. A police officer testified that he prepared the confidential informants for the buy, he searched both informants and the car they were driving, he placed the body wire on the informants, he listened to the transaction as it occurred, and he received the crack directly after the buy. An expert testified that the substance consisted of 1.22 grams of crack cocaine.

¶ 14. Mims’ main argument concerns the testimony of the two confidential informants. Mims contends that their testimony is so inconsistent that he should not have been found guilty. However, the main inconsistencies appear to involve the logistics of the transaction, such as where the participants were standing and where one of the informants was dropped off to initiate the buy. From the evidence presented, the jury resolved any discrepancies in the testimony in favor of the State. Viewing this evidence favorably to the State, we find fair-minded jurors had sufficient evidence to find Mims guilty.

¶ 15. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE, COCAINE, AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS SUSPENDED, AND FINE OF $25,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


author: ■ BRIDGES, J.,

text:
    Steven Lamont CROSBY a/k/a Steve Salter, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00422-COA.
    Court of Appeals of Mississippi.
    May 6, 2003.
    Rehearing Denied July 15, 2003.
    Certiorari Denied Dec. 4, 2003.

      Dan W. Duggan, Brandon, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   ■ BRIDGES, J.,

for the court.

¶ 1. The Grand Jury of Rankin County indicted Steven Crosby for the offenses of aggravated assault, kidnaping and convicted felon in possession of a firearm, all as a habitual offender. A jury trial followed in which the jury returned a verdict of “guilty.” Crosby was then sentenced to serve a term of three consecutive life sentences without the possibility of parole in the custody of the Mississippi Department of Corrections. Following the trial court’s denial of his motion for a directed verdict, motion for a new trial and JNOV, he now appeals to this Court.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL ERRED IN DENYING CROSBY’S MOTIONS FOR A DIRECTED VERDICT, A NEW TRIAL AND A JNOV FOR EACH OF THE THREE OFFENSES.

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE STATE TO AMEND THE INDICTMENT PRIOR TO TRIAL.

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING A SHERIFF’S INVESTIGATOR TO TESTIFY AS A FIREARMS EXPERT.

IV. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A CONTINUANCE AT THE TIME OF A DISCOVERY VIOLATION ALLEGED BY THE APPELLANT.

V. WHETHER IT WAS WITHIN THE TRIAL COURT’S DISCRETION TO ALLOW LEADING QUESTIONS.

FACTS

¶ 2. On the evening of May 5, 2001, James Kevin Gibson traveled to Otis Singleton’s trailer, located in Rankin County, Mississippi. Two men, Marcus Craft and Brandon Young, were already inside the trailer when Gibson arrived. Sometime after Gibson’s arrival, another car pulled up to the trailer and the two men inside the trailer heard a fight break out outside between Gibson and another person, who was later identified as the Appellant, Crosby. Crosby’s girlfriend, Joyce Anne Kemp, arrived and tried to break up the fight between Gibson and Crosby, but was told to go inside. During the commotion, Craft and Young witnessed, and later testified to, a “red beam” displayed across their chests through the window of the bedroom. However, neither Craft nor Young ever saw Crosby. After Joyce went into the trailer, she soon heard a car leave and, after looking out of the window, noticed both Crosby and Gibson were gone.

¶ 3. Sometime later, Crosby was seen in Magee, twenty three miles from the scene, at a Shell service station. It was at that Shell station where Crosby was captured on a video surveillance camera. While there, he asked to use a pay phone and handed the cashier a “bloody” dollar bill for change. Crosby was also witnessed wearing muddy clothing and shoes. It was also at this gas station where police found a green Ford, belonging to Gibson. What police described as “blood smears” were found on the trunk lid, sides of the door frames, inside the trunk and within the car itself. Police eventually found Gibson, still alive, on the side of the road between Magee and Mendenhall. Later Crosby arrived at Kemp’s mother’s home, located five minutes from Singleton’s trailer. No evidence was ever presented to indicate how Crosby got from the Shell station in Magee to the mother’s house. A unique gun with a laser sighting apparatus was later found by police in the trunk of Kemp’s car and the clip or magazine for the weapon was found under the passenger seat where Crosby was seated.

