author: CHANDLER, J.,

text:
    George D. AGUILAR a/k/a George Diaz Aguilar a/k/a Jay Aguilar, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01902-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2002.
    Rehearing Denied Jan. 21, 2003.
    Certiorari Denied June 5, 2003.

      James A. Williams, Meridian, Attorney for Appellant.
    Office of the Attorney General by Charles W. Maris Jr., Attorney for Appel-lee.
    Before KING, P.J., BRIDGES, and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. On March 30, 2000, George Aguilar was indicted by the Lauderdale County grand jury on the charge of manslaughter. The day of the trial the indictment was amended to charge Aguilar as a habitual offender. Aguilar was tried on August 16, 2001, and the jury found him guilty. The trial court then sentenced him to twenty years’ imprisonment without the possibility of parole. Aguilar raises the following issues on appeal:

I. WHETHER THE TRIAL COURT ERRED BY OVERRULING AGUILAR’S BATSON OBJECTIONS.
II. WHETHER THE TRIAL COURT ERRED IN FAILING TO RULE THAT AGUILAR’S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
III. WHETHER THE JURY’S VERDICT IS CONTRARY TO THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE
IV. WHETHER THE TRIAL COURT ERRED BY REFUSING TO ADMIT EVIDENCE PERTAINING TO SPECIFIC BAD ACTS OF THE DECEASED VICTIM.

Finding no error, we affirm.

FACTS

112. Tammy and Bo Hudson had been divorced for more than six months prior to the events occurring on November 19, 1999. They had three children together. Bo, not living far from Tammy, would often walk down to Tammy’s house and visit the children. On the night in question, Tammy gave Bo permission to come down to her house in order to cut their children’s hair. Before Bo arrived at the house, Joshua Conroy, Tammy’s new boyfriend, along with George Aguilar, Jeremy Dubose and Allen Chañes unexpectedly arrived. Tammy, fearing that Bo might become jealous upon seeing Joshua, immediately attempted to call Bo in order to keep him from coming down to the house. Despite her efforts, Tammy was unable to reach Bo on the telephone. Tammy testified that she had asked Aguilar on several previous occasions never to return to her house.

¶ 3. When Bo arrived, he found Tammy and Joshua in the back bedroom. He made a comment to Tammy and left the house for approximately ten minutes. When he came back, he demanded to speak with Tammy outside the presence of the four other men. Tammy refused to go outside; however, she allowed Bo to enter the house. After entering the house, Bo began pushing Tammy into the dining room. Aguilar jumped up, stating “Man, don’t be pushing on her.” Tammy testified that she was in no fear of Bo at that time. Nonetheless, words were exchanged between Bo and Aguilar and a fight ensued. Several of the men jumped on Bo and proceeded to punch and kick him. The men made their way outside and the fighting continued for several minutes in the front yard. Tammy ran in the house and called the police. By the time the police arrived, the fight had ended and Bo, accompanied by Tammy’s next door neighbor, had left the scene.

¶ 4. Approximately twenty minutes later, Joshua went outside to look for his wallet which was lost during the fight. He was immediately confronted by three men, two of them were Bo’s brothers; a second fight ensued. Tammy, never leaving the inside of her house, called the police again. Aguilar had gone outside to help stop the fight. He returned to the kitchen and picked up a knife. At some point Bo entered the house and, according to the defense, hit Tammy in the head with a brick. At that moment Aguilar stabbed Bo in the chest with the knife. Bo fell backwards, telling his brothers that he had been stabbed. Several minutes later Bo died.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR WHEN IT OVERRULED AGUILAR’S BATSON OBJECTION?

¶5. Upon initial review of the record, we determined that the trial judge had not rendered the required on-the-record findings as to the reasons for accepting the State’s race-neutral justifications for striking two African American jurors. Therefore, pursuant to Hatten v. State, 628 So.2d 294, 298 (Miss.1993), we remanded the case, ordering that the record be supplemented with the appropriate findings of fact and conclusions of law. Now, with the complete record before us, we find adequate evidence to support the conclusion that Aguilar failed to carry the burden of proving racial discrimination.

¶6. Determinations made by the trial judge under Batson are factual and largely based on credibility. Puckett v. State, 788 So.2d 752, 756 (¶ 8) (Miss.2001); McGilberry v. State, 741 So.2d 894, 923 (¶ 118) (Miss.1999). Accordingly, we grant the trial judge a substantial degree of deference and will not reverse unless the findings are clearly erroneous or against the overwhelming weight of the evidence. Simon v. State, 679 So.2d 617, 622 (Miss.1996). See also Hughes v. State, 735 So.2d 238, 251 (¶ 37) (Miss.1999) (noting that the trial judge, as a fact finder, is always in the best position to evaluate the credibility of the strikes).

¶ 7. Aguilar alleges that the State’s use of two of its peremptory challenges against African Americans constituted a violation of Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Aguilar contends that the trial court erred in finding that the State had offered racially-neutral reasons for exercising its peremptory strikes. Specifically, Aguilar argues that the State justified the striking of two African American jurors by arguing that they had felons in their families while specifically failing to challenge a white juror who also admitted having a felon in his family.

¶ 8. The Batson line of cases prohibits the use of peremptory strikes as a vehicle for racial discrimination in criminal proceedings. Stewart v. State, 662 So.2d 552, 557 (Miss.1995). This purpose is effectuated through a three step process:

First, the defendant must establish a prima facie case that race was the criteria for the exercise of the peremptory challenge.... Second, should the defendant make such a showing, the striking party then has the burden to state a racially neutral explanation for the challenged strike. If a racially neutral explanation is offered, the defendant may rebut the explanation. Finally, the trial court must make a finding of fact to determine if the defendant has proved purposeful discrimination.

Magee v. State, 720 So.2d 186, 188 (¶ 7) (Miss.1998) (citations omitted).

A Prima Facie Case

¶ 9. Although Aguilar failed to offer any proof or argument that the State’s strikes were racially discriminatory, other than the fact that two African Americans had been struck, the trial judge concluded that a prima facie case of discrimination had been established. The State provided its race-neutral reasons for the two strikes; therefore, the question of whether a prima facie case had been established became moot. See Snow v. State, 800 So.2d 472, 478 (¶ 11) (Miss.2001). As such, our analysis will focus on the second and third prongs of Batson.

B. Race-Neutral Explanations

¶ 10. After the opponent of the strike establishes a prima facie case of discrimination, the burden shifts to the proponent to advance race-neutral reasons for striking a member of a distinct racial group. Bush v. State, 585 So.2d 1262, 1268 (Miss.1991). The proponent, however, does not have to articulate the same degree of justification that would be required to satisfy a strike for cause. Id. Rather, “any reason that is not facially violative of equal protection will suffice.” Stewart, 662 So.2d at 558. See also Randall v. State, 716 So.2d 584, 588 (¶ 16) (Miss.1998) (stating that “[u]nless a discriminatory intent is inherent in the [proponent’s] explanation, the reason offered will be deemed race neutral”). The sole inquiry under step two is whether the explanations given are facially violative of equal protection. Puckett, 788 So.2d at 760 (¶ 17).

¶ 11. The State first struck Alice Mosley, an African American female, arguing that she had a felon in her family but refused to mention this fact during voir dire for the case sub judice. Likewise, the State struck Darrel Allen, an African American male, contending that Allen not only had a brother who had served many years in prison, but also lived in the area of the crime. It has been recognized that a juror may be peremptorily struck where it is shown that he or she had family members with criminal records. Magee, 720 So.2d at (¶ 9); Jones v. State, 801 So.2d 751, 759 (¶ 22) (Miss.Ct.App.2001). The State’s reasons for striking Mosley and Allen clearly satisfy this prong of the test. Whether the State was required to also strike a white juror who admitted having a felon in his family is an issue to be analyzed under the third prong of Bat-son.

C. Pretext

¶ 12. The final prong of Bat-son requires the trial court to determine whether the opponent has met the overall burden of proving purposeful discrimination. This determination turns on whether the proponent’s proffered reasons for the strikes are pretextual. Henley v. State, 729 So.2d 232, 240 (¶ 38) (Miss.1998). Once the proponent offers a racially neutral explanation, the opponent may attempt to rebut the explanation. Bush, 585 So.2d at 1268. If the defendant offers no rebuttal, the trial court is forced to limit its examination to only the reasons offered by the State. Id.

¶ 13. “To meet the burden of proving that the striking party exercised its peremptory challenges in a discriminatory manner, the complaining party may employ a comparative analysis of minority and non-minority jurors to show disparate treatment.” Magee, 720 So.2d at 189 (¶ 12). Disparate treatment between similarly situated jurors is strong evidence of discriminatory intent. Berry v. State, 802 So.2d 1033, 1039 (¶ 10) (Miss.2001). However, the disparate treatment is only one of many factors to be taken into account by the trial court; when considered along with the other factors, it is not conclusive proof of discriminatory treatment. Id. “Where the State is able to articulate additional race-neutral reasons for striking the juror in question and uses peremptory strikes against jurors of another race based upon the same articulated reason, we have held that the theory of disparate treatment must fail.” Id.

