author: LEE, J.,

text:
    Michael GREEN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00870-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.
    Certiorari Granted Aug. 28, 2003.

      Phillip Broadhead, Thomas M. Fortner, Jackson, attorneys for appellant.
    Office of the Attorney General, by Jean Smith Vaughan, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

111. On or about November 3, 1999, Michael Green was arrested for selling cocaine to an undercover Jackson police officer. Green was indicted for sale of cocaine within 1000 feet of a public park. Prior to trial, he filed a motion to dismiss due to double jeopardy and also a motion to dismiss due to speedy trial violations, but the motions were denied. A Hinds County jury convicted him of this charge in March 2001, and he was sentenced as an habitual offender to serve thirty years’ imprisonment without the possibility of parole or early release. His sentence was not enhanced because the trial court found the State had failed to prove the sale was within 1000 feet of a public park. Green’s post-trial motion for judgment notwithstanding the verdict or in the alternative a new trial was denied, and he now appeals to this Court.

¶ 2. On appeal, Green argues the following: (1) he was denied a speedy trial; (2) the trial court erred in allowing evidence of other crimes and in failing to require a limiting instruction; (3) the trial court erred in admitting the cocaine into evidence when a chain of custody was not established; (4) the trial court erred in refusing certain instructions concerning a lesser-included offense; (5) the sentence imposed is excessive; and (6) the verdict was against the overwhelming weight of the evidence. Finding no error with any of these issues, we affirm.

DISCUSSION OF THE ISSUES

I. WAS THE APPELLANT DENIED THE RIGHT TO A SPEEDY TRIAL?

¶ 3. With his first issue, Green argues the trial court erred in denying his motion to dismiss due to violation of his constitutional right to a speedy trial.

Review of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under this Court’s standard of review, this Court will uphold a decision based on substantial, credible evidence. If no probative evidence supports the trial court’s finding of good cause, this Court will ordinarily reverse. The state bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion.

DeLoach v. State, 722 So.2d 512(¶ 12) (Miss.1998) (citations omitted).

¶4. The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), employed a four pronged balancing test in determining whether a defendant had been deprived of his right to a fair trial. The four prongs are: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Arthur v. State, 735 So.2d 213(¶ 11) (Miss.1999). We look to these factors as they apply to Green’s case.

¶ 5. Green’s constitutional right to speedy trial attached at the time of his arrest, which was November 3, 1999. From that date to the date of trial on March 1, 2001, 482 days or 16 months passed. The supreme court has said that a delay of more than eight months is presumptively prejudicial. DeLoach, 722 So.2d at (¶ 16). This factor weighs in Green’s favor.

¶ 6. The second factor requires that we look to the reason for the delay. “Once there is a finding that the delay is presumptively prejudicial, the burden shifts to the prosecution to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons.” DeLoach, 722 So.2d at (¶ 17). Neither side filed any motions for continuance, nor is there any specific accounting given for the delay. “Where the defendant has not caused the delay and the State does not show good cause for that delay, this Court weighs this factor against the prosecution.” Lee v. State, 759 So.2d 1264(¶21) (Miss.Ct.App.2000). We count this factor against the State.

¶ 7. The third factor concerns the defendant’s assertion of his right to a speedy trial. Green filed his motion to dismiss for violation of his right to speedy trial the day before trial. “A defendant ‘has no duty to bring himself to trial.... Still he gains far more points under this prong of the Barker test where he has demanded a speedy trial.’ ” Brengettcy v. State, 794 So.2d 987(¶ 17) (Miss.2001). In Perry v. State, 637 So.2d 871 (Miss.1994), the supreme court noted that a motion for dismissal based on violation of right to speedy trial and a demand for speedy trial are not equivalent, with regard to the Barker analysis. Perry, 687 So.2d at 875. See also Adams v. State, 583 So.2d 165, 169-70 (Miss.1991) (holding that demand for dismissal coupled with demand for instant trial is insufficient to weigh third Barker prong in defendant’s favor where motion came after bulk of delay had elapsed). Here, we have no indication that Green ever filed a motion demanding a speedy trial, only that he filed a motion to dismiss prior to trial.

