author: SOUTHWICK, P.J.,

text:
    Francis N. BURGESS, Sr., Francis N. Burgess, Jr. and Lula Michelle Burgess, Appellants v. H. Alex TROTTER, Appellee.
    No. 2001-CA-01098-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Clay L. Pedigo, Jackson, for appellants.
    Stephen L. Beach III, Jackson, for ap-pellee.
   OPINION ON MOTION FOR REHEARING

SOUTHWICK, P.J.,

for the Court.

¶ 1. H. Aex Trotter filed a complaint in the Hinds County Chancery Court against adjoining landowners to quiet and remove clouds on title to real property. A counterclaim that their own title be quieted was filed by the defendants, Francis N. Burgess, Sr., Francis N. Burgess, Jr. and Lula Burgess. The chancellor ruled for Trotter on most of the disputed property, and also determined the location of a 140-yard strip of land. The Burgesses appeal. We find that the chancellor’s decision and our initial opinion left undetermined the location of the 140-yard strip. We further conclude that there was substantial proof regarding possible errors in certain deeds in the chain of title. Whether there were errors and, if so, their effect on the location of the 140-yard strip or on the other land was never addressed by the chancellor. Accordingly, we reverse and remand for further proceedings.

FACTS

¶ 2. For clarity, a plat is attached to this opinion (exhibit 3 at trial, with a driveway from exhibit 6A added). The current suit has involved parcels 1, 2 and 3 on the plat. In 1997, Francis Burgess, Sr. decided to sell certain property, retaining only his fenced homestead in the northwest corner of the property. After receiving an offer, Burgess had a survey prepared. Burgess would later testify that this was the first time anyone became aware that the legal description of the western edge of certain property that his family had owned since 1927 was about 100 feet east of the old Bolton-Brownsville road bed and not at the road bed itself. Trotter disputed this. He testified that his family always knew that the boundary was east of the old road.

¶ 3. Burgess attempted to purchase a quitclaim deed on the disputed property from Trotter, but Trotter declined. Burgess then filed an adverse possession suit. Trotter filed no counter-claim. On September 11, 1998, the Hinds County Chancery Court dismissed the claim due to the Burgesses’s failure to prove exclusive use. Instead, the chancellor found that both parties had been using the property. Thereafter, on May 12, 1999, Trotter filed the present complaint against the Burgess-es to confirm title and remove clouds. The Trotters claimed all of the NW 1/4 of SW 1/4 of the relevant section, arguing that the Burgesses owned nothing within that 40-acre tract. The defendants filed a counter-claim to quiet their own title to about six acres in the same quarter-quarter section.

¶4. There are two title issues to be resolved in the suit. One is the location of an ambiguously described tract of land first conveyed in 1941 after the public road in this area was shifted to the west. The other is ownership of land adjacent to the old road, an issue that arises because of one party’s evidence, disputed by the other, that the historical descriptions of this property were based on a mistake about the location of the public road in relation to the dividing line between the NW 14 of the SW 14 and the NE 14 of the SW % On the exhibit to the opinion, parcel 1 is the surveyed location of the easternmost 2.5 acres in the NW 14 of the SW 14. There was contested evidence that the community had operated with the understanding that the east line of the quarter-quarter section was farther west than the survey found. This view promoted the thesis that the 2.5 acre tract was conveyed to the Burgesses in 1927 to allow the property that they owned to the east to connect with the old road. The modern surveys insist that obtaining the eastern 2.5 acres only got the Burgesses closer to the road but did not reach it. The 1927 deed to the 2.5 acre tract also conveyed the 2.5 acres immediately south, such that a narrow 5-acre strip was conveyed parallel to the road that ran generally north and south throughout the W 14 of the SW 14 of the section. The Burgesses owned everything immediately to the east of that 5-acre strip.

¶ 5. Trotter’s failure in his complaint to acknowledge the 1927 deed to the Bur-gesses of the easternmost 2.5 acres in the 40 acres that Trotter claims has been rectified. The Burgess title to that tract (parcel 1 on the plat) is no longer contested. What remains is determining title to about 4 acres of land. A decision must be reached without the element of meaningful possession by either party. The former suit in which the Burgesses were found not to have possessed adversely any of the property is not res judicata at least as to the record title issues. Whether res judicata applies to any contested matter in the present litigation will be discussed below.

¶ 6. According to the deeds introduced into evidence, over ninety years ago the Trotter family became the record title holder of the NW % of the SW % of the section. The Burgesses became the record title holders of the 2.5 acres on the east side in 1927, and also own contiguous property to the east and south. Into this ownership was injected in about 1939 the moving of the Bolton Brownsville Road west of its former location in the NW % of the SW %. The old road ran essentially due north and south; the new road has more curvature. As indicated above, it is unclear whether the Burgesses, by owning the easternmost 2.5 acres, were thought to own everything east of the old road and the Trotters everything that was west. The understood state of ownership would help explain the intent of a 1941 deed executed by plaintiff Trotter’s grandparents to the father of defendant Francis Burgess, Sr. The deed conveyed this land:

A narrow strip of land, approximately 140 yards long, lying between the old and new Bolton and Brownsville Highway, and adjoining the land now owned by said A.L. Burgess, and being in the west half of the southwest quarter of Section 20, Township 7 in Range 2 West, containing one acre more or less.

Trotter argued below that this was a void description, but on appeal he concedes that the Burgesses received something by this deed. There is not a definite 140-yard tract of land between the old and new roads, no matter how the tract is configured. Thus, this suit, this appeal, and this rehearing.

¶ 7. The Burgesses claim that the 140-yard dimension was intended to run north and south between the two roads. By making the northern boundary of the tract the same as the northern boundary of the NW % of the SW % and the southern boundary an old fence, a 1.33 acre tract results. However, according to a survey admitted into evidence, this would make the strip of land approximately 700 feet in length, 156 feet wide at the southern end and 45 feet wide at the northern. None of those dimensions are close to the 140 yards (420 feet) mentioned in the deed.

¶ 8. In addition to the deed with ambiguous language, the Burgesses also claim that they acquired this strip of land, plus all the land east of the old road bed, through continuous and exclusive use.

¶ 9. To the contrary, Trotter claims that the western boundary line of the east 2.5 acres was never thought to be at the old road bed. That would mean that the Burgess family has never had frontage on the road, old or new, nor until the 1941 deed even had formal right of access. If the Burgesses before 1941 had accessed the old road where it crossed through this forty acre tract, it had been only by the Trotter’s sufferance. Instead, Trotter claims that the 140-yard strip is basically a roadway that runs east from the new Bolton and Brownsville road to the Burgess property. Trotter argues that the strip is the present location of the Burgess driveway. The driveway, according to an aerial photograph introduced into evidence and as drawn onto our exhibit, extends easterly from the Bolton and Brownsville Road at a location about 100 feet south of the northern boundary of the NW % of the SW }4. Like the Burgess claim, the Trotter interpretation does not succeed in making the 1941 deed description fit with the survey information. It is not 140 yards from the new road to the edge of what Trotter claims is the western edge of the Burgess property, but less than 200 feet at the location of the present driveway.

¶ 10. The testimony was much in conflict. If the evidence at this trial was similar to that presented in the 1998 adverse possession suit, we understand why the earlier chancellor found that neither party had exclusive possession. Trotter and several witnesses testified in the present litigation that they had hunted, mended fences and farmed on the property on the east side of the old road bed to the fence line just south of the Burgess driveway. The fence that creates a southern boundary for the Burgess homestead is roughly parallel to but 150 feet south of the driveway. Sarah Trotter (the plaintiffs mother) testified that she was present during the negotiations for the 140-yard strip of land and that the strip ran east to west to the existing Burgess driveway. In addition, a transcript from the 1998 suit was admitted into evidence. Trotter emphasizes this answer by Francis Burgess, Sr.:

Question: So the 140 yard strip was actually between the — in front of the old house, headed out toward the new road?
Answer: That would be correct.

¶ 11. As with many aspects of the case, there is ambiguity as to what this witness meant. The witness had just finished saying that his family already owned everything in the NW \ of SW 14 east of the old road. It would be inconsistent for him then to testify that his family needed a deed to anything east of the old road. He then said that “the 140 yards started from the south side of the driveway because the driveway between the old and the new road was considered a public road because it went east to people that lived back behind our place.” The previously quoted question and answer about the road being in front of the old house immediately followed this answer.

¶ 12. What Burgess meant by saying that the “140 yards” starts on the south side of the driveway between the old and new road is also confusing. The east-west distance between the old and new roads at that location was 100 feet or less. Burgess also did not say that the 140 yards started on the east side of the new road, but on the south side of the driveway. If the south side of the driveway is a boundary, that might just as logically mean that the tract went north or south from the driveway between the two roads for 140 yards.

¶ 13. Obviously, the confusion about the 140-yard tract is significantly affected by the uncertainties of whether the parties believed at the time of the 1941 deed that the Burgesses owned all property east of the old road. What land the Burgesses needed to be conveyed as a result of the movement of the road depends on what land they already owned.

¶ 14. The chancellor found that the parties owned the properties as stated in their deeds and as located by current surveys of the deed descriptions. Her initial opinion said “that title to the 140 yard strip shall be vested in H. Alex Trotter,” but then at the conclusion of the opinion held that the Burgess family owned “a strip beginning at the South edge of the Burgess driveway running East over to the Burgess property.” After requests for clarification, she added to the end of the just-quoted description of the tract: “which strip was conveyed by Warranty Deed,” and then gave the recording information for the 1941 deed of the 140-yard tract.

