author: MYERS, J.,

text:
    Jeffrey HUBBARD a/k/a Jeffrey Salley a/k/a Jeffery Hubbard a/k/a/ Jeffery Bernard Salley, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00142-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.
    Rehearing Denied July 27, 2004.
    Certiorari Denied Nov. 18, 2004.

      Thomas Richard Mayfield, Thomas E. Royals, Jackson, attorneys for appellant.

      Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Jeffrey Hubbard a/k/a Jeffrey Salley was found guilty in the Circuit Court of Calhoun County, Mississippi of armed robbery. He was sentenced to serve a term of thirty-four years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction, Hubbard raises the following four issues on appeal.

ISSUES PRESENTED

I. Did the trial court err by failing to suppress both the pretrial identification of Hubbard and the in-court identification?

II. Did the trial court err by denying Hubbard’s motion for funds to obtain an expert in the field of psychiatry?

III. Did the trial court commit reversible error by not allowing Hubbard to address the jury?

IV. Did plain error occur when the State told the jury during opening and closing arguments that if convicted, Hubbard would be eligible for parole?

STATEMENT OF FACTS

¶ 2. On June 15, 2001, at approximately 9:00 p.m., a man knocked on the back door of Wayne and Nona Faye Clark’s rural home in Calhoun County. The person at the door said that he had come to pay on the Steen account. The Clark’s owned a furniture store across the street from their home and customers frequently stopped by to pay on their account. Wayne Clark opened the door to let the man inside the home. Upon opening the door, three men entered the Clark’s home. The first man through the door demanded money from Mr. Clark. Mr. Clark reached for his pistol which was located in his pocket, but the gun snagged on his clothing and was taken away from him by the intruder.

¶ 3. The second man who entered the house grabbed Mrs. Clark, tied her up and placed her face-down behind the couch in the living room. He threatened to shoot her if she did not “shut up.” After being in the Clark’s home for about ten minutes, the three men left taking with them Mr. Clark’s wallet and three rings.

¶ 4. After the intruders left, the Clarks went across the street and called the police from a neighbor’s house. At that time they gave the police descriptions of the perpetrators. A live line-up was held several weeks after the robbery. Mr. and Mrs. Clark attended the line-up but did not make any identifications. The appellant, Hubbard, was not included in the line-up. In October, Mrs. Clark saw the photos of three men accused of robbing a bank in the local newspaper. She immediately identified the men as being the ones who robbed them in June 2001. One of the men that Mrs. Clark identified was Hubbard. Mrs. Clark showed the newspaper to Mr. Clark who identified all three men as the ones who robbed his home in June.

¶ 5. The Clarks notified the police that they saw the photos of the men who robbed them. The police went to the Clark’s home and separately showed them photos of twelve men. From the photo array, Wayne Clark identified Arnold Johnson, Lester Bledsoe and Jeffrey Hubbard. Nona Faye Clark identified Hubbard and Johnson but not Bledsoe. The three men were jointly indicted for armed robbery in violation of Mississippi Code Annotated Section 97-3-79 (Rev.2000). Bledsoe and Johnson were also indicted as habitual offenders. The trial court granted Hubbard’s motion to sever and the trial proceeded with Hubbard only. The jury found Hubbard guilty of armed robbery but were unable to fix a penalty. The trial judge sentenced Hubbard to serve thirty-four years in the custody of the MDOC. Hubbard’s post-trial motions for JNOV or, in the alternative, a new trial were denied. Hubbard timely perfected his appeal to this Court.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR BY FAILING TO SUPPRESS BOTH THE PRETRIAL IDENTIFICATION OF HUBBARD AND THE IN-COURT IDENTIFICATION?

¶ 6. Hubbard asserts that the trial court erred by denying his motion to suppress identification evidence. The trial court allowed Mr. and Mrs. Clark to testify about the pretrial identification procedures. Mrs. Clark was permitted to make an in-court identification of Hubbard. The trial court further allowed Deputy Stan Evans to testify as to the identification procedures relating to Hubbard and that Mr. and Mrs. Clark were certain that Hubbard was one of the men that robbed them.

¶ 7. On appeal, Hubbard argues that both the pretrial and in-court identifications by Mr. and Mrs. Clark should have been suppressed because they were made under circumstances likely to result in mis-identification. Hubbard claims that the admission of the identification evidence violated his due process rights and thereby deprived him of a fair trial. Hubbard’s argument on appeal does not challenge the procedures used by the police in the photo array shown to the Clarks. Hubbard bases his argument on the fact that the Clarks could not identify him as being one of the men who robbed them until after they saw his mug shot in the local newspaper approximately four months after the robbery occurred.

¶8. The decision of the trial court to admit identification evidence will not be reversed on appeal unless we find clear error. Herrington v. State, 881 So.2d 580, 582(¶ 8) (Miss.Ct.App.2002). When an appellate court reviews the trial court’s findings as to a pretrial identification which the defendant seeks to suppress, we must consider “whether 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 reverse those findings by the trial court “only where there is an absence of substantial credible evidence supporting it.” Cousar v. State, 855 So.2d 993, 999 (¶ 17) (Miss.2003) (citing McDowell v. State, 807 So.2d 413, 419 (¶ 12)(Miss.2001)).

¶ 9. Identification procedures must comply with the requirements of due process. Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The factors to be considered when determining whether an identification complies with due process are as follows:

(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness’ degree of attention;
(3) the accuracy of the witness’ prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.

Id. at 199-200, 93 S.Ct. 375; Ferguson v. State, 856 So.2d 334, 338 (¶ 10) (Miss.Ct. App.2003). These factors are to be considered under the totality of the circumstance. Biggers, 409 U.S. at 199, 93 S.Ct. 375. A review of the record establishes the following analysis concerning the Big-gers factors.

(1) THE OPPORTUNITY OF THE WITNESS TO VIEW THE CRIMINAL AT THE TIME OF THE CRIME.

¶ 10. Hubbard asserts that this factor is not satisfied because the Clarks were not in the robbers’ presence long enough and Mrs. Clark, who made the in-court identification, was behind the couch tied up during the majority of the confrontation. Identifications have been admitted when the witness viewed the criminal for only a few seconds. Horne v. State, 825 So.2d 627, 638 (¶ 41) (Miss.2002). Mr. Clark testified that the robbers were in his home for about ten minutes. Mrs. Clark stated that the robbers were there for maybe fifteen to twenty minutes. Mr. Clark saw the men as they entered his home through the back door. Mr. Clark testified that he spoke to the men as they entered and as they were robbing him. The Clarks had sufficient opportunity to the view the defendant at the time of the crime.

(2) THE WITNESS’ DEGREE OF ATTENTION.

¶ 11. Hubbard asserts that this factor is not satisfied because Mrs. Clark was “hysterical” and was face-down behind the couch during the robbery. However, Hubbard seems to omit the testimony of Mr. Clark. Mr. Clark stated that when the man knocked on his door, he went over to the door and was able to see the money in the man’s hands. Mr. Clark spoke with the men as they were robbing him. One of the perpetrators told Mr. Clark that he would cut his fingers off if he could not get the rings. Mr. Clark testified that one of the men was very close to him as he was taking his wallet and rings. Mr. Clark stated that he could see the man very well since he was looking him in the face. The Clarks were victims of a robbery and were threatened with weapons; however, their testimony shows that they were paying sufficient attention to satisfy this factor.

(3) THE ACCURACY OF THE WITNESS’ PRIOR DESCRIPTION OF THE CRIMINAL.

¶ 12. Hubbard argues that this factor is not satisfied because the descriptions the Clarks gave to the police were general and somewhat inaccurate. The descriptions were as follows:

(a) Black male, big man, 240-50 pounds, 5'9" to 5'10".
(b) Smaller black male, around 5'8", 150-160 pounds.
(c) Black male, 160-170 pounds, kind of slim build.

¶ 13. According to the Clarks, Hubbard was the second man in the door but was described first. Deputy Evans testified that at the time Hubbard was arrested he was 6'2" and weighed 230 pounds. The difference between the descriptions made by the Clarks and Hubbard’s actual build is approximately ten pounds and a few inches in height. There is no absolute requirement on the degree of detail necessary for a description to be adequate. Herrington, 831 So.2d at 583 (¶ 15). While the description was general, it was reasonably adequate and satisfies this factor.

(4) THE LEVEL OF CERTAINTY DEMONSTRATED BY THE WITNESS AT THE CONFRONTATION.

¶ 14. The Clarks testified that they recognized Hubbard as being one of the men who robbed them after seeing his photo in the newspaper. Both testified that they were sure of their identification and then notified the police. Deputy Evans testified that when the Clarks were shown the photo array, they both were certain that the men they identified committed the robbery. The Clarks never wavered on their identifications. The certainty was again shown when Mrs. Clark identified Hubbard during his trial.

(5) THE LENGTH OF TIME BETWEEN THE CRIME AND THE CONFRONTATION.

¶ 15. Hubbard argues that the identifications occurred too long after the robbery for them to be reliable. The robbery occurred on June 15, 2001, and the identification on October 25. In the Big-gers case, the victim made an identification seven months after the crime occurred. Biggers, 409 U.S. at 201, 93 S.Ct. 375. In that case the Supreme Court stated, “This would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any of the show-ups, line-ups or photo showings.” Id. Similarly to Biggers, the Clarks were present at a line-up a few weeks after the robbery. They made no positive identifications at that time. Hubbard, Johnson and Bledsoe were not participants in the line-up. Deputy Evans brought two men to the Clarks home for identification, but the Clarks again stated that those were not the men that robbed them. It was only when they saw the mug shots in the newspaper that positive identifications were made.

¶ 16. Each of the Biggers factors is supported by substantial evidence. Under the totality of the circumstances, we find that there was sufficient evidence to support the trial court’s admission of the identification evidence.

