source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    Christopher Jason SMITH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00100-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2003.

      Christopher Jason Smith, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Christopher Jason Smith has appealed from an order of the Rankin County Circuit Court denying him relief on a pro se motion filed in October 2001 entitled “Motion to Order to Clarify Judgment of Sentence and/or Relief from Judgment or Order.” This motion was filed seeking relief from a judgment of sentence entered on June 13, 2001, after Smith pled guilty to two pending felony charges in that court. Though neither Smith’s motion nor the trial court’s order denying relief mention the Mississippi post-conviction relief statute, we treat this proceeding as one brought under that statute since, insofar as we can decipher Smith’s pro se motion, he contends that he is entitled to release from confinement because he has completed his sentence. Such relief is specifically authorized under Section 99 — 39—5(l)(g) of the Mississippi Code, which is a part of the post-conviction relief statutory provisions. Miss.Code Ann. § 99 — 39—5(l)(g) (Rev. 2000). We find no error in the trial court’s decision and affirm.

¶ 2. Smith pled guilty to two felony counts and was sentenced to serve three years on each count. The judgment recited that the sentences would be served concurrently and, in addition, would be concurrent to a pending prison sentence imposed by the state of Texas. Thereafter, Smith filed a motion in which he appears to contend that he is entitled to release from confinement under the judgment in this state because the state of Texas has granted him parole. Smith asserted in his motion before the circuit court that, because his sentences in Mississippi were ordered to run concurrently with his sentence in Texas, he automatically became entitled to be released in this state when the state of Texas granted him parole.

¶ 3. The circuit court summarily denied relief, stating, in part, as follows:

It is clear from the Judgment of Conviction and Sentence Instanter entered in these causes the Court did not intend defendant to be released from the custody of the Mississippi Department of Corrections simply because he may have served a sufficient amount of time of the Texas sentence to be eligible for parole in the State of Texas, but the subject language in such judgment was for the purpose of allowing defendant to serve all of the sentences, both in Mississippi and Texas, concurrently.

¶ 4. It is from this order that Smith has appealed. In his brief to this Court, Smith departs from his original contention before the circuit court and attempts to claim ineffective assistance of counsel based on a number of complaints concerning the nature of his representation in the proceedings that ultimately led to his guilty pleas.

¶ 5. Smith is barred from raising issues of this nature for the first time in his appeal to this Court. See Miss.Code Ann. § 99-39-21(1) (Supp.2002); Williams v. State, 752 So.2d 477 (¶ 7) (Miss.Ct.App.1999).

¶ 6. Even were we to assume for sake of argument that a liberal reading of Smith’s pro se brief could be seen to preserve the claim advanced in the circuit court, we find his contention to be without legal merit. Smith’s assertion that the term of his confinement in Mississippi must end at the time Texas authorities elect to grant him parole because the sentences were being served concurrently finds no support in any case law or learned treatise that this Court has been able to discover. In a somewhat similar situation, the Colorado Supreme Court offered these comments, which we find to properly answer Smith’s contention.

Bullard [the prisoner] argues that the Montrose sentence is the “controlling” sentence, as well as the longer sentence, and, if it is complete, the El Paso sentence must be as well. Bullard’s understanding of concurrent sentences is mistaken. When two sentences run concurrently, it merely means that, for each day in custody while serving both sentences, the inmate receives credit toward each sentence. Concurrent sentences do not necessarily begin and end at the same time — they simply run together during the time that they overlap.

Bullard v. Department of Corrections 949 P.2d 999, 1002 (Colo.1997) (emphasis supplied).

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

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


author: GRIFFIS, J.,

text:
    Ann Hatcher McLAURIN, Appellant, v. John H. McLAURIN, Appellee.
    No. 2002-CA-00730-COA.
    Court of Appeals of Mississippi.
    Sept. 2, 2003.

      Lawrence Primeaux, Meridian, attorney for appellant.
    Jack W. Brand, Jackson, and Roger Googe, attorneys for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. Ann and John McLaurin were divorced on the grounds of irreconcilable differences. They filed a consent to divorce agreement and submitted several issues to the chancellor for resolution. After the chancellor divided the marital assets and entered a final judgment, Ann now appeals arguing that the chancellor erred in denying her alimony and in dividing the marital assets. Finding no error, we affirm.

FACTS

¶ 2. The McLaurins were married on August 2, 1956. The McLaurins’ three children were emancipated at the time of their divorce. After forty-five years of marriage, the McLaurins separated on December 28, 2000.

¶ 3. Ann has been employed with Newton County Farm Bureau since 1968. She serves as both office manager and secretary. Ann’s net income from Farm Bureau is $1, 456.21 per month. Ann has a high school education.

¶ 4. John is a retired fireman. His total retirement income is $1,788 per month. He receives an additional $250 per month in proceeds from a financed sale of timberland. After deducting health insurance, John’s net income is $1,348.57 per month. John has a high school education.

¶ 5. On July 26, 2001, John and Ann executed and filed an agreement, pursuant to Mississippi Code Annotated Section 93-5-2 (Rev.1994), to consent to an irreconcilable differences divorce. The parties specifically agreed to the division of certain marital property, namely two automobiles. Debra received the 1997 Cadillac, and John received the 1998 GMC truck. Each agreed to be responsible for the costs and debt associated with their vehicle.

¶ 6. During the course of the proceedings, John and Ann agreed to sell the marital home, sell John’s interest in the remaining parcels of real property that he owned jointly with B.C. Broughton, pay all associated costs of the sales, and divide the proceeds equally between them. John also agreed to provide medical coverage to Ann, under COBRA, at a cost of $338 per month for twelve months.

¶ 7. At the conclusion of the trial which was held on March 26 and 27, 2002, the chancellor rendered a bench opinion. Thereafter, on April 1, 2002, the chancellor entered a supplemental opinion in which he determined that the personal property in question was marital property because both parties were gainfully employed during the marriage and because both parties substantially contributed to the accumulation of the personal property. The personal property included items such as cash, monetary accounts, furniture and accessories, sporting goods, vehicles, tools, jewelry, appliances, and china. The chancellor then valued the assets and distributed the marital property. Ann received marital property valued at $102,581.96, and John received marital property valued at $86,611.97. Of the cash available, less outstanding liabilities, the chancellor evenly distributed Ann and John $9,747.97 each.

¶ 8. The chancellor estimated the cash that was to be received from the sale of the home was $130,000, the four parcels of land from the joint venture was $242,558, and he then determined that each party would receive one-half of the total, approximately $186,279. The chancellor considered Ann’s medical coverage through COBRA, for a period of twelve months, and according to the parties’ agreement awarded her the sum of $4,056 to pay the cost of that coverage.

¶ 9. The chancellor determined that John would receive total assets valued at $282,638.76 and that Ann would receive total assets valued at $302,664.75. The chancellor concluded that this division, with Ann receiving 51.7% of the marital assets and John receiving 48.3%, was equitable and would adequately provide for the needs of both parties. The chancellor decided that the division of assets was proper after taking into consideration their standard of living, their income and expenses, the non-existence of non-marital property, and the cash division to be received by each from the sale of the home and timberland. The chancellor noted that he had not, as requested by the parties during trial, “equally” divided their marital assets because this property division eliminated the need for periodic payments and other potential sources of friction between the parties. The chancellor’s findings of fact and conclusions of law were memorialized in a judgment for divorce entered on April 15, 2002.

STANDARD OF REVIEW

¶ 10. This Court employs a limited standard of review of the division and distribution of property in divorces. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). The chancellor’s division and distribution of property “will be upheld if it is supported by substantial credible evidence.” Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994). This Court will not substitute its judgment for that of the chancellor “[e]ven if this Court disagreed] with the lower court on the finding of fact and might ... [arrive] at a different conclusion.” Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978). The chancellor’s findings will not be disturbed “unless the Chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

LEGAL ANALYSIS

1. Whether the court erred in rejecting the parties’ agreement at trial to equally divide the assets.

¶ 11. Ann contends that the chancellor erred by rejecting the parties’ agreement, during the trial, to “equally” divide the assets. The Mississippi Supreme Court has declined to interpret “equitable” distribution to mean “equal” distribution. Trovato v. Trovato, 649 So.2d 815, 818 (Miss.1995). “It is well-settled law that the courts, when making an equitable distribution of marital property, are not required to divide the property equally. Love v. Love, 687 So.2d 1229, 1232 (Miss.1997). ‘Mississippi is not a community property state ... This point cannot be stressed enough.’ ” Owen v. Owen, 798 So.2d 394, 399(¶14) (Miss.2001) (quoting Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994)). Divorcing parties have no right to equal distribution even where the parties jointly accumulated the property. Pierce v. Pierce, 648 So.2d 523, 526 (Miss.1994). The consent to divorce agreement controlled the issue before the chancellor. In that document, the parties asked the chancellor to determine an “equitable division of the marital estate.” We also recognize that the chancellor’s final decision was in fact very close to being equal, as argued by Ann. Therefore, we find that the chancellor did not abuse his discretion and that this assignment of error is without merit.

2. Whether the chancellor erred in denying alimony.

¶ 12. Ann next argues that the chancellor erred in denying her demand for periodic alimony. Ann claims that the division of marital assets was unfair and has left her with little cash assets. In Mississippi, the award of alimony lies within the sound discretion of the court. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). When alimony is not awarded at all or is considered inadequate, normally we will affirm unless “the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Id.