¶ 15. From this judgment, the Burgess-es appeal.

DISCUSSION

1. Location of 14-0-yard strip

¶ 16. The Burgess argument is that the chancellor’s effort to locate and then describe the 140-yard strip conveyed in 1941 leaves the property ambiguously situated. They also argue that the plain language of the 1941 deed has been ignored, and that a tract smaller than the one acre mentioned in the deed has been confirmed in them.

¶ 17. Fact-findings made in a lower court must be reasonably supported by the record. If they are, then the findings will be upheld. How the judge applies those facts to resolving the legal issues presented by the case is a matter for de novo review on appeal. Lee Hawkins Realty, Inc. v. Moss, 724 So.2d 1116, 1118(¶ 8) (Miss.Ct.App.1998).

¶ 18. The initial problem with the chancellor’s ruling is that it does not describe an identifiable tract of land. The decree described the tract as “beginning at the South edge of the Burgess driveway”; this is a point of beginning only if we infer a beginning at the driveway’s intersection with the public road. The tract is then described as “running East over to the Burgess property.” We assume that this means to run east along the southern boundary of the driveway as it angles slightly north according to the aerial photograph. The “Burgess property” would be the property confirmed in the defendants in this suit,' which is the easternmost 2.5 acres in the NW \ of the SW %

¶ 19. Among other description defects, there is no indication of whether the southern boundary of the driveway is the northern or southern boundary of the tract. If it is the northern, then the tract whose title was confirmed in the Burgesses would not give them title to their own driveway. What is also unstated is the remaining boundary: how far north or south does the tract then go? Perhaps it is the driveway itself across Trotter land that is solely being confirmed in the Burgesses. Though requests for clarification caused a reference to the official recording of the 1941 deed to be added to the description, nothing appears in the deed to confirm the location of the tract. The deed mentions 140 yards and one acre, more or less. The 140 yards have always been a cause of and not the answer to ambiguity. The fact that the tract is to be approximately one acre could mean that the chancellor was saying that the property is a one acre tract with the driveway as either the north or south boundary, the new road as the western, and the Burgess property as the eastern. See Herod v. Robinson, 149 Miss. 354, 115 So. 40 (1927) (“140 acres in south part of section 31,” east of road and west of another tract, is valid description). We still would have the question of whether the tract is north or south of the driveway. We find any answer we give to be entirely speculative based on the manner in which the decree is written. Also, because of what we conclude about the evidence, we find other reasons to remand for further proceedings.

¶ 20. The issue of whether the 1941 deed contained a void description that conveyed no property at all was contested at trial. There was expert testimony that the deed description could not be platted due to its lack of starting and ending points. That is undoubtedly true. This issue is not a question on appeal, however. Trotter has affirmatively conceded that Burgess received title to some property in this deed, so the trial court must resolve what tract the 1941 parties intended to convey. Nothing we conclude here is a holding as to whether or not a description such as this is void.

¶ 21. To locate this tract, we look first at the deed: “A narrow strip of land, approximately 140 yards long, lying between the old and new Bolton and Brownsville Highway, and adjoining the land now owned by said A.L. Burgess.... ” Ignoring the 140 yards of undirected distance, the language suggests that the entire property is between the old and new locations of the road, and that by lying there, it also borders the Burgess property. Without giving too much weight to the almost weightless, we conclude that the most natural reading of the deed language itself is consistent with the Burgess view that their family property historically bordered the old road. Trotter maintains that a substantial distance lay between the old road and the western edge of the Burgess property. If that was the premise for the deed, then added to the deed should be the bracketed language: “lying between the old and new Bolton and Brownsville Highway, and [then extending east across Trotter property in order to] adjoint ] the land now owned by said A.L. Burgess.... ” That would still leave unstated the north and south boundaries of the tract. This deed answers few concrete questions.

¶ 22. Since we find the natural reading of the actual language is to define a tract that lay totally between the two roads and was contiguous to land then owned by Burgess, we examine the effect of each party’s argument about the deed’s meaning to see if either falls within these parameters. The Burgesses presented a surveyor who prepared a plat of an area that was between the two roads. It is shown on our exhibit as parcel 3. It is strictly land between the two roads, has the northern boundary of the NW % of the SW ]4 as its northern boundary, and extends south to what the surveyor had found was an old fence. The Burgess position is that the fence indicates what the neighboring landowners long ago physically established as the tract that had been conveyed. This surveyor testified that between the date of his two 1997 surveys, the old fence had been torn down.

¶ 23. Two difficulties arise with this evidence. The first is size. The tract is 1.33 acres, not one acre. More outsized is the distance. It extends about 700 feet, not 420 feet. If either the northern or southern boundary of the platted tract is definitely what was intended by the 1941 deed, the other survey boundary may be different than what was intended to be conveyed.

¶ 24. The other problem is that under current surveys, the tract is not “adjoining the land [then] owned by said A.L. Burgess,” but is separated from that land by what the attached plat identifies as Parcel 2. That is why the Trotter’s argued and the chancellor accepted that the tract begins at the new road, crosses the old road, and then keeps on going. However, several witnesses suggested a long-time, different understanding than that reached by the surveyors in the late 1990’s, of the location of the east line of the NW % of SW ]4. Francis Burgess, Sr. testified that the 1927 deed of the eastern 2.5 acres in the quarter-quarter section had been intended to convey to the Burgess family the land between the old road and the eastern line of the NW ]4 of SW % since the Burgesses already owned the property further east. Burgess stated that the 1997 survey was the first time that he learned that the family’s deed descriptions did not extend to the east boundary of the old road.

¶ 25. There was further testimony on both sides of the issue of common error. An abstractor for a title insurance company examined the records on this property back to 1838. It was his opinion that the eastern 2.5 acres were conveyed in order to give the Burgess family the property between the old road and the east fine of the NW ]4 of SW \ Thus when the Burgess family got the eastern 2.5 acres in the NW ]4 of the SW % and also a similar tract to the south, it was his opinion that they were thought to be getting the land between their existing property and the road.

¶ 26. W.C. Alderman, the surveyor whom the Burgesses employed, testified that when he performed a survey in September 1997, there was an old fence along the west line of parcel 2 as shown on our exhibit. That fence followed the depression left by the old Bolton and Brownsville roadbed, and was on the east side of where the road had been. That fence continued south of the property in dispute here. At the bottom of parcel 3, which is what the Burgesses have argued is the 140 yard tract, was another old fence that went west to the boundary of the present public road. This was a barbed wire fence in which a line of trees 24 to 30 inches thick had grown. The fence was in fairly good condition. From his experience, that fence would have been there at least 30 or 40 years. The surveyor also noted a fence at the midpoint of parcel 3 as shown on our exhibit. That seemed of equal vintage and condition. To the north and east of the latter fence was the Burgess home. It was the Burgess position that these fences marked boundaries for their long-time property.

¶ 27. The surveyor went back to the property in November 1997. The fence along the western side of parcel two had been destroyed, and the iron pins had been removed. Then the surveyor testified about a second fence, apparently meaning the one that formed the southern boundary of parcel 3, and it too had been removed and the iron pins pushed over and destroyed.

¶ 28. Trotter’s witnesses testified that their family had never thought that the Burgess property reached the old road. Trotter was asked repeatedly about the point and denied any misconception. When Trotter was asked about the destruction of fences, an objection was sustained.

¶ 29. The chancellor’s findings did not address the matter of a potential mutual mistake at the time of the old deeds about the location of the east line of the quarter-quarter section. Neither is there discussion of what is fairly credible evidence that there were long-time fences. Instead, by relying on the survey platting of the deed descriptions, she found that Trotter owned everything except the east 2.5 acres in the disputed property, and the 140-yard strip. She also found consistently with what the earlier litigation had determined, that the Burgesses did not have the kind of significant and exclusive possession necessary to wrest ownership away from the record title owner.

¶ 30. As to the 140 yard strip, the chancellor concluded that the strip of land could not just be between the two roads but had to go farther east to join the property then owned by A.L. Burgess. According to the language of the deed, the strip was between the roads but also had to join the property then owned by A.L. Burgess. Since there was no consideration of the principle of a mistaken and correctable description in the deeds, the possibility that the A.L. Burgess property did actually join the old road was not analyzed. In fact, we find that a quite credible interpretation of all the evidence, especially the conveyance in 1927 of a total of 5 acres, half in the forty acre tract involved in this suit and the other half to the south, was that the Burgess family was to receive the land between their eastern property and the old road. No other plausible explanation for the 1927 conveyance of a pinched half mile tract appears in the current record. Perhaps there is one, though.

¶ 31. No definite description of the 140-yard strip has yet been made. We also find that the failure to make findings on the mutual mistake concept leaves us unable to conclude that the factual validity of the concept was accepted or rejected before deciding where the property covered by the 1941 deed was located. It is true that the Burgesses never asked for reformation as to the deeds involving the east 2.5 acres, but we do not find that important in the fact-finding as to the 140-yard tract. The relief of reformation is not needed in order to use the concept of mistake when interpreting what this different deed was intended to accomplish.

¶ 32. We find that insofar as the 140-yard tract is concerned, the evidence of mistake on the understood location of the Burgess property’s western boundary was central to determining what the 1941 deed was intended to do. If the Burgess property was contiguous to the old road, then when the new road was shifted west and given more curvature, only on the north did the new road curve relatively close to the Burgess property. That is where the Burgesses now argue they received property lying totally between the two roads and adjoining their land. We reverse as to this tract so that the credibility and weight of the evidence about mistake can be determined.

