author: BRIDGES, J., KING, P.J., SOUTHWICK, P.J.,

text:
    Tracy HARRIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00044-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2003.
    Rehearing Denied Jan. 27, 2004.
    Certiorari Denied July 22, 2004.

      Johnnie E. Walls, Greenville, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   BRIDGES, J.,

for the Court.

¶ 1. Tracy Harris was indicted on March 30, 1999, by the grand jury of the Circuit Court of the Second Judicial District of Bolivar County, Mississippi. The indictment charged him with the murder of Frederick Haywood in violation of Mississippi Code Annotated section 97-3-17 (Rev.2000). On April 6, 1999, Harris was arraigned and entered a plea of not guilty.

¶ 2. On June 10-11, 1999, Harris was tried before a jury and was found guilty of murder and received a life sentence in the custody of the Mississippi Department of Corrections. It is from this conviction and sentence that Harris now appeals to this Court.

STATEMENT OF THE ISSUES

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT INSTRUCTION D-2 AS REQUESTED BY HARRIS?

II. DID THE TRIAL COURT ERR IN ALLOWING THE PROSECUTION TO USE THREE OF ITS PEREMPTORY CHALLENGES IN A RACIALLY DISCRIMINATORY MANNER?

III. DID THE TRIAL COURT’S FAILURE TO GIVE A SUA SPONTE CAUTIONARY INSTRUCTION CONSTITUTE REVERSIBLE ERROR?

FACTS

¶ 3. On the night of March 27, 1998, Frederick Haywood, Anthony O’Bryant, and Algesa Haywood arrived at the American Legion Hut (“the Hut”) in Mound Bayou, Mississippi. Already at the Hut were Joe Smith, Nakil O’Bryant, Willie Morgan, and the Appellant, Tracy Harris.

¶ 4. Larry Haywood, also known as “Slug”, walked into the Hut. Moments later when he exited, he was immediately hit in the head with a gun by Joe Smith. Frederick Haywood walked to a Ford Explorer to get a bat. It was then that Nakil O’Bryant and Willie Morgan began shooting at the Ford Explorer. According to testimony, Harris reached over the shoulder of Nakil to retrieve the gun while stating, “You ain’t shooting this M.F. right” and began shooting until Frederick Haywood fell to the ground. Harris then ran across the street and jumped in a ditch.

¶ 5. Several of the witnesses from the night in question agreed to testify at trial. Anthony O’Bryant testified that he was at the American Legion Hut on the night of the shooting and that he remembered hearing Harris say to Morgan that he was not firing the handgun properly. Anthony O’Bryant also testified to seeing Harris take the gun from Morgan, who was shooting into the air at the time, level it and begin shooting at Frederick Haywood.

¶ 6. Algesa Haywood also testified at trial and identified Harris as the person who shot Frederick Haywood. Algesa also stated that Harris took the gun from Morgan, and then “aimed at him and Fred fell.” Algesa also corroborated the testimony of Anthony O’Bryant in hearing Harris say to Morgan, “You ain’t shooting it right.”

¶ 7. Ronald Robinson, chief of police in Mound Bayou, testified to finding Frederick Haywood with a bullet wound in his chest. Robinson also found a handgun in a ditch nearby and four cartridge shells were found at the scene of the shooting. At the autopsy, a bullet was recovered from the body of Frederick Haywood, which was labeled, packaged and sent to the crime laboratory for testing. Dr. Steven Hayne, who performed the autopsy on Frederick Haywood, testified that Haywood died from a gunshot wound to his upper chest and a .45 caliber bullet was removed from his body.

¶ 8. Steve Byrd from the Mississippi State Crime Laboratory testified that the bullet was fired from the .45 caliber semiautomatic handgun that was found near the scene of the shooting. Nakil O’Bryant later testified and identified the handgun as belonging to him and that the same gun was the one taken out of his truck by Morgan while at the American Legion Hut.

¶ 9. Harris decided to testify in his own behalf and began by saying that he did take the handgun but he denied having argued with the victim or having shot at him or anyone else. He also denied having told anyone that he shot Haywood. (He originally told investigators that he took the handgun from Morgan.)

¶ 10. After he was found guilty, Harris filed a motion for a JNOV. Harris’s motion was denied by the trial court.

ANALYSIS

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT INSTRUCTION D-2 AS REQUESTED BY HARRIS?

¶ 11. During jury instruction selection, the defense requested jury instruction D-2, which was later rejected by the trial court. Harris felt he was entitled to an instruction that included the phrase, “in the heat of passion.” Consequently, the trial court found that there was a lack of evidence that Harris had acted in the heat of passion without malice aforethought. The trial court, however, did grant an alternative instruction which covered manslaughter. In this lesser-included-offense instruction for manslaughter, the phrase used was “the killing of a human being without malice, by use of a dangerous weapon, without authority of law is manslaughter.”

¶ 12. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” John son v. State, 823 So.2d 582, 584(¶ 4) (Miss. Ct.App.2002).

¶ 13. In Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990), the court held that a defendant was not entitled to an instruction which incorrectly stated the law, was without foundation in the evidence or was stated elsewhere in another instruction.

A defendant is entitled to have an instruction on his theory of the case. There is a limitation, however, because a trial judge may refuse an instruction which incorrectly states the law, is without foundation in the evidence, or is stated elsewhere in the instruction.

Id. (citations omitted).

¶ 14. The trial court did not err in denying jury instruction D-2 since instruction C-30 sufficiently covered a lesser-in-eluded-offense instruction for manslaughter. The evidence from the record shows that there was no claim of acting in the heat of passion by Harris or his own witnesses. Harris’s own testimony was that he had no confrontation with the victim, and he did not shoot at anyone. Harris had possession of the handgun used in the shooting only after someone else had allegedly fired it at the victim. However, the record reflects an abundance of corroborated eyewitness testimony that Harris deliberately and intentionally used a dangerous weapon, a handgun, to shoot and kill the victim. When reading the instructions actually given as a whole, this Court finds that the “instructions fairly announce the law of the case and create no injustice.” Therefore, the Court finds this issue is without merit.

II. DID THE TRIAL COURT ERR IN ALLOWING THE PROSECUTION TO USE THREE OF ITS PEREMPTORY CHALLENGES IN A RACIALLY DISCRIMINATORY MANNER?

¶ 15. “On review, the trial court’s determinations under Batson are afforded great deference because they are, in large part, based on credibility.” McGilberry v. State, 741 So.2d 894, 923 (¶ 118) (Miss.1999) (citing Coleman v. State, 697 So.2d 777, 785 (Miss.1997)). “This Court will not reverse any factual findings relating to a Batson challenge unless they are clearly erroneous.” Id.

¶ 16. The State exercised peremptory challenges against four black veniremen. Harris alleges that the State made its strikes on the basis of race. The State argued that the three jurors that were stricken were teachers, and further stressed that teachers as a whole are more sympathetic to a defendant’s cause and to wrongs committed by others. The State concluded by relating a situation where teachers were on a jury a few weeks earlier that sent a note inquiring whether the jury could recommend counseling for a young man who was on trial for shooting someone. The trial court examined the reasons given by the State and made on-the-record factual inquiry and determinations, and found the reasons for the strikes to be sufficient to meet the Batson challenges.

¶ 17. The Mississippi Supreme Court has also accepted demeanor as a legitimate, race-neutral basis for a peremptory challenge. Walker v. State, 671 So.2d 581, 628 (Miss.1995); see also Davis v. State, 660 So.2d 1228, 1242 (Miss.1995).

¶ 18. This Court finds it inappropriate to strike jurors just because they are a member of a particular class; however, it is noteworthy that the record reflects that the State had accepted five black jurors prior to striking four black jurors, three of whom were teachers.

¶ 19. We will not reverse a trial judge’s factual findings on this issue unless they appear clearly erroneous or against the overwhelming weight of the evidence. Walters v. State, 720 So.2d 856, 865(¶28) (Miss.1998). According to the record, the trial court’s findings on Harris’s challenges are not clearly erroneous nor against the weight of the evidence. This issue is without merit.

III. DID THE TRIAL COURT’S FAILURE TO GIVE A SUA SPONTE CAUTIONARY INSTRUCTION CONSTITUTE REVERSIBLE ERROR?

¶ 20. During cross examination, Linda Anderson, a defense witness, was questioned regarding statements she allegedly made to Joseph Smith. Anderson denied having talked to Joseph Smith, or having made any statement. Defense counsel objected to the line of questions unless it could be proven. The prosecution stated for the record that it would call Joseph Smith to substantiate that Anderson had made a statement. The defense neither made a motion to strike nor requested a cautionary instruction.

¶ 21. When Joseph Smith testified he stated that Anderson told him that “folks got me in here trying to say something that I didn’t say.” The defense then cross examined Smith regarding the statements allegedly made by Anderson and Smith was neither impeached nor shown to be lacking in credibility as to what Anderson allegedly said to him.

¶ 22. The prosecution told the jury, during closing argument, that it believed the statements Anderson allegedly made to Smith were, in the prosecution’s interpretation. of the testimony, an indication that Anderson was not telling the truth, and that the jury should consider this in their evaluation of the credibility of witnesses.

¶ 23. The Mississippi Supreme Court has noted that “the better practice is that a limiting instruction be granted by the trial judge sua sponte when proper request is not made by defense counsel.” Peterson v. State, 518 So.2d 632, 638 (Miss.1987). While giving a limiting instruction sua sponte may be the “better practice” when a request by defense counsel has not been made, failure to give a limiting instruction sua sponte is not always reversible error. Williams v. State, 819 So.2d 532, 540-41 (¶¶ 24-28) (Miss.Ct.App.2001).

