author: KING, P.J.,

text:
    Maurice FERGUSON, a/k/a Edward Hunter, a/k/a Michael Ferguson, a/k/a Lee Tollfree, a/k/a Arthur Ferguson, a/k/a MIchael Lewis, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00120-COA.
    Court of Appeals of Mississippi.
    March 4, 2003.
    Rehearing Denied May 6, 2003.

      Carol L. White-Richard, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   KING, P.J.,

for the court.

¶ 1. Maurice Ferguson was found guilty in the Circuit Court of Washington County, Mississippi of armed robbery and possession of a firearm by a convicted felon. He was sentenced to serve a term of life imprisonment, as an habitual offender in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction, Ferguson has appealed and raised the following issues:

I. Whether the trial court erred when it denied his motion to suppress the photo line-up shown to the victim.

II. Whether the trial court erred by failing to issue a limiting instruction, sua sponte, regarding Ferguson’s prior felony convictions.

III. Whether the trial court erred when it denied his motion for a directed verdict and whether the verdict was against the overwhelming weight of the evidence.

FACTS

¶ 2. On the afternoon of October 18, 1999, a man (later identified as Maurice Ferguson) walked into the Check Into Cash business in Greenville, Mississippi. Mrs. Shawna Tillis stated that the man, who was unknown to her, approached the counter and inquired about getting a cash advance. Tillis talked to this man for approximately five minutes regarding the information required to obtain a cash advance loan. Tillis stated that the man indicated that he did not have the information at hand to complete the forms and would return later.

¶ 3. Within a few moments, Tillis heard the door open again. Ferguson, the same individual, was standing in front of her with a gun pointed directly at her. Ferguson demanded that Tillis give him the money in the cash register and the vault. Tillis gave Ferguson the cash located in the cash register and told him that the store did not have a vault. Ferguson instructed her to get on the floor and not say anything. Ferguson then took the cash and fled the scene.

¶ 4. Shortly after the robber left, Tillis called the police and gave a description of his appearance. Officer Brian Williams of the Greenville Police Department received the description and searched the area looking for the suspect. The police were not able to locate the suspect on the day of the robbery.

¶ 5. On October 23, 1999, while driving down Washington Avenue in Greenville with her husband, Tillis noticed a man that looked similar to the person who had robbed her. Her husband stopped the car, approached the man and questioned him about the robbery. According to Tillis, the man acted as though he knew nothing about the incident and did not know Shawna Tillis.

¶ 6. Afterwards, Tillis and her husband drove to a furniture store and called the police. The police searched the area but were unable to locate the suspect. Subsequently, Tillis was asked to view a photographic line-up in an effort to identify the robber. Ferguson’s photograph was not among those viewed by Tillis.

¶ 7. On October 27, 1999, Officer Jeffrey Wilson of the Greenville Police Department indicated that the investigation had focused on a suspect and asked Tillis to view another photographic line-up. Officer Wilson testified that he composed the photographic line-up by considering the “average height, that it be similar, skin color, weight, hair cuts, facial hair.” Ferguson’s picture, which had been taken on the same date as the line-up, was included among the pictures shown to Tillis. After viewing all of the pictures, Tillis immediately identified Ferguson as the man who had robbed her at gunpoint.

¶ 8. On January 24, 2000, Ferguson was indicted on the charges of armed robbery and possession of a firearm by a convicted felon. Ferguson was found guilty of these charges, and sentenced as an habitual offender to two consecutive life sentences without parole.

ISSUES AND ANALYSIS

I.

Whether the trial court erred when it denied his motion to suppress the photo line-up shown to the victim.

¶ 9. Ferguson contends that the failure of the trial court to suppress evidence of the photographic line-up identification was prejudicial error. Ferguson claims that after being informed that the investigation had focused on a suspect, Tillis was asked to view a photographic line-up to identify the robber. Ferguson maintains that the nine photographs included in the line-up each contained a date at the bottom. The dates on eight of the photographs were from three to nine years previous. The date on Ferguson’s photo was the date of the line-up. He contends that this caused him to be conspicuously singled out, and tainted the identification.

¶ 10. Ferguson suggests that the recent date on his photograph and the officer’s comment that the investigation had focused on a suspect rendered the identification so impermissibly suggestive that it should have been suppressed. This Court reviews a question of improper pretrial identification in the following manner:

Regarding an improperly suggestive pre-trial identification tainting subsequent identification at trial, this Court evaluates the factors enumerated in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), to determine whether the in-court identification is “sufficiently reliable to overcome the taint of the prior improperly attained identification.” Gayten v. State, 595 So.2d 409, 418 (Miss.1992). The Biggers factors are:
(1)the opportunity of the witness to view the accused at the time of the crime;
(2) the degree of attention exhibited by the witness;
(3) the accuracy of the witness’ prior description of the criminal;
(4) the level of certainty exhibited by the witness at the confrontation;
(5) the length of time between the crime and the confrontation.
Fleming v. State, 604 So.2d 280, 302 (Miss.1992).

Ellis v. State, 667 So.2d 599, 605 (Miss.1995).

¶ 11. An application of the Biggers factors to this case establishes: (1) Tillis had ample opportunity to observe Ferguson. She talked with him for approximately five minutes shortly before the robbery. She also talked with him again when he returned a few moments later to rob the business; (2) While Ferguson was present, there was nothing to distract Tillis’ attention from him; (3) Tillis phoned a description of the robber to the police department immediately after the robbery. That description was accurate except as to Ferguson’s height and age; (4) The record in no way indicates that Tillis expressed any uncertainty about her identification of Ferguson; (5) The time between the robbery was short. The robbery occurred on Monday, October 18, 1999. Tillis saw Ferguson again on Saturday, October 23, 1999. Tillis identified Ferguson in a photo lineup on October 27,1999.

¶ 12. The application of the Big-gers factors caused the trial court, and this Court, to conclude that there was sufficient indicia of reliability to allow the identification. While Tillis’ description was inaccurate as to Ferguson’s height and age, these inconsistencies go to the issue of credibility rather than reliability. Questions of credibility are resolved by the jury. Noe v. State, 616 So.2d 298, 303 (Miss.1993).

¶ 13. Where there is substantial credible evidence which supports the jury verdict, we are obligated to affirm. Sanders v. State, 730 So.2d 1154(¶ 8) (Miss.Ct.App.1999). Ferguson has failed to establish that the jury’s verdict was not supported by substantial credible evidence.

¶ 14. Upon review of the record, we find that there was credible evidence to support the trial court’s decision.

II.

Whether the trial court erred by failing to issue a limiting instruction, sua sponte, regarding Ferguson’s prior felony convictions.

¶ 15. Ferguson contends that the trial court erred by failing to issue a limiting instruction, sua sponte, regarding his prior felony convictions being used as proof in the possession of a firearm by a convicted felon charge and of his status as an habitual offender.

¶ 16. Responsibility for delivering a sua sponte instruction is determined by the reason the evidence is admitted. Williams v. State, 819 So.2d 532(¶ 23) (Miss.Ct.App.2001). In Newell v. State, 308 So.2d 71, 78 (Miss.1975), the supreme court authorized instructions by the court on its own motion, but held that the trial judge would not be put in error if he failed to instruct on a point of law on which he was not specifically requested in writing to instruct. Nettles v. State, 380 So.2d 246, 247 (Miss.1980).

¶ 17. The State introduced Ferguson’s three prior felony convictions of armed robbery to prove that he was previously convicted of at least two prior felonies, and that he was a convicted felon, which was an element of one of the offenses charged. At trial, no instruction was requested by Ferguson nor was an objection made to the admission into evidence of these prior felony convictions. The failure to object to the introduction of this evidence must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other related factors. Henton v. State, 752 So.2d 406(¶ 8) (Miss.1999).

¶ 18. However, when evidence is introduced that the defendant has a prior conviction for the same offense for which he is being tried, both counsel and the court have a duty to minimize the risk that the jury would infer guilt on the charges from the fact of previous convictions on similar charges through a request for and giving of a curative instruction. U.S. v. Diaz, 585 F.2d 116, 118 (5th Cir.1978). The supreme court has noted that “the better practice is that a limiting instruction be granted by the trial judge sua sponte when proper request is not made by defense counsel.” Peterson v. State, 518 So.2d 632, 638 (Miss.1987). While giving a limiting instruction sua sponte may be the “better practice” when a request by defense counsel has not been made, failure to give a limiting instruction sua sponte is not always reversible error. Williams v. State, 819 So.2d 532 (¶¶ 24-28) (Miss.Ct.App.2001).