¶ 33. As to the principle of reformation, we note that a deed description that arises from a mutual mistake of the parties may be corrected. That a mistake existed must be proved beyond a reasonable doubt. McCoy v. McCoy, 611 So.2d 957, 961 (Miss.1992). There was substantial circumstantial evidence and also physical fences. Whether these proved a mutual mistake was for the chancellor to decide. If so, then a deed may be corrected to reflect what the parties intended at the time. “Adverse” possession by the grantee is not thereafter needed. To maintain title, the grantee simply must not have permitted someone else to use the property adversely. We do not enter the intricacies of Mississippi Civil Procedure Rule 8(a) on whether the counter-claim made a sufficient statement about reformation of deeds. The Burgesses sought to have title quieted in them based both on record title and on adverse possession. The only manner in which the deeds could have supported record title was by reformation. The initial relief of deed reformation likely should have been requested. Still, the matter was tried by consent when both parties addressed at considerable length whether there was an historical error. Since we are reversing on the 140-yard strip, the same uncertainty about whether the chancellor considered all the legal issues raised by the evidence causes us to reverse on the remaining contested property. Any pleading requisites can then be dealt with.

II. Expert Witness

¶ 34. The Burgesses argue that the chancellor abused her discretion in relying on the testimony of Trotter’s expert over their own. We find this issue largely to be academic, as new proceedings on remand may change the mix of evidence and reliance.

III. The Burgess adverse possession claim

¶ 35. The Burgesses claim that the chancellor erred in denying their claim for adverse possession of the disputed property. For possession to be adverse, it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992). The adverse possessor must establish by clear and convincing evidence that each element is met. Id.

¶ 36. The evidence of use was much in conflict, and even if we were to determine that it favored the Burgess family, and we do not indicate any opinion, the weight and credibility of evidence is largely for the trial level fact-finder. We can accept that neither side presented sufficient evidence to prove that it had overcome the record title of the other. The res judicata effects of the 1998 suit, then, which did not confirm title in anyone but only dismissed the Burgess claim of adverse possession as not having been proven, need not be considered. We find the matter of adverse possession has been fully presented, and we affirm the determination that there was none.

IV. Trotter’s Deraignment of Title

¶37. The Burgesses argue that Trotter failed properly to deraign his title since he did not list three deeds which conveyed away some of the property in the NW 54 of the SW 54.

¶ 38. In order to have clouds removed from a chain of title, the claimant must establish perfect title in himself. Culbertson v. Dixie Oil Co., 467 So.2d 952, 954 (Miss.1985). Trotter deraigned title beginning with the 1834 patent, then picking up title again in 1905. Initially, Trotter was claiming the east 2.5 acres of the land involved. Among the omitted deeds were those conveying away that property. There was a description error in some of the deeds to the 2.5 acre tract, which formed the basis for the argument that the Burgesses did not own any property at all in the NW 54 of the SW 54. The deed of conveyance of the 140-yard tract was also omitted. Both were mentioned in the complaint, though, as deeds whose removal as clouds was being sought.

¶ 39. We find compliance with the obligation to deraign title, and no interference with the truth-seeking function of the trial court.

V. Refusal to allow impeachment of witness

¶ 40. The Burgesses argue that the chancellor erred in refusing to allow Trotter to be impeached by use of testimony in the 1998 litigation. During cross-examination, the Burgess counsel began to ask Trotter about a fence. Counsel was apparently seeking confirmation that Trotter had removed it. This is part of the same fence that formerly had been on the eastern boundary of the old roadbed and according to surveyor Alderman, had been removed between September and November 1997.

¶ 41. An objection was made as to the relevancy of the issue. The chancellor determined that the land at that location was not involved in the present litigation. No proffer was made of what the response might have been. Murray v. Payne, 437 So.2d 47, 55 (Miss.1983). There at least was evidence already before the court that a fence formerly marking the boundary of parcel 2 along the old road bed had been removed. If the issue of a fence, its purpose, origins, and removal, resurfaces during new proceedings, this impeachment can be reconsidered.

VI.Denial of Restraining Order and Supersedeas.

¶ 42. The Burgesses sought a restraining order and a stay of judgment pending an appeal. That was denied. Since we are reversing, supersedeas for the Bur-gesses is now academic.

Conclusion

¶ 43. We reverse and remand for reconsideration of the 140 yard strip because it has not yet been definitely located. We also reverse and remand the determination of the ownership of parcel 2 on our exhibit, which is the land between the old road and the eastern 2.5 acres of the NW 54 of SW 54, for reconsideration in light of this opinion. Finally, we hold that the issue of adverse possession by the Burgess family of any of the disputed land has been finally adjudicated against them. The chancellor may conduct such additional evidentiary or other proceedings as appear appropriate.

¶ 44. THE JUDGMENT OF THE CHANCERY COURT OF THE SECOND JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLEE.

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

      . This opinion replaces the Court’s former opinion. The motion for rehearing is granted.


source: Caselaw Access Project

author: KING, P.J.,

license: Public Domain

text:
    Floyd D. RASH, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-KA-01318-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    Allan D. Shackelford, Clarksdale, for appellant.
    Office of the Attorney General by Charles W. Maris, for appellee.
   KING, P.J.,

for the Court.

¶ 1. Floyd D. Rash was found guilty by the Circuit Court of Coahoma County of armed robbery. He was sentenced to a term of life imprisonment, as an habitual offender in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction, Rash has appealed and raised the following issues:

I. Did the policeman’s testimony constitute expert testimony?
II. Whether the trial court erred in allowing Officer Salley to refer to the store clerk as “a victim.”
III. Whether the verdict was against the overwhelming weight of the evidence.

FACTS

¶ 2. On November 19, 2000, Yvonne Michelle Young was working as a cashier at Bull Market # 30, a convenience store in Clarksdale. At approximately 3:30 a.m., Ms. Young, who was alone in the store, heard a knock on the drive-through window. Ms. Young saw an individual who was a regular customer. Although she did not know his name at the time, the individual was later identified as Rash.

¶ 3. Rash asked for three packages of Newport cigarettes. After retrieving the cigarettes, Ms. Young turned back to the window and saw Rash pointing a silver pistol at her. Young testified to being really afraid of guns, and really upset when the gun was pointed at her. According to Ms. Young, Rash said, “Michelle, I’m robbing you.” Ms. Young indicated that she stepped back, “let him come to the window, and he opened the cash register.” Ms. Young stated that Rash retrieved “some fives and some ones” from the cash register. Rash then jumped back out of the window and told Ms. Young not to call anyone or tell anyone that he had been there that morning.

¶ 4. Immediately after the incident, Ms. Young contacted the police. According to Officer Willie Hudson of the Clarksdale Police Department, upon arriving at the scene, he found Ms. Young in the store alone, “crying and upset, hysterical and scared.” Officer David Rowsey of the Clarksdale Police Department who was in the area and received a call that the Bull Market store had been robbed and that the suspect was “a black male wearing dark colored pants with a green jacket.” Officer Rowsey saw a person in the area who fit that general description. He stopped the individual and asked him his name and why he was standing near a shed. The officer stated that the individual “was breathing real hard and his nose was running as if he had been running.” As a safety measure, the officer patted the individual down and found money balled up in his front pants pockets.

¶ 5. Officer Rowsey had Officer Brenda Herman transported the suspect to the store where he was identified by Ms. Young as the robber. Ms. Young later identified Rash from a photographic lineup as well. At the jail, Officer Chris Sal-ley removed approximately fifty-two dollars (in ones and fives) from Rash’s pockets.

¶ 6. On June 6, 2001, Rash was indicted for armed robbery pursuant to Mississippi Code Annotated Section 97-3-79 (Rev. 2000), as an habitual offender. At trial on July 16, 2001, Rash was found guilty of armed.robbery. On July 19, 2001, Rash was sentenced to a term of life imprisonment in the custody of the Mississippi Department' of Corrections.

ISSUES AND ANALYSIS

I.

Did the policeman’s testimony constitute expert testimony?

¶ 7. Rash contends that the trial court erred by allowing the testimony of one of the police officers who was not qualified to give expert testimony. He maintains that no attempt was made to qualify Officer Salley as an expert either by training or experience, so as to allow him to give an opinion as to why yellow markings which were on the bills at the time of the arrest were no longer present on the bills at trial. Rash contends that such testimony is not subject to lay opinion testimonies under Rule 701 of the Mississippi Rules of Evidence, and is appropriately covered by Rule 702, which addresses expert testimony.

¶ 8. The admissibility of evidence rests within the trial court’s discretion. Crawford v. State, 754 So.2d 1211(¶ 7) (Miss.2000). Unless its judicial discretion is abused, this Court will not reverse its ruling. Id.

