author: WALLER, J.,

text:
    Stephen Virgil McGILBERRY v. STATE of Mississippi.
    No. 2000-DR-00343-SCT.
    Supreme Court of Mississippi.
    March 6, 2003.
    Rehearing Denied May 1, 2003.

      Robert M. Ryan, David P. Voisin, Stacy Prewitt, Jackson, attorneys for appellant.

      Office of the Attorney General, by Marvin L. White, Jr., Charlene R. Pierce, Jeffrey A. Klingfuss, attorneys for appellee.
   WALLER, J.,

for the Court.

¶ 1. Stephen Virgil McGilberry was tried and convicted of four counts of capital murder committed when he was sixteen years old. The Circuit Court of Jackson County thereafter sentenced him to death. We affirmed the conviction and sentence in McGilberry v. State, 741 So.2d 894 (Miss.1999), cert. denied, 529 U.S. 1006, 120 S.Ct. 1273, 146 L.Ed.2d 222 (2000). After filing a pro se petition for post-conviction relief, McGilberry, now represented by the Office of Capital Post-Conviction Counsel, has also filed an application for leave to seek post-conviction relief in the circuit court in which he raises multiple issues. Finding no merit in these issues, we deny McGil-berry’s petitions.

FACTS

¶ 2. Sixteen-year old Stephen Virgil McGilberry was charged with the deaths of 44-year-old Patricia Purifoy, his mother; 44-year-old Kenneth Purifoy, his stepfather; 24-year-old Kimberly Self, his half-sister, and 3-year-old Kristopher Self, his nephew and Kimberly’s son. Police were called to Kenneth and Patricia’s home on October 23, 1994, where they found the four bludgeoned bodies. An investigation revealed that McGilberry and 14-year-old Chris Johnson had taken Kimberly’s car and driven to a friend’s house in another town. The next morning, their friend’s mother, Brenda Smith Saucier, drove the pair back to the Purifoy home, where police were waiting.

¶ 3. After McGilberry was read his Miranda rights, he signed a waiver. He then confessed to the killings and told authorities that he and Johnson had committed the murders with baseball bats. McGil-berry indicated that he was disgruntled because his driving privileges had been taken away and that he had bludgeoned Kenneth and Kimberly while John had hit Patricia and Kristopher. McGilberry also admitted striking his mother with the baseball bat because he felt that she was suffering. McGilberry told police that he had taken cash and credit cards from his mother and then driven away in Kimberly’s car. Blood stains on McGilberry’s clothing matched the blood types of the victims.

DISCUSSION

I. WHETHER PROBABLE CAUSE EXISTED FOR McGILBERRY’S ARREST.

¶ 4. McGilberry contends that police had no probable cause to arrest him at the time he arrived at the crime scene. He also claims ineffective assistance of counsel because counsel failed to challenge the probable cause for his arrest. On direct appeal, we acknowledged that the issue had not been properly raised, yet we considered the merits of the claim:

Regardless, McGilberry’s contention that he was illegally arrested is without merit. At the time McGilberry gave his confession, he was not under arrest. He was only a suspect brought in for questioning. Furthermore, McGilberry was sought for questioning because police had learned that he was the only surviving family member, he was missing and Petranglo had told police to look for McGilberry because Kimberly’s GEO Storm was not at the Dewberry residence and McGilberry’s Bronco was there. This issue is without merit.

McGilberry, 741 So.2d at 904. McGilberry argues that the holding is inconsistent with our decision in Campbell v. State, 798 So.2d 524 (Miss.2001). In that case however, the State conceded that there was no probable to cause to arrest when the suspects were first taken in for questioning based solely upon the discovery of the victim’s body on the defendant’s property. We reversed Campbell’s murder conviction because police seized his clothing without a warrant in order to test for blood stains. In the present case, probable cause existed based on the facts that McGilberry was the only surviving member of the family, that Kimberly’s car was missing, and that McGilberry’s car was not missing. The issue was correctly decided on direct appeal and is therefore procedurally barred under the doctrine of res judicata. Miss. Code Ann. § 99-39-21(3) (Supp.2002).

II.WHETHER A JUROR’S STATEMENTS AT A SUBSEQUENT UNRELATED TRIAL CONSTITUTED JUROR MISCONDUCT IN McGILBERRY’S TRIAL.

¶ 5. McGilberry contends that juror Greg Harper did not consider mitigating evidence during McGilberry’s trial because, during voir dire in a subsequent unrelated trial, Harper stated that he did not “give a lot of weight to mitigation.” McGilberry concludes that Harper must therefore have withheld information when examined at McGilberry’s trial concerning Harper’s willingness or unwillingness to consider mitigating evidence. When a venireperson in criminal proceedings fails to respond to a question presented by defense counsel on voir dire, and the veni-reperson actually has the knowledge to respond affirmatively or negatively, upon a motion for a new trial, the circuit court should determine whether the question was relevant to the voir dire examination, whether the question was unambiguous, and whether the juror had substantial knowledge of the information sought to be elicited. Odom v. State, 355 So.2d 1381, 1383 (Miss.1978).

¶ 6. In the present case, McGilberry makes no showing that Harper was disinclined to consider mitigating evidence at the 1995 trial. He only shows that Harper expressed such a sentiment at a later proceeding. To infer prejudice would be speculative at best, and we do not engage in speculation in such circumstances. Buckley v. State, 772 So.2d 1059, 1065 (Miss.2000). Therefore, Harper did not have substantial knowledge of the information sought to be elicited, and he did not withhold such information. This issue is without merit.

III. WHETHER BEING SEEN IN SHACKLES DENIED McGIL-BERRY A FAIR TRIAL.

¶ 7. McGilberry contends that he was denied a fair trial because he was allegedly seen in shackles by the jurors. First, this claim was not raised at trial or on direct appeal and is now procedurally barred from collateral review pursuant to Miss.Code Ann. § 99-39-21(1). Second, there is no substantial showing that McGil-berry was actually seen in shackles by the jury. McGilberry instead offers the un-sworn statement of an alternate juror who was released from service prior to deliberation. An alternate that does not sit on the panel has no effect on the outcome of the case. Mack v. State, 650 So.2d 1289, 1300 (Miss.1994). “Generally, we have not found the right to a fair trial to have been abridged where the defendant has been seen in the courtroom by the jury in shackles or handcuffs.” Brown v. State, 690 So.2d 276, 287 (Miss.1996) (citing Lockett v. State, 517 So.2d 1317, 1329 (Miss.1987)). This issue is without merit.

IV. WHETHER THE ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL AGGRAVATOR WAS APPROPRIATE.

¶ 8. At trial, the State was granted a jury instruction which required the jury to consider whether the crimes were especially heinous, atrocious or cruel. McGilberry argues that the murders were not heinous, atrocious or cruel because the victims were either rendered unconscious by the blows or were killed nearly instantly. McGilber-ry claims that defense counsel should have objected at trial and should have raised the matter on direct appeal.

¶ 9. The aggravating instruction reads as follows:

The Court instructs the jury that in considering whether the capital offense was especially heinous, atrocious or cruel; heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others.
An especially heinous, atrocious or cruel capital offense is one accompanied by such additional acts as to set the crime apart from the norm of capital murders-the conscienceless or pitiless crime which is unnecessarily torturous to the victim. If you find from the evidence beyond a reasonable doubt that the defendant utilized a method of killing which caused serious mutilation, that there was dismemberment of the body prior to death, that the defendant inflicted physical or mental pain before death, that there was mental torture and aggravation before death, or that a lingering or torturous death was suffered by the victim, then you may find this aggravating circumstance.

¶ 10. The “especially heinous, atrocious or cruel” aggravating circumstance, without a limiting instruction, is unconstitutionally vague and, consequently, an invalid aggravating circumstance. Clemons v. State, 593 So.2d 1004, 1005 (Miss.1992). However, the instruction is permissible where additional limiting language sufficiently refines and narrows the aggravating circumstance of “heinous, atrocious or cruel” and thereby channels the jury’s sentencing discretion in a principled way. Brown v. State, 798 So.2d 481, 501 (Miss.2001). We have found the instruction given in the present case to be legally sufficient. Knox v. State, 805 So.2d 527, 533 (Miss.2002).

¶ 11. McGilberry concedes the validity of the instruction’s language but argues that the instruction was not supported by the evidence. This issue was capable of determination on direct appeal and is now procedurally barred from further review. Miss.Code Ann. § 99-39-21(1). Further, we have already determined on direct appeal that the evidence was more than sufficient to support the jury’s finding of aggravating circumstances:

McGilberry stands convicted of brutally murdering his mother, his stepfather, his sister and his three year-old step nephew. The method used, bludgeoning with a baseball bat, was both gruesome and grisly. The evidence showed that the crimes were premeditated and contemplated over a period of at least two weeks. McGilberry bludgeoned his family so that he could steal a car, some cash, a money order, and a credit card and then run away from home. The jury decided his fate, and we And no reason to disturb the verdict or sentence.

McGilberry, 741 So.2d at 925. Defense counsel therefore had no legitimate basis for posing an objection to the instruction at trial, and any renewed claim on direct appeal would have been fruitless. This issue is without merit.

Y. WHETHER THE GREAT RISK OF DEATH AGGRAVATOR WAS APPROPRIATE.

¶ 12. McGilberry argues that the jury instruction concerning the aggravating circumstance as to whether the defendant created a great risk of death to many persons was deficient in that it failed to require the jury to find that he “knowingly” created such a risk to persons other than his intended victims. This issue was capable of determination at trial and on direct appeal and is now procedurally barred from collateral review. Miss.Code Ann. § 99-39-21(1).

¶ 13. The capital murder aggravating circumstance, that a defendant knowingly created a “great risk of death to many persons,” has been applied to a defendant who stabbed to death only members of his family. Jackson v. State, 684 So.2d 1213 (Miss.1996). “To restrict its use to those crimes where very large numbers of individuals were at risk or those where the safety of others than an intended few was jeopardized would limit the statute beyond its intended scope.” Id. at 1235. The State concedes that the instruction did not recite that McGilberry “knowingly” created the risk but points out that there was sufficient evidence for the jury to find that McGilberry, by his conduct, knowingly put his family in jeopardy. The instruction as given was substantially correct and there was evidence at trial that McGilberry planned the murders well in advance.