II. DID THE TRIAL COURT ERR BY DENYING HUBBARD’S MOTION FOR FUNDS TO OBTAIN AN EXPERT IN THE FIELD OF PSYCHIATRY?

¶ 17. Hubbard contends that the trial court erred by denying his pretrial motion for State funds to obtain his own personal expert in the field of psychiatry. Hubbard asked the trial court for funds because he claimed his own financial resources and those of his family and friends were depleted to the point that he was indigent. Also, Hubbard asserted that his “psychiatric make-up” would be a “significant factor” at trial. Interestingly, the State points out that Hubbard never gave notice of an insanity defense prior to trial.

¶ 18. The standard of review of the trial court’s denial of expert assistance is abuse of discretion such that “the defendant was denied due process whereby the trial was fundamentally unfair.” Chapin v. State, 812 So.2d 246, 248(¶4) (Miss.Ct.App.2002) (citing Richardson v. State, 767 So.2d 195, 197(¶ 7) (Miss.2000)). Whether the State is required to pay for a defendant to have an expert witness is determined on a case by case basis. Townsend v. State, 847 So.2d 825, 829 (¶ 13) (Miss.2003). In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court enumerated three factors to be utilized in determining whether a defendant is entitled to the assistance of an expert witness to assist in the defense of his case. Id. at 69, 105 S.Ct. 1087. Those factors are: “(i) the private interest that will be affected by the action of the State, (ii) the government interest that will be affected if the safeguard is to be provided, and (iii) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.” Id.

¶ 19. We have repeatedly held an evaluation of the defendant by a psychiatrist at Whitfield State Hospital satisfies the requirements of Ake v. Oklahoma. Chapin, 812 So.2d at 248-49(¶ 4); Feazell v. State, 750 So.2d 1286, 1288 (¶ 10) (Miss.Ct.App. 2000). At some point before trial, the trial court issued an agreed order sending Hubbard to the Mississippi State Hospital for a mental evaluation. According to the physician’s report which was included in the record, Hubbard was evaluated as being criminally responsible at the time the alleged acts occurred and was competent to stand trial. This issue is without merit.

III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY NOT ALLOWING HUBBARD TO ADDRESS THE JURY?

¶20. Hubbard contends that the trial court committed reversible error by not allowing him to address the jury. Hubbard bases his argument on Article 3, Section 26 of the Mississippi Constitution which states that the accused shall have a right to be heard by himself or counsel, or both in criminal prosecutions. After the State rested, Hubbard’s attorney asked to speak to the trial judge in chambers. The following exchange occurred in chambers:

Mr. Neely (Hubbard’s trial counsel): Mr. Salley [Hubbard] has advised me of something that I don’t know what mechanism there is for he wants to speak to the jury on his own behalf.
Trial Judge: Well, he certainly can’t do that right now. I assume you told him that.
Mr. Neely: I told him he can testify. Hubbard: I was unaware that the trial was over with.
Mr. Neely: It’s not over. You can testify-
Hubbard: I don’t want to testify. I want to speak on my own behalf to the jury-
Judge: Well, you understand the State has rested in this matter. Now whatever you and your attorney have decided you’re going to present or not present, if anything, it’s your opportunity to do so now. A very common tactic is that the defendant does not call any witnesses, but that’s a decision between you and your attorney as to whether or not you’re going to call any witnesses, and you’ve already been asked questions pri- or to the trial starting by your attorney on the record with regard to your right to testify as well as you right to remain silent.
You remember being asked about that by your attorney, do you not?
Hubbard: He told me. I asked him if I could speak on my own behalf and he told me I could.
Judge: Okay. Well, speaking on your own behalf can occur in a number of ways; and testifying would be one of them. Of course, you would be subject to cross-examination by the State if you testify; and I’m sure your attorney has explained that to you.
Hubbard: I didn’t want to testify. I wanted to speak on my own behalf to the jury.
Judge: That usually results in a form of testifying. All right. If you’re going to speak on your own behalf, if you’re going to talk about what you did or didn’t do or why you think you’re guilty or not guilty, why the jury should find you guilty or not guilty, you’re in essence going to be testifying; and you’re going to be subject to cross-examination if you want to testify. That’s a fundamental rule of Court. You have the right to remain silent....
Hubbard: I’ll take the stand if I have to take the stand to speak to the jury on my own behalf without being cross-examined.
Judge: What I can’t let you do is you cannot testify. You can’t address the jury and tell the jury what happened or didn’t happen without being subject to cross-examination; but that, in essence is testifying.
Hubbard: What if somebody like Stan Evans got on the stand and lied like I weighed 230 pounds when I was saying 205? Those are some of the things. Judge: Is this an example of why you want to address the jury?
Hubbard: Yes.
Judge: That’s testifying. That makes you subject to cross-examination by the State. All right. You want to say something different happened than what’s alleged.
Hubbard: Yes.

¶ 21. After a break for lunch, Hubbard informed the court that he did not wish to testify and the defense rested.

¶ 22. Hubbard relies on the cases of Jones v. State, 381 So.2d 983 (Miss.1980) and Armstead v. State, 716 So.2d 576 (Miss.1998) to support his argument that the trial judge should have allowed him to address the jury. In Jones, the defendant was allowed to make the closing argument during the sentencing phase of his trial. Jones, 381 So.2d at 997. On appeal, the supreme court recognized that a criminal defendant has the right to testify and the right to remain silent. Id. at 993. The court explained that the two rights create a conflict, requiring the defendant to make a choice. Id.

¶ 23. The court went on the say that an accused has the right to waive the Fifth Amendment privilege against self-incrimination and does so when he takes the stand and argues the merits of the case or goes beyond the record when arguing his case. Id. The court explained that the Fifth Amendment privilege is a shield not a sword. Id. The court stated:

The practical solution to the dilemma presented by the accused who uses his constitutional right to argue his case to the jury to give, what is for all practical purposes, testimony is to treat the un-sworn testimonial statements of the accused which were not supported by the record as a partial waiver of the privilege against self-incrimination. It is not a total waiver of the privilege, since the prosecution is unable to cross-examine the accused at this late stage of the trial. But the prosecution may comment to the jury that the defendant’s statements were not given under oath and that he was not subject to cross-examination about them. The constitutional privilege of the criminal defendant appearing pro se is adequately protected if the court gives him a clear and direct warning out of the presence of the jury prior to beginning his argument that such limited comment might follow if he goes outside the record and gives what amounts to unsworn testimony.

Jones, 381 So.2d at 993.

¶ 24. Hubbard also relies on Armstead where the defendant wished to make his own closing argument. Armstead, 716 So.2d at 579 (¶ 15). Even though Arm-stead and his attorney were in agreement that he should conduct the closing argument, the trial court denied the request on the grounds that Armstead would prejudice his defense by conducting the closing argument. Id. The trial judge remarked, “I’m doing this for your own good. I’m not going to let you make that kind of mistake.” Id. at 580 (¶ 15). Our supreme court reversed Armstead’s conviction and ordered a new trial based on the statements by the trial judge. Id. at 582 (¶ 26).

¶ 25. Hubbard’s claim is distinguishable from Armstead. Here, the trial judge did not keep Hubbard from speaking to the jury. As the record clearly shows, the trial judge extensively questioned Hubbard on his understanding of his rights to testify and to remain silent. Hubbard’s attorney was strongly opposed to Hubbard speaking to the jury and so stated on the record. After taking a lunch break and conferring with his attorney, Hubbard decided not to speak to the jury. The decision was his to make and he made an informed choice not to speak on his own behalf.

¶ 26. Also distinguishable from Jones and Armstead, Hubbard did not wish to make an opening statement or closing argument. He essentially wanted to take the stand and speak to the jury for the purpose of contradicting the State’s witnesses while not being subject to cross-examination. In Armstead, the court stated, “The defendant who argues pro se, of course, is not exempt from following the rules of court procedure, and must confine his remarks to the evidence in the record.” Armstead, 716 So.2d at 580 (¶ 17).

¶ 27. The trial judge did nothing to hinder Hubbard from speaking but simply made him aware of the consequences, such as being subject to cross-examination by the State, of delving into matters not in the trial record. Hubbard’s argument on appeal is that he was not permitted to speak to the jury. This was not the case. Hubbard was allowed time to consider the consequences of his speaking to the jury and chose not to do so. This issue is without merit.

IV. DID PLAIN ERROR OCCUR WHEN THE STATE TOLD THE JURY DURING OPENING AND CLOSING ARGUMENTS THAT IF CONVICTED, HUBBARD WOULD BE ELIGIBLE FOR PAROLE?

¶ 28. Hubbard asserts that plain error occurred at trial when the prosecutor told the jury that Hubbard would be eligible for parole if convicted. Both parties agree that no objection was made at trial by Hubbard’s counsel. If a contemporaneous objection was not made, Hubbard must rely on plain error to raise his argument on appeal. Williams v. State, 794 So.2d 181, 187 (¶ 23) (Miss.2001). Only an error so fundamental that it creates a miscarriage of justice rises to the level of plain error. Hayes v. State, 801 So.2d 806, 811 (¶ 16) (Miss.Ct.App.2001). Error is plain when it “affects the substantive rights of the defendant.” Mitchell v. State, 788 So.2d 853, 855 (¶9) (Miss.Ct. App.2001) (citing Porter v. State, 749 So.2d 250, 261 (¶ 36) (Miss.Ct.App.1999)).

¶ 29. When this Court is determining if plain error has occurred we must consider if there is anything that “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. We must look to see if there was a violation of some legal rule that could be considered “plain,” “clear,” or “obvious” and was prejudicial on the result of the trial. Id. Hubbard was indicted and found guilty of armed robbery in violation of Mississippi Code Annotated Section 97-3-79. Section 47 — 7—3(1)(d)(ii) states that no person convicted of this crime after October 1, 1994, shall be eligible for parole.