¶ 9. Officer Salley’s testimony regarding the yellow marks on the bills was as follows:

Q. What, if anything unusual, did you observe on the one-dollar bills or the five-dollar bills?
BY MR. SHACKELFORD (for the Defendant): — I’m going to object to this because I think the bills themselves speak for themselves. If in fact they are the same.
BY THE COURT: Well, I’m going to overrule it and let him testify as to what he observed. The question was what did he observe unusual about the one-dollar bills.
A. I observed 82 just regular one-dollar bills. Then there were five five-dollar bills. On the five-dollar bills I observed yellow markings scribbled across the front of every one of the five-dollar bills.
Q. Through your experience as an investigator, were you able to determine what type of markings were on the five-dollar bills?
A. Yes, sir.
Q. What was that?
A. They make counterfeit money pens that are used in banks and in stores like this to mark the bill to see if it’s a counterfeit bill or if it’s a good bill. If it is a good bill it leaves a yellow mark because of the paper that’s used. If it is a counterfeit bill then it will leave a brownish black mark on the bill so that the cashier can tell if it is a good bill or not. And these all had the yellow markings across the front.
Q. Can you explain the difference between what you testified you saw at the point of taking them from the defendant until today?
A. Yes, sir. I can. The yellow mark faded away. I didn’t understand why. I opened my case file, looked in, and the yellow mark is gone off of all the five-dollar bills. So I investigated further and found that — which I didn’t know at this time — the yellow mark fades away.
BY MR. SHACKELFORD: I object. He is beyond his scope of expertise admittedly and I object to his opinion as to what happens.
BY THE COURT: He is not to render an opinion but he can testify as to what his investigation revealed. I understand he phrased his answer “I investigated further.” I can’t remember what was said after that. But—
BY MR. SHACKELFORD: — I also object on hearsay, Your Honor, under the Bridgeforth case.
BY THE COURT: All right. The objection is overruled. Phrase your question carefully, Counsel.
BY MR. HALL: Yes, sir. May the witness continue to answer the question?
BY MR. SHACKELFORD: May I have a continuing object [sic], too, Your Hon- or?
BY THE COURT: Yes, Mr. Shackel-ford. Your object [sic] is noted. He can answer as to what he learned from his investigation as to the disappearance of the yellow marks.
A. During, my investigation I learned that because it is illegal to destroy U.S. currency, if you leave a permanent mark on this bill then—enough of them, you’re destroying the currency. So by leaving this mark that fades away, you’re not destroying the currency. It fades away and goes back to its regular state without being damaged.

¶ 10. Clearly this testimony requires specialized knowledge, which required a M.R.E. 702 expert opinion. To allow Officer Salley to testify to that information was to allow improper hearsay evidence. Graves v. State, 761 So.2d 950(¶ 11) (Miss.Ct.App.2000).

¶ 11. While holding the admission of improper expert testimony from Officer Salley was error, this Court is compelled to rule that it was harmless error.

¶ 12. Even if Officer Salley’s testimony regarding the yellow markings on the money had been excluded, there was sufficient evidence of Rash’s theft of the money, as to convince this Court that it would not have changed the outcome of the trial. DeSalvo v. State, 776 So.2d 704 (¶¶ 16-18) (Miss.Ct.App.2000).

II.

Whether the trial court erred in allowing Officer Salley to refer to the store clerk as “a victim.”

¶ 13. Rash contends that the trial court erred by allowing Officer Salley to call Ms. Young, the store clerk, “a victim” during his testimony. He maintains that such testimony was held inadmissible in Bridgeforth v. State, 498 So.2d 796 (Miss.1986). Rash asserts that this characterization is prejudicial since “there is a grave question as to whether the clerk who was allegedly robbed, gave up money in fear or was part of the crime.”

¶ 14. A review of the transcript reveals Officer Salley’s testimony during direct examination as follows:

Q. Now, Investigator Salley, who, if anyone, do you remember was on the scene when you arrived at the Bull Market?
A. When I arrived there, Ms. Young, the victim of the robbery, was there. And—
BY MR. SHACKELFORD:—I’m going to object to “the victim of the robbery.” That is a question for the jury, whether it was a victim or not.
BY THE COURT: Well, sir, I think that, while you may be technically correct, I’m going to overrule the objection. He can testify as to who the person was that was robbed.

¶ 15. Prior to receipt of this testimony from Salley, the trial court had heard the testimony of Young that she was robbed by Rash. Where this testimony was already placed in the record through the direct testimony of Ms. Young, there was no objectionable hearsay. Stevens v. State, 806 So.2d 1031 (¶¶ 147, 148) (Miss.2001).

III.

Whether the verdict was against the overwhelming weight of the evidence.

¶ 16. Rash contends that the verdict was against the overwhelming weight of the evidence and warrants a new trial. He maintains that although the store clerk claimed to be in fear, she told the individual “to come in and get the money.” Rash alleges that this admission negates proof of the element that “property must be taken from the alleged victim against .the alleged victim [sic] against the victim’s will.” Further, Rash alleges that Ms. Young’s testimony regarding how the individual entered the store and what he was wearing is inconsistent. Rash maintains that Ms. Young’s identification of the individual was not from a line-up but “from the presentation to her of a man wearing the same color jacket as her assailant,” which Rash contends is “suggestive enough to invite identification of one not guilty.” This assertion concerns the weight of the evidence presented.

¶ 17. Regarding issues involving the weight of the evidence, the Mississippi Supreme Court states the following:

[TJhis Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. Thus, the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict.

Herring v. State, 691 So.2d 948, 957 (Miss.1997) (citations omitted).

¶ 18. Ms. Young testified that although she did not know him by name, she recognized Rash as one of her regular customers. She also stated that she was in fear at the time of the robbery and she did tell him to “come in and get the money” so that his image would be captured on the surveillance camera. While Rash claims that the weight of the evidence is inconsistent with the jury’s verdict, it is left to the jury to resolve all conflicts in evidence presented at trial. Craig v. State, 777 So.2d 677 (¶ 10) (Miss.Ct.App.2000). We find that the verdict is consistent with the evidence and a new trial is not warranted.

¶ 19. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF LIFE AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. SENTENCE IMPOSED TO RUN CONSECUTIVELY TO ANY AND ALL PREVIOUS SENTENCES. COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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


author: BRIDGES, J.,

text:
    Kimberly HILL, a Minor By and Through Danny HILL and Kathy Hill, her Natural Parents, Appellant/Cross-Appellee, v. Todd BRINKLEY, a Minor By and Through his Father and Next Friend, Kenneth BRINKLEY, Appellee/Cross-Appellant.
    No. 2001-CA-01643-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Greg E. Beard, Bonneville, attorney for appellant.
    George Martin Via, Bonneville, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Todd Brinkley commenced an action to determine paternity of the child of Kimberley Hill in the Chancery Court of Pren-tiss County. Hill brought a cross-complaint seeking child support. The court found that Brinkley was the father of Hill’s child, and ordered him to pay child support in the amount of $35 per week. Hill filed a motion to reconsider asking the court to require Brinkley to pay past-due child support; Brinkley filed a response asking for visitation rights. The court denied Hill’s motion and in its supplemental order granted Brinkley visitation rights. Hill filed a second motion to reconsider, which the court also denied.

STATEMENT OF THE ISSUES

I. DID THE COURT ERR WHEN IT DID NOT ORDER BRINKLEY TO PAY PAST-DUE CHILD SUPPORT?

II. DID THE COURT ERR WHEN IT GRANTED BRINKLEY VISITATION RIGHTS?

FACTS

¶ 2. Brinkley is the natural father of an infant child born to Kimberly Hill. After the child’s birth, Brinkley reached an agreement with Hill and her parents to provide child support of $35 per week, which he paid from the time of the child’s birth in October 2000 until mid-February 2001. Around Valentine’s Day, 2001, Brinkley and Hill got into an argument involving Hill’s current boyfriend, and Brinkley stopped visiting his infant child. However, Brinkley continued to send money to Hill according to the terms of their agreement. Hill stopped cashing Brinkley’s checks, and Brinkley brought the complaint that resulted in this appeal.

ANALYSIS

I. DID THE COURT ERR WHEN IT DID NOT ORDER BRINKLEY TO PAY PAST-DUE CHILD SUPPORT?

¶ 3. This Court will not disturb the rulings of a chancellor absent manifest error or great injustice. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). Hill assigns as error the court’s decision that Brinkley not pay arrears of child support covering the period from January 27, 2001 until June 11, 2001. Hill makes a novel argument that the statutory one-year limitation on the noncustodial parent’s liabilities for past education and support is in actuality a period of mandatory support. The statute creates no such duty. Burnett v. Burnett, 792 So.2d 1016, 1019(¶ 10) (Miss.Ct.App.2001).

¶ 4. In fact, the text of the statute, which we quote here in full to enlighten the blinkered, is an example of the old expression inclusio unius est exclusio alterius: “The noncustodial parent’s liabilities for past education and necessary support and maintenance and other expenses are limited to a period of one (1) year next preceding the commencement of an action.” Miss.Code Ann. § 93-9-11 (Rev.1994). The plain meaning of the statute is that if past support is required (a legal determination to be made by the chancellor) then the most past support that the non-eusto-dial parent can be liable for is one year. Upon review we find that the chancellor was well within his discretion, and did not err.

II. DID THE COURT ERR WHEN IT GRANTED BRINKLEY VISITATION RIGHTS?

¶ 5. In reviewing Brinkley’s visitation rights, we peer through the lens of the chancellor’s discretion, reversing him only if he is manifestly wrong. Rushing v. Rushing, 724 So.2d 911, 916(¶ 24) (Miss.1998). The polestar consideration in determinations of custody and visitation is the best interest of the child. Id. Hill maintains that the chancellor abused his discretion in granting Brinkley rights of overnight visitation with his child in his parents’ home while Brinkley’s parents were present.

¶ 6. These rights of visitation are hardly unfettered. When examining the record it is impossible to escape the conclusion that the chancellor was not impressed by Brinkley’s parenting skills and inclinations. However, the chancellor limited any overnight stays in the child’s first year of life to times when Brinkley’s parents were present. The equally inescapable conclusion that we may draw from this decision is that the chancellor was able to reconcile Brinkley’s right to visitation as the child’s natural father with the child’s best interests only with some caveats. No evidence of abuse or neglect while the child was in Brinkley’s care was presented; Hill’s sole objection is that Brinkley and his parents cannot provide the kind of care that she and her parents can.