¶ 13. “Alimony is not a completely independent financial issue in a domestic case, in which its consideration is hermetically sealed from other financial matters.” Buckley v. Buckley, 815 So.2d 1260, 1262(¶ 10) (Miss.Ct.App.2002). Alimony together with equitable distribution of property work together to provide for the parties after divorce. Id. “Therefore, where one expands, the other must recede.” Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). “If the marital assets, after equitable division and in light of the parties’ non-marital assets, will adequately provide for both parties, then ‘no more need be done.’ ” Id. If an equitable division of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony should be considered. Id.

¶ 14. Here, there were no non-marital assets to be considered. The chancellor found that a “deficit” did not exist because the division of marital assets was sufficient to provide for Ann’s needs and that such division eliminated the need for periodic alimony payments. Therefore, in order to determine whether alimony was improperly denied, we must first look at whether the equitable division of the marital assets was sufficient to provide for both parties.

S. Whether the court erred in the division of marital property,

a. Whether the division was equitable.

¶ 15. Ann claims that the division of marital assets was inequitable and unfair because John received cash equivalent assets and she received non-cash equivalent assets, such as furniture. Ann further claims that she was entitled to half of the funds in each joint account and half of the proceeds from the timber sales, because the sales were a result of a joint asset. John received life insurance policies (valued at $40,090 and $3,594), an IRA account (valued at $5,154.97), 2001 timber sale proceeds (of $9,866), a boat (valued at $4,500), and an ATV (valued at $3,000) among other things.

¶ 16. Upon review, we note that Ann asked for the furniture. We also find that Ann received cash equivalent assets such as the American Express 401k account (valued at $62,000), the Union Planters Bank checking account (valued at $5,093), the joint account at Newton County Bank (valued at $2,116), as well as the John Deere lawn mower (valued at $300), china (valued at $200) and jewelry (valued at $2,255), in addition to the home furnishings and appliances (valued at $14,642). Ann will also receive her share of the proceeds of the sales of the marital home and the timberland, which is expected to be $214,418.50, less expenses. Therefore, we find that this claim is not supported by the record.

¶ 17. We next address whether the chancellor equitably divided the marital assets. In Henderson v. Henderson, 703 So.2d 262, 265(¶ 15) (Miss.1997), the Mississippi Supreme Court held that “[t]he chancellor’s division of marital assets is governed by the principles set forth in Johnson v. Johnson, 650 So.2d 1281 (Miss.1994), Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), and Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994).”

¶ 18. In Johnson, the court determined that the first step is to characterize the parties’ assets as marital or non-marital pursuant to Hemsley. Henderson, 703 So.2d at 265(¶ 15). In Hemsley, the court defined marital property as any and all property accumulated or acquired during the course of the marriage. Hemsley, 639 So.2d at 915. “Once the marital assets have been identified, the chancellor should value and equitably divide the marital property, employing the Ferguson factors as guidelines, in light of each party’s non-marital property.” Drumright v. Drumright, 812 So.2d 1021, 1024(¶ 9) (Miss.Ct.App.2001). However, “[pjroperty division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division.” Ferguson, 639 So.2d at 929.

¶ 19. In this case, the chancellor issued a detailed supplemental opinion wherein the chancellor analyzed the issues involved and applied the applicable standards. The chancellor then entered his findings of fact and incorporated a discussion of the standards’ relevant factors. Properly following the procedure set forth in Drumright, 812 So.2d at 1024(¶ 9), the chancellor first found that the only nonmarital property of consequence was the incomes earned by the parties. He found all other assets to be marital property. The chancellor valued the property according to the appraisals and then divided it in detail, awarding John assets valued at $282,638.76 and Ann assets valued at $302,664.75.

¶ 20. The chancellor found that Ann’s monthly net income exceeded John’s monthly net income and that Ann’s portion of the division of marital property was greater than John’s portion. The chancellor further found that Ann was the primary reason for the parties’ separation. Therefore, after considering their standard of living, their income and expenses, fault, the non-marital property and the cash division to be received by each, the chancellor ruled that alimony was not necessary.

¶ 21. We are of the opinion that Ann has failed to establish error in the chancellor’s judgment. As discussed above, in his division of assets, the chancellor is not required to divide every asset in half. The chancellor must only make an equitable distribution of all assets, which he did. “The obligation of a chancellor is not to follow some precise formula as to each individual component of distribution, alimony, and other support, but to provide equitably between the spouses in the final outcome.” Welch v. Welch, 755 So.2d 6, 10(¶ 26) (Miss.Ct.App.1999).

¶ 22. Accordingly, we also find that the chancellor did not err in denying Ann alimony. Following our standard of review, we did not find that this decision to deny alimony was oppressive, unjust or grossly inadequate. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). Ann’s share from the division of the marital assets, $302,664.75, will adequately provide for her needs. Furthermore, the deficit created by the division of marital assets was not adverse to Ann, but to John. “If there are sufficient marital assets which, when equitably divided and considered with each spouse’s non-marital assets, will adequately provide for both parties, no more need be done.” Id.; Ferguson, 639 So.2d at 929. Therefore, we find this assignment of error to be without merit.

b. Whether the court erred in giving John credit for a truck payment.

¶ 23. Ann next argues that the chancellor erred in giving credit to John for a truck payment despite the parties’ agreement in the consent to divorce that John be responsible for his truck debt. The chancellor did in fact credit John with a payment made in January of 2001. The chancellor did so because the GMC truck loan was acquired during the marriage and considered a marital debt.

¶ 24. “Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.” Flechas v. Flechas, 791 So.2d 295, 299(¶ 8) (Miss.Ct.App.2001). We find this also includes marital debts. “The ‘course of the marriage’ runs until the date of the divorce judgment, for purposes of calculating whether or not assets are marital or non-marital, and an otherwise marital asset may be classified as separate if an order for separate maintenance is entered.” McIlwain v. McIlwain, 815 So.2d 476, 479(¶ 7) (Miss.Ct.App.2002).

¶ 25. The record indicates that the payment was made in January of 2001, prior to the agreed temporary judgment or the consent to divorce agreement. The record also indicates that only the consent to divorce agreement contained the language that John would be responsible for the truck’s debt. The consent to divorce agreement would not take effect until the judgment of divorce, which was entered April 15, 2002. Therefore, the truck debt was properly considered a marital debt and any prior payment was properly considered by the chancellor. Finding no error, this assignment is without merit.

c. Whether the sale of real property violated the prior temporary agreed judgment.

¶ 26. Ann also argues in this assignment of error that the sale of the Gipson property violated the temporary agreed judgment which prevented the sale of any asset. The Gipson property was a parcel of real property originally owned jointly by John and B.C. Broughton. The Gipson property was sold on June 1, 2001, after the agreed temporary judgment, filed March 5, 2001. This property was sold prior to and not included in the parties’ agreement to sell John’s remaining interest in the joint venture with B.C. Brough-ton. The chancellor accounted for the sale of the Gipson property as accumulated marital property in his valuation and equitable division of the assets in the category titled, 2001 timber sales.

¶ 27. This issue was not presented to the trial court. A party who fails to raise an issue at trial waives any right to complain thereafter. Page v. Siemens Energy and Automation, Inc. 728 So.2d 1075, 1082(¶ 27) (Miss.1998). Therefore, this issue will not be addressed on appeal.

d. Whether the court erred in finding John to be a credible witness.

¶ 28. In Ann’s final argument, she claims that the court erred in finding John to be a credible witness. In a bench trial, the trial judge has sole authority to determine the credibility of the witness. Bodne v. King, 835 So.2d 52, 57(¶ 18) (Miss.2003). The record does not establish error by the chancellor. Therefore, this assignment of error is without merit.

¶ 29. THE JUDGMENT OF THE NEWTON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

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


author: SOUTHWICK, P.J.,

text:
    Boris HARPER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01221-COA.
    Court of Appeals of Mississippi.
    Sept. 2, 2003.

      Charles E. Webster, Clarksdale, Attorney for Appellant.
    Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Boris Harper appeals his conviction after a jury trial on three counts of aggravated assault and one count of capital murder. Harper argues the trial court erred in failing to grant his motion for a judgment notwithstanding the verdict or a new trial due to the State’s failure to disclose a substantive change in a material witness’s intended testimony. We disagree and affirm.

FACTS

¶ 2. On March 28, 2001, Boris Harper and Tome Ellis entered a country grocery store. They were armed and their faces partially masked with handkerchiefs. They demanded the money from the register as well as from the patrons in the store. At least forty shots were fired during the robbery, leaving three people wounded and one, store co-owner Rita Funderburk, dead.

¶ 3. One of the injured customers, Reola Hightower, initially told police that she did not know either of the robbers. She gave a physical description of them. At trial, though, Hightower testified that she had recognized Harper immediately because he was her son’s acquaintance and had visited her home several times in the past. High-tower also testified that she told the ambulance attendant who transported her to the hospital she had recognized one of the gunmen.