¶ 14. In the present case, we find that the jurors are not so similarly situated as to give rise to the finding of pretext. The judge’s findings indicate that Alice Mosley testified during a previous voir dire that she had a felon in her family. When asked by a different assistant district attorney during voir dire for the case sub judice whether there were veniremen with felons in their families, Mosley remained silent. The State later moved to have her peremptorily struck, stating that Mosley either had a felon in her family or had been dishonest for not revealing the presence of a felon in her family when, during the previous voir dire, she clearly indicated that there was a felon in her family. The fact that Mosley did not reveal the existence of a felon in her family provides an additional reason, namely Mosley’s dishonesty, in support of the strike. Similarly, Darrel Allen was peremptorily struck for having a brother in his family who had been imprisoned for several years for a drug crime. Additionally, the State argued that Allen lived in the area of the crime. The fact that Allen lived in the area of the crime, combined with the existence of a felon in his family, distinguishes Allen from the white juror who merely had a felon in his family but who did not live in the area of the crime. Therefore, the State provided additional reasons for each of the African American jurors struck that distinguished them from the white juror to whom they were compared.

1115. It must also be mentioned that the trial judge accepted the State’s reasons only after Aguilar made no attempt at rebuttal. .The fact that the State did not attempt to strike the white juror, who admitted having a family member who had been convicted of a felony, should have been argued by Aguilar in making out his prima facie case as well as in rebuttal. See Sewell v. State, 721 So.2d 129, 136 (¶ 36) (Miss.1998) (noting that strength of reasons supporting prima facie case of discrimination will influence judge’s inquiry under prong three). Nonetheless, both Mosley and Allen were struck for factors additional to the existence of a felon in their families. Therefore, the trial judge did not err in finding that Aguilar failed to carry his burden of proving purposeful discrimination.

II. DID THE TRIAL COURT ERR IN FAILING TO RULE THAT AGUILAR’S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 16. Aguilar argues that he should be granted a new trial because his original trial- counsel was ineffective. Aguilar, with new appellate counsel, raises this issue for. the first time here.

¶ 17. It is unusual for this Court to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. This is because we are limited to the trial court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim. See Edwards v. State, 797 So.2d 1049, 1060 (¶ 30) (Miss.Ct.App.2001). The Mississippi Supreme Court has stated that, where the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief. Read v. State, 430 So.2d 832, 837 (Miss.1983). This Court will rule on the merits on the rare occasions where “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). Because a majority of Aguilar’s claims for ineffective assistance are based on mere assertions pertaining to evidence not found within the record, we will not address them on direct appeal.

III. WAS THE JURY’S VERDICT CONTRARY TO THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE?

¶ 18. When reviewing a trial court’s denial of a motion for a directed verdict or JNOV, this Court considers “the sufficiency of the evidence as a matter of law ... in a light most favorable to the State.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). We will accept any credible evidence that supports guilt as true, granting the prosecution “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Wetz v. State, 503 So.2d 803, 808 (Miss.1987). This Court will only reverse where “no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.” May v. State, 460 So.2d 778, 781 (Miss.1984).

¶ 19. Similarly, the weight of the evidence is reviewed in following the trial court’s denial of a defendant’s motion for a new trial. It is well established that new trial decisions rest within the discretion of the trial court. McClain, 625 So.2d at 781. This Court is obligated to accept all evidence supporting the verdict as true and will reverse only where it is clear that the trial court has abused its discretion by refusing a new trial. Herring v. State, 691 So.2d 948, 957 (Miss.1997). “The proper function of the jury is to decide the outcome in this type of case, and the trial court should not substitute its own view of the evidence for that of the jury’s.” Smothers v. State, 756 So.2d 779, 786 (¶ 21) (Miss.Ct.App.1999). Ultimately, a motion for a new trial should only be granted when the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable justice. Welz, 508 So.2d at 812.

¶ 20. After reviewing all of the evidence in a light most consistent with the guilty verdict, this Court finds that the trial judge neither abused his discretion in denying Aguilar’s motion for a JNOY nor in denying his motion for a new trial. As the record reflects, the testimony elicited from the various witnesses during the trial often conflicted; however, the State presented enough evidence, both physical and testimonial, to support the conviction. There was never any dispute as to who stabbed Bo; Aguilar’s sole defense was that his actions were necessary to defend his life as well as that of Tammy’s. However, Aguilar’s defense was weakened when Tammy testified that she was never in fear for her life. Additionally, Tammy indicated that the danger posed by Bo was not eminent and testified that Aguilar had no reason to use the knife. Likewise, Aguilar told the police that he picked up the knife well before his encounter with Bo and intended to use it, not in self-defense, but as a means for scaring Bo. Tammy also made clear during her testimony that she had specifically told Aguilar prior to this occasion that he was forbidden to come to her home. Although Tammy’s testimony was inconsistent at times, it was up to the jury, not the court, to resolve the inconsistencies. See Collier v. State, 711 So.2d 458, 462 (¶ 18) (Miss.1998) (noting that inconsistencies and contradiction in testimony of witness should be resolved by the jury); Benson v. State, 551 So.2d 188, 193 (Miss.1989); Groseclose v. State, 440 So.2d 297, 301-02 (Miss.1983); Nash v. State, 278 So.2d 779, 780 (Miss.1973). As such, this issue is without merit.

IV. DID THE TRIAL COURT ERR BY REFUSING TO ADMIT EVIDENCE PERTAINING TO SPECIFIC BAD ACTS OF THE DECEASED VICTIM?

¶ 21. Aguilar contends that the trial court committed reversible error in denying his right to confrontation by not admitting evidence of Bo Hudson’s history of violence. According to Aguilar, the only contested issue was his mens rea at the time of the stabbing; therefore, Aguilar argues that the evidence was crucial to his claim of self-defense as it was necessary to show that Bo was dangerous and had a history of abusing Tammy. We first note that Aguilar made no attempt to show that he had preexisting firsthand knowledge of Bo’s violent propensities. See Freeman v. State, 204 So.2d 842, 844 (Miss.1967) (noting that evidence of victim’s violent propensity generally not admissible unless defendant had preexisting knowledge of the propensity). Regardless, where there is an issue concerning who the first aggressor was, this Court recognizes an exception to the general rule requiring first hand knowledge and evidence of the victim’s violent propensities may be admitted. Id. at 844; Swindle v. State, 755 So.2d 1158, 1170 (¶ 38) (Miss.Ct.App.1999).

¶ 22. While the trial judge could have admitted this evidence, his failure to do so did not prejudice Aguilar’s defense. See Jackson v. State, 594 So.2d 20, 25 (Miss.1992) (noting that “the admission or exclusion of evidence must result in prejudice or harm, if a cause is to be reversed on that account”). The record reflects that evidence of Bo’s violent nature was placed before the jury on several different occasions. For instance, on direct examination, Tammy stated that she tried to keep Bo from coming down to the house because he had a temper; Tammy asserted that she feared that there would be “a problem” if Bo and Joshua were at the house at the same time. Likewise, Tammy admitted that she and Bo “had a history” prior to this incident and testified that she knew what would happen if she had accompanied Bo outside, implying Bo’s aggressive nature almost ensured that a physical confrontation would have resulted. Additionally, Tammy testified that Bo had kicked her door and broken it the week before the crime and the State chose to allow this evidence without asking the judge to admonish the jury or that a limiting instruction be issued; therefore, the jury was presented specific evidence of Bo’s past, aggressive behavior. If there were any other specific instances of Bo’s aggression that Aguilar desired to place before the jury, as he now claims on appeal, he failed to make any offer of proof; therefore, we will not hold the trial judge in error for the failure to admit evidence of specific acts that were never presented to him for decision. See Cook v. State, 728 So.2d 117, 120 (¶ 4) (Miss.Ct.App.1998). Given that the jury was presented with evidence of Bo’s violent demeanor throughout the trial, and that Aguilar failed to make an offer of proof as to any specific acts other than those mentioned during trial, we find Aguilar’s argument to be meritless.

¶ 23. This Court also takes note of the fact that when asked by the trial court to state his reasons for introducing the evidence, Aguilar replied that the evidence was intended to impeach Tammy’s earlier testimony that she was never in any danger during the duration of the altercation. This reasoning is notably different from that now argued on appeal; as such, Aguilar’s argument is procedurally barred. See Holland v. State, 587 So.2d 848, 868 n. 18 (Miss.1991) (noting that defendant was barred from making an argument where the basis of the argument was different from that raised before the trial court).

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE IS AFFIRMED. SAID SENTENCE TO RUN CONSECUTIVELY TO ANY PREVIOUS SENTENCE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, MYERS AND BRANTLEY, JJ., CONCUR. KING, P.J., CONCURS IN RESULT ONLY. IRVING, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: BRANTLEY, J.,

license: Public Domain

text:
    McKinley BELL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01343-COA.
    Court of Appeals of Mississippi.
    Oct. 22, 2002.
    Rehearing Denied Jan. 28, 2003.
    Certiorari Denied June 5, 2003.

      Patrick Joseph Mcnamara, Jr., attorney for appellant.
    Office of the Attorney General, by Billy L. Gore, attorney for appellee.
    BEFORE THOMAS, P.J., MYERS, and BRANTLEY, JJ.
   BRANTLEY, J.,

for the court.

