author: MYERS, J.,

text:
    Dexter JONES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01856-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    Rehearing Denied Oct. 5, 2004.

      Raymond L. Wong, Cleveland, attorney for appellant.
    Office of the Attorney General, by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. The Circuit Court of Bolivar County, Mississippi, the Honorable Albert B. Smith, III presiding, tried and convicted Dexter Jones for the burglary of a check-cashing business located in Cleveland, Mississippi. The trial court sentenced him to seven years in the custody of the Mississippi Department of Corrections. Jones appeals the circuit court’s verdict, stating three issues for us to consider:

I. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT JONES’S TRIAL COUNSEL HAD NO CONFLICT OF LOYALTY WHEN THE COUNSEL HAD PREVIOUSLY REPRESENTED A PROSECUTION WITNESS AT A PRELIMINARY HEARING.
II. WHETHER THE TRIAL COURT ERRED IN DENYING JONES’S PROPOSED JURY INSTRUCTION FOR THE LESSER-INCLUDED OFFENSE OF TRESPASS.
III. WHETHER THE TRIAL COURT ERRED IN DENYING JONES’S MOTION FOR A DIRECTED VERDICT.

Statement of the Facts

¶2. Donnell McNeer owned a commercial building in Cleveland, Mississippi. Between 6:30 and 7:00 a.m. on the morning of May 27, 2001, McNeer was mowing the grass and cleaning the lot behind his building. He noticed some screws on the ground. On closer examination, it appeared the screws came from the door to Speedy Check Cashers (the store), an occupant of the building. Additionally, the door to the business was ajar.

¶ 3. McNeer called the police, and Officer Mitchell Millican arrived to investigate. Millican entered the building. He saw the interior of the store was in disarray. He went to the meter box at the rear of the building to try to restore electrical power. Millican then found that the meter box had been pulled off the building. Further investigation resulted in obtaining fingerprints from various items in the store.

¶ 4. The fingerprints belonged to Dexter Jones and Dwayne Lee. Raymond Wong represented Jones at all judicial proceedings, from the preliminary hearing to this appeal. Jones’s preliminary hearing was held on June 18, 2001. On August 20, 2001, Wong represented Dwayne Lee at a preliminary hearing for the same offense. Lee later received different court-appointed counsel, and the only client-attorney relationship between Lee and Wong was during Lee’s preliminary hearing. Lee eventually made a deal with the State in which he would testify against Jones.

¶ 5. Before the trial, Wong made a motion to recuse himself. He claimed he would have a conflict of loyalty between Jones, his current client, and Lee, his former client. The trial court found no conflict and denied the motion. The trial continued, and the jury found Jones guilty of burglary.

Legal Analysis

I. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT JONES’S TRIAL COUNSEL HAD NO CONFLICT OF LOYALTY WHEN THE COUNSEL HAD PREVIOUSLY REPRESENTED A PROSECUTION WITNESS AT A PRELIMINARY HEARING.

¶ 6. Jones’s attorney represented both Lee and Jones at their respective preliminary hearings. Lee later became a witness for the State in the trial against Jones. Jones argues that this caused a “conflict of loyalty” and impaired Wong’s representation.

¶ 7. Jones argues that Littlejohn v. State, 593 So.2d 20 (Miss.1992) controls in this situation. We disagree. In Little-john, the defendant’s attorney also represented a State’s witness. It was, in fact, the defendant’s attorney who negotiated the witness’s plea bargain with the State. Part of that bargain was the witness would testify against her co-defendant. Id. at 22-23. There is no question that such a situation, where counsel advises one of his clients to testify against another of his clients, would present counsel with a conflict of interest. That is not the situation here. In the instant case, Wong represented both Jones and Lee at their respective preliminary hearings. At some time after Lee’s preliminary hearing, he received different counsel. That new counsel arranged the plea bargain between the State and Lee. Wong continued his representation of Jones, and did not even remember that he represented Lee in the same matter until the day before trial.

¶ 8. “It is well-settled that ... joint representation is not per se violative of the constitutional guarantees of effective assistance of counsel; however, prejudice is presumed if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” Armstrong v. State, 573 So.2d 1329, 1333 (Miss.1990) (emphasis added) (citing Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987)). The Mississippi Supreme Court adopted this standard in Stringer v. State, 485 So.2d 274 (Miss.1986). The supreme court elaborated further, stating this presumption is “insufficient to impugn a criminal conviction. To demonstrate a violation of his sixth amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Stringer, 485 So.2d at 275.

¶ 9. Jones offered us no examples of how any alleged conflict affected Wong’s representation. Since he did not establish an actual conflict, but merely the possibility of one, we find no merit to the issue of Wong’s conflict of loyalty.

II. WHETHER THE TRIAL COURT ERRED IN DENYING JONES’S PROPOSED JURY INSTRUCTION FOR THE LESSER-INCLUDED OFFENSE OF TRESPASS.

¶ 10. Jones asserts that the trial court should have given instructions to the jury concerning the lesser-included offense of trespass. Jones is correct in that a burglary must, by definition, include a trespass. Harper v. State, 478 So.2d 1017, 1021 (Miss.1985). In order for a lesser-included offense instruction to be granted, the trial judge must be able to say, taking the evidence in the light most favorable to the accused, that a reasonable jury could find the defendant guilty of the lesser-included offense (and conversely not guilty of at least one element of the principal charge). Id. We do not think a reasonable jury could look at the evidence and find Jones guilty of trespass, but not of burglary.

¶ 11. The key, Jones asserts, is the “breaking” element of burglary. He argues that the door was open when he entered the building, and that he “slid in” without touching the door. Since he says he used no force to enter the building, he did not “break.” See Genry v. State, 767 So.2d 302, 309 (¶21) (Miss.Ct.App.2000). Jones stated that while he was there, he did not touch anything. He said he left in the same manner, without touching the door, and with it remaining open.

¶ 12. However, the overwhelming amount of evidence presented showed that Jones could not have been telling the truth. Let us begin with Jones’s account of how he found the building. He stated he was walking along at two o’clock a.m., and he saw the door was open. This was from some distance away. Jones had to “jump” a fence to get to the allegedly open door. According to testimony, there was no light around the door. There were no lights on within the building. Additionally, there were no street lights in the vicinity. According to co-defendant Lee, the scene was so dark that they could not see, and had to “feel around.” It is highly unlikely that Jones could have therefore seen that the door was open.

¶ 13. Then we come to the building itself. Again there was evidence that makes it impossible for a reasonable jury to find Jones was truthful. Jones asserts that the door remained open when he left. However, the next morning, the door was found in the “pulled closed” position, but not closed all the way. Also, the door was an “automatic closing” door, such as is commonly found in commercial establishments. The closing mechanism still worked the next morning. Such a door will not remain open. Therefore, to enter the building, Jones and Lee must have used some force, no matter how slight, to enter the building.

¶ 14. Finally, we note that Jones called his own credibility into question. He stated he did not touch anything within the building, and he also told police he had not been in the building. However, his fingerprints were found on several items, including pre-paid cellular phone boxes and the dial from the safe.

III. WHETHER THE TRIAL COURT ERRED IN DENYING JONES’S MOTION FOR A DIRECTED VERDICT

¶ 15. Jones contends that the trial judge erred by not granting a directed verdict in his favor. He states that the jury’s verdict was against the weight of the evidence.

¶ 16. When we review the denial of a criminal defendant’s motion for a directed verdict, we must view the evidence in the light most favorable to the State. We will not reverse unless a reasonable juror could only find the defendant not guilty. Kizart v. State, 795 So.2d 582, 585(¶ 10) (Miss.Ct.App.2001) (citing Garth v. State, 771 So.2d 984, 986(¶ 6) (Miss.Ct. App.2000)).

¶ 17. In the case before us, there was overwhelming evidence for a jury to find Jones guilty. The evidence showed that Jones, with Lee, pried open the door to the store. Jones’s fingerprints were found on many items in the store, including the safe and the phone boxes. Jones’s co-defendant implicated him. Both Jones and Lee went in the store with the intent to steal. Jones himself admitted as much, but said he left when he saw nothing to steal.

¶ 18. Section 97-17-33 of the Mississippi Code Annotated (Rev.2000) defines burglary as “breaking and entering ... [of a] store ... with intent to steal.... ” The State introduced evidence that Jones broke the door to the store, entered the store and intended to steal money or other personal property contained within the store. It was well within the province of a reasonable jury to find Jones guilty of the crime of burglary. Therefore, we will not reverse the jury’s decision. Nor will we declare that the trial court erred in not granting Jones’s motion for a directed verdict.

Conclusion

¶ 19. We find no merit with any of the issues Jones raises on appeal. Therefore, we affirm the decision of the trial court.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF BURGLARY OF A BUILDING AND SENTENCE OF SEVEN YEARS AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SAID SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

      . Jones admits he entered the building with the intent to steal, and he stated he left when he saw "there wasn’t no [sic] money.”

      . In the transcript, Jones states the door was open "about like that,” and gestured with his hands. There is no attempt to describe the distance he indicated.

      . Again, there is no description in the record as to how far the fence is from the door.


source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    Timothy Allen WOODS, Jr. a/k/a Timothy Allen Woods, Sr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00759-COA.
    Court of Appeals of Mississippi.
    April 27, 2004.
    Rehearing Denied July 20, 2004.
    Certiorari Denied Oct. 7, 2004.

      Carol L. White-Riehard, Stephen Nick, Greenville, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Timothy Allen Woods was convicted on both counts of a two-count indictment charging him with aggravated assault and armed robbery. The two counts arose out of a single incident in which it was alleged by the State that Woods deprived his victim of certain personal property by threatening her with a knife and that he subsequently inflicted actual injuries on the victim’s person by cutting her about the throat with the knife. Woods’s appeal raises five issues in the following order: (a) he contends that the State’s proof on the robbery count was insufficient as a matter of law to sustain a conviction; (b) he claims that the trial court improperly limited his defense counsel in its efforts to impeach the victim’s credibility through showing her history of drug use; (c) he contends that the evidence was insufficient as a matter of law to sustain his conviction on the aggravated assault count; (d) alternatively, he contends that the verdict on both counts was against the weight of the evidence, entitling him to a new trial; and (e) he contends that the prosecuting attorney’s remarks during summation constituted an improper comment on Woods’s post-arrest silence.