¶ 24. Relying solely on Webster v. State, 754 So.2d 1232 (Miss.2000), Harris asserts that the court erred in failing to give a cautionary instruction. In Webster, the Mississippi Supreme Court held that whenever Rule 404(b) evidence of another crime is offered, a cautionary instruction must be given to the jury. Id. at 1240(¶ 19). However, we find that Webster also held “that harmless error analysis is applicable in cases where the trial court does not sua sponte give the required limiting instruction when Mississippi Rule of Evidence 404(b) evidence is admitted.” Id. at 1240 (¶ 22). “An error is harmless when it is apparent on the face of the record that a fair-minded jury could have arrived at no verdict other than that of guilty.” Floyd v. City of Crystal Springs, 749 So.2d 110, 120(¶ 37) (Miss.1999).

¶25. In contrast to the Webster case involving evidence of prior acts or crimes, the present case concerns testimony given. The State questioned Anderson concerning whether or not she was told to lie by defense counsel. The record reflects that defense counsel objected and said that “unless he can prove somebody—that I told somebody to lie.” There was no objection based upon the need for the court to conduct a Mississippi Rule of Evidence 403 balancing test. The trial court overruled the objection in allowing the question about possible lying. After the defense objected, the prosecution indicated that it would accept the challenge of the defense by presenting an additional witness on the issue. When Joe Smith testified, he confirmed that Anderson had told him that she felt the defense attorney, Mr. Walls, was pressuring her to testify about something that she had not said. Smith was cross examined by defense counsel and Smith was neither impeached nor contradicted.

¶ 26. When this issue was brought up in Harris’s motion for a mistrial or in the alternative, to set aside the verdict of the jury, the trial judge responded by stating, “I think the way it ended up and the explanation made by the prosecution removed any claim by them that you [defense counsel] actually did this and was solely for the impeachment of the witness.” In this case, we hold that harmless error analysis is applicable in cases where the trial court does not sua sponte give the required limiting instruction when Rule 404(b) evidence is admitted. Webster, 754 So.2d at 1240(¶ 22). In the present case, the evidence of Harris’s guilt was overwhelming, and therefore, we find that this issue is without merit.

¶ 27. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

KING, P.J.,

Dissenting.

¶28. With appropriate regard for the majority opinion herein, I dissent as to whether the trial court should have granted a limiting instruction sua sponte. I do not believe the majority’s summation of the facts regarding this issue provides a full and accurate view of the matter.

¶ 29. Perhaps that testimony which best explains the facts surrounding this issue begins with the cross-examination of Linda Anderson by Glenn Rossi, the assistant district attorney, goes through the redirect examination of Ms. Anderson by Mr. Walls, the defense attorney, and ends with what has to be considered an objection by Mr. Walls.

¶ 30. That testimony is as follows:

CROSS-EXAMINATION
BY MR. ROSSI:
Q. Ms. Anderson, did you have a conversation today with Joseph Smith?
A. No, I didn’t.
Q. Do you know who Joseph Smith is?
A. Yes, I do.
Q. Did you tell Joseph Smith that Mr. Walls, the attorney, was trying to get you to lie about what happened out there?
A. No, I didn’t.
Q. Did you have any conversation with Joseph Smith—
MR. WALLS: Your Honor, I’m going to object to that, unless he can prove somebody — that I told somebody to lie. I want him to prove that right now.
MR. ROSSI: Your Honor, I have to ask her first before I can put Joseph Smith on.
THE COURT: Ail right. He’s following procedure. Whether he can follow-up with it or not, I don’t know. The objection is overruled.
MR. ROSSI CONTINUED:
Q. Did you have any conversation with Joseph Smith about that?
A. Today, no. I just spoke to him.
Q. Did you have any conversation with him at all about that, whether today or any other time?
A. No, I did not.
Q. have you spoken to him today?
A. Yes, I did.
Q. When was that?
A. Earlier today when I first got here.
Q. About what time?
A. I don’t know the time.
Q. Well, where were you, and where was he when you spoke to him?
A. He was at the vending machine down there, right there in the hall.
Q. And you said you spoke to him. What did you say to him?
A. I said, “What’s up?” That’s how I speak.
Q. What did he say?
A. He spoke back. He said, “Hi.”
Q. And then what did you say?
A. I was joking with him about some money. I was just really joking. I didn’t say anything but speaking, like I always do when I see him.
Q. And you had no conversation with him about what Mr. Walls wanted you to testify to?
A. No, I did not.
MR. ROSSI: No further Question, Your Honor.
THE COURT: Any redirect?
MR. WALLS: I will never forget that, Your Honor.
REDIRECT EXAMINATION
BY MR. WALLS:
Q. Have I ever asked you to lie for anything in this case or any other place?
A. No, you have not.
Q. Have I asked you what did you know about this case, if anything?
A. yes, you did.
Q. And did you tell me what you knew?
A. Yes, I did.
Q. And is that all I asked you to testify to?
A. Yes, you did.
Q. And the questions that I asked you earlier, were those the questions that I asked you outside?
A. Yes.
Q. And isn’t that what I told you I was going to ask you about, what you just testified about?
A. Yes, sir.
Q. And did I ask you did you know anything else?
A. Yes, sir.
Q. And what did you tell me?
A. No, sir.
MR. WALLS: I have nothing further, Your Honor.
THE COURT: Okay. Any further need of this witness, Mr. Walls?
MR. WALLS: No, Your Honor. And I want to say on the record that I think it’s low of the D.A.—
THE COURT: No, no—
MR. WALLS: — to impugn my integrity in front of the jury.
THE COURT: Hold on. We’re not going to go into that.
MR. WALLS: Your Honor, if he was going to go into that, he should have done it outside the presence of the jury-
THE COURT: Mr. Walls, y’all can have another forum in which you can talk about that, but don’t do it in front of this jury.

¶ 31. The record clearly reveals something more than the benign testimony inferred by the majority opinion. Likewise it also indicates an action that without question extended beyond an attack on the credibility of a witness.

¶ 32. If the purpose of the examination was to call into question the credibility of Ms. Anderson, the prosecution could have done so by asking her if anyone had urged her to lie about what she knew, rather than asking, “Did you tell Joseph Smith that Mr. Walls, the attorney, was trying to get you to lie about what happened out there?”

¶ 33. The question as posed by the prosecution, could only have as its effect, intended or unintended, the public impugning of the integrity of the defendant’s attorney, and by so doing, undermining the defendant’s right to effective representation of counsel.

¶ 34. The majority opinion attempts to circumnavigate this issue by calling it harmless error. I do not believe the error harmless under the circumstances of this case.

¶ 35. This case comes down to a question of credibility. That matter was clear in the minds of the prosecution team. In its closing argument the prosecution made numerous references to the credibility of its witnesses and the lack of credibility of the defense witnesses. Sandwiched between those references were also references to “what Mr. Walls would have you believe.” Also by the prosecutor, “Mr. Walls and his client would have you believe ladies and gentlemen, that that couldn’t happen....”

¶ 36. These actions continued to call into question the credibility of defense counsel, Mr. Walls, and beyond question undermined the right to the effective assistance of counsel.

¶ 37. Under these circumstances, that is not harmless error.

IRVING, J„ JOINS THIS OPINION.

SOUTHWICK, P.J.,

Dissenting.

¶ 38. With respect for both the majority and the other dissenting opinion, I find the issue that divides the Court should be decided within a different analytical framework.

¶ 39. The other dissenting opinion would reverse because the prosecutor cross-examined a defense witness about whether she had been encouraged to perjure herself by defense counsel. The defendant made an appellate issue of whether a limiting instruction from the judge was required because of this suggestion. The other dissent does not agree with that characterization of the error. Instead, it finds that error arises from impugning the integrity of defense counsel. That undermined the right to effective counsel by casting counsel in an impermissibly negative light in front of the jury. The issue could only be pursued by the artificial mechanism of asking whether an unnamed person had encouraged falsehoods.

¶ 40. The majority accepts the defendant’s appellate approach that the issue is whether a limiting instruction was required to be offered sua sponte. It then finds that the absence of an instruction was at worst harmless error because it also finds that the evidence of guilt was overwhelming. I note that no one has identified just what such a limiting instruction would have said — perhaps, “even if you find that defense counsel (or some unnamed person) may have sought to have one witness perjure herself, that does not mean others committed perjury.” Surely such an admonition or any other one serves no purpose., Once the issue is properly injected, I find no justified line to draw for the jurors in how far they should take the inferences that flow from that evidence.

¶ 41. With respect for the authors of each opinion, I take a different tack. If a proper predicate is laid, a witness is subject to being questioned concerning whether she has some form of bias that may be affecting her testimony. Under my reading of those rules, this evidence fits within the category of relevant bias evidence used to impeach a witness. Where I find error is with the failure to apply safeguards before introducing evidence of this volatility. I would reverse and remand.

¶ 42. Anderson was one of the last witnesses called by the defense. She testified quite briefly — -her direct testimony occupies only two pages of the transcript. It did not seemingly address any central issue of the case. As best as I can discern, the defense was using her testimony to describe some ambiguous actions by another possible perpetrator of the crime. It is in the context of this minor witness that the issue before us needs to be addressed.

