author: bMOORE, J. 11 BROWN, C.J.,

text:
    Dr. Carl C. MUSGROVE, II and Allyson M. Musgrove, Plaintiff-Appellants, v. GLENWOOD REGIONAL MEDICAL CENTER, et al., Defendant-Appellees.
    No. 37,575-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2003.

      Law Office of Gregory S. Erwin, LLC, by Gregory S. Erwin, Baton Rouge, for Appellants, Carl C. Musgrove, II and Allyson M. Musgrove.
    Snellings, Breard, Sartor, Inabnett & Trascher, LLP, by Charles C. Trascher, III, Monroe, for Appellees, Glenwood Regional Medical Center and Raymond L. Ford.
    Hudson, Potts & Bernstein, by Brady D. King, II, Monroe, for Appellees, Emergency Medical Systems Medical Group of Louisiana and Dr. Ralph G. Asbury.
    Before BROWN, MOORE and TRAYLOR (Pro Tempore), JJ.
   bMOORE, J.

Allyson M. Musgrove appeals a judgment sustaining the defendants’ exception of prescription and dismissing her claim for loss of consortium arising from the alleged wrongful discharge of her husband, a physician employed in the emergency room of Glenwood Regional Medical Center (“Glenwood”). The district court found that Ms. Musgrove’s claim, first raised by an amended petition filed nearly three years after the alleged wrongful discharge, did not relate back to her husband’s timely suit for damages. For the reasons expressed, we affirm.

Dr. Carl Musgrove began working in Glenwood’s emergency room in the fall of 1997. He received a copy of “Medical Staff Bylaws” adopted by Glenwood in late November 1998, guaranteeing notice and a “fair hearing plan” prior to any adverse employment action against a physician. He alleged, however, that he was abruptly terminated on December 31, 1998, when Glenwood decided to contract with an emergency room services provider. Dr. Musgrove filed suit against Glenwood on December 15, 1998, seeking damages for lost income, injury to his professional reputation, mental anguish and emotional distress.

In April 2000, Glenwood answered that Dr. Musgrove had not been employed by Glenwood but rather by an emergency room services provider, Emergency Services Medical Group of Louisiana PC (“EMS”). Glenwood also alleged plaintiff fault and various statutory immunities.

Represented by new counsel, Dr. Mus-grove filed an amended petition on December 14, 2001 joining EMS and Glenwood’s emergency room ^director, Dr. Asbury, as defendants, and seeking reinstatement. The amended petition also joined Ms. Mus-grove as a plaintiff. She alleged the same facts and issues as in the original petition but claimed damages for loss of consortium arising out of the defendants’ wrongful actions against her husband.

Glenwood filed the instant exception of prescription in October 2002, urging that Ms. Musgrove’s claim, filed nearly two years after the original petition and three years after the alleged tort, was prescribed. Glenwood alleged it was unaware of Ms. Musgrove’s existence until a deposition on September 11, 2001. EMS and Dr. Asbury later joined this exception. They alleged that Ms. Musgrove could not relate her claim back to her husband’s original petition because the defendants neither knew nor should have known of the existence and involvement of Ms. Musgrove, and that joining her would prejudice their defense.

At a hearing on the exception in December 2002, Ms. Musgrove testified that she was a respiratory therapist running the sleep lab at Glenwood when she married Dr. Musgrove on July 19, 1998, and that everybody there knew they were getting married. She further testified that their baby was born at Glenwood on August 26, 1998, and her pediatrician was a member of Glenwood’s board of directors. Dr. Musgrove testified that he had worked at Glenwood since September or October 1997; he told Dr. Asbury about his upcoming marriage, and arranged for time off for a honeymoon to Las Vegas.

la After taking the case under advisement, the court rendered oral reasons that were not designated as part of the record. The court later signed a judgment sustaining the exception and dismissing Ms. Mus-grove’s claim. Ms. Musgrove has appealed.

Delictual actions are subject to a liberative prescription of one year; this prescription begins to run from the day injury or damage is sustained. La. C.C. art. 3492. The party pleading prescription bears the burden of proof; however, when the cause of action is prescribed on the face of the petition, the plaintiff bears the burden of rebutting the plea of prescription. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502; Howard v. Edmon, 35,715 (La.App. 2 Cir.2/27/02), 811 So.2d 226. Because the alleged tort occurred on December 31, 1998, and the amended petition was filed on December 14, 2001, Ms. Musgrove’s claim is prescribed on its face and she must bear the burden of rebutting prescription.

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original petition. La. C.C.P. art. 1153; Thomas v. Connolly, 31,447 (La.App. 2 Cir. 1/20/99), 726 So.2d 1052. An amendment adding or substituting a plaintiff relates back to a timely filed petition if:

(1) the amended claim arises out of the same conduct, transaction or occurrence set forth in the original petition;
(2) the defendant either knew or should have known of the existence and involvement of the new plaintiff;
|4(3) the new and old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; and
(4) the defendant will not be prejudiced in preparing and conducting his defense.

Giroir v. South La. Med. Center, 475 So.2d 1040, 1044 (La.1985) (emphasis added); Thomas v. Connolly, supra.

Although the district court’s oral reasons for judgment were not made part of the record, the transcript of the hearing on the exception shows that the court was particularly concerned about the second Giroir factor. The court expressed some doubt when Ms. Musgrove’s counsel argued that only knowledge of the existence of the new plaintiff was required to make the petition relate back. R.pp. 167-168.

The record amply shows that the defendants knew or should have known of Ms. Musgrove’s existence. However, the original petition neither mentioned Ms. Musgrove nor asserted that she sustained any losses from the defendants’ conduct. In Giroir, supra, the “facts in the original petition gave defendants notice of, and did not negative, the reasonable possibility that a surviving child of the deceased 55 year old married woman would be entitled to recover as a survivor or wrongful death beneficiary.” 475 So.2d at 1045. In the instant case, there is simply no such notice. Even if the defendants have actual knowledge of other persons involved in the tort, there is no relation back unless the original petition gives reasonable notice that these persons will have a claim. Thomas v. Connolly, supra.

Moreover, the jurisprudence is almost uniform that a spouse’s loss of consortium claim, raised by amended petition after the prescriptive period |Rhas run, will not relate back to an original petition that fails to name the spouse and allege that he or she sustained such damages. Phillips v. Palumbo, 94-1323 (La.App. 4 Cir.12/15/94), 648 So.2d 40; Morton v. Ray, 91-2663 (La.App. 4 Cir. 12/29/92), 611 So.2d 841, writ denied, 93-0683 (La.4/30/93), 618 So.2d 404; Faraldo v. Hanover Ins. Co., 600 So.2d 81 (La.App. 4 Cir.1992); Poirier v. Browning Ferris Indus., 517 So.2d 998 (La.App. 3 Cir.), writ denied, 519 So.2d 105 (1987); Wood v. Hayes, 524 So.2d 241 (La.App. 5 Cir.1988). In Raziano v. Lincoln Property Co., 520 So.2d 1213 (La.App. 5 Cir.1988), the court allowed relation back to an original petition that did not mention the wife’s existence but alleged that the original plaintiff sustained “miscellaneous losses connected with his family life.” In the instant case, however, Dr. Musgrove did not allege any damages associated with his family life. Raziano is therefore not a basis for finding a relation back in the instant case.

In short, the district court was not plainly wrong to find that Ms. Musgrove failed to satisfy the second requirement of Giroir to support a relation back of her amended petition.

