author: THOMAS, J.,

text:
    James R. RUSHING, Jr. a/k/a Devil Catcher, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CA-00438-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2003.
    Rehearing Denied Jan. 20, 2004.
    Certiorari Denied May 20, 2004.

      James A. Williams, Brookhaven, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the Court.

¶ 1. James R. Rushing, Jr., a/k/a Devil Catcher, appeals an order of the Circuit Court of Lauderdale County denying his petition for post-conviction relief. Aggrieved, Rushing asserts the following issues on appeal:

I. WHETHER A DEFENDANT IS DENIED DUE PROCESS OF LAW AND FUNDAMENTAL FAIRNESS WHEN THE HEARING JUDGE FINDS THAT HAD THE RECANTING WITNESS TESTIFIED THERE WAS NO WAY TO KNOW WHAT SHE WOULD SAY, WHETHER TO SUPPORT HER TRIAL TESTIMONY OR RECANT IT, AND DENIES A NEW TRIAL BY FINDING THAT RECANTING DEPOSITION WAS THE RESULT OF PRESSURE, WHERE THE ULTIMATE FINDING OF TRUTH AT TRIAL IS CLEARLY ERRONEOUS AND NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND A NEW TRIAL SHOULD BE ORDERED.
II. WHETHER THE STANDARD OF REVIEW IS ONE OF DE NOVO RATHER THAN DEFERENCE WHEN THE HEARING JUDGE REFLECTS IN HIS OPINION AND RULING THAT THE RECANTING WITNESS CANNOT BE RELIED UPON TO TELL THE TRUTH, BUT FAULTS THE PRISONER FOR NOT CALLING HER AS HIS WITNESS WHERE THE DISTRICT ATTORNEY HAS OBTAINED HER AFFIDAVIT REAFFIRMING HER TRIAL TESTIMONY AND THAT SUCH BELIEF IN THE FINAL DISTRICT ATTORNEY’S AFFIDAVIT REFLECTS THAT THE HEARING JUDGE HAS ACCEPTED THE BELIEF THAT THE DISTRICT ATTORNEY’S AFFIDAVIT IS THE TRUTH WITHOUT SUFFICIENT EVIDENCE AND A NEW TRIAL SHOULD BE ORDERED.
III. WHETHER A DEFENDANT IS DENIED DUE PROCESS OF LAW, THE RIGHT TO CONFRONTATION AND FUNDAMENTAL FAIRNESS WHEN A RECANTING VICTIM’S HEARSAY STATEMENTS TO THE DISTRICT ATTORNEY ARE ALLOWED INTO EVIDENCE RESULTING IN A FINDING. THAT THE RECANTING DEPOSITION AND AFFIDAVITS WERE THE RESULT OF PRESSURE, WHEN THE RECANTING VICTIM HAS BECOME THE DISTRICT ATTORNEY’S WITNESS IN AN AFFIDAVIT ON THE EVE OF THE POST-CONVICTION RELIEF HEARING WHERE SHE REAFFIRMS HER TRIAL' TESTIMONY BUT THE DISTRICT ATTORNEY DOES NOT CALL HER TO THE STAND.
IV. WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION UPON A HEARING OF THE PRISONER’S MOTION FOR RECONSIDERATION WHICH ATTACHED AFFIDAVITS WHICH MATERIALLY CONTRADICTED THE STATE’S EVIDENCE AT THE EVIDENTIARY HEARING BY REFUSING TO CONSIDER THE AFFIDAVITS AND REFUSING TO RECONSIDER THE DENIAL OF POST-CONVICTION RELIEF AND THUS DEFENDANT IS DENIED DUE PROCESS OF LAW, THE RIGHT TO CONFRONTATION AND FUNDAMENTAL FAIRNESS.

Finding no error, we affirm.

FACTS

¶ 2. James R. Rushing, Jr. was convicted in the Circuit Court of Lauderdale County of aggravated assault and rape and was sentenced to twenty years on the aggravated assault and ten years on the rape conviction. On direct appeal the conviction and sentences.were affirmed by this Court. On Rushing’s petition for rehearing, the original opinion was withdrawn and the rape conviction and sentence were affirmed while the aggravated assault conviction was reversed and remanded. Rushing v. State, 753 So.2d 1136 (Miss.Ct. App.2000). Rushing filed a petition for certiorari with the Mississippi Supreme Court which was denied on April 17, 2000. Rushing then filed a petition for post-conviction relief with the Mississippi Supreme Court that was denied in part and granted in part with regard to the issue of “victim’s recanted testimony.” Rushing v. State, No.2000-M-01803 (Miss. Aug. 8, 2001).

¶ 3. The victim gave two affidavits where she denied a rape had occurred and admitted to lying and exaggerating the circumstances. Several months later, the victim gave an affidavit to the district attorney saying she was coerced into recanting her testimony and she reaffirmed her trial testimony that she was raped by Rushing. A post-conviction evidentiary hearing was held on September 19, 2001. Rushing was represented by counsel, and the trial court heard testimony from Rushing, the victim’s attorney, Rushing’s appellate counsel, and a relative of the victim. Various affidavits of the victim were admitted into evidence as well as her deposition. The victim did not testify. After the hearing, the trial court denied Rushing’s motion for post-conviction relief. Rushing filed a motion for reconsideration and another hearing was held where the trial court denied the motion. Rushing then perfected an appeal to this Court.

ANALYSIS

¶ 4. Rushing’s assignments of error all essentially present the same argument. Rushing is aggrieved because the State did not call the rape victim to testify at the evidentiary hearing. Lacking the victim’s testimony, the trial judge made his decision based upon other testimony and evidence presented by both the defendant and the State. An evidentiary hearing is held so that the trial court can better evaluate the testimony of the recanting witness. Hardiman v. State, 789 So.2d 814, 817(¶ 12) (Miss.Ct.App.2001). On remand to the trial court, the burden is on the defendant as petitioner to establish the facts by a preponderance of the evidence that he would be entitled to the relief he seeks. Payton v. State, 845 So.2d 713, 716(¶ 8) (Miss.Ct.App.2003). This Court is thus reviewing an ultimate finding of fact, made by the trial judge sitting without a jury. Yarborough v. State, 514 So.2d 1215, 1220 (Miss.1987). The standard of review after an evidentiary hearing in post-conviction relief cases is well settled: “We will not set aside such a finding unless it is clearly erroneous.” Reynolds v. State, 521 So.2d 914, 918 (Miss.1988). Even if there is evidence to support the defendant’s claims, we will not vacate such a finding unless after examining all of the evidence we are left with the definite and firm conviction that a mistake has been made. Id.

¶ 5. At the hearing, Rushing chose not to call the victim as a witness, because as he states in his reply brief, “she had been coerced by the District Attorney and his staff to give an affidavit wherein she attempted to repudiate the recantations presented by Rushing.” Instead, Rushing through counsel presented the deposition of the victim taken by his counsel where she purportedly recanted her trial testimony. Rushing himself testified as well. The record shows that the victim was present in the courthouse and was therefore available to testify if called. The State presented the affidavit of the victim which explained that the recanted testimony was coerced and that she was tired of the phone calls she was receiving and that she could not live with herself if she did not tell the truth. After hearing the evidence, the trial court found that the trial testimony and most recent affidavit at the district attorney’s office affirming the trial testimony were truthful, and that the deposition taken by Rushing’s counsel was coerced.