¶ 4. Defense counsel briefly interviewed Hightower a few weeks before trial. Counsel informed the court that Hightower told him then that it was not until a court proceeding involving the co-defendant Ellis that she realized she knew Harper. Counsel could not state what hearing that would have been or when it was held. It is clear, though, that defense counsel knew before trial that Hightower would identify his client as one of the robbers. She explained her late acknowledgment of knowing the robber’s identity as a result of the trauma of events and that she had required time to get things sorted out in her mind. Harper made no objection to the testimony.

¶ 5. Harper was convicted and sentenced to life imprisonment without parole on the murder charge and twenty years’ imprisonment on each aggravated assault charge, also without parole.

DISCUSSION

¶ 6. Harper claims it was reversible error for the State to fail to disclose a significant change in Hightower’s statement regarding her identification of Harper as a perpetrator. Each party to a criminal prosecution has a continuing duty to supplement discovery in a timely fashion. URCCC 9.04(E). This duty includes notifying the opposing party promptly of any newly acquired discoverable evidence. Id. Substantive changes in a prior statement are within the scope of this rule.

¶ 7. Harper did not object to the introduction of Hightower’s testimony at the time it was given. Ordinarily, failure to make a contemporaneous objection waives the issue on appeal. McCaine v. State, 591 So.2d 833, 835 (Miss.1991). This procedural bar may not be applied when the failure to make timely objection is reasonably explained or involves discovery highly significant to the defendant’s case. Id. at 836. We will examine the level of significance. One of the difficulties in analyzing this issue is that High-tower’s answer to counsel’s cross-examination questions were not completely clear. Nonetheless, we accept for purposes of this issue that Hightower did agree that a few weeks before trial, she misinformed counsel about when she first realized Harper’s identity.

¶ 8. Harper alleges that the prosecutor was obviously surprised as well. There is no evidence of that. It is clear from testimony that the investigator assigned to the case was aware in advance of trial of what Hightower’s testimony would be. Even were the prosecuting attorney equally surprised, that does not provide an excuse- to Harper for failing to object. It was Harper who alleges error and thus his duty to object. In order for a valid discovery objection to exist, someone for the State must have been aware pre-trial of the change in the witness’s explanation of events, since otherwise the new version is not in the possession of either party for it to be disclosed. The knowledge of one governmental officer will be imputed to the prosecutor, regardless of the good or bad faith of that particular individual. State v. Blenden, 748 So.2d 77, 86 (Miss.1999).

¶ 9. These facts are some evidence of a discovery violation. There still was a duty to object, though, unless there was plain error affecting a fundamental right. Randle v. State, 827 So.2d 705, 709 (Miss.2002). The witness’s identification of Harper was known well in advance of trial; the discrepancy is in the timing of her recognition. Whether Hightower told counsel a few weeks before trial that she had immediately recognized Harper during the robbery or told him that she did so only sometime later, counsel knew she would make a positive identification. At most, immediate identification made somewhat stronger testimony than a delayed recognition would have.

¶ 10. The question remains of whether that difference resulted in a violation of a fundamental right. In substance, Harper’s counsel is arguing that he was unable to prepare an adequate defense because of the surprisingly stronger identification that Hightower made as a witness. In fact, though, the change in testimony was minor. It was a positive identification in either version. Moreover, even had this statement been excluded, Harper was identified in court by various witnesses to the crime. His fingerprints and palm prints were found at the scene. A jailer testified that at the Coahoma County jail Harper made unsolicited inculpatory statements.

¶ 11. On this record, Reola Hightower’s somewhat varying claims as to just when she realized Harper’s identity did not prejudice the defendant.

¶ 12. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT ONE CAPITAL MURDER AND SENTENCE OF LIFE; AND THREE COUNTS OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS ON EACH COUNT, ALL TO RUN CONSECUTIVELY TO EACH OTHER AND TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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


author: BRIDGES, J.,

text:
    Harry Dale BARNES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00746-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Rehearing Denied June 17, 2003.
    Certiorari Denied Sept. 11, 2003.

      Scott Joseph Schwartz, James R. Hayden, Hattiesburg, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the court.

¶ 1. The grand jury of Simpson County indicted Harry Dale Barnes for the murder of his wife, Myrtis Ruebin. The Circuit Court of Simpson County convicted Barnes of manslaughter and sentenced him to twenty years in the custody of the Mississippi Department of Corrections. Barnes moved for JNOV or new trial, in the alternative, and the court denied his motion. Barnes perfected his appeal to the Court.

STATEMENT OF THE ISSUES

I. DID THE COURT ERR IN DENYING BARNES’S MOTION TO SUPPRESS HIS SECOND STATEMENT TO THE POLICE?

II. DID THE COURT ERR IN DENYING BARNES’S MOTION FOR CHANGE OF VENUE?

III. DID THE COURT ERR IN ALLOWING THE STATE TO INTRODUCE BARNES’S GUN HOLSTER AT TRIAL?

IV. DID THE COURT ERR IN OVERRULING BARNES’S MOTION FOR DIRECTED VERDICT?

V. DID THE COURT ERR IN GRANTING INSTRUCTIONS CONCERNING MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE?

VI.DID THE COURT ERR IN DENYING BARNES INSTRUCTIONS ON REASONABLE DOUBT AND CIRCUMSTANTIAL EVIDENCE?

FACTS

¶ 2. According to Harry Barnes, he got into an argument with his wife, Myrtis Ruebin, about their finances. The argument became heated, and Ruebin drew a snub-nosed .22 revolver and pointed it at Barnes. Barnes responded by drawing his long-barreled .22 revolver, and a scuffle ensued, with Barnes and Ruebin grappling with each other. During the scuffle, Barnes shot Ruebin with the long-barreled .22 revolver in her temple, and Ruebin collapsed.

¶ 3. Barnes called 911, and was taken into custody after emergency services responded to his call. Barnes was interviewed twice; the first time he refused to speak, and the second time he waived his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). During the second interview, approximately eighty-five minutes after the first, Barnes was informed that his wife had died of her injuries. We will discuss additional facts as we consider the issues before us.

ANALYSIS

I. DID THE COURT ERR IN DENYING BARNES’S MOTION TO SUPPRESS HIS SECOND STATEMENT TO THE POLICE?

¶ 4. Barnes argues that his second statement to the police regarding the circumstances of his wife’s unfortunate demise violated his Miranda rights, as he was not given sufficient cooling off time from his prior refusal to talk. Once Barnes invoked his right against self-incrimination, the police were required to stop interrogating him, and his rights must be “scrupulously honored.” Jones v. State, 461 So.2d 686, 699 (Miss.1984). The police could not resume interrogation unless three conditions were met: (1) there was an adequate cooling off period; (2) there was a reasonable basis for inferring that Barnes had voluntarily changed his mind; (8) new and adequate Miranda warnings were given to Barnes. Id. at 699, 700, 86 S.Ct. 1602.

¶ 5. Over an hour had passed from the time Barnes had invoked his right to remain silent; the police read him his rights again, and Barnes then signed the waiver and began to speak freely. In Mississippi, passage of an hour is deemed sufficient cooling off time. Griffin v. State, 504 So.2d 186, 195 (Miss.1987). Barnes expressed no desire to speak with an attorney, and in fact said several times that he wished to speak. The court, on Barnes’s motion, ordered certain portions of the second statement redacted to prevent hearsay testimony from reaching the jury. There is no evidence of coercion or other improper action by the police and we find that the court did not err in admitting Barnes’s second statement into testimony.

II. DID THE COURT ERR IN DENYING BARNES’S MOTION FOR CHANGE OF VENUE?

¶ 6. Barnes argues that the court should have granted his motion for change of venue. The denial of a motion for a change of venue is within the sound discretion of the trial court, and we will not disturb it without evidence of an abuse of discretion. Porter v. State, 616 So.2d 899, 905 (Miss.1993); Shook v. State, 552 So.2d 841, 849-50 (Miss.1989). A presumption of the inability to conduct a fair trial in a given venue arises when the defendant presents together with his motion two affidavits affirming that inability. Porter, 616 So.2d at 905. Barnes properly filed a motion for change of venue, and the court found that Barnes had presented sufficient evidence to raise the presumption.

¶ 7. The State presented three witnesses from Simpson County to rebut the presumption. Their first witness was Angela Blackwell, who worked for the Simpson County Board of Supervisors. She testified that she was aware of the case, but knew no details. She also testified that she was unaware of pre-trial publicity, as she did not read the newspaper, and knew of no ill will towards Barnes in Simpson County, and finally that she believed that Barnes would receive an impartial trial in Simpson County.

¶ 8. The State’s second witness was Sue Griffith, an employee of the Simpson County Tax Assessor’s Office. She testified that she did not know either Barnes or Ruebin, and that she had never heard the case discussed. She did not take the local newspaper. She also testified that she did not know of any ill will towards Barnes in Simpson County.

¶ 9. The State’s third witness, Alexander McCullum, worked at McGuffee Drugs in Mendenhall, and knew both Ruebin and Barnes. McCullum testified he was unaware of any pre-trial publicity that would prejudice Barnes’s right to a fair trial, and that he did not read the local paper. McCullum further testified that he did not know of anyone with a grudge against Barnes.

¶ 10. Barnes countered with the testimony of Rev. Jeremiah Drummond, who lived in Simpson County and knew both Ruebin and Barnes. Rev. Drummond testified that he had heard people in the community discussing the case, and that he believed that Barnes would not receive a fair trial in Simpson County, especially in the light of the pre-trial publicity.