¶ 30. The statements by the State during opening and closing arguments were erroneous; however, we can find no plain error. The trial judge properly instructed the jury to (1) find Hubbard guilty and set the term of penalty at life imprisonment, or (2) find him guilty and not agree to fix the penalty, or (3) find him not guilty. Parole was never an issue for the jury’s determination. Hubbard has failed to show that a substantial right was affected by the statements. This issue is without merit.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY OF CONVICTION OF ROBBERY WITH A DEADLY WEAPON AND SENTENCE OF THIRTY-FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    Gerald BARRETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01565-COA.
    Court of Appeals of Mississippi.
    May 25, 2004.
    Rehearing Denied Aug. 3, 2004.
    Certiorari Denied Nov. 10, 2004.
    William Joseph Barnett, Jackson, Dan W. Duggan, Brandon, attorneys for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Gerald Barrett was convicted in Rankin County Circuit Court of statutory rape and one count of sexual battery. He was sentenced to life imprisonment for the statutory rape and to forty years for the sexual battery, the sentences to run consecutively. He appeals and raises the following issues:

Issue One: Counsel for the appellant was ineffective in not objecting to continued leading questions by the State.
Issue Two: Trial counsel was ineffective in not objecting to continuous introduction of prior bad acts against the appellant by the State.
Issue Three: The verdict was contrary to both the weight and the sufficiency of the evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In June 2000, N.B. moved in with her father, Gerald Barrett. Barrett did not know that she existed until she was ten and DNA evidence confirmed that she was his daughter. N.B. lived in a variety of foster homes prior to moving in with Barrett in his trailer home in Rankin County, Mississippi. N.B. testified that she was thirteen in 2000 and that her relationship with her father was not a normal one because they were engaging in sexual intercourse with each other. She testified that they had sex about twenty times. Barrett was age thirty-three at the time.

¶ 4. N.B. testified about one particular incident when her friend C.C. wras visiting in her home. According to testimony from N.B. and C.C., Barrett called them into his room, shut the door, undressed and then undressed each of the girls as well. Barrett asked the girls to have sex with him. N.B. said that she would only if C.C. also agreed. C.C. agreed but only if N.B. would go first. N.B. proceeded to crawl on top of Barrett and have sex with him. Afterwards, C.C. refused to have sex with Barrett because she saw that N.B. was in pain during sex.

¶ 5. N.B. also testified to having seen Barrett place his hand in C.C.’s pants sometime around the time that C.C. saw them have sex. In her testimony, C.C. described a separate incident in which Barrett came in and sat beside her and N.B. on the “couch bed” in the trailer and Barrett placed his finger in her vagina. According to her, he also made her rub his “d-i-c-k.” C.C. also corroborated N.B.’s testimony as to the events in Barrett’s bedroom when all three of them were naked and when she saw Barrett and N.B. have sex. C.C. also was questioned about a later event around the end of July or early August when Barrett allegedly only “fingered” her and when she again refused to have intercourse with him. The jury found Barrett guilty of one count of sexual assault.

¶ 6. Also living in the trailer at the time of the alleged incidents were Barrett’s mother, Margaret Anthony, and her then live-in boyfriend, Eddie Taylor, and Barrett’s brother, Irby. There were three bedrooms in the trailer. Anthony and her boyfriend shared one bedroom, Irby was in another, and most of the time N.B. had the other bedroom, with Barrett sleeping on the couch. There was apparently a period of time when Barrett and N.B. shared a bedroom. Both Barrett’s mother and Eddie Taylor testified that they never saw anything improper but that they worked the late shift until after midnight and were not at the trailer a good part of the night.

¶ 7. The defense attempted to put on proof that N.B. had a propensity for lying and that she was jealous of other women in her father’s life. There was also testimony that she was involved with a boy her age and that her father had attempted to break up the relationship and N.B. threatened to run away.

¶ 8. The allegations against Barrett came to light after he reported N.B. as a runaway. Officer Aaron Hirschfield of the Pearl Police Department testified that he received a call about N.B. being a runaway and went to the hospital to interview her to get information about the possible sex with Barrett. Hirschfield then went to Barrett’s trailer to interview him. Hirsch-field asked for and received permission to search the trailer. Hirschfield asked Barrett if there was a reason why there would be semen on N.B.’s bed and, according to Hirschfield, Barrett told him that he masturbated on the bed and that N.B.’s body fluids might be on the bed as well if she masturbated on the bed as well. The sheets were taken as evidence, but no testing was ever done.

¶ 9. Barrett testified in his own defense and denied that he had sexual relations with N.B. He did testify that he had been convicted of prior offenses of burglary and sale of narcotics and that he was in fact guilty of these offenses. The State also introduced statements that Barrett signed which stated that he had not committed any felony offenses. There was also testimony presented at trial that Barrett’s brother, Irby, had just been released from prison at the time he moved into Barrett’s trailer.

¶ 10. Patricia Barrett, Barrett’s new wife of four months, testified that she never observed any sexual activity between Barrett and N.B. Patricia also testified that N.B. did not like her and directly contradicted N.B.’s testimony that N.B. did not know her.

¶ 11. Barrett also offered character witnesses who testified that Barrett had a good reputation in the community. On cross-examination these witnesses were asked about Barrett’s criminal record and whether this was consistent with a good reputation.

¶ 12. The jury found Barrett guilty of the statutory rape of his daughter and also guilty of one of two counts of sexual assault of the daughter’s friend. The judge sentenced Barrett to life imprisonment for the statutory rape and a consecutive sentence of forty years for the sexual assault.

¶ 13. On motion for new trial, a different defense attorney offered an undated letter supposedly written by N.B. which stated that her father made her breakup with her boyfriend. This conflicted with her testimony at trial. A witness in support of the motion for new trial testified that she overhead a conversation in which C.C. stated that she gave testimony at trial only because she did not want Irby, Barrett’s brother, or herself to go to jail. The testimony was that C.C. was coerced into testifying in order to prevent Irby from being charged with statutory rape because the district attorney had found videotapes and “other stuff.”

¶ 14. Barrett’s trial was in March of 2002, and the motion for rehearing was heard on August 16, 2002. According to the State, “more than two months” before the hearing, Irby was convicted of statutory rape and sentenced to ten years imprisonment for his involvement with C.C. Barrett’s motion for a new trial was denied.

DISCUSSION

Issue One: Counsel for the appellant was ineffective in not objecting to continued leading questions by the State.

¶ 15. A claim of ineffective assistance of counsel is considered under the holding of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[Bjefore counsel can be deemed to have been ineffective, it must be shown (1) that counsel’s performance was deficient and (2) that the defendant was prejudiced by counsel’s mistakes.” Sanders v. State, 801 So.2d 694, 702(¶ 30) (Miss.2001). There is a presumption that defense counsel is competent, that defense counsel’s decisions are strategic, and that “counsel’s performance falls within the range of reasonable professional assistance.” The presumption may be rebutted if the defendant can demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

¶ 16. Barrett claims that his counsel was ineffective for failing to object to leading questions during the testimony of N.B. and C.C. The supreme court has defined leading questions as follows:

A leading question is one that suggests to the witness the specific answer desired by the examining attorney. Trial courts are given great discretion in permitting the use of such questions, and unless there has been a manifest abuse of discretion resulting in injury to the complaining party, we will not reverse the decision. This is because the harm caused is usually inconsiderable and speculative, and only the trial court was able to observe the demeanor of the witness to determine the harm.

Tanner v. State, 764 So.2d 385 (¶ 58) (Miss.2000) (citing Clemons v. State, 732 So.2d 883 (¶ 25) (Miss.1999)). See Whitlock v. State, 419 So.2d 200, 203 (Miss.1982).

¶ 17. Mississippi Rule of Evidence 611(c) states that “[Heading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.” However, within the comments to this rule, it is noted that in some situations the use of leading questions may become necessary. “Children are a classic example of the kinds of witnesses for whom leading questions may be necessary.” Ivy v. State, 522 So.2d 740, 742 (Miss.1988). In Gandy v. State, 788 So.2d 812, 814 (¶ 10) (Miss.Ct. App.2001), the Court stated:

Gandy argues that Ivy is inapplicable here because the witness did not first exhibit problems with communication. The record does not reveal any hesitancy on the victim’s part in testifying as to the events that occurred. However, communication difficulties are not just in situations where the victim is embarrassed or ashamed. Here the victim testified as to the details of the event without any difficulty. She testified using terms in the vernacular. The leading questions only clarified the terms used in order to obtain the anatomically correct terminology. In this case the communication difficulties concern the terminology.
Gandy contends that without the use of the leading questions the State would not have proved its case. We find only that certain clarity was' brought to the testimony by the nature of the questions, and disagree that any substantively different evidence was thereby admitted. Gandy was not prejudiced. The leading questions were proper. We find no error on this point.

¶ 18. In the present case, a few of the questions asked could be considered leading questions, but due to the age of the witnesses and the limited manner in which the questions were used, it is doubtful that the trial judge would have disallowed the questions. The witnesses testified without hesitancy to the particulars of the events and the questions could easily have been reframed to elicit the same testimony. Barrett would have benefited little by an objection from counsel, and he cannot show that he was prejudiced by the failure of counsel to object. We find no reversible error.

Issue Two: Trial counsel was ineffective in not objecting to continuous introduction of prior bad acts against the appellant by the State.

¶ 19. The same standard for ineffective assistance of counsel would apply to this second assignment of error. In this issue, Barrett claims that his trial counsel rendered ineffective assistance for permitting prior bad acts to be introduced without objection. Specifically, Barrett raises that the State introduced testimony that he and N.B. had sex at least twenty times, that he hurt her before and after the incident giving rise to the trial, and that he had penetrated C.C. with his fingers four or five times.