¶ 6. Rushing now asserts that this Court should adopt a de novo standard of review for this appeal. It is the opinion of the State that the case at bar is a factual issue and that the trial judge applied the correct legal standard in his conclusions of law. We agree. The appropriate standard of review for denial of post-conviction relief after an evidentiary hearing is the clearly erroneous standard. Reynolds, 521 So.2d at 917-18. Rushing is aggrieved because the victim did not testify at the evidentiary hearing. The burden of proof was on him, however, and he had the opportunity to call the victim; he declined. “[I]t is the right and duty of the [trial] court to deny a new trial where it is not satisfied that such [recantation] testimony is true. Especially is this true where the recantation involves a confession of perjury.” Turner v. State, 771 So.2d 973, 977(¶ 12) (Miss.Ct.App.2000) (quoting Bradley v. State, 214 So.2d 815, 817 (Miss.1968)). The trial court was not only presented with a recantation by deposition, but with an affidavit that the recantation was coerced. The trial court did not err in its rulings and Rushing did not meet his burden of proof.

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

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


source: Caselaw Access Project

author: KING, P.J.,

license: Public Domain

text:
    Corey SUTTON, Appellant v. STATE of Mississippi, Appellee.
    Nos. 2002-CA-01041-COA to 2002-CA-01043-COA.
    Court of Appeals of Mississippi.
    Feb. 10, 2004.
    Rehearing Denied April 27, 2004.

      Gary Keith Silberman, Jackson, for Appellant.
    Office of the Attorney General by John R. Henry, for Appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   KING, P.J.,

for the Court.

¶ 1. Corey Sutton has appealed from an order denying post-conviction collateral relief entered by the Hinds County Circuit Court First Judicial District. On September 2, 1997, Sutton pled guilty to three counts of armed robbery. He was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections, with thirteen years suspended, and seven years to serve on each of the three counts. These sentences were to run concurrently. On appeal, Sutton raises the following issues:

I. Whether his guilty pleas were voluntary.

II. Whether he received effective assistance of counsel.

¶ 2. Sutton’s issues in the appeal of each of his convictions are identical. Therefore, we have consolidated the cases.

FACTS

¶3. On January 23, 1997, Sutton was arrested and charged with armed robbery. At the time of his arrest, he was sixteen years old.

¶ 4. In April 1997, Sutton was indicted for armed robbery. In June 1997, he was indicted on two additional counts of armed robbery.

¶ 5. On September 2, 1997, a plea hearing was conducted where Sutton, represented by counsel, pled guilty to each count of armed robbery. At the hearing, the trial judge questioned Sutton to determine whether his pleas of guilty were knowingly and voluntarily made.

¶ 6. The trial judge asked Sutton whether he had an opportunity to fully discuss with his attorney the facts and circumstances surrounding the offenses. Sutton indicated that he had discussed such facts regarding the offenses which would be necessary to his defense. Upon inquiry by the court, Sutton stated that he had not been threatened nor coerced into pleading guilty, and that his attorney had discussed the elements of the crimes charged with him. Sutton indicated that there had been no promises made to him in exchange for pleas of guilty. He stated that he was freely and voluntarily admitting that he was guilty of the crimes charged.

¶ 7. The trial judge advised Sutton of his right to a trial by jury and the right to testify or not testify in his own behalf as he chose. The trial judge advised Sutton of his right to confront and cross-examine witnesses against him and his right to subpoena witnesses to testify in his behalf. The trial judge informed Sutton that guilty pleas would waive these rights. Sutton acknowledged that a plea of guilty would waive these rights.

¶8. The trial judge questioned Sutton regarding his attorney’s services. Sutton stated that he was satisfied with his attorney’s representation in each case. The trial judge then asked Sutton if he had any questions concerning the charges pending against him which had not been answered either by his attorney or the district attorney’s office. Sutton indicated that he had no questions. The trial judge informed Sutton that the trial court would not be bound by a plea bargain agreement and that the court could impose a sentence up to but not including life expectancy on each offense, and could cause the sentences to run consecutively. Sutton stated that he understood this.

¶ 9. Based upon Sutton’s responses to the court’s questions, the trial judge determined that Sutton’s pleas of guilty had been freely and voluntarily entered.

¶ 10. The State recommended that Sutton be sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections, with thirteen years suspended, seven to serve, and upon release, five years of supervised probation. The court accepted the recommendations of the State and allowed those sentences to run concurrently with credit given for time served.

¶ 11. On September 5, 2000, Sutton filed a petition for post-conviction collateral relief alleging that his pleas were not knowingly and voluntarily made. On January 31, 2001, his petition was dismissed as not being filed within the statutory limits set out in Mississippi Code Annotated Section 99-39-5(2) (Rev.2000). On February 9, 2001, Sutton filed a motion to vacate judgment indicating that the due date for his petition for post-conviction collateral relief fell on a Saturday and that the following Monday was Labor Day, a legal holiday, and that the first day the court would be open was September 5, 2000, which is when he filed his petition. On February 27, 2001, his motion was granted.

¶ 12. On September 13, 2001, the trial court conducted an evidentiary hearing on Sutton’s claims for post-conviction collateral relief. At this hearing, Sutton claimed that his attorney had misadvised him regarding parole eligibility. According to Sutton, his attorney told him that he would serve eighty-five percent of the seven years and be eligible for parole based on “good time” or “earned time.” Sutton indicated that had he known that this information was incorrect, he would not have pled guilty.

¶ 13. Sutton’s mother testified and provided information regarding the attorney’s discussion with Sutton as well.

ISSUES AND ANALYSIS

I.

Whether his guilty pleas were voluntary.

¶ 14. Sutton argues that he was given erroneous information regarding parole eligibility and that such misinformation resulted in his pleas being involuntary. He also alleges that he did not receive information concerning the consequences of his pleas which would likewise render them involuntary.

¶ 15. The issues of voluntariness and informed consent are addressed by Rule 8.04(A)(3) and (4) of the Uniform Circuit and County Court Rules which states:

3. Voluntariness. Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.
4. Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:
a. That the accused is competent to understand the nature of the charge;
b. That the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law;
c. That the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination; if the accused is not represented by an attorney, that (s)he is aware of his/her right to an attorney at every stage of the proceeding and that one will be appointed to represent him/ her if (s)he is indigent.

Pursuant to this rule Sutton’s pleas may only be considered as having been voluntarily made if he was properly advised by counsel and had a full understanding of the consequences of his actions. Johnston v. State, 810 So.2d 624(¶ 6) (Miss.Ct.App.2002).

¶ 16. In an effort to ascertain that Sutton had been properly advised and fully understood the consequences of his actions, the trial court questioned Sutton under oath as relates to those items set forth in Rule 8.04(A)(4). Sutton responded (1) that he had fully discussed the ease with his attorney including the elements of the offense and any possible defenses, (2) that he was satisfied with the services rendered by his attorney, (3) that he understood the specific rights available to him and that a guilty plea waived those rights, and (4) that he had committed the charged offense.

¶ 17. Based upon Sutton’s sworn testimony, the court determined that Sutton’s guilty pleas were knowingly and voluntarily entered. In a request for post-conviction relief, a trial court is entitled to place great weight on the testimony given at a plea hearing. Templeton v. State, 725 So.2d 764(¶ 10) (Miss.1998). An individual requesting post-conviction relief who desires that either the trial court or this Court reject that sworn testimony carries a heavy burden of persuasion. Baker v. State, 358 So.2d 401, 403 (Miss.1978). In meeting that burden of persuasion, Section 99-39-9 of the Mississippi Code Annotated, requires that the movant for post-conviction relief include with his filing an affidavit setting forth those facts and proof of facts within the scope of his personal knowledge as well as those beyond his personal knowledge. Sutton offered an affidavit of mere conclusions. Both Sutton and his mother testified that he was misinformed about parole eligibility. However, each of them differs as to what was allegedly said to Sutton. “Experience teaches all courts a healthy skepticism toward recanted testimony.” Turner v. State, 771 So.2d 973(¶ 10) (Miss.Ct.App.2000). This is particularly true when a movant for post-conviction relief now seeks to contradict testimony given during his plea hearing. Under these circumstances, this Court finds no error in the denial of post-conviction relief.