¶ 19. Miss.Code Ann. Section 97-37-5 (Rev.2000) does not limit the number of prior felony convictions to be proven. While we are troubled by the number of prior felony convictions used to establish the element of the offense charged, we find that since the evidence was admitted to prove an element of the offense charged, a sua sponte instruction is not necessary unless the “totality” of the circumstances call for it regarding the admission of past criminal acts in evidence to prove an element of the crime. Nettles, 380 So.2d at 247. This totality is based on all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors. Id.

¶ 20. In the trial court’s instructions to the jury, the trial judge indicated that the jury should not “single out” one instruction alone, but consider the instructions as a whole. The trial judge instructed the jury on its duty to determine the facts “from the evidence produced in open court.” The trial judge then instructed the jury on using common sense and sound honest judgment in considering and weighing the testimony of each witness who testified in the case, and that the arguments made by the attorneys were intended to help in understanding the evidence and applying the law.

III.

Whether the trial court erred when it denied his motion for a directed verdict and whether the verdict was against the overwhelming weight of the evidence.

¶ 21. Ferguson contends that the trial court erred by denying his motion for a directed verdict and that the verdict was against the overwhelming weight of the evidence. He maintains that the State failed to prove the elements for armed robbery under Section 97-3-79 of Mississippi Code Annotated 1972, as amended.

¶ 22. The standard of review applied to motions for directed verdict or JNOV is as follows:

Requests for a directed verdict and motions JNOV implicate the sufficiency of the evidence.
[W]e must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Gleeton v. State, 716 So.2d 1083(¶ 14) (Miss.1998).

¶ 23. In determining whether or not a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when it is convinced that the circuit court has abused its discretion in failing to grant a new trial. Isaac v. State, 645 So.2d 903, 907 (Miss.1994).

¶24. In reviewing the evidence presented to the jury, we find that the State presented evidence in accordance with Section 97-3-79 of Miss.Code Ann. 1972, as amended, which revealed that Ferguson intentionally exhibited a deadly weapon which placed Tillis in fear of injury, and that Ferguson took funds from the store. Having reviewed this evidence, we find that the trial court did not err in its denial of the motion for directed verdict nor do we find that the verdict was against the overwhelming weight of the evidence.

¶ 25. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I ARMED ROBBERY AND COUNT II POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF LIFE ON EACH COUNT TO BE SERVED CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT PAROLE IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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

      . Miss.Code Ann. § 97-37-5 (Rev.2000), Possession by felon provides: (1) It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S.Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.
      (2) Any person violating this section shall be guilty of a felony and, upon conviction thereof, shall be fined not more than Five Thousand Dollars ($5,000.00), or committed to the custody of the State Department of Corrections for not more than three (3) years, or both.
      (3) A person who has been convicted of a felony under the laws of this state may apply to the court in which he was convicted for a certificate of rehabilitation. The court may grant such certificate in its discretion upon a showing to the satisfaction of the court that the applicant has been rehabilitated and has led a useful, productive and law-abiding life since the completion of his sentence and upon the finding of the court that he will not be likely to act in a manner dangerous to public safely.

      . Section 97-3-79 of Miss.Code Ann. 1972, as amended: Robbery using deadly weapon; punishment provides: Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Jason WRIGHT a/k/a Jason Allen Wright, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01928-COA.
    Court of Appeals of Mississippi.
    March 4, 2003.
    Rehearing Denied Aug. 5, 2003.

      William B. Jacob, Joseph A. Kieronski, Daniel P. Self, Meridian, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. Jason Wright was indicted for the crime of statutory rape. A jury found him guilty in the Circuit Court of Lauderdale County, the Honorable Larry Roberts presiding, and the judge sentenced him to twenty years in prison plus $10,000 in fines, and $246.50 in court costs. Wright perfected an appeal to this Court, and raised three issues:

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A LESSER RELATED JURY INSTRUCTION ON CONTRIBUTING TO THE DELINQUENCY OF A MINOR AND FAILING TO ALLOW A FULL DEVELOPMENT OF THE SUPPORTING PROOF AND THUS PRECLUDED THE DEFENDANT FROM PRESENTING HIS THEORY OF THE CASE TO THE JURY.
II. WHETHER THE TRIAL COURT ERRED AND MISUNDERSTOOD THE LAW AS TO THE APPLICATION OF THE POST RELEASE SUPERVISION STATUTES AND/OR PROBATION STATUTES AS THEY RELATE TO THE SENTENCE FOR A CONVICTION OF STATUTORY RAPE.
III. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT THE MOTION FOR DIRECTED VERDICT, PEREMPTORY INSTRUCTION AND JUDGMENT NOTWITHSTANDING THE VERDICT MOTIONS BASED ON THE STATE’S FAILURE TO PROVE THE AGE OF THE ALLEGED VICTIM AND DEFENDANT.

Statement of the Facts

¶ 2. During the evening of June 14-15, 2000, Sally Jones was spending the night at the home of her friend, Ruth Vandelay. One girl called Wright and his brother and invited them over. "When the two men arrived, Jones, Vandelay, Wright, and his brother went to a nearby travel trailer. Vandelay and Wright’s brother began kissing in the front room of the trailer. Jones and Wright went to the trailer’s bedroom. There, Wright, who was twenty years old at the time, asked Jones how old she was. She replied that she was twelve. Wright and Jones then had sexual intercourse.

¶ 3. Jones’s brother interrupted Jones and Wright, and Wright fled. Shortly after that, Jones’s mother took her to a hospital. There, medical personnel performed a pelvic examination on Jones. A sheriffs department investigator was summoned, and she interviewed Jones while she was still in the hospital.

¶ 4. Wright was interviewed later in the day of June 15. During the interview, he recounted the incident largely as described here, including the fact that he knew he could get in trouble for engaging in sexual activity with a twelve year old girl.

Legal Analysis

I.WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A LESSER RELATED JURY INSTRUCTION ON CONTRIBUTING TO THE DELINQUENCY OF A MINOR AND FAILING TO ALLOW A FULL DEVELOPMENT OF THE SUPPORTING PROOF AND THUS PRECLUDED THE DEFENDANT FROM PRESENTING HIS THEORY OF THE CASE TO THE JURY.

¶ 5. Wright argues that he was unable to present an alternate theory of the case to the jury since the trial judge did not allow him to submit a jury instruction that would have allowed the jury to consider a verdict on contributing to the delinquency of a minor. We affirm the trial court’s decision.

¶ 6. To justify a jury instruction on this lesser-included charge, Wright must point to some evidence in the record that would have allowed the jury to find him not guilty of statutory rape, and simultaneously, find him guilty of contributing to the delinquency of a minor namely, Jones. See Trigg v. State, 759 So.2d 448, 451(¶ 5) (Miss Ct.App.2000). There is no such evidence in the record. The evidence that does exist went to prove only that Wright engaged in sexual intercourse with Jones. There is no other act — delinquent or otherwise — that the evidence proves.

II. WHETHER THE TRIAL COURT ERRED AND MISUNDERSTOOD THE LAW AS TO THE APPLICATION OF THE POST RELEASE SUPERVISION STATUTES AND/OR PROBATION STATUTES AS THEY RELATE TO THE SENTENCE FOR A CONVICTION OF STATUTORY RAPE.

¶ 7. We find this issue is procedurally barred. A defendant must object to the length of his sentence at trial for us to review it on appeal. Cox v. State, 793 So.2d 591, 599(¶ 33) (Miss.2001). Since there was no objection at trial, we are barred from hearing the issue.

III. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT THE MOTION FOR DIRECTED VERDICT, PEREMPTORY INSTRUCTION AND JUDGMENT NOTWITHSTANDING THE VERDICT MOTIONS BASED ON THE STATE’S FAILURE TO PROVE THE AGE OF THE ALLEGED VICTIM AND DEFENDANT.

¶ 8. We fail to see the point Wright attempted to make with this issue. At the trial, Jones testified that her birth date was November 23,1987. This would make Jones twelve years old on the date of the rape. Traey-Hill Watts, the investigator from the Lauderdale County Sheriffs Department testified that she (Hill-Watts) had Jones’s birth date recorded as November 23, 1988, which would have made Jones eleven years old on the day in question. Hill-Watts also testified that Wright, during her interview with him, supplied his birth date as March 5, 1980. At the date of the rape, he was twenty years old.

¶ 9. Wright argues that the State did not prove Jones’s age. He contends that the only way to prove her age would be to introduce her birth certificate or other official document. Age, however, may be adequately proven by testimony. Taylor v. State, 744 So.2d 306, 319(¶ 54) (Miss.Ct.App.1999). The jury could believe either Jones or Hill Watts, although Jones would presumably have a better idea of when she was born. Assuming the alternate year of 1988 is correct, that would mean that Wright had intercourse with an eleven year old girl instead of a twelve-year-old. Either way, he committed statutory rape.

