source: Caselaw Access Project

author: CARLSON, Justice, GRAVES, Justice,

license: Public Domain

text:
    Franklin Rashad BODDIE v. STATE of Mississippi.
    No. 2001-CT-00304-SCT.
    Supreme Court of Mississippi.
    June 10, 2004.

      J. Ronald Parrish, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, Jr., attorney for appel-lee.
   ON WRIT OF CERTIORARI

CARLSON, Justice,

for the Court.

¶ 1. On August 16, 1999,. Franklin Rash-ad Boddie pled guilty to the crime of transfer of cocaine. On March 22, 2000, Boddie filed in the Pike County Circuit Court a petition for post-conviction relief (PCR) seeking vacation of the judgment of conviction and sentence imposed pursuant to his guilty plea. After a hearing was conducted on December 4, 2000, the circuit court, the Hon. Keith Starrett, presiding, denied Boddie’s PCR motion. . Feeling aggrieved, Boddie appealed that ruling arguing that his plea to that charge was void due to language used by the trial court which Boddie argued, in essence, dismissed the charge of transfer of cocaine. He also argued that there was no factual basis for the plea. A unanimous Court of Appeals affirmed, Boddie v. State, 850 So.2d 1205 (Miss.Ct.App.2002), and we granted certiorari. We affirm because (1) the trial court did not dismiss the charge of transfer of cocaine, but merely made a ruling on the evidence, and (2) the record as a whole established an adequate factual basis for the plea.

FACTS AND PROCEEDINGS IN THE CIRCUIT COURT

¶ 2. Boddie was indicted for the crimes of transfer of cocaine and aggravated assault. Boddie filed a motion to quash the indictment, alleging that the grand jury did not have sufficient evidence to indict him. After an evidentiary hearing, the trial court entered an order stating that it was “necessary and proper that this [cjourt make an adjudication on evidentia-ry matters in order to resolve pending disputes herein.” (emphasis added). Therefore, the trial court specifically stated that the order which was being entered was a ruling on the admissibility of the evidence.

¶ 3. The State informed the court that in order to prove that Boddie transferred cocaine, the prosecution intended to introduce the alleged expert testimony of the drug addict to whom the cocaine was delivered. The trial court held that the “opinion of a drug user that the substance is cocaine is hot sufficient.” The trial court further stated that “[t]o allow prosecution for the transfer of cocaine indictment when the court has made this ruling, would be improper. The parties have stipulated as to what the proof would be and therefore, this court feels comfortable in granting what is in effect a directed verdict.” The trial court also ruled that the statement made by the defendant that he did in fact transfer the cocaine could be used against him to prove motive under the aggravated assault indictment. This order did not quash the indictment.

¶ 4. After the entry of the trial court’s order, plea negotiations continued between the State and the defendant. On August 16, 1999, Boddie entered a plea of guilty to the transfer charge, in return for the State’s agreeing to recommend a sentence of twenty years with ten years suspended and served on post-release supervision and a fine of $2,000. The State also agreed not to prosecute the aggravated assault and armed robbery charge. At the sentencing hearing, the trial court made sure everyone was in agreement that the previous order entered was a ruling on evidentiary matters and the indictment had not been dismissed. All parties, including the defendant, stated that they agreed that the indictment was outstanding as to the transfer of cocaine charge. The trial court made sure Boddie was aware of his right to a trial by jury and the right to appeal any conviction pursuant to a jury verdict. The trial court also ascertained that Boddie was aware that a plea of guilty waived those rights. Boddie informed the trial court that he was pleading guilty to the charge of transfer of cocaine because he was in fact guilty of the offense. He also stated that he was “satisfied the State [could] prove beyond a reasonable doubt that [he was] guilty of the offense charged, unlawful transfer of cocaine.” Boddie’s mother was also present at this sentencing hearing. She stated that after having been present during the discussions between Boddie and his attorney, she was satisfied that Boddie was aware of consequences of his guilty plea. After finding that Boddie was competent and that he voluntarily, knowingly and intelligently waived his rights and entered a plea of guilty, the trial court accepted Bod-die’s guilty plea.

¶ 5. On April 8, 1999, Boddie, through new counsel, filed this petition for post-conviction relief. In his petition, Boddie argued that he should not have been allowed to plead guilty to the charge of transfer of cocaine because the trial court’s ruling effectively dismissed the charge against him. On December 4, 2001, after hearing arguments from both parties, the trial court again stated that the indictment against Boddie was not quashed. The trial judge held that he:

basically was giving an opinion that with that evidence I didn’t think the State would prevail, because if they didn’t have the substance then the case law was against it, and even armed with that ruling the defendant chose to plead guilty to the offense of transfer of cocaine. So, it would just be [an] injustice to allow that to happen. It would defy reason and logic, and the defendant was very well aware of the circumstances, as was his attorney and his Mother who signed off on the Know Your Rights Form.

The trial court thus denied Boddie’s PCR motion.

DISCUSSION

¶6. Our standard of review of the trial court’s denial of a PCR motion is clear. We will not reverse the factual findings of the trial court unless they are clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). Questions of law are reviewed de novo. Id.

¶ 7. In State v. Peoples, 481 So.2d 1069 (Miss.1986), the defendant moved to quash the kidnapping indictment, alleging insufficient evidence. After hearing arguments from all parties, the trial court quashed the kidnapping indictment. Id. at 1070. This Court held that the ruling by the trial court was erroneous and the matter should have proceeded to trial. Id. This Court stated that “[n]either a motion to quash nor any other pretrial pleading can be employed to test the sufficiency of evidence.” Id. (citing State v. Grady, 281 So.2d 678, 680 (Miss.1973); State v. Peek, 95 Miss. 240, 243, 48 So. 819 (1909)). See also Callahan v. State, 419 So.2d 165, 168 (Miss.1982); State v. Bates, 187 Miss. 172, 179, 192 So. 832, 834-35 (1940). This Court determined that “if the procedure employed by the trial court in this case were permitted, it would have a monumental effect on our criminal justice system.” As this Court observed in Grady,

The proper time to test the sufficiency of the evidence to support any indictment is when the case is tried on its merits. Then if the evidence on behalf of the state is insufficient to support the charge made in the indictment, on proper motion, the trial court should so hold and direct the jury to find the accused not guilty, otherwise, the case should be submitted to the jury to determine the guilt or innocence of the accused. •

281 So.2d at 681-82. Therefore, it would have been improper for the trial court to quash the indictment for transfer of cocaine based on insufficiency of the evidence. The trial court made an evidentia-ry ruling that the person to whom the drugs were sold could not testify as an expert witness. The trial judge also stated, in his opinion, that if that was the only evidence the State had to present, he did not feel its case would be successful at trial. However, this opinion did not amount to a directed verdict, nor did it amount to a quashed indictment.

¶ 8. As to Boddie’s argument that there was no factual basis for his guilty plea, this Court is not limited to the transcript of Boddie’s guilty plea -hearing, but we are allowed to review the record as a whole. Gaskin v. State, 618 So.2d 103, 106 (Miss.1993). See Corley v. State, 585 So.2d 765, 767-68 (Miss.1991). While the transcript of the guilty plea hearing contains no specific reference to a factual basis for the charge of transfer of cocaine, Boddie made a statement, which the trial court ruled to be admissible, in which he admitted to the crime alleged in the indictment. Boddie also acknowledged at his guilty plea hearing that he was satisfied that the State could prove, beyond a reasonable doubt, that he was guilty of the crime of transfer of cocaine. Thus, based on the totality of the evidence, there existed a factual basis for Boddie’s plea of guilty to transfer of cocaine.

CONCLUSION

¶ 9. An evidentiary hearing was held before the trial judge where he ruled that the opinion of a drug user was not sufficient to prove transfer of a controlled substance. Although he incorrectly made a statement about a directed verdict, the trial judge later corrected his misstatement before Boddie pled guilty to the charge, informing all parties that the indictment had not been quashed, merely a ruling on the evidence had been made. Knowing this fact and with the consent of his attorney, Boddie consciously and knowingly entered a plea of guilty to the charge of transfer of cocaine. Had he not pled guilty, this case would have proceeded to trial because the indictment was never quashed. Finally, based on the totality of the record, there existed a factual basis for the guilty plea.

¶ 10. For the foregoing reasons, we affirm the judgments of the Court of Appeals and the Pike County Circuit Court.

¶11. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

GRAVES, Justice,

dissenting.

¶ 12. Franklin Rashad Boddie was indicted for sale of cocaine and aggravated assault for giving two rocks of crack cocaine to a drug addict and/or her friend and then retaliating when payment was not forthcoming. An order of nolle prose-qui was entered, and he was later reindict-ed for transfer of cocaine and aggravated assault. The record is not clear as to how the State learned of the transfer, but it indicates that the State never had possession of the crack cocaine and it was never chemically analyzed because it was smoked by the drug addict. The defense moved to quash the indictment with regard to the count of transfer of cocaine, and the parties stipulated as to what the proof would be on that charge. Apparently, the State planned to call the drug addict, who smoked the substance in question, as a M.R.E. 702 expert to testify that the substance was indeed crack cocaine. The trial judge denied the motion to quash, but found that there was insufficient evidence for the State to prove the transfer charge and granted “what is in effect a directed verdict.” Thereafter, Boddie entered a guilty plea to the transfer of cocaine charge and the State nolle pressed the aggravated assault charge. The majority of this Court fails to recognize or adequately address the determinative issue raised by Boddie — whether there was a factual basis for his plea. Instead, the majority discusses at great length the moot issue of whether the trial court dismissed the charge of transfer of cocaine. In doing so, the majority ignores precedent and misapprehends the contents of the record on appeal in this matter. Because I would find that there was no factual basis for Boddie’s guilty plea, I must respectfully dissent.

