author: DIAZ, J.,

text:
    Milton TITUS, Jr., Lucy Titus, Lucy Patricia Titus, Christopher Titus, Stephanie Titus and Renee Titus, The Wrongful Death Heirs and Beneficiaries of Milton Titus, III, Deceased v. Richard Don WILLIAMS, and The Flash Store, Inc. Milton Titus, Jr., Lucy Titus, Lucy Patricia Titus, Christopher Titus, Stephanie Titus and Renee Titus, The Wrongful Death Heirs and Beneficiaries of Milton Titus, III, Deceased v. The Town of Sardis, Mississippi.
    Nos. 2001-CA-00921-SCT, 2001-CA-01653-SCT.
    Supreme Court of Mississippi.
    May 1, 2003.

      Carroll Rhodes, Hazlehurst, Nathaniel Alandas Armistad, attorneys for appellants.
    Holly Stubblefield Mathews, Oxford, John S. Hill, Tupelo, Steffanie Anne Graves, James P. Streetman, III, Jackson, Wilton V. Byars, Jr., Oxford, Mitchell Or-vis Driskell, Jackson, attorneys for appel-lees.
    Before SMITH, P.J., DIAZ and COBB, JJ.
   DIAZ, J.,

for the Court.

¶ 1. Plaintiffs Milton Titus, Jr., Lucy Titus, Lucy Patricia Titus, Christopher Titus, Stephanie Titus, and Renee Titus filed suit in the Circuit Court of the First Judicial District of Panola County against Richard Don Williams (Williams), The Flash Store, Inc. (Flash Store) -, and the Town of Sardis, Mississippi, seeking damages for the wrongful death of Milton Titus, III (Titus), who was Wiled by a third party on the Flash Store’s property. Plaintiffs alleged that negligence and gross negligence committed by the defendants were a proximate cause of Titus’s death.

¶ 2. Williams filed a motion for summary judgment on the basis that, as an absentee landlord, he owed no duty to Titus and had committed no form of negligence. The Flash Store filed a motion for summary judgment on the basis that Titus was a trespasser or at best a licensee on its premises and it did not violate its duty to refrain from willfully or wantonly injuring him. The Town of Sardis filed a motion for summary judgment on the basis that, as a governmental entity, Sardis is exempt from liability for the performance of police duties unless its employee(s) acted in reckless disregard of the safety and well-being of any person not engaged in a criminal activity at the time the injury occurred. The circuit court granted summary judgment in favor of all defendants.

¶ 3. The circuit court denied an interlocutory appeal, and final judgment was entered. Plaintiffs filed a timely appeal.

FACTS

¶ 4. The Flash Store is a convenience store located at the corner of U.S. Highway 51 and Mississippi Highway 315 in Sardis, Mississippi. The property and store have been owned by Williams since October 19, 1994. Williams, who lives in Hinds County, has only visited the property twice since purchasing it. Thus, he is considered an absentee landlord. Williams has leased the store to different corporations or persons in the past, but the store became the Flash Store on April 28, 1995, through an assignment of a previous lease held by Jr. Food Mart. (The Flash Store, Inc., was the owner of the Flash Store at the time the incident in question occurred.)

¶ 5. The area in which the Flash Store is located is considered undesirable. The parking lot had become an area where local crowds of young people gathered during the weekends and holidays. Jr. Food Mart employed a security officer when it occupied the building. The Flash Store had no security personnel. According to the plaintiffs, scuffles, fights, drug-deals and other inappropriate and illegal activity often occurred there.

¶ 6. On January 10, 1998, around 9:00 p.m., a crowd of twenty-five or more people had gathered in and around the Flash Store parking lot. Two people from the crowd, Eric Kelson (Eric) and Montriel Butcher (Butcher), began to argue over the fact that Eric’s girlfriend was looking at Butcher. Tywon “Spanky” Kelson (Ty-won), Eric’s nephew, and Titus, drove up and saw this argument. Tywon and Titus attempted to break up the argument. Butcher informed Titus that the argument was none of his concern and to stay out of it. Titus responded that Eric was one of his friends and that he did consider it his business.

¶ 7. Meanwhile, Fred, instructed his employee, Angela Roberson (Angela), to tell everyone to clear the parking lot because he had just called the police. The time was 9:16 p.m. The majority of the people left the premises. Eric left with parties unknown, and Butcher left with his brother, Kirby “Boogie” Butcher, in Kirby’s car.

¶ 8. At 9:18 p.m., two minutes after receiving the call from Safi, Sardis police officers arrived at the Flash Store. The officers investigated the incident and dispersed what remained of the crowd. Walter Wheatley (Wheatley), there to pick up his girlfriend, Angela, remained in the parking lot. The Butcher brothers were no longer at the scene when the officers arrived. Titus and Tywon told the officers that nothing was going on and that they had not been fighting. They did not ask for any special protection from the officers nor give the officers any reason to believe that they were in danger. Tywon and Titus left in Tywon’s car. No formal complaints were filed, and no one was arrested.

¶ 9. According to Wheatley, about forty minutes after this first altercation, the Butcher brothers returned to the store to get gas for their car. Tywon testified that he and Titus spotted Kirby’s car at the Flash Store gas pumps and decided they wanted to get the license plate number for the police because a man named Avery Dillard told Tywon and Titus that Butcher “had a gun and [they] better watch themselves.” Tywon pulled onto the parking lot to get the tag number. Butcher saw them and retrieved a “long gun” from his brother’s car. Tywon quickly made a U-turn. Butcher fired two shots at the car, striking the rim of the right.front tire.

¶ 10. Meanwhile, Angela, Fred, and an employee known only by the name of “Al” were inside the Flash Store. Fred claims he neither saw nor heard any gunshots, while Angela claims she saw the flash from the gun, but did not hear anything. A couple of minutes later Wheatley came in and informed them that Butcher had just shot at Tywon and Titus. Angela stated that she knew that Butcher had a bad reputation and was “in and out of trouble” all the time. Angela and Walter told Fred that he needed to phone the police before someone got hurt. Plaintiffs allege that Wheatley also urged Fred to close the store, but Fred refused, telling them that “nothing is going to happen.” Fred did not call the police to report the shooting.

¶ 11. At 9:57 p.m., Titus and Tywon arrived at the Sardis Police Department to report the shooting. Officers listened to their complaint, asked them questions and inspected their vehicle. A BOLO bulletin with a description of Kirby Butcher’s car was put out on the state-wide radio. Titus and Tywon told the officers that the Butcher brothers had already left the Flash Store. The officers, fearing that Titus and Tywon would seek revenge, tried to calm the two men down. They explicitly and repeatedly told Tywon and Titus to stay away from the Flash Store and to let the police handle the situation. Tywon and Titus left the station and went riding again.

¶ 12. Minutes after leaving the Sardis Police Station, Tywon and Titus were at a four-way stop at the intersection of Highways 51 and 315, in front of the Flash Store. The Butcher brothers were inside the store paying for the gas they were getting and apologizing to Fred for “disrespecting his parking lot” by shooting a gun. Fred did not call the police to report that the Butcher brothers had returned.

¶ 18. Back at the four-way stop, Titus stated to Tywon something to the effect of “there they are, let’s get them.” Tywon allegedly suggested that Titus leave the matter to the police, but this did not discourage Titus, who exited the car and ran to the Flash Store. Tywon stayed in his parked car on the street. Titus entered the store where Angela stated he exclaimed, “You punk m[expletive]f[expletive]s shoot me now.” Titus fought with both Butcher brothers. Titus supposedly-got the best of the brothers, knocked them to the ground and left the store running. Butcher got up from the floor, ran to his brother’s car, got the gun, and followed Titus, who had run behind the building. Butcher shot twice, hitting and fatally wounding Titus. The people in the store stated that they saw Butcher get his gun and run after Titus, but did not know about the shooting until a woman from next door came and informed them that someone had just been shot behind the store.

¶ 14. At 10:10 p.m., thirteen minutes after Tywon and Titus had arrived at the Sardis Police Station to report the first shooting, the Sardis Police Department received a call from the Flash Store reporting that Titus had been shot. Officers Pride, Chitwood, Pruitt and Davis, already en route to the store, responded to the call. As they neared the store, Officers Pride and Pruitt noticed a vehicle leaving the scene at a high rate of speed. They pursued and stopped this vehicle which was driven by Tywon. After explaining what happened, Tywon got in the back seat of the squad car, and Officers Davis and Chitwood proceeded to the store. Officers Pride and Pruitt arrived shortly thereafter. Officer Davis immediately located Titus behind the Flash Store. He performed CPR; however, Titus did not respond. The police radio log reflects an emergency response request from the officers on the scene at 10.T5 p.m. Titus died at the scene.

¶ 15. The plaintiffs brought suit individually and as the wrongful death heirs and beneficiaries of Titus. They allege that the Town of Sardis acted in reckless disregard by failing to promptly investigate and respond to calls from the Flash Store and the complaint made by Titus and Tywon. They also made allegations against Williams, the owner of the property where the Flash Store is located, and the Flash Store itself. All three defendants were granted summary judgment in their favor.

DISCUSSION

¶ 16. The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under M.R.C.P. 56(c). This Court conducts de novo review of orders granting or denying summary judgment and examines all the evidentiary matters before it — admissions in pleadings; answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exits is on the moving party. That is, the non-movant would be given the benefit of the doubt. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996) (collecting authorities).

I. WHETHER THIS COURT SHOULD ABOLISH THE DISTINCTIONS OF INVITEE, LICENSEE, AND TRESPASSER, IN DETERMINING THE STATUS OF A PERSON SERIOUSLY INJURED OR KILLED IN A PREMISES LIABILITY ACTION.