¶10. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $10,000 IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The names of both minors have been changed to protect their identities.

      . Hill-Watts testified that in her notes, she had written the date of birth down as 1987, but in the notes taken from the doctor, the date was written as 1988.


text:
    Larry Wayne McKENZIE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01991-COA.
    Court of Appeals of Mississippi.
    March 4, 2003.
    Rehearing Denied Aug. 26, 2003.

      Larry Wayne McKenzie (Pro Se), attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. Larry McKenzie pled guilty to statutory rape in Lauderdale County. After denial of his request for post-conviction relief, McKenzie appeals asserting :

1. HIS PLEA WAS NOT VOLUNTARILY, KNOWINGLY, NOR INTELLIGENTLY MADE;

2. HE DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL;

3. LAUDERDALE COUNTY LACKED AUTHORITY AND JURISDICTION TO ACCEPT HIS GUILTY PLEA;

4. HE WAS SUBJECTED TO DOUBLE JEOPARDY;

5. THE INDICTMENT WAS IMPROPER;

6. LACK OF SUFFICIENT EVIDENCE TO SUPPORT GUILTY FINDING;

7. HE WAS DENIED DUE PROCESS;

8. THE UNCONSTITUTIONALITY OF THE STATUTE; AND

9. HE HAS BEEN SUBJECTED TO CRUEL AND INHUMAN PUNISHMENT.

STATEMENT OF THE FACTS

¶ 2. McKenzie was a high school teacher who engaged in a sexual relationship with one of his fifteen-year-old students. Although he first denied such relationship, McKenzie pled guilty to the crime of statutory rape.

¶ 3. McKenzie was arrested in late August of 1999. He was indicted in Lauder-dale County for statutory rape on November 19, 1999. He was later indicted again in Lauderdale County for statutory rape on July 25, 2000. Sometime in August of 2000, the district attorney made an oral motion to nolle prosequi the November 1999 indictment. The only major differences in the two Lauderdale County indictments were the removal of the statutory section for proving sexual penetration and a change in the birth date of the victim. The request was granted in late August 2000. He was also indicted on January 24, 2000, in Oktibbeha County. All three indictments involved his inappropriate sexual relationship with the same victim.

¶ 4. After learning that he was wanted but prior to his arrest, McKenzie retained Dave Harbour as his defense counsel. His family hired William Ready, Sr. to assist Harbour. McKenzie alleges that when Harbour moved his practice in February 2000 and informed him that Ready Sr. would be the primary attorney. McKenzie never objected.

¶ 5. McKenzie was also sued by the mother of the victim. The complaint was filed on December 30, 1999, and served the next month. The mother’s attorney was William Ready, Jr., the son of one of McKenzie’s criminal defense attorneys. McKenzie knew long before his pleading that the relationship existed. McKenzie alleges that Ready Sr. helped to set the lawsuit up to pacify the mother of the victim and maybe prevent a criminal prosecution.

¶ 6. McKenzie pled guilty to the charge presented in the second Lauderdale County indictment on September 27, 2000, as part of a plea agreement.

LEGAL ANALYSIS

1. THE PLEA WAS VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY MADE

¶ 7. In determining whether the guilty plea was made knowingly, voluntarily, and intelligently, an examination of the entire record must be conducted. Weatherspoon v. State, 736 So.2d 419, 421(115) (Miss.Ct.App.1999). In order for a plea to be valid, the plea must be “one in which the defendant was advised about the nature of the crime charged against him and the consequences of the guilty plea.” Stovall v. State, 770 So.2d 1019, 1020-21(¶ 7) (Miss.Ct.App.2000). “A plea is deemed ‘voluntary and intelligent’ only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). “Trial judges are entitled to place great weight upon a defendant’s initial plea under oath.” Templeton v. State, 725 So.2d 764, 767(¶ 10) (Miss.1998). This Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous. Stevenson v. State, 798 So.2d 599, 602(¶ 7) (Miss.Ct.App.2001).

A. Self-incrimination

¶ 8. McKenzie’s first argument is that he was not informed by either his attorneys or the judge that pleading guilty would result in his loss of the right against self-incrimination. A review of the record reveals that the trial judge asked McKenzie several times if he had read and understood the loss of constitutional rights, enumerated in paragraph five of his plea agreement, that would result from a guilty plea. McKenzie was also asked if his attorneys had explained the loss of these constitutional rights to him. McKenzie answered in the affirmative to both. McKenzie took additional time during the hearing to complete a final review of the plea agreement. The paragraph enumerating the constitutional rights he would lose specifically states:

I understand that I may plead “NOT GUILTY” to any offense charged against me. If I choose to plead “NOT GUILTY” the Constitution guarantees me:
a) the right to a speedy and public trial by jury;
b) the right to see, hear and face in open Court all witnesses called to testify against me; and the right to cross-examine those witnesses;
c) the right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses in my favor;
d) the right to have the assistance of a lawyer at all stages of the proceeding;
e) the presumption of innocence, i.e., the State must prove beyond a reasonable doubt that I am guilty, and
f) the right to take the witness stand at my sole option; and if I do not take the witness stand, I understand the jury may be told this shall not be held against me;
g) the right to appeal my case to the Mississippi Supreme Court if I am convicted at a trial on the charges in the indictment;
Knowing and understanding the constitutional guarantees set forth in this paragraph, I hereby waive them and renew my desire to enter a plea of “GUILTY”. LM (initials)

¶9. While the plea agreement did not specifically state that there would be a loss of the right against self-incrimination, it is apparent that the equivalent was stated in section (f). When a defendant pleads guilty, the cloak of innocence is thrown away resulting in the incrimination of the defendant. Based upon this argument, we hold that McKenzie’s guilty plea was made voluntarily, knowingly, and intelligently.

B. Misinforming of sentence

¶ 10. McKenzie also alleges that his plea was not voluntarily, knowingly, nor intelligently made because his attorney failed to accurately inform him of the sentence he would receive. McKenzie argues that he originally agreed to plead based upon the advice of his counsel that he would only serve a part of his sentence. He alleges that only a few minutes before the plea hearing, one of his attorneys informed him that he would have to serve all of the sentence, not just 85%. McKenzie offers no proof that such events actually happened.

¶ 11. Even if McKenzie’s version of events is accurate, he had the option to stop the plea hearing. McKenzie also had the opportunity during the judge’s questioning to stop the hearing. McKenzie did not take such action. McKenzie told the trial judge he understood the charges and sentences available and he pled guilty with full knowledge. We hold that McKenzie’s guilty plea was voluntarily, knowingly, and intelligently made.

2. MCKENZIE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL

¶ 12. The standard to be applied to an ineffective assistance of counsel claim was set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance of counsel, it must be shown (1) that the counsel's performance was deficient, and (2) the deficient performance caused prejudice to the defense. Id. at 687, 104 S.Ct. 2052; Walker v. State, 703 So.2d 266, 268(¶ 8) (Miss.1997). The deficiency and the prejudicial effect are judged by looking at the totality of the circumstances, and there is a strong presumption counsel’s performance fell within the wide range of reasonable professional assistance. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). The burden is on the defendant to demonstrate the Strickland factors to support an ineffective assistance of counsel claim. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990)

A. Attorney conflict of interest

¶ 13. The attorney who McKenzie’s family hired for his criminal defense had a son who represented the victim’s mother in a lawsuit against McKenzie based upon the same facts. McKenzie argues that Ready Sr. helped his son, Ready Jr., set up the lawsuit against McKenzie in order to “cool the mama off’ so the criminal charges might be dropped. McKenzie also alleges that Ready Sr. assisted his son in gathering evidence against McKenzie. McKenzie offers no proof that any of this occurred. McKenzie does not prove he received ineffective assistance of counsel.

B. Judge conflict of interest

¶ 14. We are not sure why McKenzie makes this argument under the issue of ineffective assistance of counsel. The best we can understand is that McKenzie is accusing his attorney of failing to object or failing to seek a recusal of the trial judge. McKenzie argues that there was a conflict of interest because the trial judge in the criminal ease was also the trial judge assigned in the civil case. Cases are assigned on a random basis. The trial judge never heard the criminal case due to McKenzie’s guilty plea. We do not know the outcome of the civil suit. McKenzie does not prove he received ineffective assistance of counsel.

C. Suppression of evidence

¶ 15. McKenzie argues that his attorneys should have sought to suppress statements he had made to school officials regarding his involvement. He argues that the statements made to the school officials were in reality statements made to state officials thus invoking the necessity of advising McKenzie of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1629-1630, 16 L.Ed.2d 694, 726 (1966). McKenzie argues that without the statement, the State has no proof that sexual intercourse occurred. We disagree without determining whether the statements to the school officials concerning the nature of his sexual relationship with the victim are covered by the Miranda protection.