¶ 13. Specifically, Boddie asserts that there was no factual basis for his guilty plea and that the Court of Appeals’ decision overrules Gaskin v. State, 618 So.2d 103 (Miss.1993); Lott v. State, 597 So.2d 627 (Miss.1992); Harris v. State, 723 So.2d 546 (Miss.1997); State v. Thornhill, 251 Miss. 718, 171 So.2d 308 (1965); Austin v. State, 734 So.2d 234 (Miss.Ct.App.1999), and their progeny. Boddie’s argument is based on Mississippi Uniform Circuit and County Court Rule 8.04(A)(3), which states:

Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.

¶ 14. The Court of Appeals found that the trial court made only an evidentiary ruling, despite the “unfortunate” language in the order, because it was not possible to grant a directed verdict on a motion, to quash the indictment. Boddie v. State, 850 So.2d 1205, 1208 (¶ 11) (Miss.Ct.App.2002). The Court of Appeals further relied on cases presented in the State’s brief setting-out that the proper time to test the sufficiency of the evidence is when the case is tried on its merits. See State v. Peoples, 481 So.2d 1069, 1070 (Miss.1986); State v. Grady, 281 So.2d 678, 681 (Miss.1973).

When the trial judge made the eviden-tiary ruling, not one scintilla of trial evidence had been introduced. While the effect of the trial judge’s ruling was to forewarn the State of a serious evi-dentiary impediment in the trial of its case based on the stipulated facts, the ruling could not prohibit the State from prosecuting Boddie on the indictment.

Boddie, 850 So.2d at 1208(¶ 12). The Court of Appeals acknowledged that the plea transcript reveals no factual basis, but found that the omission is not fatal because of a statement made by Boddie to police and the statement of the drug addicts) involved. The majority of this Court also relies on this statement as proof that a factual basis did exist. However, I disagree. At the time the trial judge made the ruling on the motion to quash, both the statement to police and that of the drug addict(s) had been introduced and were mentioned in the order. The parties stipulated as to what the proof would show, although such is not included’ in the record. The trial judge found that there was not sufficient evidence to prosecute the transfer charge based on the proof, or lack thereof, that the majority now says establishes a factual basis.

¶ 15. The majority states that the trial court was merely making an evidentiary ruling and downplays that the trial court also said “[t]o allow prosecution for the transfer of cocaine indictment when the Court has made this ruling, would be improper. The parties have stipulated as to what the proof would be and therefore, this Court feels comfortable in granting what is in effect a directed verdict.” I agree that the trial court was making an evidentiary ruling. However, the evidence in a case generally consists of the facts. A finding that the evidence, including Bod-die’s statement, was insufficient to allow prosecution requires a thorough analysis of whether that same insufficient evidence can provide a factual basis for a guilty plea.

¶ 16. The Court of Appeals’ decision sets out that “the transcript of the sentencing hearing removes any doubt as to the nature of the trial judge’s ruling.” Boddie, 850 So.2d at 1208 (¶ 11). However, the sentencing hearing consisted of a brief statement by two of Boddie’s relatives, the judge pointing out that Boddie had no prior felonies, and a discussion of the terms of the plea bargain. None of that sheds any light on the judge’s ruling. Likely, the reference should have been to the hearing on the entry of the guilty plea, which also does not remove any doubt. The judge did say “[tjhere was a ruling made regarding evidence on this case. Does everyone agree that it was only an evidentiary ruling' and that the Indictment is still standing?” However, there is nothing that establishes the nature of the judge’s ruling on the previous motion. Other than the actual order itself, the transcript from the hearing on the petition for post-conviction relief offers more insight. At that hearing, the trial court stated:

There was a motion filed to quash the indictment by the defense attorney, Mr. Charles Miller.... Now, maybe I was— I misstated what I intended to say, but this was — motions to quash are not allowed. The Court has no authority to quash an indictment unless there is some technical reason that requires it to be quashed. The indictment is brought by the grand jury and should have been presented for trial. I was obviously concerned — the Court heard the testimony and determined that there is no way that the State can sustain a conviction unless it has some of the evidence, and I think it was stipulated that the State did not. I stated that the testimony is not sufficient to allow the prosecution — to allow prosecution for the transfer of cocaine when the Court has made this ruliny would be improper, or it is stipulated as to what the proof would be, and, therefore, the Court feels comfortable in yranting what is in effect a directed verdict. Well, at that time, and had jeopardy attached, had the trial actually come about and the case been presented in the proper form before the jury this would have been a directed verdict, and it would have been res judicata to anything that had gone on before. But, this- — this order was entered and there was apparently some plea bargaining. ... The defendant got the benefit of his bargain.... To allow the defendant to come back and say that the, this opinion quashed the indictment when the defendant, his mother and his attorney all agreed that it apparently had not because it was a pending indictment. They agreed to it and entered a plea of guilty to it. That would be a significant mistake and it would just be wrong, there wouldn’t be any justice in allowing that to happen.

(emphasis added).

¶ 17. The issue presented here is not whether the indictment was quashed, but rather whether there was a factual basis for Boddie’s plea. As the trial judge pointed out, he could not procedurally quash the indictment, which also included a second charge of aggravated assault. The trial court found, as set out previously, that there was no basis to allow prosecution of the transfer of cocaine charge. The transcript of the post-conviction relief hearing indicates the relief was denied because of the benefits of the plea bargain, not because there was a factual basis for the plea.

¶ 18. The Court of Appeals also does not go so far as to find that a factual basis did exist, but instead merely states “[bjased on these facts, we cannot say that a sufficient factual basis did not exist to support the trial judge’s acceptance of Boddie’s guilty plea. Accordingly, we reject Boddie’s argument in this regard.” Boddie, 850 So.2d at 1210(¶ 19).

¶ 19. A factual basis for a plea may be established by the admission of the defendant. Templeton v. State, 725 So.2d 764, 766 (Miss.1998). However, the admission must contain factual statements constituting a crime or be accompanied by independent evidence of guilt. Reynolds v. State, 521 So.2d 914, 917 (Miss.1988). This Court has held that a factual basis is not established by the mere fact that a defendant enters a plea of guilty. Lott, 597 So.2d at 628.

¶ 20. The majority of this Court cites Gaskin v. State, 618 So.2d 103, and Corley v. State, 585 So.2d 765 (Miss.1991), for the proposition that a factual basis is established by the totality of the evidence, i.e., Boddie’s statement and acknowledgment that the State could prove his guilt. However, both of these cases can be distinguished.

¶ 21. In Gaskin, this Court found a factual basis for accepting the defendant’s guilty pleas to murder and armed robbery where Gaskin filed a petition to plead guilty that contained factually specific statements with regard to the crimes he had committed and there were sworn statements of two eyewitnesses to the crime. The Court found that Gaskin’s petition combined with the question-and-answer session during the plea colloquy were not enough under Corley to establish a factual basis, but that a factual basis was established when both were considered along with the sworn statements of the eyewitnesses.

¶ 22. In Corley, this Court found a factual basis for the defendant’s guilty plea where the District Attorney recited during the plea hearing the facts the State’s case would show if the matter proceeded to trial. The Court held that:

What Rule 3.03(2) requires is that, before it may accept the plea, the circuit court have before it, inter alia, substantial evidence that the accused did commit the legally defined offense to which he is offering the plea. What facts must be shown are a function of the definition of the crime and its assorted elements.

Id. at 767. Citing United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 764, 102 L.Ed.2d 927 (1989), the Court further said “[i]n the end there must be enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged, ‘that the defendant’s conduct was within the ambit of that defined as criminal.’ ” Corley, 585 So.2d at 767.

¶ 23. Here, Boddie did not admit to the elements of any factually specific crime, he merely entered a plea and responded “yes, sir” when asked if he was guilty. The trial court did not set out the elements of any factually specific crime and had previously found that the State could not prove the elements of the transfer crime. Reliance on the statements of crack users or Bod-die’s unsworn statement to police to establish a factual basis is improper because the trial judge had already found that evidence not sufficient to allow prosecution of the charge. The majority fails to address the fact that this evidence was considered by the trial court prior to the ruling that the evidence was insufficient. The majority also fails to distinguish the precedent regarding the factual basis issue. The trial court cannot “say with confidence the prosecution could prove the accused guilty of the crime charged” as required under Corley when it has already said that the prosecution cannot prove the accused guilty of the crime charged.

¶ 24. The majority erroneously asserts that Boddie “stated that he was ‘satisfied the State [could] prove beyond a reasonable doubt that [he was] guilty of the offense charged, unlawful transfer of cocaine.’ ” In reality, the statement quoted by the majority and attributed to Boddie was made by the trial court in the form of a question, to which Boddie answered “[y]es, sir.” Further, nothing in the plea colloquy establishes a factual basis for the transfer charge. There is only Boddie answering “yes, sir” to various questions by the court, and this Court has previously said that does not establish a factual basis.

¶ 25. This case is similar to Carter v. State, 775 So.2d 91 (Miss.1999), where this Court affirmed the Court of Appeals on certiorari, holding that there was sufficient evidence to support Carter’s plea of guilty to seduction. However, Carter can be distinguished because there was much more evidence presented and an in-depth plea colloquy, during which Carter admitted conduct “within the ambit of that defined as criminal.” See id. at 97, 98. In both Carter and Lott, the defendants actually told the court what happened during the crime. Also, the analysis presented in the dissent in Carter offers insight into this requirement.

The purpose of the factual basis prerequisite is to require the trial court to delve beyond the admission of guilt and make its own determination that there is substantial evidence that the pleader did in fact commit the crime he is charged with and is not pleading guilty for any other objectionable reason. Gaskin v. State, 618 So.2d 103, 106 (Miss.1993). Finally, the record at the time of the guilty plea must provide the factual basis. Gaskin v. State, 618 So.2d at 106; Lott v. State, 597 So.2d at 628; Corley v. State, 585 So.2d at 768.