¶ 1. McKinley Bell was convicted of burglary of a dwelling by a Warren County Circuit Court jury. Bell appeals, arguing that the trial court erred by violating his constitutional and statutory right to a speedy trial and in allowing in-court identification by two witnesses. In addition, Bell argues that the prosecution failed to prove venue and that the trial court erred in taking judicial notice that Vicksburg is located in Warren County. Finding no error, we affirm.

FACTS

¶2. On April 12, 2000, Patricia Steed and Mike Curtis, employees of Vicksburg Paint and Glass, observed an African American male with long hair emerge from the woods behind the home of Teresa Reed which is across the street from their business. They watched him for several minutes until they saw the man they later identified as Bell leave the home pushing a lawn mower down the street and carrying a weed eater.

¶ 3. Bell was arrested and indicted for burglary of a dwelling and grand larceny. The grand larceny portion of the indictment was quashed. During the trial both witnesses testified and identified Bell as the person they saw at Reed’s home taking away the mower and weed eater. In addition, several officers from the Vicksburg Police Department along with the victim, Reed, testified as to the events and investigation. Bell testified on his own behalf, denying any involvement in the crime.

¶ 4. The jury convicted Bell of burglary of a dwelling. A sentencing hearing was later held, at which time Bell was adjudicated an habitual offender. Aggrieved, Bell appeals to this Court alleging several errors on the part of the trial court.

ANALYSIS OF THE ISSUES PRESENTED

I. WHETHER THE TRIAL COURT ERRED IN DENYING BELL’S MOTION TO DISMISS FOR VIOLATING HIS RIGHT TO A SPEEDY TRIAL.

¶ 5. Bell argues that the State violated his right to a speedy trial by failing to bring him to trial within the 270-day period prescribed by statute and by the U.S. Constitution and as a result his case should have been dismissed. However, the State contends that the delays were due to the Bell’s own actions. The record discloses the following pertinent dates:

04/28/00

07/18/00

07/20/00

07/27/00

08/11/00

10/02/00

12/07/00

01/30/01

05/01/01

06/06/01

06/07/01

06/14/01

06/20/01

06/25/01

arrest

indictment

arraignment

motion by defendant for psychiatric examination

order granting defendant’s motion for psychiatric examination

psychiatric report completed

motion to reduce bond

notice of trial date for 6/4/01

motion to dismiss

undated letter demanding speedy trial

order denying motion to dismiss

order reducing bond

notice of trial date 06/25/01

renewal of motion to dismiss

motion to quash count II of indictment

motion to suppress evidence

trial date

1. Constitutional right to a speedy trial

¶ 6. Although Bell alleges both that his constitutional and statutory right to a speedy trial was violated, only the statutory argument was pursued at the trial court level. At the June 14, 2001 hearing on the re-motion, the statutory ground was only discussed by the defendant and ruled on by the court. The statutory right and constitutional right are separate rights which require separate analysis. Simmons v. State, 678 So.2d 683, 686 (Miss.1996). Bell failed to acquire a ruling on the constitutional issue. “It is the responsibility of the movant to obtain a ruling from the court on motions filed by him and failure to do so constitutes a waiver of same.” Martin v. State, 354 So.2d 1114, 1118 (Miss.1978). Therefore, the constitutional issue is waived. Bell v. State, 733 So.2d 372, 376(¶ 11) (Miss.Ct.App.1999).

2. Statutory right to a speedy trial

¶7. According to Mississippi law. “[u]nless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss. Code Ann. § 99-17-1 (Rev.2000). The analysis of the statutory right to a speedy trial is extremely fact specific and relies on whether the defendant or prosecution caused the delays. Sharp v. State, 786 So.2d 372, 377 (¶ 4) (Miss.2001). Therefore, we first must calculate the number of days between the arraignment and trial date not including the actual date of the arraignment. Id. at 378 (¶ 5).

¶ 8. From arraignment to the date of trial, 339 days elapsed. However, sixty-seven of those days are attributed to the defendant’s request for a psychiatric evaluation which are charged against the defendant. Elder v. State, 750 So.2d 540, 543 (¶ 8) (Miss.Ct.App.1999). Motions made and granted on behalf of the defense are charged against them. Herring v. State, 691 So.2d 948, 953 (Miss.1997). After the sixty-seven days attributed to the defendant are subtracted form the total days, the trial commenced on the 272nd day. Although, this would seem to be a violation of the defendant’s right to a speedy trial, our analysis does not end here.

¶ 9. The record is void of any explanation as to why the trial date was changed from June 4, 2001, which was within the 270-day rule to June 25, 2001. Bell’s original motion to dismiss was denied on June 7, 2001. Another motion was filed renewing his request for dismissal on June 14, 2001, and a hearing on the motion was held on that same day. During the hearing, the court and the prosecution offered to reschedule the trial date to an earlier date which would fall within the 270-day requirement. However, Bell’s attorney responded by stating that “to back track now to bring the defendant to trial before the date that the defense was told to be prepared to go to trial, would — would be wrong.” Bell’s response to the prosecution’s offer to change the date showed that Bell was not prejudiced by the delay, and apparently needed extra time to prepare for the June 25, 2001, trial date. Again, no explanation appears in the record for the trial delay from June 4, 2001, to June 25, 2001.

¶ 10. The Mississippi Supreme Court has held that the right to a speedy trial, whether constitutional or statutory, is waivable. Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991). To hold that the State violated Bell’s statutory right to a speedy trial when the defense refused the prosecution’s and court’s offer to try the case within the 270-day time frame would place the prosecution in an impossible situation. Instead, we find that Bell’s refusal to reschedule the trial date to an earlier date which would have been within the 270 days waived his right to a speedy trial.

II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT VENUE HAD BEEN SUFFICIENTLY PROVEN.

¶ 11. At the close of the prosecution’s case-in-chief, the defendant moved for a directed verdict arguing that the prosecution had failed to prove that the crime occurred in Warren County. The trial judge overruled the motion and took judicial notice that Vicksburg is located in Warren County. Bell argues that the trial court erred because one of the officers that testified was not working as a Vicksburg police officer on the day of the crime but as a security officer.

¶ 12. Several witnesses testified as to street names and that the crime occurred in Vicksburg. Officer Dowe, the above mentioned officer, working as a security guard, was not the only person to testify as to the location of the crime being in the city of Vicksburg. The eyewitnesses to the crime both testified that they worked at Vicksburg Paint and Glass located on Holly Street. Testimony also revealed that the house that was burglarized was located on Holly Street in Vicksburg.

¶ 13. A court can take judicial notice that a certain town or city is located within a certain county. See Jackson v. State, 556 So.2d 335, 336-37 (Miss.1990). Accordingly, we find that the trial court was correct in taking judicial notice that the crime occurred in Vicksburg which is located in Warren County.

III. DID THE COURT ERR IN DENYING BELL’S MOTION TO SUPPRESS IDENTIFICATION EVIDENCE ARISING FROM AN IM-PERMISSIBLY SUGGESTIVE PRETRIAL PHOTOGRAPHIC LINE-UP?

¶ 14. The admission or exclusion of evidence is largely within the discretion of the trial court. Hentz v. State, 542 So.2d 914, 917 (Miss.1989). A trial court’s ruling on the admissibility of a witness identification is reviewed for clear error. Neil v. Biggers, 409 U.S. 188, 200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). This Court will not reverse a trial court’s denial of a defendant’s motion to suppress a pretrial photographic lineup identification unless there was a substantial likelihood of irreparable misidentification. Wingate v. State, 794 So.2d 1039, 1042 (¶ 8) (Miss.Ct.App.2001).

¶ 15. An impermissibly suggestive pre-trial identification does not necessarily preclude an in-court identification by an eyewitness who viewed the suspect at the procedure “unless: (1) from the totality of the circumstances surrounding it, (2) the identification was so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.” Buggs v. State, 754 So.2d 569, 574 (¶22) (Miss.Ct.App.2000) (citations omitted). Five factors must be examined in order to determine whether this standard has been met:

1. Opportunity of the witness to view the accused at the time of the crime;
2. The degree of attention exhibited by the witness;
3. The accuracy of the witness’s prior description of the criminal;
4. The level of certainty exhibited by the witness at the confrontation;
5. The length of time between the crime and the confrontation.

Id.

¶ 16. We find that the photographic line-up viewed by Steed and Curtis was impermissibly suggestive. Bell’s photograph was the only one in which a person was depicted with long hair, in an orange jumpsuit and in shackles or handcuffs. Therefore, we must go through each of the above five factors to determine whether the trial court was correct in finding that there was not a substantia] likelihood of irreparable misidentification and allowing the in-court identification by Steed and Curtis.

1. Opportunity of the witness to view the accused at the time of the crime

¶ 17. Steed testified that she saw Bell on a number of occasions during a thirty to forty-five minute period. She saw him come out of the woods twice at the back of the house. In addition, she saw him several times around the house for a number of seconds each time. Then, she watched him as he left the home with the lawn mower and weed eater.

¶ 18. Curtis testified that he saw Bell around the house twice. Each time was for a few minutes. He also saw Bell as he pushed the lawn mower and carried the weed eater away from the house. Both witnesses had ample opportunity to view Bell during the commission of the crime. The crime occurred during daylight and across the street from Curtis’s and Steed’s workplace.