¶ 16. The State had ample proof without resorting to having to use the statement had there been a trial. The proof was a newborn child to a fifteen-year-old girl with him acknowledging that he is the father. McKenzie has not proven ineffective assistance of counsel.

D. Discovery

¶ 17. McKenzie argues that his attorneys did not seek any discovery and relied only on that offered to the defense by the prosecution. We do not know what went on during the closed door discussion between McKenzie and his attorney. McKenzie does not indicate what evidence may have existed to help his defense. McKenzie has not proven ineffective assistance of counsel.

E. Erroneous advice

¶ 18. McKenzie argues that in light of the previous two sub-issues it was erroneous advice to plead guilty. The statutory rape law is similar to a strict liability offense. If sexual intercourse is proven within the prescribed age brackets of the victim and perpetrator, there is very little defense to a charge of statutory rape. With the evidence available, we think that the attorney gave sound legal advice to McKenzie about pleading guilty. McKenzie has not proven ineffective assistance of counsel.

F. Coercion

¶ 19. McKenzie alleges that his attorneys and the prosecutor coerced him into pleading guilty by the constant reminder of the potential sentences McKenzie faced if convicted. The trial judge repeatedly asked McKenzie if anyone was tricking him, coercing him or inducing him to plead other than the plea agreement. McKenzie acknowledged that he was pleading of his own accord. McKenzie has not proven ineffective assistance of counsel.

3. LAUDERDALE COUNTY HAD AUTHORITY AND JURISDICTION TO ACCEPT HIS GUILTY PLEA

A. Chaste character

¶20. McKenzie argues that he could not plead guilty to the indictment because the date listed as the occurrence of the sexual relationship was after the two had already had a sexual encounter. He offers the date of the child’s birth as proof. McKenzie is careful not to admit that the victim was of chaste character at the time of their first encounter. His argument fails because the statute does not require chaste character. McKenzie argues that the statute he pled under did not go into effect until after the time of their sexual encounter. The old statute, Miss.Code Ann. § 97-3-67, did require chaste character but was repealed when Miss.Code Ann. § 97-3-65 was rewritten. The new law went into effect in July 1998. McKenzie is incorrect. Lauderdale County had the authority to indict McKenzie and to accept his guilty plea.

B. Jurisdiction

¶ 21. McKenzie’s argument regarding the jurisdiction is also faulty. He argues that he could not be charged in Lauderdale County because the victim was not chaste due to the fact that he and the victim had engaged in sex in Oktibbeha County earlier. McKenzie’s argument on jurisdiction would possibly be correct only if his above argument of authority was correct. Since it is not, neither is this argument.

4. MCKENZIE WAS NOT SUBJECTED TO DOUBLE JEOPARDY

¶ 22. The Fifth Amendment Double Jeopardy Clause provides that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Article 3, § 22 of the Mississippi Constitution provides: “No person’s life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.” An entry of a nolle prosequi ends a particular case on the docket, but absent prejudice it does not bar prosecution for the same offense if commenced in the court where the case originated. Beckwith v. State, 707 So.2d 547, 569 ¶ 73 (Miss.1997).

¶ 28. McKenzie alleges that he was subjected to double jeopardy by being indicted twice in Lauderdale County for the same offense. The first indictment was nolle prosequi before he pled guilty. McKenzie was not subject to double jeopardy as there was no prejudice.

5.THE INDICTMENT WAS PROPER

A. Identity of victim

¶24. McKenzie argues that the indictment he pled to was defective because it failed to properly identify his accuser. The original Lauderdale County indictment had the victim’s name and birth date. The second indictment also had the victim’s name and birth date. The difference was that the birth date listed on the indictment he pled guilty to was off by one day. The age still fell within the parameters required by Miss.Code Ann. § 97-3-65. McKenzie knew who his accuser was by her name. The birth date was probably a scriveners’s error and is immaterial.

B. Chaste character

¶ 25. McKenzie argues that the indictment he pled guilty to did not include any mention of chaste character. As stated above in issue 3, McKenzie is incorrect about the statute.

C. Location

¶ 26. McKenzie argues that the indictment failed to include that the crime occurred at the school in the county. McKenzie offers a large list of schools throughout the country with the same name. The indictment stated that the crime occurred in Lauderdale County. That was all that was required of the indictment concerning location.

6. THERE WAS SUFFICIENT EVIDENCE TO SUPPORT A GUILTY FINDING

¶ 27. A guilty plea waives all non-jurisdictional rights or defects. Anderson v. State, 577 So.2d 390, 391 (Miss.1991). Since his plea was not coerced and was voluntarily, intelligently, and knowingly made, we only briefly list the allegations made by McKenzie.

A. Statements by McKenzie to school officials

¶ 28. McKenzie argues that the statements made to the school officials were in reality statements made to state officials thus invoking the necessity of Mirandiz-ing him. McKenzie seems to think that without the statement, the State has no proof that sexual intercourse occurred. As stated earlier, the State had ample proof without resorting to having to use the statement had there been a trial.

B. Differences in statements by victim

¶ 29. The victim appears to have made differing statements. One was in a deposition and the other in a police report. Again, the State had ample proof without the victim’s statements.

C. Statements by others

¶ 30. McKenzie also argues that statements made by others concerning his relationship with the victim are hearsay because the statements were based on second hand knowledge. We agree with McKenzie that it probably was hearsay, but the State had ample proof without the statements.

7. MCKENZIE WAS NOT DENIED DUE PROCESS

A. Previously discussed claims

¶ 31. McKenzie regurgitates several of his above arguments as due process violations. The arguments are: attorney conflict of interest; judge conflict of interest; self-incrimination; coercion of guilty plea; improper indictments; lack of authority; lack of jurisdiction; and lack of sufficient evidence. We have dealt with each of these in the above paragraphs. It would be redundant to do another analysis since each argument failed at least once above.

B. Fundamental fairness and equal 'protection

¶ 82. McKenzie also argues that there was a violation of fundamental fairness and equal protection. He offers no evidence of any impropriety. We can only assume that McKenzie decided to run the full gambit of post-conviction relief claims.

8. THE STATUTE IS CONSTITUTIONAL

¶ 33. McKenzie again argues an issue based upon the chaste character of the victim. He argues that he has been subjected to an ex post facto law as the statute he pled to went into effect after his pleading. As stated earlier, McKenzie is incorrect as to when the statute took effect.

9. MCKENZIE HAS NOT BEEN SUBJECTED TO CRUEL AND INHUMAN PUNISHMENT.

¶ 34. Sentencing is generally within the sound discretion of the trial judge and the trial judge’s decision will not be disturbed on appeal if the sentence is within the term provided by statute. Davis v. State, 724 So.2d 342, 344(¶ 10) (Miss.1998). In most instances, this means that a trial judge’s sentencing decision has traditionally been treated as not reviewable so long as the sentence was within the statutory limits. As a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal. Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992).

¶ 35. McKenzie alleges that his sentence was tantamount to a life sentence because of his age. We do not know when he or anyone else will die. His sentence was within the statutory guidelines and was not as long as it could have been under the sentencing statute. McKenzie may be subject to what he perceives as a life sentence, but our perception is different.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY DISMISSING PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. THE COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

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

      . Because McKenzie’s multitude of arguments pertain to many of the same issues and are so poorly organized in his brief, we address the issues in a more coherent order to try and prevent unnecessary repetition.


author: IRVING, J.,

text:
    Regina POWELL and Thomas Powell, Appellants, v. METHODIST HEALTH CARE-JACKSON HOSPITALS, Appellee.
    No. 2001-CA-01881-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Rehearing Denied Aug. 19, 2003.

      J. Stephen Wright, Ridgeland, Lance L. Stevens, Jackson, attorneys for appellants.
    Heber S. Simmons, Tina Lorraine Nicholson, Jackson, attorneys for appellee.
    Before THOMAS, P.J., IRVING and MYERS, JJ.
   IRVING, J.,

for the court.

¶ 1. Regina Powell and Thomas Powell appeal from an order granting summary judgment to Methodist Healtheare-Jack-son Hospitals. Methodist’s motion for summary judgment was predicated on the assertion that the Powells failed to come forward with evidence of medical malpractice and/ or proximate cause through expert testimony or otherwise.

¶ 2. Finding no reversible error, this Court affirms the trial court’s judgment.