Carter, 775 So.2d at 99 (Pittman, P.J., dissenting).

¶ 26. A factual basis is not established when the record does not include the stipulation by the parties of the proof to be offered, the trial court previously found insufficient evidence to allow prosecution for the crime charged, and neither the plea colloquy nor the transcript of the post-conviction relief hearing set out a factual basis for the plea. Because I would find that the trial court failed to establish a factual basis for the plea and that the judgments of the Court of Appeals and the Circuit Court of Pike County should be reversed, I must respectfully dissent.

      . Pursuant to Miss.Code Ann. § 47-7-34, the "maximum amount of time that the Mississippi Department of Corrections may supervise an offender on the post-release supervision program is five (5) years.” The practical effect of the sentence would be that, just like supervised probation or a suspended sentence (with no MDOC supervision), only five years of Boddie’s post-release supervision would be under the direction of the MDOC, with the remaining five years being served in essence like "unsupervised probation” or a suspended sentence.

      . The majority also attributes statements to Boddie's mother that the record establishes she did not actually make. The majority is referring to Boddie's mother responding "|y]es, sir” to two questions by the trial court as to whether she had been present during discussions with Boddie and his lawyer and whether she was satisfied he understood what he was doing.


author: GRAVES, Justice,

text:
    Eric SNOW a/k/a Tony A. Hinton a/k/a T.T. a/k/a Tony Anthony Hinton v. STATE of Mississippi.
    No. 2002-DR-00907-SCT.
    Supreme Court of Mississippi.
    June 10, 2004.

      Office of Capital Post-Conviction Counsel by David Voison, Robert Ryan, attorney for appellant.
    Office of the Attorney General by Judy T. Martin, Marvin L. White, Jr., attorney for appellee.
   GRAVES, Justice,

for the Court.

¶ 1. Eric Snow was charged with the February 21, 1997, murder of Jefferson Davis County Sheriffs deputies Tommy Bourne and J.P. Rutland. The crime occurred in Simpson County as Snow was being transported to the Mississippi Department of Corrections in Rankin County. Earlier that day, Snow had been convicted and sentenced for manslaughter and aggravated assault in Jefferson Davis County. Snow was captured following his escape and tried for the murders in Lowndes County and, in August 1998, was convicted of capital murder and escape from jail. He was sentenced to death for each count of capital murder. His conviction and sentence was affirmed by this Court on September 27, 2001. Snow v. State, 800 So.2d 472 (Miss.2001). Rehearing was denied on November 29, 2001, and the mandate issued one week later. Snow petitioned the U.S. Supreme Court for a writ of certiorari and the same was denied on May 28, 2002. Snow v. Mississippi 535 U.S. 1099, 122 S.Ct. 2299, 152 L.Ed.2d 1056 (2002). On October 5, 2001, the Office of Capital PosMJonviction Counsel (OCPCC) was appointed to represent Snow in his post-conviction relief petition. Snow has now filed his Motion for Leave to Proceed in the Trial Court.

FACTS

¶ 2. The facts of this case were adequately set out in Snow, 800 So.2d at 477, and will not be discussed here.

ANALYSIS

I. Atkins v. Virginia and the Eighth Amendment.

¶ 3. Snow claims that he is entitled to post-conviction relief pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), where the U.S. Supreme Court held that imposition of the death penalty on mentally retarded inmates constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. Here we find that Atkins is an intervening decision, and our recent holding in Chase v. State, 873 So.2d 1013 (Miss.2004), governs the determination of this case. Under the mandate of Chase, where a capital defendant’s trial took place prior to the Atkins decision, he must present to this Court an affidavit from an expert who opines to a reasonable degree of probability/certainty that the defendant has an IQ of 75 or below. Moreover, the expert must conclude that there is a reasonable basis to believe that the defendant will be found mentally retarded.

¶ 4. Snow submitted to this Court an affidavit of John R. Goff, Ph.D. Dr. Goff testified that Snow was tested four times between 1987 and his trial. He received IQ scores of 70, 67, and 73, and 65 on these tests. Dr. Goff concluded from looking at another doctor’s records and from Snow’s school records that he had sub-average intellectual functioning and significant deficits in adaptive functioning. Dr. Goff opined to a reasonable degree of psychological certainty that Eric Snow is mentally retarded.

¶ 5. In Chase, we held that there are other factors that a defendant must present to the trial court in order to prove that he is mentally retarded so as to avoid the death penalty. However, we find that Snow has minimally met his burden of production on this issue so as to be entitled to an evidentiary hearing pursuant to the Court’s requirements set out in Chase.

II. Resentencing.

¶ 6. Snow argues that if there is any doubt about his mental retardation, he is entitled to resentencing. He argues that because the U.S. Supreme Court’s holding in Atkins made mental retardation a factual issue upon which a defendant’s eligibility for death turns, and according to the ruling in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), all facts essential to elements of the offense and sentencing factors must be found by the jury beyond a reasonable doubt, then Snow is entitled to a new sentencing proceeding.

¶ 7. We find that Snow is not entitled to a new sentencing proceeding based on the Ring argument. At the time of his trial, the jury found Snow guilty and sentenced him to death. Unlike the Ring case where the jury found Ring guilty of felony murder and the trial judge found the aggravating circumstance(s) sufficient to sentence Ring to death, the jury in Snow’s case found aggravating circumstances beyond a reasonable doubt. Snow argues that the jury must find all essential facts in order to impose the death penalty and, in fact, the jury did find all essential facts existing at the time of Snow’s trial and sentenced him to death. This argument is without merit.

III. Ineffective assistance of counsel: mental retardation.

¶ 8. Snow argues that his attorney failed to present direct evidence of his mental retardation, and that he instead presented only anecdotal or “informal” evidence that Snow was “slow.” Snow asserts that his attorney erred in calling Sharon Dungan, the Superintendent of Education, to testify about Snow’s placement in an appropriate educational program, rather than calling Dr. Goff to offer a formal diagnosis. Furthermore, it is argued that Snow’s attorney erred in failing to present older special education records (1987 and 1990). Snow argues that his attorney should have called more family members (other than his mother and his aunt) to offer testimony on his mental retardation.

¶ 9. Snow’s attorney called witnesses who testified that Snow was slow and information available to the attorneys demonstrated that Snow was not mentally retarded; such as testimony of the Superintendent of Jefferson Davis County Schools and Dr. Lott, the evaluating psychologist. Even the doctor that Snow’s attorneys consulted (Dr. Goff) was unable to make a definite conclusion. Furthermore, at the time of Snow’s trial, a retarded person could be sentenced to death. The record indicates that the trial counsel did bring forward witnesses of Snow’s mental capacities and that his decision not to call Dr. Goff to testify was a matter of trial strategy where he states in his affidavit that he felt that the State would have called Dr. Lott in for a damaging rebuttal.

¶ 10. We find that Snow wholly fails to demonstrate that his trial attorneys were ineffective and fails to show any prejudice from their performance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The record indicates that Snow’s counsel brought forward evidence that, under the circumstances existing at the time of the trial, was sufficient to demonstrate that Snow was incompetent to stand trial and/or less culpable for the murders. Counsel’s performance as to the issue of mental retardation should not now be evaluated in the light of Atkins which was decided after Snow’s trial. This issue is without merit.

IV. Ineffective assistance of counsel: presentation of mitigation evidence.

¶ 11. Again Snow argues that childhood poverty, the separation of his parents, his sensitivity, and his unusual habit of hiding food should have been presented as evidence in mitigation of punishment. Snow again argues that Dr. John Goff should have been called to testify in this phase of the proceedings.

¶ 12. Snow’s aunt testified as to the separation of his parents and of the adverse impact that it had on him. She testified that they were poor and often lacked food and that Snow wore hand-me-down clothes. Superintendent Dungan testified in detail about Snow’s learning disability and his results on the achievement tests and how he was functioning at the level of a 6-9-year old. Snow’s mother also related Snow’s “bizarre” behavior and his childhood head injuries.

¶ 13. We find that Snow’s trial attorneys put on all of the evidence that was relevant at the time in the mitigation of punishment phase of the proceedings. This issue is without merit.

V. Competency to stand trial/ineffective assistance of counsel.

¶ 14. Snow asserts many of the same points that were argued above. He asserts that Dr. Lott determined his competency to stand trial at least six months prior to the trial date and that Snow’s condition deteriorated substantially between that assessment and the trial date. Snow also argues that Dr. Lott did not have the benefit of the 1987 and 1990 special education records, nor had he any contact with Snow’s family or teachers.

¶ 15. The State argues that Snow’s competency is res adjudicata and is without merit. Snow raised the issue of competency on direct appeal and this Court found that the trial court clearly considered: the findings of Dr. Lott and Dr. Goff; Snow’s behavior and appearance in the courtroom; and conversations on the record in which Snow demonstrated a clear understanding of his rights and need of legal counsel, and made a finding on the record that Snow was competent to stand trial. Snow v. State, 800 So.2d at 488-91.

¶ 16. We agree with the State. This Court found Snow’s counsel made every effort to have Snow evaluated on the issue of mental retardation and insanity by the defense’s experts. The State succeeded in having its own experts examine Snow, as well. The trial court found Snow competent to stand trial, and this Court upheld that decision saying: “The trial court conducted a competency hearing and determined that Snow was competent to stand trial. That finding was based on eviden-tiary support and is not clearly erroneous.” Id. at 491. This issue is procedurally barred.