2. The degree of attention exhibited by the witness

¶ 19. Steed testified that Bell’s actions attracted her attention. She found them to be suspicious enough to watch his movements over the next thirty to forty-five minutes. Curtis testified that he paid attention to Bell’s actions for a few minutes on two occasions.

S. The accuracy of the witness’s prior description of the criminal

¶ 20. Both Steed and Curtis described Bell as an African American male with long hair wearing a baseball cap, camouflage jacket and brown pants. The only difference was that Curtis included an approximate height and weight in his description. Their description on that day was accurate enough for one of the police officers to respond that it sounded like BeE.

Ip. The level of certainty exhibited by the witness at the confrontation

¶21. Steed and Curtis both testified that they quickly chose BeE out of the lineup after looking at each picture. BeE argues that they did not pay much attention to the photographs if no one noticed what he was wearing or that he was in handcuffs. However, Steed and Curtis stated that they were looking at faces not clothes. Both were certain that the man they picked out of the line-up was the man they saw on the day of the crime. They additionally testified that they were certain that BeE was the man they saw pushing the mower and weed eater down the street during their in-court identification testimony.

5. The length of time between the crime and the confrontation

¶ 22. Nineteen days had passed between the crime and the line-up. This Court has held that three weeks was not too great a length of time to pass between the crime and the confrontation. Wingate v. State, 794 So.2d 1039, 1043 (¶ 16) (Miss.Ct.App.2001).

¶23. On review, we must determine whether taken as a whole these factors “give rise to a very substantial likelihood of misidentification.” York v. State, 413 So.2d 1372, 1383 (Miss.1982). Although we have found that the line-up was highly suggestive, there is sufficient indicia of reliabüity in both Curtis’s and Steed’s identification to withstand any suggestion of impropriety. In light of the foregoing reasons, we conclude that substantial evidence supported the rehabiEty of Curtis’s and Steed’s pre-trial photographic identification and in-court identification of BeE, and the trial judge’s admission of the identification did not amount to clear error. This issue is without merit.

¶ 24. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE AS AN HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO WARREN COUNTY.

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


author: SOUTHWICK, P. J.,

text:
    Francis Eugene WHITE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01259-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2002.
    Rehearing Denied Feb. 4, 2003.
    Certiorari Denied June 12, 2003.

      Jim Davis, Moss Point, attorney for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   SOUTHWICK, P. J.,

for the court.

¶ 1. Francis Eugene White was convicted of aggravated assault by a circuit court jury. On appeal, he argues prejudicial error in statements made by the prosecutor during opening and closing arguments. White also asserts that his counsel was ineffective, and that certain defense witnesses were improperly excluded. We find no error singly or cumulatively, and affirm.

FACTS

¶ 2. White denies that he was the person who in disguise committed this assault. Nonetheless, the following describes the testimony and inferences that were consistent with the verdict of guilt. On October 22, 1996, the sixty-two year old defendant traveled from his home in Pascagoula to the Long Beach dwelling of his estranged wife, Carol. White was disguised as a telephone repairman, wearing a hard hat and false mustache, and carrying a wire cage box with tools. White cut the cable television wire connected to the house, presumably mistaking it for the telephone line.

¶3. White’s wife Carol was having an affair with Bill Ford. Ford was the only person in the house when White arrived. Duped by White’s disguise, Ford allowed the “repairman” inside. After White entered, Ford recognized him. White then said, “You know who I am, don’t you?” before shooting Ford in the abdomen with, a gun hidden in the tool bag. Ford fell to the floor, feigning death. White fired three more shots, injuring Ford’s hand and ear, before fleeing. Ford, fearing another assault, went to the door and locked it. White may have heard the noise made by the lock and began to kick or beat on the door to regain entry. Ford escaped through the patio door, scaled a six foot fence, and collapsed in a neighbor’s driveway. Police apprehended White at a routine traffic stop. White posted bond a week later and fled the jurisdiction.

¶ 4. White was returned to Mississippi. His trial for aggravated assault began in December 2000, but a mistrial was declared when a witness inadvertently mentioned White’s connection to his wife’s murder. A second trial took place in mid-May 2001. White was convicted of aggravated assault. His appeal has been deflected here.

DISCUSSION

1. Prosecutorial misconduct

¶ 5. The prosecution during opening and closing arguments mentioned bloodstains of the victim that allegedly were found on White’s shoes. Investigators from the Mississippi Crime Lab were able to obtain only enough sample material to type and match for DNA Whatever the substance was, it contained the victim’s DNA While tests proved that these small stains on White’s shoes may have been blood, the results were inconclusive. Similarly, the laboratory that conducted the DNA testing was unable to verify the source material as blood. It obviously was some bodily fluid from Ford.

¶ 6. White filed a motion in limine prior to the first trial that sought to prohibit the State from stating “that the DNA evidence found on the Defendant’s shoes was blood because no scientist or doctor found this DNA evidence to be blood.” White was able to obtain a ruling only that the serology witnesses could not state categorically that the substance was blood. The court restated its prior holding during pre-trial motions before the second trial:

THE COURT: [The serologist] can testify as to her findings on serology,- that it was consistent with what’s in her report indicating the possible presence of blood being identified on the left shoe. And I think that she had stated that she was not able to definitively make that determination because she was afraid that she would use the rest of the sample and there would not be any left for DNA analysis. So I think she is — that’s why I think she can testify as to her findings and why she did not make a further definitive finding. That’s allowed.

¶ 7. It is obvious that White wished for all references to blood to be barred. Instead, he got only this limited ruling that the serologist’s findings could be admitted that the substance contained Ford’s DNA and that it may have been from blood.

A. Opening statements

¶ 8. During opening statements as the second trial began, the prosecutor stated this:

But Long Beach Police, they get his shoes. What does the Crime Lab find on the shoes, but some blood. And they take that and they send it to ReliaGene Technology. And ReliaGene Technology performed DNA, and guess whose blood it is. It’s the victim’s....

¶ 9. During these comments, White made no objection. Though he now asserts that the statements violated the order limiting references to blood, that apparently was not the position taken at trial. If these statements were violative, the failure to object prevented the trial court from remedying the error. A contemporaneous objection permits the trial court to act as is necessary to cure the problem and avoid the needless expense and delay of a retrial. Johnson v. State, 477 So.2d 196, 210 (Miss.1985). For this reason, an appellate court will not consider for the first time on appeal a claim of prejudice arising during the trial since the trial court was not given the opportunity to resolve it after a timely objection. Colburn v. State, 431 So.2d 1111, 1113-14 (Miss.1983).

¶ 10. Procedural waiver may be set aside when a fundamental constitutional right is threatened. Conerly v. State, 760 So.2d 737, 740 (Miss.2000). However, opening and closing arguments are not evidence and are not governed by eviden-tiary standards. “The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Sheppard v. State, 777 So.2d 659, 661 (Miss.2000). Here, we cannot find that such prejudice arose, particularly as White incorporated the evidence into his own defense, as will be discussed shortly.

¶ 11. Whether these comments went beyond proper argument is not altogether clear. Certain witnesses were allowed to refer to their conclusions about stains on White’s shoes and to mention that the substance may have been blood. The presence of blood was unsubstantiated, but potential. The question becomes whether a prosecutor could argue as fact that the only reasonable explanation from the evidence was that the stain must have been blood.

¶ 12. There is wide latitude for counsel in both opening and closing arguments, expanding beyond mere facts and proof to include such “deductions and conclusions [one] may reasonably draw therefrom, and the application of the law to the facts.” Wells v. State, 698 So.2d 497, 506 (Miss.1997). Here, a reasonable inference existed that spots found on White’s shoes which contained DNA matching the victim were in fact blood. Substantial DNA evidence was offered at trial. Pictures depicting the crime scene revealed large amounts of blood. While the serologist could not offer the potentially damning testimony that the stains found on White’s shoes were composed of blood, the evidence certainly was consistent with the inference argued by the State.

¶ 13. Whether the State went beyond the logical reach of the order regarding this evidence is ultimately not necessary for us to decide. It is enough for us to conclude, and we do, that no fundamental right of the defendant was violated when the State argued what the jurors quite likely would have inferred anyway.

B. Closing arguments

1114. White submits that the State engaged in prosecutorial misconduct during closing arguments. White raises three areas for our review: the references to blood found on White’s shoes, the driving times between various points, and a phone call made from Gulfport found in White’s phone record.

¶ 15. Here too, White’s counsel failed to object. A defense counsel must “raise a proper objection when the offensive language is uttered or waive appellate review of the issue.” Foster v. State, 639 So.2d 1263, 1288-89 (Miss.1994). Seeking for potential plain error, we review each issue.