FACTS

¶ 3. Regina Powell was admitted to Methodist Healthcare-Jackson (Methodist) on or around May 18, 1998, by her general surgeon, Dr. Greg Fiser, for a laparoscopic removal of her gall bladder. During the procedure, straps were placed across the leg area to insure Powell’s body remained stable. After the surgery, Powell reported to the nursing staff that her left leg was “asleep.” At the request of Dr. Fiser, Dr. Donald Butts examined Powell in relation to her leg numbness. Dr. Butts opined that Powell was suffering from a mild compression injury to the tibial portion of her left sciatic nerve. Dr. Butts encouraged Powell to ambulate, stating that her symptoms should clear in a few days. Sometime later, Powell came under the care of Dr. Lon Alexander, a neurosurgeon, for evaluation and treatment of her leg numbness. Powell underwent operative exploration of her left peroneal nerve. The surgery revealed that Powell’s left pero-neal nerve was entrapped by fibrous bands of connective tissue somewhat just inferior to the fibular head. This condition was alleviated by Dr. Alexander through dissection and mobilization.

¶ 4. Prior to the gall bladder surgery, Powell had no pre-existing symptoms of peroneal nerve entrapment. Dr. Alexander opined that the peroneal nerve damage suffered by Powell was caused by either compression or insult to her leg; he also believed that the compression occurred while Powell was in the operating room for the gall bladder surgery. However, Dr. Alexander could not say with medical certainty what was the cause of the peroneal nerve damage. According to Dr. Alexander, it could have been from negligent or non-negligent etiology. Powell subsequently filed a lawsuit against Methodist claiming traditional medical malpractice and res ipsa loquitur as her theories of recovery. Powell complained that Methodist, and/ or its nurses, attendants, or other personnel, were the direct and proximate or contributing cause of her left foot and lower leg injuries. Powell’s husband joined the lawsuit, claiming loss of consortium as a result of his wife’s injuries.

¶ 5. Methodist filed its motion for summary judgment and asserted that Powell had no expert testimony which established a causal connection between Powell’s alleged left leg nerve injury and the alleged breaches in the nursing standard of care asserted against Methodist. Thus, Powell could not establish an essential element of the negligence claim, and therefore, that claim failed as a matter of law. Methodist also asserted that Powell’s res ipsa loqui-tur claim failed as a matter of law because Powell could not identify any instrumentality under Methodist’s control which caused a compression of her left peroneal nerve. Methodist further argued that Powell had no proof that the alleged injury suffered by Powell is the kind of injury which does not ordinarily occur in the absence of negligence, and thus the res ipsa loquitur claim did not apply.

¶ 6. The trial court agreed with Methodist that there were no genuine issues of material facts and granted its motion for summary judgment. Other pertinent facts will be related during the discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. A motion for summary judgment is granted only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. M.R.C.P. 56(c); Brown v. Credit Ctr. Inc., 444 So.2d 358, 362-63 (Miss.1983). A material fact is a fact that tends to resolve any of the issues properly raised by the parties. Mosby v. Moore, 716 So.2d 551, 558(1135) (Miss.1998). An appellate court reviews summary judgments under the de novo standard and views the evidence in the light most favorable to the non-moving party. Id.

¶ 8. In a summary judgment proceeding, the plaintiff must rebut the defendant’s claim (i.e., that no genuine issue of material fact exists) by producing supportive evidence of significant and probative value. Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988).

¶ 9. Powell asserts that either medical negligence or some sort of pressure was inflicted on her left leg. Proximate cause is an essential ingredient of a claim of medical negligence; therefore, she must establish some causal connection between her injury and Methodist’s actions. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss.1990). Powell also asserts that res ipsa loquitur is applicable because negligence can be inferred by the circumstances surrounding her injury. This Court must determine whether Powell created a triable issue of material fact regarding her claim that Methodist’s staff negligently strapped her down during her gall bladder surgery, thus causing pero-neal nerve entrapment.

¶ 10. As we have already observed, Methodist submits that (1) Powell offered no expert testimony which established a causal connection between her alleged left leg nerve injury and the alleged breaches in the nursing standard of care asserted against Methodist, and that (2) Powell faded to present any proof that the alleged injury suffered by her is the kind of injury which does not ordinarily occur in the absence of negligence. We agree.

¶ 11. Unless the matter in issue is within the common knowledge of laymen, the case law of this state is clear that “in a medical malpractice action, negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care.” Phillips ex rel. Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987) The supreme court has held that in order to recover under a negligence action, a plaintiff has the burden of proof to show by preponderance of the evidence the defendant’s negligence. Id. at 491 (citing Latham v. Hayes, 495 So.2d 453 (Miss.1986); Hammond v. Grissom, 470 So.2d 1049 (Miss.1985)). Expert testimony is used to establish the standard of acceptable professional practice; that the defendant physician deviated from that standard; that the deviation from the standard of acceptable professional practice was the proximate cause of injury which the plaintiff complains, and that damages to the plaintiff resulted. Id.

¶ 12. Dr. Lon Alexander, one of Powell’s experts, failed to demonstrate that Methodist deviated from the standard of care while treating Powell in a manner which proximately resulted in harm to her. By deposition, Dr. Alexander gave the following testimony:

Q. Okay. If you would assume for me that a patient goes in for gall bladder surgery like this. And again, we’re going off what you understand based on your knowledge, training and experience. Patient goes in for gall bladder surgery. They have a safety strap placed at mid-thigh. Okay? And that strap is loose enough to where you can fit a hand underneath the strap. You can just slide your hand underneath the strap.
Post surgery, the patient complains of numbness, pain, originating at the knee down. EMG nerve conduction studies show a block at the fibular head, peroneal conduction block at the fibular head. Based on your knowledge, training and experience, and to a reasonable degree of medical probability, based on those facts, could you say to a reasonable degree of medical probability that the strap proximately caused or contributed to the compression of the peroneal nerve?
A. Taking the total predicate, I would say that the strap probably did not cause that. I would look to another etiology, (emphasis added).
Q: Okay.
A: But I would still look to the operating room.

¶ IB. This Court demands a showing of not only a standard of professional practice and care but also needs a showing of injury to the plaintiff that was proximately caused by deviation from this standard before a claim of medical malpractice will lie. Phillips, 516 So.2d. at 491. Powell has not demonstrated a standard of professional care, nor has she shown any deviation from any standard. She has only shown that she went into her gall bladder surgery without complaints of leg numbness and came out of the surgery with them.

¶ 14. Powell failed to establish negligence in her other offer of expert testimony as well. The expert she questioned on the nursing standard of care during her gall bladder surgery also failed to establish a deviation from a standard. Brenda Bre-gande stated the following:

Q: Do you have any information or knowledge that they [operating room staff] weren’t careful in placing that strap?
A: I have no way of knowing that, because I see nothing in the records to indicate how the strap was placed or the second time the strap was placed on the patient. I only know how it was placed the first time which looked perfectly normal, (emphasis added).
Q. And do you have any information or information that there was any external pressure placed on Mrs. Powell’s leg during the course of that procedure?
A. I cannot find in the records any other area where we might conceive that the patient had pressure other than in the operating room.
Q. That is not my question. My question was, do you have any information or knowledge that there was any external pressure placed on her leg during the course of that procedure?
A. According to the record, no.

¶ 15. Powell does not carry her burden of establishing negligence by Methodist through either the testimony of Bregande or the testimony of Dr. Alexander. No casual connections are linked between Powell’s injuries and Methodist’s actions. Additionally, Powell fails to offer or attempt to offer any other expert testimony on causation.

¶ 16. An appellate court conducts a “de novo review of the orders granting and denying summary judgment and looks at all evidentiary matter before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” Burkes v. Fred’s Stores of Term., Inc., 768 So.2d 325, 328(¶ 6) (Miss.Ct.App.2000) (citing Aetna Cas. and Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). More precisely, the non-moving party may not rely solely upon the unsworn allegations in the pleadings, or “arguments or assertions in briefs or legal memoranda.” Palmer, 564 So.2d at 1356 (quoting Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss.1989)).

1117. This Court thoroughly examined the record and found no evidence in the pleadings where Powell propounds or articulates any genuine issues of material facts. Specifically, Powell responded to Methodist’s motion for summary judgment by simple stating, “Genuine issues of material facts exist and defendant is not entitled to judgment as a matter of law.” The party opposing the motion must set forth specific facts showing that there are indeed genuine issues for trial. Fruchter, 522 So.2d at 199. Powell failed to assist this Court in pinpointing genuine issues of material facts, and as already stated, this Court could not find any. We reiterate that mere allegations that there are genuine issues of material facts are insufficient to generate a triable issue or issues of fact and avoid an adverse rendering of summary judgment. Palmer, 564 So.2d at 1356 (citing Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986)). We might also add here that the trial judge’s order granting summary judgment was not of any assistance to this Court either: There was no discussion of the evidence or lack thereof by the trial judge.