VI. Validity of waiver of rights/ineffective assistance of counsel.

¶ 17. Shortly after his arrest, Snow made several incriminating statements to law enforcement officers. The record indicates that after Snow was apprehended, he was placed in the backseat of a law enforcement car. Officer Tim Woods positioned himself next to Snow on the backseat of the car in order to guard him. Woods testified that Snow asked “[w]hat are they going to do to me for this?” At that time, Woods interrupted Snow and informed him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), asking if he understood his rights. Snow answered that he did. Woods then remarked that it was a “stupid thing for him to do”, i.e., shooting the deputies, and Snow responded, “it sure was.”

¶ 18. In the hearing to suppress these statements, Snow’s attorney effectively attacked the voluntariness of Snow’s statements, the question of whether he understood his right to remain silent and have a lawyer present and whether Woods questioned or coerced Snow into making such statements. The trial court denied Snow’s motion to suppress. When Snow moved to have Kitchens removed as counsel, he was replaced by Michael Adelman. Adelman did not ask the circuit court to reconsider the ruling on the motion to suppress.

¶ 19. Snow now argues that he did not knowingly, intelligently and voluntarily waive his right to remain silent or for assistance of counsel before making these statements. He argues that his attorney was ineffective for not asking the court to reconsider the motion to suppress and for fading to develop an argument and present evidence concerning the lack of a valid waiver. He argues that evidence of his mental retardation should have been presented where Standard 7.5.9 of the American Bar Association Standards for Criminal Justice recognizes that a person’s mental retardation can affect and impair each element of an otherwise valid waiver.

¶ 20. Snow’s argument fails for many of the same reasons that the above arguments have failed. At the time of Snow’s trial, there was only evidence that he was a slow learner and had been in special education classes. There was evidence of his borderline performance on the certain psychological tests and testimony of his mother and aunt that he grew up poor and without a father. In the hearing to suppress the statements, Snow’s attorney diligently cross-examined the police officer who was in Snow’s presence when he made the incriminating statements, asking whether the officer believed that Snow understood his rights and questioning him as to Snow’s demeanor and response to being read his Miranda rights. The officer consistently testified that Snow was calm and coherent and responded in a way that led him to believe that Snow understood his rights. We find that this issue is without merit.

VII. Jury instructions/ineffective assistance of counsel.

¶ 21. Snow argues that the trial court erred when, at the conclusion of the sentencing phase, the court included as to each alleged victim the aggravating circumstance that “the defendant created a great risk of death to many persons.” This stems from the fact that Snow shot the deputy who was driving the car, causing the deputy to slam the brake pedal forcefully enough to cause the hood of the car to thrust downward. There were other vehicles in close proximity to the patrol car when the shooting occurred and when Snow dove back into the still moving car and fired repeatedly. Snow argues that the omission of the word “knowingly” in the court’s statement of the aggravated circumstance was erroneous and that he is entitled to a new sentencing proceeding.

¶ 22. In McGilberry v. State, 843 So.2d 21 (Miss.2003), the Court stated:

McGilberry argues that the jury instruction concerning the aggravating circumstance as to whether the defendant created a great risk of death to many persons was deficient in that it failed to require the jury to find that he “knowingly” created such a risk to persons other than his intended victims. This issue was capable of determination at trial and on direct appeal and is now procedurally barred from collateral review. Miss.Code Ann. § 99-39-21(1).

McGilberry 843 So.2d at 29.

¶ 23. We find that the omission of the word “knowingly” from the jury instructions is not sufficient to order resentenc-ing. Snow secured a gun and hid it from view, waiting until the law enforcement officer had radioed that they were leaving Simpson County. He then shot the deputy who was, at the time, driving at approximately 55 miles per hour on a well-traveled highway. Snow then jumped back into the car and randomly fired the gun in the interior of the car where three people were likely to be shot and injured. These facts indicate that Snow knowingly created the risk. Furthermore, the offense for which Snow was charged was sufficient for a death penalty sentence even without the “creating a great risk to many people” aggravating circumstance.

VIL Cumulative error

¶ 24. Because Snow’s non-A&ms assignments of error are without merit, there is no cumulative effect of errors.

CONCLUSION

¶ 25. We grant Snow leave to seek post-conviction relief in the trial court on the issue of mental retardation in accordance with Atkins and our holding in Chase. We deny Snow’s application in all other aspects.

¶ 26. LEAVE TO SEEK POST-CONVICTION RELIEF GRANTED IN PART AND DENIED IN PART.

SMITH, C.J., WALLER AND COBB, P JJ., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Pursuant to a change of venue.

      . Dr. Lott's testimony refuted Dr. Goffs in that Dr. Lott testified that Snow was not retarded and instead that he was not putting forth his best effort in the evaluations that were conducted before trial. Dr. Lott also reported that he found the accounts of Snow's hallucination to be fabricated and noted Snow's alcohol and marijuana use.


author: CARLSON, Justice, WALLER, Presiding Justice,

text:
    Donald Wade MILLER v. STATE of Mississippi.
    No. 2001-CT-01223-SCT.
    Supreme Court of Mississippi.
    June 17, 2004.

      James W. Amos, Hernando, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Justice,

for the Court.

¶ 1. Donald Wade Miller was accused of intentionally setting fire to his trailer and was convicted of arson in the DeSoto County Circuit Court. He was sentenced to a term of one year in the custody of the Mississippi Department of Corrections followed by ten years of supervised probation. Aggrieved by his conviction, Miller appealed. The Court of Appeals affirmed the conviction, but reversed and remanded for the limited purpose of correcting that portion of the sentence which requires post-release supervision for a period of excess of five years. Miller v. State, 856 So.2d 420, 425 (Miss.Ct.App.2003).

¶ 2. Miller’s motion for rehearing was denied on June 10, 2003, and he timely filed the instant petition for certiorari on June 23, 2003. This Court granted certio-rari by an order entered September 25, 2003. Miller v. State, 859 So.2d 392 (Miss.2003). Finding no error in the conviction and sentence, we affirm in part, and reverse in part, the judgment of the Court of Appeals and reinstate and affirm in toto the judgment of the Circuit Court of DeSo-to County.

FACTS

¶ 3. The following factual background was recited by the Court of Appeals:

At approximately 2:49 p.m. on February 29, 2000, the Love Volunteer Fire Department received a report of a fire at 3789 Jaybird Road, Hernando, Mississippi, the residence of Donald Wade Miller. Upon arrival, Sam Witt of the Her-nando Fire Department observed smoke coming from the roof on the right front side of the trailer home.
DeSoto County Deputy Fire Marshall Mike Hancock was called to investigate the matter and arrived at approximately 4:00 p.m. with a canine trained to sign for accelerants or flammable liquids. Shortly thereafter, Miller returned home, and at the request of Officer Hancock consented to a search of the property. Officer Hancock allowed his trained canine to search the property for accelerants. The canine signaled the presence of an accelerant in the center of the couch. Photographs were entered into evidence of the couch and the canine’s search.
At trial, Mike Lynchard, a custodian of records at BellSouth Telecommunications, testified that a two minute call from Miller’s unlisted number at the trailer home was made at 2:38 p.m. on the day of the incident to a Memphis phone number. Lynchard stated that he did not know to whom the Memphis number was listed nor who made the call to that number.
John Anderson, an acquaintance of Miller, testified that when he drove by Miller’s trailer, he “noticed smoke coming from the trailer.” He slowed down and noticed fire “through the window of the trailer.” Anderson stopped, called 911 to report the fire at approximately 2:49 p.m., and moved Miller’s dog from the yard.
Geniene Bowdre, who lived across the street from Miller, testified that on the day of the incident, she saw a vehicle coming out of one of the driveways, either Miller’s or the one next to him, but she was not sure. Then, she saw smoke coming from the trailer.
Sam Lauderdale, a State Farm Insurance agent, testified that Miller’s mother is an employee of his and that he “got a telephone call that Donnie’s home was on fire. And a few minutes later, he (Miller) pulled into the parking lot and came into the office or came up the office steps, and I walked out and said, ‘[w]e’ve gotten a call that your home is on fire.’ And • he turned around and left.”
Bradley Schinker, the State’s fire investigator expert, testified that when he came to the east side of the living room, he noticed that the couch was almost burned out in the center and that “the fire started in this area.” Schinker also indicated that he found no faulty wiring after inspecting the trailer. He testified that smoking was ruled out and that he determined this was some type of intentional act.
Lee James, a claims representative for State Farm Insurance, testified that she interviewed Miller, who admitted that he was a smoker but denied being on his couch smoking the day of the fire.
At the conclusion of the State’s case, Miller moved for a directed verdict claiming that the State had failed to prove beyond a reasonable doubt that he had committed arson. This motion was denied.
Miller testified that he did not intentionally start the fire. He stated that he might have accidentally started the fire, but did not state how it may have accidentally occurred.
Miller’s sister, Darlene Ellis, testified that she owned the couch prior to giving it to her brother. She stated that her boys spilled gun cleaning solvent on the couch approximately three months prior to it being given to Miller.
Miller requested a peremptory instruction which was denied by the trial court. Miller was found guilty and sentenced to one year in the custody of the Mississippi Department of Corrections followed by ten years of post-release supervision for the purpose of insuring payment of restitution in the amount of $51,255.91 to State Farm.
Miller filed a motion for JNOV, or in the alternative, a motion for a new trial, which was denied.

Miller, 856 So.2d at 421-22.

¶ 4. On appeal, the Court of Appeals held that although the evidence presented in Miller’s case was purely circumstantial, “the record contained] substantial evidence from which the jury could conclude that Miller was guilty of arson.” Id. at 425. Therefore, the Court of Appeals affirmed Miller’s conviction. The Court of Appeals, however, reversed and remanded the sentence, finding that the trial court improperly exceeded the maximum years allowed by statute for supervised probation.

DISCUSSION

¶ 5. Miller asserts that the trial court erred in (1) failing to sustain his motions for directed verdict made both at the close of the State’s case-in-chief and at the conclusion of the trial; (2) failing to give a peremptory instruction in his favor; and, (3) failing to find via post-trial motions that the verdict of the jury was contrary to the law and the weight of the evidence.