¶ 20. As stated by Barrett, the general rule is that prior bad acts are generally not allowed. However, M.R.E. 404(b) provides for an exception to the general rule that in criminal prosecutions, evidence of other crimes is not admissible. See White v. State, 520 So.2d 497, 500 (Miss.1988) (not error to permit testimony of previous sexual offenses between appellant and his victim, especially where victim is under the age of consent); Coates v. State, 495 So.2d 464, 468 (Miss.1986) (relaxation of general rule and allowed evidence of similar sexual acts that had occurred on numerous occasions prior to the offense charged).

¶ 21. Unfortunately for Barrett, there is a clear line of cases authorizing a circuit court in the prosecution of a sexual offense to permit evidence of past sexual crimes of the accused. Beginning with Brooks v. State, 242 So.2d 865 (Miss.1971), the Mississippi Supreme Court in a rape case held that proof of a prior sexual offenses between the defendant and prosecuting witness was admissible in this type of case. The court therein adopted the general rule of other states permitting evidence of past sex crimes and sexual offenses. See 77 A.L.R.2nd 841, 1961 WL 12944 (1961). That authority cites cases from other jurisdictions permitting previous sodomization of the victim by the accused to be offered into evidence by the trial court., 77 A.L.R.2nd at 883.

¶ 22. In Davis v. State, 367 So.2d 445, 446 (Miss.1979), the supreme court held that it was not error, where the accused was charged with sodomy upon an eleven-year-old female, to permit the victim to testify that the accused had subjected her to the same thing on previous occasions. In Speagle v. State, 390 So.2d 990, 993 (Miss.1980), an incest case, the court held that evidence of prior incestuous conduct with the victim was admissible, and in Hicks v. State, 441 So.2d 1359, 1361 (Miss.1983), the court held that proof of prior sexual acts were admissible in a criminal charge of sexual battery of a father upon his twelve-year-old daughter. The court again held that it was not error to permit testimony of previous sexual offenses between appellant and his victim in Woodruff v. State, 518 So.2d 669, 671 (Miss.1988).

¶ 23. In doing so, the court has held that such evidence is admissible in this limited situation to show the appellant’s lustful, lascivious disposition toward his particular victim, especially where, as here, the victim was under the age of consent. Crawford v. State, 754 So.2d 1211, 1220 (Miss.2000). See also State v. Carver, 37 Wash.App. 122, 678 P.2d 842 (1984).

¶ 24. Since the cases clearly hold that it is not error to admit this evidence, there can be no claim of ineffective assistance of counsel premised on the failure of trial counsel to object. There is no merit to this assignment of error.

Issue Three: The verdict was contrary to both the weight and the sufficiency of the evidence.

¶ 25. The standard of review is a familiar one. “In determining whether a jury verdict is against the overwhelming weight of the evidence, [appellate courts] must accept as true the evidence which supports the verdict and will reverse only when convinced that the [trial] court has abused its discretion in failing to grant a new trial.” Herring v. State, 691 So.2d 948, 957 (Miss.1997) (citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). “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 [an appellate court] disturb it on appeal.” Id. (citing Benson v. State, 551 So.2d 188, 193 (Miss.1989)). “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.” Id. (citing Mitchell v. State, 572 So.2d 865, 867 (Miss.1990)).

¶ 26. Our standard of review in a challenge to the sufficiency of the-evidence is different, yet well established. We may reverse only where all credible evidence, along with all reasonable.inferences, consistent with guilt and viewed in the light most favorable to the prosecution is such that a fair and reasonable jury could not find the defendant guilty. Gibby v. State, 744 So.2d 244, 245(¶ 6) (Miss.1999).

¶ 27. Under this assignment of error, Barrett attacks the credibility of the testimony of C.C. and N.B. He characterizes C.C.’s testimony as inconsistent and argues that she “was certainly no child of tender years as evidence by her graphic testimony.” Concerning N.B., Barrett argues that she was jealous of Barrett’s relationships with a number of girlfriends and resentful of the fact that Barrett disliked N.B.’s boyfriend. Barrett also points to the witnesses who testified they never saw any improprieties between Barrett and N.B.

¶ 28. Both N.B. and C.C. testified as both victims and eyewitnesses to the crimes for which Barrett was convicted. Any issues of credibility or motive was for the jury to decide. McClain v. State, 625 So.2d 774, 778 (Miss.1993). This Court cannot step into the jury box and usurp the role of the jurors. There is no merit to the argument in this assignment of error.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF COUNT IV STATUTORY RAPE AND SENTENCE OF LIFE AND CONVICTION OF COUNT VI SEXUAL BATTERY AND SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, THE SENTENCES TO RUN CONSECUTIVELY, IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MYERS, J., THOMAS, J.,

text:
    Anthony McGRUDER, Appellant v. STATE of Mississippi, Appellee.
    Nos. 2003-KA-00689-COA, 2001-CT-01542-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.
    Rehearing Denied Aug. 31, 2004.

      Belinda J. Stevens, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK and BRIDGES, P.JJ., and MYERS, J.
   MYERS, J.,

for the Court.

¶ 1. This case comes before this Court on remand from the Mississippi Supreme Court. Our first opinion dismissed McGruder’s claim as time-barred. We now review the merits of McGruder’s claim. McGruder raises the following three issues on appeal.

ISSUES PRESENTED

I. Was the verdict against the overwhelming weight of the evidence?

II. Did the State commit reversible error during its closing argument by making improper remarks which appealed to the bias and prejudice of the jurors?

III. Did the cumulative effect of the enumerated eiTors deny the appellant a fundamentally fair trial?

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts of this case were recited in our first opinion, McGruder v. State, 835 So.2d 104 (Miss.Ct.App.2003). During the early morning hours of June 23, 1998, a fire was started at 617 Grady Avenue in Yazoo City, Mississippi. Upon entering the house in an effort to extinguish the fire, the firefighters discovered two charred bodies inside the house. Investigations identified the bodies as Daisy Shi-nal and Willy Dixon, an elderly brother and sister who lived with Anthony McGru-der, the grandson of Daisy Shinal. Autopsies conducted on the remains indicated that Shinal and Dixon died two to four days before the fire. The autopsies showed that Shinal died as a result of strangulation and Dixon died as a result of blunt force trauma to his head.

¶ 3. After the Yazoo City Police Department interviewed several witnesses, McGruder became the primary suspect in the investigation. During questioning by the police, McGruder confessed to having a “confrontation” with Dixon and Shinal. McGruder stated that he pushed Shinal, his seventy-eight year-old grandmother. McGruder told police that he also pushed Dixon, making the elderly man fall to the floor. McGruder told police that as a result of the blow, blood came from Dixon’s head and that he dragged Dixon down the hallway into a bedroom.

¶ 4. McGruder was indicted for two counts of murder and one count of arson in violation of Mississippi Code Annotated Sections 97 — 3—19(l)(a) and 97-17-1 (Rev. 2000). During McGruder’s trial, Deputy Fire Marshal Carl Rayfield and Yazoo City Fire Marshal James Jackson testified that piles of clothes were placed over Shinal and Dixon and set afire. The only sign of forced entry was the front door. Herbert Grayson, a neighbor, testified he and two others tried to enter the house through the door because of the fire. They were not able to gain entry into the house. On November 29, 2000, McGruder was found guilty on all counts and was sentenced to serve a term of two life sentences for the murders to be served concurrently and ten years for the arson to be served consecutively with the life sentences in the custody of the Mississippi Department of Corrections.

¶ 5. McGruder’s trial counsel filed a JNOV on March 15, 2001. McGruder then filed a pro se motion to appoint new counsel on July 11, 2001. New appellate counsel was appointed on September 7, 2001. McGruder’s new counsel filed a motion for JNOV which was denied. A notice of appeal was filed on September 26, 2001. McGruder also filed an out-of-time appeal on November 19, 2001 which was dismissed on December 20, 2001.

¶ 6. This Court rendered an opinion on January 21, 2003, dismissing McGruder’s appeal as time-barred. McGruder v. State, 835 So.2d 104 (Miss.Ct.App.2003), cert. granted, 847 So.2d 866 (Miss.2003). We held that Rule 4(e) of the Mississippi Rules of Appellate Procedure instructs that a party has thirty days from the entry of the order denying either a motion for a judgment notwithstanding the verdict or a motion for new trial to file his notice of appeal. Id. at 105(¶ 6). We addressed the fact that the thirty-day rule is not absolute; however, since McGruder filed his appeal after the thirty days and did not receive permission to file an out-of-time appeal, his claim was time-barred. Id. at (¶8).

¶ 7. The Mississippi Supreme Court granted McGruder’s petition for writ of certiorari to review our decision. The court held that Rule 4 may be suspended “when justice demands” and allowed McGruder’s out-of-time appeal. McGruder v. State, 2001-CT-01542-SCT, 2003-TS-00689 (¶ 4), 886 So.2d 1, 2003 WL 22100126 (Miss. Sept. 11, 2003). The Court emphasized the fact that McGruder was denied his right to perfect his appeal within the time prescribed by law due to actions by his trial counsel. Id. (citing Jones v. State, 355 So.2d 89, 90 (Miss.1978)). The Supreme Court remanded the case to this Court for a decision on the merits of McGruder’s claim. Finding no error, we affirm the judgment of the trial court.

LEGAL ANALYSIS

I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 8. McGruder argues that the jury verdict was against the overwhelming weight of the evidence. He contends that the State failed to present sufficient evidence to establish beyond a reasonable doubt that he committed the crimes of murder and arson. He claims that the State presented no direct, eyewitness testimony linking him to the crimes. The State argues that based on evidence the jury actually heard, there was sufficient evidence to support the jury verdict.

¶ 9. The standard of review for determining whether a jury verdict is against the overwhelming weight of the evidence is well-settled. The appellate court must accept as true all 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. Swann v. State, 806 So.2d 1111, 1117 (¶ 25) (Miss.2002). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). The appellate court should not reverse a guilty verdict unless failure to do so would sanction an unconscionable injustice. Hilliard v. State, 749 So.2d 1015, 1016-17 (¶ 10) (Miss.1999). “This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶14) (Miss.Ct.App.2001).