¶ 17. Mississippi follows the practice of classifying a person who enters the land of another as an invitee, licensee, or a trespasser in order to establish what duty, if any, the landowner or landlord owes a person who is injured on the premises. See Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1003 (Miss.2001). Plaintiffs urge the Court to abolish these distinctions when deciding a premises liability action. They contend the classifications should be 'replaced with a reasonable person standard. They argue that the owner or operator of the premises had actual or at least constructive knowledge of Butcher’s violent nature and of the Flash Store’s “atmosphere of violence.” Thus, they conclude, a reasonable person would have taken measures to protect the public from these dangers.

¶ 18. The defendants, on the other hand, assert that the Court has always placed a status on persons entering onto someone else’s land in order to determine liability of the landowner or operator of a business. They urge us to retain these time-tested classifications.

¶ 19. This Court recently declined an invitation such as that urged by plaintiffs. See Pinnell v. Bates, 838 So.2d 198 (Miss.2002). In Pinnell, we stated: “There is no compelling reason to change our time-honored law on premises liability now. The distinctions between licensee and invitee have been developed over many years and are grounded in reality.” Id. at 199. This reasoning remains persuasive. We again decline to abandon the invitee, licensee, and trespasser distinctions.

¶ 20. This assignment is without merit.

II. IF THE DISTINCTIONS OF INVITEE, LICENSEE, AND TRESPASSER ARE RETAINED, WHETHER AN EXCEPTION SHOULD BE MADE WHEN DETERMINING THE STATUS OF A PERSON SERIOUSLY INJURED OR KILLED IF THE LANDOWNER OR LANDLORD HAS ACTUAL OR CONSTRUCTIVE KNOWLEDGE THAT AN ATMOSPHERE OF VIOLENCE EXISTS ON THE PREMISES.

¶21. Plaintiffs argue that the Flash Store’s and Williams’s actual and/or constructive knowledge that an atmosphere of violence existed on the premises constituted active or affirmative negligence. They cite Hoffman v. Planters Gin Co., 358 So.2d 1008 (Miss.1978), where this Court found that the licensee/invitee distinction did not apply in cases of active or affirmative negligence.

¶ 22. In Hoffman, we applied the standard of ordinary and reasonable care rather than the standard of intentional or wanton negligence due a licensee. We held that the owner of premises is hable for injury proximately caused by the owner’s affirmative or active negligence in the operation or control of activities which subjects a licensee to unusual danger or increases the hazard to the licensee when the presence of the licensee is known. We changed the standard of care owed to a licensee, but carefully limited the new standard of care to those cases involving injury resulting from active conduct as distinguished from conditions of the premises, or passive negligence. Hughes v. Star Homes, Inc., 379 So.2d 301, 304 (Miss.1980). We conclude that the facts presented in this case do not support application of the Hoffman exception to any of the defendants.

¶ 23. First, the record is devoid of any evidence that Williams engaged in affirmative or active negligence in the operation or control of the business. There is no proof that Williams, the absentee landlord, was aware of Titus’s presence upon the premises. Williams had no contractual duty to make repairs to the property. He did not occupy, exercise control over, or frequent the premises in question. When parties fail to allocate responsibility for keeping a leased premises in a safe condition through contract, Mississippi common law places that duty squarely on the party who possesses or controls the property. Wilson v. Allday, 487 So.2d 793, 796 (Miss.1986). The Flash Store, not Williams, operated and controlled the convenience store. Therefore, liability, if any, attaches to the Flash Store rather than Williams. See Wilson, 487 So.2d at 796 (“[Liability runs with possession and control of the property.”).

¶24. Plaintiffs allege that “an atmosphere of violence” existed on the Flash Store premises and that the owner knew this and did nothing to make the store safer. They point to the fact that the previous lessee, Junior Food Mart, employed a security guard, while the Flash Store did not. They also allege that Wheatley urged Fred to close the store after the first shooting and that Fred replied, “Oh, ain’t nothing going to happen.” Fred did not call the police to report the first shooting, and he did not call the police when the Butcher brothers returned to the store. Plaintiffs argue that allowing the Butcher brothers back onto the premises is further proof of the Flash Store’s affirmative or active negligence.

¶25. Under the Hoffman test, the negligence of the defendant must have been the proximate cause of the plaintiffs injury. Hughes, 379 So.2d at 304. Proximate cause is defined as the “cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.” Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666, 671 (Miss.2001). “[N]egligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the agency by or through which the injuries are inflicted, is not the proximate cause thereof.” Newell v. Southern Jitney Jungle Co., 830 So.2d 621, 623 (Miss.2002) (citing Miss. City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34, 36 (1943)).

¶ 26. We conclude that plaintiffs failed to establish that Titus’s tragic death was proximately caused by any negligence of the Flash Store and or Williams. Rather, the actions of Titus, in confronting a dangerous person, known by Titus to possess a gun which he was not afraid to use, was an intervening cause which relieved the defendants of their alleged liability. Although there is evidence supporting the conclusion that Williams and the Flash Store knew of and allowed an “atmosphere of violence” to exist at the Flash Store, the fact remains that Titus, not Williams or the Flash Store, created and caused this unfortunate event. While we must not shield property owners from their own negligence, we also must not subject them to liability for the criminal acts of their patrons when these criminal actors, so acting, cause harm to themselves.

¶ 27. In Hughes v. Star Homes, Inc., 379 So.2d at 304, we held that the Hoffman exception has no application where the licensee is injured as a result of the condition of the premises, or passive negligence. Passive negligence is defined as “the failure to do something that should have been done.” Black’s Law Dictionary 718 (6th ed.1991). Active and passive negligence are distinguished as follows:

One is only passively negligent if he merely fails to act in fulfillment of duty of care which law imposes upon him, while one is actively negligent if he participates in some manner in conduct or omission which caused injury.

Id. There is no allegation of any intentional or willful act or acts by either Williams or the Flash Store. The plaintiffs allege that the defendants, knowing of Butcher’s potential dangerousness, failed to take sufficient precautions to protect Titus. We conclude that all the allegations brought by the plaintiffs involve things that the Flash Store (and Williams) failed to do. They are complaints of the Flash Store’s inaction, rather than its actions. Thus, any negligence by the Flash Store was passive at most, and thus cannot not fall within the Hoffman exception.

¶ 28. Absent an exception, the analysis of premises liability involves three steps, described in Little ex rel. Little v. Bell, 719 So.2d 757 (Miss.1998). This procedure involves first determining the status of the injured person as either invitee, licensee, or trespasser. After this is done, the next step is to assess, based on the injured party’s status, what duty the landowner/business operator owes to them. The last step is to determine whether the landowner/business operator breached the duty owed to the injured party. Id. at 760.

¶ 29. A person is considered an invitee if they enter the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. Gatewood v. Sampson, 812 So.2d 212, 220 (Miss.2002). A landowner owes an invitee the duty to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not in plain and open view. Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss.1992).

¶ 30. A licensee enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner. Hudson, 794 So.2d at 1003.

¶ 31. A trespasser is a person who enters on the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duty to the owner or person in charge or on any business of such person, but merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement, or express or implied assurance of safety from the owner or person in charge. White v. Miss. Power & Light Co., 196 So.2d 343, 349 (Miss.1967).

¶ 32. A landowner owes a licensee and a trespasser the same duty, to refrain from willfully or wantonly injuring him. Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097, 1100 (Miss.1986) (collecting authorities).

¶ 33. The trial court found that, although perhaps initially a licensee, Titus became a trespasser on the Flash Store property when he returned intent upon fighting with the Butcher brothers. Although we agree with this reasoning, Titus’ status in this case is irrelevant to our decision. As discussed, the highest standard of care that would be owed to anyone who comes onto someone else’s land in Mississippi is to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and in open view. It is a general rule of law that the duty to warn disappears entirely when it is shown that the injured person did, in fact, observe and fully appreciate the peril. Ill. Cent. R.R. v. Crawford, 244 Miss. 300, 315, 143 So.2d 427, 431 (1962) (collecting authorities).

¶34. In this case, Titus knew of the possible danger of confronting Butcher, who had shot at him only moments before. Thus, Titus’s status as invitee, licensee, or trespasser is irrelevant because the owner of the Flash Store owed no duty to warn him of a situation which he created himself and the danger of which he was well aware. This being the case, we conclude that no duty was breached by the Plash Store.

¶ 35. This assignment is without merit.

III. WHETHER THERE IS A GENUINE ISSUE OF FACT AS TO WHETHER THE POLICE OFFICERS OF THE TOWN OF SARDIS, MISSISSIPPI DEMONSTRATED A RECKLESS DISREGARD FOR THE SAFETY AND WELFARE OF TITUS AND THE GENERAL PUBLIC.

¶ 36. Next, plaintiffs contend that there was a genuine issue of material of fact as to whether the police officers of the town of Sardis showed a reckless disregard for the safety of Titus and the general public on the night Titus was killed. Basically, their argument is that the Sardis Police did not respond to the report of the first shooting promptly or adequately enough to prevent the second shooting when Titus was killed. We disagree.

¶ 37. The Mississippi Tort Claims Act, Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002), provides the exclusive civil tort remedy against a governmental entity, and a government is exempt from liability for the performance of police duties unless the employee(s) acted “in reckless disregard for the safety and well-being” of the plaintiff. Miss.Code Ann. § 11-46-7(1); 11-46-9(l)(c). The plaintiff has the burden of proving “reckless disregard” by a preponderance of the evidence. Simpson v. City of Pickens, 761 So.2d 855, 859 (Miss.2000).