¶ 6. When considering claims of trial court error in the denial of a motion for a directed verdict or a denial of a peremptory instruction, our standard of review is the same. We must judge the sufficiency of the evidence by accepting as true all evidence, as well as all reasonable inferences which may drawn from the evidence, in the light most favorable to the State (the non-moving party), and in so doing, if there exists in the record evidence sufficient to support the jury’s guilty verdict, we are constrained as a matter of well-established law to uphold the trial court’s denial of a motion for directed verdict and/or peremptory instruction. Robert v. State, 821 So.2d 812, 817 (Miss.2002); Isaac v. State; 645 So.2d 903, 907 (Miss.1994); Clemons v. State, 460 So.2d 835, 839 (Miss.1984).

¶ 7. In addressing Miller’s challenge to the weight of the evidence, our standard of review is likewise clear.

Our scope of review is well established regarding challenges to the weight of the evidence issue. Proeedurally, such challenges contend that defendant’s motion for new trial should have been granted. Miss. Unif.Crim. R. of Cir. Ct. Prac. 5.16.[] The decision to grant a new trial rests in the sound discretion of the trial court, and the motion should not be granted except to prevent “an unconscionable injustice.” Wetz v. State, 503 So.2d 803, 812 (Miss.1987).

Jones v. State, 635 So.2d 884, 886 (Miss.1994).

¶ 8. The Court of Appeals found the following evidence to be consistent with the guilty verdict of arson:

(1) Miller was the sole occupant of the trailer, (2) a telephone call was made from the trailer approximately ten minutes before the fire was reported, (3) Miller was the last person known to be at the trailer, (4) a car was seen leaving the vicinity of Miller’s trailer shortly before the fire, (5) the fire was started deliberately, (6) Miller was at home between 2:38 p.m. and 2:40 p.m., (7) the fire was reported at approximately 2:49 p.m., and (8) a call was made from Miller’s trailer at approximately 2:38 p.m.

Miller, 856 So.2d at 423. While the evidence of guilt in the case sub judice was no doubt purely circumstantial, this does not vitiate an otherwise lawful verdict. Walton v. State, 642 So.2d 930, 932 (Miss. 1994). There were conflicts in the evidence which unquestionably had to be resolved by the jury. Groseclose v. State, 440 So.2d 297, 301 (Miss.1983). Therefore, the Court of Appeals and the trial court were correct in determining that the verdict rendered by the jury was not contrary to law nor was it against the weight of the evidence.

¶ 9. Regarding the sentence imposed by the trial court, the Court of Appeals has mistakenly used the terms “supervised probation” and “post-release supervision” interchangeably. Note by way of example the following excerpts from the opinion of the Court of Appeals: “[Miller] was sentenced to a term of one year in the custody of the [MDOC] followed by supervised probation of ten years.” 856 So.2d at 420 (emphasis added). “Miller was found guilty and sentenced to one year in the custody of the [MDOC] followed by ten years of post-release supervision ...” Id. at 422 (emphasis added). The Court of Appeals sua sponte determined that the trial judge had imposed an illegal sentence as evidenced by the following language:

However, this Court notes that in addition to serving one year in the custody of the Mississippi Department of Corrections, the trial court sentenced Miller to a term of ten years supervised probation. Pursuant to Miss.Code Ann. Section 47-7-37 (Rev.2000), a period of post-release supervision shall not exceed five years. Ellis v. State, 748 So.2d 130 (¶ 12) (Miss.1999).[] This Court therefore notes as plain error that portion of the sentence which imposes a period of post-release supervision of ten years.

856 So.2d at 425 (emphasis added).

¶ 10. Supervised probation and post-release supervision are totally different statutory creatures. Miss.Code Ann. § 47-7-33 provides for supervised probation, while Miss.Code Ann. § 47-7-34 provides for post-release supervision. At least two major differences in these two statutes are (1) supervised probation may not be imposed on a convicted felon while post-release supervision may be imposed on a convicted felon; and, (2) supervised probation is limited to five years while post-release supervision is not. Section 47-7-34 states inter alia that “the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed.” While the statute unquestionably limits to five years the period of time that the MDOC may supervise an offender who is on post-release supervision, the clear language of the statute does not limit the total number of years of post-release supervision to five years.

¶ 11. That having been said, we note that the trial court in the case sub judice sentenced.Miller, inter alia, as follows:

The Defendant is hereby sentenced to a term of one (1) year in the Mississippi Department of Corrections followed by supervised probation under the supervision of the Mississippi Department of Corrections for a period of ten (10) years or until the court in term time or the Judge in vacation shall alter, extend, terminate or direct the execution of the above sentence.
⅝ ⅜ * * * ⅜ ⅜ ⅝
The Defendant is only required to meet with [the] probation officer at the statutory minimum guidelines.

Thus, it is clear that the trial judge was placing Miller on probation, but only five (5) years of which "would be served under the supervision of the MDOC with the remaining five years being in essence “unsupervised probation.” There is no doubt that Miller could not be required to serve more than five years by way of reporting to a MDOC probation officer (supervised probation), but upon release from the reporting requirements by the MDOC officer and/or the trial court, Miller no doubt could serve the remainder of his sentence by way of unsupervised probation. The sentence was not violative of Sections 47-7-33, 47-7-34 or 47-7-37. Therefore, the Court of Appeals erred in reversing the sentence imposed by the trial court.

CONCLUSION

¶ 12. Finding that both the Court of Appeals and the Circuit Court of DeSoto County were correct in holding that the jury properly concluded from substantial evidence as revealed in the record, that Donald Wade Miller was guilty of arson, we affirm Miller’s conviction. We also find that the trial court was authorized by the applicable statutes to sentence Miller to one year* in the custody of the Mississippi Department of Corrections followed by ten years of supervised probation limited by the clear language of the sentencing order to the maximum five-year period for MDOC supervision. Therefore, we affirm in part, and reverse in part, the judgment of the Court of Appeals and reinstate and affirm in toto the judgment of the DeSoto County Circuit Court.

¶ 13. Finally, we suggest to our learned trial judges that when sentencing a defendant to a period of incarceration followed by a period of supervision by the MDOC, post-release supervision under the provisions of Miss.Code Ann. § 47-7-34, is the better procedure. Additionally, we suggest to our trial judges that when sentencing a defendant to either supervised probation or post-release supervision, it should be made clear in the sentencing order that any MDOC supervision is limited to no more than the statutory maximum of five years.

¶ 14. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, AND THE JUDGMENT OF THE DESO-TO COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

SMITH, C.J., GRAVES AND RANDOLPH, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. WALLER, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY COBB, P.J., AND DICKINSON, J. DIAZ, J., NOT PARTICIPATING.

WALLER, Presiding Justice,

Dissenting:

¶ 15. Because the evidence was insufficient to establish beyond a reasonable doubt that Donald Wade Miller was guilty of arson, I respectfully dissent.

¶ 16. The plurality relies on the Court of Appeals’ conclusion that the following evidence was consistent with the guilty verdict rendered against Miller:

(1) Miller was the sole occupant of the trailer, (2) a telephone call was made from the trailer approximately ten minutes before the fire was reported, (3) Miller was the last person known to be at the trailer, (4) a car was seen leaving the vicinity of Miller’s trailer shortly before the fire, (5) the fire was started deliberately, (6) Miller was at home between 2:38 p.m. and 2:40 p.m., (7) the fire was reported at approximately 2:49 p.m., and (8) a call was made from Miller’s trailer at approximately 2:38 p.m.

Miller v. State, 856 So.2d 420, 423 (Miss.Ct.App.2003).

¶ 17. The fact that Miller lives alone does not, in my view, weigh in favor of either a verdict of guilty or innocent. Further, Miller does not dispute that he was in the trailer in the minutes prior to the fire starting or that he was the last person known to be in the trailer. Miller admits that he had been on the internet and departed just prior to the fire starting.

¶ 18. Additionally, the fact that a car was seen leaving the vicinity shortly before the fire does not strongly support the guilty verdict when considering the testimony of Gemenie Bowdre. Bowdre lived adjacent to Miller. She testified that she was at her mailbox when she saw “a car, ... coming out of one of the driveways north of me. And I’m not sure which driveway it was coming out of, but it was the Miller driveway or the other drive.” Further, when asked what kind of vehicle she saw, Bowdre stated, “I don’t know vehicles unless I really see the name on them.” Bowdre testified that after seeing the car leave, she noticed smoke coming from Miller’s home.

¶ 19. The only evidence of a fire being deliberately started came from Mike Hancock, the fire investigator with the DeSoto County Fire Department, who testified that the trained canine used in his investigation indicated that a flammable liquid was present on the middle of Miller’s couch. This was confirmed by Brad Schinker, a fire investigator with Unified Investigations and Sciences, who eliminated all of the accidental ignition sources and concluded that Miller's sofa was the fire’s origin. Schinker concluded that the fire started by “introduction of an ignition source by some type of human action. I mean, human action, by someone physically coming in and bringing it into the area, an ignition source.” This alone does not show that the fire was started deliberately.

¶ 20. Arson requires that the fire be set “willfully and maliciously.” Miss.Code Ann. § 97-17-1(1) (Rev.2000). Darlene Ellis, Miller’s sister, testified that she previously owned the couch. At the end of November or December, she saw her children spill gun cleaning solvents on the couch while they were cleaning their guns. She further testified that she gave the couch to Miller because he did not have any furniture. At trial, Miller testified that he placed his mail on the couch when he got home, that later he went back to the couch to look through his mail and that it was possible he was smoking at that time. Miller testified that he may have accidentally started the fire but did not intentionally.