¶ 2. Woods, in addition, has filed a pro se supplemental brief in which he claims that his representation at trial fell below constitutionally-mandated standards of competence, thus effectively denying him the right to representation by counsel afforded him under the Constitution of the United States.

¶ 3. We find the issues presented to be without merit and affirm the convictions and resulting judgment of sentence.

I.

Facts

¶ 4. The facts that follow are taken from the testimony of witnesses for the prosecution. Woods, in the company of a friend named Robert Pluard, was riding in a vehicle along with the victim, Lisa Latham, on the day in question. They were drinking beer, smoking marijuana, and smoking crack cocaine. After reaching the conclusion that Latham had a quantity of crack cocaine on her person that she was not sharing with the others, Woods forced her at knife-point to empty the contents of her pockets and assumed possession of those contents. Woods subsequently purposely cut Latham about the throat. Latham claimed that she pretended to be unconscious after she was cut and that Woods and Pluard dragged her body into a field and left her, apparently satisfied that they had killed her. In that regard, Latham testified that Pluard cut her about the neck after Woods had inflicted her initial injuries.

¶ 5. After Woods and Pluard left, La-tham wrapped her throat wounds with her shirt and managed to walk to a nearby house. Medical aid was summoned, and law enforcement officers were notified. Pluard, who testified as a witness for the prosecution, offered testimony seeming to indicate that Latham may have been carrying rocks of crack cocaine in a cigarette pack and that the cigarette pack was obtained by Woods from her pockets but was later lost in the confusion of moving La-tham’s inert body. As a result, Woods and Pluard returned to the location for the purpose of searching for the packet. Rather than finding the cigarette pack, they discovered that Latham’s body was gone. As they attempted to depart the scene, they encountered law enforcement officers responding to information provided by Latham. Woods and Pluard attempted to flee in their vehicle, and when their escape route appeared blocked, Woods departed the vehicle and fled on foot. He was ultimately apprehended.

¶ 6. Woods, testifying in his own defense, admitted to the episode of drug and alcohol consumption in the company of Pluard and Latham, but claimed that he had been dropped off at his home by Pluard while Latham was still in the vehicle. Woods testified that Pluard came back about forty-five minutes later by himself, and they resumed their efforts aimed at “getting high.” When law enforcement officers attempted to stop the vehicle, Pluard “freaked out” and attempted to flee. Woods explained his own flight on foot as being driven by his fear that he might be subject to arrest for previous offenses committed years earlier. Woods could offer no plausible explanation for why Pluard, as an alleged accomplice, and Latham, as the crime victim, would have coordinated their stories to falsely implicate him as a participant in the events.

¶ 7. The jury returned a verdict of guilty on both counts of the indictment, and this appeal followed.

II.

The Sufficiency of the Evidence of Guilt of Armed Robbery

¶ 8. If, at the conclusion of all the evidence, the State has failed, as a matter of law, to present probative evidence establishing each of the essential elements of the charged crime, the trial court is obligated, upon proper defense motion, to direct a verdict of acquittal. George v. State, 812 So.2d 1103, 1106 — 07(¶ 14) (Miss.Ct. App.2001). After the jury has returned a verdict of guilty, the same issues may be raised by the defense in a JNOV motion. If the trial court ultimately concludes that the verdict should stand, the defendant may assert that decision as error on appeal. In that situation, the appellate court reviews all the evidence in the light most favorable to upholding the verdict and with the view that the jury, sitting as fact-finder, drew all inferences consistent with guilt that could reasonably be drawn from the proof. Id. Only if the appellate court, after reviewing the evidence on that basis, is convinced that the evidence on one or more essential elements of the crime was so deficient that a reasonable juror fairly viewing the evidence could only reach a not guilty verdict may the appellate court disturb the result obtained in the trial court. Id.

¶ 9. Woods, in his argument, focuses on the requirement in the armed robbery statute that requires as an element of the crime that the defendant “shall felo-niously take ... from the person ... the personal property of another .... ” Miss. Code Ann. § 97-3-79 (Rev.2000) (emphasis added). Woods points out that the only evidence offered by the victim was a statement that “[a]fter I slumped down that’s when they proceeded to go through my pockets.” Woods concedes that his alleged accomplice, Pluard, testified that Woods had, in fact, taken the contents of La-tham’s pockets. However, Woods points out that Pluard testified that Woods demanded that Latham empty her pockets and that she complied before her neck was cut whereas Latham indicated that her pocket contents were not disturbed until after she had been injured and was feigning unconsciousness. Woods also points out that neither witness testified as to what the contents of the pockets might have been, thus rendering it impossible to determine that she was robbed of anything of value.

¶ 10. There is no requirement in the armed robbery statute that the property taken have any particular value. Clay v. State, 811 So.2d 477, 479(¶ 8) (Miss.Ct.App.2002). Rather, the only requirement is that it be personal property not belonging to the accused. Miss. Code Ann. § 97-3-79 (Rev.2000). While the evidence in this case may fairly be classified as sparse, when it is viewed in its entirety, it is the view of this Court that the evidence would fairly permit an inference that Woods purposely took from Latham a cigarette pack believed to contain contraband crack cocaine rocks through the use of a deadly weapon in the form of a knife. The fact that the package was never recovered or that Latham never testified directly that she possessed a cigarette pack containing crack cocaine rocks is of no particular relevance, since, even if shown beyond question that Woods’s expectations of discovering cocaine in the package obtained from Latham went unrealized, the package itself would constitute personal property for purposes of the statute. In that light, it is important to remember that robbery is not a crime against property but is a crime against the person. Towner v. State, 812 So.2d 1109, 1114(¶ 23) (Miss.Ct.App.2002). As such, its primary purpose is to protect the safety and welfare of individuals from the prospect of violence against their persons, albeit that the violence may occur as part of a scheme to deprive that person of his property. Thus, the underlying purpose of the robbery statutes is not diminished or trivialized by the fact that the property ultimately taken may have been of negligible worth or substantially less value than what the robber had hoped for.

¶ 11. Though not directly raised in this appeal, it is also appropriate to note at this point that although, for some purposes under the law, contraband goods such as illegal narcotics are declared to be of no value to the possessor such that the possessor has no property interest in such goods, that rule does not apply for purposes of robbery statutes. In 1950, the Mississippi Supreme Court said that “[contraband liquor may be the subject of larceny or robbery.” Passons v. State, 208 Miss. 545, 558, 45 So.2d 131, 134 (1950), overruled on other grounds by Simmons v. State, 568 So.2d 1192 (Miss.1990). Along those same lines, the Indiana Court of Appeals recently observed, in a case involving theft of a quantity of marijuana, that there was a “general rule that property illegally held or used can be the subject of a larceny.” Say v. State, (1993) Ind.Ct.App., 623 N.E.2d 427, 428.

III.

Limited Cross-Examination

¶ 12. The trial court, after allowing extensive inquiry into the victim’s past history of drug and alcohol abuse, finally stopped defense counsel’s attempts to elicit from her that, in the past, she had presented herself at a hospital complaining of blurred vision and hallucinations apparently related to narcotic abuse. On appeal, Woods claims that this denied him the ability to effectively probe the witness’s credibility.

¶ 13. The trial court enjoys a substantial measure of discretion in controlling the flow of evidence. Austin v. State, 784 So.2d 186, 193(¶23) (Miss.2001). Even evidence that might arguably be relevant may be excluded when the trial court concludes that it is cumulative or may cause undue delay in concluding the trial with reasonable dispatch. M.R.E. 403.

¶ 14. This Court has conducted a thorough review of the entire record in this cause. Based on that review, we are satisfied beyond question that the issues of the victim’s rather extensive history of drug abuse and the difficulties in her life attributable to that course of conduct were fully developed for the jury, and that the jury had extensive information in that regard to make a reasoned evaluation of the worth of her testimony, which is, of course, one of the fundamental duties of the jury. Winters v. State, 449 So.2d 766, 771 (Miss.1984). We seriously doubt that permitting defense counsel to attempt to further develop that aspect of the victim’s character, as an indicator of her ability to accurately and truthfully relate past events, would have contributed in any meaningful way toward assisting the jury in completing its duties. We find this contention to be without merit.

IV.

Sufficiency of the Evidence of Assault

¶ 15. Woods’s attack on the sufficiency of the evidence to sustain his conviction of the aggravated assault charge can best be summarized by quoting the following assertion from his brief: “The appellant, Woods, was convicted of aggravated assault based purely on the testimony of co-defendant, Pluard, and the victim, Latham.” He then points to perceived discrepancies in the victim’s testimony and her earlier statements, relating, not to whether Woods cut her with a knife, but to the question of whether Pluard also cut her with a knife or other sharp instrument.

¶ 16. The jury sits as trier of fact and is charged with the duty of determining what weight and worth to afford the testimony of the various witnesses. Id. It is the obligation of defense counsel to test the credibility of adverse witnesses through any number of long-recognized methods that include pointing out prior inconsistencies in reports of the same incident made by the witness. Ivy v. State, 764 So.2d 476, 478(¶4) (Miss.Ct.App.2000). However, even an unequivocal showing that a witness has related a version of events at some earlier time substantially at variance with that offered at trial does not necessarily destroy the evidentiary value of the witness’s in-court testimony. It is simply a matter for the jury to consider when it evaluates the probative value of the witness’s version of events related at trial. Id.

¶ 17. There can be no doubt that the uncorroborated testimony of an accomplice, if found credible by the jury, is sufficient as a matter of law to sustain a verdict of guilty. Brown v. State, 825 So.2d 70, 76(¶ 17) (Miss.Ct.App.2002). In this case, the jury had the benefit of two witnesses having no apparent connection who both confirmed that Woods inflicted serious injuries on the victim by cutting her with a knife. The fact that no demonstrative evidence directly linking Woods to the incident was presented does not, of itself, suggest that the testimony of these two witnesses was insufficient to support a conviction. The jury, as evidenced by its verdict, found these witnesses to be more credible than Woods. We can find no basis in the record to disturb the jury’s verdict.