¶ 8. In Spencer v. State, 592 So.2d 1382 (Miss.1991), the supreme court stated the following:

The third factor in the equation is afforded “strong evidentiary weight.” “We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Spencer’s first and only assertion of his right to a speedy trial came only one day prior to trial.... This was 535 days following arrest.... [A] defendant has no duty to bring himself to trial. Further, the right to a speedy trial is not waived by silence. HOWEVER, this does not mean that the defendant has no responsibility to assert his right. The third Barker factor weighs against [the defendant].

Spencer, 592 So.2d at 1387-88 (citations omitted). For the reasons stated, we find the third factor weighs against Green.

¶ 9. The fourth factor concerns prejudice suffered by the defendant. This includes prejudice in preparing his defense and loss of liberty he suffered due to the delay. Perry, 637 So.2d at 876. “The Supreme Court has identified three main considerations in determining whether the accused has been prejudiced by lengthy delay: (1) preventing ‘oppressive pretrial incarceration;’ (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.” Jefferson v. State, 818 So.2d 1099(¶ 21) (Miss.2002). Green makes many broad claims concerning prejudice which resulted due to delay; however, the only specific way Green alleges he was prejudiced was he was “jailed for eighteen months without trial, [and] he was also unable to adequately prepare his case as it had been impaired, ‘skewing] the fairness of the entire system.’ ” He cites the point that witnesses often cannot be located after long delays, but he fails to allege that this was the situation in his case. We also recognize that once Green was arrested on the current charge, the probation he was serving for a prior crime was revoked five months after his arrest, causing him to be incarcerated where he would not have been otherwise since he paid bail to get out of jail on the current charge. Green has failed to show any prejudice, and this factor weighs heavily in favor of the State.

¶ 10. Our final obligation under Barker is to weigh the factors. “The balancing test set forth in Barker must be applied on a case by case basis under the particular facts of the case under consideration.” Birkley v. State, 750 So.2d 1245(¶ 30) (Miss.1999). We found two factors to weigh in Green’s favor, and two factors to weigh in the State’s favor. While acknowledging that the length of delay was presumptively prejudicial and that the State offered no legitimate reason for the delay, we balance these findings with the fact that Green failed to demand a speedy trial and, importantly, failed to show any resulting prejudice. Viewing the totality of circumstances, we find that Green’s right to speedy trial was not violated. There is no merit to this issue.

II. DID THE TRIAL COURT ERR IN ALLOWING EVIDENCE OF OTHER CRIMES AND IN FAILING TO GIVE A LIMITING INSTRUCTION?

¶ 11. Green next argues that the State should not have been permitted to introduce evidence of Green’s past criminal history, and a limiting instruction should have been given in this regard. Green recalls the following exchange between the prosecutor and Officer Virgil Finley:

PROSECUTOR: Okay. When you were listening to the transaction between the undercover [officer] and the suspect, is there anything about the transmission that you were hearing that you thought was unique?
OFFICER FINLEY: Pretty much the whole conversation. First off, just by the audio we had the general idea who the suspect was.
PROSECUTOR: How was that?
OFFICER FINLEY: From dealings with him in the past.

Thereafter, Green objected and moved for a mistrial. Green argued that this information was highly prejudicial and was presented to the jury without the court’s opportunity to conduct a M.R.E. 403 balancing test. The prosecutor argued that she was questioning the officer to identify Green, which is an exception under M.R.E. 404. The judge denied the motion for mistrial.

“This Court has repeatedly held that the granting of a motion for a mistrial is within the sound discretion of the trial judge.” The reviewing court recognizes that the trial judge is in the best position to determine whether an objectionable remark has had any prejudicial effect. For this reason, the trial court is allowed considerable discretion in determining whether a remark was so prejudicial that it warrants a mistrial.

Shipp v. State, 749 So.2d 300(¶ 13) (Miss.Ct.App.1999) (citations omitted). We note that the judge did not admonish the jury to disregard the statement, nor was any limiting instruction given; however, we find this error to be harmless.

¶ 12. In McKee v. State, 791 So.2d 804(¶ 23) (Miss.2001), the officer testified that in the course of his admission, the defendant stated that he needed help because he was still on crack cocaine. Defense counsel immediately objected and moved for a mistrial, but the court overruled both motions. Id. In McKee, the trial court did not conduct the balancing test, nor did it offer to give a limiting instruction regarding the crack cocaine statement; nonetheless, the supreme court found this error to be harmless. Id.