¶ 43. I start with the manner in which this charge of pressure on a witness was injected into the case. The State attempted to get the defense witness Anderson to admit that counsel had encouraged her to lie. She denied that. She was then asked whether she had told Joseph Smith earlier that day about such encouragement. Anderson denied that too. The State later called Smith and asked him what Anderson had said. He answered that Anderson had claimed that the defense counsel was attempting to get her to “say something that I didn’t say.” There is some ambiguity in that phrase. Still, I find that it created a reasonable fact question about the following point: did Anderson claim to Smith that she had been pressured in some manner by the defense counsel to change her version of what she had witnessed? Anderson did not admit to testifying falsely, but at least what she said raised suspicions about, i.e., it “impeached,” the accuracy of her testimony.

¶ 44. Asking a witness whether she has in some manner been encouraged to give false testimony raises an inflammatory matter. For the State to raise that defense counsel himself may have sought to suborn perjury, unless there was a legitimate basis on which to make that allegation, suggests prosecutorial misconduct. Because the. matter is so volatile, the issue should be introduced outside the hearing of the jurors and the predicate laid. As just explained, the predicate did exist. I will review the remaining considerations on admissibility.

Design of Rules of Evidence as to impeachment

¶ 45. Impeachment of a witness on any basis that would draw testimony into legitimate question is permitted. M.R.E. 607. Five bases for attacking witness credibility are generally identified: (1) prior inconsistent statement, (2) witness character, (3) bias, (4) contradictions of the testimony through other evidence, and (5) ability -of witness to perceive, recall or narrate. 27 WRIght & Gold, Fed. Prao. & PeoC. § 6094, at 516. The federal courts have never had specific rules permitting impeaching on the last three categories, but the United States Supreme Court held that all traditional methods of challenging credibility were still available. Id. In 1989 the Mississippi rules gained an explicit section permitting impeaching a witness based on bias. M.R.E. 616 cmt.

¶ 46. Even before state Rule 616 was adopted, then, impeaching for bias was permitted. That is because Rule 607 allowed the impeaching of witnesses generally, without stating any limitation. M.R.E. 607. Unless something else in the rules specifically excluded bias-based impeachment, it was proper under the general authorization for relevant evidence. M.R.E. 402; see 27 WRIGHT & Gold, Fed. PRAC. & Proo. § 6092, at 487 (explains this reasoning for admitting bias evidence).

¶ 47. What needs to be kept in mind are that the specific categories of impeachment covered by the evidentiary rules have varying approaches to admissibility— prior inconsistent statement (M.R.E. 613), witness character (M.R.E.608), bias (M.R.E.616), and the character — related issues of a prior conviction (M.R.E.609) and religious beliefs (M.R.E.610). Impeachment based on character, or more precisely, on reputation testimony, is limited and extrinsic evidence is usually prohibited. M.R.E. 608(a) & (b). However, as one authority on the similar Federal Rules of Evidence has written, “bias is never classified as a collateral matter lying beyond the scope of inquiry, or as a matter on which an examiner is required to take a witness’s answer.” 2 WeiNstein’s Fed. Evid. § 607.04[1] (2000). Extrinsic evidence of bias is broadly permitted, as I will show.

Evidence Rule 616

¶ 48. The question of the bias of a witness may legitimately be pursued.

For the purpose of attacking the credibility of a witness, evidence of bias, prejudice or interest of the witness for or against any party to the case is admissible.

M.R.E. 616. This is not evidence of character, or of prior bad acts. This is allowing evidence that a particular witness for reasons of “bias, prejudice or interest,” may not be telling the truth.

¶ 49. What constitutes “bias” or “prejudice” is the next important issue. Threats, bribes, or other inducements to tell a certain story may properly be characterized as bias. Someone may be continually biased because of past attitudes or connections with a party or an issue. A witness instead may be situationally biased, in that the person is inclined to one side because of specific inducements. Professor Wig-more defined “bias” for purposes of impeaching witnesses as including “all varieties of hostility or prejudice against the opponent personally or of favor to the proponent personally,” “specific inclination ... produced by the relation between the witness and the cause at issue in the litigation,” and “corruption [which] is here to be understood as the conscious false intent which is inferrable from giving or taking a bribe or from expressions of a general unscrupulousness for the case in hand.” 3A Wigmore, Evidenoe § 945 (Chadbourn ed.1970), quoted in 27 Wright & Gold, Fed. Prac. & Proo. § 6095 at 517 (1990). A fourth classification has been noted, which is “coercion, intended to include any form of mental, emotional or physical duress or compulsion that overcomes a witness’ duty to tell the truth.” 27 Wright & Gold, Fed. Prao. & Proo. § 6095, at 517 n. 7. In a list of specific sources of bias, included are bribes and fear. Id. at 519-20.

¶ 50. As has been said, evidence of bias is always relevant since it undermines all the assumptions about witness testimony. Id. at 516 & 526. Regardless of category, bias may be explored through cross-examination and with extrinsic evidence. Another rule becomes involved if the bias arises from evidence of any form of bribery. That is reviewed next.

Evidence Rule W8

¶ 51. A more specific rule has been used when the issue is one of obstructing a criminal prosecution. Evidence Rule 408 generally bars proof of pretrial offers to compromise civil claims. There is a caveat in the rule that makes clear that evidence of financial pressure on criminal witnesses is admissible: “The rule also does not require exclusion when the evidence is offered for another purpose, such .as proving bias or prejudice of a witness, ... or proving an effort to obstruct a criminal investigation or prosecution.” M.R.E. 408. Under the nearly identical Federal Rule of Evidence 408, it has been concluded that evidence of “efforts to ‘buy off the prosecution or a prosecuting witness” is admissible. 2 WeiNStein’s Fed. Evid. § 408.08[6].

¶ 52. Therefore, depending on what the examination of the witnesses uncovered, evidence of efforts to suborn perjury by bribes or other pressures would have been relevant and admissible under one of these evidentiary rules. As shown in the majority opinion’s excerpts from the testimony, there never was any indication of how the counsel allegedly had tried to get the witness to tell her story in a certain way. Rules 607 and 616 are sufficient, with Rule 408 specifically relevant to bribery.

¶ 53. This analysis is to be distinguished from the general rules for presenting evidence of the character and conduct of a witness. See M.R.E. 404, 405 & 608. There, issues of what can be proved solely through questions to the witness and what can be shown through extrinsic evidence take center stage. There is a quite different right that allows introduction of extrinsic evidence when bias is the concern. Under Rule 616, evidence of the bias of a witness is admissible.

Rule 613

¶ 54. Once the witness Anderson denied having been encouraged by the defense counsel to lie, she was asked whether she had told Joseph Smith the contrary. She denied having said anything to Smith about counsel’s encouraging her to lie. When Smith himself was then called, he quoted what she had allegedly told him. That was a prior inconsistent statement of the first witness, which she was initially given an opportunity to admit, deny, or explain. However, I do not find that the specific evidentiary rule on prior inconsistent statements to be applicable. M.R.E. 613.

¶ 55. Rule 613 applies to prior statements being used to challenge the credibility of a witness on an issue relevant to the underlying case. The typical example is that a witness testified as to one version of relevant events, and a prior statement told a different story. If on the other hand the prior statement of that witness is being used to establish bias, another rule applies. The existence of bias is a question about state of mind. “Statements of a witness asserting that she is biased for or against a party are admissible over a hearsay objection on the grounds that they are offered to prove the witness’ state of mind.” 27 WRIGHT & Gold, Fed. PraC. & ProC. § 6095, at 517 n. 9. A hearsay rule allows admission of a declarant’s then-existing state of mind. M.R.E. 803(3).

¶ 56. Therefore, this prior statement was not just admitted for impeachment purposes. When Rule 613 is used generally to attack witness credibility with a prior inconsistent statement, the evidence is solely impeachment and cannot prove the matter asserted. But when the category is not witness credibility generally but bias, the prior statement can be used as substantive evidence of that bias. Rule 613 is not the door through which the evidence has been admitted; Rule 803(3) is. See 27 Whight & Gold, Fed. Prac. & ProC. § 6095, at 533 (distinguishes between admission of prior inconsistent statement to attack “credibility,” and introduction to show bias).

Rule JpOS

¶ 57. It was incumbent on the State to present a legitimate basis on which to make this volatile claim. I find that such evidence was provided in the form of the Joseph Smith’s testimony. He testified that the witness Anderson told him that defense counsel had “got me in here trying to say something that I didn’t say.” Though this unfortunately impugned the integrity of defense counsel, it was not inadmissible for that reason. This was relevant and admissible evidence.

¶ 58. What I find to be the extent of possible error here is that the line of valid inquiry was nonetheless so inflammatory that a legitimate issue of undue prejudice existed. Yes, a witness being encouraged to “say [at trial] something that I didn’t say” before trial is relevant evidence. It is also extraordinarily inflammatory when it is defense counsel himself who is implicated. The evidence is still relevant. Here, the witness whose out-of-court statement is at issue was an extremely minor one. However, the jury’s acceptance of the evidence of suborning perjury would likely cause them to doubt other defense witnesses as well.

¶ 59. I agree with the other dissent to this extent: to inject into a criminal trial the possibility that defense counsel himself is suborning perjury is potentially so fundamentally destructive that such evidence cannot be treated as just another item of impeachment. Indeed, if any counsel did what the prosecutor alleged, that is a basis for a mistrial, criminal charges, and a variety of other results. Those ramifications do not mean that the issue cannot be pursued. Indeed, it should be vigorously investigated.

¶ 60. The problem in this case was the method by which the inquiry was undertaken. In fairly blithe fashion, the prosecutor asked whether defense counsel had asked a witness to lie. The trial judge also appeared somewhat nonchalant concerning the seriousness of the charge.