¶ 14. If one aggravator is found to be invalid, we are authorized to reweigh the remaining aggravators against the mitigating circumstances and affirm, hold the error to be harmless, or remand for a new sentencing hearing. Miss Code Ann. § 99 — 19—105(5)(b) (Rev.2000). Therefore, even if this aggravating circumstance is assumed to be invalid, the remaining aggravating circumstances more than support the imposition of the death penalty. As previously noted, McGilberry “bludgeoned his family so that he could steal a car, some cash, a money order, and a credit card and then run away from home.” McGilberry, 741 So.2d at 925. The crime was premeditated and was committed in brutal fashion. The death sentence is warranted even absent a finding of the “great risk of death” circumstance. This issue is without merit.

VI. WHETHER THE STATE PROVED THE UNDERLYING FELONY OF ROBBERY.

¶ 15. McGilberry contends that defense counsel failed to challenge at trial and on direct appeal the State’s assertion that the murders were committed during the course of a robbery. However, we found on direct appeal that counsel raised the issue at trial by way of a motion for directed verdict and then raised the issue on direct appeal by claiming error in the denial of a motion to dismiss the capital portion of the indictment. We said, “Taking all the evidence in the light most favorable to the State, it is apparent that the State presented more than sufficient evidence to support the jury’s finding that the robbery was committed in the course of the murders.” McGilberry, 741 So.2d at 912. The issue is therefore procedurally barred from further review by the doctrine of res judicata. Miss.Code Ann. § 99-39-21(3).

VII. WHETHER THE STATE MADE IMPROPER CLOSING REMARKS.

¶ 16. McGilberry asserts that trial counsel failed to object to the State’s closing argument that the jury should “think of a more appropriate time in your memory for retribution.” The State responds that the issue is procedurally barred from consideration pursuant to Miss.Code Ann. § 99-39-21(1) because the issue was capable of determination at trial and on direct appeal. However, we have the prerogative of relaxing the rules of contemporaneous objection and plain error where the interests of justice so require. Williams v. State, 445 So.2d 798, 810 (Miss.1984). In Pinkney v. State, 538 So.2d 329, 338 (Miss.1988), vacated and remanded on other grounds, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990), we found no reversible error where the State asked the jury to give justice to the deceased victim. The State’s closing remarks in the present case are no more egregious. This issue is without merit.

VIII. WHETHER COUNSEL RENDERED INEFFECTIVE ASSISTANCE DURING THE SENTENCING PHASE.

¶ 17. McGilberry contends that his defense counsels’ performance was deficient at the sentencing phase of his trial.

The standard for determining if a defendant received effective assistance of counsel is well settled. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. 466 U.S. at 687, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Id.

Burns v. State, 813 So.2d 668, 673 (Miss.2001). We have further held that the “failure to present a case in mitigation during the sentencing phase of a capital trial is not, per se, ineffective assistance of counsel.” Williams v. State, 722 So.2d 447, 450 (Miss.1998) (citing Williams v. Cain, 125 F.3d 269, 277 (5th Cir.1997)).

¶ 18. In the present case, McGil-berry does not claim that no case in mitigation was presented but only that it was poorly prepared and executed. McGilber-ry argues first that defense counsel inadequately investigated his background in search of mitigation evidence.

¶ 19. Specifically, McGilberry charges that defense counsel were inexperienced, failed to pursue the appointment of an investigator, and failed to renew a request for a mental health expert. The State correctly counters that these are blanket assertions unsupported by the record. David Ishee and Anthony Lawrence both lacked experience in capital representation but filed approximately 40 pretrial motions between December 1994 and February 1996.

¶ 20. McGilberry also claims that his defense was hampered by the failure to secure an investigator. The evidence was that McGilberry brutally and viciously beat his entire family to death with a baseball bat and that he had planned their murders. There is no showing that additional investigation into McGilberry’s background would have prevented imposition of the death penalty, only that more details of McGilberry’s less than idyllic childhood would have been exposed.

¶ 21. With regard to the claim that counsel failed to pursue an ex parte motion for a mental health expert, we explicitly held on direct appeal that there was no error in disallowing counsel to proceed ex parte. McGilberry, 741 So.2d at 916-17. This issue, although couched as an ineffective assistance claim, is barred as res judicata. Miss.Code Ann. § 99-39-21(3).

¶ 22. Dr. Roy Deal, a psychiatrist employed by the State of Tennessee prison system, served as the mental health expert for the defense. McGilberry now argues that his defense suffered because Dr. Deal’s credentials were insufficient inasmuch as he was not board-certified in psychiatry. McGilberry offers no authority to support such a proposition. Dr. Deal was qualified as an expert at trial and testified during the guilt phase that McGilberry was mentally ill and possessed a history of childhood trauma. Dr. Deal testified that McGilberry was a sociopath with a history of inappropriate conduct as a juvenile. His IQ was 86. Dr. Deal opined that McGilberry was mentally ill on the day of the murders and unable to appreciate right from wrong. The record does not support a finding that Dr. Deal’s testimony was ineffective, and it certainly cannot be concluded that defense counsel was ineffective for relying on Dr. Deal at trial. This issue is without merit.

¶ 23. McGilberry argues that counsel was ineffective because the prosecution was able to exploit Dr. Deal’s lack of experience during its closing argument. This argument is unsupported by any legal authority and is not supported by the record. As previously discussed, Dr. Deal was qualified as an expert and opined that McGilberry was mentally ill at the time of the murders. This issue is without merit.

¶ 24. Defense counsel only presented one witness during the sentencing phase of the trial. Brenda Saucier, a friend and former neighbor of the Purifoys, testified that she knew McGilberry to be a troubled and immature child who did not realize the magnitude of his actions. Given the brutal and premeditated nature of the crimes, defense counsel did well to get just one person to plead with the jury to spare McGilberry’s life. This issue is without merit.

IX. WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE ADMISSION OF EVIDENCE OF PRIOR BAD ACTS.

¶ 25. McGilberry argues that trial counsel was ineffective for not objecting when his own expert testified that he (McGilberry) had once been accused of sexually molesting a small child. The information was disclosed during the guilt phase when defense counsel asked Dr. Deal what medical records he reviewed. Dr. Deal responded that his review included the records of the Keesler Air Force Base Family Advocacy Program which had conducted an investigation. Trial counsel was attempting to establish a defense of insanity at the time of the question.

¶ 26. The record indicates that trial counsel intentionally elicited this testimony as part of a showing that McGilber-ry’s psychological instability was evident at an earlier age. Counsel’s choice of whether to ask certain questions or make certain objections falls within the realm of trial strategy and does not amount to ineffective assistance of counsel. Cole v. State, 666 So.2d 767, 777 (Miss.1995). Such choices are presumed strategic “unless counsel’s tactics are shown to be ‘so ill chosen that it permeates the entire trial with obvious unfairness.’ ” Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir.1995) (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983)). This issue is without merit.

X. WHETHER THE DEATH SENTENCE VIOLATES THE MISSISSIPPI CONSTITUTION.

¶27. McGilberry argues that his death sentence violates the Mississippi Constitution’s prohibition against cruel and unusual punishment because he was only sixteen years old at the time of the offense. McGilberry also argues that the death sentence as applied to him is disproportionate pursuant to Miss.Code Ann. § 99-19-105. This issue was considered and rejected on direct appeal. McGilberry, 741 So.2d at 924-25. The matter is therefore procedurally barred from consideration of collateral review under the doctrine of res judicata. Miss.Code Ann. § 99-39-21(3). Without waiving the procedural bar, we have previously recognized that imposition of the death penalty on a sixteen or seventeen year old presents no per se case of cruel and unusual punishment, and that age is only a factor to be considered in mitigation. Foster v. State, 639 So.2d 1263, 1296 (Miss.1994). This issue is without merit.

XI. WHETHER THE DEATH SENTENCE VIOLATES THE UNITED STATES CONSTITUTION.

¶ 28. McGilberry argues that imposition of the death penalty for an offense committed when he was only 16 years of age constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. This issue was not raised at trial or on direct appeal and is now procedurally barred from consideration. Miss.Code Ann. § 99-39-21(1). Further, the United States Supreme Court has ruled only that no one under the age of sixteen may receive the death penalty without violating that person’s Eighth Amendment rights. Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988). This issue is without merit.

XII. WHETHER THE DEATH SENTENCE IS PROHIBITED BY INTERNATIONAL LAW.

¶ 29. McGilberry argues that his execution is prohibited by the International Covenant on Civil and Political Rights, an international treaty which has been ratified by the United States Senate. This issue was not raised at trial or on direct appeal is now procedurally bared from consideration. Miss.Code Ann. § 99-39-21(1). Without waiving the procedural bar, the issue is without merit because, during the ratification process, the United States Senate specifically reserved the right to impose capital punishment on persons below 18 years of age. International Covenant on Civ. and Pol. Rts., S. Exec. Rept., No. 102-23, 102nd Congress, 2d Sess., 1 (1992). Further, the United States Supreme Court has specifically upheld the applicability of the death penalty to persons 16 years of age. Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988). This issue is without merit.

XIII. WHETHER CUMULATIVE ERROR NECESSITATES A REVERSAL OF THE CONVICTION AND SENTENCE.

¶ 30. McGilberry argues that cumulative errors committed at trial denied him a fair trial. Because this issue was considered and rejected on direct appeal, it is now procedurally barred from further review. Miss.Code .Ann. § 99-39-21(3). Also, since the individual assignments of error are without merit, there can be no cumulative error. As we stated on direct appeal,

We have conducted a thorough review of the record, the briefs, and the argument and determined that there are no individual errors which require reversal of either McGilberry’s conviction or his sentence. McGilberry argues that the collective “bad” acts of the prosecutor dictate reversal under the cumulative error analysis. While his trial was not perfect, we do not find any errors, either individually or cumulatively, which warrant reversal. A criminal defendant is not entitled to a perfect trial, only a fair trial. Sand v. State, 467 So.2d 907, 911 (Miss.1985). The evidence of guilt in this case was overwhelming and, while not before this Court on an assignment of error, our independent review of the sentencing phase reveals no errors. McGilberry received all that he was entitled to a fair trial.