¶ 10. Looking at the record, the State offered the testimony of twelve witnesses to prove its case against McGruder. Lind-berg Moore, the Yazoo City Fire Chief, testified that he went inside the house at 617 Grady Avenue on June 23, 1998, to discover the smell of decayed flesh. He saw a decayed body on a cot-like bed in the living room and saw another body in the rear of the house. Carl Rayfield, the State Deputy Fire Marshal, testified that he too smelled decayed bodies upon entering the house. Rayfield’s job was to determine the cause of the fire. While investigating, Rayfield did not observe any accidental sources of ignition such as the water heater. He did notice three separate fires, one in the front living room and two in the back bedrooms. He determined the cause of the fires was arson.

¶ 11. James Jackson, the Yazoo City Fire Marshal, testified that he saw a blood trail in the hallway leading to the back bedroom where Dixon’s body was found. Jackson also testified to the three separate fires and he stated the fires were started by available materials like clothes or sheets. Larry Davis, a detective with the Yazoo City Police Department, also testified to seeing the blood trail in the house where the bodies were found. He stated that he was present when McGruder gave the first statement to police. McGruder told police that he left the house at 10:00 a.m. to go to work. He also mentioned a conversation with his grandmother, Daisy Shinal, where he allegedly told Shinal she should move back into her trailer. Shinal was apparently concerned after someone stole some patio furniture from her home.

¶ 12. Douglas Ware, the director of personnel at Peco Foods in Sebastopol, Mississippi, testified that McGruder was hired to work at the Peco plant in the deboning area. Ware stated that McGruder worked at Peco for one day, June 22, 1998, for 7.63 hours. According to Peco work records, McGruder worked from 3:15 p.m. until 11:23 p.m. Ware testified that it was a one and one-half hour bus trip from the plant back to Yazoo City. John Isonhood, the owner of A & J bus company, testified that his buses transport workers from the Peco Foods plant back to Yazoo City. He stated that the shift McGruder was working typically ends at 11:45 p.m. The bus waits fifteen minutes after the shift ends before leaving for Yazoo City around 12 midnight.

¶ 13. Cindy Heidel, a nurse, testified that Willie Dixon was her patient in June of 1998. She recalled stopping by Dixon’s home on Friday, June 20, 1998, around 9:00 a.m. to check on Shinal and Dixon. Heidel said she went by the house on Monday, June 23, 1998, before lunch, probably around 11:00 a.m. She never saw Shi-nal or Dixon that day because McGruder was waiting in the carport and told her that Shinal and Dixon were not home. McGruder told Heidel that Dixon was sick and was taken to the hospital. Heidel thought the story sounded strange and after investigating the matter further, Hei-del discovered that Dixon was not seen by a nurse or doctor at the hospital in Yazoo City.

¶ 14. Verba Young, an acquaintance of McGruder, testified that she and McGru-der went over to Shinal’s home on Saturday, June 21,1998, around 3:00 a.m. Young stated that she and McGruder were smoking crack together. While inside the house, Young saw an elderly lady in a bed in the front living room with the bed covers up over her face. When Young inquired as to why the lady was not moving, McGruder told her that Shinal had taken her blood pressure medication and was sleeping. Young said that she left the house several times to get more drugs and each time she returned, Shinal was in the same position in the bed with the covers over her face.

¶ 15. Dr. Steven Hayne, a pathologist who performs autopsies for the State of Mississippi, testified that he conducted autopsies on Shinal and Dixon and found that both had post-mortem burns. Dr. Hayne determined Shinal’s cause of death as manual strangulation. He determined that Dixon died as a result of a blunt force head trauma. Dr. Hayne stated that both Shinal and Dixon died between two and four days before the fire occurred.

¶ 16. Herbert Grayson, a witness to the fire, testified that he first saw the fire around 1:00 a.m. He and two others attempted to kick down the front door but they were unsuccessful. Bobby Adam, Chief of Police, testified that McGruder was arrested after several conversations with witnesses made McGruder the primary suspect in the murders and arson investigations. Adam was present when McGruder gave a second statement to police. During the questioning, McGruder admitted to having a “confrontation” with Shinal. He admitted that he hit Shinal. McGruder also admitted to hitting Dixon and knocking him down. Adam testified that McGruder told police that Dixon fell to the ground and was bleeding. McGru-der then dragged Dixon down the hall and into the bedroom.

¶ 17. Reviewing these facts in a light most favorable to the State, a reasonable juror could infer that McGruder was guilty of two counts of murder and one count of arson beyond a reasonable doubt. The weight of the evidence against McGruder demonstrates that sufficient proof was offered by the State for the jury to find McGruder guilty of the murders of Daisy Shinal and Willie Dixon and of arson pursuant to Mississippi Code Annotated Sections 97-3-19(l)(a) and 97-17-1 (Rev. 2000).

II. DID THE STATE COMMIT REVERSIBLE ERROR DURING ITS CLOSING ARGUMENT BY MAKING IMPROPER REMARKS WHICH APPEALED TO THE BIAS AND PREJUDICE OF THE JURORS?

¶ 18. McGruder claims that he was denied his right to a fair and impartial trial because the State argued facts not in evidence and indulged in inflammatory remarks in order to incite bias and prejudice in the jurors. McGruder cites to specific statements in the record. The prosecutor said the following during closing arguments:

He [McGruder] came in and he put bed clothes in the man’s bedroom where he was, went on in the room where Ms. Daisy was, pull all those clothes and set fire to them to hide his evil deed and save his sorry butt.
His grandma was wanting him to leave. She was bothering him. He was bothering her at 82 years old, and he got mad with her because she told him to get out of the house, and he got mad at her.
You’re going to find that a liar, a doper, and a drinker is also a grandmother and uncle killer. That’s what he did. He did it because they tried to move him out.
She had to be struggling during that period of time to get away from him. He knew exactly what he was doing, because you don’t kill somebody by strangling them in a matter of a few seconds. It takes a minute or two to cut their air off. It takes that period of time for the life to go out of them, for them to become unconscious because they have no oxygen to their brain. It cannot be anything other than an intentional act, and if it’s an intentional act, it’s murder. It’s not manslaughter.

¶ 19. McGruder argues that by the State making these remarks, he was denied a fair trial. He contends that such remarks by the State constituted “plain error” and grounds for reversal.

¶ 20. The State argues that since McGruder’s trial counsel did not contemporaneously object to the remarks, his claim is procedurally barred. The record does not contain any objection by McGru-der’s counsel to these remarks. In order to perfect the issue for appeal, counsel must make a contemporaneous objection. Otis v. State, 853 So.2d 856, 864 (¶ 23) (Miss.Ct.App.2003). The State also argues that such remarks by the prosecutor were within the limits of a reasonable argument.

It is well-settled that “counsel is allowed considerable latitude in the argument of cases and is limited not only to the facts presented in evidence, but also to deduction and conclusions he may reasonably draw therefrom, and the application of the law to the facts.” Wells v. State, 698 So.2d 497, 506 (Miss.1997) (citing Ivy v. State, 589 So.2d 1263, 1266 (Miss.1991)). This Court has also stated that where the argument does not result in “unjust prejudice against the accused as to result in decision influenced by the prejudice so created, this Court will find it harmless.” Wells, 698 So.2d at 507 (quoting Davis v. State, 530 So.2d 694, 701 (Miss.1988)).

Sanders v. State, 801 So.2d 694, 704 (¶ 39) (Miss.2001). McGruder asks this Court to find plain error and reverse his conviction.

¶ 21. The State argues that McGruder’s conviction should not be reversed because of the procedural bar and because the remarks did not rise to the level of plain error. In a recent case, the Mississippi Supreme Court has held that even with an improper argument, the remarks made by the State did not rise to the level of plain error which would require reversal. Ishee v. State, 799 So.2d 70, 75 (¶ 13) (Miss.2001). In Ishee, the court stated:

Here, again we find the argument to be improper, but it does not constitute reversible error for two reasons. First, Ishee did not object to the argument in the trial below. This Court has no original jurisdiction, and “it can only try questions that have been tried and passed upon by the court from which the appeal is taken.” Patrick v. State, 754 So.2d 1194, 1196 (Miss.2000) (citing Leverett v. State, 197 So.2d 889, 890 (Miss.1967)). Further, we do not find that the prosecutor’s arguments rise to the level of impropriety that would warrant reversal as plain error.

Id. In that case, the prosecutor made the “send a message” argument to the jury during closing arguments. While the court admonished this type of remark, it did not rise to the level of reversible error.

¶ 22. In the case sub judice, the State took advantage of the wide latitude given during closing arguments. The State could properly argue its theory of the case, apply the law to the facts, and make deductions and conclusions based on the evidence presented. There was evidence presented that McGruder lied to Cindy Heidel about Dixon being sick and at the hospital. Verba Young testified that she and McGruder were smoking crack for several hours on the Saturday prior to the fire. There was also evidence of how the fires were started and of a confrontation between McGruder and his relatives. We find that McGruder’s argument that the prosecutor’s remarks were reversible error fails because it is procedurally barred, and alternatively it is without merit.

III. DID THE CUMULATIVE EFFECT OF THE ENUMERATED ERRORS DENY THE APPELLANT A FUNDAMENTALLY FAIR TRIAL?

¶ 23. McGruder argues that the combination of the jury’s reliance on weak circumstantial evidence and the State’s closing remarks denied him a fundamentally fair trial. We have held that the jury verdict was not against the overwhelming weight of the evidence and that the closing remarks of the State did not rise to reversible error. We have found no errors to exist on the arguments McGruder raised on appeal. Following the rationale of Weeks v. State, 804 So.2d 980 (Miss.2001), finding no reversible errors for each issue, we find that there is no cumulative effect for the errors McGruder alleges. Weeks, 804 So.2d at 998 (¶ 71). McGruder had a fundamentally fair and impartial trial.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION OF COUNT I, MURDER AND SENTENCE OF LIFE; COUNT II, MURDER AND SENTENCE OF LIFE TO RUN CONCURRENTLY TO SENTENCE IN COUNT I; COUNT III, ARSON. AND SENTENCE OF TEN YEARS TO RUN CONSECUTIVELY TO SENTENCES IN COUNTS I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO YAZOO COUNTY.