¶ 11. The court held that the State had met its burden of showing that Barnes could receive a fair trial in Simpson County. The court also stated that if during voir dire it determined that a fair and impartial jury could not be selected, it would order a change of venue sua sponte. See Harris v. State, 537 So.2d 1325, 1329 (Miss.1989). During voir dire, the court struck several jurors who indicated that they either knew a great deal about the case, or knew the victim personally, or felt they might not be impartial. The court also accepted several challenges for cause, as well as the full number of peremptory challenges. The court then asked the State and Barnes if they had any objections to the voir dire process as conducted by the court. They did not.

¶ 12. Taking these facts together, it is apparent to this Court that the court below acted scrupulously to protect Barnes’s right to a fair trial. The trial court conducted its inquiry into the appropriateness of changing venue diligently, and on the record reserved its right to change venue sua sponte if necessary. There is no error here.

III. DID THE COURT ERR IN ALLOWING THE STATE TO INTRODUCE BARNES’S GUN HOLSTER AT TRIAL?

¶ 13. Barnes alleges that the court erred in permitting the State to introduce the holster of his gun as evidence in the trial, because it was not properly made part of discovery. Potential errors in discovery are reviewed for an abuse of discretion, with an emphasis on preventing unfair surprise. Blakley v. State, 791 So.2d 326, 331 (¶¶ 16-17) (Miss.Ct.App.2001). The holster was first disclosed on the Friday before the trial began. The court allowed Barnes to examine the holster, and Barnes argued that it was either outside the chain of custody or irrelevant. But Barnes did not claim unfair surprise at trial, as he does now, nor did he ask for a continuance, nor does he explain how he was prejudiced. Rule 9.04 of the Uniform Circuit and County Court Rules requires Barnes to have sought a continuance or mistrial, which he did not. Kelly v. State, 778 So.2d 149, 152 (¶¶ 12-13) (Miss.Ct.App.2000).

¶ 14. Accordingly, we find no error.

IV. DID THE COURT ERR IN OVERRULING BARNES’S MOTION FOR DIRECTED VERDICT?

¶ 15. Barnes argues that the State failed to prove its case beyond a reasonable doubt at the close of its case in chief, and that he should properly have been granted a directed verdict. We review the denial of a motion for a directed verdict in the light most favorable to the jury verdict. Gleeton v. State, 716 So .2d 1083, 1087(¶ 14) (Miss.1998). We will only reverse the denial of a motion for a directed verdict if reasonable and fair-minded jurors could only find the defendant not guilty. Id.

¶ 16. The State argues incorrectly in its brief that the testimony of Dr. Steven Hayne at trial supported their theory of murder. Although Dr. Hayne was capable of testifying that Barnes’s statement contradicted the forensic evidence, which demonstrated that Barnes could only have shot Ruebin from behind, the State never elicited this testimony at trial. During the testimony of Dr. Hayne, Barnes moved to prevent Dr. Hayne from testifying about the direction from which the fatal shot came. The State vigorously argued against Barnes’s motion outside the hearing of the jury, and the court found for the State, denying Barnes’s motion. Inexplicably, the State chose not to elicit the only testimony available that conclusively provided evidence that Barnes’s statement to the police was inconsistent with the actual happenings of Ruebin’s death.

¶ 17. The State is only saved from reversal by the salutary fact that in the videotaped confession Barnes stated that Ruebin was killed by a bullet from the snub-nosed .22 caliber revolver, when in fact Starks Hathcock, the State’s firearms expert, stated that the bullet that killed Ruebin did not come from the snub-nosed .22 caliber revolver. This contradiction of Barnes’s statement is more than sufficient to raise a question of fact that was properly brought before the jury, despite the fact that Dr. Hayne’s more damning evidence never saw the light of day.

¶ 18. Were it not for the testimony of Hathcock that the snub-nosed revolver did not fire the bullet that killed Ruebin, Barnes would be entitled to a directed verdict, as no other evidence presented contradicted Barnes’s story. However, the evidence concerning which pistol fired the deadly bullet suffices to bring the question of guilt before the jury, as a reasonable juror could have found Barnes guilty. We find that the court did not err in denying Barnes’s motion for a directed verdict.

V. DID THE COURT ERR IN GRANTING INSTRUCTIONS CONCERNING MANSLAUGHTER AS A LESSER INCLUDED OFFENSE?

¶ 19. Barnes assigns as error the court’s granting of the State’s instructions on manslaughter as a lesser-included offense of murder. When there is a jury issue on the question of murder, the defendant cannot object to a grant by the court of a manslaughter instruction. Crawford v. State, 515 So.2d 936, 938 (Miss.1987). When presented with facts from which the jury could infer the predicate state of mind of the defendant, it is permissible for the jury to use such inferences to find the defendant guilty of manslaughter rather than murder. Jackson v. State, 740 So.2d 832, 834(¶ 8) (Miss.1999).

¶ 20. Barnes and Ruebin were involved in a heated physical struggle, each holding a gun. The evidence presented to the court indicated that Barnes’s statement erred on the fact of which gun fired the fatal shot. Additionally, the jury could reasonably have inferred from the evidence that Barnes became angry and then shot Ruebin. We find that the court did not err in issuing an instruction on manslaughter, because the facts before the jury allowed the inference that Barnes shot and killed Ruebin in the heat of passion.

VI. DID THE COURT ERR IN DENYING BARNES’S REQUESTED INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE?

¶ 21. Barnes assigns as error the court’s denial of two defense instructions, one of which instructed the jury of the State’s burden to prove its case beyond a reasonable doubt, and the other which was a classic circumstantial evidence instruction. A circumstantial evidence instruction is not proper when there is direct evidence of the crime presented to the jury, and such evidence can include statements by the defendant as well as the testimony of any eyewitnesses. Price v. State, 749 So.2d 1188, 1194 (¶¶ 16-18) (Miss.Ct.App.1999). The elements of manslaughter are “the killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.” Miss.Code Ann. § 97-3-35 (Rev.2000). According to Barnes’s statement, Ruebin died from a gunshot wound to the head resulting from an argument and physical struggle with Barnes over household finances. Barnes’s statement presented a prima facie case for manslaughter, and the court was fully justified in refusing Barnes’s requested instruction on circumstantial evidence.

CONCLUSION

¶ 22. The State had evidence that on its face contradicted Barnes’s story. Starks Hathcock’s testimony directly refuted Barnes’s statement that the snub-nosed .22 revolver fired the bullet that killed Ruebin. Additionally, Barnes’s own statement that he shot his wife during an armed struggle following a heated argument about household finances easily supports the theory of manslaughter, and the inclusion of an instruction for manslaughter as a lesser-included offense of murder.

¶ 23. THE JUDGMENT OF THE SIMPSON, COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Sherley ADAMS, et al., Appellants, v. MISSISSIPPI STATE OIL AND GAS BOARD, Murphy Oil Usa, Inc., Fina Oil & Chemical Company, Union Pacific Resources, Exxon, Mobil, Amoco Corporation and Marathon Oil Company, Successor to Txo Production Company, Appellees.
    No. 2001-CA-00747-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Rehearing Denied May 20, 2003.
    Certiorari Denied Sept. 11, 2003.

      John D. Smallwood, Tupelo, Stuart H. Smith, New Orleans, LA, attorneys for appellant.
    Daniel M. Weir, Jackson, Mary Margaret Waycaster, Jeffery P. Reynolds, Tim Waycaster, Natchez, attorneys for appel-lee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. This matter originated as a statutorily-authorized appeal to the Chancery Court of Lincoln County seeking judicial review of a decision by the Mississippi Oil and Gas Board to adopt a rule governing the proper disposal of waste material from gas production sites containing radioactive material. The chancery court found that the appeal had not been properly perfected within the time permitted by the statute and dismissed the proceeding. It is on that narrow issue that the case now comes before this Court.

¶ 2. We deal with a pure question of law since the facts upon which the issue before us turns are not in dispute. In that circumstance, we conduct a de novo review of the chancellor’s resolution of the issues of law. Lowe v. Lowndes County Bldg. Inspection Dept., 760 So.2d 711(¶ 6) (Miss.2000).

¶ 3. The Oil and Gas Board issued notice that it was considering exercising its statutory rule-making authority to adopt Statewide Rule 68 dealing with permissible methods of disposing of waste material created in the process of drilling oil and gas wells when the waste contains naturally-occurring radioactive materials at above-normal levels. The Adams Group, a collection of landowners in Lincoln County — an area of significant oil and gas production activity — actively opposed the adoption of the rule, contending that the proposed disposal methods did not constitute an environmentally safe practice. After a full hearing on the matter, the Board adopted Rule 68 essentially as proposed. The Board’s adoption of the Rule became final, for purposes of appeal, on January 19, 2000. The Adams Group, dissatisfied with the decision, filed an original action in the Lincoln County Chancery Court on February 18, 2000. The complaint, among other requests for relief, stated that the named plaintiffs “hereby appeal the decision of the [Oil and Gas] Board promulgating amended Rule 68.” A representative of the Board was not served with a summons in the proceeding until February 23, 2000.