McGilberry, 741 So.2d at 924. This issue is without merit.

XIY. WHETHER COUNSEL WAS INEFFECTIVE IN FAILING TO OBTAIN A TRANSFER TO THE YOUTH COURT.

¶ 31. McGilberry argues that trial counsel was ineffective for failing to develop and present evidence in support of his motion to remand the matter to youth court. Miss.Code Ann. § 43-21-151 confers original jurisdiction on the youth court in all proceedings concerning a delinquent child except where the act committed by the child, if committed by an adult, would be punishable by life or death. In such cases, original jurisdiction lies in the circuit court. Foster v. State, 639 So.2d 1263, 1297 (Miss.1994). Juveniles do not fall within the jurisdiction of the youth court if they commit offenses punishable by death or life imprisonment. Holly v. State, 671 So.2d 32, 41-42 (Miss.1996). Consequently there could be no prejudice to McGilber-ry’s defense for failure to more than just file a motion to transfer the case to youth court.

¶ 32. McGilberry’s reliance on the federal case of Foster v. Johnson, 293 F.3d 766 (5th Cir.2002), for the proposition that counsel was ineffective is misplaced. In that case, the defendant argued that counsel was ineffective for failure to even file a motion for transfer to youth court, whereas McGilberry’s attorney actually filed such a motion. The United States Court of Appeals for the Fifth Circuit affirmed the denial of habeas corpus relief after holding that this Court’s finding of no prejudice was not an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Foster, 293 F.3d at 788. This issue is without merit.

XV. WHETHER COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THE YOUTH COURT ISSUE ON DIRECT APPEAL.

¶ 33. Because trial counsel’s performance in seeking a transfer to the youth court was not deficient, appellate counsel cannot be faulted for not raising the issue on direct appeal. This issue is without merit.

XVI. WHETHER COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO McGILBER-RY’S APPEARANCE IN SHACKLES.

¶ 34. As previously discussed, McGilberry has submitted only the un-sworn affidavit of an alternate juror who was released from service prior to deliberation. There can be no prejudice based on a showing that only a non-deliberating juror saw McGilberry in shackles. It has been held that the brief and inadvertent exposure to jurors of defendants in handcuffs is not so inherently prejudicial as to require a mistrial and that defendants bear the burden of affirmatively demonstrating prejudice. United States v. Diecidue, 603 F.2d 535, 549 (5th Cir.1979). McGilberry has shown no such merit, and appellate counsel cannot be faulted for not raising the issue on direct appeal. This issue is without merit.

CONCLUSION

¶35. Finding no merit in the issues raised by McGilberry, both his pro se petition and his application for leave to seek post-conviction relief in the circuit court are denied.

¶ 36. PETITIONS FOR POST-CONVICTION COLLATERAL RELIEF, DENIED.

PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: BRIDGES, J.,

license: Public Domain

text:
    Keith R. BRYANT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01478-COA.
    Court of Appeals of Mississippi.
    May 7, 2002.
    Rehearing Denied Sept. 24, 2002.
    Certiorari Denied April 17, 2003.

      William Joseph Barnett, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, and IRVING, JJ.
   BRIDGES, J.,

for the court.

¶ 1. The Copiah County grand jury indicted Keith R. Bryant for the crime of armed robbery in November 1999. During Bryant’s first trial on March 15, 2000, he subpoenaed Paul Wilkerson of the state crime lab; Wilkerson testified and the trial ended with a hung jury. The court granted a mistrial and scheduled the second trial for the April 2000 term of court.

¶2. The State requested an agreed order of continuance that the court granted due in large part to a congested docket. A jury heard the case against Bryant on July 17, 2000, and convicted him. The court sentenced Bryant to ten years in prison. On the morning of the trial, the court denied Bryant’s motion for a continuance to secure Wilkerson’s presence for testimony. Wilkerson was unavailable because he was testifying in South Carolina that day.

¶ 3. Bryant moved for a judgment notwithstanding the verdict following his conviction; the court denied the motion on July 20, 2000, and entered final judgment on August 9, 2000. Bryant timely filed his notice of appeal on August 31, 2000.

STATEMENT OF ISSUES

I. DID THE COURT ERR IN DENYING BRYANT A CONTINUANCE TO SECURE THE PRESENCE OF WILKERSON, A KEY DEFENSE WITNESS?

II. DID THE COURT ERR BY DENYING A JNOV FOR THE DEFENSE DUE TO WILKERSON’S ABSENCE?

FACTS

¶ 4. Keith Bryant was arrested for robbing the Ramada Inn of Hazlehurst on November 10, 1999. At his first trial in March 2000, Sandra Marsaw, the witness to the robbery, testified that she spoke with Bryant on November 10, and that later that day he returned to rob the Ramada Inn where she worked. She identified Bryant by the clothes he had on because he wore a stocking over his face during the robbery.

¶ 5. The arresting officer, Detective Milton Twiner, arrested Bryant at the house of Derrick May, where the officer also found a black bag belonging to Fred Bo-gan that contained some of Bogan’s clothes and Bogan’s gun, which was identified by Marsaw as the weapon used in the robbery. Twiner sent the gun to the Mississippi Crime Lab along with a fingerprint card with Bryant’s prints for identification purposes.

¶ 6. Bryant called Paul Wilkerson of the Mississippi Crime Lab to testify. Wilkerson testified that he found no prints matching Bryant’s on the gun. He found no evidence that the gun had been wiped clean, and that Bryant’s prints were not on the magazine of the gun. The defense felt this was crucial to their case, as Wilkerson intimated that Bryant had likely not loaded the gun, much less used it.

¶ 7. Bryant next called Officer Frank Braxton, one of the investigating officers, who testified that besides Marsaw’s statement there was no evidence at the scene linking Bryant with the crime. Finally, Bryant called Derrick May, who testified that he spent the entire day with Bryant except for the short time when Bryant originally spoke with Marsaw, and that the bag found at his residence did not belong to Bryant. The jury did not reach a verdict and the judge ruled it a mistrial.

¶ 8. The court scheduled the second trial for the April term, and Bryant issued a subpoena for Wilkerson in advance of the trial, but the court granted the State a continuance based on an overcrowded court docket. The trial was set for July 17, 2000. Bryant filed a second request for a subpoena for Wilkerson on July 6, and another request on July 10. On July 10, Attorney Barnett’s office telephoned the court clerk and confirmed that the subpoenas were sent out. Barnett’s office received no confirmation of service prior to trial.

¶ 9. On the morning of the trial, Barnett’s office telephoned Wilkerson’s office to remind him that he was due to testify, but was only able to leave a voice mail message. The defense was unconcerned, because they had contacted Wilkerson in this fashion for the first trial. After voir dire was complete and the jury was selected, the defense announced ready for trial, and Barnett’s clerk again tried to contact Wilkerson. At this time, he learned that Wilkerson was in South Carolina testifying, and unable to testify at the trial in Mississippi. The defense immediately moved for a continuance on this basis, which the court denied. The State offered to stipulate to the contents of Wilkerson’s report, and the court asked for a transcript of his earlier testimony. Attorney Barnett confessed that he had no transcript, and refused to stipulate to Wilkerson’s report.

¶ 10. The jury convicted Bryant, and the court sentenced him to ten years in prison for armed robbery. At the motion hearings for the continuance, the court learned that no return of service for Wilkerson had been issued before trial to the defense; later, a return had been filed indicating Wilkerson had not been located. The first attempt at service was made on July 17, the morning of the trial.

¶ 11. Bryant filed a motion for JNOY or in the alternative a new trial; hearing was set for August 18. The defense provided the court with details of its attempt to reach Wilkerson, and an affidavit from Wilkerson regarding his testimony and why he was unavailable for testimony on July 17. The court denied the motions, and Bryant appealed.

ANALYSIS

I. DID THE COURT ERR IN DENYING BRYANT A CONTINUANCE TO SECURE THE PRESENCE OF WILKERSON, A KEY DEFENSE WITNESS?

¶ 12. Motions for continuances are granted or denied on the court’s discretion. Miss.Code Ann. § 99-15-29 (Rev.2000). This is the highest burden for an appellant to overcome; consequently, “[a] denial of the continuance shall not be grounds for reversal unless the supreme court shall be satisfied that injustice resulted therefrom.” Id. The defendant must show by affidavit: first, the name and residence of the absent witness; second, that he used due diligence to procure the witness’s presence; third, that the continuance is not sought for delay, but that justice may be done. Id.

¶ 13. Bryant’s appeal shares many features with Wilson v. State, 716 So.2d 1096, 1097-99 (¶ 8-18) (Miss.1998), where Wilson’s friends were to testify in his defense, but Wilson declined to issue subpoenas, assuring his attorney that his friends would attend the trial. Wilson’s friends constituted the whole of his defense, and their absence effectively robbed him of evidence. Id.

As witnesses important to the defendant’s case, these individuals should have been contacted well before trial ... Wilson’s attorney, having discovered that they would likely not be present at trial, then relied completely on the State to procure these witnesses. Wilson, as the criminal defendant, had the first responsibility and was in the best position to ensure that his attorney was made aware of these witnesses and aware of potential difficulties in obtaining them.

Id.

¶ 14. Bryant did in fact issue subpoenas ten days in advance of the postponed date of the second trial, and again four days later. Yet he never attempted to contact Wilkerson until the morning of the trial. Nor did he seek return of service from the clerk of the court. Bryant could have requested that the court order all called witnesses to appear at the rescheduled date; also, Bryant could have had process servers deliver the subpoenas to Wilkerson, rather than rely on law enforcement officers. Finally, Bryant did not preserve Wilkerson’s evidence on the record either through previous testimony, or through stipulation. Although it cannot be viewed as entirely the defense’s fault for failing to find Wilkerson, as there was no return of service, the burden of the defense providing its own witnesses is still preeminent, unless of course the witness is in State custody.