II.

Whether he received effective assistance of counsel.

¶ 18. In his second issue, Sutton claims that he received ineffective assistance of counsel in that his attorney gave him misinformation regarding the length of time he would have to serve. As noted in the prior discussion, Sutton’s affidavit offered no evidence but consisted merely of conclusory statements. While Sutton is correct under White v. State, 751 So.2d 481(¶ 6) (Miss.Ct.App.1999), that “mistaken advice of counsel may also vitiate a guilty plea in some cases.” This includes mistaken advice regarding parole eligibility since the Mississippi Supreme Court also acknowledged that parole eligibility is a consequence of which attorneys should advise their clients in order to enter a voluntary plea. Id. at (¶ 7).

¶ 19. However, to maintain a claim of ineffective assistance of counsel, a petitioner must show (1) a deficiency of counsel’s performance (2) sufficient to constitute prejudice to the defense. Walker v. State, 703 So.2d 266(¶ 8) (Miss.1997). Sutton does not question his guilt, nor does he suggest any impairment to any defense which might have been available to him. Under these circumstances, we decline to hold that Sutton received ineffective assistance of counsel.

¶ 20. THE JUDGMENT OF THE FIRST JUDICIAL DISTRICT OF THE HINDS COUNTY CIRCUIT COURT DENYING POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MYERS, J.,

text:
    Pinkie PULLIAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01446-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2004.
    Rehearing Denied May 18, 2004.

      Stephen P. Livingston, New Albany, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Pinkie Pulliam was convicted in the Circuit Court of Union County for the sale of a controlled substance. He was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections with eight years suspended Aggrieved by the result, Pulliam perfected this appeal raising the following issues for our review.

I. WAS THE EVIDENCE PRESENTED AT TRIAL SUFFICIENT TO SUSTAIN A GUILTY VERDICT?

II. DID THE TRIAL COURT ERR IN REFUSING JURY INSTRUCTIONS D-2, D-6, D-8, D-12 AND D-13?

III. DID THE TRIAL COURT ERR IN ALLOWING THE STATE’S WITNESS TO COMMENT ON THE VIDEOTAPE?

IV. DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO INTRODUCE EVIDENCE OF THE APPELLANT’S PRIOR CRIMES?

STATEMENT OF FACTS

¶ 2. Timothy Smithey, an officer with the New Albany Union County Drug Task Force, conducted a “pre-buy” meeting with a confidential informant named Reginald Williams. During the meeting, Smithey searched Williams and his vehicle. Smi-they wired Williams with audio and video equipment and gave him forty dollars to purchase cocaine. Smithey instructed Williams to drive to a house owned by Pulliam’s grandmother. Pulliam was living there at the time.

¶ 3. Williams proceeded to the house in question while Smithey and other officers remained nearby. Williams entered the house and stayed for a short time. Williams then left the house and returned to the “pre-buy” location. Williams turned the cocaine that he had purchased over to Smithey. Smithey searched Williams and his vehicle a second time. Williams was paid for his services and then left.

¶ 4. Smithey placed the substance he received from Williams into an evidence bag. Smithey sealed the evidence bag and sent it to the crime lab.

¶ 5. As a result, Pulliam was indicted and charged with the sale of a controlled substance in violation of Mississippi Code Annotated Section 41-29-139(a). The trial court appointed Pulliam counsel. The State called Smithey and Williams to testify. In addition, the State called Carole Karr, a forensic scientist with the Mississippi Crime Lab. Karr testified that the substance in question was, in fact, crack cocaine. Pulliam testified in his own defense. In addition, Pulliam called Smithey as a defense witness.

¶ 6. At the close of the evidence, the jury returned a guilty verdict. Pulliam filed a motion for judgment notwithstanding the verdict, or in the alternative, a motion for a new trial which was later denied. As a result, Pulliam filed the present appeal. Finding no error, we affirm.

I. WAS THE EVIDENCE PRESENTED AT TRIAL SUFFICIENT TO SUSTAIN A GUILTY VERDICT?

¶ 7. According to Pulliam, the State failed to present sufficient factual evidence to the jury for it to find him guilty beyond a reasonable doubt. Pulliam argues the evidence was insufficient because he was never identified by anyone other than Williams.

¶ 8. When someone raises the issue of legal sufficiency, we reverse only when “evidence of one or more of the elements of the charged offense is such that reasonable and fair-minded jurors could only find the accused not guilty.” Otis v. State, 853 So.2d 856, 865 (¶31) (Miss.Ct.App.2003). This standard of review applies to a trial court’s denial of both a motion for a directed verdict and a motion for judgment notwithstanding the verdict. Id. In addition, matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. Ferrell v. State, 810 So.2d 607, 610 (¶ 13) (Miss.2002).

¶ 9. We find that the trial court did not err in denying Pulliam’s motions for a directed verdict and for judgment notwithstanding the verdict. There was sufficient evidence presented by the State for reasonable and fair-minded jurors to find Pul-liam guilty of the sale of crack cocaine.

¶ 10. The taped footage taken from Pul-liam’s grandmother’s house shows Williams talked to Pulliam. Williams asked Pulliam for forty dollars worth of cocaine. Pulliam placed two small rocks on the table. Williams tendered the forty dollars to Pulliam and left the house.

¶ 11.. At trial, Williams unequivocally testified that Pulliam sold him the cocaine. Smithey testified that he recognized the voice on the tape as being Pulliam’s. The State’s expert testified that the two rocks that Pulliam placed on the table were co-eaine. More importantly, any determination as to the credibility of these witnesses was for the jury to decide. This issue lacks merit.

II.DID THE TRIAL COURT ERR IN REFUSING JURY INSTRUCTIONS D-2, D-6, D-8, D-12 AND D-13?

¶ 12. Pulliam argues the trial court committed reversible error in refusing defendant’s jury instructions D-2, D-6, D-8, D-12, and D-13. D-2 dealt with the jury’s verdict. The remaining jury instructions dealt with the State’s burden of proof.

¶ 13. The standard of review regarding a trial judge’s refusal of a jury-instruction is well settled. “Jury instructions are to be read together and taken as a whole with no one instruction taken out of context.” Austin v. State, 784 So.2d 186, 192 (¶ 18) (Miss.2001). A defendant is entitled to have jury instructions given which present his theory of the case. Id. However, “this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id.

¶ 14. Pulliam submitted fourteen jury instructions. The trial judge refused D-2 for two reasons. First, because it was duplicated by or cumulative with the court’s instruction (C-4). Second, because it contained “a partial form of the verdict which tends to confuse the jury.” We agree.

¶ 15. The trial judge was also correct in refusing D-6, D-8, D-12, and D-13. Specifically, D-6 was repetitive of D-5. Furthermore, D-13 was identical in language to D-5. D-8 was cumulative to D-10. Finally, D-12 is cumulative to D-7.

¶ 16. Reading the remaining jury instructions together and interpreting them as a whole, we find that the trial court did not err in refusing instructions D-2, D-6, D-8, D-12, and D-13. This issue lacks merit.

III. DID THE TRIAL COURT ERR IN ALLOWING THE STATE’S WITNESS TO COMMENT ON THE VIDEOTAPE?

¶ 17. Several times during the presentation of the video evidence, Williams was allowed to comment on the film. Pulliam argues that the trial court erred in allowing Williams’s comments because it invaded the province of the jury.

¶ 18. If a witness’s comments are used solely for the purpose of showing the jury exactly what was taking place, they are not only entirely permissible but also helpful to the jury. Blue v. State, 825 So.2d 709, 712 (¶ 12) (Miss.Ct.App.2002). This is to be distinguished from the circumstance where a witness attempts to place his own subjective interpretation of events transpiring in the video based on nothing beyond the witness’s own inspection of the contents of the videotape. Id. In other words, if the witness’s testimony is confined to matters actually perceived firsthand, there can be no improper prejudice to the defendant in permitting the witness to relate those observations to the jury during its viewing of the tape.