¶ 16. A closing argument is intended to summarize in a fair even if partisan fashion all the relevant evidence that would support a guilty verdict. Sheppard, 777 So.2d at 661. Regarding the State’s closing remarks on the bloodstains, nothing in this argument differentiated it from the State’s opening remarks on the same subject. Still, we find no reversible error. Next, White had relied substantially on an alibi. The alibi included the impossibility of his presence at the crime scene due to distance and driving times from his supposed location at a similar time as the assault. There was conflicting testimony regarding the length of time necessary to travel from Long Beach to Moss Point. Nevertheless, testimony was offered on behalf of the State that the drive took as little as twenty-six minutes. Other evidence, not mentioned by the prosecution in its closing, suggested it would have taken longer. Either party may argue from evidence facts favorable to its case even if the record reflects other facts which contradict them. Evans v. State, 725 So.2d 613, 670 (Miss.1997). Here, jurors were charged with reviewing the conflicting testimony, and it was their decision as to witness credibility and whom to believe. Simmons v. State, 805 So.2d 452, 483 (Miss.2001). It was not error for the prosecutor to argue the evidence most favorable to guilt.

¶ 17. Finally, there was a phone record discussed during trial. White’s essential point is that no one referred to a specific entry on the phone records during the testimony. Therefore, he alleges that it was improper for the prosecution to comment on it. However, White offered the entire bill with all the telephone calls for that time period into evidence. He relied on it substantially to corroborate his alibi. In her closing argument, the prosecutor called the jury’s attention to a phone call which tended to discredit White’s theory.

¶ 18. It is error to argue facts prejudicial to the defendant which are not in evidence or reasonably inferable from facts in evidence. Blue v. State, 674 So.2d 1184, 1214 (Miss.1996), overruled on other grounds in King v. State, 784 So.2d 884, 889-90 (Miss.2001). Those are not the arguments that the State made. Rather, it was commenting on evidence before the jury and which was available to it. In offering the phone bill as evidence, White ran the risk that facts damaging to his cause could be argued from it. There was no necessary predicate that someone had drawn a witness’s attention to that part of the exhibit before closing argument could use it.

C. Ineffective assistance of counsel

¶ 19. White acknowledges that the failure timely to object during either opening statement or closing argument presents a procedural bar to the relief sought. He therefore asserts that such failure constituted ineffective assistance of counsel. Here, White’s counsel not only failed to object, he affirmatively incorporated the evidence into his defense. This appears to be trial strategy, not professional shortcoming. Handley v. State, 574 So.2d 671, 684 (Miss.1990).

¶20. White established through multiple witnesses his theory that blood from the scene may have gotten onto the clothes of law enforcement officials and transferred to White during a gun residue test performed while he was in custody. White’s closing argument expressly advanced this theory. “Easily could one of these officers stepped on the blood and then inadvertently transferred it.... There wasn’t any blood found on my client, except on the top, I point out, the top of his shoes.”

¶21. In order to demonstrate ineffective assistance of counsel, White must show a deficiency in his attorney’s performance which prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). White’s only contention is the failure contemporaneously to object to the prosecutor’s arguments. We have shown the defects in that allegation of default already, and find no ineffective assistance to have arisen. Neither do we find prejudice.

2. Exclusion of defense expert witnesses

¶ 22. Prior to trial, White offered two defense experts. The first, a chiropractor, offered to testify that White was physically incapable of kicking the door in a manner consistent with the markings found on it in the assault on Ford. The second witness was characterized as an “eyewitness identification” specialist, offering to testify that Ford’s impressions and recollections of his assailant were insufficient to implicate White. The lower court excluded both witnesses.

¶ 23. A trial judge has considerable discretion regarding relevance and admissibility of evidence. We will not reverse unless an abuse of this discretion results in prejudice to a defendant. Weeks v. State, 493 So.2d 1280, 1284 (Miss.1986).

¶ 24. White provided discovery regarding the chiropractor on the Friday preceding the Monday trial date. White intended the expert’s testimony to demonstrate that White was physically unable to kick the door in and assault Ford. The trial court found that White had medical records suggesting this diagnosis as early as April 1997, and an obligation to prepare such a defense before the eve of trial. The court found that the prosecution did not have sufficient opportunity to meet the evidence. The State’s opportunity for rigorous cross-examination would not likely have sufficed.

¶ 25. The trial court and the State treated the matter as a discovery violation. We agree. The court was convinced that the matter of White’s alleged infirmity was known well in advance of the Friday at 3:00 P.M. before the start of trial on the following Monday. Once trial commences, there is a procedure by which the surprised party may examine the physical evidence or question the new witness and determine whether unfair surprise or undue prejudice would result from permitting the new evidence. If so, the court should, “absent unusual circumstances, exclude the evidence or grant a continuance” to permit preparation of responsive evidence. URCCC 9.04 I. When a party before trial becomes aware of a discovery violation, the court may order the discovery of the evidence, grant a continuance, “or enter such other order as it deems just under the circumstances.” Id.

¶ 26. On the eve of this trial, the judge entered the order that he deemed just. White had been under indictment for almost four years. The alleged diagnosis of this debilitating condition was of similar vintage. A substantial delay in the trial would have resulted, as the State’s own expert would have had to be selected, would have needed to examine White, and then reached conclusions. We find it within the trial judge’s discretion to exclude this evidence.

¶27. White also challenges the lower court’s exclusion of a proffered “eyewitness identification” expert prior to trial. The court excluded the proposed testimony, citing both timeliness concerns and that he found the evidence did not rely on proven “scientific” principles.

¶ 28. Before expert testimony can be introduced, the science about which that person will opine must be shown to be generally accepted. Crawford v. State, 754 So.2d 1211, 1216 (Miss.2000). Three factors have been identified in considering expert opinion evidence:

(1) whether the subject matter of the proffered testimony is of the sort on which expert opinion evidence will assist the finder of fact; (2) whether the area of expertise is scientifically established so that valid opinion may be produced within that area; and, (3) finally, whether the witness is qualified.

McCaffrey v. Puckett, 784 So.2d 197, 201 (Miss.2001).

¶ 29. The trial judge was disinclined to allow the testimony under both the first and second factors. The judge seemed especially concerned that notice of this proposed testimony was being offered on the eve of trial. We have been shown nothing suggesting that the science about which this expert was going to testify is generally accepted. The merit of refusing this evidence because of the dilatoriness in presenting it is supported by the same arguments as we have discussed regarding the chiropractor who was not allowed to testify. We find that both witnesses could be excluded.

S. Cumulative effect

¶ 30. White finally submits that should his assignments of error fail individually, we must review them again collectively, analyzing their cumulative effect. It is true that an appellate “Court may reverse a conviction and sentence based upon the cumulative effect of errors that independently would not require reversal.” Genry v. State, 735 So.2d 186, 201 (Miss.1999). We must consider whether the combined errors are greater than the sum of their parts, depriving White of a fundamentally fair and impartial trial. Wilburn v. State, 608 So.2d 702, 705 (Miss.1992).

¶ 31. Taking this longer view of White’s claim, we remain convinced that he was afforded a fair trial. Taking the cumulative effect of his arguments, we find no basis to reverse.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF 20 YEARS AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS HEREBY AFFIRMED. COSTS ARE ASSESSED TO HARRISON COUNTY.

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


author:
BRIDGES, J.,
      SOUTHWICK, P.J.,

text:
    Jeno FULOP, Appellant, v. Frank SUTA, Appellee.
    No. 2001-CA-01553-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.
    Rehearing Denied March 11, 2003.
    Certiorari Denied June 5, 2003.

      Goodloe Tankersley Lewis, Oxford, attorney for appellant.
    Jerry P. “Jay” Hughes, Jr., attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Jeno Fulop brings this appeal from a decision of the Lafayette County Chancery Court dismissing his breach of contract action against Frank Suta as barred by the statute of frauds and time-barred by the statute of limitations. Fulop filed a motion to reconsider that the court denied. Fulop then timely perfected his appeal to this Court.

STATEMENT OF ISSUES

I. DID THE CHANCELLOR ERR WHEN HE DISMISSED FULOP’S CASE AS BARRED BY THE STATUTE OF FRAUDS?

II. DID THE CHANCELLOR ERR WHEN HE DISMISSED FULOP’S ACTION AS TIME-BARRED BY THE STATUTE OF LIMITATIONS?

STATEMENT OF FACTS

¶ 2. Jeno Fulop entered into a contract with Frank Suta in 1986 to purchase land from Suta, and for Suta to install on the land a trailer, a well, electrical service, and a septic tank. Fulop paid Suta from the proceeds of the sale of Fulop’s home in California. When Fulop arrived in Lafayette County to receive the conveyance, he discovered that Suta had dug both the well and the septic tank not on Fulop’s property, but in fact on Suta’s property. However, the friendship between the two men prevented any problems from arising for fourteen years.

¶ 3. In May of 1999, the well’s motor burnt out. Fulop offered to help pay for repairs, but Suta told Fulop that Suta’s homeowner’s insurance would cover it. But from May of 1999, Suta demanded monthly payments of $50 for continued use of the water. Fulop countered with an offer of $20 per month, which Suta accepted. These payments continued until Suta cut off Fulop’s water in October 2000, apparently in a dispute over Fulop’s refusal to repair a tractor that Suta owned. Fu-lop was without water service for ten days, during which time he borrowed money from his neighbors, the Kings, and dug a well on his own property. The land under which Fulop’s septic tank sits has since 1986 been sold to a third party not involved in this suit.