¶ 15. Bryant refers this Court to Childs v. State, 146 Miss. 794, 112 So. 23 (1927). Childs was accused of murder and convicted after the court refused to grant a continuance to locate two witnesses that would testify to the elements of self defense. Childs, 146 Miss. at 797, 112 So. at 23.

It will be observed that this was very important and vital testimony for the defendant, and the mere reading to the jury from the application, and the admission that this witness, if present, would have so testified, would not cure the error of the court in trying the case, in the absence of this witness, if the testimony was not cumulative as is contended here by the Attorney General’s office ...
It is our opinion, moreover, that the testimony of the witness Crum, who was a disinterested person, could not be considered cumulative under the circumstances, for we think that, instead of Crum’s testimony being cumulative, it would have been strictly corroborative of the testimony of appellant and his infant son.
But whether we say it was corroborative, or additional proof of the fact sworn to by the appellant and his son, and in this sense was cumulative, can make no difference, as we see it, because, in no view, do we think the testimony of Crum would have been useless or unnecessary as being cumulative; it was valuable testimony; Therefore the court erred in putting the appellant to trial without the witness Crum.

Id. at 798, 112 So. 23.

¶ 16. Wilkerson can be distinguished from Crum in his character as a witness. Wilkerson was not going to testify to any elements of either the crime or a defense; rather, he was to testify that no physical evidence linked the gun to Bryant. This was amply demonstrated in his report. Second, although his testimony was not cumulative, it nevertheless would be limited to his report and little else of interest. The mere lack of fingerprints on a gun used in a robbery, even the nature of their absence, is not dispositive that Bryant was not involved in the robbery.

The rule requiring the production of documents and witnesses is for the securing of justice, and the party relying upon testimony which is not before the court on the trial must show that he has exercised due diligence in his efforts to secure it, and if he cannot do so, he must offer a reasonable excuse for his failure to do so, together with affidavits and documents to show what such testimony would have been had the witnesses been before the court.

Ogden v. State, 174 Miss. 119, 125, 164 So. 6, 8 (1935).

¶ 17. We find that the court did not abuse its discretion in denying Bryant a continuance to secure the testimony of Paul Wilkerson, and affirm the court’s ruling.

II. DID THE COURT ERR BY DENYING A JNOV FOR THE DEFENSE DUE TO WILKERSON’S ABSENCE?

¶ 18. It is well settled that evidence not properly before the court cannot be considered grounds for a JNOV. “[I]t is an appellant’s duty to justify his arguments of error with a proper record, which does not include mere assertions in his brief, or the trial court will be considered correct.” American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995). A motion for JNOV is also considered in the light most favorable to the non-moving party. “[The evidence is considered] in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Id. Beyond the fact that Bryant presented no witnesses in the retrial and that the witnesses for the State are uncontroverted, it is impossible to see how a JNOV could be granted for the defense, as the State’s evidence must be treated as true for purposes of the motion.

¶ 19. The importance of Wilkerson as a testifying witness is not at issue; Bryant would have been well served by procuring a transcript of the mistrial, and there was certainly ample time to do so. Bryant’s attorney could have taken this precaution.

CONCLUSION

¶20. Bryant’s two grounds for appeal suffer from the same defect: there is no demonstrable prejudice to his ease from the evidence before the court. Bryant should have had a transcript available from the earlier mistrial; at the very least, he should have known if his witness was going to appear. The mere fact of issuing subpoenas is not sufficient for due diligence; in each case concerning key, unavailable witnesses, the circumstances of unavailability are great where prejudice has been found, and their testimony unique.

¶ 21. Bryant’s appeal of the denied JNOY also lacks merit. No court may consider evidence not properly before it; since Bryant refused to stipulate to Wilkerson’s report, that testimony did not come before the court and could not be considered in the JNOV. Since the evidence must be considered in the most favorable light to the State, as the non-moving party, there is no evidence which mandates reversal.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF THE CONVICTION OF ARMED ROBBERY AND SENTENCE OF 10 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, CHANDLER AND BRANTLEY, JJ„ CONCUR.


author: THOMAS, J.,

text:
    Larry TEER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01226-COA.
    Court of Appeals of Mississippi.
    Aug. 13, 2002.
    Rehearing Denied Oct. 29, 2002.
    Certiorari Denied April 17, 2003.

      Azki Shah, Clarksdale, attorney for appellant.
    Office of the Attorney General, by Charles W. Maris Jr., Jackson, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   THOMAS, J.,

for the court.

¶ 1. Larry Teer was convicted in the Circuit Court of Coahoma County of theft of anhydrous ammonia and sentenced to four years in the custody of the Mississippi Department of Corrections and one year of post-release supervision along with a fine of $3,000. Aggrieved, he asserts the following issues:

I. THE TRIAL COURT ERRED IN DENYING TEER’S LESSER-INCLUDED OFFENSE INSTRUCTION.
II. THE TRIAL COURT ERRED IN FAILING TO GIVE TEER’S ELEMENTS INSTRUCTION.
III. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY INSTRUCTION NUMBER SIC.
IV. THE TRIAL COURT ERRED IN NOT SUSTAINING TEER’S MOTION TO QUASH INDICTMENT.
V. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND THE STATE FAILED TO PROVE TEER WAS GUILTY BEYOND A REASONABLE DOUBT AND TO THE EXCLUSION OF EVERY REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE.
VI. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT OF GUILTY.
VII. THE TRIAL COURT ERRED IN ALLOWING CAROL KARR TO TESTIFY AS AN EXPERT.

Finding no error, we affirm.

FACTS

¶ 2. On the night of August 13, 2000, and the early morning of August 14, officers with the Coahoma County Sheriffs Department and the Mississippi National Guard Drug Enforcement Support Unit staked out farm tanks throughout the county that contained anhydrous ammonia. At approximately 3:30 a.m. in the morning of August 14, a car approached a farm tank on the land leased to Rodney Garrison. The car passed the tank and stopped. Then, with its headlights out, the car came back and parked near the tank. Using night vision goggles and a night vision video camera, officers observed two men exit the car carrying a bag. The officers notified the command post of the activity and a helicopter was dispatched to the scene.

¶ 3. The men were videotaped kicking on the valve area of the tank until it opened. They then removed from their bag an Igloo-style cooler which they placed under the valve and began draining some fluid from the tank. Shortly thereafter, the helicopter arrived and turned on its spotlight. The two men fled to the car, leaving the cooler behind. They left the scene followed by the helicopter, arid were stopped by officers not far from the scene. Three men were found in the car, one of whom was Larry Teer. Teer was also identified by officers as being one of the two men at the tank. A sample of the substance in the cooler was taken, and it was mixed with distilled water and forwarded to the Mississippi Crime Lab along with a sample of the distilled water. An analyst at the crime lab found the distilled water to be just that, and the other substance to be ammonium hydroxide, or anhydrous ammonia in water.

ANALYSIS

I.DID THE TRIAL COURT ERR IN DENYING TEER’S LESSER INCLUDED OFFENSE INSTRUCTION?

¶ 4. Teer asserts that he was entitled to a lesser-included offense instruction on the crime of trespass. The trial court refused Teer’s instruction on the grounds that it would be confusing to the jury. Although the evidence in the ease does show that the taking of the anhydrous ammonia was a trespassory taking in that it was without the consent of the owner, the assertion made by Teer is that trespass onto the real property of Garrison without his permission was a lesser-included offense of the crime of theft of anhydrous ammonia. The trial court noted that one may be legally on the real property of another, such as an invitee or a licensee, and yet still commit a crime which involves a trespassory taking of anhydrous ammonia. We hold that the trial court was correct in refusing the instruction based on trespass onto the real property of another, as it would have been confusing to the jury and was not a lesser-included offense of theft of anhydrous ammonia. Crouse v. State, 229 Miss. 15, 26, 89 So.2d 919, 924 (1956).

¶ 5. A defendant may be entitled to a lesser offense instruction if it “arises from the same operative facts and has an evidentiary basis.” Moore v. State, 799 So.2d 89, 91(¶ 7) (Miss.2001). “Absent a factual basis for an instruction, there is no error in refusing to grant it.” Bolton v. State, 752 So.2d 480, 485(¶ 24) (Miss.Ct.App.1999) (citing Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990)). No evidence was presented to show that Teer was just on the real property of Garrison without his permission. All of the evidence was based on the anhydrous ammonia and the removal of it from the tanks owned by Garrison. As stated above, although trespassory, it did not support a trespass onto real property. Lacking an evidentiary basis in the record, “at best the instruction would be based purely on speculation or surmise.” Wilson v. State, 639 So.2d 1326, 1329 (Miss.1994). This issue is without merit.

II. DID THE TRIAL COURT ERR IN FAILING TO GIVE TEER’S ELEMENTS INSTRUCTION?

III. DID THE TRIAL COURT ERR IN SUBMITTING TO THE JURY INSTRUCTION NUMBER SIC?

¶ 6. Teer argues that the trial court committed reversible error in refusing his requested jury instruction which required the State to prove that Teer took the anhydrous ammonia “with the intent to permanently deprive Rodney Garrison of it.” Teer also argues that the trial court erred in granting the State’s instruction SIC which required that Teer “knowingly or intentionally steal or unlawfully take or carry away any amount of anhydrous ammonia from Rodney Garrison.” Since both issues are in regard to whether or not the jury was required to find if Teer had an intent to permanently deprive Garrison of the ammonia, we will combine these two assertions and examine them together.

¶ 7. In support of his instruction, Teer points this Court to Crouse v. State, 229 Miss. at 23, 89 So.2d at 922, where the Mississippi Supreme Court quoted Jackson v. State, 211 Miss. 828, 52 So.2d 914 (1951), defining larceny as:

[T]he taking and carrying away from any place, at any time, of the personal property of another, without his consent, by a person not entitled to the possession thereof, feloniously, with intent to deprive the owner of his property permanently, and to convert it to the use of the taker or of some person other than the owner.