An error is harmless when it is apparent on the face of the record that a fair-minded jury could have arrived at no verdict other than that of guilty. This Court has previously held that “[wjhere the prejudice from an erroneous admission of evidence dims in comparison to other overwhelming evidence, this Court has refused to reverse.”

McKee, 791 So.2d at (¶ 24) (citations omitted).

¶ 13. In the present case, in light of the overwhelming weight of evidence in support of the verdict, we find that any error which occurred as a result of Officer Palmer’s statement was harmless. The evidence presented included a videotape of the transaction, Green’s admission to the present charge (although he only admitted to selling a “dummy” wax piece of cocaine, not a real one), and testimony from officers who participated in the surveillance efforts. As occurred in McKee, we also recognize that the defendant voluntarily referred to his own past convictions. McKee, 791 So.2d at (¶26). We find no merit to this issue.

III. DID THE TRIAL COURT ERR IN ADMITTING THE COCAINE INTO EVIDENCE?

¶ 14. Green argues that the trial court erred in admitting the cocaine into evidence because the chain of custody was not established. Specifically, Green points out that Officer Brad Harris, who purchased the rock from Green, testified that he did not write anything on the plastic bag containing the rock, nor on the tag attached to the bag. Additionally, Harris testified that the substance in the bag, which was several small rocks, did not resemble the substance he purchased from Green, which was one rock and which Harris had stated on the videotape he thought was “bunk” or fake crack. The State counters that Green has offered no evidence of tampering as to show the trial court abused its discretion in admitting the rock into evidence.

¶ 15. Green cites our standard of review from Tran v. State, 785 So.2d 1112(¶ 15) (Miss.Ct.App.2001):

The test for chain of custody is to find out whether there is any positive indication that the evidence has been tampered with or substituted. Whether conclusive evidence exists of any tampering or substitutions is left in the discretion of the trial court. This Court must review the decision of the trial court regarding this matter by ascertaining whether such discretion was abused.

(citations omitted). Reviewing the testimony presented, we find no positive indication of tampering or substitution. Officer McGowan testified that Officer Harris gave the rock to him and then put it in a bag. Officer McGowan also testified that, without removing the rock from the bag, he used a field test kit to determine that cocaine was present in the rock. Officer McGowan then sealed the bag, filled out the tag and delivered it to the evidence technician. He testified that he turned over the bag containing one rock, but that it was not unusual for the rock to break apart during testing. Using the test from Tran, Green has shown no evidence of tampering or substitution as would have provided the trial court any justification for ruling any differently than it did. As such, we find no abuse of discretion.

TV. DID THE TRIAL COURT ERR IN REFUSING TO GIVE A LESSER-INCLUDED OFFENSE INSTRUCTION?

¶ 16. Green requested at trial that the court give two instructions which directed the jury that they could find him guilty of a lesser-included offense. Specifically, Green defends that, at most, he was guilty of “false representation of substance,” in violation of Miss.Code. Ann. § 41-29-146 (Supp.1999), which prohibits sale of a fake drug. He bases this defense on Officer Harris’s testimony that, upon sale, Harris stated that at first he thought Green had sold him a piece of wax or “bunk” disguised as cocaine, since the rock was wet like bunk often was. This was Green’s only evidence in support of his theory of defense, in addition to his own testimony that the rock sold was fake.

When examining jury instructions refused by the trial court, we look at the evidence from the view of the party requesting the instruction. A party has the right to have his theory of the case presented to the jury by instructions, provided that there is credible evidence that supports that theory. The lower court enjoys considerable discretion regarding the form and substance of jury instructions. The principal concern is that the jury was fairly instructed and that it understood each party’s theory of the case.

Brown v. State, 768 So.2d 312(¶ 9) (Miss.Ct.App.1999) (citations omitted). Concerning a lesser-included offense instruction, we look to the general rule:

“If a ‘rational’ or a reasonable jury could find [the defendant] not guilty of the principal offense charged in the indictment yet guilty of the lesser-included offense,” then the lesser included offense instruction should be granted. A lesser included offense instruction is warranted only where there is an evidentiary basis for it.

Davis v. State, 684 So.2d 643, 656-57 (Miss.1996). Whether or not credible evidence existed to support Green’s theory is of no matter since his requested instruction incorrectly stated that false representation of a substance is a lesser-included offense of sale.