ANALYSIS

I. WHETHER THE TRIAL ERRED IN DENYING CROSBY’S MOTIONS FOR A DIRECTED VERDICT, A NEW TRIAL AND A JNOV.

¶ 4. With regards to Crosby’s first issue, he argues that the trial court committed reversible error when it failed to grant his motions for a directed verdict, or in the alternative, JNOV on each of his three offenses. He states that the evidence was simply insufficient to sustain a verdict of guilty in his case and requires a reversal. Specifically, Crosby claims there was insufficient evidence of a gun being used in the aggravated assault as charged in the indictment. As for the kidnaping, he claims only that there is insufficient evidence. Lastly, Crosby claims that there was no connection made between him and the gun.

¶ 5. Our standard of review regarding motions for a directed verdict and also a JNOV is:

Sufficiency questions are raised in motions for directed verdict and also in JNOV motions. McClain v. State, 625 So.2d 774, 778 (Miss.1993). Where a defendant moves for a JNOV or a directed verdict, the trial court considers all of the credible evidence consistent with the defendant’s guilt, giving the prosecution the benefit of all favorable inferences that may be reasonably drawn from this evidence. Id. This Court is authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could not find the accused guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987.)

Holmes v. State, 798 So.2d 533, 538(¶ 18) (Miss.2001).

¶ 6. Motions for directed verdicts and motions for JNOV are both for the purpose of challenging the legal sufficiency of the evidence. Noe v. State, 616 So.2d 298, 302 (Miss.1993); McClain, 625 So.2d at 778. See also Strong v. State, 600 So.2d 199, 201 (Miss.1992). Our standard of review regarding the legal sufficiency of the evidence is as follows:

[W]e must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Wetz, 503 So.2d at 808. “The jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Billiot v. State, 454 So.2d 445, 463 (Miss.1984). This Court may not make an assessment on the credibility of the trial witnesses as this task is one for the jury presiding over the matter. Kinzey v. State, 498 So.2d 814, 818 (Miss.1986).

¶ 7. When this Court analyzes a jury’s verdict to determine whether it goes against the overwhelming weight of the evidence, we must keep in mind that the jury is the ultimate finder of fact. This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible. The law provides:

Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into finding of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a fac-. tual dispute for jury resolution.

Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 8. According to the above standard of review, this Court is supposed to look at the evidence in the light most favorable to the verdict. We do not have the responsibility of re-weighing the evidence to determine which witnesses we believe had the most credibility.

¶ 9. In light of the standard of review, we must disregard this issue of the verdict being against the overwhelming weight of the evidence. Crosby cites Cooley v. State, 803 So.2d 485 (¶¶ 6-7) (Miss.Ct.App.2001), where this Court reversed and remanded where the following facts were observed: (1) Clark testified that he saw Cooley with a gun in his right hand; (2) Cooley then hit Clark with something, but it was not a gun, he just could not identify what he was hit with; and (3) he never did identify to the jury with what he was beaten. That case was reversed in spite of the fact that Cooley apparently had a gun in his hand. The problem was the indictment alleged that the beating was done with a hatchet and no one found or identified a hatchet during testimony.

¶ 10. First and foremost, this Court must distinguish the Cooley case from the present case. In Cooley, while there was blood found on the hatchet, laboratory analysis established that the blood was not that of the victim. In the case sub judice, while there was testimony that blood was found on the weapon, it was never analyzed to determine if it was the victim’s blood.

¶ 11. In addition, there was expert testimony given by Dr. Yablon that the injuries to Gibson were consistent with the history received, that Gibson had been assaulted with a gun.

¶ 12. Also, there was testimony that blood was found on the end of the magazine found underneath the seat where Crosby was seated. Blood was also found on the victim, in the car, in the trunk, on the ground, and even on the currency presented to the cashier at the Shell station. Craft and Young both testified that they noticed a laser fight on their chests. A gun with a laser apparatus was found in a car where Crosby disavowed any knowledge of the gun.