Jackson v. State, 211 Miss. at 882, 52 So.2d at 915. In Jackson, the question was whether the stolen property was felo-niously taken, or taken with the intent to deprive the owner permanently. Id. Teer was convicted under Mississippi Code Annotated Section 41-29-313(2)(a) (Rev.2000) which states: “It is unlawful for any person to knowingly or intentionally steal or unlawfully take or carry away any amount of anhydrous ammonia.” This statute does not require the same elements as found in a definition of larceny, as it is not a larceny statute and does not have the “feloniously taking” language.

¶ 8. Jury instruction SIC, which was submitted by the State and accepted by the trial court, followed Section 41-29-313(2)(a) closely. The Mississippi Supreme Court has stated, “We have consistently held that instructions in a criminal case which follow the language of a pertinent statute are sufficient.” Crenshaw v. State, 520 So.2d 131, 135 (Miss.1988) (citing Johnson v. State, 475 So.2d 1136 (Miss.1985); Shaw v. State, 250 Miss. 785, 168 So.2d 632 (1964); Lackey v. State, 215 Miss. 57, 60 So.2d 503 (1952)). Instruction SIC did follow the language of the statute, and the trial court was correct in granting it. Similarly, Teer’s instruction attempted to add elements which are not required under Section 41-29-313(2)(a), and the trial court did not commit error in denying it. These issues are without merit.

IV. DID THE TRIAL COURT ERR IN NOT SUSTAINING TEER’S MOTION TO QUASH INDICTMENT?

¶ 9. Teer asserts that the trial court erred in not granting his motion to quash the indictment because, according to Teer, the indictment charged him with either carrying away the anhydrous ammonia or attempting to take away the anhydrous ammonia. According to Teer, the indictment is therefore duplicitous and is fatally flawed and defective. The relevant part of the indictment is as follows:

Roosevelt Davis and Larry Teer, late of Coahoma County, Mississippi, on or about August 14, 2000, in the County and State aforesaid, and within the jurisdiction of this Court, individually or while aiding and abetting and/or acting in concert with each other, did unlawfully, wilfully, feloniously, and knowingly or intentionally steal or take away any amount of anhydrous ammonia from Rodney Garrison located on Sunrise Road in Jonestown, Mississippi, by turning the valve on and dispensing the anhydrous ammonia, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Mississippi.

Teer claims that the language “did steal or take away” states a completed. act while “turning the valve on and dispensing the anhydrous ammonia” states an attempt to steal or take away.

¶ 10. Teer argues that in order to prove a completed act of taking, the perpetrator must remove the object from the owner’s property. However, “it is not necessary to constitute a sufficient asportation, that the goods be removed from the owner’s premises.” Mapp v. State, 248 Miss. 898, 904, 162 So.2d 642, 645 (1964). The State points this Court to the case of Harbin v. State, 402 So.2d 360 (Miss.1981), in which the defendant had only moved an automobile approximately three feet when he was discovered. Harbin, 402 So.2d at 361. The defendant argued that his actions were only an attempt to steal the car. Id. The court disagreed, holding that:

[Tjhere is a caption when the defendant takes possession; he takes possession when he exercises dominion and control over the property; any carrying away movement, however slight, even though it takes but a moment, is sufficient.

Id. at 361-362. Assuming the property satisfies this requirement, it does not matter if the property is abandoned or the crime is halted due to detection or frustration. Id. at 362. There can be an asportation even if the property is not removed from the owner’s premises. Id.

¶ 11. In Teer’s case, evidence was produced at trial that the anhydrous ammonia was dispensed from Garrison’s tank into an igloo cooler, due to the efforts of Teer and his companions. At this point, the ammonia was within Teer’s dominion and control. Although he was subsequently frustrated in his efforts by the law enforcement officers, under the case law cited above this was enough for a “taking” under the applicable statute. The indictment was for a single act of taking, which was accomplished when the ammonia was dispensed into the cooler. This issue is without merit.

V. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND DID THE STATE FAIL TO PROVE TEER WAS GUILTY BEYOND A REASONABLE DOUBT AND TO THE EXCLUSION OF EVERY REASONABLY HYPOTHESIS CONSISTENT WITH INNOCENCE?

VI. WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE VERDICT OF GUILTY?

¶ 12. Teer’s fifth and sixth issues concern both the weight and sufficiency of the evidence. We will combine them and examine them together. Teer asserts that the trial court abused its discretion in denying his motion for directed verdict at the close of the State’s case and in denying his motion for judgment notwithstanding the verdict or, in the alternative, new trial. In Ford v. State, 753 So.2d 489, 490(¶ 8) (Miss.Ct.App.1999), we held that:

[I]n determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.

(citing Danner v. State, 748 So.2d 844, 846 (¶ 7) (Miss.Ct.App.1999)). See also Turner v. State, 726 So.2d 117, 125(¶ 29) (Miss.1998); Herring v. State, 691 So.2d 948, 957 (Miss.1997); Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). “Any less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal justice system.” Hughes v. State, 724 So.2d 893, 896(¶ 14) (Miss.1998). “In determining whether a jury verdict is against the overwhelming weight of the evidence, the court accepts as true the evidence favorable to the State.” Wetz v. State, 503 So.2d 803, 812 (Miss.1987). See also McClain, 625 So.2d 774, 781 (Miss.1993); Van Buren v. State, 498 So.2d 1224, 1229 (Miss.1986). It has also been established that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d 989, 991 (Miss.1987). See also Hilliard v. State, 749 So.2d 1015, 1017(¶ 9) (Miss.1999); Lewis v. State, 580 So.2d 1279, 1288 (Miss.1991); Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979).

¶ 13. A motion for a directed verdict, request for peremptory instruction, and motion for judgment notwithstanding the verdict all challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d at 778. “Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” Id. This occurred when the lower court denied the motion for JNOV. Wetz v. State, 503 So.2d at 807-08. “If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.” Meshell v. State, 506 So.2d at 990. See also Haymond v. State, 478 So.2d 297, 300 (Miss.1985); Fairley v. State, 467 So.2d 894, 902 (Miss.1985). This Court should reverse only where, “with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty.” Alexander v. State, 759 So.2d 411, 421(¶ 36) (Miss.2000) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)).

¶ 14. The evidence in Teer’s case is amply sufficient for a reasonable juror to find him guilty of theft of anhydrous ammonia. Teer was recorded on night video and watched by several law enforcement officers with night vision goggles participating in a stakeout. He was watched as he approached a tank with a bag and kicked on the valve of the anhydrous ammonia tank owned by Garrison. Teer was caught near the scene and identified by law enforcement officers, and a substance identified as anhydrous ammonia was found in a container than had been placed under the valve of the tank.

¶ 15. Teer contends that the State failed to prove the element of lack of consent. Teer’s specific allegations in his motion for directed verdict did not include the failure of the State to show lack of consent. “In the absence of such specificity, the trial court will not be put in error for overruling [a motion for directed verdict].” Banks v. State, 394 So.2d 875, 877 (Miss.1981). Even if Teer had stated this issue specifically in his motion for directed verdict, there was evidence submitted from which the jury could infer that Teer and his companions lacked consent. They approached the tank with their headlights off at 3:30 in the morning and fled when a helicopter approached. Garrison testified at trial and did not state that he had given consent. If examined in a light favorable to the State with all reasonable inferences, enough evidence was presented for a reasonable juror to determine that Teer did not have Garrison’s consent to take the anhydrous ammonia. Wetz v. State, 503 So.2d at 812.

¶ 16. Teer has failed to show this Court that the verdict was against the overwhelming weight of the evidence and that the State failed to prove he was guilty beyond a reasonable doubt. Similarly, the evidence presented at trial was sufficient for a reasonable juror to find Teer guilty of theft of anhydrous ammonia. We hold Teer’s fifth and sixth assignments of error to be without merit.

VII. DID THE TRIAL COURT ERR IN ALLOWING CAROL KARR TO TESTIFY AS AN EXPERT?

¶ 17. Teer contends that the trial court erred in allowing Carol Karr, a forensic scientist who specializes in drug analysis for the Mississippi Crime Lab, to testify as an expert.

The admission of expert testimony is addressed to the sound discretion of the trial judge. Unless we conclude that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand.

Seal v. Miller, 605 So.2d 240, 243 (Miss.1992) (citing Hooten v. State, 492 So.2d 948, 950-51 (Miss.1986)). “[T]he test is whether a witness ‘possesses peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by a layman.’ ” May v. State, 524 So.2d 957, 963 (Miss.1988) (citing Detroit Marine Engineering v. McRee, 510 So.2d 462, 467 (Miss.1987); Henry v. State, 484 So.2d 1012, 1015 (Miss.1986)).

¶ 18. In addition to Karr’s testimony, there was other testimony that the substance recovered in the cooler was in fact anhydrous ammonia. A Coahoma Sheriffs Department investigator, as well as a National Guard member testified repeatedly, and without objection, about the anhydrous ammonia tank. There was testimony in regard to the strong “ammonia” odor coming from the cooler that Teer and his companions had placed under the valve of the tank. Rodney Garrison, the owner of the tanks, testified without objection that the tanks were designed to hold anhydrous ammonia and held anhydrous ammonia on the night in question. One of Teer’s companions testified that they intended to steal ammonia.

¶ 19. Carol Karr has been employed for ten years with the Mississippi Crime Lab as a drug analyst. She has a degree in chemistry with a minor in biology, and received training at the Forensic Division of the Drug Enforcement Administration in Washington, and at the Forensic Division of the Federal Bureau of Investigation in Quantico, Virginia. She testified that she has chemically analyzed substances thousands of times and specifically analyzed anhydrous ammonia “more than fifteen” times. She has testified in court more than one hundred times. The trial court made note of Karr’s “extensive training and education and her expertise in the analysis of ... controlled substances in particular.” The court also noted her authorship of an article in a journal in the chemical field. The trial court’s decision to allow Carol Karr to testify as an expert witness was therefore not arbitrary nor clearly erroneous, and it does not amount to an abuse of discretion. This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF THEFT OF ANHYDROUS AMMONIA AND SENTENCE OF FOUR YEARS WITH ONE YEAR OF POST-RELEASE SUPERVISION TO RUN CONSECUTIVELY TO ANY AND ALL PREVIOUS SENTENCES AND FINE OF THREE THOUSAND DOLLARS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, J.,

text:
    Glenn SHIRLEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00873-COA.
    Court of Appeals of Mississippi.
    Aug. 20, 2002.
    Rehearing Denied Oct. 8, 2002.
    Certiorari Denied April 17, 2003.
    Dan W. Duggan Jr., Brandon, Attorney for Appellant.
    Office of the Attorney General, by W. Glenn Watts, Jackson, Attorney for Appel-lee.