¶ 61. Whenever an issue of a counsel’s attempt to suborn perjury exists, I conclude that the party with that concern should raise it out of the presence of the jury. A hearing should be held, with whatever witnesses desired by either side or the court being called to explore the charge. If the trial court concludes that there is a basis on which to believe an attempt to cause perjury was made by one of the counsel on the case, then unless lesser remedies appear adequate, consideration should be given to declaring a mistrial and of referring the matter for criminal and professional sanction.

¶ 62. If instead the trial court finds no reasonable basis on which to believe any such attempt was made, then findings to that effect should be entered. What further steps to take depends on whether the party with the concern still wishes to pursue it as impeachment of a witness. If the party agrees to drop the impeachment evidence, then nothing further is needed. However, the counsel who raised the issue may not wish to abandon the point. A criminal defendant has a constitutional right to impeach government witnesses. Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). This would include the right to seek to convince a jury that the prosecution improperly sought to coerce witnesses, even if a trial judge did not accept that a substantial basis to believe the claim existed. The State would not have a corresponding constitutional right. It would have the rights granted under the Rules of Evidence, however, which are to have admitted relevant evidence that does not run afoul of the restrictions set out in the rules. Among those restrictions is that the probative value of relevant evidence be not greatly outweighed by the prejudicial impact of it.

¶ 63. I find no basis after such a hearing on which to deny the defense the right to pursue the impeachment if it desires to do so, even if the trial judge found insufficient grounds to believe that opposing counsel had sought to suborn perjury. A full evidentiary presentation to the jury on the matter by the State would also be allowed to counter the impeachment.

¶ 64. If the State wishes to override a trial judge’s conclusion after such a hearing and still use the impeachment evidence that perjury was suborned by defense counsel, then the admission should be controlled by comparing the probative value to the prejudicial effect.

¶ 65. It is true that trial counsel did not raise the issue of the Rule 403 balancing. The objection by defense counsel was simply that there was no basis on which to be asking these questions. The State then showed a valid basis. Counsel did not object that whatever probative value of bias that might be shown was too greatly outweighed by the prejudicial impact. See M.R.E. 403. I find no general obligation for a trial, judge unbidden to state orally his balancing of prejudice to probative value, though “a trial court is required to consider whether the probative, value of the questionable evidence is outweighed by undue prejudice.” McCullough v. State, 750 So.2d 1212, 1216(¶15) (Miss.1999). That just makes it necessary that the judge think about this. Indeed, since Rule 403 applies to all evidence, were an on-the-record balancing always needed, then every ruling on any objection that raises an issue of admissibility would have to include a statement ¿bout the balancing. I find no such mandate in the easelaw.

¶ 66. I would place the matter before us today in the category of requiring not just an on-the-record balancing, but an actual separate hearing. The implications of the charge made by the State were serious enough that the failure to treat this outside the jury’s presence, with adequate fact-finding, was fundamental error that removes the need for a contemporaneous objection.

¶ 67. In the balancing that would occur when the State wishes to impeach despite a trial judge’s conclusions after a hearing, it would be relevant to determine whether the witness was a minor one. In addition, the strength of the foundation for the evidence would be relevant. Here, the witness Smith did not state that the earlier witness Anderson had told him that she had actually said something untruthful, but only implied that defense counsel had tried to get her to do so. A jury would be entitled to infer for purpose of determining bias that the attempt was successful since the witness was used, but that is not a necessary inference. The court might find the probative value too attenuated and the prejudice too great to permit introduction.

¶ 68. What sense to make of relevant, admissible evidence is ultimately for jurors, not for judges. There is an initial function for trial judges, though, which is to filter unfairly prejudicial evidence through proper procedural protections. I would reverse and remand for the failure to do so.

¶ 69. The majority finds the evidence overwhelming. I find the evidence contested. I do not believe that we can ignore that an insinuation of this magnitude oozed into the case even if there was substantial evidence on which a jury could rely to convict. There were also denials of Harris’s complicity on which the jury could have relied to acquit. This was an immeasurable distortion of the fact-finding process. To find it to be harmless error is to declare that the harm in this case can be confidently quantified. I do not feel so audacious.

McMILLIN, C.J., JOINS THIS SEPARATE WRITTEN OPINION.

      . The assumptions as to all testimony are “(1) that the witness perceived the fact, (2) that he accurately recalls his perception, (3) that he truthfully states his recollection, and (4) that he expresses his testimony in a way that permits it to be understood by the jury in the general manner intended by the witness.” 27 Wright & Gold, Fed. Prac & Proc. § 6092, at 487.

      . There is some suggestion, but only occasional, that before admitting evidence of other bad acts under Rule 404, an on-the-record balancing must occur. Anthony v. State, 843 So.2d 51, 55 (Miss.Ct.App.2002). The nature of Rule 404 evidence makes it more of a candidate for sua sponte fact-finding on the balance than does most other evidence.


source: Caselaw Access Project

author: BRIDGES, J,

license: Public Domain

text:
    James Joseph BRODERICK, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00558-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2003.
    Rehearing Denied Dec. 16, 2003.
    Certiorari Denied July 22, 2004.

      James A. Williams, Brookhaven, attorney for Appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for Appellee.
    BEFORE KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J,

for the Court.

¶ 1. James Broderick was tried and convicted of two counts of lustful touching of a child and two counts of sexual battery before Lauderdale County Circuit Judge Larry Eugene Roberts. He was given four fifteen-year sentences along with two $1000 fines. From this conviction and sentence, Broderick appeals to this Court.

ISSUES

I. WHETHER THE TRIAL COURT ERRED IN DENYING BRODER-ICK’S MOTION FOR SEVERANCE

II. WHETHER THE JURY WAS PROPERLY INSTRUCTED

III. WHETHER THE JURY WAS ADEQUATELY INSTRUCTED ON SEXUAL BATTERY IN COUNT IV OF THE INDICTMENT

IV. WHETHER BRODERICK HAD INEFFECTIVE ASSISTANCE OF COUNSEL

FACTS

¶ 2. On March 22, 2001, James Broder-ick was indicted by the grand jury of Lauderdale County on five counts of prohibited sexual contact with two minor female relatives. He was charged with three counts of sexual battery of D.B., who, at the time, was seven years old. Count II charged lustful touching of D.B. in August 2000 and Count III charged lustful touching in September 1999. Counts IV and V charged sexual battery of D.S. who was fifteen at the time of the indictment. One incident occurred in February 2000, the other was in March 1998. Count I was eventually dismissed.

¶ 3. The State presented evidence that he would touch, grope, feel, fondle and expose himself to .the girls repeatedly. Broderick did not present a defense. The jury found him guilty of Counts II-V.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING BRODER-ICK’S MOTION FOR SEVERANCE

¶ 4. Broderick first claims that the charges against him should have been severed. He claims that since there were many charges made against him, the jury was confused and misled by the jury instructions. Broderick filed a motion to sever on the morning of the first day of trial which the judge denied after a hearing.

¶ 5. When a multi-count indictment has been handed down and the defendant has requested severance of the indictment, the trial court should conduct a hearing on the issue. Eakes v. State, 665 So.2d 852, 861 (Miss.1995). The State has the burden of proving that a multi-count indictment falls under the language of the statute allowing a single trial for multiple indictments. Miss.Code Ann. § 99-7-2 (Rev.2000). The statute states as follows:

1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.

¶ 6. The trial court should take into consideration the time period between the offenses, whether the evidence that is used to prove each offense would be admissible to prove the other counts, and whether the offenses were interwoven. Eakes, 665 So.2d at 861. If the trial court has a hearing to determine if the counts should be severed, deference is given to the trial court’s findings. Ott v. State, 722 So.2d 576, 579(¶ 15) (Miss.1998). The trial court’s decision will be upheld unless there has been an abuse of discretion. Id.

¶ 7. In this case, the trial court held a hearing and found that the indictment should not be severed into separate trials. The trial court found that there was sufficient reason to believe that the counts arose from a common scheme or plan. Since this case involved two victims who both accused Broderick of the same type of misconduct, the court determined it was the same kind of scheme to sexually molest both girls. The court decided that this case fell under the statute allowing a single trial for multiple indictments because the counts were connected together from a common scheme of sexual misconduct.

¶ 8. The trial court also made it clear that the jury would be given instructions to find and return each verdict separately. Since the trial court properly held a hearing concerning the issue of severance and also made it known that the jury would be required to evaluate each count of the indictment individually, the trial court did not abuse its discretion when it denied the motion for severance. However, it should be noted that this Court finds that Broder-ick waited too long in bringing his motion for severance. His motion should have been made earlier, for example, at his arraignment. However, this finding does not change the outcome of this issue; we find that there was no error on the part of the trial court.

II. WHETHER THE JURY WAS PROPERLY INSTRUCTED

III. WHETHER THE JURY WAS ADEQUATELY INSTRUCTED ON SEXUAL BATTERY IN COUNT IV OF THE INDICTMENT

¶ 9. In Issue II, Broderick claims that the jury was not properly instructed. He complains that the judge used the term “victim” when referring to the two girls. He claims that there was error in instructions C-7, C-8, C-9, C-14, and C-15. There were no objections made to instructions C-7, C-8, and C-9; therefore, any objection to these instructions was waived and is now procedurally barred. When there is no contemporaneous objection to the instructions in the record, the issue of the instructions is waived. Goldman v. State, 741 So.2d 949, 955(¶24) (Miss.Ct. App.2000).

¶ 10. Instruction C-14 was an instruction submitted by Broderick (then identified as D-2). Broderick made no objection to this instruction at trial. The trial court will not be reversed for an error caused by the defendant’s ‘ own instruction. Carr v. State, 655 So.2d 824, 847 (Miss.1995); Reed v. State, 237 Miss. 23, 30, 112 So.2d 533, 535 (1959). Since he did not object to this instruction at trial, the issue is waived and procedurally barred from review.