¶ 21. The record here reflects no physical evidence linking Miller to the fire. The State attempted to show that Miller had motive because of his financial troubles. However, Miller’s insurance coverage was for approximately $31,000.00, and Miller testified that he owed $43,000.00-$44,000.00 as of the date of the fire. Additionally, there is no significant evidence that Miller attempted to remove any personal property from his home prior to the fire, including guns, the computer and all furnishings. In fact, a friend of Miller’s noticed the fire and removed Miller’s dog from a fenced area directly behind the burning trailer.

¶ 22. The facts here are no more damaging than those in Gatlin v. State, 754 So.2d 1157 (Miss.1999). Gatlin was at the scene of a fire at a time when he could have started the fire, but Gatlin did not admit that he actually started the fire. Id. at 1159. Gatlin had domestic trouble with a girlfriend as a motive. Id. The fire marshal testified that an accelerant had been used in such an amount that it was no accident. Id. Further, no physical evidence was found to connect Gatlin with the fire. Id. Gatlin was reversed by this Court for insufficient evidence.

¶ 23. This Court has reversed several other arson convictions due to insufficient evidence. See Isaac v. State, 645 So.2d 903 (Miss.1994) (Isaac stated that he may have started the fire at his girlfriend’s apartment, but did not do so intentionally; Isaac was father of girlfriend’s children and girlfriend had put him out of apartment a week before the fire); White v. State, 441 So.2d 1380 (Miss.1983) (witness stated that White asked him to assist in burning of car to defraud insurer; reversed and rendered on plain error); Moody v. State, 371 So.2d 408 (Miss.1979) (this Court found two prosecution witnesses not credible and reversed and rendered); Holloman v. State, 151 Miss. 202, 117 So. 532 (1928) (trouble existed between defendant and owner of barn; defendant’s father’s property, normally stored in barn, had been moved before fire; witness stated that defendant told him he would burn the barn and tried to get witness to help; tracks similar to defendant’s were found near point of origin of fire). Likewise, this Court reversed Gatlin’s conviction because there was no more evidence supporting Gatlin’s conviction than in Isaac, White, Moody, and Holloman. Gatlin, 754 So.2d at 1159.

¶ 24. Viewing the evidence here in the light most favorable to the verdict, I fail to see how a reasonable, hypothetical juror could find beyond a reasonable doubt that Miller was guilty of arson. For this reason, I would reverse the Court of Appeals’ judgment and reverse and render Miller’s conviction and sentence.

COBB; P.J., AND DICKINSON, J., JOIN THIS OPINION.

      . As will be revealed later in this opinion, the Court of Appeals mistakenly used the terms "supervised probation” and "post-release supervision” interchangeably.

      . This rule is now cited as URCCC 10.05.

      . Ellis involved a supervised probation sentence imposed by the trial judge in 1990, prior to the passage of Miss.Code Ann. § 47-7-34. Ellis thus did not involve post-release supervision.

      . There is no doubt that the better practice in this situation would have been to sentence the defendant to ten years of post-release supervision as opposed to supervised probation.


author: DICKINSON, Justice,

text:
    Sherwood BROWN v. STATE of Mississippi.
    No. 2003-DR-01325-SCT.
    Supreme Court of Mississippi.
    June 17, 2004.

      Elizabeth Jane Hicks, attorney for appellant.
    Office of the Attorney General by Marvin L. White, Jr., attorney for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. Sherwood Brown was convicted of two counts of murder and one count of capital murder for the 1993 murders of Evangela Boyd, Verline Boyd and Betty Boyd. See Brown v. State, 690 So.2d 276 (Miss.1996). His conviction was upheld by this Court on direct appeal. See id. Brown’s subsequent post-conviction relief request was denied. See Brown v. State, 798 So.2d 481 (Miss.2001). Brown now files a successive application for leave to seek post-conviction relief.

DISCUSSION

¶ 2. Brown’s single claim in his application is that he is mentally retarded and, therefore, exempt from execution based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Since Atkins was not decided until 2002, it constitutes an “intervening decision” of the United States Supreme Court, saving Brown’s petition before this Court from being pro-eedurally barred. Miss.Code Ann. § 99-39-5(2). See also Foster v. State, 848 So.2d 172 (Miss.2003).

¶ 3. Our recent opinion in Chase v. State, 873 So.2d 1013, 2004 WL 1118688 (Miss.2004), controls the analysis of the case sub judice and dictates that Brown be allowed to file his petition. On a post-conviction request for an Atkins determination, where the trial took place prior to the Atkins decision, the movant must present to this Court an affidavit from an expert who opines to a reasonable degree of probability/certainty that the defendant has an IQ of 75 or below and that, in the expert’s opinion, there is a reasonable basis to believe that the defendant will be found mentally retarded.

¶4. Brown has provided an affidavit from Dr. Marsha Little, who testifies that upon recollection that Brown has an IQ in the lower 70’s. In addition, she testifies that Brown was mentally retarded at the time of the crime and further testing would support her conclusion.

¶ 5. Therefore, based on Atkins and our recent decision in Chase, we grant Brown leave to file a motion to vacate death sentence in the DeSoto County Circuit Court.

¶ 6. LEAVE TO SEEK POST-CONVICTION RELIEF, GRANTED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES AND RANDOLPH, JJ., CONCUR. EASLEY, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J„ NOT PARTICIPATING.

      . Brown’s petition for writ of certiorari before the United States Supreme Court was denied (Brown v. Mississippi, 522 U.S. 849, 118 S.Ct. 136, 139 L.Ed.2d 85 (1997)) as was his motion for rehearing on the matter (Brown v. Mississippi, 522 U.S. 1009, 118 S.Ct. 591, 139 L.Ed.2d 427 (1997)). According to his petition before this Court, Brown's petition for habeas corpus relief was filed in the United States District Court for the Northern District of Mississippi and at the time of his filing before this Court, was still pending. See Brown v. Puckett, No.3:01CV197-D, 2003 WL 21018627 (N.D.Miss.2003).


author: COBB, Presiding Justice,

text:
    C.A. SOUTHERLAND v. Susan Diane Shoemaker SOUTHERLAND.
    No. 2002-CA-02121-SCT.
    Supreme Court of Mississippi.
    June 24, 2004.
    David L. Walker, Batesville, Tommy Wayne Defer, attorneys for appellant.
    M. Lee Graves, Clarksdale, attorney for appellee.
   COBB, Presiding Justice,

for the Court.

¶ 1. This case is before this Court for the second time on the issue of child support, and C.A. (Craig) Southerland has again been ordered by the Panola County Chancery Court to pay $1,000 per month in child support for his minor daughter, Jeni. Craig appeals, assigning as error that the amount of the child support award exceeds the statutory guidelines and is based on income before remand rather than income after remand. Finding no error in the ruling of the chancery court, we affirm.

FACTS

¶ 2. The pertinent facts were stated in this Court’s first opinion in this case in 2002:

Craig and Susan Southerland were married in 1976. They had two children, one of whom was emancipated at the time of these divorce proceedings. The other child, a daughter named Jeni, was born in 1985 and was fourteen at the time of the trial. Though Craig filed for divorce in June 1999, he was at the time openly involved in an adulterous relationship, and this served as the ground for the divorce awarded to Susan.
At the time of the divorce, Craig was working in Florida and reported net monthly income of $5,111. Susan was living in Courtland, Mississippi, and working at a bank in Crowder where she earned net monthly wages of $903.66. The parties had not accumulated any appreciable assets during the course of their marriage but did own the homes in Panola County, where Susan and the children were living, and in Florida, where Craig was living. The chancellor determined that an award of lump sum alimony was appropriate under the circumstances. The chancellor noted that Susan had abandoned her career during the marriage to support Craig in his studies for the ministry and that she had worked in a closely-held business started by Craig after the parties had moved to Florida. Taking into account the respective incomes of the parties, the chancellor determined that a lump sum award of $50,000 was appropriate and ordered it to be paid in periodic monthly installments of $1,500 each. The chancellor further awarded child support in the amount of $1,000 per month and attorney’s fees of $3,750 to Susan South-erland.

Southerland v. Southerland, 816 So.2d 1004, 1005 (Miss.2002).

¶ 3. The original $1,000 per month child support award was in excess of 14% of Craig’s adjusted gross income, the guideline amount provided in Miss.Code Ann. § 43-19-101 (Rev.2000). This Court reversed the chancery court and remanded on the issue of child support, finding that the chancery court had failed to make written findings as required by § 43-19-101(2) & (4). See Southerland, 816 So.2d at 1006-07.

¶ 4. On remand the chancery court made the following special findings:

[Tjhe application of the guidelines under Section 43-19-101(4) would be unjust and inappropriate in this case. Furthermore, the amount which the Court is awarding in child support is reasonable in view of the fact that Craig Souther-land’s income was in excess of $50,000.00.

Under Section 43-19-103, the Court makes the following special findings, to-wit:

1. The Court finds that Craig Souther-land brought his family back to Mississippi from Florida; that Craig Southerland bought a house in Mississippi and placed a mortgage on the house. Further, that he took his daughter to the private school and signed her up for the private school education. Afterwards, he told his daughter and his family that he wanted his daughter to remain in the private school with her friends. These actions on the part of Craig Southerland amount to extraordinary expenses not contemplated by the statutory guidelines (which were admitted and confirmed by Craig Southerland).
2. The Court further finds that Craig Southerland left his family and went back to Florida to live with another woman.
3. The Court further finds that Craig Southerland filed for a divorce on irreconcilable differences and followed a course of conduct that, in effect, left his wife no other choice than to file for divorce on the grounds of adultery.
4. The Court further finds that Susan Southerland had to take out a second mortgage on the house to pay bills and had to seek contributions from her local church and friends to pay her utilities.
5. The Court further finds that Susan Southerland worked at the local bank to supplement the income of the family, but that her income was very meager compared to the income of Craig Southerland.
6. Finally, the Court finds that the payment of $1,000.00 in child support is reasonable in view of the fact that Craig Southerland makes in excess of $50,000.00 per year. The Court further observed the demean- or, bearing, and presence of Craig Southerland in Court, and it appears to the Court that this child support is reasonable and well within the financial capabilities of Craig South-erland.
* * *

Craig Southerland now appeals from the chancery court’s judgment. We affirm that judgment.