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

THOMAS, J.,

Concurring.

¶ 25. I totally concur with the merits of the majority’s disposition of McGruder’s appeal; this case is a no-brainer insofar as it ought to be affirmed. I write separately to express my concern with the supreme court’s handling of this case procedurally and the handling of the appeal docket in general. I shall explain.

¶ 26. After McGruder appealed and all briefs were finally filed, the clerk of the court validated the case, which is to say, notified our courts all was ready for a ruling. After validation by the clerk, the case was sent to the central legal office at the supreme court for a review and recommendation as to whether the case should stay at the supreme court or be sent to the court of appeals. On a rotating basis, one of the supreme court justices reviews the central legal recommendation and signs an order to either have the supreme court retain the case or send it to the court of appeals. On August 19, 2002, the supreme court ordered that this case be sent to this Court for disposition. Thereafter, the case was assigned to a writing judge at random. The procedure is the same at the supreme court. The case then went to a three judge panel; after discussion and a decision, the writing judge wrote an opinion for the panel. After all three judges agreed on the opinion, the same was then circulated to all ten members of this Court.

¶27. In this case, all panel members concurred in the opinion, and ultimately all ten members of this Court concurred. A 9-0 opinion was released by this Court on January 21, 2003. See McGruder v. State, 835 So.2d 104 (Miss.Ct.App.2003). The mandate of the Court was issued on February 11, 2003. McGruder never filed a motion for rehearing, but on February 19, 2003, twenty-nine days after the decision was handed down, McGruder filed a “motion for time to file rehearing out of time,” not a motion for rehearing but a motion for additional time. See M.R.A.P. 40. This motion was denied by this Court on February 21, 2003. A petition for certio-rari was then filed by McGruder on March 6, 2003, despite the fact that McGruder never filed a motion for rehearing and this Court never ruled on a motion for rehearing. See M.R.A.P. 17(b). On May 29, 2003, the Supreme Court entered an order giving that court additional time to consider the petition for cert, despite the fact that M.R.A.P. 17(e) states that “[t]he Supreme Court shall act upon a petition for cert within ninety (90) days of the filing of the response.... The failure of the Court to issue such a writ within that period shall constitute a rejection of the petition and the petition shall be deemed denied.” Nothing in the rule adopted by the Supreme Court even suggests that the Court may delay its decision.

¶ 28. On June 26, 2003, some 112 days after cert was filed, the Supreme Court granted cert. Seventy-seven (77) days later (or 189 days since cert was filed), on September 11, 2003, the Supreme Court released its decision reversing our opinion by holding that the procedural bar which we had applied to McGruder’s appeal should not apply, and that we should have reached the merits of the case. However, without any explanation, the Supreme Court then bounced the case back to this Court for a ruling on the merits. Of course, after the Supreme Court’s ruling, the State had the right to file a petition for rehearing but they did not, and we received the case on October 2, 2003, (270 days starts again) for a decision on the merits. After this new decision is released, McGruder then has fourteen (14) days to file a petition for rehearing with us. Assuming it is denied, he will then have fourteen (14) days to file a petition for cert with the Supreme Court, which may of course grant or deny. Without question, and particularly in view of the fact this is a criminal case wherein the defendant received a life sentence (and all the defendant has is time), this case no doubt will wind up right back in the hands of the Supreme Court for a decision— either by a denial of cert or a new opinion if they grant cert.

¶29. This case is a monumental and unfortunate classic example of a waste of judicial economy and time.

¶ 30. I care not that the Supreme Court reversed us. My disgust is over the fact that once the Supreme Court initially granted cert that it did not go ahead and rule on the merits — this was not a complicated or voluminous case.

¶ 31. Since 1995, when this Court came into existence, specifically to help the Supreme Court alleviate its overcrowded docket, our appellate courts have issued the following number of written opinions (I do not count cases dismissed after the appeal notice is filed because that requires nothing more than a judge’s signature on a form order):

Decisions on the Merits

Supreme Court Court of Appeals

1995 565 525

1996 500 636

1997 484 706

1998 437 758

1999 420 620

2000 282 579

2001 331 548

2002 313 610

2003 297 543

¶ 32. It is readily apparent that the Court of Appeals is handling an overwhelming amount of the docket. I am not complaining about that. We have handled the numbers we have now and have handled even more in the past, all within the time the rule and law provides while we were trying to help get the backlog out of the way.

¶ 33. My complaint is on behalf of the trial bench, the bar, the litigants in the cases on appeal and the public in general.

¶ 34. Overloading this Court creates delay' — obviously it is easier and quicker to get out, say, ten opinions than five opinions during a term (we each have six terms of eight weeks each).

¶ 35. We all can do more. This Court has handled more than its fair share in the past and can and will do so if need be in the future.

¶ 36. The simple and plainly verifiable fact of the matter is that our Supreme Court is not timely and efficiently handling the docket it keeps, and unfortunately, in this particular case, has delayed a final result on a final decision coming out of this Court. This is not the first time. There was simply no need to send this case back to us.

¶ 37. At present this Court handles all workers’ compensation cases direct. We now handle all post-conviction relief cases except those wherein the death penalty has been imposed, a very few a year. We are also getting 80% of all direct criminal appeals except those, again, where the death penalty has been imposed. We also are getting more than our fair share of regular civil cases. All of this is being done with considerably less staff, and staff I might add, which by dictate from the Supreme Court without our input, is paid less than that of Supreme Court personnel. Contra Miss.Code Ann. § 9-4-13(2) (Rev. 2002).

¶ 38. The Supreme Court has acknowledged it has been slow, that it has taken too long to rule but that it is changing and will do better, be more efficient, and rule more quickly. All of that may be true, but it has not happened in almost ten years. If change does come about, it is obvious it is only going to occur because they have and will continue to dump the bulk of the load on this Court.

¶ 39. Problems in the appellate system can always cause delay, i.e., a judge may have to take a leave of absence, a judge may die or be defeated at the polls and the replacement then has to get up to speed so to speak, or a judge may be distracted by having to run for reelection. Problems aside, they serve as no valid excuse for the court as a whole to get behind; others should take up the slack, if any, for the short term.

¶ 40. Attributing delay over the fact some cases are allegedly harder or more complex is nothing more than an excuse for doing less and taking longer to rule. Anyone who believes or exposes the “hard and complex” argument is either a liar or needs to take a serious check with reality.

¶ 41. The old saying that “justice delayed is justice denied” is a truism that speaks volumes in what I am saying.

¶ 42. A rule that allows cameras in the courtroom (which I have always endorsed but which any trial judge on any given case can disallow), a rule which tries to stop forum shopping for a “friendly” court (which I endorse but which could have been handled quicker by slapping down the attorney and/or trial judge), a rule which attempts to stop the bunching of numerous unrelated cases in one friendly court and other such rules all sound nice and play well in a gullible media but ultimately have little impact on the administration of justice in this State.

¶ 43. As a former trial judge for twelve years, and after having sat on this Court for over nine years, one of the statements I have heard most often from the bench and attorneys is to the effect that they may or may not agree with our decision but they would at least like to see us render a quick and clear opinion so that they can more readily go on about their business. The bench, bar, litigants and public deserve no more, and we certainly ought to give them no less.

¶ 44. The comments I make herein are not to be taken as disrespectful of any individual or institution. Quite the contrary, it is because of my high regard for our judicial system and the members of the bench, bar, and populace that must live within it that I express my consternation with the way things are because I believe our system can do better, with not much effort.

      These represent the “official” numbers from the Supreme Court, but a cursory check against their decision lists shows that the actual number of decisions was more like 218.

      . Miss.Code Ann. § 9 — 4—3(5) (Rev.2002) provides: “The Supreme Court shall issue a decision in every case received on certiorari from the Court of Appeals within one hundred eighty (180) days....”

      . See Smith v. Parkerson Lumber, Inc. 2001-CA-00409, wherein cert was filed on July 30, 2002, but a ruling thereon was delayed by seven (7) orders of extension. When cert was ultimately granted on July 17, 2003, 849 So.2d 899 (Miss.2003), the Court thereafter entered a decision on October 9, 2003, - So.2d - (Miss.2003), reversing us and holding, like McGruder, that we were wrong to apply a procedural bar to an appeal (Smith was civil). Again, like McGruder, rather than rule on the merits, the case was bumped back to us for a ruling on the merits. See also Porkner v. State, 2001-CT-00754 SCT (Miss. Apr. 15, 2004); Deloach v. State, 2001-CT-01490 SCT, - So.2d -, 2004 WL 1066818 (Miss. May 13, 2004).


author: HOUSTON, Justice. PER CURIAM. SEE, Justice LYONS, Justice

text:
    SOUTHTRUST BANK v. COPELAND ONE, L.L.C., and Phenix Girard Bank.
    1020727.
    Supreme Court of Alabama.
    Sept. 5, 2003.
    Opinion Overruling Rehearing March 12, 2004.

      James J. Robinson and Jason D. Woodard of Burr & Forman, LLP, Birmingham; and Robert T. Meadows III of Capell & Howard, P.C., Opelika, for appellant.
    Wayne T. Johnson, Phenix City, for ap-pellee Copeland One, LLC.
    J. Tutt Barrett of Dean & Barrett, Ope-lika, for appellee Phenix-Girard Bank.
   HOUSTON, Justice.