¶ 7. This explains why Hill is the parent with primary custody, but it can hardly suffice to disqualify Brinkley from meaningful visitation rights with his infant child. We find that there was no abuse of discretion.

CROSS-APPEAL

I. WHETHER THE CHANCELLOR ERRED WHEN HE DID NOT ORDER THE FATHER TO PAY CHILD SUPPORT AS OUTLINED IN MISSISSIPPI CODE ANNOTATED § 93-11-65.

II. WHETHER THE CHANCELLOR ERRED WHEN HE ORDERED OVERNIGHT VISITATION WITH THE CHILD OF LESS THAN ONE YEAR OF AGE WITH THE FATHER WHEN THE FATHER HAD NOT EXERCISED VISITATION FOR APPROXIMATELY FIVE MONTHS.

¶ 8. In reviewing Brinkley’s cross-appeal issue concerning child support, this Court finds that the chancellor was well within his discretion, and therefore, did not err in not ordering Brinkley to pay child support as outlined in Mississippi Code Annotated § 93-11-65. This issue was thoroughly addressed in paragraphs three and four of this opinion.

¶ 9. With regards to Brinkley’s cross-appeal issue concerning visitation, this Court finds that the Chancellor has broad discretion in the determination of visitation and restrictions and limitations of such visitation. When the chancellor determines visitation this Court gives great deference to the chancellor’s decision. Rushing, 724 So.2d at (¶ 24). Given that the record reflects the chancellor found that there was some detriment to unsupervised visitation with the child the chancellor was well within his discretion to order visitation with the minor child at the home of his father, and under supervision of Brinkley’s parents.

¶ 10. Therefore, all matters as to the cross-appeal have no merit and the judgment of the chancery court is affirmed.

¶11. THE JUDGMENT OF THE CHANCERY COURT OF PRENTISS COUNTY IS AFFIRMED AS TO THE DIRECT APPEAL AND AS TO THE CROSS-APPEAL. ALL COSTS ARE ASSESSED EQUALLY TO APPELLANT AND APPELLEE.

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


text:
    Catherine L. YOUNG, Appellant, v. WENDY’S INTERNATIONAL, INC. and Wenstar, Inc., X, Y, Z, Appellee.
    No. 2002-CA-00273-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    Robert R. Stephenson, Southaven, Reeve G. Jacobus, Jackson, attorneys for appellant.
    Leland S. Smith, Tracy Jennifer Stid-ham — Steen, attorneys for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Catherine Young filed suit against Wendy’s International, Inc. and Wenstar Inc., alleging that Wendy’s and Wenstar breached its duty to maintain the premises of a Wendy’s Restaurant in a safe manner, by permitting an unsafe and defective chair to remain in the dining room and that these aforementioned acts constituted gross negligence on the part of the defendants. The Hinds County Circuit Court granted Wendy’s and Wenstar’s summary judgment on both of these claims. The court concluded that there was no genuine issue of material fact, thereby entitling the defendants to judgment as a matter of law. Catherine Young appeals to this Court from that judgment.

STATEMENT OF THE ISSUE

DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT FOR WENDY’S INTERNATIONAL, INC. AND WENSTAR, INC.?

FACTS

¶ 2. Catherine Young entered into a Wendy’s restaurant with her granddaughter, Latonya Bonds, and after ordering her food, Young walked over to a table and sat on a chair placed at the table. Young claimed that as she proceeded to pull the chair towards the table the chair gave way, causing her to fall to the floor and incur serious injury to her person. After ordering her food, Latonya walked over to the table where Young was seated and noticed that Young “looked dazed.” A Wendy’s manager walked over to where they were seated and was informed by Catherine that “the chair was wobbly.” After being so informed by Young, the manager examined and inspected the chair. Young claims that, while the manager was testing and observing the chair, Latonya, noticed that the chair appeared to be extremely wobbly and unstable. Later, after examining the chair herself, Latonya claims that the chair’s legs were loose and not secure, and the chair would not remain firmly in place. However, a Wendy’s employee, in an affidavit, expressly asserts that not only was the chair in question not unsteady in any manner, but as a matter of fact, remains in use in the restaurant. In Young’s deposition, she stated that she was not even certain whether she continued to sit in the chair after the fall or not.

ANALYSIS

DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT FOR WENDY’S INTERNATIONAL, INC. AND WENSTAR, INC.?

¶ 3. When reviewing a lower court’s decision to grant or deny a summary judgment motion, it is proper to employ a de novo standard of review. Hudson v. Courtesy Motors, 794 So.2d 999, 1002(¶ 7) (Miss.2001) (citing Russell v. Orr, 700 So.2d 619, 622 (Miss.1997)).

¶ 4. The rule in Mississippi is that summary judgments shall be entered by a trial judge “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a law of law.” M.R.C.P. 56(c).

¶ 5. It is standard practice that “summary judgment, in whole or in part, should be granted with great caution.” Brown v. Credit Center Inc., 444 So.2d 358, 363 (Miss.1983). The moving party has the burden of proving that no triable genuine issue of fact exists, and the non-moving party is given the benefit of reasonable doubt. Tucker v. Hinds, 558 So.2d 869, 872 (Miss.1990). However, the non-moving party cannot just remain silent and do nothing. Newell v. Hinton, 556 So.2d 1037, 1041(Miss.1990). He must bring forward “significant probative evidence demonstrating the existence of a triable issue of fact.” Id. at 1042.

¶ 6. Furthermore, the plaintiff must show that the party charged is the party actually responsible for the wrong, with reasonable certainty or definiteness. Berry v. Brunt, 252 Miss. 194, 172 So.2d 398, 401 (1965). Also noted by the Berry court was that “it is not enough that this shall be left to conjecture or to inferences so loose that it cannot be dependently told where conjecture ceases and cogent inferences begins.” Id. (citing McCain v. Wade, 181 Miss. 664, 180 So. 748 (1938)).

¶ 7. In Broum, the court explained that while considering the motion for summary judgment, “the trial court must view all the evidence in the light most favorable to the non-movant.” Brown, 444 So.2d at 363. Upon this consideration, the motion should be granted if the moving party is entitled to judgment as a matter of law, otherwise it should be denied. Id.

¶ 8. In the case of Downs v. Choo, 656 So.2d 84, 86 (Miss.1995), in order for a plaintiff to recover in a claim of negligence in a premises liability action, he must (1) show the defendants’ own negligence created a dangerous condition which caused the plaintiffs injury; or, (2) show that defendants had actual knowledge of a condition which they did not cause, but failed to warn plaintiff of the danger she faced as an invitee; or, (3) show that, based upon the passage of time, defendants should have known of the dangerous condition. Id. In Douglas v. Great Atlantic & Pac. Tea Co., 405 So.2d 107, 111 (Miss.1981), the court concluded that under Mississippi premises liability law, if the plaintiff can not show that the condition, allegedly causing injury was due to the action or inaction of the premises owner or operator, then actual or constructive knowledge must be shown in order to prevail at trial. To establish constructive knowledge, proof must be shown that the dangerous condition existed for such a length of time that the defendants should have known about it. Sears Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss.1966).

¶ 9. In order for Young to prove some dangerous condition existed which led to her fall, evidence must be given. However, Young has in no way met this burden. Neither has Young presented any evidence that either Wendy’s or Wens-tar had notice that a dangerous condition existed on the premises.

¶ 10. In order to determine whether summary judgment was appropriate in the present case, we examined the pleadings, depositions, admissions, answers to interrogatories, and affidavits to determine whether Young made a sufficient showing to survive Wendy’s motion for summary judgment. In the present case, Young failed to sustain her burden of proof that a genuine issue of material fact existed by failing to produce evidence of significant and probative value that the defendants were negligent. Young even admitted, in her deposition, that she knew of no facts supporting her claim that the chair was defective or showing that Wendy’s had notice of any alleged instability in the chair.

¶ 11. In the present case, under the applicable summary judgment standards, the record clearly supports a shift of the burden of proof, from the defendants to the plaintiff, to present any evidence she may have to support her allegations of negligence against Wendy’s and Wenstar. The plaintiff has failed to present such evidence and has therefore failed to meet her burden of proof.

¶ 12. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

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


text:
    Tony STEVENS a/k/a Tony Stevenson a/k/a Tony Stephenson, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KP-00123-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    Tony Stevens (Pro se), attorney for appellant.

      Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court:

¶ 1. Tony Stevens was convicted of armed robbery by a Calhoun County Circuit Court jury. On appeal Stevens argues that the State failed to establish the essential elements of the crime, that an improper closing argument was made by the State, and that a separate sentencing phase needed to be conducted. Finding no merit in Stevens’ claims, we affirm the conviction.

FACTS

¶ 2. On the evening of December 18, 1997, Stevens approached Leon Prestage, the night security guard of a mill yard, threatened him with a gun and demanded Prestage turn over his money. Prestage said that he had no money. Stevens then shot him in the stomach and fumbled for the guard’s wallet as Prestage lay on the ground. Stevens fled without having taken anything from his victim. He was arrested a few days later and confessed to the events just described.

¶ 3. Stevens was convicted after a jury trial. Even though his trial counsel perfected the appeal, Stevens proceeds pro se after having discharged his attorney.

DISCUSSION

¶ 4. We will discuss Stevens’ assignments of error after reviewing his motion to supplement his initial brief. Stevens alleges that new evidence has come to his attention since the filing of his original brief. What he only recently had learned was this: a written statement was not taken from the victim at the time of the crime, a warrant was never issued for his arrest, the victim never completed an affidavit to support an arrest warrant, and the substance of the victim’s testimony was never submitted to him during discovery. Because of these failures, Stevens claims he was taken completely by surprise by the victim’s trial testimony.