Ms. Musgrove finally contends that she made a very strong showing that allowing the amended petition to relate back would not prejudice the defendants in any way. Claiming that the only relevant evidence — the testimony of herself and of Dr. Musgrove — is still readily available, she urges that she satisfied the fourth requirement of Giroir. Because of her failure to satisfy the second requirement, we need not address this contention. We would note, however, that “the filing of a new cause of | (¡action by a new plaintiff long after prescription has run are all factors which weigh in favor of a conclusion that defendants will be prejudiced by allowing the amendment to relate back.” Phillips v. Palumbo, 648 So.2d at 42. One commentator has stated that “allowing the consortium claim after the prescriptive period has run will usually be prejudicial.” William B. Hidalgo, Comment, Relation Back of Consortium Claims: A Search for Facts and Notice, 49 La. L.Rev. 1089,1103 (1989) (emphasis added). Under the circumstances, we will not disturb the findings of the district court.

For the reasons expressed, the judgment sustaining the exception of prescription is affirmed. Costs are assessed to the appellant, Allyson M. Musgrove.

AFFIRMED.

BROWN, C.J., dissents with written reasons.

11 BROWN, C.J.,

dissenting.

The controlling law is set forth in La. C.C.P. art. 1153, which provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

The majority opinion recites a wooden, mechanical test; however, C.C.P. art. 1153, which codified prior jurisprudence, represents a shift away from rigid notions of form to a more functional concept phrased in terms of the underlying “conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings.” Article 1153 requires only that the amending petition be factually related to the conduct, transaction, or occurrence originally alleged.

Where the original complaint was timely but an amendment adding a plaintiff or defendant is filed after the statute of limitation has expired, article 1153 relates the amendment back to the date of the original pleading. This results in a confrontation with statutes of limitation.

The relation back rule favors decisions on the merits and rejects an approach that considers pleading as a game of skill in which one misstep may be decisive. The jurisprudence seeks to balance the policy of facilitating resolution of claims on the merits by liberally permitting amendment of the pleadings, and the policy underlining the statute of limitations — to guarantee essential fairness to defendants by ensuring that they receive notice of the claim within a reasonable time and are not impaired in their defense by evidence lost or diminished in its clarity by the passage of time. See Giroir, supra; Moore’s Federal Practice § 15.15[4-2].

| ¡.The majority speaks of notice but recognizes that the concepts of notice and prejudice are intertwined. The majority opinion then presumes prejudice. This is contrary to the philosophy behind C.C.P. art. 1153. In this case there is no prejudice, that is, a denial of the opportunity to obtain evidence necessary to defend against the consortium claim. As long as the original complaint gives defendant adequate notice, an amendment relating back is proper, even if it exposes defendant to greater damages. Prescription is suspended by the filing of the lawsuit because the legal claim warns defendant to collect and preserve his evidence. Defendant knows that the whole transaction will be sifted through, by amendment if need be.

This court should take an over-all view of the case. The amendment adding plaintiffs wife does not change the legal theory or the facts as set forth in the original and timely filed complaint. It works no injustice on any party and, in particular, does not prejudice defendant. I recognize that how long plaintiff waited to add his wife as a party is a significant factor to consider. In this case, however, when viewed in light of the reality that defendant has not suffered any surprise or additional burden, it is not controlling.

      . Also named as defendant was Glenwood’s president and CEO, Raymond L. Ford, who is aligned with Glenwood in all pleadings.


source: Caselaw Access Project

author: _JjGASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Marqruaze JACKSON, Appellant.
    No. 37,722-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 9, 2003.

      Margaret S. Sollars, Louisiana Appellate Project, for Appellant.
    Jerry Jones, District Attorney, Stephen Sylvester, Assistant District Attorney, for Appellee.
    Before GASKINS, DREW and TRAYLOR (Pro Tempore), JJ.
   _JjGASKINS, J.

The defendant, Marqruaze L. Jackson, appeals as excessive his sentence to nine years at hard labor without benefit of parole, probation, or suspension of sentence following his plea of guilty to first degree robbery. We affirm the conviction and sentence.

FACTS

On December 7, 2001, an employee of a store in Pecanland Mall was entering her vehicle with a bank deposit when she was approached by a male assailant wearing a stocking over his head. The victim thought the man had a gun. He demanded the money and fled to a waiting car which was driven by another individual. The assailant took more than $1,900.

Witnesses gave a description of the getaway car, which was soon found abandoned nearby. Later, the car’s owner was located and admitted participating in the robbery by driving the getaway car. He identified the defendant as the robber and the mastermind of the robbery scheme. The defendant was arrested and charged with armed robbery.

Following his arrest, the defendant admitted that he planned and committed the robbery. However, he denied having a gun; he insisted that he pressed his fist into the victim’s chest to make her think he had a gun. On January 27, 2003, the defendant was allowed to enter a plea of guilty to the reduced charge of first degree robbery, a violation of La. R.S. 14:64.1.

On March 24, 2003, the defendant appeared before the court for sentencing. The court ordered that the defendant serve nine years at hard |2labor, without benefit of parole, probation, or suspension of sentence. He was given credit for time served and properly advised of the time delays for seeking an appeal or post conviction relief.

On March 28, 2003, the defendant filed a motion to reconsider, arguing that his sentence was excessive. The trial court denied the motion and the defendant now appeals his sentence.

DISCUSSION

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641.

The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (La.1988).

Prior to imposing sentence, the trial court reviewed a presentence investigation report and the facts of the case. The court noted that the defendant was 21 years old and had an unremarkable family history. The defendant had no juvenile record and was a first felony offender. He had one arrest for shoplifting on which pretrial diversion was imposed. He had also been arrested for felony theft while attending Southern University, but there was no record of the disposition of the matter. In mitigation, the court noted that the defendant admitted his involvement in the present offense. The court recognized that the defendant was originally charged with armed robbery, which is an extremely serious crime. The court considered that the defendant received the benefit of a plea bargain agreement whereby he was allowed to plead guilty to the reduced charge of first degree robbery. According to the court, the defendant was more culpable in the present offense that his co-defendant, who drove the getaway car. Based upon these factors, the record shows that the trial court considered the criteria set forth in La. C. Cr. P. art. 894.1 in imposing this sentence.

The second prong of the test of whether the sentence imposed is too severe depends on the circumstances of the ease and the background of the defendant. A sentence violates La. Const, art. 1 § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a ^purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in fight of the harm done to society, it shocks the sense of justice. State v. Bradford, supra.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion by the trial court, a reviewing court may not set aside a sentence. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

On this record, we do not find constitutional error. The maximum sentence for first degree robbery is 40 years at hard labor without benefit of parole, probation, or suspension of sentence. The sentence imposed is less than one-fourth of what could have been imposed. The court considered the defendant’s relative youth, his educational record, which included some time in college, his lack of criminal convictions, and his acceptance of responsibility for this offense. Considering the facts and circumstances of this case, the sentence imposed is neither grossly disproportionate to the severity of the offense of conviction nor shocking to our sense of justice. IsThe sentence was tailored to the offender and the offense and was not an abuse of the trial court’s sentencing discretion.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Marqruaze Jackson.

AFFIRMED.


author: COBB, Justice, for the Court.

text:
    Donald Ramiro COUSAR a/k/a “Coop” v. STATE of Mississippi.
    No. 2002-KA-01429-SCT.
    Supreme Court of Mississippi.
    July 17, 2003.
    Rehearing Denied Oct. 16, 2003.

      Phillip Broadhead, Columbia, and Thomas M. Fortner, Jackson, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before McRAE, P.J., WALLER and COBB, JJ.
   COBB, Justice, for the Court.

¶ 1. Donald Ramiro Cousar was tried for sale of cocaine before a Hinds County Circuit Court jury on April 10, 2002. Cou-sar did not testify or call any other witnesses. He was found guilty and sentenced to twenty years in the custody of the Mississippi Department of Corrections. From that conviction and sentence, he appeals to this Court, citing as error the trial court’s failure to fully instruct the jury regarding witness identification testimony, failure to grant a directed verdict, failure to grant his motion for J.N.O.V. or a new trial, and cumulative error. We find no merit to these assignments of error and thus affirm the trial court.