V.

Denial of a New Trial

¶ 18. Alternatively, Woods argues that the evidence, when viewed in its entirety, was such that a verdict of guilty was so against the weight of the credible evidence that to permit the verdict to stand would constitute a manifest injustice. He makes no additional argument in support of this contention beyond adopting by reference his arguments attacking the sufficiency of the evidence. The trial court, in considering a new trial motion on this ground, has some measure of discretion since it involves a somewhat subjective evaluation of the probative worth of conflicting evidence. Woods points to no evidence tending to exonerate him other than his own testimony, which was to some extent implausible on its face.

¶ 19. In an appeal from a decision to deny a new trial motion on the ground that the verdict was against the weight of the evidence, we are charged to review all of the evidence in a light most favorable to upholding the verdict. Montana v. State, 822 So.2d 954, 967—68(¶ 61) (Miss.2002). Only if we are convinced that the denial of the motion constituted an abuse of discretion and that denial of a new trial would work a manifest injustice to the defendant may we intercede and set aside the trial court’s ruling. Id.

¶20. In this case, there was ample evidence of guilt from the testimony of two witnesses having substantially different postures in the case-one being an alleged accomplice and the other being the victim. Both events are related and plainly implicate Woods in the crimes. The only counterbalancing weight was the testimony of Woods himself, which we do not find to have such plainly-evident persuasive power as to lead us to the conclusion that the trial court erred in denying the new trial motion.

VI.

Reversible Error in the Prosecution’s Summation

¶ 21. Woods suggests that a portion of the prosecuting attorney’s summation constituted an impermissible comment on the fact that he had exercised his Fifth Amendment right against self-incrimination in the period following his arrest. The matter being discussed at the time involved Woods’s assertion during cross-examination that he had, in fact, repeatedly attempted to inform law enforcement officers as to his version of events but that they refused to formally incorporate it into a report or to investigate it to see if it could be independently verified. The prosecutor’s assertion was that this scenario seemed highly unlikely and constituted cause to doubt Woods’s credibility as a witness on matters directly relating to the crime itself.

¶22. Whether these comments, plainly intended as a direct attack on Woods’s propensity for truthfulness, could be interpreted as also being an indirect effort to cast Woods in a bad light for exercising his right to remain silent appears, at best, a doubtful proposition. We find, in all events, that we are barred from considering this issue on a procedural basis because there was no contemporaneous objection to the line of argument. Mitchell v. Glimm, 819 So.2d 548, 552(1111) (Miss.Ct.App.2002) (citing Gatlin v. State, 724 So.2d 359, 369(¶ 43) (Miss.1998)). It is plainly the law that such an objection must be offered at a time when, if the contention has merit, the trial court can deal with it by way of curative instruction or admonishment to the jury to disregard the argument and avoid the necessity of a retrial. Id.

¶23. In closing, we note that Woods, in his supplemental pro se brief, raises one issue. It is an attempt to circumvent the contemporaneous objection bar to consideration of the prosecution’s improper use of Woods’s post-arrest silence to prejudice him in the eyes of the jury, and consists of an assertion that his counsel was ineffective in failing to properly object to the State’s use of this tactic. Because, as we have already observed, we are of the view that the assertions made in that regard are of doubtful merit at best, and because of the compelling eyewitness testimony implicating Woods in the unfortunate events that led to this indictment, this Court concludes that a claim of ineffective assistance of counsel fails the second prong of the test set out in Strickland v. Washington, from which the Court must be satisfied that, but for counsel’s failure, there was a reasonable probability that a different outcome of the trial would have resulted. Strickland, v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Mohr v. State, 584 So.2d 426, 430 (Miss.1991).

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION ON COUNT I FOR ARMED ROBBERY AND ON COUNT II FOR AGGRAVATED ASSAULT AND SENTENCE OF TWENTY FIVE YEARS FOR COUNT I AND TWENTY YEARS FOR COUNT II TO BE SERVED CONSECUTIVELY IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


text:
    Jodie M. HARRINGTON, Appellant v. L & B WOOD, INC. and Mickey Berry, Appellees.
    No. 2003-CA-00111-COA.
    Court of Appeals of Mississippi.
    April 27, 2004.
    Rehearing Denied July 20, 2004.
    Certiorari Denied Oct. 7, 2004.

      Bill Waller, Jackson, Glenn Sturdivant Swartzfager, Ridgeland, attorneys for appellant.
    William W. McKinley, Jackson, attorney for appellees.
    Before McMILLIN, C.J., BRIDGES and IRVING, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Jodie Harrington filed suit against two individuals and one corporation after he was seriously injured in a motor vehicle accident that occurred when, at about 9:00 p.m. on the evening of May 27, 2000, he struck an unlighted front-end loader that was blocking his lane of travel. Harrington settled his claim against the individual who had placed the machine in the roadway; however, the circuit court granted summary judgment in favor of the two remaining defendants. They were the corporation that owned the loader and the president of that corporation. It is from that grant of summary judgment that Harrington has appealed, contending that there were a number of material disputed issues of fact regarding his claim that could only be resolved by a jury. We find that summary judgment was proper and affirm the decision of the circuit court.

I.

Facts

¶ 2. We have already set out in summary fashion the facts regarding the accident itself. The following additional facts are necessary for an understanding of the issues raised by Harrington in this appeal.

¶ 3. Kendall Daughdrill’s residence was across the highway from a business operated under the name of L & B Wood, Inc. (hereafter “L & B”). L & B is a Mississippi corporation, and Mickey Berry is the president of the corporation. L & B, at all times relevant to this case, was the owner of a large loader used in its business that was stored on the corporate property across from Daughdrill’s property when it was not in use.

¶4. At some time in the past, Mickey Berry had observed Daughdrill attempting to remove a tree damaged in a storm and, in the role of a good neighbor, sent one of his employees to the property with a tractor to assist Daughdrill in removing the tree.

¶ 5. On the night of the accident that is the subject of this case, Daughdrill had accidentally driven his truck into a ditch on the side of the highway a short distance from his home. Unable to get the truck out of the ditch, Daughdrill went to L & B’s yard at a time when the business was closed. He attempted to get the same tractor that had been used earlier to move the tree in his yard, but he found that there was no key to crank the tractor. He was able to crank the loader which was also stored on the lot, and he drove the loader to the location of his truck. In preparation to hook a chain from his truck to the loader and then use the loader to pull his truck out of the ditch, Daughdrill positioned the loader across one lane of travel of the highway despite the fact that it was approximately 9:00 at night and the loader had no lighting system or reflectors. As Daughdrill continued in the process of chaining his truck to the loader, Harrington, traveling in his proper lane of travel, struck the loader with his vehicle and sustained substantial physical injuries.

¶ 6. Harrington brought suit against L & B on the theory of negligent entrustment or the failure to adequately secure such a dangerous instrumentality from unauthorized use. Essentially the same claims were asserted against Mickey Berry by virtue of his role as president of L & B, except that the complaint further asserted that Berry was negligent in failing to install adequate lighting and reflectors on the loader.

¶ 7. It is undisputed that Daughdrill neither sought nor obtained permission from Berry or any other representative of L & B before removing the loader from L & B’s lot and taking it to the location where he hoped to use it to pull his truck from the ditch. The trial court, in concluding that summary judgment was appropriate, found that under these facts there was no legitimate disputed issue of fact as to whether Daughdrill’s use of the equipment was permissive.

II.

Discussion

¶ 8. Summary judgment is appropriate in the circumstance where, based on undisputed issues of fact, the moving party is entitled to judgment as a matter of law. M.R.C.P. 56; City of Starkville v. 4-County Elec. Power Ass’n, 819 So.2d 1216, 1220(¶ 8) (Miss.2002). When summary judgment is granted, our court reviews that determination de novo, based upon our consideration and analysis of the same evidence and information considered by the trial court. Id.

¶ 9. Harrington, in his brief to this Court, raises a single issue, namely, that there were disputed material issues of fact regarding his claim against L & B and Berry that could only be resolved by a jury sitting as fact-finder after a full trial of the issue. While his brief raises this single legal issue, Harrington proceeds to list nine separate facts which he contends are both unresolved and material to the validity of his claim. Based upon our review of Harrington’s brief and after considering matters presented to the Court in the oral argument of this case, we remain unconvinced that Harrington has effectively countered the threshold determination of the trial court that, based on the uncon-troverted facts relating to the manner in which Daughdrill went into possession of the loader, he could not as a matter of law be found to have been a permissive user of the equipment. Because essentially all of Harrington’s various theories of recovery against L & B and Berry begin with the proposition that Daughdrill’s use of the loader was permissive, simple logic dictates that they remain immaterial and, thus, not an impediment to summary judgment so long as the threshold issue of permissive use remains uncrossed. We note that Harrington advances one alternative theory of liability not based on permissive use which we will discuss later in this opinion. It is enough to say at this point that we conclude that summary judgment was appropriate on that alternate theory also.

¶ 10. Harrington’s contention in support of his claim that his use of the loader was permissive depends on essentially two lines of argument. They are (a) that, at some point several years in the past, Berry had sent a piece of equipment across the road to assist Daughdrill in removing a storm-damaged tree from his yard as an act of neighborliness, and (b) that a general spirit of good neighborliness prevailed in the area — as evidenced by this past act of kindness — which led Daughdrill to conclude, in his own mind, that Berry, as the official representative of L & B, would not mind if he borrowed the equipment to extract his truck from the ditch.

¶ 11. We agree with the trial court that, even accepting all of Harrington’s contentions as true, they would not, as a matter of law, support the proposition that his unilateral act of removing L & B’s equipment for his own use without any effort to contact a company representative and ■without any evidence that this was a customary or accepted practice acquiesced in by L & B could arguably be considered to be permissive.

¶ 12. In the list of nine disputed issues of material fact found in the appellant’s brief, this contention appears as number seven. Because we find his contention to be without merit, two of the remaining eight allegedly disputed issues of fact become irrelevant. Those, listed as numbers five and eight, involve contentions that the equipment taken by Daughdrill was not properly equipped for the use Daughdrill intended and that his manner of using it was inherently dangerous. While both contentions may, as to a claim against Daughdrill, be relevant and material, so long as his use remains non-permissive, they do not give rise to a justiciable claim against L & B based solely on the fact that it owned the equipment and nothing more.