¶ 5. A party wishing to submit additional briefs must seek leave of the appellate court. M.R.A.P. 28(c). The grant or denial of such leave is discretionary with this court. After a review of Stevens’ claim of new evidence and the record as a whole, we decline to grant such leave. Nothing is raised that justifies further briefing and a response from the State.

1. Essential elements of the crime charged

¶ 6. Stevens alleges that the State failed to prove all the essential elements of the crime of armed robbery. Thus he challenges the sufficiency of the evidence. Stevens bases this claim upon the language from the initial appellate opinion in this prosecution. Stevens v. State, 784 So.2d 979 (Miss.Ct.App.2001). That conviction was based on the same events of December 1997.

¶ 7. The earlier appeal followed Stevens’ guilty plea to the charge of assault with a deadly weapon. After the court accepted the plea, the State indicated that the correct charge was for armed robbery, rather than the lesser offense of assault with a deadly weapon. Stevens immediately attempted to withdraw his guilty plea but the circuit court denied the motion. Stevens then pursued post-conviction relief in this court. We reversed, holding that, due to the confusion over the crime to which Stevens had actually agreed to plead guilty, the plea was not sufficiently knowing and voluntary. We also noted that Stevens’ statements in open court did not provide an adequate factual basis: “Stevens’ account of the events giving rise to bis prosecution does not adequately describe either the crime of armed robbery or an attempt thereof.” Id. at 982.

¶ 8. Our prior holding did not mean that Stevens could not, after a trial, be found guilty of armed robbery. At the plea hearing, the court had only Stevens’ statement that he did not mean to shoot Pres-tage and changed his mind about taking the wallet. The limits of that statement taken in conjunction with the confusion over the crime to which he was pleading guilty, required reversal.

¶ 9. At the trial following our remand, the trial court had the testimony of the victim and a police officer who read Stevens’ confession into evidence. For guilt of armed robbery, the State had to prove that the defendant took or attempted to take from the person or from his presence the personal property of another and against his will by violence or by putting the person in fear of immediate injury by the exhibition of a deadly weapon. Miss. Code Ann. § 97-8-79 (Rev.2000).

¶ 10. Prestage’s testimony established that Stevens attempted to take his wallet against his will. Stevens did more than merely exhibit a deadly weapon. He used one. The fact that Stevens left the scene after having been thwarted in the robbery but not in the violence is immaterial. The statute allows convictions for attempts to take the property of another. Each element of the crime was confirmed by Stevens himself in his signed confession to police. The evidence was sufficient.

2. Improper dosing argument

¶ 11. Stevens argues that the State’s closing argument was improper because it focused upon the elements of the crime of aggravated assault rather than for armed robbery. However, Stevens did not object to the content of the State’s closing argument and thus failed to preserve the point for appellate review. Dunaway v. State, 551 So.2d 162, 165 (Miss.1989). There was nothing so significant in the argument as to deny Stevens’ fundamental rights such as to overcome the procedural bar. Thus we do not further address the issue.

3. Sentencing hearing

¶ 12. The trial court did not conduct a separate sentencing hearing after the jury verdict. This allegedly denied Stevens a fair trial. No separate hearing was needed. The jury fixed his sentence at life imprisonment. That was within their discretion for a charge of armed robbery. Since Stevens was an habitual offender, with three prior convictions for burglary, the life sentence was without possibility of parole. Miss.Code Ann. § 99-19-81 (Rev.2000). There was no purpose to be served by a sentencing hearing, and its absence was not error.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.

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


text:
    Michael Leon NASON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01949-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Rosalind Hayden Jordan, Nashville, TN, attorney for appellant.
    Office of the Attorney General, by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. The grand jury of Montgomery County indicted Michael Nason for the crime of armed robbery. A jury trial followed in which the jury returned a verdict of “guilty” for the crime of armed robbery. Nason was then sentenced to serve a term of forty years with the Mississippi Department of Corrections. Soon after, defense counsel filed motions for JNOV or in the alternative, a new trial. The court denied the motions, and Nason appealed to this Court.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF MARIUM ANTONIO SMITH?

II. WHETHER THE TRIAL COURT ERRED IN DENYING NA-SON’S MOTIONS FOR JNOV OR IN THE ALTERNATIVE A NEW TRIAL BECAUSE SUCH VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

FACTS

¶ 2. On July 14, 2001, three masked men entered a Piggly Wiggly, in Winona, Mississippi, and armed robbed it of $1,149.96. The record does not reflect the exact time frame between the robbery and the arrest of the individuals involved. At trial, the State called five eyewitnesses to the crime, to testify. The first eyewitness that the State called was Jamilia Stephens, a cashier at the Piggly Wiggly. Ms. Stephens testified that she was present at the scene and witnessed the three men enter, walk around, buy cigarettes and then walk out. Later, they came back into the store carrying guns and a man in a green shirt had a mask over his face. Ms. Stephens also testified that the man in green shot once and told everyone to “get down.” She later identified the man who had worn the green shirt as the defendant, Michael Na-son, and was sure it was him even though he wore a mask.

¶ 3. The next witness the State called was Vera Mitchell. Ms. Mitchell testified that she was in the office, counting money, at the time of the robbery, and it was at that time that a man in a blue shirt came into the office and demanded that she give him money and to open the safe. Keeping her head down the entire time, she informed the man she could not open the safe, but gave him the money she had from the cash drawer and then he left.

¶ 4. Nathan Bevis, an employee of Pig-gly Wiggly, testified that he was present at the scene and witnessed the robbery. He also testified that earlier, three men walked in the store and bought some cigarettes and that later the three men came back and made the robbery. He further identified the defendant as the man in green who fired a gun. Bevis explained that the mask that the man in green wore only covered part of his face, from the nose down and because Bevis got a good look from the nose up he could identify the defendant.

¶ 5. Also called to testify was Kimi Stephens, another cashier at the Piggly Wiggly, who testified that she had been working at the cash register, when she noticed three men come in and buy cigarettes. Later, the same three men came in again but this time to carry out the robbery.

¶ 6. Hank Jones was called to testify on behalf of the State. Jones, a cashier and bag boy, was working on the night of the robbery and testified that the man in a green shirt had a gun, which he fired once, and yelled to everyone to get to the ground.

¶ 7. Also at trial, the State call Marium Antonio Smith, a co-defendant, to testify. Mr. Smith identified Nason as one of the perpetrators of the crime.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF MARIUM ANTONIO SMITH?

¶ 8. In this first issue Nason, argues that the trial court erred in allowing Smith to testify because Smith’s testimony was unreliable and filled with inconsistencies. Nason also claims that it was error because Smith’s testimony was only given in an effort to avoid a life sentence, thus proving it was self-serving and not credible. Finally, Nason claims that Smith’s testimony was done under fear and duress.

¶ 9. In Blocker v. State, 809 So.2d 640 (¶ 20) (Miss.2002), the Mississippi Supreme Court held that a trial court has “great latitude in admission or exclusion of evidence where the question is one of materiality or relevancy, and its decision should only be reversed where this discretion is abused.” However, the Court in Johns v. State, 592 So.2d 86, 88-89 (Miss.1991) (citing Jones v. State, 368 So.2d 1265, 1267 (Miss.1979)), stated “that the testimony of an accomplice must be viewed with great caution and suspicion. Where it is uncorroborated, it must also be reasonable, not improbable, self-contradictory or substantially impeached.” Id.

10. Even though Smith’s testimony should be viewed with caution and suspicion, it was the trial judge’s responsibility to weigh the probative value of the testimony versus the prejudicial aspect of the testimony. Even though Smith’s testimony contained inconsistencies, it is the duty of the jury to determine “the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory, and sincerity.” Noe v. State, 616 So.2d 298, 308 (Miss.1993) (citing Jones v. State, 381 So.2d 983, 989 (Miss.1980)).

¶ 11. Furthermore, the testimony of Smith was not uncorroborated. Testimony can be corroborated by either evidence or by other testimony. The State presented at least two witnesses, all of whom testified closely if not exactly to what Smith testified to. As for the testimony being “reasonable, not improbable, self-contradictory or substantially impeached,” Smith’s testimony was well within reason and not improbable. Smith was even warned about this possibility right before he was to testify and was given the chance to back out of testifying. In addition, Na-son had an opportunity to cross-examine Smith, which would have enabled Nason to bring to light any inconsistencies, ulterior motives, fear or duress.

II. WHETHER THE TRIAL COURT ERRED IN DENYING NASON’S MOTIONS FOR JNOV OR IN THE ALTERNATIVE A NEW TRIAL BECAUSE SUCH VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 12. With regards to the second issue, Nason argues that the verdict is against the overwhelming weight of the evidence in that his conviction is based on the wholly unreliable and self-serving testimony of Smith and the testimony of only two people who said they could positively identify Nason as a robber, even though three-fourths of the robber’s face was covered with a mask.

¶ 13. Our standard of review regarding a motion for new trial is stated in McClain v. State:

The challenge to the weight of the evidence via motion for a new trial implicates the trial court’s sound discretion. Procedurally such challenge necessarily invokes Miss. Unif.Crim. R. of Cir. Ct. P. 5.16. New trial decisions rest in the sound discretion of the trial court, and the motion should not be granted except to prevent an unconscionable injustice. We reverse only for abuse of discretion, and on review we accept as true all evidence favorable to the State.