FACTS

¶2. On May 1, 2001, Reserve Officer Sergeant Jim Stegall (Stegall) was working with Officer James McGowan (McGowan) and other members in the Narcotics Division of the Jackson Police Department. They had received information that narcotics were being sold from Baker’s Motel in Jackson, Mississippi. The agents planned an undercover operation in which Stegall, a reserve officer who completed his training at the police academy in 1995, would attempt to purchase drugs at the motel from a suspect known as Coop. McGowan and others would be nearby, out of sight, listening to the conversation, if any should develop, between Stegall and Coop or any other would-be drug salesman. The conversation would be tape recorded via a body wire worn by Stegall and preserved for evidentiary purposes.

¶ 3. Upon arriving at Baker’s Motel, Ste-gall asked to see Coop and was directed to the motel’s interior lot. Coop himself subsequently directed Stegall to a motel room where Stegall purchased eight rocks of cocaine from Coop. The transaction was heard in its entirety by Officer McGowan and other members of the Narcotics Division of the Jackson Police Department. Subsequent investigation by Officer McGowan identified Coop, who did maintenance and security work at the Baker’s Motel, as being Donald Ramiro Cousar. Cousar was not arrested immediately due to an on-going investigation, but one month later he was arrested for the sale of cocaine to Stegall.

¶ 4. At his trial Cousar was identified in court by Officers McGowan and Stegall as being Coop, the seller of the eight rocks of cocaine. Additionally, Officer Stegall testified that the tape recording made of the purchase was an accurate representation of what occurred on May 1, 2001. The tape was played in its entirety for the jury, and Officer Stegall identified not only his own voice but also Coop’s voice on the tape. Cousar did not testify, nor did he call any other witnesses.

ANALYSIS

I. JURY INSTRUCTIONS ON WITNESS IDENTIFICATION.

¶ 5. Before trial, counsel for Cousar submitted jury instruction D9-A, which read as follows:

The Court instructs the jury that whether DONALD RAMIRO COUSAR was the person who committed the crime as alleged and charged in the indictment in this case is a matter for you to decide. The state has the burden of proving beyond a reasonable doubt the identity of the perpetrator of the crime. If you are not convinced from the evidence beyond a reasonable doubt that DONALD RAMIRO COUSAR was the person who committed the crime, you must find him not guilty.
Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later. In appraising the identification testimony of a witness, you should consider the following: a) the opportunity that the witness had to view the defendant when the crime occurred; b) the witness’s attention at the time; c) the accuracy of any prior descriptions of the defendant by the witness; d) the witness’s level of certainty at the initial post crime confrontation, and e) the length of time between the crime and the confrontation.
If after considering all of the above you have a reasonable doubt that DONALD RAMIRO COUSAR is the person who committed the crime as alleged by the State of Mississippi, it is your sworn duty to find him “not guilty.”

¶ 6. The State objected to factor “c” (accuracy of any prior descriptions of the defendant by the witness) stating that it did not apply to the facts of the case because none of its witnesses had given any prior descriptions of the defendant, and it would confuse the jury to leave that provision in the instruction. In response, counsel for Cousar pointed out that Officer McGowan’s report did reflect a physical description of Coop and that it could be established by inference that the description must have come from Officer Stegall. The trial judge, however, recalled that on cross-examination, Stegall had “specifically [been asked] if he provided that description and he said no.” Defense counsel then acknowledged that the description might have come from the informant. The trial court concluded that it was never established who provided a physical description of the person known as Coop as being 5'11” and 200 pounds. Therefore, provision “c” was redacted.

¶7. The trial court further concluded that any inconsistencies or discrepancies in the testimony were covered by instruction C-2, which read as follows:

You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves.
You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence that tends to show whether a witness is worthy of belief. Consider each witness’ objectivity, state of mind, demeanor and manner while on the stand. Consider the witness’ ability to observe the matters as to which he or she has testified, and whether he or she impresses you as having an accurate recollection of these matters. Consider the extent to which it is contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently; and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood. After making your own judgment, you will give the testimony of each witness such credibility, if any, as you may think it deserves.

Redacted instruction D-9A, as well as C-2, were given as jury instructions.

¶ 8. Citing Davis v. State, 568 So.2d 277 (Miss.1990), Cousar argues that the trial court erred in redacting factor “c” from his proposed jury instruction 9-A, because the revised instruction failed “to fully instruct the jury as to all the elements required for proper identification.” His reliance on Davis is misplaced, however. The instruction at issue in Davis originally read as follows:

The Court instructs the Jury that in reaching your verdict you are to consider all of the evidence concerning the entire case and the circumstances surrounding the crime. One of the issues in this case is the identification of George Lee Davis as the perpetrator of the crime. As with each element of the crime charged, the State has the burden of proving identity beyond a reasonable doubt, and before you may convict George Lee Davis you must be satisfied beyond a reasonable doubt of the accuracy of the identification of George Lee Davis. If, after considering all of the evidence concerning the crime and the witness’ identification of George Lee Davis as the person who committed the crime, you are not convinced beyond a reasonable doubt that he is the person who committed the crime, then you must find him not guilty.
Identification testimony is an expression of belief or impression by the witness. You must judge its value and reliability from the totality of the circumstances surrounding the crime and the subsequent identification. In appraising the identification testimony of a -witness, you should consider the following:
1) Did the witness have an adequate opportunity to observe the offender?
2) Did the witness observe the offender with an adequate degree of attention?
3) Did the witness provide an accurate description of the offender after the crime?
k) How certain is the witness of the identification?
5) How much time passed between the crime and the identification?
If, after examining all of the testimony and the evidence, you have a reasonable doubt that George Lee Davis was the person who committed the crime, then you must find George Lee Davis not guilty.

Id. at 280 (emphasis in original).

¶9. Cousar claims that this Court approved the above instruction in Davis, but that is not correct. To the contrary, this Court found that the trial judge’s decision to strike the italicized portion of the above instruction was not erroneous, and affirmed. While it is true that this Court found the five factors in the italicized portion of the instruction “correctly states our case law and could have been granted,” id. (emphasis added), we clearly did not require that all five factors must be found in every case. Id, at 280.

¶ 10. The general rule is that an instruction is not to be given if it is not supported by evidence. Haggerty v. Foster, 888 So.2d 948, 955 (Miss.2002) (citing Dennis v. State, 555 So.2d 679, 688 (Miss.1989); Moffett v. State, 540 So.2d 1313 (Miss.1989); Nicolaou v. State, 534 So.2d 168 (Miss.1988)). Granting instructions not supported by evidence is error. Id. The trial court found that a physical description of Cousar was not provided by Officer Stegall and that the source of the description mentioned in Officer McGowan’s testimony was unclear, and thus concluded that the reference to “prior description of the defendant by the -witness” was not supported by the record and should not be given. Therefore, based upon the record, the trial court did not err in redacting factor “c” from jury instruction 9A under the facts of this case.

¶ 11. Cousar’s reliance upon Warren v. State, 709 So.2d 415, 421 (Miss. 1998), is also misplaced. In Warren, reversible error was found because no identification instruction was given. Id. In the present case, unlike Warren, the record reflects that the jury was given proper instructions for identification testimony, given the facts of the case. Jury instruction C-2 covered not only “inconsistencies” or “contradictions” in the testimony of a single witness or between different witnesses, but also the conflicting testimony about the significance of a description given for someone else. The credibility of a witness is a question of fact for the jury to resolve.