¶ 4. The chancery court concluded that the applicable statute required that notice of intent to appeal must be filed with the Oil and Gas Board — not the chancery court — within thirty days of the action being appealed. Finding as fact that no such notice was given within the allotted time, the chancellor dismissed the appeal as untimely. This appeal followed.

¶ 5. The Adams Group argues that the statute regarding the method of perfecting an appeal is ambiguous on its face and that, in such circumstance, the filing of notice of intent to appeal with the chancery court was sufficient to perfect the appeal.

¶ 6. The applicable statute governing judicial review of certain actions of the Oil and Gas Board permits an appeal “to the chancery court of the county in which all or a part of appellant’s property affected by such rule ... is situated.... ” Miss. Code Ann. § 53-l-39(a) (Rev.1999). Such an appeal must “be taken and perfected as hereinafter provided, within thirty (30) days from the date that such final rule ... is filed for record in the office of the board....” Id. Subsection (b) provides, in part, that

[u]pon the filing with the board of a petition for appeal to the chancery court, it shall be the duty of the board, as promptly as possible ..., to file with the clerk of the chancery court ... a copy of the petition for appeal and of the rule ... appealed from, and the original and one (1) copy of the transcript....

Miss.Code Ann. § 53-l-39(b) (Rev.1999) (emphasis supplied).

¶ 7. The Adams Group, however, in contending that the appeal may be perfected by filing notice with the chancery court, relies on an earlier passage from subsection (a), which says that all appeals “shall be taken and perfected, heard and determined either in termtime or in vacation on the record....” Miss.Code Ann..§ 53-1-39(a) (Rev.1999). According to the Adams Group, this language plainly declares that the appeal must be “taken and perfected” before the same entity designated to hear and determine the appeal, ie., the chancery court.

¶ 8. We conclude that the language of Section 53 — 1—39(b) requiring the filing of the appeal petition with the Board is the controlling provision and that, in order to perfect an appeal of an order of the Board, that notice ought properly to be filed with the Board within thirty days of the filing of the order after adoption. Though perhaps not stated with absolute clarity, we are satisfied that the statute contemplates the commencement of the appeal process by filing notice with the- Board. Several factors beyond the language of Section 53-1-39 serve to reinforce- our decision. Included among them is the observation that, in the matter of judicial appeals from Oil and Gas Board decisions in the limited category of unitization of oil and gas fields, “[s]uch appeal may be taken by filing notice of the appeal with the state oil and gas board_” Miss.Code Ann. § 53-3-119 (Rev.1999).

¶ 9. It seems improbable that the Legislature would envision two diametrically opposed methods of appealing a Board decision depending solely on the subject matter' of the decision. Additionally, Section 53-1-39 directs the Board, in filing the necessary documents with the chancery court after an appeal has been perfected, to include “a copy of the petition for appeal.” Miss.Code Ann. § 53 — 1—39(b) (Rev.1999). If the appeal had been earlier perfected by filing the notice directly with the chancery court, the requirement to file a copy with the body already possessing the original would appear to be an empty gesture.

¶ 10. The conclusion as to the proper method of perfecting an appeal does not end our consideration, however. It merely leads us to the next step of analysis, which involves the issue of whether filing the notice within thirty days, but filing it with the wrong entity, is nevertheless sufficient to preserve the substantive issues for judicial review. We determine that it does.

¶ 11. There is not a large body of detailed rules governing procedure when the chancery (or circuit) court sits in an appellate capacity reviewing an action of a state agency. Rather than adopt a lengthy set of rules for that situation, the Mississippi Supreme Court has said that the reviewing court may, when appropriate, refer to the Mississippi Rules of Appellate Procedure for guidance. Van Meter v. Alford, 774 So.2d 430(¶ 3) (Miss.2000); American Investors, Inc. v. King, 733 So.2d 830(¶4) (Miss.1999). Under the Mississippi Rules of Appellate Procedure, the proper method of perfecting an appeal to the Mississippi Supreme Court from the circuit or chancery court is to file “a notice of appeal with the clerk of the trial court within the time allowed by Rule 4.” M.R.A.P. 3(a). This procedural scheme seems consistent with the proper method for perfecting an appeal from a decision of the Oil and Gas Board since, as we have previously determined, the proper place to file the notice is with the entity from which the appeal is being taken, i.e., the Board. Nevertheless, the appellate rules specifically contemplate the situation where a party desiring an appeal files the notice in the wrong place. “If a notice of appeal is mistakenly filed in the Supreme Court, the clerk of the Supreme Court shall note on it the date on which it was received and transmit it to the clerk of the trial court and it shall be deemed filed in the trial court on the date so noted.” M.R.A.P. 4(a).

¶ 12. In view of the Mississippi Supreme Court’s plainly-expressed intention found in Rule 4(a) to overlook this sort of procedural error in attempting to perfect an appeal, and in further view of that court’s .directive to the circuit and chancery courts, when sitting- as appellate courts, to look to the Mississippi Rules of Appellate Procedure for direction, we hold that the fifing of the notice of intention to appeal directly with the chancery court was enough to perfect the appeal.

¶ 13. This holding is in keeping with -a previous decision of this Court in a closely-related circumstance as found in Bowling v. Bd. of Supervisors, 724 So.2d 431 (Miss.Ct.App.1998). In that case, the statute permitting an appeal from an action of a county board of supervisors required that a bill of exceptions be lodged with the board within ten days of the relevant action. Miss.Code Ann. § 11-51-75 (1972). The facts of the case showed that, instead of fifing a bill of exceptions, the aggrieved parties filed a direct action in the circuit court that, by its language, indicated that it was in the nature of an appeal of the board’s action. Id. at (¶4). This Court found that the fifing of this complaint, even though it was unaccompanied by the required bill of exceptions, was sufficient to preserve the appellant’s right of judicial review and that any remaining procedural deficiencies under the applicable statutes could properly be accomplished at a later date. Id. at (¶ 52).

, ¶ 14. Having determined that this appeal, though not perfected according to the procedures outlined in the statute, was nevertheless accomplished in a manner sufficient to preserve the Adams Group’s right of appellate review, we find it appropriate to reverse the judgment dismissing the appeal as untimely filed. We further remand the matter to the Lincoln County Chancery Court for consideration of the substantive issues properly raised in the appeal on their merits.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF LINCOLN COUNTY IS REVERSED AND THIS CAUSE IS REMANDED FOR SUCH FURTHER PROCEEDINGS AS ARE CONSISTENT WITH THE TERMS OF THIS OPINION. THE COSTS OF THE APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING and SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER and GRIFFIS, JJ., CONCUR.


author: LEE, J.,

text:
    Hollie Jean WATTS, Appellant, v. Mark Harrison WATTS, Appellee.
    No. 2001-CA-01181-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Certiorari Denied Sept. 4, 2003.

      James R. Hayden, Hattiesburg, attorney for appellant.
    Dempsey M. Levi, Ocean Springs, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

LEE, J.,

for the Court.

¶ 1. The motion for rehearing on this matter is denied. The original opinion issued in this case is withdrawn, and the following opinion is substituted as the opinion of this Court.

PROCEDURAL HISTORY AND FACTS

¶ 2. Hollie Jean Watts and Mark Harrison Watts were married on May 24, 1986, and two daughters were born to their marriage, Jessica, in 1988, and Megan, in 1992. Hollie and Mark separated on January 20, 2000, and were granted a divorce on the grounds of irreconcilable differences on June 20, 2001. The special judge awarded custody of the children to Mark with liberal visitation to Hollie, denied alimony to Hollie, ordered Hollie to pay child support, and ordered the division of marital assets and liabilities. Hollie appeals to this Court asserting the following issues: (1) the special judge should have recused himself voluntarily; (2) the decision of the special judge was not in the best interest of the children due to the length of time between the trial and the judge’s final decision; (3) the special judge erred in not awarding alimony to Hollie; and (4) the special judge erred in granting primary custody of the minor children to Mark. As further described, we find that the special judge erroneously awarded primary custody of the children to Mark and we reverse and remand.

DISCUSSION OF ISSUES

I. DID THE SPECIAL JUDGE ERR IN GRANTING PRIMARY CUSTODY OF THE CHILDREN TO MARK WATTS?

¶ 3. The standard of review in child custody cases is similar to the standard in all domestic relations cases. A reversal is proper if the chancellor is manifestly in error or has applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). Appellate courts need only to determine if the chancellor’s decision was supported by credible evidence. Lee v. Lee, 798 So.2d 1284(¶ 22) (Miss.2001).

¶ 4. It is well settled that in child custody cases, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The factors used to determine what is in the “best interests” of a child with regard to custody are: (1) age, health and sex of the child; (2) determination of the parent that had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id.

¶ 5. However, an appellate court must find a chancellor in error where the chancellor improperly considers and applies the Albright factors. Hollon v. Hollon, 784 So.2d 943(¶ 11) (Miss.2001). In determining whether the chancellor abused his discretion in applying the Al-bright factors, the appellate court “reviews the evidence and testimony presented at trial under each factor to ensure [the chancellor’s] ruling was supported by record.” Hollon, 784 So.2d at (¶ 13). Furthermore, differences in religion, personal values, and lifestyles should not be the sole basis for custody decisions. Albright, 437 So.2d at 1005.