¶ 17. The crimes with which Green was charged included sale of cocaine in violation of Miss.Code Ann. § 41-29-139 (Rev. 2001), and Miss.Code Ann. § 41-29-142 (Rev.2001), which allowed the sentence to be enhanced for sale within 1000 feet of a city park. The “prohibition of sale” statute includes the following explanation of elements:

[I]t is unlawful for any person knowingly or intentionally: (1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance; or (2) To create, sell, barter, transfer, distribute, dispense or possess with intent to create, sell, barter, transfer, distribute or dispense, a counterfeit substance

Miss.Code Ann. § 41-29-139 (Rev.2001). Green claims that he was, at most, guilty of selling a fake rock of cocaine, in violation of Miss.Code Ann. § 41-29-146 (Rev. 2001), which states, “(1) It shall be unlawful for any person to sell, produce, manufacture, or possess with the intent to sell, produce, manufacture, distribute or dispense any substance which is falsely represented to be a controlled substance or which is falsely represented to be a counterfeit substance as defined in section 41-29-105 ....”

¶ 18. We have discussed when one offense is a lesser-included offense of another:

In Sanders v. State, 479 So.2d 1097, 1108 (Miss.1985), the Mississippi Supreme Court set out the test for determining whether one offense is a lesser-included-offense of another. “[I]n order to authorize [a lesser-included-offense] instruction the more serious offense must include all the elements of the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing the lesser included offense.” Thus, possession of paraphernalia may be a lesser-included-offense of possession of cocaine only if all of the elements of possession of paraphernalia also include all of the elements of possession of cocaine. There is no comparison between the two. The State need not prove possession of drug paraphernalia to convict for possession of a controlled substance. Each offense has elements which are unique to that offense and exclusive to the other. Because possession of paraphernalia is not a lesser-included-offense of possession of cocaine no lesser-included-offense instruction can be given. Shannon was not entitled to a lesser-included-offense instruction.

Shannon v. State, 739 So.2d 468(¶ 10) (Miss.Ct.App.1999) (citations omitted). Here, proof of Green’s guilt of the elements for sale of a controlled substance would not constitute proof of the elements of false representation. Thus, a lesser-included instruction was not justified.

f 19. On rehearing, Green now argues that his point actually included the related doctrine of lesser, non-included offense instructions. This doctrine is of fairly recent origin. In the case that created it, the Court noted among the reasons for allowing an instruction on an offense that is not included within the charged offense but which arose out of the same operative facts, was “the enormous disparity in maximum punishments” in the two potential offenses in that case:

Whether simple assault is formally a lesser included offense to rape is not the point. We have before us a continuing factual scenario bracketed by a relatively brief period of time on the evening of November 2, 1985. The facts suggest that Griffin may have been guilty of at least two possible courses of criminal conduct: rape and simple assault, the latter carrying a maximum penalty far less than the former. As the jury may on these facts reasonably have found Griffin guilty of simple assault but not guilty of rape — without any inconsistency in evidentiary or ultimate findings, it follows that Griffin was of right entitled to have the jury instructed on the lesser offense of simple assault, [in a footnote, the Court said “Any possible concern that simple assault, because technically not a lesser included offense, is not within the indictment for rape dissipates.”] Because the Circuit Court refused that instruction, and because of the enormous disparity in maximum punishments between rape and simple assault, we find the error of reversible proportions.

Griffin v. State, 533 So.2d 444, 447-448 (Miss.1988).

¶ 20. Green on rehearing argues that our original opinion in this case ignored this corollary to the lesser-included offense principle. There was a reason that we ignored it, and that was because the argument was almost imperceptible on appeal and nonexistent below.

¶ 21. The issue as described in the original appeal briefs was that error occurred in denying “the lesser-included offense” instruction. Of the nine cases that Green cited on the point, seven dealt with lesser-included offense instructions. The argument takes up more than eight pages of the brief. The only time that Green shifted from lesser-included offenses to what he is now arguing on rehearing was in the middle of one paragraph near the end of his argument:

This right [to have the defendant’s theory of the case explained to jury] entitled Green to have the jury instructed regarding any offense carrying a lesser punishment arising out of a common nucleus of operative facts with the scenario giving rise to the charge laid in the indictment. Mease [v. State, 589 So.2d 1324,] 1329-1334 [ (Miss.1989) ]. See also Griffin v. State, 533 So.2d 444 (Miss.1988).

¶ 22. The Mease case contains a lesser offense issue. Griffin is the seminal case on lesser, non-included offense instructions, and we have quoted from it above.