¶ 19. The video camera that captured the footage was attached to Williams’s clothing. As a result, Williams had firsthand knowledge. In addition, Williams’s testimony was confined to matters perceived firsthand. We find that the trial court did not err in allowing Williams’s comments. This issue is without merit.

IV. DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO INTRODUCE EVIDENCE OF THE APPELLANT’S PRIOR CRIMES?

¶ 20. Pulliam argues that the trial court committed reversible error in allowing evidence of other crimes at trial. The trial court’s admission of evidence will not be disturbed absent an abuse of discretion. Rambus v. State, 804 So.2d 1052, 1059 (¶ 20) (Miss.Ct.App.2001).

¶ 21. On direct examination, Pulliam testified that he had not sold drugs, that he was not a drug dealer, and that he was “only guilty of being a drug addict.” Pul-liam also testified that he had been convicted of a drug offense in 1984, but that “the Supreme Court overturned it.” After the defense tendered the witness, the State asked the court, outside the jury’s presence, for leave to impeach Pulliam by showing certain evidence. The State wanted to introduce evidence of three particular videotaped sales and ask Pulliam about two sales of marijuana and one sale of cocaine with which he was charged. The State specified that it was not proceeding under Mississippi Rule of Evidence 609, but was attempting to impeach Pulliam’s testimony that he had never sold drugs.

¶ 22. The trial court ruled as follows: The Court is of the opinion that that door has certainly been opened as to these charges and anything that falls within the frame work of that particular indictment that culminated in a conviction that resulted in a reverse that the State is entitled to look into that as far as they can reasonably go since the door has been opened as far as that particular charge even though ordinarily it would not be admissible since it culminated in an acquittal rendered by the Supreme Court.... The Court is of the opinion that the other charges would not be admissible under the rules of evidence, however the Court is of the further opinion that based on the testimony as the Court understands it offered by the defendant in this case is that if the tapes that the proffer made by the State as to what these other tapes might show if that bears proves to be true that under those circumstances that those particular tapes could be offered for impeachment purposes so I’m going to allow that testimony or that area of cross-examination for the purpose of impeachment assuming the tapes show what was stated.

¶ 23. Under the Mississippi Rules of Evidence, when a defendant “opens the door” by testifying that he has not sold drugs, it is permissible for the State to impeach him by inquiring into past drug sales which go towards the veracity of the defendant’s testimony. Scott v. State, 796 So.2d 959, 967 (¶26) (Miss.2001). The trial court limited its ruling to those matters brought out by Pulliam himself on direct examination. Moreover, the court instructed the jury that the evidence in question could not be considered to prove character in conformity, but only for evaluating Pulliam’s character for truthfulness or untruthfulness.

¶ 24. We find the trial judge did not abuse his discretion in this instance. Pul-liam’s final issue is without merit.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH EIGHT YEARS SUSPENDED, FIVE YEARS’ POST-RELEASE SUPERVISION AND $40 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO UNION COUNTY.

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


text:
    Jermaine MOORE a/k/a P.J., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01596-COA.
    Court of Appeals of Mississippi.
    March 2, 2004.
    Rehearing Denied May 18, 2004.

      Ross R. Barnett, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   KING, P.J.,

for the Court.

¶ 1. Jermaine Moore was convicted of possession of cocaine by the Circuit Court of Leake County. As a second time drug offender, he was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Moore raises the following issues on appeal which we quote verbatim:

I. The lower court erred in failing to grant appellant Jermaine Moore’s motion for continuance.
II. Defendant’s motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, should have been granted, since the verdict was against the overwhelming weight of the evidence.
III. The trial court erred in failing to grant Jermaine Moore’s motion to suppress.
IV. Jermaine Moore was denied his constitutional [sic] protected right to assistance of adequate and effective trial counsel.
V. The sentence was disproportional.
VI. The cumulative error below requires reversal.

FACTS

¶ 2. On March 22, 2002, at approximately 12:25 a.m., Officers Shane Lang and Dustin Sanders, of the Carthage Police Department, stopped a vehicle driven by Carl Lewis because the vehicle did not have a tag. Moore was a passenger in the vehicle.

¶ 3. As Lang approached the driver’s side of the vehicle shining his flashlight in the vehicle, he saw “a bag with a white rocky looking substance sitting upside the gear shift,” which was later determined to be cocaine. He then asked Lewis and Moore to step out of the vehicle. When Lewis stepped out of the vehicle, Lang saw another bag which contained “a green leafy substance,” later determined to be marijuana. Officer Lang advised Lewis and Moore of their Miranda rights in the presence of Officer Sanders, arrested them, and transported them to the Leake County Jail.

¶ 4. At the jail, Officer Lang told Tony Quick, the booking officer, to charge Lewis and Moore with possession of a controlled substance. According to Lang, at that point Moore stated, “Don’t charge him [Lewis] with it, it’s mine.” Moore did not indicate which substance he was referring to.

¶ 5. Moore was indicted on August 28, 2002, for possession of cocaine as a second time offender in violation of Mississippi Code Annotated Sections 41-29-139(c)(1)(B) and 41-29-147 (Rev.2001). On September 3, 2002, Moore’s case was called for trial. Moore asked for a continuance so that he could hire an attorney and investigate the case. That motion was denied. The case proceeded to trial and Moore was convicted that same day. On September 5, 2002, he was sentenced to fifteen years in the custody of the Mississippi Department of Corrections. Moore’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial was denied.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in failing to grant Moore’s motion for a continuance.

¶ 6. Moore contends that the trial court erred by denying his motion for a continuance. According to Moore, he asked the trial judge for a continuance so that he could hire an attorney and investigate his case. Moore was represented by two court-appointed attorneys.

¶ 7. The record reflects that the trial judge denied the motion for continuance because the case had been set for trial, witnesses had been summoned, jurors had been impaneled, and the attorney that Moore intended to hire had been given the opportunity to represent him but declined to do so.

¶ 8. The decision to grant or deny a continuance is left to the sound discretion of the trial court. Lambert v. State, 654 So.2d 17, 22 (Miss.1995). Unless manifest injustice appears to have resulted from the denial of the continuance, this Court should not reverse. Id.

¶ 9. The record reflects that Moore was indicted on August 28, 2002, arraigned on August 29th, and the case was set for trial on September 3, 2002. After voir dire, Moore asked the trial judge for a continuance indicating that he had been trying to hire an attorney from the time of his incarceration on March 22, 2002. The attorney that Moore had contacted, but not retained to represent him, was present on the day of trial and stated that he had some other cases to present but that he was not there to represent Moore. The attorney was advised that he could represent Moore and would also receive the assistance of Attorney Robert N. Brooks who, along with Attorney Christopher A. Collins, was appointed to represent Moore on August 29th. Moore asserts that the time between August 29th, when he was appointed an attorney and the trial date of September 3, 2002, was insufficient to allow his attorney time for proper preparation.

¶ 10. While Moore does have an absolute right to counsel, the right to choose counsel is not absolute. McCormick v. State, 802 So.2d 157(¶ 10) (Miss.Ct.App.2001). It is a right that must not be abused or manipulated in such a way as to “thwart the progress of a trial.” Id. Moore received two court-appointed attorneys to represent him at trial. Both attorneys were present and announced that they were ready for trial. Between the date of arrest and indictment, there existed adequate opportunity for Moore to seek out counsel of his own choosing. While Moore contacted an attorney, there is no suggestion that he attempted to retain the services of an attorney, or ever had the resources to retain an attorney.

¶ 11. We find no abuse of discretion in denying Moore’s motion for a continuance.