ANALYSIS

¶ 5. “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was used.” Kilpartrick v. Kilpatrick, 732 So.2d 876, 880 (Miss.1999). This Court reviews a chancery court’s conclusions of law de novo. Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000).

I. Did the chancery court err when it awarded an amount of child support which exceeds the statutory guidelines for child support?

¶ 6. “[Cjhild support award guidelines shall be a rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state.” Miss. Code Ann. § 43-19-101(1) (Rev.2000). A chancery court may make an award which exceeds the guidelines, but must accompany such an award with

a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined according to the following criteria:
(a) Extraordinary medical, psychological, educational or dental expenses;
(b) Independent income of the child;
(c) The payment of both child support and spousal support to the obligee;
(d) Seasonal variations in one or both parents’ incomes or expenses;
(e) The age of the child, taking into account the greater needs of older children;
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines;
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parents, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services;
(h) Total available assets of the obligee, obligor and the child.
(i) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

Miss.Code Ann. § 43-19-103 (Rev.2000).

¶ 7. This Court previously held that the chancery court erred when it awarded an amount of child support for Jeni that exceeded the statutorily recommended amount, without making the required on-the-record findings. Southerland, 816 So.2d at 1006-07. On remand, the chancery court properly made such findings in compliance with this Court’s decision, and specifically found that Craig’s actions with regard to sending his daughter to a private school amounted to extraordinary expenses not contemplated by the statutory guidelines. Craig now argues, in essence, that the chancellor abused his discretion by failing to take into account the amount Craig is paying for private school tuition and that the monthly support payment should be reduced accordingly.

¶ 8. Subsequent to this Court’s first decision in the present case, we decided Hensarling v. Hensarling, 824 So.2d 583 (Miss.2002), in which a chancery court awarded an amount of child support that exceeded the statutorily recommended amount of child support because, among other things, the children attended private school. This Court affirmed as follows:

[T]he chancellor found that special circumstances so exist which would “necessitate a variance from the statutory guidelines in setting Ken’s obligation of child support.” He noted that as a doctor, Ken has the ability to earn a substantial income, whereas at this time, Brenda has no source of income other than the rehabilitative alimony she will receive for a few years. Also, the children ■ have special needs which he deemed to include private school tuition, as the children’s friends and “daily routines and activities” stem from them attending private school. We find that these reasons meet the criteria set out in Miss.Code Ann. § 43 — 19—103(f) & (h).

Hensarling, 824 So.2d at 588. In the present case, Craig wanted his daughter to remain in private school with her friends. The chancery court found that Craig was able to meet the expense and that he has the ability to earn a substantial income while Susan has a comparatively small source of income. As with any child of school age, Jeni’s daily routines and activities revolve around her school, and she had attended the private school “ever since [the Southerlands] moved back to Mississippi.” Jeni was enrolled in the private school at the time of the divorce.

¶ 9. Craig has made no showing that the chancery court’s finding is manifestly in error, or that the chancellor abused his discretion in awarding child support for Jeni in the sum of $1,000 per month. This issue is without merit

II. Did the chancery court err when it awarded an amount of child support based on income before remand rather than income after remand?

¶ 10. This Court previously re-mandéd this action to the chancery court for “further proceedings consistent with th[e] opinion on the issue of child support.” Southerland, 816 So.2d at 1007. On remand, the chancery court made a written finding that “the payment of $1,000.00 in child support is reasonable in view of the fact that Craig Southerland makes in excess of $50,000.00 per year.” However, the chancery court’s finding was based on Craig’s income before remand and not his income after remand. Craig argues that the trial court abused its discretion in refusing to revisit the issue of child support as of the date of the hearing.

¶ 11. This Court did not remand the case for a new trial on child support. Craig does not cite any case law or statutory authority requiring the chancery court to award child support based on Craig’s income after remand, though such consideration would be within the chancery court’s equitable authority, upon an appropriate motion for modification. There is no merit to this issue.

CONCLUSION

¶ 12. In cases involving child support, we afford the chancellor considerable discretion, and his findings will not be reversed unless he was manifestly in error or abused his discretion. There is no showing that either occurred in this case; and therefore, the judgment of the Panola County Chancery Court is affirmed.

¶ 13. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND CARLSON, JJ., NOT PARTICIPATING.


text:
    Reginald Torlentus JOHNSON v. STATE of Mississippi.
    No. 96-CT-01136-SCT.
    Supreme Court of Mississippi.
    June 24, 2004.

      Robert M. Ryan, Thomas M. Fortner, Andre De Gray, Jackson, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   COBB, Presiding Justice,

for the Court.

¶ 1. This is an appeal after remand to the Hinds County Circuit Court, First Judicial District, for the limited purpose of conducting a proper Batson hearing. Reginald Torlentus Johnson was convicted of deliberate design murder in September, 1996, and was sentenced to serve life in prison in the custody of the Mississippi Department of Corrections. He appealed on the basis that, inter alia, the State used its peremptory strikes in a systematic way to eliminate blacks from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Hatten v. State, 628 So.2d 294 (Miss.1993). The State used only six of its twelve peremptory strikes, but all six were used to eliminate black venire persons. The resulting petit jury consisted of 7 blacks and 5 whites.

¶ 2. In December, 1998, the Mississippi Court of Appeals held that the State’s racially neutral reasons for their strikes were being offered in. good faith, and affirmed the trial court. Johnson v. State, 754 So.2d 1178, 1179(¶5) (Miss.2000). After granting Johnson’s petition for certiorari, this Court applied the rule of Hatten v. State, reversed the judgment of the Court of Appeals, and remanded the case for a proper Batson hearing, on the sole issue that the trial court neglected to undertake the third step of the Batson analysis, by failing to make on-the-record factual findings for each peremptory strike made by the State:

“We say once again that the rule promulgated in Hatten will be enforced. The judgment of the Court of Appeals is reversed. The case is remanded to the Hinds County Circuit Court for a hearing and findings pursuant to Hatten and Batson.”

Johnson 754 So.2d at 1180, (¶ 8). The Hatten rule requires the trial court to make on-the-record factual findings that each race neutral reason offered by the State for striking a juror is non-pretextual. Johnson, 754 So.2d at 1180; Hatten, 628 So.2d at 298.

FACTS

¶ 3. The new Batson hearing was conducted on May 10, 2002. It consisted of direct and cross-examination of Glenda Haynes, the assistant district attorney, who along with then-District Attorney Ed Peters, had tried the case in 1996. Presiding over the hearing was Circuit Judge Winston Kidd, who was not the initial trial judge. Haynes testified that Peters had conducted the voir dire for the State and it had been her responsibility to watch, listen, and take notes about what was said and what the prospective jurors were doing during voir dire. Her testimony was based on her notes from the trial, her personal recollection, District Attorney Peters’s notes, and the transcript of the original proceedings. Judge Kidd actively participated in the hearing, asking questions from time to time to clarify details of testimony and interacting with the attorneys for Johnson and the State. At the conclusion of the evidence and argument, Judge Kidd made oral findings on the record in which he reiterated each reason given by the state for each strike, after which he found that the reasons were race neutral. Thereafter, he concluded, in summary fashion, that the findings had been made, that the reasons given by the State were sufficiently race neutral under the Batson standard, and that the State did not engage in unconstitutional discrimination in the use of its peremptory challenges. We affirm that ruling.

DISCUSSION

¶ 4. On review, a trial court’s determinations under Batson are afforded great deference because they are largely based on credibility. McGilberry v. State, 741 So.2d 894, 923 (Miss.1999) (citing Coleman v. State, 697 So.2d 777, 785 (Miss.1997)). This Court will not reverse factual findings relating to a Batson challenge unless they are clearly erroneous. Id. See also Woodward v. State, 726 So.2d 524, 530 (Miss.1998); Lockett v. State, 517 So.2d 1346, 1349-50 (Miss.1987). “This perspective is wholly consistent with our unflagging support of the trial court as the proper forum for resolution of factual controversies.” Id. at 1350.

¶ 5. Johnson asserts that the trial court decision on remand is clearly erroneous. Specifically, Johnson argues that the third step in the Batson test requires “factual truthfulness,” that is, the trial judge may not simply take at face value the explanation asserted by the State, but each on-the-record findings of non-pretext must contain some evidence from the record that supports the reason for the strike. See Hatten, 628 So.2d at 302. See also Snow v. State, 800 So.2d 472, 479-81 (Miss.2001) (“Hatten does not require literal truth in the reason proffered. It only requires that there be some basis in fact sufficient to allow the court to make a reasonable judgment that it is not contrived.”). Johnson contends that the trial judge merely made a determination that the reasons were race neutral, as required in step two of Batson, but did not make a determination that they were factually truthful and non-pretextual, as required by step three of Batson and by Hatten. The following colloquy took place during the hearing:

THE COURT: So it’s the Defendant’s position that the trial court judge did not make a determination that those reasons given for striking juror one on panel one — is it the Defendant’s position that the trial court did not make a determination that those reasons were race neutral?
MR. DeGRUY [Counsel for Defendant]: He made a determination that they were race neutral. He did not make a determination that they were factually truthful and that’s why we’re back here because we had never gotten to step three and it is impossible to make that determination because they failed to make the record at the time— to raise the issue so that a true record could be made.
THE COURT: When the Court made a decision to accept those challenges as race neutral, don’t you think the Court actually made a factual finding that they were race neutral? If the Court accepted the reasons given by the State, even thought the Court did not give individual reasons on the record, but if the Court allowed the State to strike these individuals, wouldn’t you think that the Court made factual findings?
Mr. DeGRUY: Absolutely not. I think that’s why the case is back here because the Court did not make—
The COURT: Because they’re not on the record.

