author: LEE, J.,

text:
    Earl STAGG, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01514-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Rehearing Denied Aug. 5, 2003.

      Edmund J. Phillips, Newton, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. In the early morning hours of February 25, 2000, Officers Tim Gandy and Patrick Ervin of the Scott County Sheriffs Department were on patrol when they stopped by a Chevron Service Station in Forest. The officers noticed two teenaged girls inside and asked the girls why they were there at such a late hour. The girls responded they were waiting for their “father,” Earl Stagg. Shortly thereafter, Stagg pulled into the station in a pick-up truck, and Officer Gandy went out to question Stagg about the girls. At some point thereafter, Officer Gandy turned around to find Stagg feverishly trying to stuff a paper towel into one of the tie-down holes on his truck. Officer Gandy noticed a baggy hanging from under the towel which appeared to contain drugs, and upon retrieving the baggy, he also found, in plain view, a loaded pistol sitting on the front seat of the truck. At trial, Stagg claimed Officer Gandy’s entire recollection of events was false, and he argued the officers threatened him and had planted the baggy of contraband.

¶ 2. Stagg was indicted for unlawful possession of methamphetamine while in possession of a firearm. A Scott County jury convicted him on this charge, and he was sentenced to serve ten years in the custody of the Mississippi Department of Corrections, plus ordered to pay a $8,000 fine and pay costs of court. Stagg’s motion for new trial was denied, and he appeals to this Court raising the following issues: (1) Did the court err in refusing to allow the appellant to comment on his willingness to take a polygraph test; (2) in refusing the appellant’s jury instruction D-2; and (3) in denying the appellant’s motion to suppress? We review each of these issues and find no merit; thus, we affirm.

DISCUSSION OF THE ISSUES

I. DID THE COURT ERR IN REFUSING TO ALLOW THE APPELLANT TO COMMENT IN CLOSING ARGUMENTS ON HIS WILLINGNESS TO TAKE A POLYGRAPH TEST?

¶ 3. With his first issue, Stagg argues that the court erred in granting the State’s motion in limine to force Stagg to refrain from mentioning during the closing argument Stagg’s offer to take a polygraph test. On direct examination, Stagg testified that the first time he had seen the baggy was when Officer Gandy showed it to him, and he stated he would take a polygraph to that statement. No objection was made. On cross-examination, after the prosecutor questioned Stagg concerning whether the drugs were his, the prosecutor asked Stagg whether he would be willing to take a polygraph, to which Stagg replied he would. No objection was made. Later when the attorneys were in chambers discussing jury instructions with the judge, the prosecutor asked the judge to not allow the defense to remind the jury in closing arguments that Stagg had offered to take a polygraph test, since such tests were inadmissible. The judge made the following decision:

It is in evidence and I was concerned that at the point it was — it first surfaced that an objection was not made. And then I became even more concerned when the counsel for the defendant asked the question. Then it surfaced or was nearly going to surface for the third time when Mr. Gandy was on rebuttal. And the question was almost asked of him and we went into chambers. And the question was going to be, would you be willing to take a polygraph test? I think that all of it would be highly prejudicial. And so, that not being the law in the State of Mississippi notwithstanding the fact that it is before the jury, which I regret and which I had entertained the idea of giving a jury — a Court’s jury instruction to instruct the jury that is not the law. But have moved away from that. Having said all, the motion in limine is well taken and is sustained. Meaning that the defendant will not be allowed to refer to the polygraph in closing argument.

¶ 4. Stagg cites Conner v. State, 632 So.2d 1239 (Miss.1993), for authority. Conner, however, was overturned by Weatherspoon v. State, 732 So.2d 158 (Miss.1999), which stated:

Upon careful consideration and further review, we find that testimony pertaining to a witness’s offer to take a polygraph, whether it be a witness for the State or the defense, is not admissible at trial....
Our holding today does not mean that every time evidence pertaining to a witness’s offer to take a polygraph test or the mention of the witness’s refusal to take one is inadvertently admitted at trial reversal is automatically required. “When, however, the rule as to admission is violated, the courts have generally looked to the nature of the error and the circumstances attendant to its disclosure.”

Id. at (¶¶ 13, 15).

¶ 5. We review the nature and circumstances surrounding disclosure of Stagg’s profession of willingness to submit to a polygraph and find that the judge acted prudently in declining to allow this improper evidence to further be presented to the jury in closing argument. Although, as the judge noted, objections were in order at the time the willingness to take a polygraph was mentioned, we cannot hold the judge in error for preventing further error from occurring were the evidence to have been presented to the jury once again. Therefore, we cannot find the trial court abused its discretion in granting the State’s motion, and this issue is without merit.

II. DID THE COURT ERR IN REFUSING THE APPELLANT’S JURY INSTRUCTION D-2?

¶ 6. Stagg next argues the trial court erred in refusing to allow a jury instruction, and we look to our standard of review: “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Mitchell v. State, 788 So.2d 853(¶ 6) (Miss.Ct.App.2001). The jury instruction at issue states:

The Court instructs the jury that it is as much the sworn duty of the jurors to acquit the innocent as it is to convict the guilty; and under the law of the State of Mississippi, all persons are presumed innocent until proven guilty so conclusively as to remove reasonable doubt. Furthermore, the Court instructs you, the Jury, that the doctrine of reasonable doubt is just as much the law as any other constitutional or legal principal; and if, in the minds of the jury, such reasonable doubt of the defendant’s guilt exists in the cause arising out of the believable evidence, or from lack of evidence, the Court instructs and directs you to acquit Earl Stagg, Jr.

Stagg claims this instruction is basic constitutional law under the Due Process Clause of the Fourteenth Amendment, and argues he is entitled to this instruction on the presumption of innocence theory and on the reasonable doubt theory.

¶ 7. Concerning Stagg’s claim that his rights were violated since the “presumed innocence” phrase was not put before the jury in his requested instruction, the Mississippi Supreme Court has stated:

In Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 ... (1979), the Court was considering the failure of the trial court to give an instruction on the presumption of innocence which the Supreme Court of Kentucky considered to be constitutionally indispensable in a criminal trial. The United States Supreme Court, however, said in reversing the case, [“] short, the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution.... [S]uch a failure must be evaluated in light of the totality of the circumstances including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors to determine whether the defendant received a constitutionally fair trial.[”]

Nettles v. State, 380 So.2d 246, 247 (Miss.1980). Looking to the totality of the circumstances, including a review of the other instructions in this case as well as the weight of the evidence, we find the judge did not err in refusing the portion of this instruction concerning presumption of innocence as all indications are that Stagg received a fair trial.

¶ 8. The latter portion of the instruction concerns reasonable doubt. The supreme court has said that an instruction concerning the definition of reasonable doubt is not necessary because the phrase defines itself. See Isaacks v. State, 337 So.2d 928, 930 (Miss.1976); Boutwell v. State, 165 Miss. 16, 30, 143 So. 479, 483 (1932). We also note that the doctrine of reasonable doubt was put before the jury in several other instructions. Accordingly, we find no merit to Stagg’s argument on this issue.

III. DID THE COURT ERR IN DENYING THE APPELLANT’S MOTION TO SUPPRESS?

¶ 9. Stagg finally argues that the court erred in denying his motion to suppress the results of the search. Specifically, Stagg takes issue with Officer Gandy’s testimony of what happened on the night in question and argues Officer Gandy did not have probable cause to search his truck.

¶ 10. Stagg argues that the unfounded suspicion of his behavior with two teenage girls did not provide probable cause to suspect him of possessing contraband narcotics as would justify the officer’s subsequent search of the tie down hole in his pickup. Further, Stagg argues that before the officer could do such a search, he should have gotten a warrant or, at least, should have used the drug-sniffing dog which was in his vehicle, since exigent circumstances did not exist. Stagg argues that Officer Gandy’s mere seeing a bag did not rise to the level of probable cause or give cause to search the vehicle or the hole in the back of his truck.