¶ 38. In the context of § 11-46 — 9(l)(c) “reckless disregard” encompasses willful and wanton action. Turner v. City of Ruleville, 735 So.2d 226, 230 (Miss.1999). Willful and wanton action signifies “knowingly and intentionally” doing a thing or wrongful act. Little, 719 So.2d at 761. We have further defined reckless disregard as “conscious indifference to consequences, amounting almost to a willingness that harm should follow.” Maye v. Pearl River County, 758 So.2d 391, 394 (Miss.1999). Thus, in order to avoid summary judgment, plaintiffs must have created a material dispute as to whether the Sardis police officers took action that they knew would result or intended to result in injury to Titus.

¶ 39. Plaintiffs allege that the Sardis Police acted with reckless disregard by failing to promptly investigate the shooting of Tywon’s vehicle and by failing to promptly make arrests in response to the complaints made by Titus and Tywon. The undisputed facts and all the reasonable inferences flowing therefrom do not support either allegation.

¶ 40. At 9:16 p.m., the Sardis Police received a call reporting the first altercation in the Flash Store parking lot. Sardis Police arrived on the scene two minutes later, at 9:18 p.m. Knowing that police were on the way, most of the crowd had dispersed when they arrived. The officers investigated the incident by interviewing those that remained. Tywon and Titus were asked about the fight. They did not assist the investigation, telhng officers that nothing was going on. They did not appear worried about the incident or fearful of future conflict. Neither them or anyone else present identified Butcher, who had left the scene before the police arrived. This quick response and thorough investigation indicates that the Sardis Police acted properly during the first event of the evening. We cannot find them in error for failing to discover Butcher’s identity and criminal intent when this information was withheld by Titus.

¶ 41. At 9:57 p.m., Tywon and Titus arrived at the Sardis Police station to report that Butcher shot at their vehicle. A shift change was scheduled that night for 10:00 p.m. When Tywon and Titus came into the station, Officer Zabe Davis was coming onto his shift. He talked - with Tywon and Titus and gathered the facts. He went outside and inspected their vehicle and put oút a BOLO (be on the lookout) bulletin for the Butcher vehicle. Titus and Tywon informed the Sardis Police that the Butcher brothers had already left the Flash Store. Sardis Police officers specifically and repeatedly instructed Ty-won and Titus to stay away from the Flash Store; however, Titus and Tywon disregarded this instruction and immediately returned to the vicinity of the Flash Store. Despite urging from Tywon to leave the issue to the police, Titus entered the Flash Store intent on assaulting the Butcher brothers.

¶42. The plaintiffs argue that the police should have arrested Butcher before he shot Titus. Thirteen minutes past between the time when Tywon and Titus arrived at the police station and when Titus was shot. These thirteen minutes include the time that Tywon and Titus spent at the police station talking with Officer Davis and his inspecting their car, the time it took them to drive back to the Flash Store, the time it took Titus to get in an altercation with the Butcher brothers inside the Flash Store, and the time that it took Fred to realize Titus had been shot and call the police. Sardis Police officers were en route to the Flash Store when this call was received.

¶ 43. We conclude that the Sardis Police acted responsibly and within their discretion. A thirteen minute time span, which includes time at the station talking with Tywon and Titus, approximately three to four minutes when Tywon and Titus were driving back to the Flash Store, and time for the police to establish what course of action to take does not constitute “reckless disregard” for Titus or the general public.

¶ 44. The Sardis police officers responded promptly when there was a confrontation at the Flash Store earlier in the evening of the shooting. The police officers later investigated the report of a shooting by interviewing Titus and Tywon and by attempting to obtain all relevant information which would assist them and other law enforcement agencies in identifying and locating Butcher, whom the officers had been informed was no longer at the Flash Store. The officers then instructed Titus to stay away from the Flash Store and to let them handle the situation. Titus disregarded these reasonable and proper instructions and returned to the Flash Store where he started a fight with Butcher, whom Titus knew possessed a gun and apparently was not afraid to use it. This decision resulted in his tragic death. These facts are undisputed, and there are no genuine issues of material fact in the record that support the allegation that the Town of Sardis acted with reckless disregard; rather the record supports the conclusion that the officers provided Titus with as much protection as possible under the circumstances. Accordingly, the trial court correctly granted summary judgment in favor of the Town of Sardis.

¶ 45. This assignment is without merit.

IV. WHETHER THERE A GENUINE ISSUE OF FACT AS TO WHETHER TITUS WAS ENGAGED IN CRIMINAL ACTIVITY AT THE TIME HE WAS SHOT.

¶ 46. The defendants contend that when Titus entered the Flash Store and confronted the Butcher brothers, Titus had in fact had committed four different criminal activities involving simple assault (Miss. Code Ann. § 97-3-7(1)), disturbance in a public place (Miss.Code Ann. § 97-35-13), disturbance of the public peace by offensive language (Miss.Code Ann. § 97-35-15), and refusing to obey a police order (Miss.Code Ann. § 97-35-7). Thus, they argue that the town is exempted from any possible liability to Titus because of his criminal activity.

¶47. Miss.Code Ann. § 11-46-9(l)(c) exempts government entities from liability:

Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in disregard of the safety and well-being of any person not engaged in criminal activity at the same time of the injury.

Miss.Code Ann. § ll-46-9(l)(c) (emphasis added). In order for recovery from a governmental entity to be barred because of the victim’s criminal activity, the criminal activity has to have some causal nexus to the wrongdoing of the tortfeasor. City of Jackson v. Perry, 764 So.2d 373, 378-79 (Miss.2000) (holding that a police official could not strike a pedestrian with his squad car during a high speed chase and be exempt from liability just because the pedestrian was in possession of untaxed whiskey).

¶ 48. Based on our previous determination that the Sardis Police Department committed no negligence toward Titus and exhibited no reckless disregard for the safety and welfare of Titus or the general public, this issue is dismissed as moot.

CONCLUSION

¶ 49. For these reasons, we affirm the trial court’s judgment.

¶ 50. AFFIRMED.

McRAE AND SMITH, P.JJ., WALLER, COBB, EASLEY AND GRAVES, JJ., CONCUR. PITTMAN, C.J., CONCURS IN RESULT ONLY. CARLSON, J., NOT PARTICIPATING.

      . On April 16, 1999, by an agreed order of the parties, the circuit court substituted the Flash Store, Inc. as a defendant in the place of original defendant Fakhri H. Safi (known as "Fred”), the manager of the Flash Store.

      . Throughout the remainder of this opinion, Montriel Butcher will be referred to simply as "Butcher,” when both Butcher brothers are mentioned, they will be referred to as the "Butcher brothers.”

      . A "BOLO” is a statewide dispatch informing law enforcement officers to "be on the look-out” for the subject vehicle. In this instance, the BOLO went to the following units in the area: the Miss. Highway Patrol, Panola County Sheriff's Department and local police departments.


source: Caselaw Access Project

author: KING, P.J.,

license: Public Domain

text:
    Warren Chevelle EVANS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01673-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2002.
    Rehearing Denied Nov. 12, 2002.
    Certiorari Denied May 1, 2003.

      Thomas Quitman Brame, Jr., Bay Springs, for appellant.
    Office of the Attorney General by Billy L. Gore, for appellee.
    Before KING, P.J., LEE, and IRVING, JJ.
   KING, P.J.,

for the Court.

¶ 1. Warren Chevelle Evans was found guilty in the Circuit Court of Newton County, Mississippi of the murder of Rita Lena Fielder. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Evans has appealed and raised the following issues, which we quote verbatim:

I. The honorable court erred in allowing the State to use expert witnesses not disclosed in discovery, and erred in not granting defendant’s timely motion for continuance thereon.
II. The court erred in failing to grant defendant’s requested manslaughter instruction.
III. The honorable circuit court erred in admitting defendant’s “confession” into evidence.
IV. The trial court erred in requiring the defendant to be present and sit at counsel table during the trial process.
V. The trial court erred in failing to continue the trial on the absence of Doctor Donald Guild, an important defense witness.
VI. The lower court erred in failing to grant defendant’s motion for new trial; and additionally in failing to grant defendant’s motion for mistrial near the conclusion of the trial.

FACTS

¶ 2. On December 31, 1998, around midnight, Evans knocked on the door of his aunt Rita Fielder’s home in Hickory, Mississippi. Evans’ cousin, Michael Thomas, let him in and Thomas went to sleep on the sofa. Shortly thereafter, Rita Fielder was killed and Evans left the Fielder home.

¶ 3. On December 31, between 12:30 and 12:45 a.m., Evans walked into the Newton Police Department and told the dispatcher that he had killed his aunt Rita by cutting her. The dispatcher then called Assistant Chief of Police Melvin Evans (no relation to the defendant), who talked with Evans. In the dispatcher’s presence, Evans gave the assistant chief a knife which was later determined to be the weapon used to stab Ms. Fielder. The police chief of Hickory, J.C. Wash, was contacted by the Newton Police Department. Officer Wash arrived at the Fielder home where he discovered Ms. Fielder’s body with a pillow over her head. Officer Wash then called the Newton Police Department back and asked them to hold Evans.

¶ 4. At approximately 1:55 a.m. prior to conducting an interview with Evans, the sheriff of Newton County, Jackie Knight, advised Evans of his constitutional rights. After reading the rights form to Evans in the presence of Assistant Chief Melvin Evans and Chief of Police Harvey Curry of the Newton Police Department, Evans acknowledged that he understood those rights and signed the waiver of rights form. After Evans signed the form, he told Sheriff Knight what happened regarding his aunt. At approximately 2:02 a.m., Sheriff Knight wrote a statement based upon the information supplied by Evans. After the information was written down, the sheriff read it back to Evans to give him an opportunity to make any changes. There were no changes made to the statement which Evans then signed confessing to the stabbing of his aunt.