¶ 6. Haynes testified regarding the State’s six strikes, and Johnson’s attorney provided rebuttal, as follows:

S-l Panel 1, juror 1, black male, age 4.0. Haynes testified that this juror did not pay attention during voir dire, was not even facing the district attorney as he spoke, and was totally unresponsive. Additionally, Haynes testified that she recalled that the juror was turned around in his seat, unresponsive, and gave the impression that he didn’t want to be there, even when defense conducted voir dire.

S~1 rebuttal. Johnson argued that it was his position that during voir dire, this juror was not looking away, and that although the record shows that this juror did not respond to any questions, it also shows that he was not directly asked any questions, and that there is no evidence to suggest that this juror was withholding any information or that he should have answered any questions. Johnson asserted that, when subjective reasoning is used, such as no eye contact, inattentive witness, turning away in his seat, Hatten requires that a record be made that shows that this actually occurred. Johnson argued that it is incumbent on the prosecution to approach the bench at the time a juror’s inattentiveness or questioned demeanor is noted, to make a record of the behavior and that the judge should make a factual finding of what was occurring at that point, and that since that did not happen in the initial trial, Johnson should get a new trial. For reasons set forth infra, we disagree.

S-2 Panel 1, juror 6, black female, age 52. Haynes testified that she had a full page of notes from the initial voir dire which reflected that this juror requested an individual, or private, voir dire due to the fact that her sister’s child had been killed and the murder had not been solved. The juror also indicated that she would be affected by the fact of the unresolved murder. Haynes stated that she had personally seen members of that family in the DA’s office. Haynes’s observation was that the juror’s “whole mannerism indicated that she was quite upset”, possibly with all law enforcement, because this murder had not been solved.

S-2 rebuttal. Johnson argued that the State struck this juror because her husband was serving a prison sentence, but allowed other white jurors in the same situation to be seated. He stated that this type of disparate treatment indicates discriminatory intent, and that even though this- reason is objectively race neutral, it is not subjectively the reason for the strike. The record reflects that Johnson did not acknowledge the other reasons the State gave for this strike.

S-3 Panel 1, juror 9, black female, age 23; S-5 Panel 1, juror 11, black male, age 23; and S-6 Panel 2, juror 1, black female, age 29-all were struck based on age. Haynes testified that she and Peters had an informal policy that all individuals under the age of 30, regardless of race, were excluded. She said that this was based essentially upon observation that young people did not seem to have a stake in the community and were not mature enough, so they routinely excluded them. On questioning by Johnson, she stated that this was not an official, written policy of the District Attorney’s office, but rather just a personal one which she and Peters shared based on many years of prosecuting cases.

S-S, 5, and 6 Rebuttal. Johnson offered no rebuttal to S3, nor to S5, basically conceding that there was no proof of racial discrimination with regard to these two jurors. However, with regard to S-6, he contends that this is a 29-year-old black woman with previous jury experience, and the reason given for her strike is an arbitrary age cut-off which is improper. Johnson also points out that the State had accepted a 31-year-old white male juror with no jury experience who has a prior conviction.

S-4 Panel 1, juror 10, black male, age 51. Haynes testified that this juror had indicated that he had previously been on a civil jury panel where a police officer was a defendant in a case involving a car wreck. The jury awarded a small amount to the plaintiff, after which the judge increased the award. Haynes stated that, when asked if he would “follow the instructions of the court” the juror’s “whole response indicated that he did not like the fact that the judge had added to the verdict” and for that reason might not follow the judge’s instructions in this criminal case. Haynes further testified that “[i]t was the way he responded, it was the tone to his voice, and the way he looked at the judge” that made her think that the juror was not going to follow the judge’s instructions.

S-4 rebuttal. Johnson argued that the case was a simple automobile accident which just happened to involve a police officer, and claimed that the record reflects that this juror was questioned about the civil trial during voir dire, and stated that it would not influence him. Johnson argues that the prosecutor is simply electing not to believe this juror, without explaining why.

¶ 7. Following this testimony on remand, the trial judge addressed each strike, one by one, summarizing each time the prosecutor’s testimony and Johnson’s rebuttal, and finding that the reasons for each strike were race neutral.

¶ 8. The trial court made the following findings on remand:

The Court has reviewed all of the documents filed in this matter and after having a Batson hearing pursuant to the Supreme Court’s mandate and after listening to all of the evidence at the hearing this morning, the Court is prepared to make an on-the-record factual determination on the merits of the reasons cited by the State for its use of its peremptory challenges against some of the potential jurors.
The State used S-l to strike juror one on panel one. The reason given by the State was that that particular juror refused to look at the State, at the prosecutor, when the prosecutor was asking questions and that that particular juror did not pay attention and was totally turned around and was not facing the prosecutor as he was attempting to ask questions. That was the reason given by the State for their use of S-l in striking that juror.
The Court finds that the reason given by the State was race neutral and that strike will be allowed to stand.
The reason given by the State for striking juror six on panel one was that that particular juror, her sister’s child was killed prior to this trial and from Ms. Haynes, one of the prosecutors in this matter, from her observation she found that that particular juror was upset with law enforcement and the fact that the murder had not been resolved. And further Ms. Haynes had made a check mark on her notes that that particular juror wanted to talk in private and the State struck that juror by using S-2 for those reasons.
At this time the Court makes a factual finding that those reasons given by the State for striking that juror were race neutral reasons.
As to the State’s use of S-3 to strike juror nine, panel one, the Defendant has conceded this particular strike by the State. However, the court makes a factual determination that Ms. Haynes testified that it was the policy of her and the other attorney, who was the district attorney at the time, Ed Peters, who tried this case; she stated that it was their policy to exclude individuals under the age of 30. This particular individual was 23 years old and the State used S-3 to strike this individual.
The Court makes a factual finding that that strike was race neutral.
As to juror ten on panel one, the State based its strike upon the fact that it appeared that that particular individual was upset that the judge on a case that he had served as a juror had added certain damages to a verdict and that the State believed that this juror could not follow the court’s instructions even though the Defendant states that that particular question was asked as a whole and this particular juror did not state that he could not follow the law. The state believed in its analysis that based upon this juror’s answers that this juror could not follow the instructions of the court and the State used S-4 to strike this juror.
The Court finds that the reasons relied upon by the State in striking juror ten on panel One were race neutral reasons.
As to the State’s striking of juror eleven on panel one where the State used one of its peremptory strikes to strike that particular juror, the State struck that juror due to the juror’s age, being only 23 years old. And again the Court will take note of the fact that Ms. Haynes testified that it was a policy of hers to strike jurors under the age of 30 and she struck this juror due to age. And again the Defendant has conceded the striking of this particular juror, however, the Court makes a factual finding that this was a race neutral reason given by the State for the striking of that juror.
As to the striking of juror one on panel two, which the State again used as its reasons that this particular juror was under the age of 30 and again the State struck that juror for that reason alone. However, the Defendant states that this juror was 29 years old, close to the age of 30. The Defendant continues to object to the striking of this particular juror, however, the Court makes a factual finding that the reasons relied u0on[upon] by the State were race neutral reasons in that there is case law to support5[sic] that jurors — it is proper and clearly race neutral to strike jurors based upon age and the Court will allow that strike to stand.
I believe this complies with the mandate that was given by the Supreme Court and this will be the ruling and the order of this Court.

¶ 9. Johnson argues that clearly Judge Kidd only applied step two of Batson, addressing only the articulation of race-neutral explanations for each strike, and thus the instructions of this Court on remand to address step three and “make- an on-the-record factual determination of the merits of the reasons cited by the State for its use of peremptory challenges” has not been followed. While we agree that the wording of the trial court’s findings could have been more precise, we nevertheless conclude based on the complete record before us and the content of the trial court’s factual findings are sufficient for us to determine that there has been no purposeful discrimination by the State’s use of peremptory challenges.

1110. In Puckett v. State, 788 So.2d 752 (Miss.2001), this Court was faced with a less than precise finding by a trial court judge after a Baisow-related remand, we held that the judge “did not make an on-the-record, juror-by-juror review of the specific reasons why he found each peremptory challenge to be acceptable, which clearly would have been the better route to take. However, ‘where a trial judge fails to elucidate such a specific explanation for each race neutral reason given, we will not remand the case for that Batson-related purpose alone. This Court is fully capable of balancing the Batson factors in cases such as this one. Continued remand of such cases only wastes the trial court’s limited resources and acts to further delay justice.’ ” Id. at 764. (citing Gary v. State, 760 So.2d 743, 748 (Miss.2000)). In the present case, as in Puckett, no objection was made by defense counsel, nor was any request made for the judge to make a more precise finding (specifically applying step three) at that point.

¶ 11. The essential inquiry is whether Johnson has met the burden of showing that the State has engaged in a pattern of strikes based on race, i.e., whether “the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Home v. State, 825 So.2d 627, 635 (Miss.2002) (citing Randall v. State, 716 So.2d 584, 587 (Miss.1998)).

CONCLUSION

¶ 12. We conclude that Johnson failed to demonstrate that the State’s proffered reasons were pretextual and that he has not carried his burden of proving purposeful discrimination. The trial judge found that the State’s peremptory challenges were not used in a racially discriminatory manner. The record fully supports that finding. In light of the deference accorded the trial court in such findings, the judgment of the Hinds County Circuit Court is affirmed. '

¶ 13. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.