McClain v. State, 625 So.2d 774, 778 (Miss.1993). See also Collier v. State, 711 So.2d 458, 461(¶ 13) (Miss.1998); Herring v. State, 691 So.2d 948, 957 (Miss.1997). The same standard is used to review overruled motions for a directed verdict and overruled motions for JNOV. See McClain, 625 So.2d at 778; Wetz v. State, 503 So.2d, 803, 808 (Miss.1987). Motions for directed verdicts and motions for JNOV are both for the purpose of challenging the legal sufficiency of the evidence. Noe v. State, 616 So.2d 298, 302 (Miss.1993).

¶ 14. Our standard of review regarding the legal sufficiency of the evidence is as follows:

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

Wetz v. State, 503 So.2d at 808. “The jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Billiot v. State, 454 So.2d 445, 463 (Miss.1984). This Court may not make an assessment on the credibility of the trial witnesses as this task is one for the jury presiding over the matter. Kinzey v. State, 498 So.2d 814, 818 (Miss.1986). When this Court analyzes a jury’s verdict to determine whether it goes against the overwhelming weight of the evidence, we must keep in mind that the jury is the ultimate finder of fact.

¶ 15. This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible. The law provides:

Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into finding of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.

Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 16. According to the above standard of review, this Court is supposed to look at the evidence in the light most favorable to the verdict. This was certainly not a difficult task. All of the evidence points to the fact that Nason committed the armed robbery. This Court does not have the responsibility of re-weighing the evidence to determine which witnesses we believe had the most credibility. Although Nason was not required to put on any evidence or witnesses, this Court finds none to consider in this appeal.

¶ 17. It is clear from the record and from Nason’s statements that there was sufficient evidence for the jury to have convicted him. Furthermore, it is the job of the jury to determine which witnesses are credible and which are not.

¶ 18. Nason argues that the testimony of the eyewitnesses differed and that the witnesses could not see the robber’s face because of a mask. However, two of the witnesses were able to identify the defendant due to the fact that the mask only-covered half of his face, from the nose down, he wore a green shirt, and he had been in the store only minutes before, wearing the same green shirt.

¶ 19. Having had the benefit of hearing the witnesses and observing their demean- or, the jury acted as rational finders of fact and returned a verdict that was supported by the overwhelming weight of the evidence. Nason has failed to present a viable argument that the verdict was against the overwhelming weight of the evidence and that he should be granted a new trial.

¶ 20. Because this Court is charged with accepting all of the State’s evidence as true, including reasonable inferences of truth, we must find that the verdict was not against the overwhelming weight of the evidence and Nason’s motions for JNOV or, in the alternative, a new trial were rightfully denied by the trial judge. Considering this stringent standard of review, for a new trial and the sanctity of the jury verdict, this court finds that Nason’s arguments are without merit.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. SENTENCE IS TO RUN CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY IMPOSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

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


text:
    Amadee GARIBALDI, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-01444-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      John Edward Jackson, attorney for appellant.
    Office of the Attorney General, by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Amadee Garibaldi, Jr. was indicted by the Pike County grand jury on possession of cocaine with intent to distribute, one count of aggravated assault and one count of possession of marijuana with intent to deliver. In addition, he was also charged with assault with a weapon on a law enforcement officer. Garibaldi pled to a reduced charge of simple assault on a law enforcement officer and also pled guilty to the charges of possession of contraband. On August 8th, 2001, the trial judge held a hearing on the appellant’s “Petition for Post Conviction Relief.” The petitioner’s claim was that he was denied effective assistance of counsel, and the results of that hearing were to deny the petitioner’s claim.

STATEMENT OF ISSUE

WHETHER THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

ANALYSIS

¶ 2. Garibaldi argues that he received ineffective assistance of counsel, because he believes that there was little appreciable contact between him and defense counsel. He also believes that a thorough and aggressive approach to the issues surrounding the assault on a law enforcement officer could have gotten this charge dismissed and that defense counsel failed to seriously pursue positive leads. Further, he argues that defense counsel failed to share with him copies of the State’s discovery until after he had entered his guilty plea. Garibaldi claims that the decision to enter a guilty plea was not an informed one and that the inaction of defense counsel in this cause does meet the threshold required in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner cites Holland v. State, 656 So.2d 1192, 1198 (Miss.1995), which asserts:

The normal remedy for a successful ineffective assistance of counsel claim is to remand for a new trial. However, in the facts peculiar to this case, the trial court would have undoubtedly been reversed and a decision rendered for simple possession but for the deficient representation of counsel. Justice requires that we not deny the defendant a remedy that he would otherwise be entitled to as a matter of law had he been afforded representation which fulfilled the minimum requirements of the Sixth Amendment.

¶3. The State argues that all claims introduced by the petitioner were refuted with the hearing and the findings of the trial judge. The plea was both voluntary and knowing and in accordance with the standard adopted in Brady v. U.S., 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), which states that a guilty plea can only be entered by “one fully aware of the direct consequences.” The State mentions Schmitt v. State, 560 So.2d 148, 156 (Miss.1990), which states that the judge’s findings that the plea was validly made and that counsel was effective will not be set aside unless the findings are clearly erroneous. The State also mentions the Strickland standard for determination of ineffective assistance of counsel though they cite the Schmitt case which also outlines the standard. The State’s final argument is that there is no indication in the record other than the allegations of Garibaldi that performance of the counsel fell below the standards as defined by Schmitt. In fact, the record supports the exact opposite.

¶4. The Supreme Court of the United States in the case of Strickland v. Washington, clearly set the guidelines for judicial determination of cases involving effective or ineffective assistance of counsel. There are two components that Garibaldi must prove in order for his claim of ineffective assistance of counsel to prevail, requiring reversal of his conviction. First, Garibaldi must show that his “counsel’s performance was deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Secondly, Garibaldi must show that the “deficient performance prejudiced the defense.” Id. This requires showing that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. In regards to this second prong, Garibaldi must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052; Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). Garibaldi must prove both of these elements in order to succeed on his claim. Id. Each case should be decided based on the totality of the circumstances, that is, by looking to the evidence in the entire record. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990); Stringer, 454 So.2d at 476. The standard of performance used is whether counsel provided “reasonably effective assistance.” Leatherwood, 473 So.2d at 968. “There is a strong presumption that counsel’s conduct is within the wide range of reasonable professional conduct.” Id. at 969. Should we find that Garibaldi’s counsel was ineffective, the appropriate remedy is remand for a new trial. Moody v. State, 644 So.2d 451, 456 (Miss.1994).

¶ 5. Garibaldi asserted that he felt badgered by this attorney, but failed to allege specifically what the attorney had done. The record clearly indicates that Garibaldi was well informed about the consequences of his guilty plea, the possible sentences and stated that the plea was not made under threats, promises or coercion. Garibaldi was asked if he was under the influence of anything which would affect his thought processes to which he responded in the negative. He understood he was waiving his constitutional right against self-incrimination and to a jury trial. He also waived any right to a speedy trial as well as his right to take the witness stand on his own behalf or to cross examine witnesses. Garibaldi failed to overcome the presumption of competency of trial counsel, and he has failed to demonstrate that because of deficiencies of counsel his guilty plea should not have been accepted. Garibaldi also failed to assert anything relevant by citing the Holland case since that case is based on a failure to preserve claims whereas the present case is not. Lastly, there is nothing in the record that even hints there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. Therefore, Garibaldi has failed to prove at least the second element of the Strickland test, a test in which he must prove both elements in order to prevail on his claim of ineffective assistance of counsel.

¶ 6. For the aforementioned reasons we find that Garibaldi’s claim of ineffective assistance of counsel is without merit.

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

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


text:
    Cornelius FIELDS, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-CP-00880-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Cornelius Fields, appellant pro se.
    Office of the Attorney General by Deirdre McCrory, for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J.,

for the Court:

¶ 1. Cornelius Fields was indicted by the Bolivar County grand jury for the offense of sale of a controlled substance — marijuana in the amount of less than one ounce. He was charged with sale of cocaine in a separate indictment. In addition, he was also charged as an habitual offender. Fields entered an open plea of guilty to the charge of sale of marijuana, cause No. 8718, and to the charge of sale of cocaine, cause No. 8719. The habitual charges were dropped as part of the pleas. Fields filed a motion for post-conviction relief to vacate and set aside his plea of guilty sentence, claiming ineffective assistance of counsel, defective plea, and a denial of due process. The trial court denied the motion without a hearing. Fields perfected an appeal to this Court.

¶ 2. Fields argues that his plea of guilty was involuntary, as a matter of law, where the trial court failed to inform him of the minimum and maximum sentence for the crime charged, sale of marijuana. Fields also claims that the trial judge sentenced him to a term excessive to such charge. Fields claims that his plea was coerced because he was given incorrect information on the maximum sentence throughout the proceedings. Secondly, Fields argues that his sentence was an excessive sentence since the law only allows a three year sentence, whereas he was given a twenty-five year sentence for the offense of sale of less than one ounce of marijuana. Lastly, Fields claims that the trial court’s actions in amending the judgment, three years after the entry of the initial judgment and without a hearing, was inappropriate and constituted plain and reversible error.

STATEMENT OF ISSUES

I. WHETHER APPELLANT’S PLEA OF GUILTY WAS INVOLUNTARY WHERE IT WAS ENTERED UPON THE ILL-ADVISE OF COUNSEL IN REGARDS AS TO THE APPLICABLE SENTENCE FOR A CHARGE OF SALES OF LESS THEN ONE OUNCE OF MARIJUANA?