¶ 12. When determining whether reversible error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole to determine whether a jury has been incorrectly instructed. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Haggerty, 838 So.2d at 953 (citing Coleman v. State, 697 So.2d 777, 782 (Miss.1997)). It is not proper to consider excerpts from jury instructions or to evaluate portions of jury instructions out of context, since jury instructions must be considered with the other instructions given. Id. at 954.

¶ 13. This issue is without merit.

II. SUFFICIENCY AND WEIGHT OF THE EVIDENCE.

¶ 14. Challenges to the sufficiency of the evidence (raised by motions for directed verdict and for JNOV) and challenges to the weight of the evidence (raised by motions for a new trial) raise similar issues. This Court has set forth the standards for the challenges to the former, as follows:

Our standards of review for a denial of a judgment notwithstanding the verdict and a directed verdict are also identical. Under this standard, this Court will consider the evidence in the light most favorable to the appellee [the State], giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant [Cousar] that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.

Pruitt v. State, 807 So.2d 1236,1242 (Miss.2002) (citing Coleman v. State, 697 So.2d at 787-88).

¶ 15. This Court’s standard of review for claims that a judgment is against the overwhelming weight of the evidence is as follows:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989), rehearing denied, 563 So.2d 609 (Miss.1990). Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. Benson v. State, 551 So.2d 188, 193 (Miss.1989) (citing McFee v. State, 511 So.2d 130, 133-134 (Miss.1987)). Thus, the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict. Mitchell v. State, 572 So.2d 865, 867 (Miss.1990).

Powell v. State, 806 So.2d 1069, 1081 (Miss.2001) (quoting Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 16. Cousar argues that the trial court erred in denying his motions for a directed verdict or a J.N.O.V. because he should not be found guilty by the uncorroborated testimony of a single witness in a case where there was neither video nor photographs taken of the alleged cocaine purchase. He also argues that there was insufficient evidence for determining the identity of the mysterious Coop. However, this Court has stated that a single witness’s uncorroborated testimony is sufficient to support a conviction:

With this reasoning in mind, the Court holds that the testimony of Conner was legally sufficient to support Doby’s conviction for the sale of cocaine. This Court recognizes the rule that persons may be found guilty on the uncorroborated testimony of a single witness. See Ragland v. State, 408 So.2d 146 (Miss.1981).

Doby v. State, 582 So.2d 584, 591 (Miss.1988).

¶ 17. In determining what should be considered in assessing the validity of identification testimony, this Court has stated as follows: “we consider Vhether or not substantial evidence supports the trial court’s findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted’ and we will disturb the findings of the lower court ‘only where there is an absence of substantial credible evidence supporting it.’ ” McDowell v. State, 807 So.2d 413, 418-19 (Miss.2001) (citing Brooks v. State, 748 So.2d 736, 741 (Miss.1999)).

¶ 18. The record reflects that Cousar was identified in the court room by Officer Stegall as the person from whom he purchased eight rocks of cocaine. Officer Stegall testified to having met Cousar before and to negotiating the purchase with him in the Baker Motel room 46. They were face to face for several minutes initially, then again 5 or 10 minutes later after Cousar returned with the cocaine for a total time in the motel complex of “30 to 45 minutes.” Officer Stegall also watched Cousar through the motel room window while Cousar was going to get the cocaine and returning with it. This took place at approximately 3:30 p.m. on May 1, 2001.

¶ 19. Officer Stegall stated no prior physical descriptions of Cousar, although he did identify Cousar’s voice on the tape recording of the cocaine purchase, as it was played for the jury. He had previously testified that the tape “correctly represented the transaction” between them. The period of time between Officer Ste-gall’s face-to-face encounter with Cousar for the alleged purchase and Cousar’s subsequent arrest and later identification was a month and four days.

¶20. As the record shows, Officer Stegall’s testimony more than adequately meets the requirements for a legally sufficient identification of Cousar. The credibility of witnesses and responsibility for weighing and considering conflicting evidence is for the jury, not the reviewing court. Sturdivant v. State, 745 So.2d 240, 247 (Miss.1999).

¶ 21. This issue is without merit.

III. CUMULATIVE ERROR.

¶22. This Court may reverse a conviction and sentence based on the cumulative effect of errors that independently would not require reversal. Coleman v. State, 697 So.2d at 787. To this end, CouSar reiterates his arguments regarding the identification process and regarding the failure to direct a verdict, grant a JNOV or a new trial in favor of Cousar, all of which have been previously considered and found without merit. Cousar fails, however, to note that Coleman further states that: “Where there was no reversible error in any part, so there is no reversal error to the whole.” Id.

¶23. Cousar also argues that it was error for the trial judge to deny a defense motion for a mistrial after the State made improper statements during closing argument. The assistant District Attorney, while recounting the testimony which had been given and what the State had to prove, said “Additionally, we had to prove that this occurred on May 1 of 2001. You haven’t heard anything to contradict when this happened — .” At this point, an objection was made by Cousar’s counsel, who argued that the statement was a direct comment on the defendant’s right to remain silent and asked for a mistrial or at the least, a cautionary instruction. The trial judge then reminded the jury of his instruction regarding Cousar’s right not to testify, which was previously given them, and re-read the instruction to them. He stated “you must not hold it against the defendant in any way because he did not testify. That’s his constitutional right.” After asking the jurors “are there any of you on the jury that cannot follow that instruction” and “are there any of you that cannot disregard that comment” and seeing no raised hand, the judge denied the motion for a mistrial. Cousar argues that the judge’s protracted cautionary statement, in and of itself, is error, but fails to cite any authority to support his assignment of error. Failure to cite any authority is a procedural bar, therefore this Court is under no obligation to consider this argument. Id.

¶ 24. This issue is without merit.

CONCLUSION

¶ 25. Considering the facts of this case as a whole, Cousar was not denied a fair trial. Each of the assignments of error is without merit. The judgment of the Hinds County Circuit Court is affirmed.

¶ 26. CONVICTION OF SALE OF COCAINE AND SENTENCE TO SERVE A TERM OF (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, DIAZ, EASLEY, CARLSON AND GRAVES, JJ„ CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.

      . The nickname of defendant Donald Ramiro Cousar (hereafter Cousar or Coop).

      . During cross examination, McGowan had been questioned regarding a description found in McGowan's report, as follows:
      Q. There is no description of the suspect made in your report, is there?
      A. Not in my report, other than the a/k/a/ Coop.
      Q. There’s no physical description?
      A. Not in my report.

        Defense counsel then asked and was granted permission to approach McGowan to show him the report, and continued:
      Q. You describe him there as being five-eleven, approximately 200 pounds, black skin color, brown eyes; is that correct?
      A. That's correct.
      Defense counsel did not attempt to clarify this inconsistency, nor did he in any way call attention to any similarity or lack thereof, to the defendant present in the courtroom. He closed his cross examination by asking McGowan if he had seen Cousar since he went to jail, to which McGowan replied "not that I know of."
      When Stegall, the only eyewitness testifying, was asked if the aforementioned physical description was that of Coop, he replied "No. The description you heard on that tape was not of Mr. Coop.”

      . On cross-examination about the day he purchased the cocaine, Officer Stegall was asked:
      Q. You did not know Coop at that time?
      A. I had met him before—
      (at that point the prosecutor objected and there was discussion outside the presence and hearing of the jury, in which the prosecutor stated he wanted to make the court aware that the defense was "about to open the door” to testimony of other crimes.) When the jurors returned, nothing was mentioned to them about the answer given by Stegall, and defense counsel proceeded with different questions.


author: SOUTHWICK, P.J., for the Court.

text:
    Cornelius CANNADY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00647-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Rehearing Denied June 3, 2003.
    Certiorari Denied Oct. 2, 2003.