¶ 13. Alternatively, Harrington has contended that, even assuming Daughdrill’s use of the equipment was non-permissive, L & B and Berry are liable for their negligence in failing to secure the loader in such a manner as to prevent its unauthorized use by third parties. The Mississippi Supreme Court has, as recently as 2002, unanimously adopted the principle that the unauthorized use of a vehicle acts as “an intervening act which supersedes the negligence of’ the owner when that alleged negligence consists solely of failure to take precautions to prevent such unauthorized use. Southern Heritage Ins. Co. v. C.E. Frazier Const. Co., Inc., 809 So.2d 668, 672(¶ 12) (Miss.2002). In that case, a thief had taken a Toyota motor vehicle after the driver had left the keys in the ignition while he was momentarily out of the vehicle delivering some papers. Id. at 669(112). The thief later caused a collision when he drove through a red light and struck another vehicle. Id. Though there is no contention in this case that Daughdrill committed an act of larceny in removing the loader from L & B’s property, we conclude that the underlying common principle in both the case before us and in the Southern Heritage case is that the use which caused the injury was without the actual or implied permission of the owner so long as the use was not permissive. On that basis, we are satisfied that the precedent established in Southern Heritage compels us to the conclusion that this alternate theory of liability is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS COUNTY IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: THOMAS, J.,

text:
    James Blake McFARLIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01770-COA.
    Court of Appeals of Mississippi.
    June 1, 2004.
    Rehearing Denied Oct. 12, 2004.

      Azki Shah, Clarksdale, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., THOMAS and MYERS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. James Blake McFarlin was convicted in the Circuit Court of Coahoma County on one count of possession of methamphetamine, one count of possession of alprazolam, one count of possession of diazepam, and one count of possession of precursors to manufacture methamphetamine. McFarlin was sentenced as a habitual offender to two life sentences and to two twelve month sentences to run concurrently. Aggrieved, McFarlin asserts the following issues on appeal:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DEFENDANT’S MOTION TO SUPPRESS THE EVIDENCE FOR LACK OF PROBABLE CAUSE AND FOR BEING UNREASONABLE UNDER THE TOTALITY OF THE CIRCUMSTANCES.

II THE TRIAL COURT ERRED IN NOT RULING ON APPELLANT’S MOTION FOR A NEW TRIAL AND REQUEST TO REPRESENT HIMSELF.

Finding error, we reverse and render judgment in favor of the appellant.

FACTS

¶ 2. On June 4, 2001, Officer Oliver Mitchell of the Clarksdale Police Department was dispatched to check on a vehicle on Highway 61 South parked on the side of the highway with an individual allegedly slumped over the steering wheel. As Officer Mitchell arrived at the edge of the city limits of Clarksdale, he had not yet spotted the vehicle. Mitchell radioed that he was proceeding a bit further in search of the vehicle. Approximately a half mile outside of the city limits, Officer Mitchell spotted a vehicle parked on the side of the road. Mitchell saw an individual slumped over the steering wheel. This individual was James Blake McFarlin. Mitchell radioed his finding in to dispatch before approaching the vehicle.

¶ 3. Mitchell banged on the window of the vehicle, but McFarlin initially did not respond. Mitchell banged again and yelled loudly waking McFarlin. Mitchell testified that McFarlin began looking around like he was looking for someone else. Mitchell asked McFarlin what was wrong and if he had been drinking. According to Mitchell, McFarlin responded that he did have something to drink and that he had taken a pill. Mitchell asked McFarlin to exit the vehicle and he then proceeded to pat him down in order to check for weapons.

¶ 4. While patting McFarlin down, Mitchell testified that he felt a little “knot like nudge” in his pocket, which from the training he had received from the Clarks-dale Police Department and the Attorney General’s narcotics team, he was able to identify as drugs. Mitchell had McFarlin empty his pocket and indeed found a little brown bag with a few pills inside. Mitchell placed McFarlin in the back of his cruiser and radioed dispatch for them to send a deputy unit.

¶ 5. Coahoma County Sheriffs Deputy Eric Williams arrived on the scene shortly thereafter. Upon glancing in the vehicle, Williams testified that he noticed some hoses and brass pipe fittings which he identified as drug paraphernalia. Officer Mitchell briefed Williams and handed him the pills from McFarlin’s pocket. Williams then radioed for an investigator. Investigator Billy Baker applied for a search warrant for the vehicle which was granted by a justice court judge. The vehicle was later searched at the Coahoma County Sheriffs Department. Inside the car and trunk, officers found a length of anhydrous ammonia hose, spray paint, an air tank, a propane tank, a gallon of camp fuel, four pseudoephedrine tablets, some brown glass tubing containing a white powder, and a four pack of lithium batteries.

¶ 6. McFarlin admitted that he had been drinking and taking pills that day, but that he had been riding with a friend and had passed out in the car. The friend allegedly woke him up and told him that the car was out of gas. While waiting for the friend to return, McFarlin passed out again in the driver’s seat. McFarlin admitted ownership of the pills but denied having any interest in or knowledge of the contents of the trunk of the vehicle.

¶ 7. McFarlin was indicted on one count of possession of methamphetamine less than .1 gram, one count of possession of alprazolam less than 100 dosage units, one count of possession of diazepam less than 100 dosage units, and one count of possession of two or more precursors to manufacture methamphetamine. Prior to trial, McFarlin filed a motion to suppress due to lack of probable cause. After conducting a hearing in which Mitchell, by this time a Coahoma County Sheriffs Deputy, testified, the trial court denied McFarlin’s motion to suppress. At the conclusion of the trial, McFarlin was found guilty on all four counts and was sentenced to two life and two twelve month sentences to run concurrently. McFarlin filed a motion for a new trial which was denied by the trial court and then perfected an appeal to this Court.

ANALYSIS

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN OVERRULING DEFENDANT’S MOTION TO SUPPRESS THE EVIDENCE FOR LACK OF PROBABLE CAUSE AND FOR BEING UNREASONABLE UNDER THE TOTALITY OF THE CIRCUMSTANCES?

¶ 8. McFarlin asserts that the trial court erred in denying his motion to suppress the evidence for lack of probable cause and for the search being unreasonable under the totality of the circumstances. In denying McFarlin’s motion, the trial court only heard testimony from Deputy Mitchell. McFarlin asserts that Mitchell was outside of his jurisdiction and that he lacked probable cause to search McFarlin. The State completely fails to address McFarlin’s argument of Miller’s lack of jurisdiction and refers to Mitchell as “Officer Oliver Mitchell of the Coahoma County Sheriffs Department,” a position he held at the time of trial but not at the time of the stop. The State also asserts that Mitchell had probable cause to search McFarlin and that the trial court’s ruling on the motion to suppress is supported by the evidence and applicable ease law.

¶ 9. In determining whether evidence should be suppressed a trial court’s findings of fact are not disturbed on appeal unless the trial judge applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence. Taylor v. State, 733 So.2d 251, 255(¶ 18) (Miss.1999). Searches conducted outside the judicial process, or without the issuance of a warrant by a neutral and detached magistrate or judge, have long since been seen as per se unreasonable and in violation of the Fourth Amendment, subject to only a few specifically established and well-delineated exceptions. Ray v. State, 798 So.2d 579, 582(¶ 10) (Miss.Ct.App.2001) (citing Katz v. United States, 389 U.S. 347, 356, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). The burden is on the officer to show that the search comes within one of the exceptions. Jackson v. State, 418 So.2d 827, 829 (Miss.1982). One of these exceptions is that a police officer may approach an individual for purposes of investigating possible criminal behavior, even in the absence of probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Where the officer has a reasonable belief the individual may be armed and dangerous, the officer may conduct a very limited search of the outer clothing in order to determine whether the individual is, in fact, armed. Id. at 30, 88 S.Ct. 1868. “If a search is deemed unreasonable, then all evidence seized during that search is inadmissible for the jury or court to consider as evidence of the defendant’s guilt.” Id. (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Joyce v. State, 227 Miss. 854, 87 So.2d 92 (1956)).

¶ 10. The State contends that the trial court’s ruling denying McFarlin’s motion to suppress is amply supported by the testimony taken at trial and the controlling case law. The State relies on Howell v. State, 300 So.2d 774, 775 (Miss.1974) in which the Mississippi Supreme Court stated that finding an individual slumped over in a vehicle is enough to require an investigation to determine the cause. The court in Howell points out that the individual could be sick or injured, have suffered , a heart attack, be drunk or under the influence of drugs, or be engaged in criminal activity, and it is the sheriffs duty to keep an incapacitated person from driving a car on a public road and endangering the lives of others. Id.

¶ 11. In Howell, a deputy spotted a gun on the floorboard of the car as he was attempting to rouse a passed out individual. Id. After removing the individual from the vehicle and returning to secure the gun, the deputy found two cellophane bags containing amphetamines. Id. The Mississippi Supreme Court held that it was reasonable for the deputy to secure the gun, and due to the “plain view” doctrine set forth in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) which states that “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence,” the bags of amphetamines were properly admitted. Howell, 300 So.2d at 775 (citing Harris, 390 U.S. at 236, 88 S.Ct. 992).

¶ 12. The State asserts that similarly, Officer Mitchell found McFarlin incapacitated and therefore had a duty to investigate and had the right to subject McFarlin to a pat-down for weapons after removing him from the vehicle under Terry v. Ohio. Only a reasonable suspicion is needed to justify seizure when a pat-down feels a possible weapon. Edwards v. State, 795 So.2d 554, 562(¶30) (Miss.Ct. App.2000) (citing Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). When the object in question is believed to be contraband, probable cause is required. Id. The State argues that McFarlin’s alleged statements and the officer’s training and experience gave him probable cause to believe the “knot like nudge” he felt in McFarlin’s pocket to be contraband.