II.

Whether Moore’s motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, should have been granted.

¶ 12. Moore asserts that his motion for judgment notwithstanding the verdict, or in the alternative, a new trial should have been granted since the verdict was against the overwhelming weight of the evidence.

¶ 13. This Court reviews the denial of a motion for judgment notwithstanding the verdict and the denial of a motion for a new trial in the following manner:

Upon reviewing a denial of the motion for judgment notwithstanding the verdict, this Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standard of review, however, is predicated on the fact that the trial judge applied the correct law.

Jackson v. State, 815 So.2d 1196 (¶ 14) (Miss.2002). The motion for a new trial addresses the weight of the evidence. Conners v. State, 822 So.2d 290(¶ 6) (Miss.Ct.App.2001). The challenge to the weight of the evidence via motion for a new trial implicates the trial court’s sound discretion and the motion should not be granted except to prevent an unconscionable injustice. Id.

¶ 14. Moore asserts that the record is devoid of additional evidence which shows that he had either actual or constructive possession of the cocaine. He cites to Ferrell v. State, 649 So.2d 831, 834 (Miss.1995) in alleging that the State must be able to point to additional “incriminating evidence” to justify a finding of constructive possession. Moore claims that because he was neither the owner nor the driver of the vehicle prior to his arrest, the State has not established any additional evidence in support of the charge against him.

¶ 15. Officer Lang testified that (1) he found a bag of white rocky substance laying on top of the gearshift in plain view between Carl Lewis and Moore, (2) after Lewis got out of the vehicle, he saw another bag of what was later identified as marijuana, (3) Moore was a passenger in the vehicle, and (4) when Moore and Lewis arrived at the police station to be booked on the charge of possession of a controlled substance, Moore stated, “Don’t charge him with it, it’s mine.” Moore’s statement would appear to be an admission. “An admission is an acknowledgment by the accused of certain facts which tend, together with other facts, to establish his guilt.” Alexander v. State, 749 So.2d 1031(¶ 11) (Miss.Ct.App.1999).

¶ 16. The foregoing items provide a sufficient basis upon which a jury could have found Moore guilty of drug possession.

¶ 17. We find that there is no merit in this assignment of error.

III.

Whether the trial court erred in failing to grant Moore’s motion to suppress.

¶ 18. Moore alleges that his statement to Officer Lang should have been excluded as evidence because “it was not probative of the issue raised by the indictment, i.e., possession of cocaine by Jermaine Moore.”

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

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

Boose v. State, 851 So.2d 391(¶ 9) (Miss.Ct.App.2003).

¶ 20. Officer Lang’s testimony established that cocaine and marijuana were found in the vehicle in which Moore was a passenger. When the booking officer was told to charge Moore and Lewis with drug possession, Moore voluntarily stated, “Don’t charge him with it, it’s mine.” While Moore did not specifically state whether he was referring to one or both substances, he did state a claim of possession.

¶ 21. Because a reasonable juror could have concluded that the substance belonged to Moore under the circumstances, we find that this issue lacks merit.

IV.

Whether Moore was denied effective assistance of counsel.

¶ 22. To establish an ineffective assistance of counsel claim, Moore must show (1) a deficiency of counsel’s performance that is (2) sufficient to constitute prejudice to his defense. Swift v. State, 815 So.2d 1230(¶ 17) (Miss.Ct.App.2001).

¶ 23. Moore claims that the attorneys failed to investigate the case and inform him of his rights at trial. He asserts that had his attorneys investigated the matter, they would not have been surprised by the testimony of booking officer Tony Quick. Officer Quick indicated that he heard Moore make the statement to Lang regarding who should be charged with possession of the controlled substance.

¶ 24. Moore asserts that his question to the trial judge regarding the subpoenaed witnesses makes it apparent that he was not advised of his rights. Moore asked the trial judge whether the witnesses were beneficial to him because he was not aware of any witnesses. He maintains that this failure by his counsel deprived him of his right to have witnesses called on his behalf. To prevail upon a claim of ineffective assistance of counsel, Moore must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985).

¶ 25. Moore claims that even though he was represented by two court-appointed attorneys, these attorneys failed to: (1) request a continuance, (2) investigate the case, or (3) adequately inform him of his rights at trial.

¶ 26. The record reflects that Moore was indicted on August 28, 2002, arraigned on August 29th, and the case was set for trial on September 3, 2002. A continuance was not requested by the attorneys. However, on the day of trial, Moore asked the trial judge for a continuance so that he could hire an attorney. The trial judge denied his request. Moore’s attorneys announced they were ready for trial. Both attorneys actively participated in the representation of Moore during the trial. With respect to the overall performance of the attorneys, “counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy.” Roberts v. State, 820 So.2d 790(¶ 7) (Miss.Ct.App.2002).

¶ 27. Moore has not indicated what witnesses should have been called on his behalf, what their testimony might have been, or how it might have changed the outcome of the trial.

¶ 28. Moore has failed to present any evidence to support this claim, and we find it to lack merit.

y.

Whether Moore’s sentence was disproportionate.

¶ 29. Moore claims that his fifteen year sentence for possession of cocaine, under the circumstances of this case, is disproportionate to the crime committed and should be remanded for re-sentencing.

¶ 30. Our supreme court has stated that “[sjentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Allen v. State, 826 So.2d 756(¶ 18) (Miss.Ct.App.2002). Further, the trial judge’s decision will not be disturbed on appeal if the sentence is within the term provided by statute. Id.

¶ 31. Mississippi Code Annotated Section 41-29-139(c)(l)(B), the statute under which Moore was charged provides that upon conviction, a person shall be sentenced to not less than two years nor more than eight years and shall be fined not more than fifty thousand dollars.

¶ 32. The trial judge indicated that the normal sentence for this crime is two to eight years. Because Moore was a second time drug offender, his sentence was subject to being doubled pursuant to Mississippi Code Annotated Section 41-29-147.

¶ 33. Upon review of the record, we find that the trial court sentenced Moore within the statutory limits. Therefore, this issue is without merit.

VI.

Whether the cumulative errors cited require reversal.

¶ 34. Moore argues that his conviction requires reversal due to the cumulative errors, which include: (1) the trial court’s denial of a continuance, (2) the trial attorneys’ failure to request a continuance, and (3) the trial attorneys’ failure to conduct an investigation, along with the other issues cited.

¶ 35. This Court has noted that the Mississippi Supreme Court has held that individual errors, not reversible in themselves, may combine with other errors to make up reversible error. Cook v. State, 728 So.2d 117(¶ 14) (Miss.Ct.App.1998). However, those cases are rare. Id. The question is whether the cumulative effect of all such errors committed during the trial deprived the defendant of a fundamentally fair and impartial trial. Id. And where there is “no reversible error in any part, ... there is no reversible error to the whole.” Id.

¶ 36. However, we have not found error in any of his other claims and in the absence of error in any of his other claims, there can be no cumulative error.

¶ 37. The record shows that Moore’s motion for continuance was denied. He was represented by two court-appointed attorneys who both participated in the proceedings at trial.

¶ 38. Moore has failed to provide this Court with evidence in support of his claims which would have resulted in a different outcome. This Court does not find that Moore has been deprived of a fair trial based on the alleged errors presented.

¶ 39. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF FIFTEEN YEARS AS A SECOND DRUG OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BRIDGES, P.J.,

text:
    Kenneth Scott FRANKS, Appellant v. Amanda J. FRANKS, Appellee.
    No. 2002-CA-01345-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.
    Gary Goodwin, Columbus, attorney for appellant.
    Joseph N. Studdard, Carrie A. Jourdan, Columbus, William W. Fulgham, attorneys for appellee.

      Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   BRIDGES, P.J.,

for the Court.