¶ 11. Before the trial, a hearing was conducted on the motion to suppress, at which time Stagg and Officers Ervin and Gandy testified. Officer Gandy testified that upon his initial observation of the two girls, he noticed that the older girl’s eyes were glassy looking as if she were on drugs. Upon seeing Stagg suspiciously pull up to the side of the station, Officer Gandy left the store to talk with Stagg and asked questions to determine whether or not Stagg was, indeed, the girls’ father. Officer Gandy then went back to talk with the girls to compare their answers with Stagg’s answers, and when he went back outside to talk with Stagg, he saw Stagg feverishly attempting to stuff a paper towel into the cargo hole of his truck. As he approached Stagg, Officer Gandy also eyed a little baggy hanging out of the towel, and the baggy appeared to contain contraband. Officer Gandy testified as to his prior experience in narcotics law enforcement and explained that, in his experience, the baggy he saw was the type which he had many times in the past seen to contain contraband.

¶ 12. In this Court’s recent case of Roberson v. State, 754 So.2d 542(¶ 4) (Miss.Ct.App.2000), the defendant drove through a road block, then when the officers approached him they observed Roberson trying to hide a plastic bag in his hand. Roberson then shuffled the bag from one hand to the other eventually hiding the bag in his mouth, and from this the officers developed probable cause to further search Roberson. Id. Upon review, this Court found that the officers had a reasonable suspicion, grounded in specific and articulable facts, that Roberson was committing or about to commit a felony; thus, there was no error. Id. at (¶ 9). Roberson applies to the present case in that, under the circumstances as they occurred in Stagg’s case, we agree that Officer Gan-dy had probable cause; thus, we find no merit to this issue.

¶ 13. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF METHAMPHETAMINE WHILE IN POSSESSION OF A FIREARM AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PLUS PAY A $3,000 FINE, IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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

      . Also, previous cases have noted that ziploc-type bags are commonly used to package drugs. See Sumrall v. State, 758 So.2d 1091(¶ 15) (Miss.Ct.App.2000); Sample v. State, 643 So.2d 524, 529 (Miss. 1994); Mickel v. State, 602 So.2d 1160, 1161 (Miss.1992); Hickman v. State, 592 So.2d 44, 47 (Miss.1991).


source: Caselaw Access Project

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

license: Public Domain

text:
    Shelton Quent BURGE, Appellant, v. Lisa Marie BURGE, Appellee.
    No. 2001-CA-01641-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    Rehearing Denied Aug. 5, 2003.

      Shirlee Marie Fager-Baldwin, Hatties-burg, attorney for appellant.
    Albert Lionel Necaise, Gulfport, attorney for appellee.
   BRIDGES, J.,

for the court.

¶ 1. Shelton and Lisa Marie Burge obtained a judgment of divorce on grounds of irreconcilable differences. The Chancery Court of Pearl River County awarded custody of the Burges’ two minor children to Lisa Marie, established a visitation schedule for Shelton, and ordered Shelton to pay child support and alimony; the court also divided the marital assets. Shelton appealed from the judgment.

STATEMENT OF THE ISSUES

I. DID THE COURT ERR IN AWARDING CHILD SUPPORT TO LISA MARIE BURGE?

II. DID THE COURT ERR IN AWARDING PERIODIC ALIMONY TO LISA MARIE BURGE?

III. DID THE COURT ERR IN THE DISTRIBUTION OF MARITAL ASSETS?

IV. DID THE COURT ERR IN SCHEDULING SHELTON’S VISITATION TIMES?

STANDARD OF REVIEW

¶ 2. This Court reviews the findings of fact by the chancellor for clear error, and will not reverse the findings unless they are manifestly wrong and not supported by substantial credible evidence, or unless the chancellor applied an erroneous legal standard. Vaughn v. Vaughn, 798 So.2d 431, 433(¶ 9) (Miss.2001).

FACTS

¶ 3. Shelton and Lisa Marie Burge were married in 1990, and were finally separated on July 7, 2000. They have two children, a son and a daughter. Shelton filed a complaint for divorce alleging habitual cruel and inhuman treatment and adultery. Lisa Marie filed a cross-complaint, making the same allegations. Shortly thereafter, upon the parties’ motion, the court permitted them to withdraw their contested pleadings, and the parties applied for a consent divorce.

¶ 4. During the marriage, Shelton worked for NOAA as an oceanographer, which caused him to spend roughly one third of the time he was married at sea. Lisa Marie was employed merely sporadically during the marriage. Currently, Shelton is still employed by NOAA, and Lisa Marie is employed as a teacher by the Poplarville School District. The Burges acquired substantial marital property, including a mobile home on twenty acres of land, a 1998 Plymouth Breeze, a 1994 Ford F-150, debt nearing $150,000, Shelton’s pension plan totaling $121,000, some horses, and a time share.

ANALYSIS

I. DID THE COURT ERR IN AWARDING CHILD SUPPORT TO LISA MARIE BURGE?

¶ 5. Shelton argues that the court erred when it departed from the guidelines on child support in Mississippi Code Annotated Section 43-19-101 (Rev.2000). Shelton claims that the court’s findings of fact are insufficient to support a departure from the statutory guidelines on support. The court, using the financial records of the parties, determined that Shelton’s earnings for several years prior to the divorce proceeding exceeded fifty thousand dollars, and in fact were closer to seventy thousand dollars. The court noted the variable nature of Shelton’s gross earnings, and determined that rather than assess him child support costs near the higher end of what his earnings reflected (from 1997 to 2000, Shelton’s annual gross adjusted income for tax purposes surpassed sixty thousand dollars), the court preferred to fix his adjusted gross income at fifty-four thousand dollars annually. For comparison, the court found that Lisa Marie’s adjusted gross income was $24,480.

¶ 6. Examining the court’s stated rationale, we first note that Shelton’s income has shown an undeniable tendency towards increase from fiscal year 1990 until June of fiscal year 2001, which is when the financial evidence before the court below terminates. Based upon the only year for which the court had complete tax records, 2000, Shelton’s income was $73,317. Shelton’s tax liability (both state and federal) was a combined $8,995; applying the appropriate calculations, we find that for fiscal year 2000, Shelton’s adjusted gross income under Mississippi Code Annotated Section 43-19-101 (Rev.2000) was $64,322, significantly higher than the $54,000 that the chancellor fixed it at. Additionally, Shelton’s income for fiscal year 2001 appeared to be neatly consistent with the above numbers, as through June 16, 2001, his gross pay year to date was $36,317.86.

¶ 7. Shelton argues also that in combination with the award of the homestead rent-free and the award of the car to Lisa Marie that his liability for support far exceeds the statutory 20% of his adjusted gross income. To support this proposition, he cites several cases that state that the court may consider occupancy of the marital home and other property as part of support obligations. See Diamond v. Diamond, 403 So.2d 129, 131, 132 (Miss.1981) (superseded by rule as noted in Queen v. Queen, 551 So.2d 197 (Miss.1989)); Crist v. Lawrence, 738 So.2d 267, 269(¶ 7) (Miss.Ct.App.1999). However, these cases leave that decision within the discretion of the chancellor, who stated that the money owed on the homestead was part of the debt that Shelton was required to pay as part of the property distribution. We will not count that indebtedness toward Lisa Marie’s income, as the chancellor clearly designated it as Shelton’s debt.

¶ 8. Considering the numbers, we find that the chancellor did not err in fixing Shelton’s adjusted gross income for purposes of determining child support at $54,000 per year. Contrary to Shelton’s assertion, the court spoke quite clearly about how it arrived at the $54,000 number; the court considered Shelton’s income, and finding that the statutory guidelines would have produced a higher number than the court felt was appropriate, it lessened Shelton’s gross adjusted income to produce a number that reflected the nature of Shelton’s work, conceding that Shelton’s trend to increased income was affected by the number of hours worked.