¶ 11. Instruction C-15 was also an instruction submitted by Broderick (then identified as D-3). This instruction contained two paragraphs and at trial the State objected to the second paragraph. Broderick never objected to this instruction; he only stated that he thought that the second paragraph, that the State objected to, was a correct statement of the law. The court did not include this second paragraph and only gave the jury the first paragraph of the instruction. Broderick does not appeal the decision of the trial court to exclude the second paragraph but rather appeals for the first time a sentence contained in the first paragraph. Since Broderick did not object to this instruction at trial, the issue also is waived and procedurally barred from review.

¶ 12. • In Issue III, Broderick specifically challenges instruction C-10. Broderick made no objection to this instruction at trial; therefore, it is waived and is procedurally barred from review. When there is no contemporaneous objection to the instructions in the record, the issue of the instructions is waived. Goldman 741 So.2d at 949. For these reasons, the decision of the trial court should not be reversed and remanded.

IV. WHETHER BRODERICK HAD INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 13. Broderick claims that based on the totality of the circumstances he was denied effective assistance of counsel. He generally claims that there were failures with instructions, closing arguments, objections, and cross examination. He claims that there was no reasonable trial strategy. Broderick must meet the two part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and followed by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476 (Miss. 1984). Under Strickland and Stringer, Broderick must show that counsel’s performance was so deficient that it constituted prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. He must also show that but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court. Id at 694, 104 S.Ct. 2052. The Strickland test is applied with deference to the performance of the attorney, considering the totality of the circumstances to determine if the performance of the attorney was both deficient and prejudicial. Conner v. State, 684 So.2d 608, 610 (Miss. 1996). The test is to be applied to the overall performance of the attorney. Strickland, 466 U.S. at 695, 104 S.Ct. 2052.

¶ 14. Broderick cannot establish that based on the totality of the circumstances, as set forth in Conner, that he was not effectively represented. When all of the circumstances of his trial are considered, it is clearly established that Broderick did receive effective assistance and cannot show that he would have been found not guilty but for the performance of his attorney as is required by Strickland. Broder-ick’s counsel filed motions before the trial began. He effectively cross-examined the State’s witnesses. He made many objections throughout the trial and gave a coherent opening statement along with a comprehensive closing argument. He also filed post-trial motions, one of which resulted in the dismissal of the first count of Broderick’s indictment. For these reasons, Broderick received effective assistance of counsel and the decision of the trial court should be affirmed.

¶ 15. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS II AND III, LUSTFUL TOUCHING OF CHILD AND SENTENCE OF FIFTEEN YEARS AND A FINE OF $1,000 ON EACH COUNT; COUNTS IV AND V, SEXUAL BATTERY, AND SENTENCE OF FIFTEEN YEARS ON EACH COUNT WITH COUNTS II AND IV TO RUN CONCURRENTLY TO EACH OTHER AND COUNTS III AND V TO RUN CONCURRENTLY TO EACH OTHER WITH THE SENTENCES IN COUNTS II AND IV TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS III AND V IS AFFIRMED. THE COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

McMILLIN, C.J., KING and SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER and GRIFFIS, JJ., CONCUR.


author: MYERS, J., GRIFFIS, J.,

text:
    Milton D. CONCANNON, M.D., Appellant, v. Donis REYNOLDS, Appellee.
    No. 2002-CA-00810-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2003.
    Rehearing Denied Dec. 9, 2003.
    Certiorari Denied July 22, 2004.

      T. Patrick Welch, Mccomb, attorney for appellant.
    Mack T. Brabham, Mccomb, attorney for appellee.
    Before KING, P.J., BRIDGES, IRVING, and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. In January of 1998, Dr. Milton D. Concannon treated Sandra Rachel for chest pains. Rachel was not happy with Concannon’s communication style, and her sister, Donis Reynolds, wrote a letter to Concannon and to Southwest Mississippi Regional Medical Center in which she complained of Concannon’s “bedside manner.”

¶2. Concannon went to an attorney. The attorney wrote a letter to Reynolds, informing her that Concannon intended to sue her for defamation if she did not write letters of apology to everyone who received Reynolds’ original letter. Reynolds wrote the apology, but Concannon did not think it was a sincere apology, so he proceeded with his suit. Reynolds counterclaimed for breach of contract.

¶ 3. Four years later, in February 2002, a jury heard the case. The trial judge issued a directed verdict against Concan-non on his defamation claim, and the jury returned a verdict for Reynolds for breach of contract. The jury awarded her $2,500 actual damages, and $2,500 punitive damages. Before trial, both parties had stipulated the issue of attorney fees was reserved depending on the jury verdict, with the court to set the amount, if any, of the fees.

¶ 4. On March 5, 2002, Reynolds submitted a motion to the court for attorney fees along with an affidavit of her attorney with an attached itemized time sheet. The trial court held a hearing on the motion on March 25. At the end of the hearing, the court took the matter under advisement.

¶ 5. On April 22, the trial court issued its ruling, awarding attorney fees in the amount of $20,758.75. Concannon appeals to this Court, asking us to decide:

WHETHER THE AMOUNT OF THE ATTORNEY’S FEES AWARDED IS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

Legal Analysis

¶ 6. Concannon makes a very convincing argument, however, it is moot. After the judge made his ruling on the attorney’s fees, the correct step would have been to give the trial court a chance to correct its alleged mistake. This could have been done by moving for an amended finding under Rule 52 of the Mississippi Rules of Civil Procedure, or for a new trial under Rule 59, or relief from the judgment under Rule 60. Instead, the issue was appealed directly to us.

¶ 7. The dissent is correct that Rule 52(b) provides for actions tried by the court without a jury to be directly appealed when the sufficiency of the evidence is in question. However, this action was tried by a jury. The issue of the amount of attorney’s fees was left to the judge to decide (through stipulation of the parties).

¶ 8. As such, we are procedurally barred from considering the issue. Chamblee v. Chamblee, 637 So.2d 850, 866 (Miss.1994); Sumrall Church of Lord Jesus Christ v. Johnson, 757 So.2d 311, 316(¶ 12) (Miss.Ct. App.2000). We therefore affirm the trial court’s order.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF PUCE COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, P.J., BRIDGES, THOMAS, LEE, IRVING, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J., AND SOUTHWICK, P.J.

GRIFFIS, J.,

DISSENTING:

¶ 10.- Because I believe the majority erroneously finds that our consideration of this appeal is procedurally barred, I respectfully dissent.

¶ 11. The majority concludes that the appellant was required to file a post-trial motion, pursuant to Rule 52, 59 or 60 of the Mississippi Rules of Civil Procedure, to perfect an appeal. In certain instances, this is certainly a correct statement of the law. However, here, the issue we address in this appeal is a matter decided by the judge without a jury. Therefore, I do not believe this to be a proper application of this legal principle.

¶ 12. My consideration is limited to Rule 52(b) of the Mississippi Rules of Civil Procedure, which in pertinent part provides:

When findings of fact are made in actions tried by the court without a jury, the questions of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.

¶ 13. In the instant appeal, the underlying claims were tried to a jury. However, the issue in this appeal is the sufficiency of the evidence presented to support the award of attorney’s fees. The award of $20,785.75 in attorney’s fees was decided by the trial judge, not the jury. Therefore, I am of the opinion that the majority’s conclusion is contrary the language of Mississippi Rules of Civil Procedure 52 quoted above.

¶ 14. To support its decision that the appeal is procedurally barred, the majority relies upon two cases that are not applicable. First, in Chamblee v. Chamblee, 637 So.2d 850, 866 (Miss.1994), the Mississippi Supreme Court did not consider the sufficiency of the evidence but instead considered whether it was plain error for the court to consider Ms. Chamblee’s request for attorney’s fees when her counsel rested her case before presenting evidence of her attorney’s fees incurred. The court determined that her counsel did not raise an objection at trial to the chancellor’s refusal to allow her to reopen her case to present evidence of attorney’s fees and did not cite the issue in the designation of the record or statement of the issues. Id. Therefore, the court determined that it could not then consider the issue on appeal. Id.

¶ 15. Next, in Sumrall Church of the Lord Jesus Christ v. Johnson, 757 So.2d 311, 312(¶ 1) (Miss.Ct.App.2000), Johnson, an electrical subcontractor, sued the owner of a building under construction, Sumrall Church, for breach of an electrical construction contract. Sumrall Church counterclaimed alleging that Johnson failed to properly perform the contract. Id. A jury returned Johnson a verdict that included compensatory damages and attorney’s fees. Id. at 312-13 (¶¶ 1-2). Sumrall Church’s primary contention was that the trial court failed to properly instruct the jury and that the award of attorney’s fees was punitive and against the overwhelming weight of the evidence. Id. This Court held:

[TJhere was no basis for the award of attorney’s fees. Upon careful review of the record, we find that Sumrall did not raise the issue of attorney’s fees in the trial court in either its motion for JNOV or its motion for new trial. Thus, it is procedurally precluded from raising the issue here for the first time. Leverett v. State, 197 So.2d 889, 890 (Miss.1967). The purpose for requiring specific objections is to avoid costly new trials and to allow the offering party an opportunity to obviate the objection. Id. The trial court cannot be put in error unless it has had an opportunity to pass on the question. Id. However, notwithstanding the procedural bar, we feel compelled, in light of the pleadings and evidence adduced at trial, to notice the award of attorney’s fees as plain error. Accordingly, we reverse and render that portion of the judgment awarding attorney’s fees in the amount of $1,856.50. Thus, Sumrall’s last issue concerning the alleged error of the trial court in not granting him a new trial to correct the award of attorney’s fees need not be addressed in light of our treatment of this issue here.