¶ 6. We must now review the evidence and testimony presented at trial under each Albright factor to determine whether the ruling by the special judge was supported by the record.

Age, health and sex of the children

¶ 7. Jessica was born in 1988 and Megan was born in 1992. The special judge weighed this factor in Holhe’s favor because the children are females. According to Mark’s testimony, he admitted that Hollie would be better equipped to handle certain issues as the girls matured. We find the record supported the special judge’s decision that this factor favors Hollie.

Continuity of care

¶ 8. The special judge found Mark to be more credible on this factor. However, Hollie has had physical custody of the children since the separation for over a year and a half. The special judge neglected to point out that Mark had neither paid child support to Hollie since the separation nor attempted to take custody of the children. Furthermore, the special judge inexplicably placed excessive weight on the fact that Mark occasionally cut the girls’ hair and trimmed their nails. We fail to see how occasional grooming by Mark or his mother outweighs Holhe’s proven record of continued care for the children. We find the determination by the special judge to be unsupported by the evidence. Parenting skills and willingness and capacity to provide primary child care

¶ 9. The special judge recognized that both Hollie and Mark are close to the children and each desires to be the primary caregiver of the children. However, this factor was also weighed heavily in Mark’s favor, despite evidence requiring the contrary. The special judge completely discredited any testimony citing to the fact that Hollie is a good mother and only focused on unsubstantiated testimony against Hollie. Mark testified that Hollie is a good mother, even though he constantly tried to discredit her abilities. Hollie gets the girls ready for school, takes them to school, picks them up after school, participates directly in their extracurricular activities, and takes them to the doctor. On the other hand, Mark’s hectic work schedule prevents him from participating in the children’s extracurricular activities. Mark claims to have the better parenting skills, but his only reason in support of this statement is the fact that he occasionally trims their fingernails or his mother gets their hair cut. According to the record, Mark has made no effort to retain custody of the children since the separation. In fact, the record shows that Mark’s mother takes care of the children more than he does. We find the record does not support weighing this factor in Mark’s favor, and the special judge abused his discretion in so finding.

The employment of the parent and the responsibilities of that employment

¶ 10. We find it inexplicable as to why the special judge found in favor of Mark on this factor. Hollie is a middle school teacher with work hours ideal for raising children, including having summers free to spend with the children. Hollie is able to pick the children up from school and take them to any activities in which they are involved. Mark is an attorney and is also the Jackson County prosecuting attorney. He has long work hours and would not be able to pick the children up from school. Mark testified that he would have to pay his secretary or someone else to pick the children up and keep them until he got off work. If that failed, his mother would have to pick them up, take them to any extracurricular activities and keep them until Mark got home. According to Mark’s testimony, he had problems staying up at night with the children when they were sick if he had to be in court the next day. The special judge was certainly made aware that Mark has a professional degree and a higher salary than Hollie; however, this higher salary is not beneficial to the children if Mark’s work schedule necessitates the employment of others to care for the children. There was sufficient evidence in the record to weigh this factor in favor of Hollie, and, again, the special judge’s finding to the contrary was error.

Physical and mental health and age of the parents

¶ 11. Hollie is thirty-nine years old and Mark is thirty-seven years old. Although both are in good health, the special judge weighed this factor in favor of Mark because evidence was present that Hollie takes antidepressants and occasionally drinks alcohol.

Emotional ties of the parent and child

¶ 12. The special judge determined that because both parents clearly love the children, there are equally strong emotional ties between each child and each parent. However, Jessica, the eldest child, told the special judge she wanted to live with Hollie because Mark works all the time, he has a temper, and she does not like Mark’s girlfriend.

Moral fitness of the parents

¶ 13. The special judge determined that, because there was no evidence to prove either parent to be morally unfit, the parties were equal in this regard. However, Hollie’s initial complaint for divorce alleged adultery and, although the adultery grounds were later withdrawn, there were subtle references throughout the trial to an improper relationship between Mark and his secretary.

The home, school and community record of the child

¶ 14. The children have lived in the Vancleave community all their lives, they attend schools in that community, and they are active in extracurricular activities at school and in the community. In weighing this factor in favor of Mark, the special judge found that Mark has an extended family living in the area who would be supportive. Although Hollie does not have family in the area, she testified that she would continue to ask Mark’s mother for help. We find Hollie should not be penalized because she does not have a large family nearby. Furthermore, we find the special judge placed too much weight on a statement Hollie supposedly made declaring that she would move from Mississippi and take the children. Hollie testified that she said this before the separation and only in anger, immediately afterwards telling Mark that she would hot move with the children.

The preference of the child at the age sufficient to express a preference

¶ 15. Jessica was old enough to express her preference, and she told the special judge that she wanted to live with her mother. According to Jessica, her father worked all the time, he had a temper, and she did not like his girlfriend. The only evidence the special judge cited in his opinion was a statement by Hollie telling Jessica that Mark would not be able to participate in Jessica’s horse shows the way Hollie participated. The special judge found this statement sufficient to poison Jessica against her father; however, there was no evidence to support this finding. Stability of home environment and employment of each parent

¶ 16. This factor has been discussed above along with the employment of the parents and the community involvement of the children. Although the special judge weighed this in favor of Mark, as described, we find insufficient evidence in the record to support this conclusion.

Other factors relevant to the parent-child relationship

¶ 17. The special judge found no other factors relevant. After weighing all the factors, the special judge found the best interests of the children would be served by granting primary custody to Mark. However, in reviewing the briefs and the record, we find the conclusions reached by the special judge are not an accurate reflection of the facts. We are not substituting our judgment for the special judge, but we find that he placed too much importance on certain facts and disregarded others in deciding to award Mark custody. Therefore, we find the special judge abused his discretion in awarding custody to Mark and thereby reverse and remand to the chancellor for further proceedings consistent with this opinion.

¶ 18. Having found reversal to be warranted on the issue of custody, we briefly address Hollie’s remaining issues.

II. DID THE SPECIAL JUDGE ERR IN NOT AWARDING ALIMONY TO HOLLIE?

¶ 19. The Mississippi Supreme Court has held that an award of alimony is left to the chancellor’s discretion. Voda v. Voda, 731 So.2d 1152(¶ 7) (Miss.1999). In cases of an outright denial of alimony, the chancellor will not be reversed unless the decision was seen as “so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). The following factors are to be considered by the chancellor in deciding whether to award alimony: the income and expenses of the parties, the health and earning capacities of the parties, the needs of each party, the obligations and assets of each party, the length of the marriage, the presence or absence of minor children in the home, the age of the parties, the standard of living of the parties during the marriage and at support determination, the tax consequences of the spousal support order, fault or misconduct, wasteful dissipation of assets by either party, and any other equitable factors. Id. We find it is clear the special judge divided the marital assets in such a way as to alleviate the need for an alimony award to Hollie.

¶ 20. The special judge noted that a disparity existed in Mark and Hollie’s earning capacities. At the time of the trial, Mark’s projected yearly net income was $48,289.80, his net monthly income was $4,024.15, and his listed expenses totaled $4,336.19. At the time of the trial, Hollie’s projected yearly income was $20,777.88, her net monthly income was $1,731.49, and her listed expenses totaled $2,257.52. Based on these figures, the disparity in income alone reveals Mark had substantially greater income than Hollie.

¶21. The special judge awarded the following assets to Hollie: a horse and his tack valued at $1,500; a truck valued at nearly $23,000; various guns valued at $2,500; a camcorder; camping equipment; personal belongings from the marital residence; household goods worth $1,000; and nearly $54,000 in cash from Mark. Hollie was also ordered to pay debts, including Hollie’s truck note, with a balance of just under $23,000; debts to various banks; and credit card debt.

¶ 22. The special judge awarded Mark the following assets: the marital residence, valued at $190,000; guns valued at $2,500; a horse trailer valued at $4,000; a four wheeler worth $3,000; a truck worth $2,000; a $700 trailer; a $5,000 tractor; the joint savings account containing $215; household goods worth $4,000; a truck worth $17,000; horses and tack valued at $5,500; and all personal property in his possession. Mark was also ordered to pay a number of debts, including the debt owed on the house in the amount of $99,245; his truck note for $17,000; bank debts, including one for $4,189 and another for $2,590; credit card debt; debt owed to the IRS for the parties’ 1999 taxes at $4,869; and the cash to Hollie.

¶ 23. Regarding the other factors, the parties were married for fourteen years, the parties share joint legal custody of the children with primary physical custody to Mark, and Hollie was awarded standard visitation and ordered to pay child support in the amount of three hundred dollars per month. At the time of the divorce, Mark was thirty-seven and Hollie was thirty-nine, and they maintained a middle-class standard of living. There was no evidence of waste by either party. However, there was testimony from Hollie that Mark’s questionable relationship with his secretary was a factor contributing to the divorce. The special judge evaluated all of this information and concluded Hollie was not entitled to an award of alimony. Since we have found that reversal is warranted on the custody issue, we also reverse the holding with regard to alimony, since the presence of children is a factor in the chancellor’s decision concerning an award of alimony.