¶ 5. On June 17, 1999, pre-trial motions were heard regarding whether Evans was competent to stand trial. On July 12, 1999, the trial judge executed an order for mental evaluation and treatment for Evans at the Mississippi State Hospital. On December 14, 1999, Evans was admitted to Forensic Services at the Mississippi State Hospital in Whitfield, Mississippi for treatment, with the goal of restoration to competence to stand trial on a charge of murder.

¶ 6. On June 29, 2000, Dr. Reb McMi-chael, Director of Forensic Services, notified the court that Evans was competent to stand trial, stating:

We now are unanimous in our opinion that Mr. Evans has the sufficient present ability to consult with his attorney with a reasonable degree of rational understanding in the preparation of his defense, and that he has a rational as well as factual understanding of the nature and object of the legal proceedings against him.

¶ 7. A jury trial was conducted on August 7-9, 2000. Evans was convicted of murder and sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections.

¶ 8. On August 29, 2000, the court heard Evans’ motion for a new trial. That motion was denied.

ISSUES AND ANALYSIS

I.

Did the trial court err in allowing the State to use expert witnesses not disclosed in discovery, and err in not granting defendant’s timely motion for continuance thereon?

STANDARD OF REVIEW

¶ 9. The applicable standard of review regarding the admissibility of evidence is as follows:

Admissibility of evidence rests within the discretion of the trial court. However, this Court must also determine whether the trial court employed the proper legal standards in its fact findings governing evidence admissibility. If in fact the trial court has incorrectly perceived the applicable legal standard in its fact findings, the Court applies a substantially broader standard of review. However, a denial of a substantial right of the defendant must have been affected by the court’s evidentiary ruling. Furthermore, the trial court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.

Hayes v. State, 803 So.2d 473 (¶ 4) (Miss.Ct.App.2001) (citations omitted).

¶ 10. Evans contends that the trial court erred by allowing the State to use expert witnesses not disclosed in discovery. He maintains that the State put forth the testimony of two expert witnesses, Dr. Charles Harris and Dr. Reb McMichael, over his objection. Evans claims that he was not informed that the State would call these witnesses, although the State was aware of his intent to offer an insanity defense. Evans maintains that he first learned of these two witnesses and that they would testify on the issue of whether he was sane according to the M’Naghten test at the time the crime was committed on the morning of trial.

¶ 11. This Court is limited on appeal to reversing a trial court’s decision regarding discovery violations only upon finding an abuse of discretion. Gray v. State, 799 So.2d 53(¶ 26) (Miss.2001).

¶ 12. Based on Evans’ contention that he was not given the names of the two witnesses, the trial judge, consistent with URCCC rule 9.04(1), allowed Evans’ attorney to interview the doctors prior to their giving any testimony. After an interview with these witnesses, Evans indicated that he did not waive any possible discovery violation.

¶ 13. Evans maintains that it was error to deny his motion for continuance which was predicated upon the alleged discovery violations. However, he offers no specific examples of prejudice caused by this supposed discovery violation.

¶ 14. The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be grounds for reversal unless shown to have resulted in a manifest injustice. Coleman v. State, 697 So.2d 777, 780 (Miss.1997). In addressing the motion for continuance, the trial court stated:

When a Defendant says that he’s not been furnished something in discovery, the Court can grant the continuance, which is what you’re asking, Mr. Brame, or the Court can allow you to have a conference with the witnesses, which is what I did, or the Court, if it finally feels there’s prejudice, the Court can preclude the State from even using that evidence.
I granted you that continuance yesterday, and here we are on the following day, and for that additional reason, the Court feels like there has been ample time, if there was surprise, to talk to those witnesses.... So your motion for a continuance is overruled.

¶ 15. In its brief, the State contends that there was no unfair surprise because Evans “could have reasonably expected the State to produce medical experts, as opposed to lay witnesses, to refute an insanity defense.” The State maintains that Evans was given a reasonable opportunity to interview the two experts.

¶ 16. Evans received the reports from these witnesses. Therefore, he had access to the information regarding their potential testimony. The trial judge allowed Evans time to question these -witnesses prior to the witnesses taking the stand. Evans was aware that this medical evidence existed, and was relevant to his defense of insanity. We find that Evans was not unfairly surprised by the possibility of these witnesses testifying and affirm the trial court’s decision on this issue.

II.

Did the trial court err in failing to grant defendant’s requested manslaughter instruction?

¶ 17. Evans contends that the trial court erred in failing to grant his requested manslaughter instruction D-18. He suggests that Mississippi Code Annotated Section 97-3-35 (Rev.2000), the manslaughter statute, should be read disjunc-tively so that “any killing without malice, or [by the use of a deadly weapon], without authority of law, and not in self-defense can be deemed manslaughter.”

¶ 18. Under Evans’ analysis, the mere fact that the killing was done with a deadly weapon, a knife, would place it within the scope of the manslaughter statute.

¶ 19. However, what Evans fails to consider is that it can only be considered as manslaughter when done in the “heat of passion.” Turner v. State, 773 So.2d 952(¶ 5) (Miss.Ct.App.2000). The phrase “heat of passion” suggests a “state of violent and uncontrollable rage” caused by some immediate provocation from the victim. Id. In this case, there is no evidence of any provocation by the victim Ms. Fielder, who was slain while asleep in her bed.

¶ 20. Jury instructions are not given unless there is an evidentiary basis in the record for such. Terry v. State, 718 So.2d 1115(¶ 48) (Miss.1998). There does not appear to have been an evidentiary basis in the record to have warranted a manslaughter instruction.

III.

Did the trial court err in admitting defendant’s “confession” into evidence?

¶ 21. Evans contends that the trial court erred in admitting his confession in evidence. He maintains that the State must prove beyond a reasonable doubt that he knowingly, intelligently and voluntarily waived his Miranda rights before giving his confession. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). A suppression hearing regarding the admissibility of the confession was held outside the presence of the jury. The standard of review previously noted in issue I applies to this issue as well.

¶ 22. The trial judge ruled:

Having looked at all those facts, and having balanced the Defendant’s offering of testimony through the report of Dr. Owen and the officers, the Court finds, under the totality of the circumstances, that there was no coercion, there was no pressure, no force exerted against the Defendant on the night of December 31st. It appears that there was no promise of reward as far as leniency; that there was no inducement given to him to make the statement; and, strangely, notwithstanding the senselessness of the crime, the illogicalness of the whole thing, yet, the Court, in applying the McNaughton [sic] standard, it appears from all the attendant facts that the statement that he made had a legally sufficient degree of ration-alness so that his confession, in evaluating it thoroughly under the test of Miranda, is freely given, voluntarily given, knowingly given, and intelligently made. Therefore, the Court finds that the motion to suppress the confession is overruled, and it will be admitted.

¶ 28. The record reflects that Evans went to the Newton police station of his own volition and immediately informed them that he had killed his aunt. This spontaneous and unsolicited confession was admissible and provided a sufficient basis upon which to convict Evans.

¶ 24. Because we find Evans’ unsolicited statement to have been admissible and sufficient to sustain a conviction for murder, the issue of the second confession is moot. While holding the issue to be moot, this Court is nevertheless concerned about the circumstances which surround this second confession.

¶ 25. The record reflects that those parties taking the second confession were aware that Evans had severe mental problems, and that shortly before this incident, his family had attempted to have him committed for treatment. Because there was knowledge of Evans’ mental problems, those persons seeking to solicit a confession from him were under a heightened duty to explain and determine whether Evans understood his Miranda rights.

¶ 26. This heightened duty could not be filled by merely reading the standard card and ending with the standard question, “Do you understand these rights?”

IV.

Did the trial court err in requiring the defendant to be present and sit at counsel table during the trial process?

¶ 27. Evans contends that the trial court erred in requiring him to be present and sit at counsel table during trial. He asserts that pursuant to Mississippi Code Annotated Section 99-17-9 (Rev. 2000), his request to be absent from the proceedings should have been granted. Evans maintains that because his mental condition had greatly improved due to the months of treatment at the state hospital in Whitfield, his defense was prejudiced by his appearance as a more “normal” person at trial. Evans claims that the trial court abused its discretion by requiring him to be present during trial which amounted to giving silent evidence against him.

¶ 28. Mississippi Code Annotated Section 99-17-9 (Rev.2000), upon which Evans raises this claim provides:

In criminal cases the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto. If the defendant, in cases less than felony, be on recognizance or bail or have been arrested and escaped, or have been notified by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or be in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment final and sentence be awarded as though such defendant were personally present in court.

¶ 29. The statute clearly places within the trial court’s discretion the determination to grant or deny the defendant’s request to be excused from the courtroom during trial. Where such discretion is exercised, this Court must of necessity review its exercise upon an abuse of discretion standard. Hardiman v. State, 776 So.2d 728(¶ 19) (Miss.Ct.App.2000). That standard requires that defendant affirmatively show significant prejudice accrued to him as a result of the trial court’s actions. Wilson v. State, 755 So.2d 2(¶ 12) (Miss.Ct.App.1999).

¶ 30. Having reviewed the record, we find that the trial court did not abuse its discretion in requiring Evans to be present at trial nor did the defendant establish that he was prejudiced.

Y.

Did the trial court err in failing to continue the trial in the absence of Doctor Donald Guild, an important defense witness?

¶ 31. Evans contends that the trial court erred in failing to continue the trial to another day due to the absence of Dr. Donald Guild, an important defense witness. Evans maintains that his attorney learned a few days before trial that a key witness, Dr. Guild, was not in the United States and therefore not available for subpoena. Because of Dr. Guild’s absence, Evans offered an ore tenus motion for continuance.

¶ 32. Continuances in criminal cases are governed by Mississippi Code Annotated Section 99-15-29 (Rev.2000), and require that the movant (1) set forth the facts to be offered by the absent witness, (2) identify the absent witness and (3) state that he has used due diligence to obtain the witness’s presence.