II. DID THE COURT ERR IN AWARDING PERIODIC ALIMONY TO LISA MARIE BURGE?

¶ 9. Shelton argues that the court erred in awarding periodic alimony of $400 per month to Lisa Marie. Shelton assigns as error the fact that the court did not clearly elucidate what facts it found most compelling in the award of alimony. However, the court stated on the record that it had considered the appropriate factors for an award of alimony, and the record indicates that the chancellor was most concerned with the disparity in income between the two parties.

¶ 10. Additionally, Shelton argues that the court erred when it refused to consider the perfidious nature of Lisa Marie’s attitudes towards the sanctity of marriage in awarding alimony. Shelton cites as support for this position several cases, all of which were divorces prosecuted under claims of adultery or for other faults. Importantly, Shelton and Lisa Marie pursued divorce through a consent decree, although Shelton had initially sought divorce under claims of adultery and habitual cruel and inhumane treatment. Shelton attempted to elicit proof of Lisa Marie’s infidelity at trial; however, the chancellor held such proofs to be improperly brought in a consent proceeding.

¶ 11. In Mississippi, consent proceedings are by definition no-fault proceedings; any evidence showing that the divorce was the fault of either party is to be eschewed. The intent of our no-fault divorce statute is to allow parties to agree to avoid the necessity of publicly putting on proofs of private matters. Perkins v. Perkins, 787 So.2d 1256, 1263(¶ 21) (Miss.2001) citing Grier v. Grier, 616 So.2d 337, 340 (Miss.1993). Shelton’s attempt to attack the chancellor’s decision because the chancellor would not address inappropriate proof regarding fault at trial is unpersuasive; Shelton willingly withdrew his action for divorce based on adultery and habitual cruel and inhuman treatment, for reasons that this Court will not speculate on. Regardless, the fact remains that Shelton, as plaintiff, was fully in control of the nature of his divorce proceedings, and the chancellor can hardly be blamed for enforcing the spirit of consent divorce proceedings.

¶ 12. We find no error in the award of alimony.

III. DID THE COURT ERR IN THE DISTRIBUTION OF MARITAL ASSETS?

¶ 13. Shelton further assigns as error the court’s distribution of the marital assets, and in fact what precisely constituted the marital assets. Shelton argues that the chancellor erred in levying him with all of the marital debt that Shelton knew of, despite the court’s finding that Shelton was himself irresponsible and even willfully blind and permissive of his wife’s intemperate financial excess. Shelton also argues that the chancellor erred in bestowing the entire homestead upon Lisa Marie, while requiring Shelton to pay for the homestead.

¶ 14. Shelton argues that he should not be responsible for the debt Lisa Marie incurred in his absence from the marital home, as he was at sea. However, this ignores the chancellor’s on-the-record findings that Shelton knew of the debts Lisa Marie incurred, that marital funds were used to pay them, and that Shelton did nothing to stop Lisa Marie from amassing further debt. Absent any proof to the contrary, it is impossible for this Court to view the court’s ruling as an abuse of discretion.

IV. DID THE COURT ERR IN SCHEDULING SHELTON’S VISITATION TIMES?

¶ 15. Shelton assigns as error the court’s scheduling of visitation. In its order, the court stated that Shelton was awarded “alternate weekends as minimum visitation, when he is available from the standpoint of his work.” The court also required that visitation be unrestricted and conducted by the agreement of the parties outside of the schedule for visitation set by the court. Shelton argues because his work takes him out to sea for long periods of time, the schedule unfairly discriminated against his seeing his children. However, the court’s order demonstrates concern for Shelton’s work schedule, as it in fact requires that he have unrestricted access to his children, and that additional visitation be available as requested.

¶ 16. Shelton could not accurately forecast his work schedule, and so the court built substantial leeway into its order regarding visitation. Shelton refers this Court to a case wherein one party to a divorce wished to amend the order regarding visitation, and makes his argument relying on this Court’s judgment; however, Shelton ignores the fact that this Court’s decision in that case was unpublished, and in any case overruled. See Haddon v. Haddon, 806 So.2d 1017, 1020(¶ 14) (Miss.2001). Shelton offers no alternative to the court’s schedule, which was designed largely with Shelton’s unpredictable absences in mind. Accordingly, we find that the court did not abuse its discretion, and committed no error in scheduling visitation.

¶ 17. For the foregoing reasons, we affirm the judgment of the court below.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

SOUTHWICK, P.J.,

concurring:

¶ 19. The majority disparages Shelton Burge’s argument that some evidence on fault should have been allowed when the chancellor was evaluating whether to award alimony. Fault in causing the breakup of the parties’ marriage is among the considerations identified by the Supreme Court before making an award of alimony. This Court has previously found that fault is an appropriate alimony consideration even if a divorce is granted based on irreconcilable differences. Still, a mini-trial on fault is to be avoided. I write separately in an effort to promote consistency in our holdings.

¶20. The Supreme Court has listed factors that are to be evaluated when establishing the propriety and amount of alimony. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). Fault in causing the divorce is one of them. Id. We have found evidence on fault to be relevant even if the divorce is not fault-based.

Allowing evidence of fault in an alimony determination is a factor specifically listed in Armstrong. Id. Nothing in that case indicates such a factor may only be considered in a fault-based divorce. In a very recent case involving a divorce based on irreconcilable differences, the supreme court listed all the Armstrong factors, including fault, as criteria a chancellor should use in determining alimony. Selman v. Selman, 722 So.2d 547(¶ 31) (Miss.1998). In a divorce based upon irreconcilable differences, there is not any spousal fault that underlies the legal determination to grant a divorce. Still, one spouse more than the other can as a matter of factual reality be more blameworthy in leading the couple to the point of agreeing to the need for a divorce. A total rejection of all such evidence is too broad.
We hold that limited testimony regarding all the Armstrong factors can be introduced even in an uncontested divorce. However, the chancellor should exercise discretion to restrict the evidence such that the determination of relative fault for purposes of awarding alimony does not become the equivalent of trying a contested divorce. The chancellor erred by not allowing Mrs. Driste to put on any evidence that Mr. Driste committed adultery. The fact that both spouses agree to a divorce does not eliminate the consideration of the fault factor in determining alimony.

Driste v. Driste, 738 So.2d 763, 765-66 (Miss.Ct.App.1998). We have repeated this holding in at least one later appeal. Graham v. Graham, 767 So.2d 277, 280 (Miss.Ct.App.2000). I find no Supreme Court authority that discusses the point or refers to Driste or Graham.

¶ 21. The authority used by the majority is a Supreme Court precedent that declared merely that the statute permitting a divorce based on irreconcilable differences was intended “to provide a less painful alternative to the traditional grounds for divorce which required the parties to publicly put on proof of sensitive private matters.” Grier v. Grier, 616 So.2d 337, 340 (Miss.1993), cited in Perkins v. Perkins, 787 So.2d 1256, 1263 (Miss.2001). I agree that a divorce based on something other than fault creates a less painful procedure, but such an observation does not cancel the need for some brief review of fault if alimony is being sought by one of the parties.

¶ 22. In this case, I find that the chancellor allowed appropriately minimal review of fault. Mrs. Burge responded that she had not always “been faithful” to her husband during the marriage and had two instances of infidelity. The chancellor upheld an objection to a question that would have identified the paramour. She was also asked whether she had ever threatened to kill her husband, and she admitted that she had but insisted that it had only been a joke.