      Before SOUTHWICK, P.J., LEE, and MYERS, JJ.
   LEE, J.,

for the Court.

¶ 1. Glenn Shirley was convicted of gratification of lust and was sentenced to fifteen years’ imprisonment by the Hinds County Circuit Court. He appeals, asserting two issues: the circuit court erred in its application of the tender years doctrine and hearsay exception of M.R.E. 803(25), and the circuit court erred in refusing his motion for a directed verdict or in the alternative a judgment notwithstanding the verdict. Finding that neither issue has merit, we affirm.

FACTS

¶ 2. During April and May of 1999, Shirley had a number of people living in his household: his girlfriend, L.P.; L.P.’s eight year-old daughter, A.P.; Shirley’s daughter, Melissa McMillian; Melissa McMillian’s husband, Donald McMillian; and another man, Bruce Pice. One day at school, A.P. told some of her second grade classmates that Shirley had molested her. The record is not entirely clear whether these children’s parents telephoned A.P.’s second grade teacher, Trendi Johnson, or whether Johnson herself noticed something amiss with the children and questioned A.P. on her own initiative, but it is clear that A.P. told her teacher of the allegation as well. A.P. said that she had not told anyone of the molestation before because Shirley had threatened to “paddle” her if she did so. A.P. could not state the number of times Shirley molested her, but she testified that it occurred at least twice.

DISCUSSION

I. JOHNSON’S TESTIMONY

¶ 3. The State called Johnson to testify as to the what A.P. had told her of the alleged molestation, and Shirley objected to Johnson’s testimony on the basis that it was hearsay. The circuit court found the testimony admissible under M.R.E. 803(25), an exception to the hearsay rule that provides:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

Appellate review of determinations of whether to admit hearsay is limited to whether an error of law occurred, and if it did not, then appellate review is limited to the abuse of discretion standard. Baine v. State, 606 So.2d 1076, 1078 (Miss.1992). During the trial, Johnson objected only on the issue of whether the hearsay was admissible.

¶ 4. The record shows that the circuit court correctly applied the rule from Veasley v. State, 735 So.2d 432 (Miss.1999). In Veas ley, the court held that for a child under twelve years of age, a rebuttable presumption existed that the child was of tender years, and if the presumption was not rebutted, then the trial court must conduct a hearing outside of the presence of the jury to determine whether the statement has sufficient indicia of reliability as required by M.R.E. 803(25). Id. at 437(¶ 16). In the present case, the circuit court expressly referenced the Veasley holding, finding that since A.P. was only eight years old at the time of the alleged molestation, a rebuttable presumption existed that she was of tender years. The circuit court asked Shirley if he wished to rebut this in any way, but Shirley declined to do so.

¶ 5. Outside the presence of the jury, the circuit court then conducted the hearing by allowing the State to call Johnson. After Johnson’s testimony, the circuit court ruled that her testimony was credible and should be admitted. At that point, Shirley again objected. “I would object. I think it’s just blatant hearsay. I don’t think there’s any need for it. I think [A.P.] was a very credible witness ... and I don’t think there’s any reason for this teacher to be allowed to come in here and utter these hearsay statements.” While Shirley did not expressly object to A.P. being of tender years when the circuit court asked for any objection, his objection was made prior to the jury hearing Johnson’s testimony, and the substance of the objection was that A.P. was a credible witness who was well able to tell what she accused Shirley of doing, and as such, she should not have been considered to be of tender years. However, the record reveals that A.P. did not know the correct anatomical terms for various body parts, and that she was unable to identify the exact number of times she was molested, and that she initially feared she would “get in trouble or something” if she told her mother about the molestation, nor was she certain that Shirley’s molestation of her was “wrong” at the time it occurred because Shirley assured her that he was doing nothing wrong. The age of the child that is to be considered for the determination of tender years is the age at the time the out-of-court statements were made, not the date of the trial. McGowan v. State, 742 So.2d 1183, 1186(¶ 18) (Miss.Ct.App.1999). At the time of her testimony A.P. was nine, one year older than when she was molested, and even at that time her youth prevented her from clearly expressing herself. We find the circuit court was well justified in finding A.P. to be of tender years, and there is no merit to the contention that the doctrine of tender years should not apply to this case.

¶ 6. On appeal, Shirley also asserts that the circuit court erred in failing to apply twelve criteria going to indicia of reliability that are listed in the comments to M.R.E. 803(25). The comment provides:

Some factors that the court should examine to determine if there is sufficient indicia of reliability are (1) whether there is an apparent motive on declar-ant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declar-ant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

M.R.E. 803(25) comment. This issue was not preserved by a contemporaneous objection, and the trial court will not be found in error unless the appellant contemporaneously objected and allowed the trial court to address the issue that is contended to be an error. Gatlin v. State, 724 So.2d 359, 369 (¶ 43) (Miss.1998). Additionally, the record shows that the circuit court expressly ruled on Johnson’s testimony and indicia of reliability, finding that there was no motive to lie, Johnson’s character was not disputed, the statements were spontaneous and not coerced, Johnson and A.P. had a teacher-child relationship, and Johnson’s testimony was credible. Even assuming the issue was not waived, the circuit court conducted a thorough analysis of the indicia of reliability it found to apply to the facts of the case.

¶ 7. Shirley further appears to contend that the United States Supreme Court decision in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), required the circuit court to conduct an analysis of indicia of reliability and issue findings on each specific twelve criteria contained in M.R.E. 803(25). This is a misstatement of that case. Wright does not explicitly list all of these criteria, but instead expressly stated courts had “considerable leeway” in making their determinations and declined to adopt a “mechanical test.” Id. at 822, 110 S.Ct. 3139. Moreover, there is no suggestion that M.R.E. 803(25) fails to comport with any constitutional protections. Therefore, to the extent that Shirley raises violation of his rights under the Sixth Amendment to the United States Constitution, this issue is without merit.

II. SUFFICIENCY OF THE EVIDENCE

¶ 8. Shirley contends the circuit court erred in not granting his motion for a directed verdict or in the alternative a judgment notwithstanding the verdict. Our supreme court stated the applicable standard of review in McClain v. State, 625 So.2d 774 (Miss.1993).

In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the accused’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to 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.

Id. at 778 (citations omitted).

¶ 9. The record shows that A.P. consistently stated that on at least two occasions Shirley came into her bedroom and touched and rubbed her in her genital area and forced her to touch his penis. This testimony was confirmed by Johnson’s testimony. Additionally, a psychologist with the Children’s Advocacy Center in Jackson testified as to AP.’s reactions to an examination and her reactions to anatomical dolls and drawings, and this testimony was also consistent with AP.’s testimony. The evidence was sufficient to find Shirley committed the offense of gratification of lust, and there is no merit to this assignment of error.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF GRATIFICATION OF LUST AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: SOUTHWICK, P.J.,

text:
    Robert ANTHONY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00580-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2002.
    Rehearing Denied Dec. 3, 2002.
    Certiorari Denied April 17, 2003.

      Phillip Broadhead, Thomas M. Fortner, Jackson, attorneys for appellant.
    Office of the Attorney General, by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. A circuit court jury found Robert Anthony guilty of murder. He was sentenced as an habitual offender. On appeal, Anthony argues that his constitutional right to a speedy trial was abridged, that evidence was erroneously admitted, and that the court should have directed a verdict for him or granted a new trial. We find Anthony’s arguments lack merit and affirm.

STATEMENT OF THE FACTS

¶2. On March 22, 1999, between 11:00 p.m. and midnight, Robert Anthony threatened to kill his girlfriend, Brenda Harper, if she interfered with his tax refund check. He was quoted as saying “if I catch you going to that mailbox, I am going to kill you.” The next day, Harper was killed by a gunshot wound to the head. A witness reported that between 5:00 and 5:45 p.m. he heard the gunshot and saw a woman’s body being put into a dark colored sport utility vehicle with wood grain panels by a “tall thin black man.” Harper was later discovered, dying but not yet dead, at the side of an abandoned house.

¶ 3. A few days later, Anthony was arrested for Harper’s murder. An indictment was returned on October 12, 1999, but the trial was not held until May 21-23, 2001. The State’s case against Anthony was largely circumstantial. There was uncertainty about the make of the assailant’s vehicle, though all witnesses agreed that it was a dark colored sport utility vehicle with paneled sides. Investigators found traces of Harper’s blood in Anthony’s Jeep, but could not establish how long it had been there. A tire track impression from the scene where Harper was found did not match Anthony’s vehicle. Safety glass consistent with broken automobile windows was found on Harper at the hospital. Anthony had replaced two windows of his Jeep within three days after the murder, and a witness from the repair shop noticed plastic sheeting on the seats.

¶ 4. Anthony was found guilty and his appeal has been deflected here.

DISCUSSION

1. Speedy Trial

¶ 5. Anthony challenges the court’s denial of a motion to dismiss for failure to provide a speedy trial. Most of Anthony’s argument focuses on a claimed constitutional error. There is reference to the statutory requirements as well, and thus we will discuss both kinds of claims.

¶ 6. These are the applicable dates.

03/28/99 Anthony arrested
10/12/99 Grand jury returns indictment
11/01/99 Capias executed
01/13/00 Motion for speedy trial
04/05/00 Motion for speedy trial
06/22/00 Continuance granted
11/15/00 Letter filed with clerk
02/05/01 Motion to dismiss (pro se)
02/08/01 Continuance granted
02/26/01 Motion to dismiss
04/10/01 Motion to dismiss for failure of speedy trial
05/21/01 Trial

A. Constitutional right to speedy trial

¶ 7. The United States Supreme Court has articulated considerations for judging whether the constitutional right to a

speedy trial has been denied.. Pour factors are to be examined in light of the totality of the circumstances: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of right; and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We examine each in turn.