      Thomas M. Fortner, Jackson, attorney for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   SOUTHWICK, P.J., for the Court.

¶ 1. Cornelius Cannady was convicted by a Hinds County Circuit Court jury of uttering a forgery. On appeal, Cannady submits that weaknesses in the evidence entitled him either to a directed verdict or at least a new trial. He also complains about denied jury instructions. We affirm.

STATEMENT OF FACTS

¶2. On February 28, 2000, Cornelius Cannady deposited a $4,500 check drawn on a Deposit Guaranty account for “Abe’s Auto World” into his business account at First American Bank. Upon receiving his bank statement, Abe Nemati contacted Deposit Guaranty and contested the validity of the check. He and Ingrid Ali, whose alleged signature also appeared on the check, prepared an affidavit of forgery on March 9, 2000. The $4,500 was restored to Nemati’s account.

¶ 3. Mary Ann Bacon-Franklin for First American Bank contacted Cannady to inform him that the check was a forgery and to discuss options for repayment of the resulting overdraft of Cannady’s account. Cannady offered to repay the debt and to obtain information on “Lisa Williams,” the payee of the check who purportedly endorsed it over to Cannady for the purchase of an automobile.

¶ 4. Cannady attempted to secure a loan from First American to cover the overdraft and was denied. With no payment forthcoming, Bacon-Franklin contacted Charlie Foreman, a Hinds County Sheriffs financial crimes investigator assigned to work with the Secret Service. On April 5, Foreman signed an affidavit on behalf of First American charging Cannady with uttering a forgery. Cannady was subsequently tried and convicted. His appeal has been deflected here.

DISCUSSION

1. Sufficiency and weight of the evidence

¶ 5. Cannady first argues that the State’s evidence presented at trial was insufficient to support his conviction. In his view, the lower court should have granted his motions for directed verdict or judgment notwithstanding the verdict. Alternatively, Cannady submits that he should have been granted a new trial. Cannady bases his argument on the alleged failure of the State to demonstrate his guilty knowledge of the uttered forgery. See Miss.Code Ann. § 97-21-59 (Rev.2000).

¶ 6. To consider on appeal an argument that evidence is insufficient to uphold conviction, we examine all of the evidence presented to the fact-finder, including reasonable inferences that arise from other evidence, in the light that is consistent with the verdict of guilt. After evaluating the evidence in this manner, we reverse only if rational and fair-minded jurors could not have found the defendant guilty beyond a reasonable doubt. Brooks v. State, 695 So.2d 593, 594 (Miss.1997).

¶ 7. Cannady relies on a precedent in which an issue was made of the accused’s knowledge of the forged nature of the instrument that was presented for payment. Wiseman v. State, 771 So.2d 977 (Miss.Ct.App.2000). This is what justified conviction in Wiseman:

There was more than enough evidence presented in this case not only for a jury to decide Wiseman had the required amount of knowledge to meet the elements of uttering a forgery, but also for this Court. As stated above, the testimony of the State’s witnesses, Wise-man’s presenting false identification, Wiseman’s possession of the other cheeks for Igen Troy Stewart, and Wise-man’s admission to the police, all taken together, make it very easy to find that he had knowledge of the forged instrument. It is completely reasonable to reach this conclusion; therefore, the State succeeded in proving all of the elements of the crime of uttering a forgery.

Id. at 978.

¶8. Cannady interprets our capsule of the Wiseman record as demonstrative of the types of facts necessary to satisfy the guilty knowledge element for uttering a forgery. He notes that, unlike the Wise-man case, in this record there was no proof of false or misleading identification, no other stolen checks, and no incriminating statements to police. We agree that the State’s case would have been stronger and closer to the Wiseman facts had such evidence been presented.

¶ 9. Cannady presented no case after the State rested. There was no dispute that the cheek presented at First American for deposit was in Cannady’s possession prior to being presented. As such, a rebuttable presumption of his guilty knowledge arose. “It is well settled that either unexplained or unsatisfactorily explained possession of a forged instrument by the defendant is prima facie evidence that he either committed the forgery himself, or procured another to do so.” Rowland v. State, 531 So.2d 627, 630 (Miss.1988). Cannady offered no meaningful support for his explanation of events and therefore did not counter the State’s prima facie case. There was no evidence that the person who allegedly presented the check to Cannady in exchange for an automobile existed; no evidence was offered that any automobile had been sold by Cannady in exchange for this check; there was no bill of sale, no record of a transfer of title, or anything else to explain satisfactorily his possession of the forgery. The occurrence of this alleged automobile sales was the unexplored matter at trial. The State could have tried to prove a negative and had a stronger case. Canna-dy could have tried to prove a positive and had a strong defense. Absent any such evidence, reasonable jurors could find Can-nady guilty.

¶ 10. Cannady alternatively submits that the trial court erred in denying his motion for new trial. This challenges the weight of the evidence. In considering reversal, we cannot overturn the lower court unless to allow the verdict to stand would result in “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). We do not find the verdict yields such injustice, and we decline to overturn the lower court judgment.

2. Jury instructions

¶ 11. Cannady contends that the lower court’s refusal to grant two jury instructions denied him a fair trial. The first argument concerns instruction D-3, which Cannady argues was necessary to present his theory of the case to the jury. The important language from the instruction includes that Cannady’s defense was his lack of knowledge of the forgery: “Knowledge on the part of the Defendant that this check was false and forged at the time the check is presented is an essential element of the crime” and acquittal is required if jurors were not convinced beyond a reasonable doubt of the existence of that knowledge.

¶ 12. This instruction issue renews from a different perspective Cannady’s argument that the State failed to prove his guilty knowledge of the forgery. However, this instruction was not necessary to present the issue to the jury. Jurors were told in other instructions that Cannady must have known the check was forged and that all elements must have been proven beyond a reasonable doubt. “Where other instructions have both fairly and fully informed the jury, reversal is not warranted on appeal for an error in the instruction.” Caston v. State, 823 So.2d 473, 506 (Miss.2002). We find no error in the lower court refusing to grant this instruction.

¶ 13. The second alleged error was the denial of a fairly standard circumstantial evidence instruction. Such an instruction is necessary when the State has been unable to produce an eyewitness or a confession to the gravamen of the offense; it is only then that the evidence will be considered wholly circumstantial in nature and for the circumstantial evidence explanation to be needed. Keys v. State, 478 So.2d 266, 267 (Miss.1985).

¶ 14. Essential elements of the indictment against Cannady were proven by direct evidence, including the forged nature of the check and Cannady’s possession. Evidence of intent and knowledge arose solely from inferences. Almost always, criminal intent can be shown only by circumstances. Taylor v. State, 656 So.2d 104, 108 (Miss.1995). When “intent alone is sought to be proved by circumstantial evidence, no instruction on circumstantial evidence is necessary.” Alexander v. State, 749 So.2d 1031, 1037 (Miss.1999). We find that if knowledge and intent are the only matters to be proven by inference or circumstance, both being largely subjective absent an admission, no circumstantial evidence instruction is needed.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY OF CONVICTION OF UTTERING A FORGERY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THREE YEARS’ POST-RELEASE SUPERVISION AND PAY $4,500 IN RESTITUTION IS HEREBY AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: IRVING, J., for the court.

text:
    Michael E. RILEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01380-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    Rehearing Denied July 15, 2003.
    Certiorari Denied Oct. 2, 2003.

      Darryl A. Hurt, Lucedale, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, J., for the court.