¶ 13. It is clear from the record, there was an abundance of evidence to support the jury finding Crosby guilty of aggravated assault. It is the job of the jury to determine which witnesses are credible and which are not. All of the conflicting evidence involve jury questions and it was the responsibility of the jury to decide whether a weapon was actually used.

¶ 14. In regards to the kidnaping charge, there was sufficient evidence to support a jury finding of “guilty.” In his brief, Crosby cites caselaw that states mere speculation, guesswork, and conjecture have no place in the courtroom. Edwards v. State, 469 So.2d 68, 69 (Miss.1985). However, jury instructions were given in regards to reasonable inferences. In regards to the evidence itself, blood was found everywhere. There was blood found in Gibson’s ear, in the trunk of the car, and miles away the victim was found lying in a ditch, a ditch that happens to be on the way to Magee where Crosby was also seen. Crosby was caught on tape coming into a convenience store and handing the cashier a dollar bill stained with blood. The evidence is clear, Crosby thrashed Gibson, put him in his car and dumped him in a ditch.

¶ 15. Last, but not least, we consider the convicted felon in possession of a firearm charge. Again, there was sufficient evidence to support the jury’s finding on this charge as well. Crosby had been convicted of at least two other felonies which were charged separately and arose out of separate incidents. One involved manslaughter, and the other involved aggravated assault. Also Craft saw a red beam of fight that he claims had to belong to a gun. Crosby went in search of his laser gun which he misplaced. The gun was found and returned to Crosby. That same gun was later found in the trunk of a car in which Crosby was riding as a passenger, and the owner of the car told police that the gun did not belong to her. A clip or magazine for the laser sighted weapon was found underneath the seat where Crosby was seated.

¶ 16. Therefore this Court finds these claims are without merit.

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE STATE TO AMEND THE INDICTMENT PRIOR TO TRIAL.

¶ 17. The next issue argued by Crosby is that the trial court erred in allowing the indictment to be amended, therefore, allowing him to be prejudiced. The law regarding pre-trial amendments of an indictment to charge habitual offender status is stated clearly in Rambus v. State, 804 So.2d 1052, 1060-61(¶24) (Miss.Ct.App.2001). It states:

Getting to the amendment itself, an indictment can be amended when the amendment goes to form and not to substance. Burson v. State, 756 So.2d 830 (¶ 14). When deciding whether an amendment goes to form or substance, this Court looks to see if the defenses the defendant had originally are equally available to the defendant after the amendment is made. Eakes, 665 So.2d at 859-60. After looking at the record in this case it becomes clear the same defenses were available to Rambus after the indictment was amended as were available before the amendment. Ram-bus would have the same defenses available to him in this case whether he was a repeat offender or not. For this reason, the amendment in this case goes to form and not to substance, and thus would be allowed under Mississippi law. Also, the Uniform Circuit and County Rules allows an indictment to be amended so a defendant may be charged with habitual offender status. U.C.C.C.R. Rule 7.09. Therefore, the trial court was not in error in allowing Rambus’s indictment to be amended to reflect his repeat offender status. We affirm as to this issue.

¶ 18. Crosby was convicted, in Hinds County Circuit Court, for manslaughter, a violent offense and was also convicted in Rankin County Circuit Court for aggravated assault. In accordance with the following caselaw, the indictment was allowed to be amended so that Crosby could be charged with habitual offender status. Therefore, the trial court did not err in allowing Crosby’s indictment to be amended to reflect his repeat offender status. We affirm as to this issue.

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING A SHERIFF’S INVESTIGATOR TO TESTIFY AS A FIREARM EXPERT.