¶ 18. Finally, Powell asserts that the doctrine of res ipsa loquitur applies in the instant case because an inference of negligence is raised. However, the injury does not “speak for itself’ giving rise to an inference that Methodist was negligent. Dr. Alexander affirmed that peroneal nerve damage could be caused by factors other than negligence. Dr. Alexander’s testimony follows:

Q. Based on your education, training, experience, what you know about peroneal nerve injuries, are these— are peroneal nerve injures the type of injuries that don’t ordinarily occur unless someone is negligent? Again considering this is a negligence lawsuit.
A: Yes, sir
A: And understanding that I don’t necessarily present myself as an expert of standard of care for an operating room nurse or anesthesiologist.
Q: Right. And I’m not asking you that.
A: They are rare lesions. They are, as far as etiology, in my experience in this setting where she went in without the symptoms and came out with them, I think in my mind, too, and above and beyond a reasonable degree of medical certainty, it’s likely that something compressed or traumatized that nerve.
Q: Can you say though, that that compression was the result of a negligent act? When you — I guess I am asking, and it’s a specific question: When you see somebody that presents with a peroneal nerve injury, do you automatically consider the only possible cause as a negligent cause? (emphasis added).
A: No, sir. In that I would have to speculate as to the possible cause, and only after said speculation could I label it negligent of not. I could not tell you now that I am certain negligence occurred in the operating room this day. Only that — (emphasis added).
Q: Can peroneal nerve injuries happen from non-negligent sources? (emphasis added).
A: Yes, sir. (emphasis added).

¶ 19. The doctrine of res ipsa lo-quitur requires four elements:

1) the matter must be within the common knowledge of laymen;
2) the instrumentality causing the damage must be under the exclusive control of the defendant;
3) the occurrence must be such as in the ordinary course of things would not happen if those in control of the instrumentality used proper care; and
4) the occurrence must not be due to any voluntary act on the part of the plaintiff.

Brown v. Baptist Mem’l Hosp.-DeSoto, 806 So.2d 1131, 1135(¶ 17) (Miss.2002) (quoting Coleman v. Rice, 706 So.2d 696, 698(¶ 10) (Miss.1997)).

¶20. The evidence in the instant case does not satisfy all the elements for res ipsa loquitur to apply. First, the causes of peroneal nerve damage are not within the common knowledge of laymen. Second, there is no showing of an instrumentality under the exclusive control of Methodist that caused damage to Powell. Third, Powell’s expert witness, Dr. Alexander, acknowledged that the type of injury sustained by Powell could have been from negligent or non-negligent causes. The evidence does satisfy the fourth prong of the res ipsa loquitur test in that the evidence shows that Powell did not play a voluntary role in the damage to her pero-neal nerve because she was unconscious during her gall bladder surgery.

¶ 21. Powell failed to show that Methodist deviated from any standard of care or that Methodist proximately caused her peroneal nerve damage. Additionally, the facts do not permit application of the doctrine of res ipsa loquitur. Therefore, the judgment of the circuit court is affirmed.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Powell's response to Methodist’s motion stated only this one line affirmation followed by 157 pages of depositions, medical records, diagrams, and pleadings designating experts. She did not direct this Court to any specific place in the record where she offered competent evidence to establish genuine issues of material facts.


author: MYERS, J., IRVING, J.,

text:
    Eva Lois HEARD, Personal Representative of the Estate of Gwendolyn Strong, Deceased, Appellant, v. INTERVEST CORPORATION, Appellee.
    No. 2001-CA-01973-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Rehearing Denied May 27, 2003.

      Angela Turner-Lairy, Bennie L. Turner, West Point, attorneys for appellant.
    David L. Sanders, Jeffrey Johnson Tur-nage, Columbus, attorneys for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. Gwendolyn Strong was killed on May 3, 1997, when a vehicle jumped a curb and struck her. Eva Lois Heard, acting as the personal representative of Gwendolyn Strong, filed a 'wrongful death action against Intervest Corporation, the owner of the apartment complex where the accident occurred. The trial court granted Intervest a summary judgment, and Heard now appeals, raising two issues:

I. CARPENTER V STOP-N-GO MARKETS OF GEORGIA INC., 512 So.2d 708 (Miss.1987) DOES NOT GOVERN WHEN AN ACCIDENT OCCURS OUTSIDE A STRUCTURE; AND
II. INTERVEST OWED A DUTY TO GWENDOLYN STRONG BECAUSE THE ACCIDENT OCCURRED IN A COMMON AREA.

STATEMENT OF THE FACTS

¶ 2. On May 3, 1997, Gwendolyn Strong was sitting in front of her apartment building talking to a neighbor. Painters were painting a nearby apartment, and they had moved furniture from that apartment and placed it on a sidewalk in front of the building. Meanwhile, as alleged in the pleadings, Cedric Collins was too inebriated to drive, so he had his nine-year-old daughter drive for him while he rode as a passenger in his car. The car was speeding through the complex’s parking lot, when it jumped the curb in front of Strong’s building, ran into the sitting area, and struck Strong. An ambulance transported Strong to a hospital where she died of the injuries she sustained in the accident. According to the site manager, no similar accidents had occurred at that apartment complex.

¶ 3. Eva Heard then sued Intervest Corporation and Collins for Strong’s wrongful death. According to the complaint, Inter-vest was negligent for failing to provide proper security personnel and failing to build a barrier to keep speeding automobiles from jumping curbs in the complex.

¶ 4. On November 27, 2001, the trial court granted summary judgment for In-tervest, stating that the instant case is governed by Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So.2d 708 (Miss.1987). Heard then appealed.

LEGAL ANALYSIS

I. Standard of Review

¶ 5. The well-settled standard of review for summary judgments is de novo. Crum v. Johnson, 809 So.2d 663, 665(114) (Miss.2002) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)) (citing Mantachie Natural Gas Dist. v. Miss. Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992)); Langston v. Bigelow, 820 So.2d 752, 755(¶ 4) (Miss.Ct.App.2002). Evidentiary matters are viewed in the light most favorable to the non-moving party. Travis v. Stewart, 680 So.2d 214, 216 (Miss.1996) (citing Palmer v. Biloxi Reg’l Med. Ctr., Inc. 564 So.2d 1346, 1354 (Miss.1990)). The lower court’s decision to grant summary judgment will be reversed if a triable issue of material fact exists. If no such issues exist, we will affirm the decision. Id. (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)). Rule 56(e) of the Mississippi Rules of Civil Procedure states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment if appropriate shall be entered against him
II. Carpenter Governs and Intervest Owed no Duty to Strong

¶ 6. This Court finds that a motion for summary judgment was appropriate since both parties agreed to the material facts in this case: that Strong was sitting outside her building; that Collins was intoxicated and had his daughter drive his car; that the car jumped the curb and injured Strong, resulting in her death; and that there was no security guard on duty. Next, we must turn to the question of whether the trial court decided the motion correctly.

¶ 7. While any first-year law student could recite the four elements of negligence, only one element — duty—is in question here since the trial judge found Intervest had no duty to prevent the fatal accident to Strong. Whether any duty existed is a question of law. Belmont Homes, Inc. v. Stewart, 792 So.2d 229, 232(¶ 11) (Miss.2001); W. Page Keeton et al., Prosser and Keeton on Torts § 37 (5th ed.1984).

¶ 8. In Mississippi, “the lessor, with respect to common areas, has the duty to use reasonable care to keep the common areas reasonably safe and is liable for damages for failure to perform the duty.” Fipps v. Glenn Miller Const. Co., 662 So.2d 594, 596 (Miss.1995) (quoting Cappaert v. Junker, 413 So.2d 378, 380 (Miss.1982)). It is not clear if the duty extends to only conditions of natural origin, as in the majority of jurisdictions, Keeton, supra, at § 63, or to all hazardous conditions, regardless of their origin. See Restatement (Second) of Torts § 360 (1965).

¶ 9. Even if the Fipps duty only extends to conditions of natural origin, this Court does not find that the duty extends to the facts of this case. We agree with Inter-vest that the facts of the instant case are similar to those found in Carpenter. There, an underage driver crashed through the plate glass window that served as the front wall to a convenience store, injuring a customer. Carpenter, 512 So.2d at 709. Our supreme court quoted the case of Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla.Dist.Ct.App.1961):

[I]t cannot be contended with any degree of reason or logic that the owner of a store ... by failing to erect an impregnable barrier between the entrance of his store and an adjacent area where motor vehicles are driven and parked, should have anticipated that automobiles will be negligently propelled over the curb and across the sidewalk into the entrance of his store.... If as a matter of law such occurrences are ... to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter.

Carpenter, 512 So.2d at 709 (alteration and omissions in original).