(1) The length of the delay

¶ 8. Over two years passed between Anthony’s arrest and his trial. A delay of more than eight months between those events creates a presumption of prejudice and obligates the court to consider the other three factors. Sharp v. State, 786 So.2d 372, 380 (Miss.2001).

¶ 9. We note that a long delay by itself does not create a denial of this constitutional right. Longer delays have survived challenge. See, e.g., Smith v. State, 489 So.2d 1389 (Miss.1986) (7 years); Barker v. Wingo (5 years); Hughey v. State, 512 So.2d 4 (Miss.1987)(33 months).

(2)The reason for the delay

¶ 10. Among the reasons for the delays were continuances for DNA testing, plea negotiations between the parties, and agreed continuances. Neither party disputes that the time from arrest in March of 1999 through the obtaining of results from DNA testing of blood samples which became available in August of 1999 was tolled in favor of the State. Furthermore, plea negotiations were an important and lengthy contributor to the delay. Anthony’s involvement in the plea bargaining caused some delay. Finally, Anthony admitted to four months of delays in continuances. “If the defendant is the cause of the delay, he cannot complain thereafter.” Reed v. State, 506 So.2d 277, 281 (Miss.1987). We find sufficient justifications for the delay as to prevent this factor from weighing against the State. At worst it would be neutral.

(8) The defendant’s assertion of right

¶ 11. The docket reflects that Anthony filed a motion for speedy trial in January and April 2000, and filed motions to dismiss in April 2000, February 2001, and April 2001, the last being a few weeks before trial began. In addition, Anthony mailed a letter to the court in November 2000, which from statements during the sole transcribed hearing on motions appears also to have been a request for a speedy trial. There is only one ruling in the record on any of these motions. That occurred on the first day of trial, and after a brief oral argument a motion to dismiss for abridgment of speedy trial rights was denied. It is a party’s duty to obtain rulings on motions and to ensure the completeness of the record. Gayten v. State, 595 So.2d 409, 413 (Miss.1992).

¶ 12. Motions that request dismissal on speedy trial grounds as opposed to seeking the court’s assistance in requiring a trial have been found insufficient to constitute an assertion of the right under this Barker factor. Perry v. State, 637 So.2d 871, 875 (Miss.1994). At least three of the motions sought dismissal and not a trial.

¶ 13. We find no weight to this factor.

(h) The prejudice to the defendant

¶ 14. The right to a speedy trial affects these interests: (a) protect against oppressive pretrial incarceration; (b) minimize anxiety and concern of the defendant; and (c) limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. 2182. Incarceration alone is insufficient prejudice to warrant reversal. Birkley v. State, 750 So.2d 1245, 1252 (Miss.1999).

¶ 15. The only relevant prejudice argued is a general impact on the defense resulting from potential memory loss by witnesses. There is no specific allegation of a witness who was critical to the defense whose memory failed or availability was lost. Anthony has failed to demonstrate any prejudice other than that presumed under the first Barker factor.

¶ 16. After balancing the factors in the Barker analysis, we find that Anthony’s constitutional right to a speedy trial was not violated.

B. Statutory right to speedy trial

¶ 17. By statute and absent good cause, the State must bring a defendant to trial within 270 days of the arraignment, excepting the period covered by continuances duly granted. Miss.Code Ann. § 99-17-1 (Rev.2000). From arraignment to trial was 430 calendar days.

¶ 18. Anthony admitted to four months of delays based on proper continuances. This reduces the time from 430 days to 310 days. In addition, as plea negotiations broke down, the State properly set the case for the first available trial date, May 21, 2001. An overcrowded docket may provide good cause for delay by the State. Kinzey v. State, 498 So.2d 814, 817 (Miss.1986). Thus, the time period from Anthony’s motion to dismiss on February 26, 2001, to the date of trial was properly justified by the State, and reduces the total by 84 days to 226 days, well within the 270 day limit. Consequently, we hold that there was no violation of the statutory speedy trial right.

2. Admissibility of Prior Bad Acts

¶ 19. Anthony alleges error based on Rule of Evidence 404(b) and 403. During a hearing on pretrial motions, Anthony attempted to exclude evidence that the day before Harper died, he had threatened to kill her. The court did not rule at that time. “Well, threats made in conjunction with the March 23rd assault, of course, I understand.... If it fits within the framework of being that close to the incident, then, I feel like it does have relevance.” Though he gave this initial reaction to the proposition, the trial judge did not rule on the motion in limine. He wanted to have the benefit of evidence of the proximity of the threat to the victim’s death. When the witness who heard the threat later testified, that was the time to object and get a final ruling. No objection was made.

¶ 20. Failure to object is normally a waiver of an appellate issue of admissibility of that evidence. Here, evidence of a “bad act,” i.e., the threat, that occurred prior to the crime being prosecuted was introduced. That evidence may be relevant to show motive, opportunity, intent, or other relevant fact. M.R.E. 404(b). Such evidence may be admitted unless its probative value is substantially outweighed by its prejudicial effect. M.R.E. 403. There is caselaw suggesting that an on-the-record balancing is required; a court should give an instruction informing jurors of the limited purpose of that evidence. McKee v. State 791 So.2d 804, 810 (Miss.2001).

¶ 21. We find no basis to reverse for failure of the trial judge to perform an on-the-record balancing or to give a limiting instruction when the defense does not even object to the evidence. We acknowledge that this was an important statement. There were no eyewitnesses to make a direct tie between Anthony and the murder. The evidence was relevant to show a motive or an intent by Anthony for the crime. Had an objection been made, quite possibly the trial judge would have found this to be proper Rule 404(b) evidence. Certainly the evidence was incul-patory, but the prejudicial effect that Rule 403 forces a court to weigh is only the unjustified harm to a party arising from evidence that might be given inappropriate weight or could otherwise pervert the fact-finding.

¶ 22. That the person charged with murder had only hours earlier threatened to kill the victim is clearly prejudicial to the defendant’s chances for acquittal, but not prejudice in the sense of a skewing of the fact-finding. We also find significant probative value to the statement in showing intent or motive. Thus, though no objection was raised, admission of this evidence does not rise to fundamental error requiring plain error analysis.

¶ 23. Furthermore, if acts are so interrelated as to be a continuing occurrence, evidence of the earlier act is admissible to allow the jury to receive the complete story of the crime. Underwood v. State, 708 So.2d 18, 32 (Miss.1998). That Harper and Anthony had this confrontation one day and Harper was killed the next is sufficiently close in time to be a continuing occurrence.

¶ 24. The admission of the evidence was not error.

3. Exclusion of Evidence under M.R.E. m

¶ 25. Anthony’s third assignment of error challenges the trial court’s exclusion of evidence offered by the defense. Anthony intended to show that the victim, Harper, had been assaulted in 1997 by an unidentified individual driving a Ford Bronco. The vehicle is important because the eyewitness who watched someone who resembled Anthony dispose of Harper’s body initially told the police that the person was using a Ford Bronco. As the witness developed his trial testimony however, he was less certain in identifying the make and model but was sure of its dark color and paneled sides, a description which matched that of Anthony’s specific vehicle, which was a Jeep Cherokee.

¶ 26. The trial court excluded the evidence “under 403 relevancy, finding that the remoteness of the incident” rendered it of limited probative value. Rule 403 also allows exclusion when evidence will confuse the issues or mislead the jury. M.R.E. 403. Anthony argues that he is entitled to present any relevant evidence tending to exonerate him. Brown v. State, 464 So.2d 516, 520 (Miss.1985). That is too broad a rule. “While the accused enjoys wide latitude in the presentation of witnesses, it is within the discretion of the trial judge to exclude proffered defense testimony, especially when it is collateral to the issues at hand.” Davis v. State, 680 So.2d 848, 850 (Miss.1996). The defense admitted that the prior assault was a collateral matter. “It is a completely separate case that clearly it was not [Anthony] who did it at that time.... ”

¶ 27. The evidence if believed would have shown that in 1997 someone in a Ford Bronco had assaulted Harper, while a witness to part of the 1999 crime thought that the vehicle then used was a Ford Bronco. It is also evident that despite the make and model description, the 1999 witness also described a vehicle similar in kind, color, and paneling as Anthony’s Jeep. To be relevant, the evidence of an earlier assault would have needed to create suspicion that whoever may have harmed Harper in 1997 and who drove a certain vehicle, was still trying to harm Harper in 1999 and was also still driving the same vehicle. The uncertainties in the 1999 witness’s description of the Ford Jeep were thoroughly explored by defense counsel, and to that extent the defense received the benefit of creating doubt through this witness.

¶ 28. On the other hand, to examine the 1997 incident would have injected a matter of questionable relevance. Two years had passed between the events; no evidence existed that someone in a Ford Bronco continued to harass Harper in the intervening time. The latter fact isolates the earlier event and makes it less probative of anything. We find no error in the trial judge’s applying his judgment that the earlier event was too distant in time and the potential connection to Harper’s death too speculative. Jackson v. State, 784 So.2d 180, 183 (Miss.2001) (appellate court is only to determine if the trial court abused its discretion in considering probative value and prejudicial effect).

J. Denial of motions for acquittal or for new trial

¶29. Anthony’s final assignment of error is a challenge to the weight and sufficiency of the evidence. When a jury returns a guilty verdict, we may enter an acquittal only if, taking all evidence and inferences in a light most favorable to the prosecution, we are convinced that no reasonable, hypothetical juror would find guilt. Tait v. State, 669 So.2d 85, 88 (Miss.1996). Here, viewing all evidence in favor of the State, we note Anthony’s threat to Harper on the night before she was killed that estabhshed motive or intent. Though one witness identified a different make and model vehicle than Anthony drove as the one in which Harper had been carried, the witness described a similar kind of vehicle and gave descriptions of certain features that matched Anthony’s Jeep. Investigators found Harper’s blood inside Anthony’s vehicle. The safety glass found in Harper’s clothes at the hospital was consistent with the account of Anthony’s replacing broken windows in his Jeep three days later. The plastic sheeting would have avoided bloodstains in the Jeep. The State demonstrated that it was possible for Anthony’s vehicle to have been present at the house at which Harper was discovered without leaving impressionable tire tracks. Given this evidence, and applying the appropriate inferences, we cannot hold it unreasonable for a jury to return a verdict against Anthony.