III. DID THE SPECIAL JUDGE ERR IN NOT RECUSING HIMSELF VOLUNTARILY FROM THE PROCEEDINGS?

¶ 24. According to East v. East, 775 So.2d 741(¶4) (Miss.Ct.App. 2000), the standard of review in domestic relations cases is as follows: “this court will not disturb the chancellor’s findings unless the court’s actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard.” Furthermore, Canon 3 C(l) of the Mississippi Code of Judicial Conduct states that a judge should disqualify himself “in a proceeding in which his impartiality might reasonably be questioned.” An objective standard is used in reviewing whether a judge should have recused himself. Steed v. State, 752 So.2d 1056(¶ 11) (Miss.Ct.App.1999).

¶25. In what we perceive to be an empathetic gesture, the special judge told the parties in open court that he had been through a divorce, received custody of his daughter, and had visitation problems. Based on these remarks, Hollie failed to file a motion for a new trial seeking recu-sal or a post-trial motion for recusal. In City of Biloxi v. Cawley, 332 So.2d 749, 749 (Miss.1976), the chancellor made a statement before trial that the City of Biloxi claimed was prejudicial only after the final decree was entered against the City. The supreme court noted the City knew about this statement and proceeded with the trial anyway, and just because the City lost the case does not necessarily indicate the chancellor was biased. Id. at 750. The court found in order to properly request a recusal, such request must be done prior to trial or as soon as the reasons for possible recusal are known. Id. Since Hollie brought up the issue of recu-sal only after the case was decided against her, we find she effectively acquiesced to the judge hearing her case.

IV. DID THE SPECIAL JUDGE ERR IN TAKING THIS CASE UNDER ADVISEMENT FROM DECEMBER UNTIL MAY?

¶26. In Hodge v. Hodge, 186 So.2d 748, 750 (Miss.1966), the supreme court stated that a year long advisement by the chancellor was “not of itself erroneous and certainly was not reversible error” and that the length of time is utilized within the chancellor’s discretion. However, the court did say that prolonged periods of advisement should be avoided in child custody eases, especially if the children are of a tender age. Id. This is not the case here, since the children were twelve and eight years old.

¶ 27. The special judge stated in his opinion that he reviewed the trial transcripts and the evidence presented before making his decision. There was no evidence to show that the special judge abused his discretion by taking the case under advisement from December until May. This issue is without merit.

¶ 28. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS REVERSED AND REMANDED IN PART AND AFFIRMED IN PART. COSTS OF THIS APPEAL ARE TAXED EQUALLY TO THE APPELLANT AND THE APPELLEE.

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


author: LEE, J., BRIDGES, J.,

text:
    Edward Stafford KNIGHT, Sr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01255-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.
    Rehearing Denied June 24, 2003.
    Certiorari Denied Sept. 4, 2003.

      Anthony L. Farese, David Lee Robinson, Ashland, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. In July 2001, Edward Knight was tried before a Calhoun County jury on change of venue from Union County, on charges of murder and aggravated assault. He was convicted on both counts and sentenced to serve life in prison for the murder conviction and sentenced to serve twenty years in prison for the aggravated assault charge, with five years suspended and fifteen years to serve, the sentences to run concurrently. Knight’s motion for judgment notwithstanding the verdict or in the alternative a new trial was denied, and he now appeals to this Court raising the following issues: Did the judge err (1) in failing to grant Knight’s motions for mistrial; (2) in failing to grant Knight’s motion for new trial due to prejudicial comments the prosecutor made during closing argument; (3) in allowing the State to use peremptory strikes against jurors based on race; (4) in failing to grant Knight’s motion for judgment notwithstanding the verdict due to insufficiency of the evidence; and (5) was the cumulative effect of errors sufficient to warrant reversal? We review each of these issues and find no error; thus, we affirm.

FACTS

¶ 2. Edward Knight worked for Piper Industries (Piper) in New Albany. During his tenure at Piper, Knight challenged those in authority and encouraged others who were disgruntled with the Piper management to speak out. On May 30, 2000, Knight, no longer employed at Piper, received unfavorable news from the unemployment office. Thereafter, he went to visit two of his Piper superiors, Paul Ferguson and Tom Jones, to find out why they told the unemployment office Knight had refused to accept the work offered to him at Piper. When Knight entered the room where Ferguson and Jones were waiting, Knight told the men he was mad at them for lying to the unemployment office, then he pulled out a gun and shot both men, killing Ferguson and wounding Jones. At trial, Knight pled insanity and offered experts and witnesses from his workplace to show that he was mentally unstable.

DISCUSSION

I. DID THE JUDGE ERR IN FAILING TO GRANT KNIGHT’S MOTIONS FOR MISTRIAL?

¶ 3. Knight argues in two separate discussions that his motions for mistrial should have been granted. The applicable standard of review for denial of a motion for mistrial and for reviewing discovery violations is abuse of discretion. Spann v. State, 771 So.2d 883(¶ 9) (Miss.2000); Graves v. State, 767 So.2d 1049(¶ 6) (Miss. Ct.App.2000).

a. Motion for mistrial — discovery violations

¶4. Knight first claims that the State improperly allowed New Albany Police Chief David Grisham to testify about a statement Knight made to him which had not been disclosed in discovery. During interrogation, Officer Grisham and Investigator Tim Kent talked with Knight, who refused to sign a written statement reflecting the oral statement he gave to the officers. At trial, Officer Grisham testified that he asked Knight why he shot the men, and Knight replied, “It was just something I had to do.” When asked how he felt at that point after the shootings, Knight stated, “Well, I don’t have any feelings for Paul Ferguson.” Knight argues that these statements were not disclosed during discovery, and, thus, were inadmissible as he was not able to have his experts prepare a rebuttal.

¶ 5. Officer Grisham was called as a rebuttal witness, and Knight, moved for a mistrial twice during Grisham’s testimony. At a bench conference during Grisham’s testimony, Knight’s attorney stipulated that the prosecutor had told him that Officer Grisham was going to testify that Knight offered no remorse after the shooting. Knight argues that, while this is true, he did not know Grisham would testify that Knight stated he did not have any feelings for Paul Ferguson, which would be a motive for the shooting. This Court fails to see how these two statements differ materially. Thus, we find no error, since Knight was aware of and stipulated to the introduction of Officer Grisham’s testimony prior to his taking the stand. The trial judge did not abuse his discretion, and this point is without merit.

b. Motion for mistrial — reference to race

¶ 6. Knight also moved for a mistrial during the prosecutor’s closing argument. We adhere to our previously stated standard of review in determining whether the trial judge abused his discretion in declining to grant the motion.

¶ 7. Anthony Robinson, Knight’s former co-worker, testified in Knight’s defense. During cross-examination, the prosecutor asked, “You know in all these statements that he talks about when he’s talking to other people, he refers to you as that little black guy. Did you know that?” Knight immediately objected to the form of the question, moved to strike and moved for a mistrial. The court responded by sustaining the objection and asking the jury to disregard the question.

“It is presumed that the jury follows the instructions of the trial court.” We have repeatedly held that where the trial court sustains an objection to the inadmissible testimony of a witness and instructs the jury to disregard same, prejudicial error does not result from that improper testimony. “[Wjhere an objection to such impermissible testimony is sustained and the jury is admonished by the trial court to disregard the statement, this Court has repeatedly held that refusal to grant a mistrial is proper.”

Baldwin v. State, 784 So.2d 148(¶ 31) (Miss.2001) (citations omitted).

¶ 8. Mississippi forbids the State from in the “remotest degree” prejudicing the jury against a defendant on account of race, or indeed any other invidious prejudice. Tate v. State, 784 So.2d 208(¶ 33) (Miss.2001). In recalling Knight’s description of Robinson as “a little black guy,” the prosecution was referring to reports from psychiatrist Dr. Gerald O’Brien who had penned Knight’s precise words in his reports. However, the prosecutor may have overstepped his bounds in choosing to use these words in his examination. Regardless, pursuant to the above-stated rule from Baldwin, the judge took the necessary corrective measures, and. he did not abuse his discretion in failing to grant a mistrial.

II. DID THE JUDGE ERR IN FAILING TO GRANT KNIGHT’S MOTION FOR NEW TRIAL DUE TO PREJUDICIAL COMMENTS THE PROSECUTOR MADE DURING CLOSING ARGUMENT?

¶ 9. Knight argues that the judge erred in declining to grant his motion for new trial; however, we find this issue barred from our review. Knight contemporaneously objected at the time the prosecutor made the objectionable comments in his closing argument, and the judge sustained, admonishing the jury to disregard the statements. However, Knight failed to ask for a mistrial at that point, which bars him on appeal from requesting our review. “[T]he Mississippi Supreme Court has held ‘in order to take advantage of improper argument on the part of a prosecuting attorney, objection must be interposed at the time the statement is made, and the point will not he considered on appeal unless motion for a mistrial is timely made.’ Logan v. State, 773 So.2d 338(¶ 45) (Miss.2000) (citations omitted) (emphasis added).

III. DID THE JUDGE ERR IN ALLOWING THE STATE TO USE PEREMPTORY STRIKES AGAINST BLACK JURORS?

¶ 10. Next, Knight argues that the judge erred in allowing the State to use peremptory strikes against jurors based on their race. Having reviewed the entirety of the record concerning challenges for cause and peremptory challenges, we find the judge in no way found a pattern of discrimination based on race.