¶ 13. We disagree. Officer Mitchell, an officer with the Clarksdale Police Department, proceeded outside the city limits of Clarksdale when he did not find a vehicle on the side of the road within the city limits as reported. It is without dispute that Mitchell did not have a warrant for McFarlin’s arrest, nor did Mitchell observe McFarlin commit any violation within his jurisdiction. The plain view doctrine only allows an officer who has a right to be in the position to have that view to seize objects and later introduce them in to evidence. Howell, 300 So.2d at 775 (citing Harris, 390 U.S. at 236, 88 S.Ct. 992) (emphasis added).

¶ 14. Even if Mitchell had been authorized to do a pat-down search for weapons under Terry, his identification of a small “knot like nudge” was unreasonable. The continued exploration of McFarlin’s pockets after determining that no weapon was present amounts to “the sort of evidentiary search that Terry expressly refused to authorize.” Minnesota v. Dickerson, 508 U.S. 366, 378, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (citing Terry, 392 U.S. at 26, 88 S.Ct. 1868). As in Dickerson, Officer Mitchell never testified that he thought the nudge was a weapon, but instead identified it directly as contraband. Id. The trial court erred in failing to suppress the evidence found as a result of Mitchell’s unlawful search. Any and all evidence seized as a result of an unlawful seizure should be suppressed. Terry, 392 U.S. at 28-29, 88 S.Ct. 1868. Because all of the evidence against McFarlin arose out of Officer Mitchell’s initial unlawful search, we reverse and render judgment in favor of the appellant.

II. DID THE TRIAL COURT ERR IN NOT RULING ON APPELLANT’S MOTION FOR A NEW TRIAL AND REQUEST TO REPRESENT HIMSELF?

¶ 15. Because we reverse and render on the denial of McFarlin’s motion to suppress and because McFarlin failed to cite any authority in support of his second assignment of error, we will not consider this argument. Ball v. State, 845 So.2d 736, 739(¶ 15) (Miss.Ct.App.2003).

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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


text:
    William Lee (Willie) WORTHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-02135-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.
    Rehearing Denied Oct. 5, 2004.

      Mack A. Bethea, Gulfport, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. William Lee (Willie) Wortham was indicted for the murders of his wife, Shirley Wortham, and her son, Lavon Buckhal-ter. Wortham was tried by a jury in the Circuit Court of Stone County. He was convicted on both counts and sentenced to life imprisonment. From that conviction, he appeals and raises the following issues:

I. DID THE TRIAL COURT ERR IN DENYING WORTHAM’S MOTION FOR A DIRECTED VERDICT?

II. WAS THE JURY PROPERLY INSTRUCTED WITH REGARD TO THE ELEMENT OF DELIBERATE DESIGN?

III. DID THE TRIAL COURT ERR IN REFUSING WORTHAM’S PROFFERED MANSLAUGHTER INSTRUCTIONS?

IV. DID THE TRIAL COURT ERR IN REFUSING WORTHAM’S PROFFERED CIRCUMSTANTIAL EVIDENCE INSTRUCTION?

V. DID THE TRIAL COURT ERR IN PROHIBITING WORTHAM FROM EXAMINING THE CHIEF INVESTIGATOR CONCERNING HIS POSSIBLE MOTIVE FOR SECURING A CONVICTION?

STATEMENT OF FACTS

' ¶ 2. Sometime after midnight on July 5, 2001, Willie Wortham knocked on the door of a house located on Lawton Road in Saucier, Mississippi. Shon Davis answered the door and knew Wortham because he used to be married to her aunt and the couple previously lived nearby. Wortham asked Shon to wake up her mother so she did. Davis testified that Wortham had blood on him and told her that he had killed his wife and son. Davis asked Wortham how he knew they were dead and Wortham said, “I made sure that they were dead. I cut their throats.”

¶ 3. Shirley Summitt testified that Wort-ham used to be married to her sister. Summitt testified that Wortham knocked on her door the same night and asked for money, gas, and clothes. Summitt asked Wortham what was wrong and he said, “I done killed Shirley and her son.” Like Davis, Summitt also asked Wortham how he knew they were dead. Summitt testified that Wortham then stated, “I made sure them m-f-s were both dead.” Summitt gave Wortham twenty dollars, a pair of pants, and told him to leave. Summitt then called her brother who lived nearby and asked him to come over.

¶ 4. When Summitt’s brother arrived, Wortham was still on the property so they called the Harrison County Sheriffs Department. Wortham was arrested, given Miranda warnings, and placed in a patrol car without incident. Deputy Jay McKnight testified that as Wortham and he were walking to the patrol car Wort-ham stated, “She messed me up. I gave money to pay bills and she messed me up. Nobody messes me up.”

¶ 5. Shortly thereafter, Lieutenant Jason Buxton of the Wiggins Police Department received a dispatch from the Harrison County Sheriffs Department informing him that they had a man named Willie Wortham in their custody who was suspected of murdering his wife and stepchild. As a result, Buxton and two other police officers responded to a mobile home located at 1023 Martin Luther King Drive in Wiggins.

¶ 6. Upon arriving, two officers surrounded the mobile home while Buxton knocked on the front door. There was no response so Buxton opened the door and announced that he was an officer with the Wiggins Police Department. Again, there was no response. Buxton testified that there were items scattered along the floor in the hallway of the trailer and it appeared that there had been a struggle. Buxton also testified that he noticed a person’s legs lying in the doorway of the east bedroom of the mobile home.

¶ 7. Buxton went into the bedroom and noticed a female adult and a male child lying on the floor. Buxton testified that the victims were covered in blood, were not breathing, and had no pulse. Buxton also testified that there was blood all over the room. At that point, all three officers exited the residence and roped off the mobile home with crime scene tape. Bux-ton then called the dispatcher at the Wiggins Police Department and asked her to inform the police chief, investigator, and ambulance service. No search was conducted at the residence at that time. The victims were later identified as thirty-four year old Shirley Wortham and eleven year old Lavon Buckhalter.

¶ 8. Buddy Bell, the investigator for the Wiggins Police Department, arrived at the scene and Buxton informed him of the situation. The two men then traveled to Lawton Road in Saucier where the Harrison County deputies had Wortham in custody. When Buxton and Bell arrived, Wortham was in the back seat of a patrol car. Bell removed Wortham from the patrol car and read Wortham his Miranda rights. Bell testified that Wortham acknowledged that he understood his rights and then told Bell that he had killed his wife.

¶ 9. The Harrison County deputies informed Bell that they found a car nearby that was registered to Shirley Wortham. Although there was no search of the car at that time, Bell testified that he could see blood on the driver’s seat, driver’s door, and steering wheel. Apparently, Wortham was in route to Mobile, Alabama when he ran out of gas in Saucier. Bell then collected four pieces of bloody clothing found along the road between Shirley Wortham’s car and Summitt’s house. Bell testified that Wortham later told him that he discarded a knife somewhere between Wiggins and Saucier. Despite a three day search of the area, no murder weapon was ever found.

¶ 10. At trial, the State tendered Dr. Paul McGarry as an expert. Dr. McGarry is a forensic pathologist and performed the autopsies of both victims. Dr. McGarry testified that Shirley Wortham had been stabbed twenty-nine times. Dr. McGarry stated that several of the wounds were four and-a-half inches deep and penetrated her heart, pancreas, both lungs, and the tissue of her upper abdomen. Dr. McGar-ry also stated that Shirley Wortham had wounds on her hands and arms. Dr. McGarry testified that wounds of this type are inflicted when the arms are put in front of the body in a defensive posture. Dr. McGarry testified that Shirley Wort-ham died from massive blood loss.

¶ 11. Dr. McGarry testified Lavon Buckhalter was stabbed twenty-seven times with many of the wounds penetrating his vital organs. Like his mother, Buckhalter also had defensive wounds on his hands and arms. Dr. McGarry testified that Buckhalter died from massive blood loss due to deep stab wounds in his heart and lungs.

¶ 12. After the State rested, Wortham moved for a directed verdict. The trial judge denied this motion and Wortham chose not to testify. After instructions and deliberations, the jury returned guilty verdicts on both counts. Wortham received two life sentences to be served consecutively in the custody of the Mississippi Department of Corrections. Wortham’s post-trial motion was denied, and as a result, he filed a notice of appeal. Finding no error, we affirm for reasons set out below.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN DENYING WORTHAM’S MOTION FOR A DIRECTED VERDICT?

¶ 13. Wortham argues that the State’s evidence was insufficient because it failed to prove that he acted with deliberate design. Wortham also argues that the evidence was insufficient because there was no eyewitness, no lab analysis on the blood, no confession, and no murder weapon.

¶ 14. When someone challenges the sufficiency of evidence on appeal, our standard of review is well settled. “Our authority to interfere with the jury’s verdict is quite limited.” Robinson v. State, 749 So.2d 1054, 1059 (¶ 13) (Miss.1999). “We consider all evidence in the light most consistent with the verdict, and give the prosecution the benefit of all favorable inferences.” Id. “Only if reasonable men could not have found beyond a reasonable doubt that the defendant was guilty will we reverse.” Id.

¶ 15. Wortham was indicted under our murder statute which states:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person killed, or of any human being;

Miss.Code Ann. § 97-3-19 (Rev.2000).

¶ 16. “ ‘[Deliberate’ always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences.” Windham v. State, 520 So.2d 123, 126 (Miss.1988). “Design” means to calculate, plan, or contemplate. Id.

¶ 17. The evidence at trial was comprised of seven witnesses all of whom were offered by the State. It is the jury’s duty to determine witnesses’ credibility and resolve any conflicts in their testimony. Reed v. State, 863 So.2d 981, 986-87 (¶ 20) (Miss.Ct.App.2003). Two of those witnesses testified that Wortham admitted to killing his wife and her child. Wortham also admitted that he made sure they were both dead. This was accomplished by using a kitchen knife to stab his unarmed wife twenty-nine times and to stab his unarmed stepson twenty-seven times. Finally, Wortham admitted that he lived in the mobile home where his wife and stepson were found.

¶ 18. Wortham argues that none of this evidence proves that he had a deliberate design to kill before the fatal acts occurred. However, a knife used in such a vicious manner has been held sufficient in satisfying the element of deliberate design. See Robinson, 749 So.2d at 1059 (¶ 14); Russell v. State, 497 So.2d 75, 76 (Miss.1986); Fairchild v. State, 459 So.2d 793, 802 (Miss.1984).