¶ 33. Evans offered a letter from Dr. Guild dated May 6, 1999, in which he stated:

The patient was noted to be very blunted in his affect, quite rambling and sometimes loose. He gave a convoluted twisted history, but did indicate at one point, that he had essentially had some type of mental problems, which was corroborated. He admitted to voices, but was somewhat vague on these, and although he knew the minimal of the court functioning, I think he represents schizophrenia, is still psychotic, and incompetent to stand trial.
The senselessness of his crime, plus the fact that he was at best we can tell, psychotic at the time, leaves me to believe he may not meet the standards required for responsibility, but I will leave this to the staff at the State Hospital. I feel that he is incompetent to stand trial and should be admitted to the State Hospital for additional evaluation and treatment.

¶ 34. There is no indication that Evans attempted to obtain a clarification of this opinion between May 6, 1999 and trial on August 7, 2000.

¶ 35. The trial court reviewed this letter and determined that its contents were not sufficiently definite to justify a continuance. The trial court noted that consistent with Dr. Guild’s letter, the best people to address this issue were the doctors from Whitfield, who in fact testified.

¶ 36. A party seeking a continuance is required to show that he acted with due diligence to obtain the appearance of the absent witness. Smiley v. State, 815 So.2d 1140(¶ 13) (Miss.2002). That question was posed during argument to Evans’ counsel who stated that he timely requested a subpoena for Dr. Guild, but only found out a few days prior to trial that Dr. Guild was out of the country.

¶ 37. This Court has carefully reviewed the clerk’s docket entries in this case and finds among those entries no indication that Evans acted with due diligence to obtain the presence of Dr. Guild.

¶ 38. Because this Court believes that Evans failed to (1) establish due diligence in his effort to obtain the testimony of Dr. Guild and (2) establish that Dr. Guild’s testimony was material, we find no abuse of discretion in the denial of a continuance.

VI.

Did the lower court err in failing to grant defendant’s motion for new trial; and additionally in failing to grant defendant’s motion for mistrial near the conclusion of the trial?

¶ 39. Evans contends that the trial court erred in failing to grant his motion for a new trial and his motion for a mistrial. Evans maintains that because of material errors and abuses of the court’s discretion along the way, “as well as improper evidence submitted to the jury, including the testimony of two non-disclosed witnesses; the tainted confession of the defendant which should not have been admitted, the failure to give a manslaughter instruction, and the failure of the jury to find in accord with the overwhelming weight of the evidence, that a fair trial did not result,” a new trial should be granted.

Matters regarding the weight and credibility of the evidence are to be resolved by the jury... .Moreover, the challenge to the weight of the evidence via motion for a new trial implicates the trial court’s sound discretion. Procedurally such challenge necessarily invokes [Uniform Circuit and County Court Rule 10.05]. New trial decisions rest in the sound discretion of the trial court, and the motion should not be granted except to prevent an unconscionable injustice. We reverse only for abuse of discretion. ...

Lockridge v. State, 768 So.2d 331 (¶ 17) (Miss.Ct.App.2000) (citations omitted). The abuse of discretion standard applies for determining the propriety of granting a mistrial as well. Pearson v. State, 790 So.2d 879(¶ 6) (Miss.Ct.App.2001).

¶ 40. In reviewing this matter, we find that the trial judge did not abuse his discretion in denying these motions.

¶ 41. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

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

      .Uniform Rules of Circuit and County Court Practice 9.04(1) provides: If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.
      If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
      1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
      2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
      3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.
      The court shall follow the same procedure for violation of discovery by the defense.
      Discovery material shall not be filed with the clerk unless authorized by the court.
      Willful violation by an attorney of an applicable discovery rule or an order issued pursuant thereto may subject the attorney to appropriate sanctions by the court.

      . Jury Instruction D-18: The Court instructs you the jury that if you find from the evidence in this cause beyond a reasonable doubt that:
      1) On or about December 31, 1998;
      2) In Newton County, Mississippi;
      3) Warren Evans wilfully killed Rita Arlena Fielder;
      4) Without malice; or
      5) By the use of a dangerous weapon; and
      6) without the authority of law and not in necessary self-defense; and
      7)That at said time and place Warren Evans had the mental capacity to know right from wrong; then you may find the defendant guilty of manslaughter.
      However, if the State has failed to provide any one or more of the above listed elements beyond a reasonable doubt, then it is your sworn duty to return a verdict either of “Not Guilty” or of "Not Guilty by Reason of Insanity,” as you find justified from the evidence.

      . Docket Entries from 7/22/99 - 8/9/00:
      07/22/99 Defendent’s [sic] objections to order for mental evaluation and treatment and motion to amend or modify same
      07/22/99 Notice of Hearing on Motion
      07/29/99 Motion for Continuance Due to Defendant’s Inability to Stand Trial
      07/29/99 Notice of Hearing on Motion
      08/24/99 Order Setting Show Cause Hearing
      08/27/99 Subpoena Issued for Witness on Dr. C. Gerald O'Brien, Dr. William Owen, Dr. Donald Doran, Dr. Donald C. Guild, Harvey Curry, Mrs. Dale Stamply, Dr. Steven T. Hayne, Sharon Hudnall, Robin Hud-nall, Antonio Taylor, Hattie Hudnall, Robert Hardy, Horace Watts, Bill Trubitt, Don Collins, Sammy Stevens, Mike French, Larry Payne, Wayne Oliver, Edgar Poole, Myr-tis Fielder, Curtis Fielder, Lariy Thomas, Michael Thomas, J.R. Blackburn, Sheila Anderson, Etta Robinson, Jackie Knight, Melvin Evans, Dale Craft, J.C. Washington, Vera Evans, Zoie Hardy
      09/03/99 Defendant’s Compliance Reserving All Objections with Directives of "Order For Mental Evaluation and Treatment”
      09/08/99 Amended Order for Mental Care and Physical Care
      12/03/99 Order of Continuance
      03/29/00 Judgment Directing Release of medical & Forensic Records to Defense Counsel
      07/10/00 Order Presetting Criminal Case
      07/11/00 Motion for Special Venire
      07/31/00 Order Granting Special Venire
      08/09/00 Jury Instructions
      08/09/00 Juiy Verdict


author: SOUTHWICK, P.J.,

text:
    Arthur WHITE, Appellant, v. MISSISSIPPI STATE PAROLE BOARD, Appellee.
    No. 2002-CP-00349-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2002.
    Rehearing Denied Jan. 7, 2003.
    Certiorari Denied May 1, 2003.
    Arthur White, (Pro Se), attorney for appellant.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. In November 2001, Arthur White, an inmate in the state prison system, petitioned the Circuit Court of Sunflower County to order his release on parole after the State Parole Board rescinded his parole. The court dismissed. White appeals, arguing that the Board’s decision was arbitrary and capricious, depriving him of due process of law. We disagree and affirm.

STATEMENT OF FACTS

¶ 2. Arthur White was convicted in 1978 of robbery, rape, and kidnapping. He was sentenced to life in prison. In February 2001, the Mississippi State Parole Board met and determined that the following reasons favored parole for White:

— Has served sufficient portion of sentence.
— Successfully completed set-off.
— Needs supervision prior to discharge.
— Has employment or adequate provisions for maintenance and care.
— The Board believes he is able and willing to fulfill the obligation of a law-abiding citizen.

¶ 3. The Board voted to grant White parole subject to two conditions: the completion of a pre-release program at the state prison and a psychiatric examination. White completed the program and the examination was conducted. Approximately two months after the initial and conditional decision, the Board rescinded the action without conducting any hearing. No document in the record explains the Board’s reasoning. Attached to White’s petition is a form that simply notes that the parole decision was rescinded. From some source, the trial court determined as shown in her order that parole was rescinded “due to the serious nature of offense; poor prognosis according to psycho-logieal/psychiatric evaluation; community opposition; insufficient time served; and the board believes the ability or willingness to fulfill the obligations of a law-abiding citizen is lacking, pursuant to Section 47-7-17 of the Mississippi Code Annotated as amended.”

¶ 4. White petitioned for review of the parole decision in the circuit court and to obtain an order for his release. The court dismissed the case. His appeal has been deflected here.

DISCUSSION

¶ 5. White argues that his due process rights have been violated in denying his expectation of parole. He submits that Mississippi law requires an opportunity for hearing prior to the revocation of his parole, citing Gardner v. Collier, 274 So.2d 662 (Miss.1973). Gardner is inapplicable, as that concerned the revocation of parole eight hours after the prisoner was released on parole. Id. at 663-64. The issue before us is not what would have been required, had White actually been released, before he could be returned to prison.

¶ 6. What occurred here was an initial decision that White should receive parole, conditioned on his completing a pre-re-lease program and also undergoing a psychiatric examination. Though not stated, for these conditions to have any meaning there must be implied that he needed to perform satisfactorily on both. He had received at most an expectation of parole. In determining whether there are constitutional obligations to provide a hearing or other procedural rights in this context, the question is whether the individual has a liberty interest that is affected by the decision. It has been determined that there is no entitlement to parole under this state’s statutory scheme, and therefore no liberty interest until parole is finally and formally received.

The distinction between whether a prisoner shall or may be given parole critically differentiates his expectation of release, and hence his rights under the due process clause of the Fourteenth Amendment. In Mississippi, the absolute discretion conferred on the parole board affords a prisoner no constitutionally recognized liberty interest.

Harden v. State, 547 So.2d 1150, 1152 (Miss.1989) (quoting Scales v. Mississippi State Parole Board, 831 F.2d 565, 566 (5th Cir.1987)).