¶ 1. Michael E. Riley appeals from a judgment entered in the Circuit Court of George County pursuant to a manslaughter conviction rendered by a jury of that county. In his appeal, Riley assigns five issues for appellate review. We quote them verbatim:

1. THE COURT ERRED IN NOT PROPERLY ADVISING THE JURY AS TO WHERE THE LINE WAS BETWEEN GROSS NEGLIGENCE AND CULPABLE NEGLIGENCE.
2. THE PHYSICAL EVIDENCE DOES NOT SUPPORT A FINDING BY THE JURY THAT THE DEFENDANT FIRED THE SHOT THAT KILLED FREDERICK DORTCH.
3. THE COURT ERRED IN OVERRULING THE DEFENDANT’S MOTION TO DISMISS THE CASE FOR FAILURE TO GRANT THE DEFENDANT A SPEEDY TRIAL, WHICH MOTION WAS HEARD IN THE ABSENCE OF DEFENSE COUNSEL.
4. THE COURT ERRED IN DENYING THE DEFENDANT THE RIGHT TO A SPEEDY TRIAL.
5. THE VERDICT OF THE JURY, FINDING THE DEFENDANT GUILTY, WAS AGAINST THE OVERWHELMING WEIGHT OF THE CREDITABLE EVIDENCE AND CONTRARY TO THE LAW OF THE STATE OF MISSISSIPPI. THERE WAS SIMPLY NOT SUFFICIENT EVIDENCE TO FIND THE DEFENDANT GUILTY OF CULPABLE NEGLIGENCE.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On December 30, 1997, Michael E. Riley, with a gun at his side, approached Roy Griffin, Jr., and three passengers, Stokes Jackson, Anthony Griffin, and Frederick Dortch, while Griffin and his passengers were sitting in Griffin’s car. Upon reaching the car, Riley opened the door of the driver’s side of Griffin’s car, grabbed Griffin with his left hand, and aimed a loaded, cocked gun at Griffin’s head. Griffin remained seated in his car with the loaded gun pointed at his head. While Riley and Griffin argued, the passengers got out of Griffin’s car and Dortch attempted to defuse the situation between Griffin and Riley. Dortch approached Riley from behind twice and attempted to pull Riley away by grabbing Riley’s arm. During the second attempt, Riley slung Dortch away, and a shot was fired. Riley heard a “pow” sound but never looked around to investigate further. Dortch lay on the ground with a gunshot wound to his head. Riley was unaware of Dortch’s injury until someone in the crowd told him. Griffin and others loaded Dortch’s body into Griffin’s car and drove Dortch to the local hospital. Dortch was later pronounced dead due to the gunshot wound to his head. Riley was arrested and he later revealed to police the hiding place of the gun.

¶ 4. Riley was indicted on February 11, 1998, for Dortch’s murder. He was arraigned on April 2, 1998. The first jury trial was conducted on October 19, 1998, and resulted in a mistrial as the jury was unable to agree upon a verdict. The trial court granted a mistrial and entered a continuance at the request of the State, setting the second trial for February 1, 1999. Subsequently, a number of continuances were granted at the behest of both sides, as well as at the behest of the trial court acting sua sponte. The second trial was eventually held on January 17, 2001.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. Riley raises five issues; however he only discusses and cites authority regarding two issues: (1) his right to a speedy retrial and (2) weight and sufficiency of the evidence. Therefore, this Court will discuss only these two issues. The remaining issues Riley discussed without supporting authority will not be addressed by this Court as they are procedurally barred. Rush v. State, 749 So.2d 1024, 1026(¶ 7) (Miss.1999) (citing Gray v. State, 728 So.2d 36, 71-72 (¶ 180) (Miss.1998)). The appellant has a duty to show by plausible argument with supporting authorities how the lower court erred. Stidham v. State, 750 So.2d 1238, 1243 (¶22) (Miss.1999). Where an assignment of error is not discussed in the briefs, it is considered abandoned and waived. Magee v. State, 542 So.2d 228, 234 (Miss.1989).

1. Right to Speedy Retrial

¶ 6. Allegations of speedy trial violations are examined and determined on a case-by-case basis due to the factual specifics of each action. Brengettcy v. State, 794 So.2d 987, 991(¶ 7) (Miss.2001). A defendant’s right to a speedy trial is secured by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 3, Section 26 of the Mississippi Constitution of 1890. Giles v. State, 650 So.2d 846, 850 (Miss.1995). The Mississippi Code also provides a statutory right to a speedy trial. “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are present to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss.Code Ann. § 99-17-1 (Rev.2000). The statutory right, referred to most often as the 270 day rule attaches at arraignment not arrest and is satisfied when the defendant has been brought to trial. Handley v. State, 574 So.2d 671, 674 (Miss.1990). When a trial results in a mistrial or hung jury, the time of retrial remains within the discretion of the trial court, although a substantial delay may still violate the constitutional right to a speedy trial. Id. Mississippi case law establishes that the 270 day rule does not apply to retrials. Mitchell v. State, 572 So.2d 865, 870 (Miss.1990) (citing Kinzey v. State, 498 So.2d 814, 816 (Miss.1986)).

¶ 7. Because this case involves two trials, an analysis of Riley’s speedy retrial claim would normally require the calculation of three time periods: (1) the time between the arrest and the first trial for constitutional purposes; (2) the time between arraignment and the first trial for 270 day statutory rule purposes; and (3) the time between mistrial and retrial for constitutional purposes. Brengettcy, 794 So.2d at 992(¶8). However, Riley only cites as error the length of time between the date of the order of the mistrial and the date of the second trial. Therefore, this is the only time period which we review.

¶ 8. A chronology of the relevant dates in the case are as follows:

Oct. 19,1998 First trial
Oct. 20,1998 Mistrial ordered
Nov. 17, 1998 Order of continuance — requested by the State because first trial resulted in mistrial as the jury was unable to reach a verdict. Continued to Feb. 1,1999
Jan. 26,2000 Motion to dismiss filed — Riley asserts that: (1) he had his retrial set for Feb. 1, 1999, (2) he will be unable to locate all of his witnesses, (3) he has been deprived of his rights guaranteed in the U.S. Constitution and the Mississippi Constitution
Order of continuance by the court as a result of its review of the motion to dismiss. Case continued to Mar. 23,2000.
Feb. 2, 2000 Order denying motion to dismiss
Mar. 20, 2000 Order of continuance — requested by Riley because he needed a copy of the transcript before he would be ready for trial. Case continued to July 3, 2000, for status and July 31, 2000, for trial.
July 31, 2000 Order continuing trial — requested by the State to have a necessary witness present that was out of the country. Case continued to Aug. 1,2000.
Oct. 23, 2000 Order of continuance — prosecutors for the State, and the trial court attending a CLE Seminar. Case continued to Jan. 16, 2001.
Jan. 16, 2001 Order of continuance — the State could not get a needed witness to trial. Case continued to Jan. 17, 2001.
Jan. 17, 2001 Second trial

¶9. In speedy trial analyses, a four-part balancing test articulated by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is applied to determine if the right to speedy trial has been denied. Smith v. State, 550 So.2d 406, 408 (Miss.1989). The four Barker factors to be considered are: (1) length of delay, (2) reason for delay, (3) the defendant’s assertion of his right to speedy trial, and (4) the prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. 2182. No one of the factors is in itself dispositive, rather a totality of the circumstance is used. Jefferson v. State, 818 So.2d 1099, 1106 (¶ 11) (Miss.2002). “Nor is the balancing process restricted to the Barker factors to the exclusion of any other relevant circumstances.” McGhee v. State, 657 So.2d 799, 802 (Miss.1995).

The length of the delay

¶ 10. The first Barker factor is the length of delay. Mississippi case law establishes that a delay of eight months is presumptively prejudicial. Taylor v. State, 672 So.2d 1246, 1258 (Miss.1996). Riley was first brought to trial on October 18, 1998, mistrial was ordered on October 20, 1998, and a second trial was not commenced until January 17, 2001. The delay between the mistrial and the second trial is 818 days. This delay is presumptively prejudicial and requires an analysis of the remaining Barker factors with regard to Riley’s retrial.