This case involves the interpretation of a provision in a lease between SouthTrust Bank (“SouthTrust”) and Copeland One, L.L.C. (“Copeland One”). The lease, drafted by SouthTrust, provided for a freestanding automated teller machine (“ATM”) to be operated by SouthTrust on property owned by Copeland One (the “ATM lease”). The trial court determined that the provision in the ATM lease was ambiguous and entered a judgment for Copeland One. We affirm.

Facts and Procedural History

On April 1, 1983, SouthTrust entered into a lease with Octoco, Inc., pursuant to which SouthTrust leased from Octoco a building located on a parcel of property in Phenix City known as the Smiths Station Plaza Shopping Center (“Smiths Station Plaza”) to use as a branch bank (the “branch lease”). The branch lease expired on December 15, 1992, and was renewed for an additional 10-year period, which was to expire on December 15, 2002.

On January 10, 1997, SouthTrust and Octoco entered into the ATM lease, a lease wholly separate from the branch lease, pursuant to which SouthTrust would operate a freestanding ATM at Smiths Station Plaza located several hundred yards from the building housing the branch bank. The ATM lease was drafted by SouthTrust and was SouthTrust’s standard lease for freestanding ATMs. If SouthTrust exercises all of its options to renew the ATM lease, it will not expire until February 2008. The ATM lease provides that SouthTrust has the unilateral and sole authority to renew the ATM lease; Octoco does not have the option to cancel the ATM lease or to object to its renewal.

Section 5 of the ATM lease is entitled “Use of Premises.” Section 5.3 of the ATM lease reads:

“Exclusive ATM or Bank. Tenant [SouthTrust] shall have the exclusive right during the term of this lease and any renewals to operate an ATM or any other type of banking facility on the Property.[] This exclusive use provision may be enforced in an action to enjoin any use in violation of this provision.”

(Emphasis added.) (This lease provision is hereinafter referred to as “the exclusive-use provision.”)

On April 23, 1997, Octoco sold Smiths Station Plaza to Big Buy Foods, Inc. As part of the sale, Octoco assigned all leases related to Smiths Station Plaza, including the branch lease and the ATM lease, to Big Buy Foods. Each month SouthTrust issued two checks to Big Buy Foods, one for the branch lease and one for the ATM lease.

Early in 2002, SouthTrust and Big Buy Foods began negotiations for the renewal of the branch lease. Those negotiations continued until SouthTrust learned that Big Buy Foods had agreed to sell Smiths Station Plaza to Copeland One. SouthTrust contacted Fred Copeland, the majority owner of Copeland One, regarding .the renewal of the branch lease, but Mr. Copeland refused to discuss the matter until after the sale of Smiths Station Plaza to Copeland One had closed.

The sale of Smiths Station Plaza by Big Buy Foods to Copeland One closed on August 12, 2002. As part of the sale, Big Buy Foods assigned all leases for property in Smiths Station Plaza, including the branch lease and the ATM lease, to Copeland One.

For approximately a week after the sale, SouthTrust and Copeland One negotiated for the renewal of the branch lease. During that time, Copeland One received an offer from Phenix Girard Bank (“PGB”) to lease the branch bank building for a rental amount higher than the amount that SouthTrust was offering. On August 19, 2002-, Copeland One entered into a lease with PGB for the use of the branch bank building after the expiration of the branch lease (the “PGB lease”).

After signing the PGB lease, Copeland One informed SouthTrust that it would have to vacate the branch bank building on December 15, 2002, at the expiration of its lease. SouthTrust vacated the building as directed and reopened in a new location approximately one block from the branch bank building.

After it opened its branch bank at the new location, SouthTrust notified Copeland One that, pursuant to the exclusive-use provision of the ATM lease, SouthTrust had the exclusive right to operate a branch bank at Smiths Station Plaza. On September 5, 2002, Copeland One filed a complaint seeking a judgment declaring the parties’ rights under the ATM lease. SouthTrust filed an answer and a counterclaim; the counterclaim sought an injunction prohibiting PGB, or any other bank, from conducting banking operations at Smiths Station Plaza. In its counterclaim, SouthTrust contended that the exclusive-use provision of the ATM lease gave SouthTrust “the exclusive right to conduct banking operations on the Property. Copeland One is therefore prohibited from leasing any portion of the Property to any entity that would conduct any type of banking operations on the Property.” Both Copeland One and SouthTrust requested that PGB be added to the declaratory-judgment action as a real party in interest, and the court granted that request.

A three-day bench trial at which ore tenus evidence was presented was held beginning on December 12, 2002. At the conclusion of the bench trial, the trial court ordered the parties to submit written briefs. On January 23, 2003, the trial court entered a judgment in favor of Copeland One and PGB and against South-Trust. The entirety of the trial court’s findings are as follows:

“The above-styled case has been submitted upon the pleadings herein, evidence heard ore tenus by this Court, and the briefs and arguments of the parties. After hearing the evidence presented and carefully observing the demeanor of each witness as each testified, the Court is of the opinion that this case should be decided in favor of Copeland One, L.L.C. and against SouthTrust Bank. The Court further finds as follows:
“(a) The Court has jurisdiction of this case and the parties.
“(b) A justiciable controversy exists between the parties.
“(c) The document referred to in this case as the ATM lease’ is ambiguous, and as such, must be construed against the party drafting it, SouthTrust Bank.
“It is, therefore, ADJUDGED AND ORDERED:
“1. Judgment is entered in favor of Copeland One, L.L.C. and [PGB] on the counterclaim and claims of SouthTrust Bank.
“2. Copeland One, L.L.C. may enter into an agreement with [PGB] or any person or entity for the use as a branch bank of the building referred to in this case as the ‘branch bank building.’ ”

(Emphasis added.) In its holding, the trial court did not indicate the specific provision or provisions of the ATM lease it found ambiguous. This appeal followed.

Analysis

This Court set out the applicable standard for reviewing a trial court’s determination that a contract is ambiguous in Winkleblack v. Murphy, 811 So.2d 521, 525-26 (Ala.2001):

“The question whether a contract is ambiguous is for a court to decide. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293 (Ala.1999). As long as the contractual terms are clear and unambiguous, questions of their legal effect are questions of law. Commercial Credit Corp. v. Leggett, 744 So.2d 890 (Ala.1999). Thus, we apply a de novo review to a trial court’s determination of whether a contract is ambiguous and to a trial court’s determination of the legal effect of an unambiguous contract term.
“Once the trial court determines that an ambiguity exists in a contract, the meaning of that contract is to be determined by the trier of fact. Employees’ Benefit Ass’n v. Grissett, 732 So.2d 968 (Ala.1998); Glenlakes Realty Co. v. Norwood, 721 So.2d 174 (Ala.1998). In this case, the trier of fact was the trial court, and the court heard ore tenus evidence.
“ ‘Where ore tenus evidence is presented to the trial court in a nonjury ease, a judgment based on that evidence is presumed to be correct and will not be disturbed on appeal unless a consideration of the evidence and all reasonable inferences therefrom reveals that the judgment is plainly and palpably erroneous or manifestly unjust.’
“Bertolla v. Bill, 774 So.2d 497, 503 (Ala.1999)(quoted in Redden v. State, 804 So.2d 196 (Ala.2001)).”

In this case, the trial court was the trier of fact and heard ore tenus evidence. Following the standard set out in Winkle-black, supra, we must engage in a two-part analysis. First, we must review de novo the trial court’s determination that the ATM lease is ambiguous. Second, if we find (as we do) that the ATM lease is ambiguous, we must then determine whether the trial court’s holding that Copeland One may enter into a lease agreement with PGB for the use of the branch bank building was “plainly and palpably erroneous or manifestly unjust.”

Ambiguity of the ATM Lease

This controversy circulates around the language in the exclusive-use provision of the ATM lease, which states, in pertinent part, that “[SouthTrust] shall have the exclusive right during the term of this lease and any renewals to operate an ATM or any other type of banking facility on the Property.” (Emphasis added.) South-Trust argues that the trial court erred in holding that the ATM lease is ambiguous and thus that it must be construed against SouthTrust, as the drafter of the ATM lease. According to SouthTrust, the language in the exclusive-use provision is clear and it gives SouthTrust the sole right to operate a bank at Smiths Station Plaza during the period the ATM lease is in effect.

In briefs submitted to this Court, the parties focus on the term “banking facility” as that term is used in the ATM lease. SouthTrust argues that the meaning of that term is clear and unambiguous; Copeland One and PGB argue that it is ambiguous. The ATM lease does not define the term “banking facility,” but, as SouthTrust correctly points out, an inherent ambiguity is not created merely by the use in a document of an undefined word. See Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 692 (Ala.2001). The term “banking facility” as used in the ATM lease should be given its “ordinary, plain, and natural meaning.” See Winkleblack, 811 So.2d at 527 (quoting Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000)). We agree with South-Trust that the term “banking facility” as used in the ATM lease should be interpreted to mean “any type of building or structure from which banking operations are conducted.” (SouthTrust’s brief at 17.) The branch bank building located at Smiths Station Plaza is clearly included within this definition.

We do not find that the ATM lease is ambiguous based on the use of the term “banking facility”; rather, we find that the use of the word “or” is the cause of the ambiguity.

‘Every use of “and” or “or” as a conjunction involves some risk of ambiguity.’ Maurice B. Kirk, Legal Drafting: The Ambiguity of And’ and ‘Or,’ 2 Texas Tech L.Rev. 235, 253 (1971)(emphasis in original). Thus, in the main text of Words and Phrases (1953)' — excluding pocket parts — the word ‘and’ takes up 61 pages of digested cases interpreting it in myriad ways, and the word ‘or’ takes up another 84 pages of digested cases interpreting it in an equally broad array of senses. Virtually every book on drafting legal documents contains a section on the ambiguity of the two words.
“Authorities agree ... that or has an inclusive as well as an exclusive sense. Hence:
“The ‘inclusive or’: A or B, or both.
“The ‘exclusive or’: A or B, but not both.”