¶ 7. Parole is granted solely at the discretion of the State Parole Board, not on the basis of statutory right. Miss.Code Ann. § 47-7-5(3) (Rev.2000), repealed eff. July 1, 2002. What statutory guidelines do exist are limits on the Board’s ability to award a parole, not guarantees.

A parole shall be ordered only for the best interest of society, not as an award of clemency; it shall not be considered to be a reduction of sentence or pardon. An offender shall be placed on parole only when arrangements have been made for his proper employment or for his maintenance and care, and when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen.

Miss.Code Ann. § 47-7-17 (Rev.2000).

¶ 8. There is a continuum of a prisoner’s hopes — beginning with desire, leading through expectation, and finally arriving at certainty — involved with parole in Mississippi. See Davis v. Johnson, 205 F.Supp.2d 616, 619 (N.D.Miss.2002). Which one or more are liberty interests determines what process is due at each stage. The first level is that of the inmate prior to any determination about parole. The second is the inmate who has been awarded parole, conditionally or at least prospectively, but he has not yet been released. Finally, there is the inmate released from confinement.

¶ 9. A Mississippi inmate in the first position has no due process rights. A prisoner in the third position is due certain process before he can be returned to prison. Morrissey v. Brewer, 408 U.S. 471, 481-90, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). It is the second position that is the closer question, with an inmate’s heightened hopes in release. However, the United States Supreme Court has held that no procedural due process protections attach to an inmate in such a circumstance:

We do not doubt that respondent suffered “grievous loss”-upon OAPA’s rescission of his parole. But we have previously “reject[ed] ... the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause.” Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). In this case, as in our previous cases, “[t]he question is not merely the ‘weight’ of the individual’s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property language of the Fourteenth Amendment.’ ” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

Jago v. Van Curen, 454 U.S. 14, 17, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981). In Jago as with White, the prisoner had been notified that he would receive parole. Then before the actual release, the parole authorities determined that some of the statements that the prisoner had made during the evaluation process were false. The parole decision was rescinded. The Court found that no hearing or other process was required. Id.

¶ 10. Therefore, even though we do not find any record evidence of the reason for the Board’s rescission, that absence is unimportant insofar as White’s constitutional process rights are concerned. By statute, though, the Parole Board is within 30 days of denial of parole to give the inmate a written explanation. Miss.Code Ann. § 47-7-17 (Rev.2000). White makes no complaint that he was not informed of the basis, and indeed the trial court’s opinion indicates the reason.

¶ 11. White provides a list of inmates who have served less time than he, yet received parole. White’s argument seems to be one in which sheer numbers have created a right to parole. Again, White treads on ground already covered by the U.S. Supreme Court.

A constitutional entitlement cannot be created-as if by estoppel-merely because a wholly and expressly discretionary state privilege has been granted generously in the past. No matter how frequently a particular form of clemency has been granted, the statistical probabilities standing alone generate no constitutional protections; a contrary conclusion would trivialize the Constitution. The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency.

Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981).

¶ 12. White has failed to demonstrate any process due him as a result of the Board’s decision to rescind his parole. There was no error in dismissing White’s petition.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DISMISSING WITH PREJUDICE DEFENDANT’S PETITION FOR PAROLE IS HEREBY AFFIRMED. COSTS ARE ASSESSED TO SUNFLOWER COUNTY.

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


text:
    Harvey Joe RAY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KP-01571-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2002.
    Rehearing Denied Feb. 4, 2003.
    Certiorari Denied May 1, 2003.

      Harvey Joe Ray (pro se), attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Harvey Joe Ray was convicted of aggravated assault after a jury trial. On appeal, Ray dismissed his counsel and filed his own brief, a decision upheld by Supreme Court order. He alleges that he was illegally arrested following the grant of bond, that the district attorney should have recused himself, that the sentence was unconstitutional, that his counsel’s assistance was ineffective, and that certain jury instructions should have been granted. We find no error and affirm.

FACTS

¶ 2. On September 3, 2000, Harvey Joe Ray received a telephone call from his daughter, Sherrie Ray Dahl. Sherrie and her husband, Otey Dahl, and her mother and three children were staying at a home owned by her brother. Mrs. Dahl called Ray that morning to complain that the new roof on the house was being constructed incorrectly. Ray had contracted and paid for the roof repairs. Angered by the phone call, he drove from his home in Jackson to the house in Montgomery County to confront them.

¶ 3. Ray met Otey Dahl in the front yard of the property. After a brief exchange of heated words, Ray pulled a pistol that had been concealed in his clothing and shot Dahl in the head. Ray called to his daughter to summon an ambulance. Ray began administering first aid to Dahl. When police arrived, Ray immediately confessed to shooting Dahl but insisted that it was both self-defense and an accident. He said that he thought Dahl intended to beat him and sought only to fire a warning shot that would not hit Dahl. Ray was arrested and taken into custody.

¶ 4. Three days later, Ray was released on bond. This bond was revoked, however, when Ray failed to appear for arraignment. The circuit judge issued a bench warrant for Ray. Upon his arrest, Ray was returned to the Montgomery County jail to await trial.

DISCUSSION

1.Arrest upon revocation of bond

¶ 5. Ray insists that his arrest after he had failed to appear at the arraignment was illegal because no order to revoke bond exists. He insists that the only reason he was absent from arraignment was failure on the part of the district attorney’s office to notify his attorney of the proper date for his appearance. The Montgomery County Circuit Court issued a judgment nisi ordering forfeiture of Ray’s bond following Ray’s failure to appear for arraignment. The judgment provided that Ray was to appear and show cause why the judgment forfeiting the bond should not be made final. On the same day, the circuit court issued a bench warrant for Ray’s arrest. Miss. Code Ann. § 99-5-25 (Rev. 2000). The forfeiture of the bond may be set aside if the defendant in the judgment nisi surrenders or is arrested, but that does not restore the defendant to the freedom that he had prior to the judgment nisi. Instead, the trial court “after full review of the defendant and the pending charges, in open court, may discharge the prisoner on his giving new bail....” Miss. Code Ann. § 99-5-27 (Rev.2000). At the arraignment after Ray was arrested, the court determined not again to release Ray on bail. We find no error.

2. Recusal of district attorney

¶ 6. Ray alleges that the Montgomery County District Attorney, Doug Evans, should have recused himself because he was related to the victim, Otey Dahl. There is no evidence in the record of such a relationship. Further, Ray made no objection at trial to Evans’ involvement in the prosecution. We find nothing to review. White v. State, 532 So.2d 1207, 1215 (Miss.1988).

3. Legality of sentence imposed

¶ 7. Ray’s argument is two-fold: that the twenty-year sentence effectively constituted a life sentence given his age of sixty-three at the time of sentencing, and that the total sentence exceeds the statutory maximum for aggravated assault.

¶ 8. Ray received the maximum sentence for this offense. Miss.Code Ann. § 97-3-7(2) (Supp.2002). For Ray to argue that for him to receive a sentence of twenty years actually exceeds the maximum may be based on caselaw that, in certain circumstances, a judge must give a defendant a sentence that is less than what an actuarial table would indicate is his remaining expected years of life. That arises when the statutory sentencing options are life imprisonment as imposed by a jury or a term of years to be determined by the court. If the jury in that situation fails to impose a life sentence, the court should select a term of years “reasonably expected to be less than life.” Stewart v. State, 372 So.2d 257, 258 (Miss.1979). We do not find that the analysis that applies under a statutory scheme for sentencing once a jury has failed to agree on a life sentence, is applicable when the legislature has instead set a specific term of years as the maximum and has allowed that sentence to be imposed by a trial judge.

¶ 9. Age and life expectancy are but parts of the total considerations in proper sentencing. Lindsay v. State, 720 So.2d 182, 186 (Miss.1998). The court is to consider all relevant factors when making a sentencing decision. Stewart, 372 So.2d at 259. Where the sentence imposed is within the range permitted by statute, we generally have no power to disturb the trial court’s exercise of discretion. Davis v. State, 724 So.2d 342, 344 (Miss.1998).

¶ 10. In this case, the trial court reviewed on the record the reasons for imposing the maximum available sentence. Prominent among those reasons was the fact that the tragedy was caused by what the trial judge believed was Ray’s egregiously excessive reaction to a minor provocation, which included arming himself and driving a considerable distance because of his anger. The court specifically considered Ray’s age, but the judge must have found other factors to outweigh Ray’s age.

¶ 11. The second portion of Ray’s argument here is that the combined sentence of incarceration and probation exceeds the maximum penalty permitted by statute, twenty years. For this proposition, he relies upon a case that has been overruled. Goss v. State, 721 So.2d 144 (Miss.1998), overruled in Carter v. State, 754 So.2d 1207, 1209-10 (Miss.2000)(period of probation is not considered in calculating whether the sentence exceeds the statutory maximum).

¶ 12. The sentence Ray received was twenty years, with twelve to serve and eight suspended for five years. In Ray’s calculations, this totals twenty five years. If Ray ultimately serves the entire twelve years and then does not violate the terms of his probation, he will be free of the effects of his sentence in seventeen years. However, should he violate the probationary terms, he would be required to serve the eight years remaining on his sentence, for a total time of incarceration of twenty years, the statutory maximum. The five-year probation period does not count towards calculating any part of time served. Miss.Code Ann. § 47-7-37 (Rev.2000).

A Ineffective assistance of counsel

¶ 13. The United States Supreme Court has established the standard for evaluating claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant must show not only that counsel’s performance was deficient but was sufficiently deficient to cause prejudice to the defendant. Id. at 687, 104 S.Ct. 2052. In Mississippi, that requires a showing by the appellant that, but for counsel’s shortcomings, the result of the proceedings would have been different. Cole v. State, 666 So.2d 767, 775 (Miss.1995).