Id. at 316(¶ 13)

¶ 16. In my opinion, neither of these cases offers controlling authority for this appeal. In Chamblee, the issue before the court did not relate to the sufficiency of the evidence but rather whether evidence was presented to assert a claim for attorney’s fees, there being absolutely no evidence” to support such a claim. Chamblee, 637 So.2d at 866. In Sumrall Church, since the jury returned a verdict that included an award of attorney’s fees, Rule 52 did not apply. Sumrall Church, 757 So.2d at 315.

¶ 17. I read the majority’s opinion to modify the language of Mississippi Rules of Civil Procedure 52 and to alter the requirements necessary to properly present an appeal. The majority would now require that all errors, including errors that relate to the sufficiency of the evidence, be resubmitted to chancellors and circuit or county judges, sitting without a jury, for an appeal to be procedurally ripe. I believe that to require such effort would simply be an unnecessary and burdensome post-trial motion. The practical theory behind the rule to allow a court an opportunity to correct an error is sound and is an integral part of our appellate jurisprudence. However, it is not consistent with this theory to require a judge sitting without a jury to consider the sufficiency of the evidence after the judge has made the final ruling. Therefore, I disagree with the majority and dissent.

¶ 18. After reviewing the record, I am convinced that the appellant presented an adequate basis to challenge the sufficiency of evidence supporting the award of attorney’s fees. While the outcome of my opinion may have been different if all issues and the entire judgment had been appealed, as an appellate court, our authority is limited to review only the issues specifically identified. M.R.A.P. 28(a)(3). Dr. Con-cannon accepted the jury’s verdict as to the award of compensatory and punitive damages. It is well settled that where punitive damaged are proper, attorney’s fees can be awarded. Aetna Casualty & Surety Co. v. Steele, 373 So.2d 797, 801 (Miss.1979). We must, therefore, accept that since punitive damages were awarded then a claim for attorney’s fees was likewise properly considered.

¶ 19. To support the award of attorney’s fees, the appellee presented an affidavit from her attorney with an attached itemized time sheet. The appellee’s counsel testified that he did not have an hourly fee contract with his client but instead had a contingency fee agreement, which was not introduced in evidence. Counsel testified that he did not keep up with his time in a contemporaneous manner and he did not differentiate between his time for the defense or prosecution of the various claims presented. When asked about the attorney’s fees he claimed were incurred in the defense of the appellee he testified “that’s hard to say ... I didn’t attempt to break it out like that.” Indeed, his own testimony challenged the accuracy of the request when he testified “I did not keep an accurate track of my time. That’s unquestioned; I admit that.”

¶ 20. In McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), the supreme court established certain factors to be considered in making an award of attorney’s fees:

In determining an appropriate amount of attorneys fees, a sum sufficient to secure one competent attorney is the criterion by which we are directed. The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

¶ 21. Awards of attorney fees must be both fair and reasonable. Monroe v. Monroe, 745 So.2d 249, 253(¶ 18) (Miss.1999). They should compensate only for the actual services and time involved, which may not otherwise be recouped or used. Id.

¶ 22. I find that the factors established in McKee were not satisfied and the award of attorney’s fees was not adequately supported. I would reverse and render the award of attorney’s fees.

McMILLIN, C.J. AND SOUTHWICK, P.J., JOIN THIS SEPARATE OPINION.

      . Specifically, that Concannon's demand for an apology was an offer and Reynolds’ letter of apology was an acceptance. Concannon’s suing despite the apology was a “bad faith” breach of that contract.


author: LEE, J.,

text:
    Larry D. HARDIN a/k/a “Peter Rabbit”, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CA-00654-COA.
    Court of Appeals of Mississippi.
    Oct. 21, 2003.
    Rehearing Denied Jan. 13, 2004.
    Certiorari Denied July 6, 2004.

      Jamie McBride, Jackson, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., LEE, IRVING and GRIFFIS, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. In August 1997, Larry Hardin pled guilty to sale of cocaine and was sentenced to serve ten years’ imprisonment with seven years suspended. In September 1999, he was released from prison to serve the suspended portion of his sentence. In June 2000, after Hardin had been arrested and charged with involvement in a May 2000 drug sale, the Adams County Circuit Court revoked Hardin’s suspension and ordered him to prison to serve the remainder of his sentence. The latter drug charges were ultimately dismissed in February 2001, and Hardin filed a motion for post-conviction relief in January 2002, which was denied in March 2002. He now appeals to this Court arguing that the circuit court erred in failing to set aside its order revoking his post-release supervision. We review his argument but find no merit; thus, we affirm.

DISCUSSION

I. DID THE CIRCUIT COURT ERR IN FAILING TO SET ASIDE ITS ORDER TO REVOKE THE APPELLANT’S POST-RELEASE SUPERVISION?

¶ 2. In his sole issue, Hardin argues the trial judge erroneously revoked his probation when the charge that was the basis for such revocation was dismissed. “When reviewing a lower court’s decision to deny a petition for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Golmon v. State, 844 So.2d 1178(¶ 2) (Miss.Ct.App.2003).

¶ 3. In reviewing the transcript from the post-conviction relief hearing, we find that the judge did not err. Hardin cites the rule that a conviction is not necessary to revoke probation, but probation may be revoked upon a showing that the defendant “more likely than not” violated the terms of probation. McClinton v. State, 799 So.2d 123(¶ 9) (Miss.Ct.App.2001). Hardin claims that evidence was not produced to show he more likely than not violated his probation. We disagree.

¶ 4. At the revocation hearing, Officer Charles Sims, who was Hardin’s post-release supervisor, testified that the terms of Hardin’s probation required, in part, that he not commit any crime, of which sale of cocaine would qualify. Narcotics Officer David Lindsey testified that he participated in an undercover sting operation in which he monitored a drug buy from Hardin to an undercover informant. Officer Lindsey testified that after the buy, Hardin fled from the officers first by car then on foot, dropping the money and more cocaine along the way. The following day, Hardin turned himself in to the police and confessed to the sale. The judge reasoned that the evidence clearly showed Hardin was in violation of his probation and, therefore, the judge revoked Hardin’s probation.

¶ 5. Later, Hardin filed a petition for post-conviction relief alleging that since he had not been found guilty of sale of cocaine, the basis for revocation of his probation failed to exist; thus, he should be released from prison. At the hearing on Hardin’s petition for post-conviction release, the prosecutor explained that since Hardin’s probation had been revoked and, at that time, since he was in prison serving the remainder of his term for the previous charge, the State found no sense in pursuing the charges of sale of cocaine against Hardin. The judge concluded that Hardin’s probation was not revoked for guilt of another crime, but was revoked because extensive evidence was produced to show that Hardin violated the terms of his probation in participating in the sale. As recited earlier, probation may be revoked upon a showing that the defendant “more likely than not” violated the terms of probation. Id. The trial judge based his decision for revocation on this premise, and the judge reviewing Hardin’s petition for post-conviction relief found no error. We, likewise, find no error in the denial of post-conviction relief and affirm.

¶ 6. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: SOUTHWICK, P.J.,

text:
    Matthew M. WALKER, Appellant, v. DELTA STEEL BUILDINGS AND BUILDERS and Contractors Association of Mississippi, Appellees.
    No. 2002-WC-00505-COA.
    Court of Appeals of Mississippi.
    Oct. 21, 2003.
    Rehearing Denied Jan. 20, 2004.
    Certiorari Denied July 29, 2004.

      Charlie Baglan, Lawrence J. Hakim, Batesville, attorneys for appellant.
    John H. Freeland, Ridgeland, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. This is a workers’ compensation scheduled member case. The Commission awarded benefits based strictly on the medical impairment, since the claimant is now earning a higher wage than he did at the time of injury. The claimant argues that his present income is largely based on his employer’s sympathy for his plight and is not an accurate measure of his disability. We find the Commission to have substantial evidence to support its conclusion. Therefore, we affirm.

¶ 2. In September 1996, Matthew Walker was installing metal sheet roofing as an iron worker for Delta Steel Buildings, Inc. He slipped and fell approximately fifteen feet onto the pavement. The contact shattered Walker’s left elbow. He also complained of pain in his left hip. Walker was provided medical treatment and temporary benefits. Walker reached maximum medical improvement in June 1997. After a hearing on Walker’s petition to controvert, an administrative law judge awarded Walker benefits based on permanent disability of 75% for his left arm. The Commission lowered the award to 35%. In the first level appeal, the circuit court in Le-flore County affirmed. Walker’s subsequent appeal has been deflected here.

DISCUSSION

¶ 3. The proceedings below raise questions of medical and occupational loss to Walker’s arm. At the outset we note two important principles governing our review. First, the Commission and not the administrative judge is the controlling finder of fact. Hardin’s Bakeries v. Dependent of Harrell, 566 So.2d 1261, 1264 (Miss.1990). We defer to the Commission’s findings even when it disagreed with the administrative law judge. We will not disturb the findings if they are supported by substantial evidence. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991). On questions of law, our review is de novo. Id. Secondly, we recognize that the workers’ compensation statutes are to be given “broad and liberal construction,” and doubtful cases should be resolved in favor of compensation. Meridian Prof'l Baseball Club v. Jensen, 828 So.2d 740, 744 (Miss.2002).