¶ 23. We have not tried in the past, nor need we now, determine how much exploration of the subject of fault must be allowed, but a party is entitled to have the chancellor obtain a sense of why the marriage failed if alimony is being sought. Here, I find that the husband was allowed to inform the chancellor of some of the wife’s contributions towards the problems in the marriage. Had Mrs. Burge desired to reciprocate, which she apparently did not, I find that our prior holdings would have permitted limited exploration of any fault by the husband.

¶ 24. It is true that the chancellor also stated after hearing this evidence that if the parties wanted to explore “the conduct between the parties,” that they should withdraw the motion and stipulation for an irreconcilable differences divorce. So the problem on appeal is not the failure to admit limited evidence of marital fault, but the refusal to consider it. Indeed, the chancellor did not make any findings of fact on the required considerations of alimony. Instead, he stated that the “Supreme Court has blessed us with guidelines and factors” for alimony. Then he said this: “Without delineating my specific consideration, I can assure you [the parties] and the Supreme Court, if they should review this case, that I have read their instructions, and I have acted like the jury acts, consider them and determine the issues before me.”

¶ 25. The Supreme Court to which the chancellor was perhaps unsympathetically referring has identified factors necessary to be considered not only as to alimony but also regarding child custody and equitable distribution of property. The Court has recently begun to hold that failure to consider all factors on the record regarding custody and property distribution is reversible error. Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss.1997) (equitable distribution: “the failure to make findings of fact and conclusions of law [is] manifest error requiring reversal on remand”); Powell v. Ayars, 792 So.2d 240, 244(¶ 8) (Miss.2001) (must make findings on the record as to each child custody factor). However, the Court has held “if the chancellor has failed to delineate all the [alimony] factors on the record, where all the facts are available to us, we are not required to remand the case to the trial court.” Voda v. Voda, 731 So.2d 1152, 1155 (Miss.1999).

¶ 26. We need not decide whether the Supreme Court intends to make firm appellate rules in which most of the decisions by chancellors in domestic cases must have detailed findings on the record but alimony decisions do not. Certainly the better practice is to follow the Supreme Court’s directions in good faith and attempt to set out the reasoning for the various decisions that are reached. The trial and appellate courts both have their institutional roles to play. Each court needs to consider the obligations of the other level court with sensitivity, not hostility.

¶ 27. Though this chancellor refused to set out findings as to alimony, I find under Voda that the basis for his decision is sufficiently supportable on the record as not to require a reversal for that reason. Though the chancellor rejected the relevance of fault — the Supreme Court in time may also disagree with our Driste decision, but it has not yet — I find that the marital infidelity and the possible threats by the wife were not enough to have prevented alimony from being awarded.

¶ 28. I concur in affirming the decision.

McMILLIN, C.J., AND GRIFFIS, J., JOIN THIS SEPARATE WRITTEN OPINION.

IRVING, J.,

concurring in part, dissenting in part:

¶ 29. I agree with the majority’s resolution of all issues except the second issue, the award of alimony. Also, I find myself in total agreement with the concurring opinion by Judge Southwick, except as to its conclusion.

¶ 30. I would reverse and remand on the issue of alimony because I think the chancellor, in deciding the alimony issue, erroneously refused to consider evidence of Lisa Marie’s conduct as a potential factor in the dissolution of the marriage. It is true that the chancellor was made aware of her conduct, but my reading of what the chancellor said leaves me convinced that he did not consider this evidence in deciding the alimony issue. In my opinion, a spouse who engages in un-condoned acts of infidelity, which play a substantial role in the dissolution of the marriage, should not be rewarded by an award of alimony unless he/she was driven to such conduct by acts, equally reprehensible, committed by the other spouse.

LEE, J., JOINS THIS SEPARATE OPINION.


author: IRVING, J.,

text:
    Mark Anthony BOOSE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01907-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.
    Rehearing Denied July 29, 2003.

      Lisa D. Collums, Gulfport, attorney for appellant.
    W. Glenn Watts, Jackson, attorney for appellee.
   IRVING, J.,

for the court.

¶ 1. Mark Anthony Boose was tried and convicted of the transfer of an illegal substance. He was sentenced to an enhanced period of twenty-five years in the custody of the Mississippi Department of Corrections as a habitual offender. Feeling aggrieved, Boose appeals and raises the following issues: (1) whether the trial court was in error when it denied his motion to suppress the testimony of Harold Cross-grove, (2) whether the trial court erred in not granting his motion for a new trial, and (3) whether the evidence was insufficient to support the verdict.

¶ 2. Ascertaining no error, we affirm.

FACTS

¶3. On July 26, 2000, Officer Walter Griffen, a policeman with the Coastal Narcotics Enforcement Task Force, was engaged in undercover narcotics operations on the streets of Gulfport. Griffen’s automobile had a concealed surveillance camera to obtain evidence of illegal drug sales.

¶ 4. While looking around the city’s neighborhoods for drug dealers, Griffen met a female. When he inquired of her as to where he could buy drugs, she got into his vehicle and directed him to the corner of Virginia and Harrison Streets, a place where he could make a purchase. When they pulled up, an individual came to the vehicle, and Griffen spoke with him about buying some “hard” (crack cocaine). After speaking to Griffen, the man left, walked around a trailer, and returned to the officer’s vehicle. Griffen gave the man $25 for the crack cocaine. Griffen then left the area, dropped the unidentified female off, drove to the pre-arranged post-buy location, and turned the crack cocaine over to Officer Michael Burt who had been monitoring the transaction from a short distance away.

¶ 5. On May 1, 2001, a grand jury of the First Judicial District Circuit Court of Harrison County returned a one-count indictment against Boose, charging him with the transfer of a controlled substance. Boose was also indicted as a habitual offender.

¶ 6. On August 15, 2001, Boose was transported to the district attorney’s office in order to view a videotape recording of the alleged sale. Also present during this viewing were Officer Harold Crossgrove, Assistant District Attorney Larry Bourgeois, and Shane Whitfield, an associate of Boose’s counsel, Jim Davis. In the conference room, Boose and his counsel sat across from Officer Crossgrove and Bourgeois, with each party facing the television. While watching footage from Officer Grif-fen’s undercover sale, Boose blurted, “See, it wasn’t me that gave him the dope, she took it out of my hand and handed it to him. She is Macie, my cousin.”

¶ 7. On September 19-20, 2001, the circuit court held a two-day trial where Boose was tried for the sale of cocaine. Prior to trial, a suppression hearing was held. Boose attempted to suppress Crossgrove’s testimony regarding the statement Boose made while reviewing the videotape of the transaction. Boose argued that this statement, as well as any testimony from Crossgrove in regard to it, should have been suppressed because of the lawyer-client privilege or the plea negotiation privilege. The lower court denied Boose’s motion and allowed Crossgrove’s testimony. Thereafter Boose was found guilty of the sale of the cocaine and sentenced to twenty-five years, without parole as a habitual offender, in the custody of the Mississippi Department of Corrections. This appeal emanates from that conviction and sentence.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Denial of Defendant’s Motion to Suppress Testimony of Harold Crossgrove

¶ 8. Boose’s first issue is whether the trial court erred when it denied his motion to suppress the testimony of Harold Cross-grove about the incriminating statement that Boose made at the district attorney’s office.

¶ 9. The standard of review for eviden-tiary matters has been stated by our supreme court as follows:

The relevancy and admissibility of evidence are left, in large part, to the discretion of the trial court. However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence. Reversal is proper only where such discretion has been abused and a substantial right of a party has been affected.

Mitchell v. State, 792 So.2d 192, 217(¶ 95) (Miss.2001) (citing Johnston v. State, 567 So.2d 237, 238 (Miss.1990)).

¶ 10. Boose urges this Court to find that the presence of Officer Crossgrove and Larry Bourgeois was necessary in order for him to view the videotape with his attorney. He explains that the arranged meeting to view the videotape was done to further his counsel’s ability to render professional legal services to him. Therefore, due to the necessity of Crossgrove’s and Bourgeois’ presence at this viewing, Boose argues that any statements made by him are protected by the attorney-client privilege found in Rule 502 of the Mississippi Rules of Evidence.