The reason for the delay

¶ 11. The second Barker factor requires determination of the reason for the delay and the party to whom it is attributable. Delays that are attributable to one party count against that party. Brengettcy, 794 So.2d at 993 (¶ 13). The risk of “non-persuasion rests with the prosecution,” and where the record is silent as to the cause of delay, this factor must weigh in favor of the defendant. Id. Any delays in the prosecution attributable to a defendant tolls the running of time. Handley, 574 So.2d at 674. Moreover, those continuances granted to the defendant not only toll the time but should be deducted from the total number of days. Flores v. State, 574 So.2d 1314, 1318 (Miss.1990). Any continuances for “good cause” will toll the running of time, and those dates are not counted against the State. Id.

¶ 12. Riley’s first trial began on October 19,1998, and a mistrial was ordered on October 20 when the jury was unable to reach a verdict. The trial judge ordered a continuance on November 17, 1998, at the request of the State. The second trial was then continued until February 17,1999. A total of 108 days elapsed between the date of the mistrial and the date of the first setting for the retrial. The order entered in November 1998 continuing the case until February 17, 1999, was made at the behest of the State. The order simply says that a mistrial had occurred on October 19, 1998, and a new trial was needed.

¶ 13. As previously noted, on January 26, 2000, Riley filed a motion to dismiss. In his motion, he argued (1) that the date that was set for his retrial was February 1, 1999, (2) that he would be unable to locate all his witnesses and, (3) that he was deprived of his rights guaranteed by the U.S. Constitution and the Mississippi Constitution. On the same day, the court took the motion to dismiss under advisement and issued an order continuing the case until March 23, 2000.

¶ 14. On February 2, 2000, the trial court entered an order denying Riley’s motion to dismiss, finding that the 270 day rule between arraignment and trial was satisfied with the first trial and that the 270 days do not begin anew with the retrial. Moreover, the trial court commented that the court terms in George County are for one week and that there are four court terms per year. It further explained that upon its own investigation into the delay, it found that the January 1999 term was extended “in an effort to dispose of cases, and three other felony cases were tried.” Also during the first through third weeks of February 1999, the trial court was involved in multi-count felony trials with one having a change of venue to Hancock County. The April 1999 term for George County was shortened to one day due to the spring conference for both the trial judges and prosecutors. The trial court remarked that the record was silent as to what occurred in Riley’s case during the July 1999 term. However during the October 1999 term, the trial court was again in a felony trial. Based on these findings, the trial court was of the opinion that good cause existed for the delays in the retrial of Riley’s case. Furthermore, the trial court indicated that it heard no evidence of oppressive or prejudicial conduct against Riley by the State. Therefore, it did not weigh this Barker factor against the State, ultimately concluding that Riley had not been denied his constitutional right to a speedy trial.

¶ 15. “A finding of good cause is a finding of fact, and should be treated on appeal as any other finding of fact; it will be left undisturbed where there is in the record substantial, credible evidence from which it could have been made.” Walton v. State, 678 So.2d 645, 648 (Miss.1996) (citing McNeal v. State, 617 So.2d 999, 1007 (Miss.1993)). We see no reason to disturb this finding by the trial judge.

¶ 16. On March 20, 2000, Riley filed a motion for a copy of the trial transcript of his first trial and requested that the case be continued. The trial court entered an order on the same day continuing the case, for good cause, until July 6 for status and July 31 for trial. A total of 131 days is involved in this delay, and these days must be charged against Riley. On July 31, 2000, the trial judge entered an order continuing the case, for good cause, from July 31 to the October term of court. A total of 82 days is involved in this delay. Even though the court did not set forth the facts constituting the “good cause,” we decline to charge this delay against the State. On October 23, 2000, an order was entered continuing the case until January 16, 2001. The reason for this continuance was that both the trial judge and prosecutors were attending a professional seminar from October 25-27, 2000. On January 16, a one-day order of continuance was granted to allow the State time to get a needed witness. The second trial finally began on January 17.

The assertion of defendant’s right to speedy trial

¶ 17. The third Barker factor to be considered is whether Riley asserted his right to a speedy trial before the retrial. Riley has no duty to bring himself to trial, yet the Mississippi Supreme Court has found that the defendant “gains far more points under this prong of the Barker test where he has demanded a speedy trial.” Brengettcy, 794 So.2d at 994 (¶ 17) (citing Jaco v. State, 574 So.2d 625, 632 (Miss.1990)). A demand for a speedy trial is distinct from a demand for dismissal due to an alleged violation of the right to a speedy trial. Brengettcy, 794 So.2d at 994(¶ 17) (citing Perry v. State, 637 So.2d 871, 875 (Miss.1994)). Nowhere within the record does Riley assert his right to a speedy trial before the retrial; therefore, this Barker factor weighs against him.

The prejudice to the defendant

¶ 18. The final prong of the Barker analysis, prejudice to the defendant, has two aspects: (1) actual prejudice to the accused in defending his case and, (2) interference with the defendant’s liberty. Brengettcy, 794 So.2d at 996 (¶20) (citing Perry, 637 So.2d at 876). Riley has not identified any particular prejudice that he has suffered. When a defendant does not demonstrate that he has been prejudiced by the delay, then an appellate court cannot find prejudice to the defendant. Walton, 678 So.2d at 650. Since Riley has shown neither actual prejudice that he suffered in the defense of his case nor an interference with his liberty, this factor cannot weigh in his favor.

¶ 19. In conclusion, the analysis of the Barker factors does not compel the conclusion that Riley was denied a speedy trial. The trial court found good reason for the delay for the period between February 17, 1999, and January 2000, and we agree with this finding. However, there were a number of continuances occurring after January 2000 which should be charged to both the State and Riley. But more importantly, Riley never asserted his right to a speedy retrial and failed to show any actual prejudice resulting from the delay in being retried. Thus we find no merit to the assertion that he was denied his constitutional right to a speedy retrial.

2. Weight and Sufficiency of the Evidence

¶ 20. Riley contends that the court erred in granting an instruction on manslaughter, although his reasoning is not very clear. He argues that the evidence presented at trial was “insufficient due to the total lack of malice proved in the trial.” He then argues that malice is the single most important element of murder. Surely, he does not mean to assert that the manslaughter instruction should not have been given because the evidence supported only a murder charge. In any event, he continues his argument by contending that fair-minded jurors could not find him guilty of manslaughter.

¶ 21. In challenges to the sufficiency of the evidence, the standard of review requires that the evidence be considered in the light most favorable to the State. McRee v. State, 732 So.2d 246, 249(¶ 9) (Miss.1999). We must review all of the evidence in the light most consistent with the jury’s verdict. Smith v. State, 802 So.2d 82, 85(¶10) (Miss.2001). The prosecution is given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. “If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required.” Mangum v. State, 762 So.2d 337, 341(¶ 11) (Miss.2000).

¶ 22. Riley offered no evidence of his own at trial to rebut the State’s evidence that he did not fire the shot that killed Dortch. In this appeal, Riley merely attempts to attack the credibility of the State’s witnesses; in particular, he asserts that the State’s case was based solely on the testimony of Griffin. Riley explains that Griffin is a person of questionable character and not a disinterested witness; thus, the jury’s verdict is itself questionable. However, Riley neglects to address the plethora of other evidence offered against him. We have already detailed that evidence in the earlier portion of this opinion and will not repeat it here. It is sufficient to say the jury heard it all and resolved the issue against Riley. On this evidence, the jury was well within its right. Matters regarding weight and credibility to be accorded evidence are to be resolved by the jury. McRee, 732 So.2d at 249(¶ 9).