II. WHETHER THE SENTENCE OF TWENTY-FIVE YEARS FOR THE OFFENSE OF SALES OF LESS THAN ONE OUNCE OF MARIJUANA WAS AN EXCESSIVE SENTENCE SINCE THE LAW ALLOWS ONLY A THREE YEAR SENTENCE FOR SUCH OFFENSE?

III. WHETHER THE TRIAL COURT’S ACTIONS OF ENTERING AN AMENDED JUDGMENT, THREE YEARS AFTER THE ENTRY OF THE INITIAL JUDGMENT, AND WITHOUT A HEARING, WITH SUCH AMENDED JUDGMENT BEING ENTERED BY A DIFFERENT JUDGE NOT PRESENT AT OR KNOWLEDGEABLE OF THE GUILTY PLEA IN THIS CASE, WAS INAPPROPRIATE AND CONSTITUTED PLAIN AND REVERSIBLE ERROR?

ANALYSIS

I. WHETHER APPELLANT’S PLEA OF GUILTY WAS INVOLUNTARY WHERE IT WAS ENTERED UPON THE ILL-ADVISE OF COUNSEL IN REGARDS AS TO THE APPLICABLE SENTENCE FOR A CHARGE OF SALES OF LESS THEN ONE OUNCE OF MARIJUANA?

¶ 3. The United States Supreme Court case of Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), provides the standard for determining whether a guilty plea is knowingly, voluntarily and intelligently made by the defendant. Where the record is silent as to evidence showing that these rights were known and understood by the defendant, there can be no presumption of a waiver of such rights by him. Id. The record must provide explicit evidence of such a waiver and the admissibility of the waiver must be “based on a reliable determination on the voluntariness” of the waiver. Id. This determination of voluntariness may be evaluated by looking to see whether the defendant was advised of the nature of the charges against him, the rights which he would be waiving by pleading guilty, and the maximum sentences that he could receive for the crimes with which he was charged. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). See also Boykin, 395 U.S. at 243, 89 S.Ct. 1709; Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991).

¶ 4. The burden of proving that a guilty plea was not made voluntarily is on the defendant. Gardner v. State, 531 So.2d 805, 810 (Miss.1988); Baker v. State, 358 So.2d 401, 401 (Miss.1978). If this burden is not met, the defendant’s plea must be upheld as one that was made voluntarily, knowingly and intelligently. Gardner, 531 So.2d at 810. It should be noted that “solemn declarations in open court carry a strong presumption of verity.” Id.; Baker, 358 So.2d at 403. See Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).

¶ 5. In accordance with the aforementioned case law, we find that the lower court was correct in accepting Fields’s guilty plea and denying him post-conviction relief. Because of the ample evidence provided to us in the record, we are convinced that Fields entered his plea voluntarily, knowingly, and intelligently, and it should therefore be upheld.

¶ 6. We must note that the transcript of the plea hearing speaks volumes to the issue of voluntariness. One argument made by Fields was that his plea was involuntary because the trial court never informed him of the minimum and maximum sentence for his crime of sale of marijuana. This simply is not true. The judge specifically asked the petitioner whether he understood the maximum sentence that could be imposed regarding the sale of marijuana would be a term of six years or a fine of six thousand dollars or both, and that the maximum sentence that could be imposed regarding the sale of cocaine would be a term of sixty years and a fíne of not less than ten thousand dollars but no more than two million dollars. Fields announced clearly that he understood and that he still wanted to enter a plea of guilty. Fields was in no way misled as to the maximum sentences which the court could impose. The judge also asked Fields whether he was aware that, by pleading guilty, he was giving up certain constitutional rights, such as the right to a trial by jury. Fields clearly answered that he understood. In addition, the judge asked Fields a number of questions required of him under the law, including whether Fields had been coerced into pleading guilty; whether defense counsel explained the ramifications of the guilty plea; whether Fields was under the influence of alcohol or drugs at the time of the plea hearing or was otherwise impaired; and whether Fields understood the maximum and minimum penalties to which he could be sentenced for these crimes. See Alexander, 605 So.2d at 1172 (explaining the trial judge’s duties to inquire of the defendant whether he fully understands what he is giving up and what may happen as a result of his guilty plea). According to the transcript, Fields further made it crystal clear to all listening that he understood that his guilty plea would serve as a waiver to all of those constitutional rights that the circuit judge had mentioned. Fields answered that he was aware of and accepted any possible statutory penalties he could receive for his crimes. Finally, he lucidly stated that he was not being coerced and that he was not under the influence of any form of impairing drug.

¶ 7. Fields has given this Court no plausible evidence on which we may rely to overturn the decision of the trial judge to accept Fields’s plea. The credible evidence before us, including the transcript of the plea hearing, points to the inescapable fact that Fields made his decision to plead guilty on his own, without coercion and without misrepresentation. We do not believe that Fields has met his very heavy burden of proof to show that he did not understand what he was agreeing to or that he was pressured or intimidated into executing the petitions for guilty pleas.

II. WHETHER THE SENTENCE OF TWENTY-FIVE YEARS FOR THE OFFENSE OF SALES OF LESS THAN ONE OUNCE OF MARIJUANA WAS AN EXCESSIVE SENTENCE SINCE THE LAW ALLOWS ONLY A THREE YEAR SENTENCE FOR SUCH OFFENSE?

¶ 8. The Mississippi Supreme Court in Johnson v. State addresses the issue of an excessive or disproportionate sentence in stating “that a trial court will not be held in error or held to have abused its judicial discretion if the sentence imposed is within the limits fixed by statute.” Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984). Miss.Code Ann. § 41-29-139(b)(3) states that in the ease of the sale of one ounce or less of marijuana, such person may, upon conviction, be imprisoned for not more than three years or fined not more than three thousand dollars, or both. However, because the petitioner is a second and subsequent offender, Miss.Code Ann. § 41-29-147 applies. The section explicitly states that any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both. Since section 41-29-149 would apply in the present case, Fields was told the correct maximum sentences that could be imposed by the court at the plea hearing. However, at the sentencing hearing, the court mixed up the cause numbers bringing about confusion regarding correct sentences for the actual offense. The court sentenced Fields in accordance with cause no. 8718 being the sale of cocaine and cause no. 8719 being the sale of marijuana, when in actuality it was the reverse. This confusion caused the judgment for cause no. 8718 to read, “Fields is hereby sentenced to serve a term of twenty-five years in an institution and ordered to pay a fine in the amount of ten thousand dollars.” The judgment should have stated that for cause no. 8718 Fields is hereby sentenced to serve five years in an institution. This confusion was later corrected in amended judgments corresponding to the correct cause number and the correct sentence. Under the present circumstances, the trial court retained the authority to correct clerical errors in its orders. Williams v. State, 583 So.2d 620, 625 (Miss.1991); Sisson v. State, 483 So.2d 1338, 1339 (Miss. 1986). In entering the amended judgments, the court acted within its inherent authority “to correct clerical errors ... and to make the judgment entry correspond with the judgment rendered.” Kitchens v. State, 253 Miss. 734, 179 So.2d 13, 14 (1965). Although the case numbers were transposed during the sentencing hearing, the only reasonable inference was that the court intended to sentence the defendant to twenty-five years for the sale of cocaine and five years for the sale of marijuana. Duplantis v. State, 708 So.2d 1327, 1344 ¶ 79-80 (Miss.1998).

¶ 9. After considering these factors, coupled with the fact that the sentences were within the allowable statutory máximums, Fields’s claim that his sentence was excessive is without merit.

Ill WHETHER THE TRIAL COURT’S ACTIONS OF ENTERING AN AMENDED JUDGMENT, THREE YEARS AFTER THE ENTRY OF THE INITIAL JUDGMENT, AND WITHOUT A HEARING, WITH SUCH AMENDED JUDGMENT BEING ENTERED BY A DIFFERENT JUDGE NOT PRESENT AT OR KNOWLEDGEABLE OF THE GUILTY PLEA IN THIS CASE, WAS INAPPROPRIATE AND CONSTITUTED PLAIN AND REVERSIBLE ERROR?

¶ 10. As stated above, the trial court retained the authority to correct clerical errors in its orders. Williams v. State, 583 So.2d at 625. As a general rule, “jurisdiction once acquired is not defeated by subsequent events, even though they are of such a character as would have prevented jurisdiction from attaching in the first instance.” B.G. Bynum v. State, 222 Miss. 632, 76 So.2d 821, 821 (Miss.1955). In addition, “every court of record has inherent power not derived from statute to correct its own judgment rendered at a former term but a reviewing court is without power to substitute a wholly different judgment for that from which an appeal is prosecuted.” Id. In the case of Brown v. Sutton, 158 Miss. 78, 121 So. 885, 837 (1929), the court said: “Every court of record has general authority over its own records. The power of such a court to correct its records so as to make them speak the truth is inherent. The records of a court can be corrected or altered only by the court itself; and another court has no authority to make such corrections, even though it has appellate jurisdiction over the court whose records are sought to be corrected.” “Where it clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts as established by the record, the court acts upon the presumption that the error is a clerical misprision rather than a judicial blunder and sets the judgment entry right by an amendment nunc pro tunc.” Morrison & Whitlock v. Stewart, 21 Ill.App. 113 (1886). The circuit court had not lost jurisdiction over this case. In addition to the ability to correct clerical errors, this correction may be done at any time, as well after as during the term. Balch v. Shaw, 61 Mass. 282 (Mass.1851).

¶ 11. Therefore, applying these principles to the facts in this case the judgment was properly amended.

¶ 12. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS HEREBY AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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