¶ 10. Although Heard argues the Carpenter decision only applies to cases where the injury occurs indoors, we hold that it must apply outside a building as well. There was no reason for Intervest to foresee an automobile would be negligently propelled over the curb. There was no history of any such incident occurring before. The construction of a curb was an entirely reasonable and adequate measure to help prevent any foreseeable forays of automobiles from the street onto the premises. Indeed, if a barrier was built as Heard suggests, it could even impede the movement of residents in case of fire or other emergency where residents must quickly move away from the apartments. Were we to hold otherwise, this decision, carried to its logical extension, would mean that property owners throughout the state of Mississippi would need to build barriers between their premises and streets and parking lots. This Court simply cannot make that the public policy of this State.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

IRVING, J.,

Dissenting:

¶ 12. I agree with the majority that, based on Carpenter v. Stop-N-Go Markets of Georgia, 512 So.2d 708 (Miss.1987), In-tervest had no obligation to erect an impregnable barrier to prevent vehicles from being driven into the common area where Gwendolyn Strong was seated. However, I do not believe that this fact exonerates Intervest from potential liability on the peculiar facts of this case, or at the least, does not entitle it to summary judgment on the liability issue. Therefore, I dissent.

¶ 18. I dissent because I believe a genuine issue of material fact exits with respect to whether Intervest was negligent in allowing or directing its employees to place, on the sidewalk, furniture which, according to the complaint, “prevented Gwendolyn Strong’s escape and actually trapped her between the car and the wall of the building.” It seems to me that whether Strong’s escape was prevented by Intervest’s placement of the furniture is a genuine issue of material fact affecting In-tervest’s liability, notwithstanding the negligence of Cedric Collins’s minor daughter in driving her car into the common area where Strong was seated. Consequently, I would reverse and remand for a full jury trial on the merits of the complaint. A jury might ultimately decide that the placement of the furniture did not play any role in preventing Strong from avoiding the fatal impact. However, Strong’s personal representative should not be precluded from having her day in court so that a jury might properly consider this issue.

      . In a case such as this, where distances may play an important role, it would be extremely helpful for the Court to have an exhibit illustrating those distances. There was no such exhibit included in this case.

      . For completeness, we mention that the placement of the furniture could be a cause in fact, if not proximate cause, of Strong’s death since it may have affected the time Heard had to react. The only remaining question is whether there was a breach of a duty to erect a barrier between the parking lot and the sitting area.


author: KING, P. J.,

text:
    William Lewis GASKIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01153-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Rehearing Denied June 17, 2003.
    Certiorari Granted Oct. 9, 2003.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General, by Billy L. Gore, attorney for appellee.
   KING, P. J.,

for the court.

¶ 1. William Gaskin was convicted in the Circuit Court of Jackson County of armed robbery. Aggrieved, he appeals asserting as error the following:

I. WHETHER A SECOND TRIAL ON THE SAME INDICTMENT, FOLLOWING A MISTRIAL, VIOLATED GASKIN’S CONSTITUTIONAL RIGHT OF PROHIBITION AGAINST DOUBLE JEOPARDY.
II. WHETHER THE TRIAL COURT ERRED IN ACCEPTING THE PROSECUTOR’S JUSTIFICATION FOR A PEREMPTORY STRIKE.
III. WHETHER GASKIN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

Finding no error, we affirm.

PROCEDURAL HISTORY AND FACTS

¶ 2. On February 27, 2000, the police responded to a call that the clerk at the Exxon gas station in Pascagoula, Mississippi was robbed at knife point of over $300 and a cordless phone. William Gas-kin was later arrested for this crime and indicted for armed robbery.

¶ 3. The matter was scheduled for trial on May 23, 2001. After voir dire and a ruling on challenges for cause, the trial judge instructed the attorneys to get together and select a jury. She told them to have a “jury in the box” before lunch, that she was going to “leave [them] alone until then,” and that she “depended on [them] to actually get [her] a jury by then.” The trial judge then left the courtroom. Upon her return, the prosecutor stated ten jurors had been agreed upon to that point. After further consultation, Gaskin’s attorney read the names of the agreed upon twelve jurors and one alternate to the court. The court then stated, “All right. Bring the jury in. Y’all can put your strikes on the record later.”

¶ 4. After those selected for the jury were called and seated, the trial judge dismissed the remaining veniremen and instructed the bailiff to take the selected jurors to lunch. The judge then directed the attorneys to meet in her office at the end of the lunch period for a conference concerning other matters. Defense counsel at this time stated: “[A]nd, Judge, we will have a Batson challenge at that time.” The judge replied, “[W]ell it’s a little late. We’ve let the jury go.” After hearing the defendant’s challenge, the trial judge found that a prima facie case of purposeful discrimination had been established, and required the State to provide race-neutral reasons for its strikes. After hearing counsel’s argumente, the trial judge stated she would consider this issue during lunch. She stated, “[I]f I don’t find there to be a race neutral reason, I’d have no choice but to declare a mistrial because I can’t get the jurors back to pick other jurors. So, I’m in a precarious situation.”

¶ 5. Prior to the jury’s return from lunch, the trial judge ruled, “I’ve considered all of this, the Batson challenge, and discussed it with the attorneys. And in abundance of caution, I’m going to declare a mistrial and we’re going to reset this case for trial on Tuesday, May 28th.”

¶ 6. At trial on May 28, Gaskin again raised a Batson objection to the State’s exercise of peremptory challenges against Blacks. The trial court found that a pri-ma facie case of discrimination had been shown, and required the State to offer race-neutral reasons for its peremptory challenges. This time the trial court accepted the State’s reasons as being race-neutral, and allowed the exercise of the peremptory challenges.

¶ 7. Gaskin was found guilty and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections.

DISCUSSION

I. WHETHER A SECOND TRIAL ON THE SAME INDICTMENT, FOLLOWING A MISTRIAL, VIOLATED GASKIN’S CONSTITUTIONAL RIGHT OF PROHIBITION AGAINST DOUBLE JEOPARDY.

¶ 8. Gaskin contends that when the second trial commenced on the same indictment, the State violated his right to be free from multiple prosecutions for the same offense. In Jones v. State, the Mississippi Supreme Court held:

[Bjecause of the guarantee against double jeopardy granted to all citizens by the Fifth Amendment to the United States Constitution no retrial for the same offense will be permitted in any criminal case in which the first trial, following the swearing and empaneling of the jury, was aborted prior to its conclusion, unless exceptional circumstances existed in the first case, and there was manifest necessity to declare a mistrial.

Jones v. State, 398 So.2d 1312, 1314 (Miss.1981). Gaskin argues that the mistrial in the first proceeding was caused by the State’s improper exercise of peremptory strikes, and therefore, the second attempt to prosecute him constituted double jeopardy.

¶ 9. The State rebuts Gaskin’s claim on three grounds. First, the State claims that at the first proceeding the jury was never sworn in and, therefore, double jeopardy protection never attached. Secondly, the State asserts that the claim is barred because he never raised it with the trial court. Third, the State asserts that although Gaskin claims that the mistrial was granted as a result of his Batson challenge to the State’s improper exercise of peremptory challenges, the mistrial was actually caused by exceptional circumstances and manifest necessity because there were no jurors available from which to choose an impartial jury.

¶ 10. Neither side raises any issues concerning the selection manner and method utilized by the trial court. However, as stated above, the State has raised the question of whether the jury was ever administered the official oath at the first proceeding because the court order gives one version of what happened and the transcript gives another. The protection against double jeopardy does not attach in a criminal proceeding until after the jury is selected and sworn to try the case. See Jones v. State, 398 So.2d 1312, 1314 (Miss.1981). Therefore, before we can determine if Gaskin may raise this issue for the first time on appeal and if his constitutional right to be free from multiple prosecutions for the same offense was violated, we must first determine whether the jury had been sworn and whether the protection against double jeopardy had attached.

¶ 11. The order entered following the mistrial stated that the jury had been sworn. However, a thorough review of the transcript clearly reveals that the twelve jurors and one alternate, although finally selected, called individually by name, and seated in open court, were never administered the official oath. In fact, after the jury was seated, the trial judge told the jurors, “[Wje’re not going to do anything to start the trial right now. They’ve got everything ready to take you to lunch.” She then ordered the bailiff to take them to lunch and excused the jurors. A mistrial was declared before their return.

¶ 12. In Jenkins v. State, a criminal case where the court papers gave one version and the transcript gave another, the Mississippi Supreme Court found that the order misstated and incorrectly characterized the events of the proceeding. Jenkins v. State, 759 So.2d 1229, 1234(¶ 16) (Miss.2000). In the present case, we also find, as described above, that the order misstated and incorrectly characterized the events of the first proceeding, specifically as to the jurors being administered the oath.