ANALYSIS

I. DID THE CHANCELLOR ERR WHEN HE DISMISSED FULOP’S CASE AS BARRED BY THE STATUTE OF FRAUDS?

¶4. Mississippi’s statute of frauds bars oral contracts not to be performed within fifteen months, as well as unwritten leases longer than one year, as unenforceable. Miss.Code Ann. § 15-3-1 (Rev.2000). We are not certain how the chancellor classed the oral contracts involved here, whether as a lease or a personal services contract, as the chancellor provided no conclusions of law to support his decision. In Mississippi, courts sitting without juries are required to provide both a factual basis for their decisions in the form of concrete findings of fact and conclusions of law that are supported in toto by those findings of fact. M.R.C.P. 52(a). Failure to provide this Court with findings of fact and conclusions of law precludes us from performing our appellate duties. Tricon Metals & Servs., Inc. v. Topp, 516 So.2d 236, 238 (Miss.1987).

¶ 5. Presumably, the initial contract where Suta agreed to dig a well and septic tank for Fulop on Fulop’s future property was a contract for services, which the court noted was breached in 1986 when Suta dug the well on his own property and the septic tank on property which was later sold to a third party. Apparently, Fulop consented to the situation, which was presented to him as a fait accompli upon his arrival in Lafayette County from California. The court did not address whether Fulop’s consent created an implied contract for continued water service by Suta to Fulop’s property, but this seems likely.

¶6. However, in 1999 Suta compelled Fulop to pay for the continued use of Fulop’s well (which was situated on Suta’s property and apparently provided water for other neighboring properties also). These payments may either constitute a modification of an existing implied contract for Suta to provide water service to Fulop (who paid for the well initially), or an entirely new personal services contract, or a lease. See Continental Ins. Co. v. Transamerica Rental Fin. Corp., 748 So.2d 725, 734-35 (¶ 40-44) (Miss.1999) (discussing the conditions for oral modification of a written contract); Eastline Corp. v. Marion Apt., Ltd., 524 So.2d 582, 584 (Miss.1988) (discussing difference between modification of existing contract and formation of new contract); Smith v. H.C. Bailey Co., 477 So.2d 224, 234 (Miss.1985) (reversing and remanding summary judgment because the trial court ignored issues of material fact regarding the formation of an oral contract). These issues were not sufficiently addressed by the court for this Court to reach a decision on them, and on this count we must reverse and remand for further findings of fact and conclusions of law.

II. DID THE CHANCELLOR ERR WHEN HE DISMISSED FULOP’S ACTION AS TIME-BARRED BY THE STATUTE OF LIMITATIONS?

¶ 7. Mississippi’s general statute of limitations provides for a three-year time period before the action is cut off. Miss.Code Ann. § 15-1-49 (Rev.2000). Mississippi also provides for a three-year limitations period for purely oral contracts and implied contracts. Miss.Code Ann. § 15-1-29 (Rev.2000). Since Fulop’s action is based on contract theory and on a theory of fraud, it is safe to say that the appropriate time for him to act was within three years of accrual of the cause of action.

¶ 8. Thus the real question facing this Court is when Fulop’s cause of action accrued, which draws on the nature of Fulop’s agreement or agreements with Suta. There is no doubt that as far as Suta and Fulop’s original agreement on the digging of the well and septic tank, the statute of limitations has run. There are however a number of other issues involved, including the nature of the agreement between Fulop and Suta for Fulop’s continued use of the well, and whether Fulop detrimentally relied on Suta’s representations, and whether or not Suta made those representations in good faith. It is quite possible that if Suta made fraudulent misrepresentations, that the statute of limitations may be tolled. Consequently, we must remand for further findings of fact and conclusions of law.

CONCLUSION

¶ 9. We are faced with a dilemma: on the one hand, the findings of fact appear to be directly in the appellant’s favor. On the other hand, the chancellor has not seen fit to grace this Court with clear conclusions of law supported by the facts. The court below speaks vaguely of the nature of the statute of frauds, while refusing to characterize the agreements between Fu-lop and Suta as contracts for personal services or leases. The court also neglected to address the issue of whether the arguably tortious conduct of Suta in coercing payment from Fulop for the use of a well Fulop paid for tolled the statute of limitations.

¶ 10. Consequently, this Court must reverse and remand the case for further proceedings consistent with this opinion.

¶ 11. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY OF DISMISSAL IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J.

SOUTHWICK, P.J.,

DISSENTING.

¶ 12. My concerns arise from one central procedural point. The Court reverses in part because of the limited findings of fact and the absence of any conclusions of law. Findings and conclusions are obligatory only when requested by the parties. M.R.C.P. 52. There was no request here. Moreover, trial judge legal conclusions are reviewed anew on appeal. Therefore the trial court’s legal views, whatever they were, do not control our analysis anyway.

¶ 13. The final, related, and most critical matter is that the majority remands because of the chancellor’s failure to address an issue. We order additional findings and conclusions regarding that point. I find that if an appellant seeks reversal because a matter raised by the pleadings and even the evidence was not initially ruled upon by the trial judge, that party must have first by motion or otherwise pointed out the oversight to the trial court. Here that was not done.

¶ 14. The pleadings raised the issue that once the plaintiff learned in 1986 that the water well was not on his property, that an oral or implied contract to provide water arose. The complaint alleges that Suta had failed to comply with his oral agreement with Fulop in 1986 to have a well drilled on the plaintiff Fulop’s property. Fulop sought a preliminary injunction to require compliance. He also sought damages based on misrepresentation and fraud, breach of oral contract, breach of implied contract if the oral contract was found to be too imprecise, breach of implied covenant of fair dealing, and unjust enrichment. These claims were principally based on the failure of Suta to place the water well and septic tank on Fulop’s property in 1986. There was, though, also an allegation that in order to make amends, Suta had agreed to provide water service as long as the plaintiff Fulop lived on the property. The relatively recent refusal to do so was alleged to be a breach of contract, and to the extent the breach had been Suta’s plan all along, also to have been fraud.

¶ 15. I agree with the chancellor that the statute of limitations would without meaningful dispute bar all the claims except for those based on an. alleged agreement to provide water service for as long as the plaintiff Fulop lived on the property. The chancellor made findings of fact that the agreement to provide a well and septic tank existed and had been breached. He did not address whether there was ever an agreement to provide water so long as the plaintiff remained on the property, and whether that was to be done free of cost. When one person arranges for the digging of a well and presumably the installation of a pump on someone else’s property, that likely leaves the owner of the well responsible for maintenance, equipment replacement, and other costs. If instead there is given a continuing right to have water supplied from a well on the promisee’s own property, determining whether such an agreement is sufficiently definite might include whether it considered allocating future costs of equipment maintenance or replacement.

¶ 16. There was little evidence about what occurred in 1986 once the plaintiff discovered that the well was not on his property. Fulop was asked by his counsel what the arrangement was for receiving water, and the answer simply was that Suta “pumped the water through just like before.” The position taken by the defendant at trial is that regardless of the reason that Suta failed to place the water well and septic tank on Fulop property, the substitute right was not a permanent providing of water with Suta’s paying all the expenses even fourteen years later. There was evidence of substantial expenses for maintenance and the purchase of two pumps in recent years.

¶ 17. I raise these factual matters only to show that the existence and the terms of any implied contract to provide water required analysis by the trial judge. Nothing appears in the findings and conclusions spoken into the record regarding an implied contract to provide water. When a chancellor does not make fact findings on a matter, unless it is an issue that by precedent must be addressed in findings, the appellate court is to imply the findings that are consistent with the judgment. Tricon Metals & Services, Inc. v. Topp 516 So.2d 236, 238 (Miss.1987).

¶ 18. On the other hand, there is nothing in the chancellor’s judgment indicating that he recalled the issue of an implied contract to provide water service. The only allegations that the chancellor addressed concerned the 1986 agreements to have a well and septic tank placed on the plaintiffs’ land. I believe it would be a misapplication of the implied findings rule when there is no evidence that a trial judge even considered a legal issue. Dycus v. Sillers, 557 So.2d 486, 504 n. 70 (Miss.1990) (court “might imply a finding ... were it not that the findings of fact before us make it clear that the Court never focused” on the matter).

¶ 19. I find a different rule applicable that should guide our deliberations. To the extent the plaintiff had another theory that supported his claim, it was his obligation not only to present evidence on the point but to obtain a ruling. Two opportunities existed for counsel to raise this matter. One was when the chancellor finished announcing his findings and conclusions, and he had failed to discuss the implied contract for water service. No request was then made.’ The other opportunity was in a motion for reconsideration. Though a motion was filed, it is not included in the record excerpts. Thus there is nothing before us to indicate that the plaintiff ever sought a ruling on the overlooked issue. The majority does that for the plaintiff by remanding for further findings.

¶ 20. Instead, I would hold that the plaintiffs failure to get a ruling on the issue bars us from doing that for him. In one precedent, a party had pled laches but no ruling on it was ever made. This barred appellate consideration of the issue even though some evidence to support it was introduced:

The problem with Aletha’s laches claim is that though pled it was never litigated nor decided. There is nothing in the record suggesting that the trial judge was requested to make findings of fact or enter conclusions of law regarding the laches plea, see Rule 52(a), Miss. R.Civ.P., and, not surprisingly, the point is mentioned neither in the trial judge’s memorandum opinion of October 26, 1983, nor his final judgment entered November 7,1983.
As a prerequisite to obtaining review in this Court, it is incumbent upon a litigant that he not only plead but press his point in the trial court. See Nationwide Mutual Insurance Company v. Tillman, 249 Miss. 141, 156-57, 161 So.2d 604, 609 (1964) and particularly Stubblefield v. Jesco, Inc., 464 So.2d 47 (Miss.1984) where we recently refused on appeal to consider whether defendant was entitled to a new trial where it had filed a formal motion for a new trial but had not obtained from the trial judge a ruling on that motion.