¶ 19. We find the State presented ample evidence to support the jury’s verdict. It was possible and reasonable for the jury to ultimately conclude that Wortham had stabbed his wife and her son and that it was done with deliberate design. Therefore, we find no merit to this issue.

II. WAS THE JURY PROPERLY INSTRUCTED WITH REGARD TO THE ELEMENT OF DELIBERATE DESIGN?

¶ 20. Wortham argues the trial court erred in granting S-3 and S-4. “In granting or refusing various instructions, the instructions given must be read as a whole.” Kelly v. State, 783 So.2d 744, 754 (¶ 28) (Miss.Ct.App.2000). The trial court enjoys considerable discretion regarding the form and substance of jury instructions. McGee v. State, 820 So.2d 700, 705(¶ 9) (Miss.Ct.App.2000). “The principal concern is that the jury was fairly instructed and that it understood each party’s theory of the case.” Id. If the instructions fairly announce the law and create no injustice, then no reversible error will be found. Fears v. State, 779 So.2d 1125, 1127(¶ 9) (Miss.2000).

S-3 states:

The Court instructs the Jury that design to kill is all that is required by Mississippi law to make a homicide a murder. Deliberate design means intent to kill, without authority of law and not being legally justifiable, legally excusable or under circumstances that would reduce the act to a lesser crime.

S-4 states:

A deliberate design as used elsewhere in these instructions cannot be formed at the very moment of the fatal act, however, the deliberate design need not exist in the mind of the defendant for any definite time, not for hours, days, or even minutes, but if there is deliberate design, and it exists in the mind of the defendant but for an instant before the fatal act, this is sufficient deliberate design to constitute the offense of Murder.

¶ 21. Wortham argues that S-3 is not explicit enough because the jury was not specifically told under what circumstances Wortham’s acts would be reduced into lesser crimes. We find no merit to this argument for two reasons. First, the exact language complained of has previously been found to be proper. Tran v. State, 681 So.2d 514, 516 (1996). In Tran, the supreme court found the language-of the instruction did not preclude the possibility that a killing could be deliberate or intentional and yet be other than murder. Id. at 516-17.

¶ 22. Second, “[a] party has the right to have his theory of the case presented to the jury by instructions, provided that there is credible evidence that supports that theory.” McGee v. State, 820 So.2d at 705(¶ 9). In the instant case, Wortham did not put on any credible evidence to support any theory of defense. As a result, the trial court was not required to instruct the jury on all other circumstances under which they could have found the homicide to have been justifiable, excusable, or manslaughter. Tran, 681 So.2d at 520.

¶ 23. Wortham also argues that S-4 led jurors to believe that deliberate design could occur instantly at the very moment of the fatal act. Wortham cites Windham v. State, 520 So.2d at 125 (Miss.1988), where the Mississippi Supreme Court held that the deliberate design instruction constituted reversible error. In that case, an instruction given stated that deliberate design could be formed “at the very moment” of the fatal beating. Id. The supreme court held that the instruction conflicted with the manslaughter instruction which defined manslaughter as the willful, felonious killing of a human being, without malice in the heat of passion, by the use of a dangerous weapon, without authority of law and not in necessary self-defense.” The controversial language in the instruction was “at the very moment.”

¶ 24. However, the instruction at issue on this appeal adhered to the ruling in Windham by specifically stating that deliberate design could not be formed at the very moment of the fatal act. Moreover, unlike Windham, manslaughter was not a theory of culpability for Wortham. For these reasons, the problem that existed in Windham does not exist here. See Neal v. State, 805 So.2d 520, 525 (¶ 17) (Miss.Ct.App.2002).

¶ 25. The instruction given in the case sub judice is the same instruction considered in Carr v. State, 655 So.2d 824 (Miss.1995). In that case, the supreme court found an instruction identical to S-4 to be proper. Despite the fact that the instruction contained the phrase “but for an instant before,” the court found the instruction to be a correct statement of the law because it specifically stated that deliberate design could not be formed at the very moment of the fatal act. Id. at 847. This language has been upheld in conjunction with other instructions as well. See Shipp v. State, 847 So.2d 806, 813-814(¶26) (Miss.2003) (accident); Theodore v. State, 798 So.2d 465, 470(¶22) (Miss.2001) (manslaughter).

¶ 26. We find no error in the granting of S-3 and S-4. We also find that the jury was properly instructed on the element of deliberate design. Therefore, we find no merit to this issue.

III. DID THE TRIAL COURT ERR IN REFUSING WORTHAM’S PROFFERED MANSLAUGHTER INSTRUCTIONS?

¶ 27. Wortham argues that the trial court erred in refusing D-l, D-2, D-3, D-4, D-ll, D-12, D-14, and D-19. Wort-ham admits that he put on no actual defense at trial regarding heat of passion. Nevertheless, Wortham “asserts that the crime scene itself suggests heat of passion and uncontrollable rage of terror.”

¶ 28. Wortham is entitled to have jury instructions given which present his theory of the case. “[H]owever, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence.” Peet v. State, 811 So.2d 380, 382(¶ 9) (Miss.Ct.App.2001).

¶ 29. All of Wortham’s proffered instructions in question were refused by the trial judge because there was no evi-dentiary support for them. Wortham put on no evidence of accident, misfortune, or heat of passion. In addition, there was no evidence that would entitle Wortham to have the jury instructed on the lesser included offense of manslaughter. “An unjustified and unexcused taking of life is presumed to be murder unless there is evidence upon which a jury can rationally justify mitigation down to manslaughter.” Neal, 805 So.2d at 525 (¶ 16).

¶ 30. We find the trial court properly refused Wortham’s manslaughter instructions. Therefore, we find no merit to this issue.

IV. DID THE TRIAL COURT ERR IN REFUSING WORTHAM’S PROFFERED CIRCUMSTANTIAL EVIDENCE INSTRUCTION?

¶ 31. The law is clear in this state. When a case is based wholly on circumstantial evidence, the trial court must give certain instructions. Jones v. State, 797 So.2d 922, 928 (¶26) (Miss.2001). However, a trial judge is not required to give an instruction on circumstantial evidence where there is direct evidence of the crime. Porter v. State, 616 So.2d 899, 909 (Miss.1993). Wortham argues that the trial court erred in granting C-3 and refusing D-13.

¶ 32. C-3 states:

The law presumes every person charged with the commission of a crime to be innocent. This presumption places upon the State of Mississippi the burden of proving the defendant guilty of every material element of the crime with which he/she is charged. Before you can return a verdict of guilty, the State must prove beyond a reasonable doubt that the Defendant is guilty.
The presumption of innocence attends the Defendant throughout the trial and prevails at its close unless overcome by evidence which satisfies the jury of his guilt beyond a reasonable doubt. The Defendant is not required to prove his innocence.

¶ 33. D-13 states:

The Court instructs the jury that if the jury can deduce from the facts and circumstances surrounding the case, either from the evidence or lack of evidence, any reasonable hypothesis consistent with the Defendant’s guilt of a lesser offense than murder, then there is a reasonable doubt of his being guilty of murder, and the jury should return the following verdict:
“We, the jury, find the Defendant not guilty of murder, but we do find the Defendant guilty of manslaughter, in which case the Court shall sentence him as provided by law.”

¶ 34. We disagree with Wortham’s contention because there was direct evidence of his guilt presented at trial. Specifically, Wortham admitted to no less than two people that he killed his wife and her child. In addition, their testimony is not hearsay under Mississippi Rule of Evidence 801(d)(2). Since an admission of the accused is a type of direct evidence, no circumstantial evidence instruction was required. Deal v. State, 589 So.2d 1257, 1260 (Miss.1991) (citing Mack v. State, 481 So.2d 793, 795 (Miss.1985)).

¶ 35. We find the trial judge correctly granted C-3 and refused D-13. Therefore, we find no merit to this issue.

V. DID THE TRIAL COURT ERR IN PROHIBITING WORTHAM FROM EXAMINING THE CHIEF INVESTIGATOR CONCERNING HIS POSSIBLE MOTIVE FOR SECURING A CONVICTION?

¶ 36. During the examination of Investigator Bell, Wortham’s attorney asked Bell if he was running for sheriff. The State objected and the trial judge sustained the objection ruling that the question was irrelevant and immaterial. On appeal, Wortham argues that “[i]t is not out of the realm of possibility that a police officer, a chief investigator running for sheriff, could have an ulterior motive in testifying in a manner that would result in a ‘feather in his cap.’ ”

¶ 37. The admissibility and relevancy of evidence is within the discretion of the trial court and, absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. Ellis v. State, 856 So.2d 561, 565(¶ 9) (Miss.Ct.App. 2003). In addition, the admission or exclusion of evidence must result in prejudice or harm, if a cause is to be reversed on that account. Id.

¶ 38. Upon a careful review of the trial transcript, we find no abuse of discretion on the part of the lower court. The trial judge was present when the examination transpired and he was in the best position to rule on its exclusion. Simply because a notion is within “the realm of possibility” does not, in any way, mandate a finding of relevancy under Mississippi Rule of Evidence 401. In addition, Wortham has not stated any prejudice or harm resulting from the trial court’s limitation of Bell’s examination. Therefore, we find no merit to Wortham’s final issue.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF STONE COUNTY OF CONVICTION OF TWO COUNTS OF MURDER AND TWO LIFE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO STONE COUNTY.

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


author: BRIDGES, P.J.,

text:
    Charles Wayne JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-01490-COA.
    Court of Appeals of Mississippi.
    July 20, 2004.
    Rehearing Denied Oct. 5, 2004.

      Charles Wayne Johnson, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellant.
   BRIDGES, P.J.,

for the Court.

¶ 1. As a preliminary procedural matter we note that Charles Wayne Johnson’s motion for post-conviction relief is time barred under Mississippi Code Annotated Section 99-39-5(2) (Rev.2001), and barred as a successive writ under Mississippi Code Annotated Section 99-39-23(6) (Rev.2001). However, our discussion of the issues raised in his appeal is below.