Bryan A. Garner, A Dictionary of Modern Legal Usage 624 (2d ed.1995).

Following the above reasoning, one could read the “or” in the exclusive-use provision of the ATM lease as being inclusive or exclusive. The provision in the ATM lease stating that SouthTrust “shall have the exclusive right during the term of this lease and any renewals to operate an ATM or any other type of banking facility” at Smiths Station Plaza could be construed to mean either 1) that SouthTrust has the exclusive right during the term of the ATM lease to operate an ATM at Smiths Station Plaza or the exclusive right to operate any other type of banking facility at Smiths Station Plaza, or the exclusive right to operate both an ATM and any other type of banking facility at Smiths Station Plaza; or 2) that SouthTrust has the exclusive right during the term of the ATM lease to operate an ATM at Smiths Station Plaza or to operate any other type of banking facility at Smiths Station Plaza, but it does not have the exclusive right to operate both an ATM and any other type of banking facility at Smiths Station Plaza.

The above two readings of the exclusive-use provision, one reading the “or” as inclusive and the other reading the “or” as exclusive, render completely different meanings. ‘When any aspect of a contract is capable of more than one meaning, it is ambiguous.” Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997); see also Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So.2d 314, 317 (Ala.1993); Cannon v. State Farm Mut. Auto. Ins. Co., 590 So.2d 191, 194 (Ala.1991). Therefore, because the exclusive-use provision is susceptible of two interpretations, the ATM lease is ambiguous.

Construction of the ATM Lease

It is a well-established rule of contract construction that any ambiguity in a contract must be construed against the drafter of the contract. Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 661 (Ala.2001); Birmingham News Co. v. Lynch, 797 So.2d 440, 443 (Ala.2001); Brewbaker Motors, Inc. v. Belser, 776 So.2d 110, 112 (Ala.2000); Strickland v. General Motors Acceptance Corp., 578 So.2d 1275, 1277 (Ala.1991); Lilley v. Gonzales, 417 So.2d 161, 163 (Ala.1982); Alabama-Tennessee Natural Gas Co. v. City of Huntsville, 275 Ala. 184, 153 So.2d 619, 628 (1963). Because SouthTrust drafted the ATM lease, any ambiguity in that lease must be construed against it. Under this rule of construction, the “or” in the exclusive-use provision should be considered exclusive, acting as a disjunctive conjunction, rather than inclusive.

Interpreting the ATM lease most strongly against the drafter, SouthTrust, we construe the ambiguous exclusive-use provision to mean that SouthTrust has the exclusive right during the term of the ATM lease and any renewals of the ATM lease to operate an ATM at Smiths Station Plaza or that SouthTrust has the exclusive right during the term of the ATM lease and any renewals of the ATM lease to operate any other type of banking facility at Smiths Station Plaza; it does not mean, however, that SouthTrust has the exclusive right during the term of the ATM lease and any renewals of the ATM lease to operate both an ATM and any other type of banking facility at Smiths Station Plaza. This construction allows Copeland One to lease the branch bank building to another bank while the ATM lease is in effect.

Therefore, the trial court’s holding that Copeland One properly entered into a lease pursuant to which PGB would conduct banking activities in the branch bank building at Smiths Station Plaza was not plainly or palpably erroneous. We affirm.

AFFIRMED.

LYONS, BROWN, JOHNSTONE, and WOODALL, JJ., concur.

On Application for Rehearing

PER CURIAM.

Matters not argued in an appellant’s brief on original submission cannot be raised for the first time on application for rehearing. As this Court recently recapitulated this rule:

“[Respondent] raises [this argument] for the first time in its application for rehearing.... We can not sanction the practice of bringing up new questions for the first time, in an ex parte application for rehearing.’ Robinson v. Allison, 97 Ala. 596, 604, 12 So. 604 (1893) (on application for rehearing). ‘We cannot sanction the practice of bringing up new questions for the first time in application for rehearing.’ Kirkland v. Kirkland, 281 Ala. 42, 49, 198 So.2d 771, 777 (1967) (on application for rehearing). ‘We cannot sanction the practice of bringing up new questions for the first time in applications for rehearing.’ Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 735, 310 So.2d 210, 212 (1975) (on application for rehearing). ‘New supporting arguments presented for the first time on rehearing generally will not be considered.’ Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251, 253 (Ala.1985) (on application for rehearing). ‘[T]his argument was raised for the first time on application for rehearing, and therefore will not be considered.’ Schulte v. Smith, 708 So.2d 138, 141 n. 2 (Ala.1997) (on application for rehearing).”

Ex parte Lovejoy, 790 So.2d 933, 938-39 (Ala.2000).

This principle precludes us from considering, on the merits, the argument SouthTrust now makes on application for rehearing concerning the proper construction and resolution, contrary to the one we adopted in our original opinion of September 5, 2003, of the ambiguity we found to attend the use of “or” in the phrase “an ATM or any other type of banking facility on the property.”

In the post-hearing “brief and closing argument” Copeland One filed with the trial court, it argued that the lease was ambiguous because, among other things, “[s]ection 5.3 contains the disjunctive ‘or’ in the phrase ATM or any other banking facility.” Later in that brief, Copeland One stated the well-established principle that a contract is ambiguous when one or more of its terms is reasonably susceptible to more than one interpretation, and argued that because the use of the disjunctive “or” in the phrase “ATM or any other type of banking facility” was ambiguous, the ambiguity must be construed against South-Trust, as the drafter of the lease.

In its responsive trial brief, SouthTrust forwent any argument about proper resolution of the ambiguity Copeland One claimed the use of the word “or” created, taking the position instead that there was “nothing ambiguous about this phrase.” SouthTrust, in its “Appellant’s Opening Brief’ to this Court never argued or even took notice of the ambiguity created by the use of the word “or.” Rather, SouthTrust addressed ambiguity versus unambiguity only in the context of the phrase “banking facility.” In its brief on appeal, Copeland One argued again its contention that the use of “or” created ambiguity. In its reply brief SouthTrust likewise again argued only that “[t]here is nothing ambiguous about this phrase.... ” Thus, before the issuance of our original opinion, South-Trust argued only that the “or” component of the phrase created no ambiguity.

Accordingly, we will not entertain the new position it argues for the first time on rehearing concerning the proper construction to be accorded the ambiguity created by the use of the word “or.”

APPLICATION OVERRULED.

HOUSTON, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

SEE and LYONS, JJ., dissent.

SEE, Justice

(dissenting).

The provision at issue in this case, Section 5.3 of the ATM lease, states, in relevant part:

“Exclusive ATM or Bank. Tenant [SouthTrust] shall have the exclusive right during the term of this lease and any renewals to operate an ATM or any other type of banking facility on the Property.”

SouthTrust argued below and in its initial brief to this Court that the provision is unambiguous. The provision is unambiguous: its clear intent is that no one but SouthTrust may operate an ATM or any other type of banking facility on the property. Therefore, I respectfully dissent.

LYONS, Justice

(dissenting).

When this Court released its original opinion in this case, I concurred. Upon further consideration of that opinion, I believe I should have dissented. I would, therefore, grant the application for rehearing and I must dissent from the overruling of the application for rehearing.

SouthTrust Bank’s standard ATM lease contains a paragraph with the introductory phrase “Exclusive ATM or Bank.” That paragraph provides that SouthTrust Bank has the exclusive right to operate an ATM or any type of banking facility at the location of the ATM that is the subject of the lease. I would find that the lease unambiguously gives SouthTrust Bank the exclusive right to operate both an ATM and any other banking facility at that location.

The operation of an ATM is the sole reason for executing such a lease. If, as the Court’s opinion holds, this paragraph confers upon SouthTrust Bank the option to elect between an exclusive right to operate an ATM or an exclusive right to operate a bank, but not both, the inevitable result, upon the execution of the ATM lease, is the election of the exclusive right to operate an ATM, thereby making the option of the exclusive right to operate a banking facility a practical impossibility. I would reverse the trial court’s judgment, which was based on its finding that the lease is ambiguous, especially in light of the fact that SouthTrust Bank was already operating the only bank on the property when the ATM lease was executed.

Under the logic of the original opinion, I must assume that Phenix Girard Bank will not be allowed to have an ATM at its banking facility because SouthTrust Bank, pursuant to its ATM lease, has that exclusive right. Such an anomalous result underscores the bizarre consequences of the original opinion’s treatment of the ATM lease.

      . The term "Property” is defined and described in the ATM lease as Smiths Station Plaza.

      . Following the bench trial, the trial court requested that the parties brief the issue of what is meant by the term "banking facility" as that term is used in the ATM lease.

      . This Court can affirm the trial court’s judgment for any reason, even a reason not given by the trial court. Cutler v. Orkin Exterminating Co., 770 So.2d 67, 71 (Ala.2000); Ex parte City of Fairhope, 739 So.2d 35, 39 (Ala.1999).

      . I understand that language itself has sufficient intrinsic ambiguity that an argument, compellingly and persistently made, when dwelt upon can cause one to doubt the clarity of anything; but there is no real doubt as to the intention of the language used here. See Garrett & Assocs. Real Estate, Inc. v. Colonial Realty Ltd., 840 So.2d 905, 907 (Ala.Civ.App. 2002) ("We recognize that ' "[t]he mere fact that adverse parties contend for different constructions does not in itself force the conclusion that the disputed language is ambiguous.” ’ ”) (quoting Ex parte Awtrey Realty Co., 827 So.2d 104, 107 (Ala.2001)), and Southland Quality Homes, Inc. v. Williams, 781 So.2d 949, 953 (2000), citing Universal Underwriters Life Ins. Co. v. Dutton, 736 So.2d 564, 570 (Ala.1999) ("A court may not twist the plain meaning of the terms in a contract to create an ambiguity under the guise of interpretation.”).