¶ 11. We commend Boose’s counsel for a unique and novel argument. However, it is one that is utterly without merit. The trial judge did not err in allowing the clearly spontaneous, unprovoked, and unsolicited comment from Boose.

2. Denial of Directed Verdict, JNOV, and New Trial

¶ 12. The next issues that Boose raises concern the sufficiency of the evidence and the denial of his motions for a directed verdict, JNOV and new trial. Although a challenge to the sufficiency of the evidence and to the denial of a new trial implicates different standards of review, we address these issues together because of the way they were presented in Boose’s brief.

¶ 13. As distinguished from a motion for directed verdict or a JNOV, a motion for a new trial asks to vacate the judgment on grounds related to the weight, not sufficiency, of the evidence. Smith v. State, 802 So.2d 82, 85-86(¶ 11) (Miss.2001). Challenges to a denial of a motion for a directed verdict and to a denial of a motion for a JNOV are reviewed under the same standard. We first review the appropriateness of the denial of Boose’s motion for a directed verdict and for a JNOV.

¶ 14. The standard of review of a claim that the evidence is insufficient to support the verdict requires the reviewing court to accept all evidence tending to support the verdict, including the inferences derived therefrom, as true. Deloach v. State, 811 So.2d 454, 456(¶ 6) (Miss.Ct.App.2001). All evidence favoring the defendant must be disregarded. Id. “We may reverse only where with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fairminded jurors could only find the accused not guilty.” Id. (citing Harveston v. State, 493 So.2d 365, 370 (Miss.1986)).

¶ 15. Boose argues that the State presented no credible evidence from which a reasonable and fair-minded juror could find beyond a reasonable doubt that he committed the transfer of the cocaine. He asserts that Officers Griffen and Burt could not have made an adequate identification of the person in the videotape because of the brevity of the sale transaction. Boose also challenges Officer Griffen’s in-court identification because Griffen’s report failed to indicate any markings on the person from whom the purchase was made. Boose has a dollar sign on his right cheek. Boose further explains that Officer Griffen indicated in Griffen’s initial report that the suspect had a chipped or missing tooth while Boose does not. In Boose’s view, these facts compel the conclusion that the trial court abused its discretion when it failed to grant his motion for a directed verdict/JNOV.

¶ 16. Boose discusses some of the evidence, but that evidence is by no means the only evidence offered. Quite to the contrary, substantial credible evidence was offered by the State. This evidence not only supports the verdict but, when viewed by fair-minded persons, commands the verdict.

¶ 17. The State presented the testimony of Officer Griffen, the officer directly involved in the purchase, Officer Michael Burt, the case agent who monitored the purchase, the video of the alleged transfer, and the testimony of Deputy Crossgrove. Officer Griffen gave detailed testimony about the transaction. He testified that he gave the dealer $25 and received what appeared to be cocaine. Agent Burt corroborated Griffen’s testimony as to the time, place, and manner in which the cocaine sale took place. He also verified that the cocaine, which was marked as an exhibit by the lower court, was the same received by Griffen. Timothy Gross, with the Mississippi Crime Laboratory, testified that the substance that was sold to Officer Grif-fen contained crack cocaine. The videotape of the transaction was played for the jurors to observe. Griffen testified that the videotape was an accurate depiction, without alteration, of the drug transaction. Griffen also identified a cash symbol on the cheek of the suspect, shown in the videotape. Finally, Cross-grove testified that while observing the videotape at the district attorney’s office, Boose exclaimed, “See, it wasn’t me that gave him the dope, she took it out of my hand and handed it to him. She is Made, my cousin.”

¶ 18. Moreover, at trial, Officer Griffen made an identification of Boose as the dealer from whom he had obtained the cocaine:

Q: Okay. And just to be certain, could you please point out the man who you bought cocaine from on July 26 of 2000?
A: That man sitting there at the [defense] table.

This assignment of error is baseless.

¶ 19. Boose’s final argument is that the verdict is against the overwhelming weight of the evidence; therefore, the trial court should have granted him a new trial.

¶ 20. Our standard of review for claims that a conviction is against the overwhelming weight of the evidence or that the trial court erred in not granting a motion for a new trial has been stated as follows:

[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. A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.

Todd v. State, 806 So.2d 1086, 1090(¶ 11) (Miss.2001).

¶ 21. Considering the evidence previously described in this opinion, we are not persuaded that the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Consequently, we affirm the trial judge’s denial of Boose’s motion for a new trial.

¶ 22. THE JUDGEMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF THE TRANSFER OF A CONTROLLED SUBSTANCE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER WITHOUT HOPE OF PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: BRIDGES, J.,

text:
    Willie B. SOUTHERN, Jr., Appellant, v. Officer Gerald JONES, individually and in his Capacity as Police Officer, City of Jackson, Police Department and City of Jackson, Mississippi, Appellees.
    No. 2002-CP-01027-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      Willie B. Southern, Jr., Appellant, pro se.
    Rodney Ramon Dixon, Hilton Ray Miller, Terry Wallace, Jackson, for appellee.
    Before KING, P.J., BRIDGES, and IRVING, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Willie Southern filed a complaint, on October 18, 2001, seeking relief against the City of Jackson and Officer Gerald Jones. The City of Jackson, or affectionately referred to by Southern as “Evil,” filed a motion to dismiss for want of jurisdiction under M.R.C.P. 12(b)(6) claiming Southern failed to file suit within the one year limitation period provided by the Tort Claims Act as set out in Miss.Code Ann. § 11-46-11(3) (Rev.2002). The trial judge dismissed the case with prejudice on May 9, 2002.

STATEMENT OF THE ISSUE

“WHETHER THE WILLIE SOUTHERN MAY PROCEED WITH A CLAIM FOR MAKE-WHOLE RELIEF ON BEHALF OF WILLIE SOUTHERN FOR TITLE FOURTEEN VIOLATION EVEN THOUGH MR. SOUTHERN WAS NOT VIOLATION CONSTITUTIONAL LAW ON FALSE CHARGES AND FRAUDULENT CONCEALMENT OF FILE.” [SIC]

FACTS

¶ 2. It should first be noted that the Appellees in this case failed to file any briefs in contention for their side. Saying that, Southern claims that while a guest at the Best Suites Hotel, members of the Jackson Police Department secured the facility, surrounded his room, and demanded, without justification, that he release his children. Further, Southern contends that as a direct result of the overwhelming police presence, Southern was falsely imprisoned and trapped in his room against his will. He claims that he was subjected to an unreasonable search and seizure of his person and property by members of the Jackson Police Department and the overly zealous actions of the police caused him to suffer severe emotional distress.

ANALYSIS

“WHETHER THE WILLIE SOUTHERN MAY PROCEED WITH A CLAIM FOR MAKE WHOLE RELIEF ON BEHALF OF WILLIE SOUTHERN FOR TITLE FOURTEEN VIOLATION EVEN THOUGH MR. SOUTHERN WAS NOT VIOLATION CONSTITUTIONAL LAW ON FALSE CHARGES AND FRAUDULENT CONCEALMENT OF FILE.” [SIC]

¶ 3. Mississippi Code Annotated § 11— 46-11(3) states “all actions brought under the provisions of this chapter shall be commenced within one year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after.” The events described in the complaint are alleged to have occurred on March 28, 1999. Southern’s complaint in this case was not filed until October 18, 2001. On or about December 7, 2001, an amendment to the complaint was filed, but was never served on the defendants. Even giving Southern the benefit of using the original filing date, October 18, 2001, this date is still approximately two years and seven months after the alleged event. As one can clearly see, the complaint was filed well after the one year statutory limit and any appropriate tolling provisions set out in Miss.Code Ann. § 11-46-11(3). Therefore, we find this issue is without merit.