¶ 2. On March 6, 1998, Charles Johnson entered a plea of guilty to the crime of two counts of sale of cocaine and was sentenced to two ten-year sentences, to be served consecutively, with a five-year period of post-release supervision. Johnson had been indicted as an habitual offender and under the enhanced punishment statute of Mississippi Code Annotated § 41-29-147 (Rev.2001). These portions of the indictment were withdrawn as part of the plea agreement with the State.

¶ 3. In 1999, Johnson filed his first motion for post-conviction relief, seeking to have his conviction and sentences set aside. The motion was denied by the circuit court without an evidentiary hearing and Johnson failed to file a timely notice of appeal.

¶ 4. Johnson again filed for post-conviction relief on July 18, 2002. In this motion, Johnson argued that his sentence was illegal, in that he was not entitled to probation because he had been convicted of pri- or felonies; that his convictions were invalid because his pleas were motivated by the inducement of an illegal sentence; and that the sentencing order was void in that it allegedly failed to separately impose sentence on each of the convictions. The present appeal was taken from the order denying Johnson relief.

¶ 5. In denying relief, the court found that Johnson’s claim that his sentence was illegal was without merit as he was not given probation or a suspended sentence, but was given time on post-release supervision. .The court also found that Mississippi Code Annotated § 99-7-2 does not require separate sentencing orders when there is a multiple count indictment.

¶ 6. As noted by the State, although Johnson states five separate issues on appeal, there is actually only one issue raised, that being whether his sentences were illegal and in violation of Mississippi Code Annotated § 47-7-33 (Rev.2001), the statute which grants courts the power to suspend a sentence and place a defendant on probation.

¶ 7. In Goss v. State, 721 So.2d 144, 145(¶ 6) (Miss.1998), cited by Johnson as support for his argument, the court found that sentence time plus probation time cannot exceed the maximum sentence allowed by statute. That holding has since been overruled by the Mississippi Supreme Court in Carter v. State, 754 So.2d 1207, 1209—10(¶ 8) (Miss.2000). The supreme court has now said that a sentence suspended in disregard of the limitations of Mississippi Code Annotated Section 47-7-33 is not an “illegal sentence.” Robinson v. State, 836 So.2d 747, 751 (Miss.2002). In any event, Johnson never received a suspended sentence or probation so that these cases do not apply to his case or this appeal.

¶ 8. What Johnson received was a period of post-release supervision under Mississippi Code Annotated Section 47-7-34 (Supp.2003). The fact that Johnson had prior convictions is not relevant in considering this type of sentence. See Robinson, 836 So.2d at 756 n. 10 (Carlson, J., concurring). Johnson will not serve probation, rather he will undergo post-release supervision, an alternative to probation designed specifically for felons. Carter, 754 So.2d at 1208(¶ 4). Accordingly, Mississippi Code Annotated Section 47-7-33 (Rev.2000) does not govern his sentence; rather, his sentence falls under Mississippi Code Annotated Section 47-7-34 (Supp.2003) and comports fully with that statute. There was no error on the part of the court in its sentencing.

¶ 9. Finding that the decision of the circuit court was correct, we affirm.

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

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


author: CHANDLER, J., GRIFFIS, J.,

text:
    Maria PAGE, Appellant v. Sherry CRAWFORD, Appellee.
    No. 2003-CA-00978-COA.
    Court of Appeals of Mississippi.
    Aug. 10, 2004.
    Rehearing Denied Oct. 5, 2004.

      Jason Lee Shelton, attorney for appellant.
    Martha Bost Stegall, Tupelo, attorney for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. Maria Page appeals the dismissal of her civil suit against Sherry Crawford by the Circuit Court of Lee County for failing to timely serve process upon the defendant. Page submits three errors in the decision of the court below:

I. THE PLAINTIFF SHOWED GOOD CAUSE FOR FAILURE TO SERVE PROCESS WITHIN 120 DAYS IF, IN FACT, SERVICE WAS NOT PROPERLY PERFECTED IN THAT TIME.

II. PLAINTIFF’S MOTION FOR LEAVE TO SERVE PROCESS OUT OF TIME SHOULD HAVE BEEN GRANTED.

III.DEFENDANT WAIVED SERVICE OF PROCESS ISSUE BY PURPOSEFULLY AVAILING HERSELF OF THE COURT’S JURISDICTION BY FREELY ENGAGING IN LITIGATION.

¶ 2. Finding error, we reverse and remand.

FACTS

¶ 3. This civil suit arose out of a motor vehicle accident in Tupelo, Mississippi on November 2,1999. Page alleges Crawford negligently struck her vehicle by failing to keep a proper lookout as she attempted to turn into the stream of traffic. Page negotiated with Crawford’s insurer for some time for coverage of her damages but was unable to reach a settlement. The complaint was filed on April 17, 2002.

¶ 4. Page caused summons to issue on at least four occasions between April and June, 2002 and attempted service by both process server and the county sheriffs office. Service was first attempted at the address Crawford had given police at the time of the accident then at addresses supplied by unstated information gleaned by the process servers. Crawford could not be found on any of those occasions.

¶ 5. At some point, Crawford married Dennis Williamson. Page learned of Williamson’s place of employment and sent to him two letters in July, 2002, one by regular post, the second by certified mail. The certified letter was never claimed. The correspondence was styled a courtesy letter to notify Williamson of the suit against his wife and asked that Crawford retrieve a copy of the complaint and summons at the office of Page’s counsel due to the failure to locate her.

¶ 6. Shortly after the letter was sent, Page attempted to complete service through publication in the local newspaper on August 6, 13 and 20, 2002. On August 30, 2002, Crawford filed an answer to the complaint and asserted as a defense the failure to effect service of process. At the same time, Crawford submitted discovery-requests.

¶ 7. On September 6, Crawford filed a motion to dismiss based upon the failure to effect service of process. Page answered the motion and filed a motion to allow out-of-time service. The motions came on for hearing on April 4, 2003 approximately five months after the statute of limitation on the cause of action expired. Page argued Crawford, knowing of the suit, purposefully evaded personal service but, in any case, service was effected through publication. Page also argued Crawford had waived the issue of service through participation in the litigation, that of submission of interrogatories. Crawford, in response, stated she had maintained her present address for several years, an address which was readily ascertainable through a review of the county land rolls, defects existed in the attempted service by publication which rendered it ineffective, and she did not waive any of her rights through participation in the litigation.

¶ 8. The circuit court filed an order on April 25, 2003, denying Page’s motion for out-of-time service and granting the motion to dismiss. Appeal of that decision was perfected and the case deflected to this court for review.

ANALYSIS

I. THE PLAINTIFF SHOWED GOOD CAUSE FOR FAILURE TO SERVE PROCESS WITHIN 120 DAYS IF, IN FACT, SERVICE WAS NOT PROPERLY PERFECTED IN THAT TIME.

¶ 9. Page asserts that the trial court erred in dismissing her civil suit because she showed good cause for failure to serve process within 120 days if, in fact, service was not properly perfected in that time. A court rule requires that service of a summons and complaint be made to a civil suit defendant within 120 days of the date the complaint is filed. M.R.C.P. 4(h). Thereafter, the suit shall be dismissed without prejudice upon motion of either the defendant or upon the court’s own motion. Id. However, the 120-day rule may not be applied if the plaintiff is able to show good cause why service was not made in that time. Id. Whether or not the plaintiff can show good cause is a discretionary matter for the trial court and is entitled to deferential review of whether the trial court abused its discretion and whether there was substantial evidence supporting the determination. Rains v. Gardner, 731 So.2d 1192 (¶ 18) (Miss.1999).

¶ 10. Page contends that Crawford purposefully evaded service of process knowing the suit against her had been filed. Attempts to find her included a search of the records of public utilities and inquiries apparently made by the process servers. Page also cites her letters to Crawford’s spouse and argues the failure of Williamson to retrieve the certified letter is proof of intent to avoid service. Crawford submits she has lived at the same address since prior to the filing of the complaint in this case and Page could easily have found her address by simply reviewing the land roll. She also argues the failure to include an affidavit or sworn complaint that she could not be located after diligent inquiry in the attempted service by publication as required by Mississippi Rule of Civil Procedure Rule 4(c)(4)(A) renders that attempt invalid.

¶ 11. There is no bright line rule as to how many efforts must be made by a plaintiff to locate a named defendant to satisfy the requirement of diligent inquiry. There is also the question of balancing the quality of those inquiries with their quantity. Standing on a street corner and asking passersby if they know the defendant’s location would clearly not constitute diligence, no matter how many persons were asked in that manner. Beyond that, it becomes a matter of balancing quantity, quality and the interests of the parties.

¶ 12. In this case, Page did make several attempts to locate and serve Crawford within the 120-day period, searching through both telephone and utility directories and repeatedly engaging process servers. When Page finally found Crawford’s husband, he refused to accept certified letters regarding the matter. Although land records do seem like an obvious place to conduct an inquiry, Page was looking under a former name that was given at the time of the accident. The circuit court did not make a finding pertaining to whether good cause existed, but merely held that Crawford’s motion to dismiss was well taken and should be granted. We therefore remand to the trial court for a determination of whether good cause was shown.

II. PLAINTIFF’S MOTION FOR LEAVE TO SERVE PROCESS OUT OF TIME SHOULD HAVE BEEN GRANTED.

III. DEFENDANT WAIVED SERVICE OF PROCESS ISSUE BY PURPOSEFULLY AVAILING HERSELF OF THE COURT’S JURISDICTION BY FREELY ENGAGING IN LITIGATION.

¶ 13. The decision that Page was unable to show good cause for delay for purposes of allowing out-of-time service of process was a discretionary matter for the trial court. Absent a finding pertaining to whether good cause existed, we will not reach this issue. As to the question of service of process via publication, the order of the trial court does not address this matter. Service of process by publication is only permissible after the plaintiff has failed in locating the defendant to effect personal service following diligent inquiry. In remanding the decision that Page failed to show good cause why personal service had not been effected, service by publication and any defects in that attempt, are moot.