Allgood v. Allgood, 473 So.2d 416, 423 (Miss.1985).

¶ 21. The desirability of a rule such as this is demonstrated by the present appeal. What the chancellor should have resolved after the evidentiary hearing was for some reason not addressed. Insofar as this record reveals, the chancellor’s failure to rule on the possibility of a permanent contract to provide water was never mentioned to him. The appellate court should not be the first tribunal that considers the oversight.

McMILLIN, C.J., JOINS THIS SEPARATE WRITTEN OPINION.


author: IRVING, J.,

text:
    Elbert Lee SILAS, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01263-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.
    Rehearing Denied March 4, 2003.
    Certiorari Denied June 5, 2003.

      Dan W. Duggan, Jr., Brandon, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   IRVING, J.,

for the court.

¶ 1. Elbert Lee Silas, Jr., appeals from a jury verdict rendered in the Circuit .Court of Hinds County which found him guilty of robbery. He raises four issues, which we quote verbatim: (1) the trial judge committed reversible error in granting the State’s Batson challenges, (2) the trial court committed reversible error when it failed to grant Silas’s directed verdict or JNOV, (3) the trial court committed reversible error in not granting Silas’s petit larceny instruction, and (4) the trial court committed reversible error by preventing defense counsel from making a jury argument concerning petit larceny.

¶2. We find no error; therefore, we affirm the judgment of the trial court.

FACTS

¶ 3. On March 9, 2001, Pamela Drewery and Jennifer Ryals were walking down Minerva Street and turning onto Hooker Street in Jackson, Mississippi. They were going to a local store for milk. While walking, a man known to Pamela as “Pooh” or “Pookie,” but who she later identified as Elbert Lee Silas, approached her and asked her for a cigarette. Pamela responded that she did not have one, and then Silas asked for some change. Pamela explained that she did not have any change. Thereafter, Silas grabbed Pamela’s jacket and removed $40 without Pamela’s permission. An argument ensued. Silas then pulled a gun on Pamela, hit her in the head with a Colt 45 bottle, and she fell to the ground. After getting up from the ground, Pamela ran to a neighbor’s house and called the police. The blow to Pamela’s head caused a cut which required six stitches to close.

¶ 4. Officer Anthony Moore, a detective in the criminal investigations division of the Jackson Police Department, responded to the scene. Pamela described her assailant as a male named “Pooh” or “Pookie” who was six feet to six feet, one inch in height and 170-190 pounds. In the course of his investigation, Officer Moore learned that someone known by the name “Pooh” was actually either Charles Silas or Wayne Silas and lived on Chestnut Street.

¶ 5. Roy Dean witnessed the assault. He later identified Elbert Lee Silas from a police photographic line-up as “Pooh,” the person he witnessed hitting Pamela over the head. Pamela and Jennifer also identified Elbert Lee Silas as the assailant.

¶ 6. Elbert Shas was indicted for armed robbery but found guilty of the lesser-included offense of robbery.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. The Batson Challenges

¶ 7. Silas asserts that his peremptory strikes of jurors Homer Collins and Ruby Clark should have been sustained because he gave race-neutral reasons for the strikes. Shas avers that he explained that Clark was struck because she was a relative of a Mendenhall police officer and had recently had property stolen from her. Also, Collins had experienced a house burglary and was an acquaintance of a Jackson police officer. Following this logic, Silas contends that the court committed reversible error when Collins and Clark were allowed to remain on the jury.

¶ 8. When reviewing a circuit court’s findings under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), we give great deference to the trial court’s findings. Thorson v. State, 721 So.2d 590, 593(¶ 4) (Miss.1998). Thus, a Batson ruling will not be overruled unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence. Id. The pivotal question becomes whether the opponent of the strike has met the burden of showing that the proponent has engaged in a pattern of strikes based on race or gender. Id. Many factors have been examined when assessing a court’s findings under Batson: (1) the number of strikes on a particular class, (2) the ultimate ethnic or gender makeup of the jury, (3) the nature of questions asked during the voir dire, and (4) the overall demeanor of the attorney. Randall v. State, 716 So.2d 584(¶ 12) (Miss.1998).

¶ 9. The record clearly indicates that the judge made an on-the-record finding as to the State’s Batson challenges. Silas made five peremptory challenges, and each of them was against a Caucasian juror. After the judge made an on-the-record finding that the strikes established a pattern of racial discrimination, Silas’s counsel was allowed to give race-neutral explanations for the strikes. The trial judge accepted Silas’s explanation for three jurors and rejected the reasons given for Homer Collins and Ruby Clark because African American jurors with similar circumstances were not struck by Silas’s counsel. The ultimate make-up of the jury was six African American jurors, six Caucasian jurors, one African American alternate juror and one Caucasian alternate juror. We affirm the trial judge’s Batson findings.

2. Denial of Silas’s Motion for a Directed Verdict and JNOV.

¶ 10. Silas contends that allowing the verdict to stand would sustain an “unconscionable injustice” because the requisite intent to commit the crime was not met, and thus Silas should not have been found guilty. Thus, he asserts that reversible error was committed when the judge denied his motion for a directed verdict and motion for a judgment notwithstanding the verdict.

¶ 11. This Court’s standard of review regarding a denial of a directed verdict and judgment notwithstanding the verdict is the same. Baker v. State, 802 So.2d 77(¶ 13) (Miss.2001). When reviewing a trial court’s denial of a motion for a JNOV or directed verdict, we must consider the-evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences which may be reasonably drawn from the evidence and reverse and render where the facts point so overwhelmingly in favor of the appellant that reasonable men could not have found the defendant guilty. Id. However, we must affirm where there is substantial evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions. Id.

¶ 12. Although Silas was indicted for armed robbery, the jury found him guilty of robbery. Mississippi Code Annotated Section 97-3-73 (Rev.2000) provides that “[ejvery person who shall feloniously take the personal property of another in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.”

¶ 13. The testimony is clear that Silas took Pamela’s money from her jacket without her permission. Under such circumstances, the jury was warranted in finding that this act constituted an act of violence against Pamela.

S. The Denial of the Instruction for Petit Larceny.

¶ 14. Silas contends that the jury should have been instructed as to the lesser charge of petit larceny because there was no credible evidence to support a finding of guilt as to the charge of robbery. Also, Silas supports his contentions by noting that he produced a gun only after he had taken the money from Pamela.

¶ 15. In reviewing the denial of a jury instruction, the appellate court must consider not only the denied instruction but all of the instructions which were given 'to ascertain if error lies in the refusal to give the requested instruction. See Coleman v. State, 697 So.2d 777, 782 (Miss.1997). “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in another instruction, or is without foundation in the evidence.” Humphrey v. State, 759 So.2d 368(¶ 33) (Miss.2000).

¶ 16. We do not find error in the trial judge’s refusal to accept the petit larceny instruction. As stated earlier, the record clearly reflects the fact that Silas grabbed Pamela’s jacket and removed the money against her will. This was an act of violence against her person. Thus the lesser-included crime of robbery, not petit larceny, applies to the facts. There is simply no evidentiary foundation for the granting of a petit larceny instruction. Petit larceny involves the taking of one’s property, usually outside of one’s presence, without violence to one’s person or fear of some immediate injury to one’s person. Here the money was taken from Pamela’s person by a violent act of snatching it from her person. This assignment of error lacks merit. We affirm the trial judge’s refusal to grant the petit larceny instruction.

A The Refusal to Allow a Jury Argument Concerning Petit Larceny.

¶ 17. Silas asserts that his counsel should have been permitted to argue that Silas’s crime was nothing more than petit larceny. We disagree with this assertion. Although attorneys are given wide latitude in closing arguments, they are not permitted to use tactics which are reasonably calculated to unduly influence the jury. Cf, Sheppard v. State, 777 So.2d 659, 661(¶ 7) (Miss.2000) (holding that prosecutors are not permitted to use such tactics). Counsel’s invitation to find Silas guilty of petit larceny was not supported by the evidence. Moreover, an argument regarding petit larceny would have unduly influenced the jury to consider a crime which the jury did not have a right to consider. This assignment of error lacks merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF ROBBERY AND SENTENCE OF FIFTEEN YEARS AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: KING, P.J.,

text:
    James R. SANDERS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00837-COA.
    Court of Appeals of Mississippi.
    June 10, 2003.
    James R. Sanders, Pro Se.
    Office of the Attorney General by W. Glenn Watts, for appellee.
    Before KING, P.J., MYERS AND GRIFFIS, JJ.
   KING, P.J.,

for the court.

¶ 1. James R. Sanders perfected this appeal from an order denying post-conviction collateral relief entered by the Circuit Court of Lafayette County, Mississippi. On July 17, 2000, Sanders pled guilty to the reduced charge of murder as part of a plea bargain agreement with the State. Sanders was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections.