¶ 30. As to Anthony’s motion for a new trial, we should affirm the denial unless the overwhelming weight of the evidence renders the verdict an “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). The evidence is not of that caliber, and the trial court was well within its discretion to deny Anthony’s motion.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF MURDER AND SENTENCE AS AN HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO HINDS COUNTY.

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


text:
    Darrell Ray MORRIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00954-COA.
    Court of Appeals of Mississippi.
    Oct. 8, 2002.
    Rehearing Denied Dec. 10, 2002.
    Certiorari Denied April 17, 2003.

      George S. Shaddock, Pascagoula, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, and THOMAS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Darrell Ray Morris was indicted on two counts of kidnaping and two counts of aggravated assault by the grand jury of Jackson County. The court convicted Morris of one count of aggravated assault and one count of simple assault. The court sentenced Morris to twenty years, with eight years suspended on the aggravated assault and six months concurrent on the simple assault. The court denied Morris’s motion for a new trial, and he timely perfected his appeal to this Court.

STATEMENT OF THE ISSUES

I. DID THE COURT ERR BY PERMITTING THE STATE TO INTRODUCE A .22 CALIBER WEAPON SIMILAR TO THE WEAPON USED IN THE ASSAULT FOR DEMONSTRATIVE PURPOSES?

II. DID THE COURT ERR IN REFUSING TO ISSUE CERTAIN DEFENSE INSTRUCTIONS TO THE JURY?

III. IS THE VERDICT CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE?

IV. DID MORRIS RECEIVE AN EXCESSIVE SENTENCE?

FACTS

¶ 2. Morris, who was separated from his wife, and his brother, Jake Morris, got into an argument with Morris’s brother-in-law, Carl Callegan, at a Chevron station in Wade, Mississippi. Callegan and his companion, Melody Johnson, drove away from the station, and Morris followed them. Morris eventually ran them off the road, and arming himself with a single-action .22 caliber pistol approached Callegan’s truck. Morris shot Callegan from the passenger window, puncturing his femoral artery, ordered Johnson from the truck, and dragged Callegan out of the truck.

¶ 3. Morris further assaulted Callegan and then ordered Callegan and Johnson into the truck, which Morris then drove to Old Americus Road. At that point, Morris expelled the seriously wounded Callegan and Johnson from the truck. Johnson sought help and eventually was able to convince a driver to pull over. This driver, Michael Krebs, got Callegan to a hospital before he bled to death.

ANALYSIS

I. DID THE COURT ERR BY PERMITTING THE STATE TO INTRODUCE A .22 CALIBER WEAPON SIMILAR TO THE WEAPON USED IN THE ASSAULT FOR DEMONSTRATIVE PURPOSES?

¶ 4. Morris argues that the .22 caliber pistol that the State introduced in the guilt phase of the trial was more prejudicial than probative under M.R.E. 403. Morris, however, did not object on this ground at trial. Morris’s objection appears to consist solely of the fact that the weapon that the State wished to present was not the instrument of the crime, but was in fact another weapon. The court explained this to the jury, and limited the appearance of the weapon to demonstrative purposes to illustrate the manner in which a single-action pistol is fired.

¶ 5. The admission of demonstrative evidence that is reasonably necessary and material is within the firm discretion of the trial court. Lewis v. State, 725 So.2d 183, 189 (¶ 26) (Miss.1998). Moreover, a court’s determination that demonstrative evidence is appropriate and relevant will be upheld absent an abuse of discretion and prejudice to the defendant. Hansen v. State, 592 So.2d 114, 131-32 (Miss.1991).

¶ 6. There is in fact nothing to suggest prejudice in a situation where the victims of the crime testified to the presence and firing of a gun. Nor is there any prejudice possible when Morris admitted that he had approached the victims armed with a single-action .22 caliber pistol. The sole purpose of the pistol was to demonstrate the manner in which a single-action pistol is fired, and we are satisfied that given the nature of the testimony regarding the involvement of a .22 caliber single-action pistol in the crime, as well as the limiting instructions given by the court, that no prejudice inured to the defendant.

¶ 7. We find no error in the admission of the demonstrative evidence.

II. DID THE COURT ERR IN REFUSING TO ISSUE CERTAIN DEFENSE INSTRUCTIONS TO THE JURY?

¶ 8. Morris argues that he was denied an instruction on the definition of reasonable doubt, although he did receive the standard instruction stating that the State had to prove its case beyond a reasonable doubt. This Court reviews decisions regarding jury instructions for abuse of discretion. Instructions to a jury are reviewed as a whole, not piecemeal. Malone v. State, 486 So.2d 360, 365 (Miss.1986). Morris intriguingly argues that he could not have been guilty beyond a reasonable doubt because Mississippi does not permit an instruction defining the limits of reasonable doubt. Morris argues that by not requiring the court to define the limits of reasonable doubt, Mississippi is in effect trampling upon the requirement that the State prove its case beyond a reasonable doubt. Mississippi however has a longstanding policy of relying upon jurors to determine whether their doubt is reasonable, and prohibits any instruction that would presume to define the nature of reasonable doubt. Isaacks v. State, 337 So.2d 928, 930 (Miss.1976).

¶ 9. We find no error in the refusal of the requested instruction.

III. IS THE VERDICT CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 10. In reviewing denials of motions for new trial, this Court will not order a new trial unless the verdict is so contrary to the overwhelming weight of the evidence that allowing the verdict to stand sanctions an unconscionable injustice. Gossett v. State, 660 So.2d 1285, 1294 (Miss.1995). In motions for a new trial, the evidence is viewed in the light most consistent with the verdict. Veal v. State, 585 So.2d 693, 695 (Miss.1991). Morris argues that the State’s case is a walking contradiction; no two witnesses agree on certain specific points of the assault, which either did or did not include death threats. He neglects to mention that at the time the threats were uttered, one of the victims of the assaults was in shock and thus unable to hear any threats.

¶ 11. Morris relies on the large number of contradictions about fairly insignificant facts in the testimony to bolster his allegation of error. But this Court is not in the business of retrying cases; the ultimate fact-finder in a criminal trial must remain the jury. The jury heard all of the evidence, and witnessed the demeanor of the witnesses, as well as the give and take of the trial process. We will not substitute our judgment for that of the jury unless great injustice may result from an absolute misreading of the evidence, a situation which has not arisen here, particularly given the fact that Morris’s own statement inculpated him in the assaults.

¶ 12. It is settled that the jury may freely believe and disbelieve testimony to reach a verdict. See Groseclose v. State, 440 So.2d 297, 300 (Miss.1983) (holding jurors are the sole arbiters of witness credibility); Williams v. State, 512 So.2d 666, 670 (Miss.1987) (holding contradictory testimony does not invalidate a verdict); Spiers v. State, 231 Miss. 307, 313, 94 So.2d 803, 806 (1957) (holding that strength of testimony is not the result of a calculus of witnesses). This Court cannot substitute its judgment barring gross malfeasance in assessing the evidence, of which there is no indication in this case.

¶ 13. We affirm the judgment of the trial court denying a new trial.

IV. DID MORRIS RECEIVE AN EXCESSIVE SENTENCE?

¶ 14. Sentencing is an exercise of a court’s discretion within strictly circumscribed guidelines, and so long as the court does not exceed those guidelines, the sentence is presumed legal. Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984). Morris concedes that his sentence is within the legal bounds of a sentence for aggravated assault. His argument that the court relied on improper evidence in the sentencing hearing to determine the extent of Morris’s sentence under the guidelines holds no water, as Morris also acknowledges that the court is permitted great leeway in evaluating sentencing.

¶ 15. However, the matter of the restitution ordered (or, more correctly, not ordered) by the court is entirely different. The court plainly failed to properly vindicate its duties in the order for restitution, stating in the sentencing order that restitution was to be determined at a later time in that term of court. It was not. At the sentencing hearing, there was considerable confusion as to the amount owed for restitution, which confusion contributed greatly to the court’s error. However, as the court did not give a time for restitution, nor a method of payment, nor amount of payment, we must find that the order contemplating restitution in its current form constitutes an illegal imposition of sentence. Green v. State, 631 So.2d 167, 176 (Miss.1994). Thus, we reverse and remand for the court below to fix the terms of restitution.

¶ 16. As to the amount of time to be served, we find no error; as to the requirement of restitution, we reverse and remand.

CONCLUSION

¶ 17. Morris brings four assignments of error. First, he argues that demonstrative evidence'was improperly introduced at his trial. However, he presents no indications of abuse of discretion, and no hint of prejudice is visible. Second, Morris proposes that he was improperly denied an instruction defining reasonable doubt. However, Mississippi is among the handful of states that do not permit the court to instruct jurors on the meaning of reasonable doubt, and so his argument fails. Third, Morris argues that his conviction goes against the overwhelming weight of the evidence; however, this neglects Morris’s own statement to the police and the testimony of the victims, which clearly identified Morris as the perpetrator of the attack.

¶ 18. Morris also assigns as error the form of his sentence. Here we must concur with Morris. The trial court ordered restitution, but did not ever designate the amount of restitution, the time for repayment, or the manner of repayment. This is a clear error on the part of the court below, and we must therefore reverse and remand the order for restitution that it may be corrected.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF COUNT III AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH EIGHT YEARS SUSPENDED AND COUNT IV SIMPLE ASSAULT AND SENTENCE OF SIX MONTHS IN THE JACKSON COUNTY JAIL TO RUN CONCURRENTLY TO SENTENCE IN COUNT III IS AFFIRMED, AND THE JUDGMENT REQUIRING RESTITUTION IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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