¶ 14. In his brief, Ray lists twenty three separate acts or omissions that he claims demonstrate the substandard performance of his attorney before and after trial. The issues concern such matters as counsel’s failure to file pretrial motions, to present alternative explanations for the bullet being in the victim’s head, to seek ballistic testing despite the defendant’s admissions, or to make more of the defendant’s diabetes. There are also alleged shortcomings in counsel’s examining of certain witnesses. After an analysis of the record and of each contention, we find both that trial counsel performed above the minimum professional requirements and that discussion of the issues would not add to the jurisprudence of the state. This point of error is denied.

5. Jury instructions

¶ 15. Ray contends that it was error to deny three instructions proffered by the defense. The first stated that Ray was licensed to carry his pistol while the remaining two instructed the jury on self-defense justification. While a defendant is entitled to instructions which present his theory of the crime, the trial court is permitted to refuse a proffered instruction which is fairly covered elsewhere. Heidel v. State 587 So.2d 885, 842 (Miss.1991).

¶ 16. The jury was well aware that Ray was licensed to carry a gun. Testimony to that effect was elicited at trial and the license was introduced as evidence. Whether or not Ray was permitted to carry the weapon is not an element of the crime or the claim of self-defense. Instructing the jury on this point was unnecessary and the trial court properly declined to do so.

¶ 17. The two denied self-defense instructions overlapped other instructions that were given. Ray was afforded four instructions as to self-defense and accident. The jury was adequately instructed on Ray’s theory of events and we find no error.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH EIGHT YEARS SUSPENDED FOR FIVE YEARS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

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


author: BRIDGES, J.,

text:
    Ronald CAGLER, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-KA-01900-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.

      James L. Gray, Picayune, for appellant.
    Office of the Attorney General by Scott Stuart, for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J.,

FOR THE COURT:

¶ 1. On June 6, 2000, the grand jury of Pearl River County indicted Ronald Ca-gler for the offense of simple possession of .5 gram of cocaine. In April 2001, the assistant district attorney made a motion to amend the indictment to charge Cagler as a second or subsequent offender under section 41-29-147 of the Mississippi Code of 1972. This motion was not heard until the day of the trial, October 18, 2001. However, before trial Cagler filed a motion to suppress illegally obtained evidence which was overruled by the trial judge. On the day of trial, Cagler was tried and found guilty on the charge in the initial indictment. Soon thereafter, the court proceeded to enter an order allowing the State to amend its indictment, but no amended indictment was ever prepared or served upon the defendant. A hearing on whether Cagler was a second or subsequent offender was continued until the next day, October 19, 2001. The court later found Cagler to be a second and subsequent offender, and subsequently he was convicted on the simple' possession charge in the original indictment and as a second and subsequent offender as in the amended indictment. Cagler also filed a motion for a new trial which was later denied. The court sentenced Cagler to a term of sixteen years, with six years to be suspended, and ten years to serve. He now appeals to this Court.

STATEMENT OF ISSUES

I. WHETHER THE TRIAL JUDGE ERRED WHEN HE DENIED THE PETITIONER’S MOTION TO SUPPRESS THE EVIDENCE.

II. WHETHER THE TRIAL COURT ERRED IN ITS FAILURE TO GIVE JURY INSTRUCTION D-2.

III. WHETHER THE TRIAL JUDGE ERRED WHEN HE GRANTED THE STATE’S MOTION TO AMEND THE INDICTMENT.

IV. WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION FOR A MISTRIAL.

V. WHETHER THE TRIAL JUDGE ERRED DURING VOIR DIRE TO THE EXTENT THAT CAGLER WAS DENIED A FAIR TRIAL.

FACTS

¶ 2. On or about July 31, 1999, Ronald Cagler was driving a blue Plymouth Colt automobile traveling south on South Beech Street in Picayune, Mississippi. Officer Anthony Brian Clark, who was at the time employed by the City of Picayune as a patrolman, noticed the vehicle operated by Cagler was emitting a considerable amount of exhaust and proceeded to pull the vehicle over. Cagler’s vehicle contained only one other passenger who, after being stopped by officer Clark, asked permission to leave the scene and was later granted permission. After pulling over the vehicle, Cagler exited the vehicle and proceeded to hand over his driver’s license to the officer. Officer Clark returned to his patrol car to check the validity of the license only to find that Cagler’s license had been suspended due to his failure to appear in court.

¶ 3. Subsequently, Officer Clark placed Cagler under arrest for operating a vehicle without the proper equipment and driving with a suspended license. During the arrest, Officer Clark handcuffed Cagler and then proceeded to pat him down. In his pat down, Officer Clark found a wallet and after opening it, found a plastic bag containing a leafy green substance, later determined by the Mississippi Crime Lab to be marijuana,

¶ 4. There is dispute, however, as to exactly where the bag was found within the wallet. There is also a disagreement as to what the officer did with the bag after it was discovered. Cagler and another witness testified Officer Clark threw the bag onto the hood of the defendant’s vehicle, whereas Officer Clark testified that he placed the bag in his front uniform pocket. Thereafter, Officer Clark transported Ca-gler to the Picayune Criminal Justice Center where he was handed over to the jailer and later strip searched. Officer Clark testified that he took the bag of green leafy substance to the squad room where he placed it into an evidence bag to be labeled and put into an evidence locker.

¶ 5. Officer Clark also testified that it was at this point in time when he noticed another bag inside the bag taken from Cagler’s wallet. Officer Clark testified that, after opening the bag, he discovered a small white rock-like substance, which was also later determined to be cocaine by the Mississippi Crime Lab. Officer Clark testified that he placed the second bag in a separate evidence bag, tagged both bags and put them into the evidence locker. Cagler testified that after the strip search, Officer Clark reappeared and informed him that he had been charged with possession of crack cocaine, which he denied, and also that Officer Clark had the bag with him when he informed Cagler of the new charge. Cagler freely admitted to carrying the marijuana and that he purchased it right before being pulled over by Officer Clark, but adamantly denied there was another bag.

ANALYSIS

I. WHETHER THE TRIAL JUDGE ERRED WHEN HE DENIED THE PETITIONER’S MOTION TO SUPPRESS THE EVIDENCE.

¶ 6. The United States Supreme Court in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), has held that, as a general matter, determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. The court then hastened to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Id. When determining the existence of probable cause, trial judges should take a “totality of the circumstances” approach. McNeal v. State, 617 So.2d 999, 1006 (Miss.1993). The trial judge should consider “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. In essence the court should examine probabilities and not technicalities.

¶ 7. Probable cause requires information that would reasonably lead an officer to believe that, then and there, contraband or evidence to a criminal investigation would be found. Rooks v. State, 529 So.2d 546, 555 (Miss.1988).

¶ 8. Just as the trial court found, Ca-gler’s vehicle in this matter, was stopped because of excessive smoke emanating from it. By virtue of Sections 63-7-55 and 63-7-7 of the Mississippi Code of 1972, as amended, the legislature intended for a vehicle to be in proper working order and should not constitute a danger to any person or the public as it operates upon any road or highway. The trial court further found that the uncontroverted testimony of the officer, that smoke was emanating from Cagler’s car in such a fashion and in such an amount, constituted probable cause, under the above referenced section of the Mississippi Code, to stop the vehicle and obtain both the identity of the driver as well as the license status of that driver.

¶ 9. The trial judge correctly stated in his order that because Cagler was arrested for a suspended license after the stop, the search of the defendant goes beyond a Terry search, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (where a police officer has a reasonable and articulable suspicion that a suspect is armed and dangerous he, may, without probable cause, perform a pat-down search for concealed weapons) and instead reaches the level of Robinson, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (when an offense authorizes a full custodial arrest, a search incident to that arrest may follow, even where police do not fear for their safety or believe contraband will be found). The officer involved had every right to search for foreign objects on Ca-gler and it was also reasonable for the officer to open the wallet of the defendant to determine if there were any foreign objects which would endanger the safety of the officer. By opening the wallet to the fullest extent, the officer discovered a bag containing a green leafy substance believed to be marijuana and it was this very bag that was later discovered to contain another bag containing cocaine.

¶ 10. For these reasons and in accordance with the aforementioned case law, the actions taken by the officer are found to be within reason under the totality of the circumstances approach used when determining the existence of probable cause. The stop and search were proper and therefore Cagler’s claim, that the trial court erred when it denied his motion to suppress, is without merit.

II. WHETHER THE TRIAL COURT ERRED IN ITS FAILURE TO GIVE JURY INSTRUCTION D-2.

¶ 11. It-is the trial judge’s responsibility, not the jury, to determine the admissibility of the fruits of the search. Holt v. State, 348 So.2d 434, 439 (Miss.1977). It is also a question of law for the trial judge and not the jury to determine whether or not a search warrant was properly issued. Salisbury v. State, 293 So.2d 434, 438 (Miss.1974). “It is admissible in the record only to show that there was probable cause for the issuance of the writ. The evidence before the trial judge is not to be again offered before the jury.” Id. See Sisk v. State, 290 So.2d 608 (Miss.1974). In the case of Heidel v. State, 587 So.2d 835, 842 (Miss.1991), the court stated:

A defendant is entitled to have jury instructions given which present his theory of the case, Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990); Young v. State, 451 So.2d 208, 210 (Miss.1984); 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. Murphy, 566 So.2d at 1206.

¶ 12. Instruction D-2 accurately states the law, in as much it tells the jury that evidence obtained through an illegal search cannot be considered evidence and that a search must be reasonable and limited in scope. The inaccurate part of Jury Instruction D-2 charges the jury that it is its function to determine whether or not the search was to find weapons on Cagler or to prevent Cagler from destroying evidence. The instruction also inaccurately states that the jury must not consider the evidence if it finds that the search was not for either one of those purposes. Again, as stated in Holt, it is not the responsibility of the jury, but the trial judge, to determine whether or not the search was supported by probable cause. Heidel, 587 So.2d at 842.