¶ 1. Amanda J. Franks filed a complaint for divorce against Kenneth Scott Franks seeking a divorce on the grounds of habitual cruel and inhuman treatment and habitual drunkenness. Amanda also sought custody of the two minor children, child support and a division of the marital property accumulated during the marriage. In his answer Scott filed a cross-claim for divorce on the grounds of habitual cruel and inhuman treatment and adultery. Scott also sought custody of the two minor children, child support and a division of the marital property accumulated during the marriage. The chancellor granted Scott a divorce on the ground of adultery, and Amanda was awarded custody of the children subject to Scott’s visitation.

STATEMENT OF THE ISSUES

I. WAS IT ERROR FOR THE CHANCELLOR TO AWARD CUSTODY OF THE MINOR CHILDREN TO AMANDA FRANKS?

FACTS

¶ 2. Amanda and Scott began seeing each other whén she was seventeen and he was twenty-six. She became pregnant and they were married before she graduated high school. They lived in Alabama with the Franks or in a trailer until they built their home in Caledonia, Mississippi. Amanda worked to get her registered nurse’s degree and worked for two nursing homes during the marriage. Amanda also had long periods of unemployment during the marriage but when working she earned approximately $40,000 per year. Scott was a supervisor at Weyerhaeuser and earned approximately $28,000 per year. Due to the nature of their employment, both Scott and Amanda worked shift work.

¶ 3. Amanda admitted to a one night affair with a fellow student while she was earning her nursing degree. There was also proof that she had a flirtation with a co-worker during the marriage but there was no proof that it went further. Once the parties separated, Amanda was seen spending time with another man whom she has since married. Scott used this evidence to prove adultery which was the ground on which the chancellor ultimately granted the divorce. The chancellor determined that both Amanda and Scott provided insufficient evidence to prove habitual cruel and inhuman treatment and that Amanda lacked sufficient evidence to prove habitual drunkenness. The chancellor did find that the evidence proved habitual cruel and inhuman treatment when she evaluated custody under the Albright factors.

ANALYSIS

¶ 4. The standard of review in this domestic relations matter is limited by the substantial evidence/manifest error rule. Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990). “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). See also Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994); Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992). “On appeal [we are] required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong.” Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). See also Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986). This is particularly true in the areas of divorce, alimony and child support. Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989).

II. WAS IT ERROR FOR THE CHANCELLOR TO AWARD CUSTODY OF THE MINOR CHILDREN TO AMANDA FRANKS?

¶ 5. The chancellor properly considered the custody of the minor children in relation to the best interests of the children as applied under the Albright test. In the opinion of the court the chancellor considered each Albright factor individually and concluded which, if either parent, the factor favored. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Those factors and the chancellor’s conclusions are as follows:

1. Age and sex of the child-favored both parents.
2. Continuity of care prior to the separation — favored the mother.
3. Parenting skills — favored both parents.
4. Employment of the parent and responsibilities of that employment — favored the mother.
5. Physical and emotional fitness and age of the parents — favored the mother.
6. Emotional ties of parent and child— favored both parents.
7. Moral fitness of parent — favored neither parent.
8. Home, school and community record of the child — favored the mother.
9. The preference of the child at an age sufficient to express a preference by law — not applicable.
10. Stability of the home environment — favored neither parent.
11. Other factors relevant to the parent-child relationship — favored the mother.

As is evident, eight factors favored Amanda while only three favored Scott. In his appeal Scott offers evidence for every factor but numbers 8 and 9 that the chancellor’s decision was manifestly wrong. The chancellor’s basis and Scott’s grounds for reversal are discussed separately for each factor below.

Age and sex of the child

¶ 6. The chancellor offered no reason for finding that this factor favored both parents other than that Amanda and Scott are both parents of the children and that the children were six and two at the time of the divorce. Scott, in his appeal, claims that he took the children to get their various shots and considered himself their primary caretaker especially since he held their daughter so much. Scott believed since their son was becoming a “young lad” it was appropriate for the father to have custody.

¶ 7. The “tender age” presumption in favor of the mother has been modified over the years to a rebuttable presumption through the development of the Albright factors. Albright, 437 So.2d at 1005. Scott’s many grounds for reversal, not the least of which is his belief that he should be granted custody of the son because they are both male, are inconsistent with the evolution of custody standards under the Albright test.

Continuity of care prior to the separation

¶ 8. The chancellor found that this factor favored Amanda because she was a stay at home mother when their first born was young, she breast fed both children and even though both parents worked shifts she spent more time taking care of the children. Scott bases his belief that this factor should favor him on the fact that he presented photos of a messy house, their son enjoyed going fishing with him and he claims he was like “Mr. Mom” around the house. However, the allegations of who was the better caretaker and homemaker is a version of “he said,” “she said” and divination of the truth is better left to the trial judge sitting as the finder of fact. The chancellor was in a better position to hear and interpret the facts given on this issue and Scott presented nothing which proved her result manifestly wrong.

Parenting skills

¶ 9. The chancellor simply stated that both parties were capable. Scott on appeal attempts to discredit Amanda’s parenting skills by stating she gave the children unhealthy dinners, sent the children to bed without baths or brushing their teeth and that the children often slept in their day clothes. Scott also claims Amanda is a non-cooperative co-parent in that she took the washer and dryer from his home, she took all the children’s belongings including their clothes and furniture and is keeping the majority of these things in storage. This required Scott to purchase all new things for the children including clothes because she refused to pack the children a bag.

¶ 10. However, Scott did nothing to bolster this Court’s opinion of his parenting skills other than his more cooperative nature. This factor alone is not enough to merit reversal of a chancellor’s decision.

Employment of the parent and responsibilities of that employment

¶ 11. In considering this factor the chancellor noted that both Amanda and Scott had sufficient family support in helping take care of the children when needed and that Amanda had arranged for daycare which both parents used. The factor favoring Amanda was that her shift work was not permanent and she was about to take a day shift position with her current employer and that Scott’s shifts were permanent. He was required to work twelve hour shifts of seven night shifts followed by seven whole days off, then seven day shifts followed by seven whole days off.

¶ 12. Amanda did in fact begin working the day shift with her current job and was still employed at it them at the time of this appeal. Scott believes that his fourteen full days off a month should favor him having custody of the children. For every other consideration of this factor both Amanda and Scott are equally matched. Both have willing and able parents to help out, both have daycare arrangements and both work shift work. The finding by the chancellor that a consistent routine each week for the children, which they would have with their mom, was preferable is not manifestly wrong.

Physical and emotional fitness and age of the parents

¶ 13. The chancellor noted that Amanda had suffered from depression prior to the separation but after hearing the testimony of her family, friends and work supervisor concluded that her current mental state was stable. In her ruling against Scott, the Chancellor found the husband’s numerous letters to Amanda regarding his use of alcohol, obsessive need to get revenge against his wife, his methods for wanting revenge and the abusive language contained in the letters were sufficient to grant custody to Amanda.

¶ 14. Scott claims that the determination of emotional health of the children should also include consideration of the emotional effect of the children and Amanda living with Amanda’s father. According to Scott, Amanda herself had called and asked Scott to intervene between their son and her father because she was not going to allow her father to “holler and scream” at him the way he did to her. Scott supports this claim by evidence that the children would cry and not want to leave their father to stay with their mother. This additional evidence alone is not sufficient.

Emotional ties of parent and child

¶ 15. The chancellor found that both parents had love and affection for their children. Scott offers no new argument for this factor but just reiterates arguments from the previous factors.

Moral fitness of parent

¶ 16. The chancellor did not favor either parent on this issue, finding that Amanda had had an affair with a man earlier in the marriage, had a serious flirtation with another man, and her flirtation with a third man did become a sexual relationship once the parties were separated. The chancellor found that Scott had been unable to overcome Amanda’s affair. Scott suggested she arrange a “menage a trois” and that her own sister could be the third person. Scott admitted to viewing pornography and it was known that, while dating Amanda when she was seventeen, he would regularly give her and her under-aged cousin alcohol. For these reasons, the chancellor found that this factor favored neither parent.