¶ 13. Therefore, there can be no double jeopardy as this first incident cannot count as his “first” jeopardy since the jury had not been sworn and the rules prohibiting double jeopardy could not have been violated as such protection did not attach to Gaskin’s first proceeding. Thus, this assignment of error is without merit. Because we find that jeopardy had not attached, the other questions associated with this issue are moot.

II. WHETHER THE TRIAL COURT ERRED IN ACCEPTING THE PROSECUTOR’S JUSTIFICATION FOR STRIKING PEREMPTORILY A PROSPECTIVE JUROR.

¶ 14. Six days after the mistrial, the State started the second effort at trial of this case. Gaskin again raised a Batson challenge to the State’s exercise of peremptory challenges against minorities. He noted that four of the State’s seven peremptory challenges were directed at Blacks. The trial court again found a pri-ma facie pattern of discrimination and required that the State provide race-neutral reasons. The trial judge found the State to have provided sufficient race-neutral reasons for the State’s exercise of peremptory challenges, and therefore allowed them.

¶ 15. Gaskin appealed his conviction, citing Batson violations as one alleged error.

¶ 16. This Court, by order dated October 8, 2002, remanded this matter to the trial court, and directed:

This Court, on its own motion, has determined it appropriate to remand this case to the Circuit Court of Jackson County for thirty (30) days for the limited and specific purpose of requiring the circuit judge to make an on-the-record, factual determination of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors, including a specific analysis of whether the reasons offered by the State were, while facially neutral, a pretext for prohibited discrimination.
This matter was scheduled for trial in the Circuit Court of Jackson County, beginning on May 28, 2001. After selection of a jury panel, but prior to receipt of any testimony, the Defendant challenged the State’s use of peremptory jury challenges as having been improperly utilized against the only minorities in the venire pool, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). At that time, the trial judge found a prima facie case of discrimination existed, and required the state to offer race-neutral reasons for the exercise of its peremptory challenges. Finding that the State’s reasons were not race-neutral, the trial judge declared a mistrial and rescheduled this case for trial the following week, on May 29, 2001.
In the May 29, 2001 trial, the Defendant again raised a Batson objection to the State’s exercise of peremptory challenges. The trial court again found a prima facie case of discrimination by the State in the exercise of its peremptory challenges, and as during the aborted May 23, 2001 trial, required the State to offer race-neutral reasons for the exercise of its peremptory challenges.
The State offered its reasons for the exercise of each of the peremptory challenges, and the trial court, without making a specific on-the-record analysis and determination, as required by Hatten v. State, 628 So.2d 294, 298 (Miss.1993), merely held that the State’s reasons were race-neutral and accepted them without further discussion.
This Court, on its own motion, remands this case to the Circuit Court of Jackson County for a period of thirty (30) days, during which time the circuit judge is directed to make an on-the-record, factual determination of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors, including a specific analysis of whether the reasons offered by the State were, while facially neutral, a pretext for prohibited discrimination.
Having found a prima facie pattern of discrimination in the State’s exercise of its peremptory challenges in this same case just six (6) days earlier, the trial judge should give heightened consideration to the possible pre-textual nature of the State’s reasons for the exercise of its peremptory challenges against minorities.
THEREFORE IT IS ORDERED that on the Court’s own motion this matter be, and hereby is, remanded to the Circuit Court of Jackson County for thirty (30) days for the specific and limited purpose of requiring the circuit judge to make an on-the-record, factual determination of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors, including a specific analysis of whether the reasons offered by the state were, while facially neutral, a pretext for prohibited discrimination. The circuit court shall certify its findings to this Court.

¶ 17. On December 5, 2002, the trial judge filed her response with the clerk of this Court, in which she stated:

JUROR 11
The reason presented to this Court by the State for striking Black Female juror 11 was that she knew Monica Cox, an employee of the Public Defender’s Office. The Defendant was represented at the trial of this matter by an attorney from that office. Counsel for the Defendant countered that the juror stated that she could be fair. This Court found that the reason stated by the Prosecution was race-neutral and did not seem to be pretextual. This Court is well aware that Monica Cox is often actively involved in the defense of Public Defender clients. She appears regularly in the courtroom during trials, assists with witnesses and aids the defense attorneys at all stages of a jury trial. It should also be noted that juror 22 was struck by the State for the same reason. Although both of these jurors were Black, this Court finds that the reasons given for the strikes were consistent -with other similarly-situated jurors. The only other member of the venire who answered that she knew Monica Cox was juror 39, but the jury process was completed before that juror was considered. Further, there were no unchallenged jurors of the opposite race who knew Monica Cox to illustrate that the stated-reason was pretextual.
JUROR 18
The reason given by the State for striking Black juror 18 was her demean- or during voir dire. The State contended that she sat with her arms folded, rolled her eyes and seemed generally hostile to the entire process. The Defense attorney responded by stating that he did not notice any such behavior. This Court found that the reasons given for the strike were race-neutral and further finds that the recitation of the reasons given appeared credible. Nothing at the time, nor in the record, gives this Court any reason to believe that the State was deceptive in its stated reasons. However, the Court ended its analysis regarding this juror when it was discovered that she was unavailable for Thursday of the week of trial. Because of her possible unavailability for the entire trial, the Court excused her for that reason.
JUROR 22
The reasons given for striking Juror 22 were that she knew Monica Cox, an employee of the Public Defender’s Office and that her husband worked for a bonding company. The Defense Attorney presented no rebuttal argument. As stated previously, this Court finds that the State’s first reason was not pretextual due to the consistent reason and treatment of other similarly-situated jurors. Additionally, the Prosecution also based its strike of this juror on the fact that her husband worked for a bonding company. Certainly, this Court takes notice that, by the very nature of the business, a bonding company has close contact with defense attorneys and criminal defendants. Further, bondsmen gain economic benefits from defendants. This Court finds that this stated reason for this peremptory strike was not pretextual. Further, the State’s demeanor in presenting these reasons to the Court appear credible, with no hint of underlying discriminatory motive.
JUROR 23
The reason given by the State for striking Black Female juror 23 was that she is an -unemployed college graduate. The State contended also that the District Attorney’s Office was currently prosecuting twelve defendants with her same last name. Defense Counsel argued that she was specifically asked if any family member had been prosecuted for a crime. She did not respond. Further, Defense Counsel did not believe that her unemployment status should be weighed against her. Although the State could and should have followed up with specific questions to juror 23 if there were any doubts regarding the credibility of her responses or lack thereof, this Court found the reasons stated to be race-neutral and not pretex-tual. Although the State did not strike jurors 28 and 31, who specifically stated that family members had been investigated or prosecuted for crimes, these crimes were in other jurisdictions. No argument or evidence was presented to this Court at the time of the hearing that, in fact, the State was not prosecuting defendants with that juror’s same last name. This Court found this reason to be race-neutral and. non-pretextual. Further, the added reason that this juror was an unemployed college graduate weighed into the Court’s decision. The State and the Defendant have an understandable interest in selecting responsible citizens to serve on a jury. There was no evidence at this hearing that he State failed to challenge similarly-situated unemployed white jurors. The Court further found the State to be credible in its recitation of its reasons for this peremptory challenge and finds there to be no underlying discriminatory motive in the State’s striking of juror 23

¶ 18. The trial judge sits as finder of fact in the resolution of Batson challenges. Robinson v. State 726 So.2d 189, 193(¶ 12)(Miss.Ct.App.1998). As such the trial judge’s findings are accorded great deference, and will not be reversed unless they are clearly erroneous or against the overwhelming weight of the evidence. Coleman v. State, 697 So.2d 777, 785 (Miss.1997); Collins v. State 691 So.2d 918, 926 (Miss.1997).

¶ 19. This Court has reviewed the findings of the trial court and cannot say that they are clearly erroneous, or against the overwhelming weight of the evidence. In reaching this conclusion, we note that the trial court’s findings were made after subjecting the State’s reasons to heightened scrutiny as directed by this Court. While this Court’s reading of the record might have lead it to resolve this matter differently, it is not the function of this Court to substitute its judgment for that of the trial court.

¶ 20. We find no merit in this assignment of error.

III. WHETHER GASKIN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 21. Gaskin claims that his counsel’s failure to recognize the alleged double jeopardy violation, after the first proceeding and before the trial on May 29, 2001, commenced, constituted ineffective assistance of counsel. We have determined above, in assignment of error one, that the record fails to affirmatively reflect that the jury was sworn as required for double jeopardy to attach. Thus, there was no double jeopardy violation. Accordingly, trial counsel’s failure to object to Gaskin’s second trial on the basis of double jeopardy was not a deficiency in his performance and this assignment of error is without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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