¶ 4. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MYERS, J.,

text:
    Lester M. HOPSON, Jr., Appellant, v. Sandra Denise Childs HOPSON, Appellee.
    No. 2002-CA-00687-COA.
    Court of Appeals of Mississippi.
    July 22, 2003.

      John R. White, attorney for appellant.
    John A. Ferrell, Booneville, attorney for appellee.
    Before KING, P.J., BRIDGES, IRVING and MYERS, JJ.
   MYERS, J.,

for the Court:

¶ 1. Lester Hopson appeals the chancellor’s ruling which altered the property settlement agreement with his ex-wife, Sandra Hopson, and increased the amount of child support Lester was responsible for paying. Lester appeals asserting:

1. THE CHANCELLOR ERRED IN MODIFYING THE PROPERTY SETTLEMENT AND THE CHILD SUPPORT

STATEMENT OF FACTS

¶2. Lester and Sandra Hopson were granted a divorce on March 13, 2000. The two executed a property settlement agreement, which was incorporated into the divorce decree. Pursuant to the agreement, Sandra was to pay off her student loans. She had taken out loans with a balance of approximately $1,500 prior to her marriage and taken out loans of approximately $30,000 during the marriage. She received her van plus $1,500 from the sale of stock. Lester received, pursuant to the agreement, the house, furniture, livestock, two trucks, and a retirement account. The reason for the seemingly inequitable division is because the couple had no equity in the property, Lester agreed to pay the $183,570 in debt owed on the property, including the debt owed on the van Sandra was to receive.

¶ 3. Lester and Sandra had a child who was five years old at the time of divorce. Sandra was awarded custody of the child. Lester was to pay each month the greater of 10% of his adjusted gross income or $400 as child support.

¶ 4. The divorce was granted on March 13, 2000. On April 2, 2001, Sandra filed a motion which asked for a modification of the decree. Sandra sought to change the property settlement concerning the student loans. Sandra claimed that she understood that she was to be responsible for only the student loans she obtained prior to marriage, not the ones she obtained during the marriage. Sandra alleged that she discovered the student loans taken out by her during marriage were not being paid when she attempted to secure another loan in late fall of 2000. She argued that the student loans taken out by her during the marriage were commingled with family funds and did not benefit her alone. She argued that it was impossible for her to pay back the student loan with the salary she earned. Sandra also claimed that her attorney actually was paid by Lester and worked closely with Lester and that resulted in her not receiving proper legal advice. Lester argued that the property settlement was specifically clear that Sandra was to be responsible for the entire student loan amount.

¶ 5. Sandra also claimed that Lester’s income had increased from approximately $48,000 to $72,000 and that the child had greater expenses thus necessitating an increase in child support.

¶ 6. The chancellor ruled in favor of Sandra on February 4, 2002. The property settlement agreement was modified resulting in Lester having to pay half of the remaining student loans. The chancellor also increased the amount of child support Lester was to pay. Lester was to now pay each month fourteen percent of his adjusted gross income. Lester sought a reconsideration of the decision. It was denied on April 1, 2002. Lester then filed his timely appeal.

LEGAL ANALYSIS

Student Loans

¶ 7. A true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character. East v. East, 493 So.2d 927, 932 (Miss.1986); In re Estate of Kennington, 204 So.2d 444, 449 (Miss.1967). Agreements created in the process of the termination of the marriage by divorce are contracts, “made by the parties, upon consideration acceptable to each of them, and the law will enforce them.” McManus v. Howard, 569 So.2d 1213, 1215 (Miss.1990). M.R.C.P. 60(b) reads:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from the appellate court unless the record has been transmitted to the appellate court and the action remains pending therein. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram nobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action and not otherwise.

¶ 8. In Mississippi, we still have courts of equity. Our chancellors are granted broad equitable powers. Lester argues that Sandra’s motion was not made within a reasonable time after the divorce. Although Lester argues that it was two years from the date of divorce to the date of the chancellors modification, it was actually only a little over a year from the time of the divorce to the date of Sandra filing the request. The delay in the ruling on the motion was due to continuances granted for Lester’s benefit.

¶ 9. The settlement agreement specifically stated that Sandra was responsible for her student loans. Sandra agreed to the settlement. The settlement was not vague nor ambiguous. Sandra attempted to show that her salary had not increased and that she would be unable to repay the amount of the loans. She also argued that the student loans were for the benefit of the family, not her alone. Sandra did obtain a master’s degree in education. The chancellor abused her discretion in modifying the settlement agreement. A mistaken interpretation on the part of Sandra is not a justifiable reason to modify the decree. The decision to modify the property settlement is reversed and rendered.

Child Support

¶ 10. In order to justify the modification of the child support provisions of a divorce decree, the moving party must show that there has been a material or substantial change in the circumstances of one of the parties. Shipley v. Ferguson, 638 So.2d 1295, 1298 (Miss.1994). The chancellor is afforded broad discretion in the modification of child support, and we will reverse “only when he is manifestly wrong in his finding of facts or has abused his discretion.” Bruce v. Bruce, 687 So.2d 1199, 1202 (Miss.1996).

¶ 11. As for the child support, Lester’s salary increased from $48,000 to $72,000. Sandra presented evidence to the chancellor that the needs of the child had increased. Sandra also showed that Lester was paying an amount less than the statutory amount. Lester argues that there was no change in circumstances.

¶ 12. Lester’s only other argument is that the chancellor failed to consider the fact that Lester now has another child by his new wife. Mississippi Code Annotated § 43 — 19—101(3)(d) is not an absolute requirement, but allows the chancellor the discretion to consider the presence of other children in determining child support.

CONCLUSION

¶ 13. The chancellor was correct in modifying the child support. We find no abuse of discretion in that ruling and thus affirm. We do reverse and render the decision to modify the property settlement agreement. The agreement was not vague, nor ambiguous. Sandra does not show any justifiable reason to modify the agreement.

¶ 14. THE JUDGMENT OF THE AL-CORN COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. COSTS OF THIS APPEAL ARE TO BE DIVIDED EQUALLY.

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


author: McMILLIN, C.J., KING, P.J.,

text:
    Herbert Joe WHITE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00419-COA.
    Court of Appeals of Mississippi.
    July 29, 2003.

      Walter Kevin Colbert, Natchez, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   McMILLIN, C.J.,

for the Court.

¶ 1. Herbert Joe White was accused by a Franklin County Circuit Court grand jury of attempting to aid his friend, Johnny Patrick Thorpe, to escape arrest after Thorpe purportedly committed the felonies of attempted larceny and aggravated assault. The specific offense for which White was charged, according to the indictment, was attempted accessory after the fact. White was convicted. Immediately after his conviction, White moved to set the conviction aside on the ground that the indictment returned against him was void because it failed to charge an essential element of the crime. The trial court conceded that the indictment was defective on its face for the reason advanced by White, but determined that White had waived any objection to the form of the indictment by proceeding to trial with knowledge of the defect. White has appealed to this Court, raising as his sole issue the contention that the trial court erred in refusing to vacate his conviction based on a void indictment. We find White’s appeal to have merit and, for that reason, reverse the conviction and remand this proceeding to the trial court for such further proceedings as may be found appropriate under the terms of our decision.

I.

Facts

¶ 2. A brief overview of the alleged facts of the ease appears enough for an understanding of the issue before the Court. As is common, there were a number of points as to which the evidence was in sharp conflict and what follows is, in essence, a summary of the State’s theory of the case.