Other factors relevant to the parent-child relationship

¶ 17. The fact that Scott placed all blame on Amanda without admitting to his own mistakes was why the chancellor determined this factor favored Amanda. Scott admitted to physically assaulting Amanda at least once during the marriage and using derogatory words against her in both letters and while speaking but claimed Amanda herself was at fault for his outbursts. The fact that Scott could not clean the house, watched pornography and wanted a “menage a trois” was all the fault of Amanda. Scott’s inability to take responsibility for his own actions raised questions about his judgment and parenting abilities to the chancellor.

¶ 18. Scott discussed the “moral fitness of parent” and the “other factors relevant to the parent-child relationship” factors together, which we will do here. Scott’s primary complaint regarding these issues is that the evidence presented by Amanda, to prove habitual cruel and inhuman treatment and habitual drunkenness, was insufficient to grant a divorce but was sufficient to use in custody matters. This allegation is baseless. The chancellor properly based her decision of custody on credible evidence presented during the scope of the trial.

Stability of the home environment

¶ 19. The chancellor decided that both parents had appropriate homes where the children could have separate bedrooms and that Amanda would soon move out of her mother’s house to her own home in Columbus. This factor did not favor either party.

¶ 20. Scott believes his home environment is better suited than Amanda’s home for several reasons. Firstly, Scott does not live with anyone else. Scott believes the number of family members visiting and living with Amanda’s parents is a negative factor. Secondly, Scott believes Amanda is focusing too much time and attention on her new relationship with Jason Fondren, who had since become her husband. Finally, Scott believes the court should not have based its finding on Amanda’s intention to move to another place but rather on the actual facts presented.

¶ 21. Scott presents nothing that was not properly presented before the trial judge and adequately considered there. The chancellor was within her rights to allow the intentions of the parties to be a factor.

¶ 22. After reviewing the findings of the chancellor and the complaints of error by Scott for each factor, we find that none of them rise to the level sufficient for reversal as none prove the chancellor was manifestly wrong in her conclusions of fact.

¶ 23. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: SOUTHWICK, P.J.,

text:
    DiMA HOMES, INC., a Mississippi Corporation, Appellant, v. Matthew STUART and Wife, Nora Stuart, Appellees.
    No. 2003-CA-00318-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      Allen Flowers, Hattiesburg, attorney for appellant.
    William L. Ducker, Purvis, attorney for appellees.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. A builder was ordered to pay damages for constructing a substandard home for the appellees. On appeal, the builder raises four issues: deposition testimony should not have been admitted; the homeowners are estopped from receiving equitable relief;. no damages should have been awarded; and the amount of damages was excessive. We affirm.

¶ 2. In June 2000, Matthew and Nora Stuart contracted with DiMa Homes, Inc. for the construction of a $78,100 brick home on five acres in Lamar County. When DiMa concluded its work, the Stuarts believed that there were problems with workmanship. The Stuarts claim that they made DiMa aware of these issues during construction without receiving a satisfactory response.

¶ 3. On September 13, 2000, the Stuarts conducted a walk-through with DiMa and again pointed out problems that they believed needed correction. On October 4 and 19, 2000, DiMa worked on the premises. The Stuarts remained dissatisfied. They refused to close the loan for permanent financing. On November 6, 2000, the Stuarts received a demand letter from DiMa advising them that their continued delay would risk foreclosure of the deed of trust for $78,100. On November 14, 2000, the Stuarts closed the loan with Franklin American Mortgage Company for $80,000 to pay DiMa. The Stuarts claim that their accepting the house and finalizing financing with Franklin American was because of duress arising from the threat of foreclosure by DiMa.

¶ 4. The Stuarts then hired an attorney. A construction engineer was employed to inspect the home. A list of fifty-six matters that needed correction resulted from this inspection. In January 2001, the Stuarts provided DiMa a copy of the report from the construction engineer. DiMa was advised that the Stuarts expected within twenty days a statement of their intentions.

¶ 5. The complaint on which today’s appellate opinion is the latest ruling was filed in March 2001. They sought $16,500 in damages. These were said to be the cost of necessary repairs. DiMa counterclaimed for damages.

¶ 6. A few months after filing suit, the Stuarts refinanced their home with Countrywide Home Loans for $92,800. Countrywide Home Loans appraised the property for an amount which exceeded the construction price.

¶ 7. At trial, the more significant problems alleged by the owners, as summarized in the chancellor’s opinion, were these: “(a) the slab being cracked and uneven; (2) sheet rock being unfinished; (3) roof line sagged; (4) crooked brickwork; (5) doors not plumb; (6) dishwasher hookup problems; (7) stove clearance problems; (8) windows and shutters not straight; (9) columns crooked; and (10) fascia boards not square.” Some of the details of the testimony follow.

¶ 8. Mrs. Stuart testified that the uneven slab, which she stated had caused “almost a hill in the breakfast nook,” was discussed with DiMa before the house was finished. The flooring was taken up, the concrete in the breakfast area was apparently taken out with jack-hammers, and something called “Latacrete” was then poured on the slab throughout the house. She claimed that the effort to repair was unsuccessful.

¶ 9. Mrs. Stuart also testified that during construction a bathroom leak flooded the home and caused the sheetrock walls to bow. New baseboards were put on, but the sheetrock was not replaced. The sheetrock on the ceilings and elsewhere was said not to be properly finished. The tape and compound put on the seams were sloppily applied, and cracks and the edges of the tape were visible throughout. The kitchen cabinets were said to hang at an angle. Other problems were also detailed in testimony. During two walk-through inspections many of these problems were again pointed out to DiMa, and some painting was done as a result. No other repairs were made. DiMa’s response at the time was that the Stuarts were being “nitpicky.”

¶ 10. There was also testimony that the costs for necessary repairs included $10,800 for materials and labor, $2,200 for painting, and $3,500 for brickwork. The chancellor found that the house structurally was not substandard. The court also found, though, that the house contained defects in materials and workmanship. The Stuarts were awarded what they had sought except for the $3,500. The imperfections in the brickwork and the sag of the roof were found to exist but to be relatively minor. DiMa appeals; the Stuarts do not cross-appeal.

DISCUSSION

¶ 11. Four issues are raised on appeal. We combine two of them for discussion purposes.

Issue 1: Deposition Testimony

¶ 12. DiMa claims that the deposition transcript of a construction engineer should not have been admitted into evidence during trial. It claims that the transcript is hearsay but acknowledge that a civil rule permits controlled admission.

The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: that the witness is at a greater distance than one hundred miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition.

M.R.C.P. 32(a)(3)(B). A complementary evidentiary rule provides that if the deponent is unavailable, “a deposition taken in compliance with law in the course of the same or another proceeding” may be admitted. M.R.E. 804(b)(1). The objection raised at trial and here is that the witness was not shown to be unavailable.

¶ 18. The attorney offering the deposition indicated surprise that there was any objection to its use, as he had understood that the deposition could be used for any purpose. The chancellor noted that during the deposition, the Stuarts’ attorney stated that “objections except those as to the form of the question will be reserved until such time as the deposition is offered into evidence.” There was at least this much expectation from the time the deposition was taken that it would be used at trial. “Unavailability” is defined as being “absent from the hearing and the proponent of his statement has been unable to procure his attendance.” M.R.E. 804(a)(5). The chancellor was told that the engineer was absent at a conference in New Orleans. DiMa’s attorney said “he could be back this afternoon, but he was there yesterday.” The engineer had not been subpoenaed by either party to attend the trial.