1. Functional impairment

¶ 4. In cases in which a claimant has suffered a scheduled member injury, the claimant is entitled to benefits based on the greater of the functional or the industrial loss, if there is variance between the two. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1247-48 (Miss.1991). Functional or medical impairment refers to actual physical limitations irrespective of their impact on one’s ability to earn a living. McGowan v. Orleans Furniture, Inc., 586 So.2d 163, 166 (Miss.1991). By contrast, industrial or occupational disability is functional impairment “as it affects the claimant’s ability to perform the duties of employment.” Id. Dr. Bruce Newell, Walker’s treating physician, stated that after treatment and therapy, Walker had reached maximum medical improvement on June 24, 1997. He rated the permanent medical impairment at 35% of the left arm. Delta Steel had Walker examined by a second orthopaedic surgeon, Dr. Owen Tabor, who assessed Walker as 10% functionally impaired in his left arm. The administrative law judge noted the functional impairment ratings of both doctors, but ultimately held that Walker’s occupational impairment exceeded even the higher 35% rating posited by Newell. The Commission later reduced the subsequent award to benefits based on this 35% functional impairment rating.

2. Occupational loss of use

¶ 5. The administrative law judge concluded that Walker’s experience as a heavy manual laborer, coupled with Dr. Tabor’s concerns over Walker’s inability to carry heavy objects or continue working in precarious positions on the roof, were evidence of physical limitation “more credible than the results of the functional capacities evaluation, which are suspect because Mr. Walker did not give consistent responses on the test.” She therefore awarded benefits on the finding of 75% industrial loss of use of Walker’s left arm. On review, the Commission framed the question as “whether the evidence indicates sufficient loss of wage earning capacity to support a finding of industrial disability beyond the medical impairment assigned [Walker’s] arm.” Alumax Extrusions, Inc. v. Wright, 737 So.2d 416, 421 (Miss.Ct.App. 1998). The Commission noted Walker’s medical evaluations by Tabor and Newell, as well as post-injury wages earned by Walker as a carpenter. In diminishing the award to correspond to Dr. Newell’s 35% functional impairment rating, the Commission held:

All things considered, we are convinced that Mr. Walker has demonstrated a post-injury earning capacity of at least $11.00 to $11.50 per hour. This exceeds the average wage he earned before his injury. Under the circumstances, therefore, his compensation for permanent disability becomes a function of the medical/functional loss of the use of his arm.

S. Consideration of wage-earning capacity

¶ 6. The crux of Walker’s argument is that the Commission, in finding that Walker’s occupational disability did not surpass his functional impairment, incorrectly applied certain presumptions regarding wage-earning capacity.

¶ 7. A claimant may always receive benefits for a scheduled member injury based on the percentage of loss of functional, i.e., medical, loss. If there is medical evidence that the claimant has a 35% permanent loss of use of an arm, the claimant may receive benefits computed on that basis even if those physical limitations do not affect the person’s wage-earning capacity at all. Jensen, 828 So.2d at 745. That has been settled law.

¶ 8. The more difficult question in Jensen was the proof that was necessary when a claimant sought benefits for an industrial loss of use that was greater than what the medical evidence indicated were the physical limitations. The Court clarified the principles governing claims based on this kind of variance. The Court agreed with prior caselaw that a claimant was entitled to benefits based on a total loss of use of a scheduled member if it was shown that the person was no longer able to perform the customary acts of that person’s usual employment. Id. at 746. The key conclusion in Jensen was that the “job at the time of injury” is not “necessarily the ‘usual employment.’ ” Id. at 747-48. Instead, the usual employment is “broader in scope than the job held at the time of injury,” and includes “jobs in which the claimant has past experience, jobs requiring similar skills,” or other jobs for which the worker is suited. Id. at 747.

¶ 9. The Jensen court then announced a rebuttable presumption that would apply in such a case. Evidentiary presumptions are short-cuts in proof. If certain predicate facts are shown to exist, then the ultimate fact will be presumed, subject to rebuttal from the opposing party. The presumption here would be that in a scheduled member case, if the claimant presents evidence that he or she is “unable to continue in the position held at the time of injury,” that “inability creates a rebutta-ble presumption of total occupational loss of the member, subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury.” Id.

¶ 10. Since the earlier quoted explanation of “usual employment” indicates that this is a broader term than just the position at the time of injury means, this presumption becomes available even though the claimant has not addressed the ability to engage in the broadly defined usual employment. All that must be shown is an inability “to continue in the position held at the time of injury.” The employer may then rebut by exploring the broad category of usual employment, and the claimant may address those issues as well. Id. at 747-48.

¶ 11. We acknowledge that another sentence that appears in this discussion in Jensen could be read to suggest a higher threshold of proof needed for the presumption:

The presumption arises when the claimant establishes that he has made a reasonable effort but has been unable to find work in his usual employment, or makes other proof of his inability to perform the substantial acts of his usual employment.

Id. This seems to indicate that the presumption does not arise until the claimant presents proof on the entirety of “usual employment,” not just on the claimant’s inability to return to the “job at the time of injury.” As the Jensen court had already concluded that the two quoted terms were not synonymous, this sentence does create some ambiguity.

¶ 12. One interpretation is if the claimant also showed reasonable but unsuccessful efforts to find work in his usual employment, this would be another though more arduous means to create the presumption. We do not find that this quoted sentence removes the Court’s preceding statement that inability to return to the job held at the time of injury creates a rebuttable presumption of total occupational loss of the member. We make that conclusion for three reasons.

(1) A rebuttable presumption is supposed to assist the presentation of evidence by avoiding the need for direct proof of certain facts in order to establish a prima facie case. If the presumption does not arise until evidence on the entire range of issues is presented, then no presumption is in operation.
(2) A later sentence in Jensen says that applying “this opinion’s analysis to Jensen’s claim indicates that he established, or very nearly established, that he could no longer perform the substantial acts of his actual employment at the time of his injury.” Id. at 749 (emphasis added). Then the Court states that the remaining evidence revealed little impact from the injury on Jensen’s ability to earn the wages that he was making when injured. This reference to “actual employment” is a refocus on the employment at the time of injury, not on the broader “usual employment” category that is clearly defined in Jensen.
(3) There already is a related presumption in workers’ compensation law. When a worker with a permanent impairment is not allowed to return to work by his former employer after the claimant reaches maximum medical improvement, that creates a prima facie case of total disability. John R. Bradley and Linda Thompson, Workers’ Compensation Law, in 9 Ency. Miss. Law § 76:63 (2001), citing Jordan v. Hercules, 600 So.2d 179 (Miss.1992). Apparently this has only or at least usually been applied in nonscheduled member cases. The Jensen presumption as we have interpreted it is analogous: when the injury is to a scheduled member, the refusal of the former employer to rehire due to the injury creates the prima facie case of a total inability to use that scheduled member.

¶ 13. Under such a reading, Walker presented evidence to invoke the presumption. Delta Steel would not take him back in his former position because of physical limitations. The employer then presented evidence on Walker’s present work and equivalent income. The undisputed evidence demonstrates that while he could not return to his pre-injury position as a heavy roof installer, his subsequent $11 to $11.50 post-injury hourly wage is actually higher than his wage at Delta Steel prior to his injury. The carpentry position held post-injury satisfies the Jensen requirements for “usual employment,” that is, “jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria.” Id.

¶ 14. Even if this rebuttal removes the Jensen presumption, Walker argues that he is making this substantial of an income only because of the benevolence of his new employer. Before discussing the evidence of a sympathy wage, we look at the principle on which Walker relies:

post-injury earnings equal to or in excess of pre-injury earnings are strong evidence of non-impairment of earning capacity, but that the presumption arising therefrom may be rebutted by evidence on the part of the claimant that the post-injury earnings are unreliable due to: increase in general wage levels since the time of accident, claimant’s own greater maturity and training, longer hours worked by claimant after the accident, payment of wages disproportionate to capacity out of sympathy to claimant, and the temporary and unpredictable character of post-injury earnings.

McKinnon, 507 So.2d at 365 (some emphasis in original deleted).

¶ 15. Walker testified that but for his friend at Patton and Taylor Construction, he would not have received his present position. The record indicates also that Walker had been previously employed at Patton and Taylor. There is nothing to indicate whether Walker’s wages at Patton and Taylor are disproportionate to either the work that he performed or the customary wage for the position. The Commission found that though there was evidence that Walker experienced some pain from his elbow in the job, “he is nonetheless able to satisfactorily and consistently perform this work. This is consistent with the findings of a functional capacity examination which demonstrated that Mr. Walker is capable of performing heavy to very heavy work.” This rebuts the evidence that sympathy to some degree affected the wage that Walker was being paid.

¶ 16. The record contains substantial evidence rebutting a presumption of total occupational loss. There was also substantial evidence to deny Walker’s claim of sympathy wages. We find no error.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

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


author: MCMILLIN, C. J.,

text:
    Edwin Eugene PIPKINS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01622-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.
    Rehearing Denied April 13, 2004.
    Certiorari Denied July 29, 2004.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before MCMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   MCMILLIN, C. J.,

for the Court.