¶2. On October 24, 2001, Sanders, pro se, filed a petition for post-conviction collateral relief. On May 1, 2002, that petition was dismissed by the trial court. On appeal, Sanders raises the following issues, which we quote verbatim:

I. When the trial court accepted Sanders guilty plea, the trial court did not follow Mississippi law or the Uniform Criminal Rules of Circuit Court Practice by failing to inform James Sanders of the mandatory minimum sentence which he was to receive.
II. There is overwhelming evidence that the defendant’s counsel was never in the best interest of defending him, during representation or performance before, or during vital stages of defendant’s case.
III. Constitutional rights of defendant have clearly been violated with his ineffective assistance of'counsel.
IV. Defendant had no choice but to plea [sic] guilty with repeated threats made by counsel.
V. A preliminary hearing is a constitutional right.

FACTS

¶ 3. On May 21, 1999, Sanders was indicted for capital murder. He was indicted pursuant to Miss.Code Ann. Section 97-3 — 19(2)(e) (Rev.2000) for the killing of Charles Kenneth Maness during the commission of an armed robbery.

¶4. On July 17, 2000, Sanders, represented by appointed counsel, filed a petition to enter a plea of guilty. Paragraph nine of the petition executed by Sanders states that the maximum punishment which may be imposed by the court is death and the minimum punishment which may be imposed is life with parole. Sanders’ guilty plea was entered that same day, but his sentencing was deferred until July 19, 2000.

¶ 5. During the guilty plea hearing, the trial judge questioned Sanders to determine whether his plea to the murder charge was knowingly and voluntarily made. Sanders testified that he understood the charge and did in fact commit the crime.

¶ 6. The trial judge asked Sanders whether he understood that by pleading guilty he would waive his constitutional rights including the right to have a speedy trial. Sanders indicated that he understood this waiver of rights. The trial judge also asked Sanders whether anyone had made any threats or coerced him into pleading guilty, to which he responded, “no, sir.”

¶ 7. The trial judge questioned Sanders regarding whether any promises had been made to him. Sanders stated that no promises had been made “other than possible life without parole.” The trial judge then asked if he understood that this was considered a part of the plea agreement with the State. Sanders indicated that he understood and that no one had made any promises to him.

¶ 8. Upon inquiry by the trial judge, Sanders testified that there was nothing mentally or physically wrong with him which would hinder or prevent him from knowing and understanding what he was doing at the hearing. Sanders also indicated that he was not under the influence of alcohol or any controlled substance at the time of the hearing. The trial judge asked Sanders whether he understood that sentencing is at the discretion of the court, to which Sanders responded affirmatively. The trial judge accepted Sanders’ guilty plea after having determined that his guilty plea had been knowingly and voluntarily made.

¶ 9. At the sentencing hearing, the trial court indicated to Sanders that since the charge had been reduced from capital murder to simple murder, that “there was no discretion for sentence.” The trial court indicated that “the statute provides for the imposition of a life sentence.” Sanders was then sentenced to serve a term of life in the custody of the Mississippi Department of Corrections.

ISSUES AND ANALYSIS

¶ 10. While Sanders alleges five assignments of error, we will combine the related issues and address them accordingly.

I.

Whether Sanders was informed of the maximum and minimum penalties for the crime charged.

¶ 11. Sanders contends that the trial court failed to advise him of the “mandatory minimum sentence” required for the crime charged. However, Sanders’ petition to enter a plea of guilty, states that he was informed by his attorney of the maximum and minimum penalties for the crime charged.

¶ 12. The supreme court has ruled that failure by a trial court specifically to inform a defendant of the maximum and minimum sentences may be harmless if the defendant-was correctly informed by another source or “if it appears beyond a reasonable doubt that the plea would have been entered anyway.” Thompson v. State, 724 So.2d 1070(¶14) (Miss.Ct.App.1998). If a trial court fails to advise a defendant of a minimum sentence, the defendant must establish that he was misinformed and “that the case was misrepresented or the defendant expected to receive a lesser sentence.” Id.

1113. The record in this case shows that Sanders was informed of the statutory maximum and minimum penalties allowable. Therefore, we find this issue to be without merit.

II.

Whether Sanders’ guilty plea was voluntarily made.

¶ 14. Sanders contends that his guilty plea was not voluntarily made. He makes the assertion pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act of the Miss.Code Ann. Section 99-39-5(l)(f) (Rev.2000). Sanders claims that he “had raised the issue of his history of mental illness” prior to being charged. He maintains that this issue was never investigated prior to his guilty plea. Sanders also claims that he was coerced by his attorney. He asserts that his attorney threatened him with the possibility of going to the gas chamber and that the only way to avoid the death penalty was to plead guilty. Sanders claims that his plea was therefore involuntary because he acted out of fear of the death penalty.

¶ 15. Pursuant to Rules 8.04(A)(8) and (4) of the URCCC, the trial court must adhere to the following to determine whether a defendant understands the nature of the charge and consequences of his plea:

3. Voluntariness. Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.
4. Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:
a. That the accused is competent to understand the nature of the charge;
b. That the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law;
c. That the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination; if the accused is not represented by an attorney, that (s)he is aware of his/her right to an attorney at every stage of the proceeding and that one will be appointed to represent him/ her if (s)he is indigent.

¶ 16. The plea hearing transcript reveals that the trial court determined that Sanders’ plea was voluntary based upon his responses to the court’s questions regarding his plea. At the hearing, the trial judge asked Sanders whether there was anything wrong with him mentally or physically which would hinder or prevent him in any way from knowing and understanding what he was doing. Sanders indicated that there was nothing wrong with him.

¶ 17. Furthermore, the trial judge asked Sanders whether he had been threatened or coerced into pleading guilty, to which Sanders responded, “no, sir.” However, Sanders claims that because of the trial judge’s demand “to tell him that he (Sanders) murdered Charles Kenneth Maness,” that he was coerced into pleading guilty by the trial judge as well. The transcript reveals that the following occurred:

Q. You told me that you understand you are pleading guilty to having murdered Charles Kenneth Maness back on the 27th day of December of 1998. Now, you don’t have anything to worry about. I’m not going to come back and set this order aside. I want you to tell me what you did that you are pleading guilty to and you tell me you murdered Charles Kenneth Maness. Just tell me about it so that I will know you know what you are pleading guilty to. Okay?
A. Well, Your Honor, I was put in a position, I didn’t have no other choice. I was shot myself, you know, from this— by this man at the same time.
Q. But you did kill him and shoot him with a shotgun?
A. Yes, sir, I did.

Sanders also claims that an evidentiary hearing should have been held to determine whether his plea was voluntary. After the court’s inquiry, the trial judge determined that Sanders was aware of his circumstances and the consequences of entering a plea of guilty. The trial judge also determined that Sanders’ plea had been freely, knowingly, and voluntarily entered.

¶ 18. Sanders has not provided this Court with sufficient evidence in support of his claim. Anderson v. State, 749 So.2d 283(¶ 6) (Miss.Ct.App.1999).

III.

Whether Sanders received effective assistance of counsel.

¶ 19. Sanders contends that he did not receive effective assistance of counsel. He claims that his attorney coerced him into pleading guilty by threatening him with the possibility of being sent to the “gas chamber” if he went to trial. Sanders asserts that he told his attorney that he “wanted a jury trial to prove his case. But [sic] attorney failed to comply with his request.” He maintains that his attorney only came to see him twice prior to the plea hearing over a period of nearly two years. In his brief, Sanders alleges that he gave his attorney over “28” names of potential witnesses but none of these people were contacted. However, Sanders bears the responsibility of offering proof of facts to support his claim. Howard v. State, 785 So.2d 297(¶ 6) (Miss.Ct.App.2001).

¶ 20. To establish a claim of ineffective assistance of counsel, Sanders must show a deficiency of counsel’s performance that is sufficient to constitute prejudice to his defense. Swift v. State, 815 So.2d 1230(¶ 17) (Miss.Ct.App.2001). In this case, the record is void of evidence to establish a claim of ineffective assistance. Therefore, this claim is without merit as well.

IV.

Whether Sanders was denied a preliminary hearing.

¶ 21. Sanders contends that he was denied a preliminary hearing which is “a constitutional right.” He maintains that on or about December 29, 1998, his attorney with the public defender’s office waived his (Sanders’) right to a preliminary hearing and that in February or March 2000, after visiting him, “refain [sic] himself from (Sanders’) case.”

¶ 22. The record does not show whether Sanders had a preliminary hearing. However, once the indictment occurs, even had a preliminary hearing not been provided, that question becomes moot. Hogan v. State, 730 So.2d 100(¶ 3) (Miss.Ct.App.1998). The purpose of a preliminary hearing is to explore whether there is probable cause to believe that the defendant has committed an offense. Id. The indictment by a grand jury removes the purpose of the hearing and none need thereafter be conducted. Sanders’ indictment appears in the record; therefore, the preliminary hearing issue is unavailing. Id.

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

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

      . Miss.Code Ann. Section 99 — 39—5(l)(f) (Rev. 2000) provides: (1) Any prisoner in custody under sentence of a court of record of the State of Mississippi who claims:
      (f) That his plea was made involuntarily. • • •