¶ 14. The chancellor found that the engineer’s report, which listed fifty-six problems with the house, existed when the deposition was taken. DiMa therefore had an opportunity to question the engineer about the problems listed within his report. There was not, under the rules of evidence, any failure of opportunity or absence of motive for full cross-examination on the issues presented through the deposition and relevant to the case. M.R.E. 804(b)(1).

¶ 15. The principal question on this issue is the proof of actual unavailability. At least one of the attorneys believed or at least speculated that the witness might be returning from out of state before the trial was over. The firm evidence was that the engineer was not yet available and a question existed as to whether any possibility existed that he would become available. The chancellor found that the engineer was unavailable. Based on the evidence before him, that was a proper ruling. The admission was consistent with the rules of procedure and was within the chancellor’s discretion. Robinson v. Lee, 821 So.2d 129, 133 (Miss.Ct.App.2000).

Issue 2: Equitable relief

¶ 16. DiMa claims that there is an estoppel here because the Stuarts represented in documents that they signed with two different lenders that the house was without deficiency or defect. Among them was a property settlement agreement containing such terminology.

¶ 17. The Stuarts point out that during trial DiMa neither made a specific objection nor asked the court for a ruling on the issue of this estoppel. The chancellor made no specific finding in reference to the property settlement agreement. We need not find a waiver, though the facts suggest that there may have been one, since the issue fails on the merits.

¶ 18. The Stuarts obtained initial financing from Franklin American Mortgage Company. During cross-examination Mr. Stuart stated that he advised Franklin American that he really did not accept the property in its present condition. The closing occurred anyway. Later, the Stuarts refinanced. This allowed a satisfaction of the Franklin American Mortgage note and the obtaining of a new loan with Countrywide Home Loans. The appraisal report from Countrywide stated, “no major repairs are needed that were obvious during inspection.”

¶ 19. Whether the fifty-six items on the engineer’s report were “major” repairs could be doubted. They were not structural in nature nor were they suggestive of hazardous conditions. We have already summarized the more significant defects. Some of the less important ones are relatively innocuous “punch-list” matters, such as a smoke alarm that needed a battery, the absence of light bulbs in fixtures, the landscaping (which was not part of the contract with DiMa), the water needing to be turned on, and other matters of little cost. Not all of them were so easily or cheaply repaired, however.

¶20. There is no evidence that the Stuarts misled either mortgage company. Even if their home was sufficiently sound as to justify its being security for these loans, that does not answer whether it satisfied the contractual obligations of the builder. We find no estoppel, and now turn to the issue of the reality of the damages.

Issues 3 & 4: Damages

¶21. DiMa argues that no damages should have been awarded or at least not such a large award. DiMa had quality of workmanship obligations that arose from several sources. The contract itself provided a one-year warranty “on all structure, air conditioning and heat, electrical, and plumbing.” As to cosmetic flaws, the Stuarts had to claim those at the end of construction during a contractually required “walkthrough.” This “includes paint, floor and trim. At this time all surface flaws will be corrected,” and DiMa would not be liable for any such problems that were later pointed out for the first time. Some of the problems set out in this litigation were pointed out during this time. Most of those for which damages were awarded do not fit within the surface flaw category of paint, floor and trim. Instead, a reasonable definition of “structure” in the contract would include such matters as the brickwork, the roof, the bowed sheetrock, and the kitchen cabinets being out of line.

¶ 22. Another obligation arose from the “New Home Warranty Act.” Miss.Code Ann. §§ 83-58-1 through 88-58-17 (Rev. 1999). DiMa argues that section 83-58-5 makes it responsible only for “major structural defects.” That language does appear and constitutes a warranty by the builder for six years. Id. A broader obligation lasts for a shorter period: “One (1) year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards.” Miss.Code Ann. § 83-58-5(l)(a) (Rev.1999). The statute defines this term:

“Building standards” means the standards contained in the building code, mechanical-plumbing code, and electrical code in effect in the county, municipality, or other local political subdivision where a home is to be located, at the time construction of that home is commenced, or, if the county, city, or other local political subdivision has not adopted such codes, the Standard Building Code, together with any additional performance standards, if any, which the builder may undertake to be in compliance.

Miss.Code Ann. § 83-58-3(b) (Rev.1999).

¶ 23. We find no evidence that the matters for which the damages were awarded constituted violations of a building code or other code. The statute’s final reference to “additional performance standards,” which is not a defined term, may incorporate such matters as were set out in the contract and which we have already discussed.

¶ 24. The Stuarts followed the procedural dictates of this Act. For example, there is a requirement that the owner give the builder an opportunity to correct the claimed problems:

Before undertaking any repair himself or instituting any action for breach of warranty, the owner shall give the builder written notice, by registered or certified mail, advising him of all defects and giving the builder a reasonable opportunity to comply with the provisions of this chapter.

Miss.Code Ann. § 83-58-7 (Rev.1999). In January 2001, the Stuarts notified DiMa of their engineer’s list of defects and demanded repairs. No response was received, and suit was filed.

¶25. The measure of damages is also controlled by this Act:

The damages with respect to a single defect shall not exceed the reasonable cost of repair or replacement necessary to cure the defect, and damages with respect to all defects in the home shall not exceed the original purchase price of the home.

Miss.Code Ann. § 83-58-15 (Rev.1999). The $13,000 awarded does not exceed the purchase price. We do not find evidence that the damages here were for matters that fell within this statute.

¶ 26. Regardless of the statute or the contract, every building contract has an implied term regarding reasonably skilled workmanship:

Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.

Restatement (Seoond) of ToRts, § 299A (1965), quoted in George B. Gilmore Co. v. Garrett, 582 So.2d 387, 391-92 (Miss.1991). In that case, the court found that the builder “was under a duty to build [the home] in a manner reasonably commensurate with the then existing skill, knowledge and technology prevailing in the construction industry to afford protection for a residential dwelling constructed over a ya-zoo clay foundation.” Id. at 393.

¶ 27. The judge found that DiMa failed in its obligation to build a home that met “customary standards of construction and is free of defects of materials and workmanship.” There was substantial evidence for finding a violation of the duty just described. Whether it also was a breach of the contract or the statutory warranties ultimately is irrelevant. Damages were appropriate.

¶ 28. The measure of damages then becomes the question. When suit is brought over a construction contract, there are two methods for determining damages.

Where a building is completed, substantially according to plans and specifications, the measure of damages may be determined by: (1) the cost rule which is the cost of repairing the defects to make the building or structure conform to the specifications where such may be done at a reasonable expense if unreasonable economic waste is not involved, or (2) the diminished value rule which is the difference in the value of the property with the defective work and what the value would have been if there had been strict compliance with the contract.

Gerodetti v. Broadacres, Inc., 363 So.2d 265, 267-68 (Miss.1978), quoted in A & F Properties, LLC v. Lake Caroline, Inc., 775 So.2d 1276, 1281 (Miss.Ct.App.2000).

¶ 29. The “cost rule” allows recovery of the cost of repairing the defects to make the structure conform to specifications. However, such damages must not lead to economic waste. The chancellor’s damage award was based on this principle. The alternative measure is the difference in the value of the construction as built when compared to a properly completed project. That measure is used when awarding the cost to right what is wrong would be inequitable. Id.

¶ 30. The chancellor found that the house was not structurally substandard. However, he found defects in materials and workmanship that fell short of the terms of the contract between DiMa and the Stuarts. The chancellor discounted the $16,500 (materials and labor $10,800, paint $2,200, brickwork $3,500) estimate by the $3,500 for brickwork. In a bench trial, the chancellor determines the amount of damages. This amount will not be set aside unless it is unreasonable and outrageous. Miss. Dept. of Public Safety v. Durn, 861 So.2d 990, 998 (Miss.2003). We find the damage award to be reasonable, not to constitute waste, and to be supported by substantial evidence.

¶ 31. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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