¶ 3. Thorpe, who was a resident of Natchez, was detained for questioning in neighboring Franklin County in regard to a suspected theft of anhydrous ammonia, an agricultural chemical also useful in the manufacture of crystal methamphetamine. At some point, when the investigating officer sought to physically restrain Thorpe, he stabbed the officer in the hand with a screwdriver and ran from the scene. Despite an intense manhunt, Thorpe managed to avoid capture for a number of hours. During that time, he broke into an unoccupied house and used the telephone to call his wife in Natchez and inform her of his predicament. In that conversation, he expressed fear of harsh punishment because of his prior criminal record and told his wife he was unwilling to voluntarily surrender. Instead, he asked his wife to tell his friend, White, to come from Natchez to a designated location at an overpass in Franklin County, where Thorpe would be waiting, the intention being to spirit Thorpe away from the immediate clutches of the ongoing manhunt. Thorpe’s wife had a conversation to that effect with White at around 11:30 at night. White was reluctant to undertake the mission, but ultimately, in the ensuing early morning hours, drove from his home to the designated location. However, as he approached the designated overpass, White observed that there were a number of law enforcement officials in the immediate vicinity. Including among them was Sonny Smith, a City of Natchez police officer assisting in the manhunt. Smith was acquainted with both White and Thorpe and was aware of their close friendship. According to Officer Smith, when White saw him, White averted his face and immediately sped up and departed the scene.

II.

Discussion

¶ 4. Apparently because White’s efforts in simply driving from Adams County to the designated rendezvous point in Franklin County did nothing to actually aid or assist Thorpe in his efforts to avoid capture, the State charged White (along with Thorpe’s wife, Tracy Lynn Thorpe), not as an accessory after the fact, but for the attempt to become an accessory after the fact. The relevant charging portion of the indictment contained the following language:

[T]hat Tracy Lynn Thorpe and Herbert Joe White ... acting in concert, each with the other, did wilfully, unlawfully, and feloniously attempt to aid or assist, conceal, receive or relieve one Johnny Patrick Thorpe, who had committed the crime of aggravated assault, burglary and theft of anhydrous ammonia, and Tracy Lynn Thorpe and Herbert Joe White, knowing that Johnny Patrick Thorpe had committed those felony crimes, and after the commission of those felonies, with the felonious intent of them, Tracy Lynn Thorpe and Herbert Joe White, to enable Johnny Patrick Thorpe to escape or to avoid arrest, trial, conviction, or punishment....

¶ 5. White was tried separately from Tracy Lynn Thorpe and, as we have observed, was found guilty. Almost immediately after the verdict was returned, White moved to vacate his conviction on the ground that the indictment was fatally defective because it failed to charge with any measure of certainty the specific overt act in furtherance of the attempted crime that is a critical element of a charge of attempt. There can be no doubt that some overt act aimed at the accomplishment of the intended crime is an essential element of a charge of attempt. The statute establishing attempt as a crime provides that “[ejvery person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same ...” may be punished appropriately. Miss. Code Ann. § 97-1-7 (Rev.2000) (emphasis added). The Mississippi Supreme Court has firmly established that, in order to indict for an attempt, the indictment must set out with certainty the specific conduct that the State asserts to be the “overt act” undertaken by the defendant. Maxie v. State, 380 So.2d 277, 278 (Miss.1976). The evident purpose for this rule is the underlying general principle that one accused of a crime is entitled to know the specific nature of the allegations against him so that he can prepare his defense, rather than be left guessing as to what specific activity the State contends is a violation of the criminal statute. However, even though the necessity for a plain statement of the facts relied upon by the State has its foundation in the concept of adequate notice to the defendant of the nature of the allegations against him, the State may not avoid the requirement by showing that the defendant had actual notice from some other source of the specific nature of the State’s allegations. Hawthorne v. State, 751 So.2d 1090, 1095(¶ 24) (Miss.Ct.App.1999). There is no acceptable substitute or cure in the law for an indictment that omits the essential charging information.

¶ 6. The fact that this indictment does not contain “a plain, concise and definite written statement of the essential facts constituting the offense charged” because of its failure to set out with any certainty White’s “overt act” intended to aid Thorpe’s escape renders the indictment void. Maxie, 330 So.2d at 278. Because of the nature of the defect in the indictment, it cannot be the subject of waiver by failure to raise the issue prior to trial. Id. Nevertheless, the trial court in this instance, taking note of the promptness with which the issue was raised after the guilty verdict was returned, was convinced that defense counsel and the defendant were well aware of the defect in the indictment prior to trial but had elected to proceed without raising the issue in the hope of obtaining an acquittal, while being secure in the knowledge that a guilty verdict could not be permitted to stand; in effect, giving White a no-risk opportunity to avoid punishment. In that circumstance, the court invoked considerations of waiver or estoppel to deny White’s motion to set aside his guilty verdict.

¶ 7. While this Court certainly has some appreciation for the trial court’s evident frustration with the tactics employed by the defense, we are nevertheless of the view that the court’s decision cannot find support in existing precedent and is, in fact, directly contrary to that precedent. The trial court’s theory would require a defendant, in order to assert the defective indictment issue after conviction, to demonstrate that defense counsel only discovered the defect after the trial had concluded. Such a proposition finds no support in case law. Failure to demur or otherwise object to the validity of the indictment on the ground appearing in this case does not constitute a waiver or invoke considerations of estoppel to raise the issue post-conviction without distinction as to whether the failure to raise the issue at an earlier stage was purposeful or based on lack of knowledge of the applicable law. See Durr v. State, 446 So.2d 1016, 1017 (Miss.1984); Hawthorne, 751 So.2d at 1095(¶ 22). There is no authority for the proposition that the court may, when the issue is raised belatedly, inquire into the circumstances of why it was not raised at an earlier stage and base its ruling on the actual knowledge or motivation of the defendant or his attorney. The evident solution to the problems presented by this case lies, not in an inquiry into the extent of defense counsel’s understanding of the applicable case law at any particular point in time in the trial process, but rather in the prosecution’s ability to follow the straightforward dictates of Uniform Circuit and County Court Rule 7.06 to draft an indictment that contains a plain statement of the essential facts constituting the offense charged.

¶ 8. From a review of the record, including the instructions given to the jury, it is apparent that the State considered White’s act of driving from Natchez to the appointed rendezvous spot in Franklin County as an overt act in furtherance of White’s intentions to aid Thorpe in evading the ongoing manhunt. The State further appeared to contend that White was thwarted in that purpose when he arrived and saw the extent of the effort to capture Thorpe, including coming face-to-face with a law enforcement officer who was aware of the close relationship between White and Thorpe. We offer two observations regarding this aspect of the case.

¶ 9. First, the missing critical elements from an indictment may not be supplied by proof presented at trial or by jury instructions that adequately set out the essentials of the charged crime. 4 WAYNE R. LA-FAVE, JEROLD H. ISRAEL, & NANCY J. KING, CRIMINAL PROCEDURE § 19.3(a) (2001).

¶ 10. Secondly, we note that, in a case charging an attempted crime, there are issues involving whether (a) the alleged overt act was one in direct furtherance of the crime or was a mere act of preparation subsequently abandoned before the scheme advanced sufficiently to warrant criminal sanction; and (b) whether the effort to commit the crime was voluntarily abandoned or whether the defendant remained intent on completing the crime and failed only because he was thwarted by circumstances beyond his control. See, generally, Bucklew v. State, 206 So.2d 200 (Miss.1968). Because we reverse and remand, there exists the possibility, at least, that White will be re-indicted and re-tried. In the circumstances of this case, the issue of whether White’s act of driving from Natchez to the designated Franklin County pickup point was an overt act in furtherance of a definitely-formed intention to aid Thorpe in escaping arrest or was a more remote act of preparation subsequently abandoned is not before us, and the fact that we are remanding should not be interpreted as an indication that we have decided that issue. Rather, that necessarily remains an unresolved issue of law that can only be determined at some future point based on the allegations of a properly drawn indictment and some inquiry into the evidence available to establish the assertions that a new indictment may contain.