¶ 14. Finally, there is the issue of whether or not Crawford waived service of process by participating in the litigation through the submission of discovery requests. Defenses based upon insufficiency of process or service of process must be asserted in the responsive pleading to the complaint. M.R.C.P. 12(b)(5)(6). These defenses are waived if not asserted in the responsive pleading. M.R.C.P. 12(h). Page argues the active participation by Crawford in the underlying litigation constitutes a tacit waiver of the service of process defense. Crawford should have seen through the question of personal jurisdiction before proceeding further, according to Page.

¶ 15. Once the defense of failure of service of process has been made in the responsive pleading, it is not waived by the mere submission of other pleadings in the case, nor even by participation in a trial on the merits. Mitchell v. Mitchell, 767 So.2d 1078, 1085 (¶ 24) (Miss.Ct.App.2000). The error is preserved until its resolution by the court. Id. It may also be resolved through an affirmative disavowal by the defendant but that did not occur in this case. The claim of error is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., BRIDGES P.J., LEE, AND MYERS, JJ., CONCUR. GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, J.

GRIFFIS, J.,

Concurring in Part and Dissenting in Part.

¶ 17. With much respect for the majority, I respectfully concur in part and dissent in part.

¶ 18. First, I conclude that the trial judge did in fact consider and determine that good cause did not exist. The record and transcript from the hearing on the motion to dismiss reveal that the plaintiffs diligence in serving the defendant was thoroughly briefed and argued. Thereafter, the trial court executed an order that granted the motion to dismiss. The court’s decision, in and of itself, sufficiently indicates that the trial court did not accept the plaintiffs good cause argument. Since the record adequately reflects that the court considered and decided the issue, I see no purpose to reverse and remand. Indeed, there is nothing more for the trial court to do on remand but revise the judgment to state that the court finds that good cause did not exist for the plaintiffs delay in service of process.

¶ 19. Regardless, I am of the opinion that the trial court’s decision of whether good cause existed was within the trial court’s discretion. Young v. Hooker, 753 So.2d 456, 461 (¶ 17) (Miss.Ct.App.1999). Since I find that the trial court made the determination that good cause was not present and I find no abuse of that discretion, I would affirm the trial court’s dismissal. Therefore, I dissent from the majority’s decision to remand for a determination of whether good cause was shown.

¶ 20. Second, I concur with the result reached on the majority’s final issue but I believe that a clarification of the legal reasoning is necessary. The majority frames the issue as “whether or not Crawford waived service of process by participating in the litigation through the submission of discovery requests.” The majority then cites Mitchell v. Mitchell, 767 So.2d 1078, 1085(¶ 24) (Miss.Ct.App.2000), for the proposition that “[ojnce the defense of failure of service of process has been made in the responsive pleading, it is not waived by the mere submission of other pleadings in the case, nor even by participation in a trial on the merits.” Certainly, once a Rule 12(b) defense is properly asserted, the defense is not waived by the party submitting discovery requests or proceeding in the normal course of litigation.

¶ 21. My concern is the possibility that the majority’s use of phrase that the defense “is not waived ... even by participation in a trial on the merits” may be misinterpreted and inconsistently applied. Although not mentioned specifically by the majority or the Court in Mitchell, Rule 12(d) of the Mississippi Rules of Civil Procedure is relevant and important to this analysis:

Preliminary Hearings. The defenses specifically enumerated (1) through (7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment on the pleadings (subdivision (c) of this rule), shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

¶22. Rule 12(d) clearly requires that defenses asserted under Rule 12(b)(1) — (7) and 12(c) are preliminary matters that are to be heard prior to trial unless the court postpones the consideration. In Mitchell, this Court recognized that the defendant had properly preserved her Rule 12(b) jurisdictional defenses and complied with Rule 12(d) by asserting the jurisdictional defense in a preliminary motion. Mitchell, 767 So.2d at 1085(¶24). Similarly, here, Crawford preserved her jurisdictional defense by presenting it to the court in a preliminary motion.

¶ 23. Hence, I believe that we must clarify the majority’s conclusion that Rule 12(b) jurisdictional defenses are “preserved until resolution by the court.” Rule 12(d) clearly requires that a defendant present Rule 12(b) jurisdictional defenses promptly, for consideration by the court in a preliminary hearing. A defendant may not assert a Rule 12(b) defense and lie in wait, without court approval, until the trial on the merits to pursue a decision on the motion. Such delay would violate the specific requirement of Rule 12(d) and would constitute a waiver of the Rule 12(b) defense.

IRVING, J., JOINS THIS SEPARATE WRITTEN OPINION.


author: CHANDLER, J.,

text:
    Mario CHANDLER, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-02031-COA.
    Court of Appeals of Mississippi.
    Sept. 28, 2004.

      Mario Chandler, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. The Circuit Court of Lowndes County, Mississippi, dismissed Mario Chandler’s motion for post-conviction collateral relief. On appeal he raises the following issues:

STATEMENT OF THE ISSUES

I. IS CHANDLER’S INDICTMENT VOID BECAUSE IT DID NOT CONTAIN THE FOREMAN’S AFFIDAVIT?

II. DID THE STATE VIOLATE CHANDLER’S RIGHT TO A SPEEDY TRIAL BY NOT BRINGING HIM TO TRIAL WITHIN 270 DAYS OF HIS ARREST AND/OR ARRAIGNMENT?

III. DID CHANDLER RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

FACTS

¶ 2. Mario Chandler pleaded guilty to burglary. During the entry of his plea, he testified under oath that he was guilty of the burglary in question.

¶ 3. Chandler later changed his mind and filed a motion for post-conviction relief. He claimed that (1) his indictment was defective and should have been dismissed because it did not contain the affidavit of the grand jury foreman that was required by Mississippi Code Annotated § 99-7-9 (Rev.2000); (2) the State violated his statutory right to a speedy trial because he was not brought to trial within 270 days of his arrest; (3) he was denied the effective assistance of counsel who failed to assail the allegedly defective indictment or raise a speedy trial claim; and (4) he was denied the right to effective assistance of counsel because his attorney did not file a request for discovery.

¶ 4. Chandler sought an evidentiary hearing for the purpose of proving these claims. The trial judge summarily denied the requested relief, finding as a matter of law that Chandler’s indictment was valid; that his counsel did request discovery; that the continuances obtained in this cause were because of Chandler’s incarceration in another county and because Chandler received new charges; and that Chandler’s trial counsel did make a motion for speedy trial, but withdrew the motion because Chandler pleaded guilty to the charges.

ANALYSIS

I. IS CHANDLER’S INDICTMENT VOID BECAUSE IT DID NOT CONTAIN THE FOREMAN’S AFFIDAVIT?

¶ 5. In McCormick v. State, 377 So.2d 1070 (Miss.1979), the defendant complained that the trial court erred in overruling his demurrer to his indictment because it was not accompanied by the foreman’s affidavit. The Mississippi Supreme Court rejected this contention because the defendant had not shown proof that any prejudice resulted by the omission. Id. at 1074. Similarly, Chandler has not shown that any prejudice resulted because the indictment did not contain the foreman’s affidavit. Furthermore, in the case of Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990), the Mississippi Supreme Court held that an argument asserting defectiveness of an indictment based on the lack of an accompanying affidavit from the grand jury foreman is a non-jurisdictional defect which is waived when the defendant enters a voluntary guilty plea and has failed to assert a timely claim in the trial court. This issue is without merit.

II. DID THE STATE VIOLATE CHANDLER’S RIGHT TO A SPEEDY TRIAL BY NOT BRINGING HIM TO TRIAL WITHIN 270 DAYS OF HIS ARREST AND/OR ARRAIGNMENT?

¶ 6. Chandler claims he was denied a right to a speedy trial. This claim necessarily fails because his case did not go to trial; he entered a guilty plea to an indictment that fully informed him of the nature and cause of the accusation.

¶ 7. Chandler’s plea of guilty operated to waive his right to a speedy trial. The Mississippi Supreme Court has recognized that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial. Ellzey v. State, 196 So.2d 889, 892 (Miss.1967). Specifically included in that class is the right to a speedy trial, whether of constitutional or statutory origin. Anderson v. State, 577 So.2d 390, 392 (Miss.1991).

¶ 8. In order to waive the right, there must be an “intentional relinquishment or abandonment of a known right or privilege.” Id. at 391 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). This test was met here. The record shows that Chandler was fully advised by pleading guilty that he was giving up his right to a jury trial, the right to confront and question the witnesses against him, and the right to testify. He testified under oath that he understood a guilty plea means the State does not have to produce any evidence. The record also affirmatively shows that Chandler freely and voluntarily confessed his guilt. The trial judge is entitled to rely heavily on the record. Sherrod v. State, 784 So.2d 256, 261(¶ 18) (Miss.Ct.App.2001) (quoting Gable v. State, 748 So.2d 703, 706 (Miss.1999)). This issue is without merit.

III. DID CHANDLER RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 9. Chandler claims that his lawyer was ineffective because she failed to investigate the facts of his case and to request discovery. However, the trial judge examined this very issue and found as a matter of fact that Chandler’s lawyer sought and requested discovery.

¶ 10. Chandler never told the trial judge in his post-conviction relief motion what additional discovery materials would have disclosed nor how such material would have affected his decision to plead guilty. It follows that he has not demonstrated ineffective assistance of counsel that would have led to a different result. Hebert v. State, 864 So.2d 1041, 1044-45(¶ 10) (Miss.Ct.App.2004).

¶ 11. Chandler also claims that his trial counsel rendered ineffective assistance because she failed to raise the issues of speedy trial and defective indictment at trial. The trial judge determined from the record that Chandler’s trial counsel did make a motion for speedy trial, but withdrew the motion when Chandler pleaded guilty to the charges. Trial counsel did not raise the issue of defective indictment because the absence of the foreman’s affidavit by itself does not render an indictment defective, as we have already explained.

¶ 12. Even taking Chandler’s claims as true, Chandler has not shown that the performance of his trial counsel caused him to plead guilty. Chandler testified under oath that his lawyer had explained everything in the petition to enter the plea of guilty, and Chandler had no questions about its content. Chandler’s trial counsel testified that she advised Chandler óf his constitutional rights and advised him of the elements of the crime. We find Chandler’s ineffective assistance claim to be without merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, GRIFFIS AND BARNES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.