¶ 19. During direct examination of the crime lab witness, the State qualified Gregg Eklund, an investigator with the Rankin County Sheriffs Department, as an expert for the limited purpose of answering questions concerning the clip found under the seat matching the gun found in the trunk. The defense was given an opportunity to voir dire the witness and later objected to his qualifications based upon asking him only two questions, one of which he could not answer. However, that last question concerned the number of twists and grooves in the barrel of this particular gun, which according to Crosby, is a rather basic question that any “expert” should have been able to answer. The trial court later allowed him to be qualified.

¶20. In Edwards v. State, 737 So.2d 275, 298(¶ 45) (Miss.1999), the Court stated that the question as to whether a person is qualified to testify as an expert is “left to the discretion of the court, and will not be overturned, absent an abuse and a showing the witness was clearly not qualified.”

¶ 21. In accordance with the aforementioned caselaw, and from the evidence that is present in the record, this Court finds that the trial court did not abuse its discretion in allowing the witness to be qualified as an expert. Defense counsel should have asked more than just two questions during voir dire of the witness in order to show a clearer picture of abuse by the trial court. Considering the limited scope of the questioning, whether the clip matches up with .the gun, and the expert’s involvement in law enforcement over twenty years, the Court finds this claim without merit.

IV. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A CONTINUANCE AT THE TIME OF A DISCOVERY VIOLATION ALLEGED BY THE APPELLANT.

¶ 22. Crosby also seeks reversal and remand for a new trial based on a claim of a discovery violation, specifically, that blood was found on the gun. During Eklund’s testimony, he mentioned finding blood on the weapon. Defense counsel, outside the presence of the jury, confirmed that he had no reports in his discovery that included whether or not blood was found on the weapon, or that the weapon tested positive for blood, which is required under Rule 9.04(A)(1, 4) of the Uniform Circuit and County Court Rules.

¶ 28. The Mississippi Supreme Court in Box formulated the guidelines which every trial court must adhere to concerning newly discovered evidence. Box v. State, 437 So.2d 19, 23 (Miss.1983). First, the defendant, after making a timely objection should be permitted to interview the witness. Id. Second, if suspecting unfair surprise and that the defendant will be prejudiced, a continuance should be requested. Finally, the court may grant a continuance or set a new trial. Id. Defense counsel explained to the court this information was new, and not provided in discovery. After the explanation, defense counsel requested a continuance which was denied and further asked for and was denied a mistrial. Crosby claims he was entitled under the rules to a copy of any reports from which the State’s witness was to testify.

¶ 24. However, this evidence had been in the custody of the Rankin County Sheriff since the crime occurred and was readily available to Crosby and his counsel. While there were no laboratory analysis done on the blood found on the gun, there was testimony stating that field tests were conducted. Since the gun was readily available to defense counsel, he had plenty of opportunity to get the blood tested. This witness was also made available to defense counsel and these questions certainly could have been asked of him. Therefore, this was not a discovery violation, thus Crosby’s claim is without merit

V. WHETHER IT WAS WITHIN THE TRIAL COURT’S DISCRETION TO ALLOW LEADING QUESTIONS.

¶ 25. The case of Neal v. State, 805 So.2d 520 (Miss.2002), provides the most accurate caselaw on leading questions; when they are permitted and when they are not. It states:

M.R.E. 611(c) allows leading questions on direct examination when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party: (c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. The decision to allow leading questions rests within the discretion of the trial court and will not be disturbed unless there is a showing of abuse of discretion. McFarland v. State, 707 So.2d 166, 175 (Miss.1997).

Id. at 527 (¶ 25-27).

¶ 26. With respect to Marcus Craft, during the examination the trial court did allow limited leading questions, however, it was only for the purpose of developing his testimony as is permitted in M.R.E. 611(c). In addition, as to Crosby’s claims that hearsay was admitted over objection, he failed to mention any specific hearsay that was allowed to come in outside of an exception. Therefore, these allegations are without merit.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF COUNT I AGGRAVATED ASSAULT AND SENTENCE OF LIFE; COUNT II KIDNAP-ING AND SENTENCE OF LIFE; AND COUNT III POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF LIFE, ALL SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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