¶ 13. Cagler was not entitled to an instruction that did not accurately state the law. Therefore, the trial judge was correct in denying Jury Instruction D-2 and Cagler’s claim is without merit.

III. WHETHER THE TRIAL JUDGE ERRED WHEN HE GRANTED THE STATE’S MOTION TO AMEND THE INDICTMENT.

¶ 14. Cagler argues that he was not served a copy of the amended indictment, and he did not have time to prepare to argue against amending the indictment. He also alleges that he was pardoned for the prior conviction, and had he more time to prepare, he could have proven the pardon.

¶ 15. In the case of Brown v. Sutton, 158 Miss. 78, 121 So. 835, 837 (1929), the court said: “Every court of record has general authority over its own records. The power of such a court to correct its records so as to make them speak the truth is inherent. The records of a court can be corrected or altered only by the court itself; and another court has no authority to make such corrections, even though it has appellate jurisdiction over the court whose records are sought to be corrected.”

¶ 16. Getting to the amendment itself, an indictment can be amended when the amendment goes to form and not to substance. Burson v. State, 756 So.2d 830 (¶ 14) (Miss.Ct.App.2000). When deciding whether an amendment goes to form or substance, this Court looks to see if the defenses the defendant had originally are equally available to the defendant after the amendment is made. Eakes v. State, 665 So.2d 852, 859-60 (Miss.1995). After looking at the record in this case it becomes clear the same defenses were available to Cagler after the indictment was amended as were available before the amendment. Cagler would have the same defenses available to him in this case whether he was a repeat offender or not. For this reason, the amendment in this case goes to form and not to substance, and thus would be allowed under Mississippi law.

¶ 17. Rule 7.09 of the URCCC reads as follows:

Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement. Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not fairly surprised.

Therefore, the trial court was not in error in allowing Cagler’s indictment to be amended to reflect his repeat offender status.

¶ 18. In addition, the State’s motion to amend the indictment was filed six months prior to trial. On October 16, 2001, a notice was prepared and served by the State noticing a hearing on the motion to Amend Indictment for October 18, 2001, the day of the trial of Cagler. On the day of the trial, defense counsel asked for and received a continuance until 11:00 a.m. the next morning. Cagler’s claim that he did not have time to prepare therefore fails. The court granted defense counsel a generous amount of time to prepare for the hearing concerning the motion for an amended indictment. At the sentencing hearing, it was proven that Cagler had been previously convicted of distributing a controlled substance. Defense counsel did not even object to the admission of proof of the prior conviction.

¶ 19. Defense counsel claims that had he been given adequate notice of the amended indictment and time to prepare he would have discovered that Cagler had been pardoned for the prior offense. Ca-gler could have told his counsel that Louisiana had given him a pardon for his conviction, but he did not. Cagler had sufficient time to confer with his attorney. Cagler did not assert that he had received a pardon when he filed a motion for a new trial. Even at his sentencing hearing, Cagler was asked by the court if he wished to say anything before sentencing was imposed. Cagler responded, “No, sir.” At that moment, Cagler could have mentioned his pardon, but he did not.

¶ 20. Cagler has clearly failed to demonstrate an error by the trial court when it allowed the indictment to be amended.

IV. WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION FOR A MISTRIAL.

¶ 21. Cagler alleges that the trial judge erred when he overruled Cagler’s motion for a mistrial. He claims that a person on the venire gave answers to a question that “poisoned the entire jury pool.”

¶22. In Grayson v. State, 806 So.2d 241, 253 (Miss.2001), the court held that the standard of review applicable to decisions of whether to grant a mistrial based upon voir dire statements of potential jurors is abuse of discretion. The court stated in Hoops v. State, 681 So.2d 521, 528 (Miss.1996), that generally speaking, a defendant can not complain when damaging and inappropriate testimony is given in response to his question. The Mississippi Supreme Court stated in Perkins v. State, 600 So.2d 938 (Miss.1992), that the trial judge “is in the best position for determining the prejudicial effect” of an objectionable remark. The determination of whether or not a juror is fair and impartial is a judicial question and will not be set aside unless it is clearly wrong. Taylor v. State, 672 So.2d 1246, 1246 (Miss.1996).

¶ 23. In Grayson, the defendant made no objection when the comment was made. Grayson, 806 So.2d at 253. Only after voir dire was concluded did the defendant make a motion for a mistrial claiming the comment was inflammatory. Id. The court in Grayson neither admonished the jury to disregard the statement nor did the court ask the prospective jury members at the time whether they would be able to disregard the statement. Id. This decision was later affirmed by the Mississippi Supreme Court. In Saucier v. State, 328 So.2d 355, 357-58 (Miss.1976), the Mississippi Supreme Court also held that a motion for a mistrial came too late when the party waited until a jury had been impaneled.

¶ 24. In accordance with the aforementioned caselaw, the judge did not abuse his discretion when he overruled Cagler’s motion for a mistrial. The comments made by the potential juror, Brasington, were apparently honest responses to the question asked by defense counsel. The response given was not such that the entire jury panel was “poisoned” so they could not decide fairly and impartially the case evidence before them. Defense counsel did not even make an objection to Brasing-ton’s statement at the time it was made. After the response was given, the trial judge suggested defense counsel ask Bras-ington if the information given would destroy her impartiality to judge the case. Additionally, Cagler waited until voir dire was concluded, the challenges for cause and peremptory strikes had been made, and the jury selected before he made his motion for a mistrial. According to Saucier, this just is not allowed. Cagler could have easily made his motion for a mistrial during voir dire while the court and the parties could still ask questions in order to determine the feelings and beliefs of the potential jurors. That fact, combined with the brief nature of the comment, suggests that it was not so prejudicial as to warrant a mistrial, and the trial court did not abuse its discretion in denying that motion.

V. WHETHER THE TRIAL JUDGE ERRED DURING VOIR DIRE TO THE EXTENT THAT CAGLER WAS DENIED A FAIR TRIAL.

¶ 25. Cagler alleges that numerous acts by the trial judge during voir dire denied him a fair trial. His arguments include: (1) the judge did not give counsel ample opportunity to determine the identity and background of two jurors, Karen Jackson and Ruby Twillie, who were absent during voir dire; (2) the judge improperly interrupted defense counsel when he asked questions during voir dire about family members and friends who had been charged with drug problems; (3) the judge again interrupted defense counsel’s questioning of Doreen Wallace; and (4) Cagler alleges but never discusses reversible error due to the racial content of the jury-pool.

¶ 26. As to Cagler’s first and final claims of this issue, that he was denied opportunity to investigate the identity and background of two African Americans absent from jury service and that there was reversible error due to the racial content of the jury pool, the Mississippi Supreme Court has held and still holds today that “a party who fails to object to the jury’s composition before it is empaneled waives any right to complain thereafter.” Bell v. State, 725 So.2d 836, 844 (Miss.1998); Hunter v. State, 684 So.2d 625, 631 (Miss.1996); Myers v. State, 565 So.2d 554, 557 (Miss.1990); Pickett v. State, 443 So.2d 796, 799 (Miss.1983). Objections to these two claims were not timely raised by the defense counsel, and as such, the objections are considered waived.

¶ 27. In dealing with Cagler’s second and third claim, concerning the trial judge’s interruptions during questioning, the Mississippi Supreme Court in Evans v. State, 725 So.2d 613, 651 (Miss.1998), stated that trial courts have the responsibility to control voir dire, but in doing so must take care not to hinder full exploration of juror’s predispositions. In addition, “the line between a proper and improper question is not always easily drawn; it is manifestly a process in which the trial judge must be given a considerable discretion.” Harris v. State, 532 So.2d 602, 606 (Miss.1988); Murphy v. State, 246 So.2d 920, 922 (Miss.1971). This discretion includes passing upon the extent and propriety of questions addressed to the prospective jurors. Rigby v. State, 826 So.2d 694,(¶ 43) (Miss.2002); Jones v. State, 381 So.2d 983, 990 (Miss.1980).

¶ 28. However, this discretion is not unlimited, and an abuse will be found where “clear prejudice to the accused results from undue constraint on the defense or undue lack of constraint on the prosecution.” Jones, 381 So.2d at 990. In conclusion, one of the purposes of voir dire examination is “to enable counsel to ascertain whether there is ground for a challenge of a juror for cause, or for a peremptory challenge.” Jackson v. State, 791 So.2d 830, 836(¶ 24) (Miss.2001).

¶ 29. In claiming that the court unfairly limited his questioning, Cagler has failed to demonstrate that the trial judge denied him a fair trial. The judge noted that many of the potential jurors raised their hands when asked if any had family members or close friends who had ever been charged with a drug crime. It was clearly reasonable to ask counsel to narrow his question. Therefore, there was no abuse of discretion to consider.

¶ 30. In regards to the interruptions in the questioning of Doreen Wallace, the trial judge was responding to Wallace saying she would have a problem being impartial knowing people were out there giving drugs to children and students. The questions asked by the judge appeared to be seeking information that would allow the court and counsel to determine whether or not they should strike her as a juror. Nothing was said regarding the thoughts of the judge on whether he regarded Ca-gler as guilty. The record is clear that the judge was trying to ensure the defendant received a fair and impartial jury and not the other way around.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE, SECOND AND SUBSEQUENT OFFENDER, AND SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SIX YEARS SUSPENDED ON POST-RELEASE SUPERVISION FOR FIVE YEARS, AND PAY $840.63 IN RESTITUTION IS AFFIRMED. ALL COSTS TO THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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