¶ 11. From the dialogue with the attorneys, it may be inferred that the judge and attorneys were unclear as to what point in the process they were to conduct the Batson hearing, so the judge opted to pause along the way, giving the parties opportunity to object as questions arose. Midway through the process, the judge did state that, in his opinion, the defendant had not made out a prima facie case that a pattern of racial discrimination existed, and then later in the peremptory challenge segment, he permitted the State to offer race-neutral reasons. Although the judge’s thought processes might be unclear, nonetheless, in overruling and sustaining various challenges, we find considerable evidence that the judge evenhandedly reviewed each and every challenge on the record and ruled accordingly. Knight argues that the State used eight of its eleven peremptory challenges, as well as a ninth challenge for the alternate, to remove African American members of the venire, and the reasons for such removal were not sufficiently race-neutral. The defendant and victims in this case are white, and we note the Supreme Court’s decision in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), which reduced the three traditional Batson requirements to essentially only one. Currently, the only requirement is that the opponent of the strike has met the burden of showing that the proponent has engaged in a pattern of strikes based on race or gender, or in other words “the totality of the- relevant facts gives rise to an inference of discriminatory purpose.” See Puckett v. State, 788 So.2d 752(¶ 10) (Miss.2001).

When a Batson issue arises, the trial judge acts as the finder of fact. The race neutral explanations must be viewed in the light most favorable to the trial court’s findings. Trust is placed in a trial judge to determine whether a discriminatory motive drives the reasons given for striking a potential juror. The determination of discriminatory intent will likely turn on a trial judge’s evaluation of a presenter’s credibility and whether an explanation should be believed. Thus, trial courts are given great deference in their findings of fact surrounding a Batson challenge. One of the reasons the trial court is afforded such deference when a Batson challenge is raised is because the demeanor of the attorney making the challenge is often the best evidence on the issue of race neutrality. On appellate review, the trial court’s decision is accorded great deference and will be reversed only when such decision is clearly erroneous.

Walker v. State, 815 So.2d 1209(¶ 12) (Miss.2002) (citations omitted).

¶ 12. Knight lists eight jurors he claims were challenged based on race, and he claims six of those eight were struck for reasons that were not sufficiently race-neutral. According to our standard of review, we can only reverse the trial court if we find clear error. The State gave detailed reasons on the record for striking each of these jurors. Although we might find question with some reasons, we defer to the trial judge absent clear error, since he was present and able to determine credibility, evaluate demeanor, and best determine in light of the circumstances the attorney’s motives and the juror’s qualifications. Here, no clear error has been shown; thus, we affirm on this issue.

VI. DID THE JUDGE ERR IN FAILING TO GRANT KNIGHT’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT DUE TO INSUFFICIENCY OF THE EVIDENCE?

¶ 13. Knight argues the evidence was not sufficient to support the verdict, and his motion for judgment notwithstanding the verdict or, in the alternative, a new trial should have been granted. We look to our requisite standard of review:

In considering the sufficiency of the evidence supporting the verdict, this Court will consider all of the evidence in the light most favorable to the verdict. Credible evidence which is consistent with the guilty verdict 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. This Court 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.

Scott v. State, 829 So.2d 688(¶ 10) (Miss.Ct.App.2002).

¶ 14. Knight argues that the State did not prove that he acted with “deliberate design” or “malice aforethought” as are necessary to support a murder conviction. At the trial, both sides presented several witnesses, including various experts who had examined Knight’s mental status and co-workers and family who testified concerning the same. Substantial evidence was presented, much of it conflicting, and the jury was privy to all of this evidence. “The issue of a defendant’s sanity is an issue for the jury to determine, and its finding will not be reversed if it is supported by substantial evidence. It is in the jury’s discretion to accept or reject any expert testimony.” Woodham v. State, 779 So.2d 158(¶29) (Miss.2001) (citations omitted). In giving the State reasonable inferences as may be drawn from the evidence, we find sufficient evidence to support the jury’s verdict.

V. WAS THE CUMULATIVE EFFECT OF THE PROSECUTORIAL MISCONDUCT SUFFICIENT TO WARRANT REVERSAL?

¶ 15. Knight finally argues that, as described in the issues raised on appeal and looking to the overall cumulative error, the case must be reversed for a new, fair trial. “This Court may reverse a conviction and sentence based upon the cumulative effect of errors that independently would not require reversal. However, where ‘there was no reversible error in any part, so there is no reversible error to the whole.’ ” Coleman v. State, 697 So.2d 777, 787 (Miss.1997) (citations omitted). Having found no error with Knight’s other issues, we find no merit to this final issue.

¶ 16. THE JUDGMENT OF THE CALHOUN COUNTY CIRCUIT COURT ON CHANGE OF VENUE FROM THE UNION COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, MURDER AND SENTENCE OF LIFE; COUNT II, AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS WITH FIVE YEARS SUSPENDED AND FIFTEEN YEARS TO SERVE, SAID SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

SOUTHWICK, P.J., THOMAS, MYERS AND GRIFFIS, JJ., CONCUR. BRIDGES, J., DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY KING, P.J., IRVING AND CHANDLER, JJ. MCMILLIN, C.J., NOT PARTICIPATING.

BRIDGES, J.,

Dissenting:

¶ 17. With respect to my colleagues in the majority, I would remand this case to the Circuit Court of Union County for appropriate findings, concluding that the trial court erred in fading 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 as mandated in Hatten.

¶ 18. Knight assigns as error the court’s ruling that Knight had not made out a prima facie case of racial discrimination during jury selection sufficient for a Batson hearing. “Under Batson, a defendant must show that (1) he is a member of a cognizable racial group; (2) that the prosecutor exercised peremptory challenges to excuse a venire person of the defendant’s race; and (8) that there is an inference that the venire persons were excluded on account of their race.” Mack v. State, 650 So.2d 1289, 1296 (Miss.1994). “In sum, these components constitute the prima facie showing of discrimination necessary to compel the state to come forward with a neutral explanation for challenging black jurors.” Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987). The United States Supreme Court held in Powers that a white defendant had standing to challenge the prosecution’s use of its peremptory strikes to remove black venire members. Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Consequently, Knight does not have to show that he is a member of a cognizable racial group to establish a prima facie case of discrimination. Id. The burden then shifts to the State to come forward with a race-neutral explanation for challenging the jurors. Id. However, the State’s explanation is not required to rise to the level of justification as required for a challenge for cause. Harper v. State, 635 So.2d 864, 867 (Miss.1994).

¶ 19. Additionally, the Mississippi Supreme Court decided, in Hatten v. State, that it was necessary that “trial courts 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.” Hatten v. State, 628 So.2d 294, 298 (Miss.1993). When these findings are made, the “guesswork surrounding the trial court’s ruling is eliminated upon appeal of a Batson issue to this Court.” Id.

¶ 20. In the proceeding below, the State exercised eight of its eleven peremptory challenges against black veniremen. Determining whether there lies a racially discriminatory motive under the State’s articulated reasons is left to the sole discretion of the trial judge. Lockett, 517 So.2d at 1350. Moreover, “a trial judge’s factual findings relative to a prosecutor’s use of peremptory challenges on minority persons are to be accorded great deference and will not be reversed unless they appear to be clearly erroneous or against the overwhelming weight of the evidence.” Id.

¶ 21. I find that the majority is correct in that there seemed to be some confusion about the process of conducting a Batson hearing. The court initially held that Knight had not made out a prima facie case of racial discrimination sufficient to require a Batson hearing, but once the State continued to strike black jurors, the court began to seek racially neutral explanations for those peremptory strikes. Although the State did give reasons for the challenges, the court failed 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. At the very most, the trial court stated on-the-record that it was of the “opinion that the State had stated race and gender neutral reasons.” Again, after around the third Batson challenge, the court stated only that it was of the opinion that there is a valid race neutral challenge. The court continually stated only that it was of the opinion that “that would be race neutral if that were correct” and the court “finds that is a race neutral reason.” On or around the fifth Batson challenge, the State asserted as one of its reason for the strike against juror number 50, Westmoreland, was that she has “four kids, no spouse and a junior high education.” This reasoning seems to lean more towards being pretextual than race neutral. And last but not least, the court failed to make any finding on the last Batson challenge, challenging Everlean Stovall. I find that the trial court failed to make any on-the-record, factual determination of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors prescribed by Hatten.

¶ 22. I cannot divine the meaning of the trial court’s actions from the record before us; either there was a prima facie case of racial discrimination, or there was not. An argument can be made for both propositions from the record. Additionally, the State’s facially race-neutral reasons were either accepted, or they were not, but from the record it is impossible to tell.

¶ 23. Accordingly, I would remand this case to the Circuit Court of Union County for appropriate findings, concluding that the trial court erred in failing 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 as mandated in Hatten.

KING, P.J., IRVING AND CHANDLER, JJ., JOIN THIS SEPARATE OPINION.

      .Traditionally, according to Batson v. Kentucky, 476 U.S. 79, 80, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to establish a prima facie case of purposeful racial discrimination in the exercise of peremptory challenges, the opponent of the strike was required to show:
      1. That he is a member of a "cognizable racial group;” 2. That the proponent has exercised peremptory challenges toward the elimination of veniremen of his race; and
      3. That facts and circumstances raised an inference that the proponent used his peremptory challenges for the purpose of striking minorities.