¶ 1. Edwin Eugene Pipkins was convicted in the Circuit Court of George County of two counts of drug-related criminal activity. The charges were for (a) possession of a controlled substance and (b) possession of precursor chemicals with the intent to manufacture a controlled substance. He has appealed his convictions to this Court and presents three issues for consideration. We have, for purposes of this opinion, rearranged the order in which the issues will be considered. First, he contends that the State’s evidence of guilt was insufficient as a matter of law to support the jury’s verdicts of guilty. Second, he contends that the trial court erred by permitting the State, in cross-examination, to raise matters concerning other bad acts for the sole purpose of prejudicing Pipkins in the eyes of the jury. Finally, Pipkins suggests that, even if the verdicts of guilty are upheld, he is entitled to a lesser sentence because, when the severity of his sentence is compared to that of his co-indictee who pled guilty, it is evident that he was punished strictly for exercising his constitutional right to trial by jury. We find nothing in the matters raised in this appeal to convince us that there is a basis in law to reverse Pipkins’s conviction or set aside his sentence. For that reason, we affirm the verdicts of the jury and the ensuing judgment of sentence entered by the trial court.

I.

Facts

¶ 2. Law enforcement officers answering a domestic disturbance call at a mobile home leased by Pipkins and his girlfriend, Debra Tyler, arrived at the location and found no one there. However, the officers observed in plain view a bag containing a substance that was believed by the officers to be a chemical used in the manufacture of illegal methamphetamine. Other officers working in narcotics law enforcement were summoned to the scene. Shortly thereafter, Tyler returned to the mobile home and consented to a search of the premises. A quantity of chemicals and other paraphernalia commonly associated with illegal methamphetamine manufacturing operations were discovered and seized along with a quantity of methamphetamine. The investigation revealed that the trailer had been leased jointly to Pip-kins and Tyler and that the deposit for electric utilities furnished to the location was made in Pipkins’s name.

¶ 3. Evidence placing Pipkins at the trailer in close proximity to the time officers arrived was disputed. One reasonable interpretation of the evidence presented was that the domestic disturbance reported to law enforcement had occurred shortly before officers arrived and that Pipkins had remained on the property after Tyler had left. The defense presented evidence tending to show that the reported disturbance had occurred several days earlier and that the officers had simply been substantially late in efforts to investigate the nature of the disturbance.

II.

The Sufficiency of the Evidence

¶ 4. Pipkins alleges that the trial court erred in denying his JNOV motion on the ground that the evidence was insufficient, as a matter of law, to support a guilty verdict. The State’s case against Pipkins depended upon the theory that Pipkins was in constructive possession of the various items discovered on the premises based on his occupancy of the property as his primary residence. His defense consisted essentially of the contention that he had vacated the premises three or four days before the various items were discovered so that he was no longer in control of the premises, thereby defeating any contention that he was in constructive possession of items on the property. Additionally, he argued that, since he and Tyler were joint occupants of the property, his possession was not exclusive and, therefore, he could not be conclusively shown to be in constructive possession of the various materials charged in the indictment.

¶ 5. An issue of this nature requires this Court to review all of the admissible evidence presented at trial, viewing it in the light most favorable to upholding the jury verdict. Gleeton v. State, 716 So.2d 1083(¶ 14) (Miss.1998) (overruled on other grounds by Miss. Transp. Comm’n v. McLemore, 863 So.2d 31 (Miss.2003)). We must assume that the jury drew all reasonable inferences in favor of guilt that were legally and logically warranted. If we are satisfied that, viewing the evidence in that light, there was proof of the essential elements of the crime, we are charged by law to permit the verdict to stand.

¶ 6. There was no evidence showing that Pipkins was in actual possession of the drug-related materials. Rather, they were discovered on the premises of a residential property shown by the proof to have been occupied by Pipkins as his principal domicile, along with his female companion, Tyler. “A presumption of constructive possession arises against the owner of premises upon which contraband is found.” Cunningham v. State, 583 So.2d 960, 962 (Miss.1991). It was certainly within Pipkins’s power to present evidence that would tend to overcome the presumption, but our review of the record reveals only his contention that he had been gone from the property for several days prior to the discovery of the contraband. There was disputed evidence on this point with some of the evidence tending to indicate that the domestic disturbance that initially led to the appearance of law enforcement officers had, in fact, occurred just a short time prior to their arrival, rather than the several days alleged by the defense. In all events, the State’s proof showed that the property had been rented in Pipkins’s name and that the account for utilities was in his name. The jury, and not the trial court or an appellate court, is charged with resolving disputed factual issues. Jackson v. State, 845 So.2d 727(¶ 12) (Miss.Ct.App.2003). The jury heard all the evidence and was plainly satisfied that the circumstances of the case pointed toward the conclusion that Pipkins was the person primarily in control of the premises and, thus, in possession of any property discovered on that property, absent some plausible explanation tending to show otherwise. We do not find the defendant’s contention that he had voluntarily abandoned the property as his principal residence a few days before the discovery of the contraband to be so compelling as to require a determination that the State’s constructive possession case failed as a matter of law. Even if the jury accepted the time line offered by the defendant, there was no factual basis to support a theory that the contraband material had been hastily assembled on the spur of the moment after Pipkins’s unanticipated and sudden departure from the residence. We decline to disturb the jury’s verdict after conducting our own review of the evidence.

III.

Evidence of Other Bad Acts

¶ 7. During the State’s cross examination of Pipkins, the prosecuting attorney engaged in a fairly lengthy inquiry into whether Pipkins had telephoned his co-defendant, Tyler, the night before she was scheduled to testify and attempted to intimidate or otherwise improperly influence her testimony. Pipkins admitted to having talked to Tyler on the telephone but denied any attempt to have her alter her testimony. This line of interrogation was permitted by the trial court over defense counsel’s timely objection. The State thereafter made no effort to show the nature of the telephone conversation by other evidence.

¶ 8. On appeal, Pipkins suggests that this was a violation of the prohibition against evidence of other crimes or bad acts found in Mississippi Rule of Evidence 404(b). We disagree that this suggestion of error properly frames the issue since there was no evidence of prior bad acts or crimes presented. The State certainly suggested certain improper conduct on the part of Pipkins through its questioning, but Pipkins denied any such behavior at every opportunity. A question posed by an attorney participating in the trial is not evidence, even though it may give rise to an inference that such evidence exists.

¶ 9. The actual issue does not involve the admissibility of evidence of this nature. The State was surprised by the nature of Tyler’s testimony, which represented a significant departure from her earlier statements given to law enforcement. Under that circumstance, the State was entitled to explore the believability of her in-court testimony by presenting evidence by which the jury could better assess her credibility. One way to do so was to present evidence relating to any bias, prejudice, or interest of Tyler. M.R.E. 618. Evidence that the defendant had, through threats of suicide by Pipkins and related attempts by him to manipulate Tyler’s testimony, would plainly have demonstrated potential bias on her part.

¶ 10. The problem presented is, thus, not the nature of the examination, but whether the State had a legitimate basis to suggest that such attempts to influence Tyler’s testimony actually occurred since Pipkins’s own responses-beyond his admission to the phone conversation itself-offered no supporting evidence and the State did not follow up by calling other witnesses to show the basis for the inquiries. We deal, therefore, not with an evidentiary question but a question of possible prose-cutorial misconduct for asking inflammatory questions without a good-faith basis in fact for doing so.

¶ 11. We decline to reverse Pipkins’s conviction on the ground of prosecutorial misconduct. We do not think that the questioning, followed by Pipkins’s firm denials of any improper activity, was so highly inflammatory and prejudicial to the defense as to affect the fundamental fairness of the trial. While we are satisfied that it would have been preferable for the trial court to have obtained some assurance that there was a credible foundation for the State’s inquiry, we do not find a reasonable basis to conclude that the State simply manufactured the allegations out of thin air for the sinister purpose of prejudicing the defendant in the jurors’ eyes with false accusations.

rv.

Disparate Sentences

¶ 12. Tyler, Pipkins’s female companion and co-indictee, pled guilty and was ultimately sentenced to one year under house arrest. Pipkins, after his conviction, was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections. On appeal, he contends that the disparity in the sentences demonstrates that he was being punished, not for his guilt of the charged crimes, but for refusing to plead guilty and, instead, exercising his constitutional right to a trial by jury. The Mississippi Supreme Court has said that such disparity in sentencing raises an issue of impropriety that must be resolved by on-the-record findings by the trial court explaining the reasoning behind the sentences. E.g., McGilvery v. State, 497 So.2d 67 (Miss.1986).

¶ 13. In this case, there was originally no such explanation appearing on the record. This Court remanded for further findings of fact by the trial court on the issue. Those findings have now been filed with the Court and the parties have been offered the opportunity to file supplemental briefs on the issues of law and fact raised by the trial court’s findings.

¶ 14. The trial court, having heard all of the evidence, was of the opinion that Pip-kins was the driving force behind the drug-related activities and that Tyler participated, at least in part, just to support her own need for narcotics. The court further noted the marked disparity in ages of the two defendants, Pipkins being forty-five and Tyler being thirty-five, as tending to indicate that Pipkins was principally responsible for the operation. The court observed that Tyler had cooperated with law enforcement officials on the day of her arrest and had since voluntarily completed a drug rehabilitation program. The court found Tyler’s efforts to end the dominance of drug-related activities in her life to be sincere and genuine.

¶ 15. We find ample support in the record for the trial court’s findings relied upon to explain the marked disparity in the two sentences. We are not persuaded, in the face of the logical and well-thought-out reasoning of the court, that the court was unduly harsh in sentencing Pipkins based on his refusal to enter a plea of guilty. We, therefore, decline to disturb the sentence imposed on Pipkins after his conviction at the hands of the jury.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF TEN YEARS, AND POSSESSION OF A PRECURSOR DRUG OR CHEMICAL AND SENTENCE OF TWENTY-FIVE YEARS, SAID SENTENCES TO RUN CONCURRENTLY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND ORDER TO PAY $10,000 FINE ON EACH COUNT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GEORGE COUNTY.

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