III.

Additional Considerations

¶ 11. The dissent, relying at least in part on a decision by a Florida District Court of Appeal, suggests that White’s conviction ought to be reversed and rendered on an issue not raised by him in this appeal. The dissent would, under the plain error doctrine, determine that there is no such crime as attempted accessory after the fact, thus rendering void any attempt to prosecute White for such a crime. The dissent reaches that conclusion on the basis that the statute defining accessory after the fact and the general attempt statute both require an overt act in furtherance of the crime defined therein. For that reason, the dissent maintains that an individual who commits an overt act intended to aid a known felon evade capture has necessarily moved beyond a mere attempt and accomplished the underlying crime. In Bush v. State, the Fourth District Court of Appeal of Florida, without clear explanation, concluded that, for purposes of analysis of this issue, the words “attempt” and “intent” were synonymous. Bush v. State, 359 So.2d 556, 557 (Fla. 4th DCA 1978). The court then noted that Florida’s accessory after the fact statute required that an act in aid of the felon be undertaken “with intent that [the felon] avoid ... arrest....” Id. (emphasis added). From there, the Florida court moved straight to the conclusion that it was “apparent ... that once an individual attempts to aid a fleeing felon ... then he has actually completed the crime of accessory after the fact.” With respect to the Florida court and the dissent, the logic of that analysis is unpersuasive.

¶ 12. It is unremarkable that the statutory definitions of both accessory after the fact and criminal attempt require an overt act. It is, in fact, difficult to envision any criminal conduct that does not require some affirmative action on the part of the accused. The distinguishing feature of the overt act in the situation of an attempted crime is the ineffectual nature of the act and the consequent failure to accomplish the intended crime. Spann v. State, 771 So.2d 883, 891 (¶ 18) (Miss.2000). In order to commit the crime of accessory after the fact in this State, we are satisfied that there must be some indication that the effort to assist a fleeing felon actually aided or assisted him in some way. This is inherent in the statutory definition, which requires that the defendant have actually “aided or assisted” the felon, as opposed to simply having attempted, but failed, to do so. Miss.Code Ann. § 97-1-5 (Rev.2000). An effort that results in no assistance or aid to an absconding felon, even if undertaken with the requisite intent, simply does not accomplish the intended crime. It is the ineffectual nature of that intentional overt act that compels the dual conclusions that (a) the crime of accessory after the fact has not, in fact, been accomplished, but that (b) by his failed but criminally-culpable effort to assist, the defendant has rendered himself subject to sanction under this State’s general attempt statute.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF FRANKLIN COUNTY IS REVERSED AND THIS CAUSE IS REMANDED FOR SUCH FURTHER PROCEEDINGS AS ARE CONSISTENT WITH THE TERMS OF THIS OPINION. COSTS OF THE APPEAL ARE ASSESSED TO FRANKLIN COUNTY.

SOUTHWICK, P.J., THOMAS, LEE, IRVING, MYERS, and GRIFFIS, JJ.

KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES AND CHANDLER, JJ.

KING, P.J.,

Dissenting.

¶ 14. I dissent from the majority opinion herein. The majority would reverse and remand this case. For different reasons, I believe the appropriate course of action is to reverse and render the conviction.

¶ 15. I believe the pivotal issue before this Court is whether the indictment against White actually charged a crime cognizable under the laws of this state. While White has not specifically raised this as an issue, this Court, pursuant to M.R.A. P., 28(a)(3), “may at its option notice a plain error not identified or distinctly specified.” The failure to charge a crime cognizable under Mississippi law is such a plain error. Mitchell v. State, 788 So.2d 853(¶ 9) (Miss.Ct.App.2001). This issue is one of law and is reviewed de novo by this Court. Hall v. State, 785 So.2d 302(¶ 7) (Miss.Ct.App.2001).

¶ 16. The indictment against White read:

THE GRAND JURORS of the State of Mississippi, taken from the body of the good and lawful citizens of the said County, elected, empaneled on January 24, 2000, sworn and charged as required by law to inquire in and for said County, in the name and by the authority of the State of Mississippi, upon their oath, present that
TRACY LYNN THORPE and HERBERT JOE WHITE
late of the County aforesaid, in said County, on or about the 5th day of March 2000 acting in concert, each with the other, did wilfully, unlawfully, and feloniously attempt to aid or assist, conceal, receive or relieve one Johnny Patrick Thorpe, who had committed the crime of aggravated assault, burglary and theft of anhydrous ammonia, and Tracy Lynn Thorpe and Herbert Joe White, knowing that Johnny Patrick Thorpe had committed those felony crimes, and after the commission of those felonies, with the felonious intent of them, Tracy Lynn Thorpe and Herbert Joe White, to enable Johnny Patrick Thorpe to escape or to avoid arrest, trial, conviction, or punishment;
contrary to the form of the statute in such cases made and provided, against the peace and dignity of the State of Mississippi.
OFFENSE: ATTEMPTED ACCESSORY AFTER THE FACT § 97-1-5

¶ 17. Section 97-1-5 of the Mississippi Code Annotated (Rev.2000) defines accessory-after-the-faet as follows:

Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment, after the commission of such felony,- on conviction thereof shall be imprisoned in the penitentiary not exceeding five years, or in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both; and in prosecution for such offenses it shall not be necessary to aver in the indictment or to prove on the trial that the principal has been convicted or tried.

¶ 18. This statute clearly requires the commission of an overt act for conviction as an accessory-after-the-fact. Gangl v. State, 539 So.2d 132, 136 (Miss.1989). This statute does not define the offense of attempted accessory-after-the-fact. Accordingly, such a charge must of necessity flow from this state’s general “attempt” statute, Mississippi Code Annotated Section 97-1-7 (Rev.2000), which provides:

Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows: If the offense attempted to be committed be capital, such offense shall be punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.

¶ 19. Section 97-1-7 also requires the commission of an overt act. Durr v. State, 446 So.2d 1016, 1017 (Miss.1984).

¶ 20. Since an overt act is required under both 97-1-5 and 97-1-7, it would appear that the charge of an attempt pursuant to 97-1-7 is inconsistent with 97-1-5.

¶ 21. My search revealed no similar ease in Mississippi. However, I find that the Florida case of Bush v. State, 359 So.2d 556, 557 (Fla. 4th DCA 1978) is relevant. In Bush, the court determined that “[i]f a crime is itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime.” The court further stated that “[i]t is apparent, therefore, than [sic] once an individual attempts to aid a fleeing felon for the purpose of accomplishing the result of helping him avoid detection, then he has actually completed the crime of accessory after the fact.” Id. The court held “that there is no such crime as attempted accessory after the fact.” Id.

¶ 22. The Mississippi and Florida statutes are very similar. Florida’s general “attempt” statute (Fla. Stat. Ann. Section 777.04 (Rev.2000)) reads in part:

(1) A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt, ranked for purposes of sentencing as provided in subsection (4). Criminal attempt includes the act of an adult who, with intent to commit an offense prohibited by law, allures, seduces, coaxes, or induces a child under the age of 12 to engage in an offense prohibited by law.

While the Mississippi “attempt” statute, Miss.Code Ann. Section 97-1-7 (Rev.2000) reads:

Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows: If the offense attempted to be committed be capital, such offense shall be punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be punishable by imprisonment in the penitentiary, or by fíne and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.

¶ 23. I find the reasoning in Bush to be persuasive and would hold that there can be no offense identified as “attempted ae-cessory-after-the-fact.” To be an aceesso-ry-affcer-the-fact, one must perform some overt act. If the overt act is performed, the offense has been completed, and one cannot then be found guilty of attempted accessory-after-the-fact.

¶ 24. Accordingly, I would reverse and render.

BRIDGES AND CHANDLER, JJ., JOIN THIS SEPARATE OPINION.