¶23. We find no merit in the issues presented by Riley.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GEORGE COUNTY.

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

      . The record states that Riley was Dortch's uncle through marriage.

      . The record is not clear on the exact date that Riley was arrested. Sheriff George Miller testified at the second trial that he arrested Riley on the night that Dortch was shot. However, the State references the date of arrest as being Feb. 13, 1998, but this date is not found in the record. Further, the State does not cite to any document where this date could be found.


author: IRVING, J., for the Court.

text:
    James E. JEFFERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00929-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2003.
    James E. Jefferson (pro se), attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   IRVING, J., for the Court.

¶ 1. On May 24, 2002, the Circuit Court of Grenada County summarily denied James Earl Jefferson’s petition for post-conviction relief. Jefferson appeals, asserting that his counsel was ineffective because he (1) failed to investigate the facts of the case and timely subpoena a witness for trial, (2) failed to move to quash the fatally defective indictment, (3) and failed to prevail on a motion to suppress evidence that was illegally seized.

¶2. The record before this Court does not suggest that the trial court abused its discretion in denying Jefferson’s petition. Therefore, we affirm the decision of the trial court.

STATEMENT OF THE CASE

¶ 3. Jefferson was indicted as an habitual offender for possession of 3.95 grams of cocaine. His indictment listed four previous felony convictions, one of which was a crime of violence, armed robbery. In the midst of his trial, he pleaded guilty upon the advice of counsel that he would most likely be convicted and sentenced to life imprisonment as an habitual offender. It also appears from the record that this indictment was amended to drop the previous conviction of armed robbery, from the recitation of previous convictions that supported enhanced sentencing as an habitual offender, as Jefferson was sentenced to only sixteen years’ imprisonment under Mississippi Code Annotated Section 99-19-81 (Rev.2000), rather than life imprisonment, under Mississippi Code Annotated Section 99-19-83 (Rev.2000).

¶4. Approximately a year and nine months after being convicted and sentenced, Jefferson filed a petition for post-conviction relief. Essentially, the petition alleged that he was illegally searched, that the indictment was defective and that he was denied effective assistance of counsel because his attorney failed to timely subpoena a witness and move to quash the defective indictment. As we have already noted, the petition was summarily denied by the trial court as lacking merit.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. A trial court’s grant of summary judgment, without an evidentiary hearing on a petition for post-conviction relief, is proper if, from the pleadings and records, it appears the movant is not entitled to relief. Knichel v. State, 824 So.2d 659, 660(¶ 8) (Miss.Ct.App.2002). The decision to deny an evidentiary hearing is a matter within the sound discretion of the trial court. Stovall v. State, 770 So.2d 1019, 1021(¶ 8) (Miss.Ct.App.2000).

¶ 6. The record does not contain a copy of the transcript of either the plea or sentencing hearing. It does, however, contain a copy of Jefferson’s sworn petition to enter a guilty plea. Paragraph twelve of the petition states in part: “I believe that my lawyer has done all that anyone could do to counsel and assist me. I am satisfied with the advice and help he has given me.” The second sentence is typed in bold uppercase letters.

¶ 7. Jefferson’s statements in his petition for post-conviction relief about the inadequacy of his trial counsel’s service contradict the statements regarding his counsel’s service that he made in his sworn petition to enter a guilty plea. “Great weight is given to statements made under oath and in open court during sentencing.” Gable v. State, 748 So.2d 703, 706(¶ 11) (Miss.1999). Moreover, his petition for post-conviction relief was not verified under oath as required by Mississippi Code Annotated section 99-39-9 (Supp.2002).

¶ 8. In asserting a claim of ineffective assistance of counsel, a claimant must satisfy a two prong test: (1) that his counsel’s performance was deficient, and (2) that this supposed deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This test is reviewed under the strong but rebuttable presumption that an attorney is competent and his conduct is reasonable. Leatherwood v. State, 478 So.2d 964, 968 (Miss.1985). The burden to prove both prongs of the test rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The application of the Strickland test is done with deference to counsel’s performance, considering the totality of circumstances to determine whether counsel’s actions were both deficient and prejudicial. Conner v. State, 684 So.2d 608, 610 (Miss.1996).

¶ 9. Jefferson apparently was detained and searched when he attempted to leave a crime scene, and the search revealed that he possessed the cocaine for which he was indicted. Jefferson alleges that his attorney was ineffective for failing to subpoena, for the suppression hearing, a witness named John Beck and for failing to timely subpoena the same witness for trial. He contends that Beck’s testimony would have resulted in the suppression of the evidence of the cocaine. Therefore, he argues that his counsel was ineffective for failing to subpoena Beck in time for the suppression hearing.

¶ 10. The record discloses that a subpoena for Beck issued on August 11, 2000, three days prior to trial and the entry of the guilty plea. However, there is no indication that the subpoena was served or whether in fact Beck was available to testify. Jefferson failed to comply with the requirements of Mississippi Code Annotated section 99—39—9(l)(e) (Rev.2000), since he did not incorporate an affidavit attesting to the testimony that Beck would have given, although he did allege in the petition that he filed in the trial court that Beck would have supported his testimony that he was prevented from leaving the crime scene.

¶ 11. A petition that fails to incorporate an affidavit attesting to facts outside the personal knowledge of the petitioner fails to meet the statutory requirement for post-conviction relief motions. See Miss.Code Ann. § 99-39-9 (Supp.2002). Cf. Shinall v. State, 832 So.2d 1291, 1293(¶ 6) (Miss.Ct.App.2002) (holding that a movant cannot rely on his pleadings and that he is not entitled to an evidentiary hearing unless he demonstrates through affidavits or otherwise that factual evidence exists to prove the allegations of his petition). Even if Jefferson would have included an affidavit from Beck indicating what Beck’s testimony would have been, it would have availed him naught because the admission of the evidence regarding the cocaine was not dependant on whether Jefferson was prevented from leaving a crime scene but on whether the contraband was in plain view or whether there was probable cause for the search which produced it. Moreover, a plea of guilty waives any eviden-tiary issue. Bishop v. State, 812 So.2d 934, 945(1139) (Miss.2002). Therefore, the proof that Jefferson presented to the circuit court was insufficient on its face to sustain a claim that counsel rendered ineffective assistance for allegedly failing to subpoena, and timely subpoena, a witness.

¶ 12. Jefferson also contends that the indictment was fatally flawed because it both failed to list the previous convictions for which enhanced sentencing was justified within the body of the indictment, and the recitation of “against the peace and dignity of the State of Mississippi” was placed above the listing of previous convictions. Jefferson contends his counsel was ineffective for failing to object to the indictment’s defect.

¶ 13. However, the indictment does charge Jefferson as an habitual offender within the body of the indictment, before the recitation of “against the peace and dignity of the State of Mississippi.” Therefore, the indictment was not faulty. See McNeal v. State, 658 So.2d 1345, 1350 (Miss.1995). Thus, Jefferson’s counsel was not deficient in not objecting to the indictment. Additionally, even if the indictment had been faulty because it failed to include the listing of previous convictions within its body, it would have been curable by amendment. See Brandan v. State, 662 So.2d 1051, 1054 (Miss.1995). Moreover, a guilty plea waives all non-jurisdictional defects in the indictment. Reeder v. State, 783 So.2d 711, 720(¶ 36) (Miss.2001). Therefore, even assuming Jefferson’s counsel erred in not raising the issue, no prejudice is shown.

¶ 14. We find that the trial court did not abuse its discretion in denying Jefferson’s petition without an evidentiary hearing, for without a doubt, the petition was frivolous.

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

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