¶ 23. Regardless of whether the issue received brief mention on appeal, it is not properly before us unless the matter was timely raised at trial. The trial judge may not be put in error for not accepting an argument that was not made. Moawad v. State, 531 So.2d 632, 634 (Miss.1988). The instruction conference in this trial began with the judge’s noting what requested instructions that he was granting and which he was denying. Apparently this was a preliminary decision made by the judge without any prior argument. Then he asked for objections to his rulings. Green’s counsel said that this was a proper “lesser included offense instruction.” Then he made the following argument about the offense of falsely representing something to be a controlled substance:

That would be a lesser included offense instruction of sale of a controlled substance, and our Supreme Court has said clearly that if there is any basis in the evidence from which a jury could conclude a particular lesser included offense instruction verdict, then the Court should at least give the jury that option.

¶ 24. Counsel next explained how Green had put evidence before the jury that what he sold the undercover officer was not really cocaine but was what he called a “dummy” substance. Once the verdict of guilt was returned, Green argued the need for a lesser, non-included offense instruction in his post-trial motions. That does not cure the problem that when instructions were being proposed and the judge asked if there was an objection to the denial of the relevant instruction, counsel raised with the judge only the issue of lesser-included offense instructions. “Objections to jury instructions made after the jury has returned a verdict and been discharged is simply too late.” Barnett v. State, 725 So.2d 797, 801 (Miss.1998)(objection first raised in motion for new trial). The only way to remedy an instruction defect at that time would be to order a new trial.

¶ 25. It is evident that at trial when the issue was still addressable, Green presented the matter strictly as a lesser-included offense issue. Counsel did not say anything about a non-included offense that arises out of the “common nucleus of operative fact” until the jury had been discharged.

¶ 26. Whether the trial judge should have granted such an instruction had the principle of such cases as Griffin been raised has therefore not been preserved for our review. In light of the laboratory results indicating that the substance was cocaine, we do not find that the absence of the instruction was such a significant matter as to rise to the level of plain error.

V. WAS THE SENTENCE IMPOSED ON THE APPELLANT EXCESSIVE?

¶ 27. Green was sentenced to serve thirty years’ imprisonment as an habitual offender, and he complains on appeal that this sentence is excessive for sale of a single rock of cocaine, which he calls a “small-time” offense. He cites to federal law from California and statutory law from Alabama in support of his contention that his sentence was excessive. See Andrade v. Attorney Gen’l of California, 270 F.3d 743 (9th Cir.2001) and Ala.Code §§ 13A-12-211 (2001), 13A-5-6 (1977), 13A-5-9 (1977). We look to Mississippi law for our standard of review on this issue.

“As a general rule, a sentence will not [be] disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” When the trial judge does impose a sentence within these statutory guidelines ... the sentence will usually be upheld and will not be thought to invoke the Eighth Amendment right against cruel and unusual punishment.

Maldonado v. State, 796 So.2d 247(¶47) (Miss.Ct.App.2001) (citations omitted).

¶ 28. Green cites to Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), in asking that we perform the three-part proportionality test to determine if his sentence was proportional to his crime. However, prior to conducting such analysis, we must first determine whether an inference of gross dispropor-tionality exists. Bell v. State, 769 So.2d 247(¶ 10) (Miss.Ct.App.2000). We do not find such inference exists here. Green was sentenced to the maximum allowable by law because he was an habitual offender, having twice previously been convicted of sale of cocaine. In Boyd v. State, 767 So.2d 1032(¶ 9) (Miss.Ct.App.2000), this Court found that a sentence of thirty years without the possibility of parole for the sale of cocaine was not cruel and unusual punishment where the defendant was a habitual offender with prior convictions for burglary, grand larceny, and cocaine possession. Also, in Bell this Court upheld the trial court’s sentence of thirty years as an habitual offender for the defendant who was convicted of sale of cocaine. Bell, 769 So.2d at (¶ 16). We find no abuse in the judge’s discretion in sentencing Green within statutory guidelines, and we affirm on this issue.

VI. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT AND SUFFICIENCY OF THE EVIDENCE?

¶29. Green finally argues that the trial court erred in denying his motion for directed verdict at the close of the State’s case-in-chief and in denying his motion for judgment notwithstanding the verdict or in the alternative a new trial. We look to our standard of review with regard to both the weight and sufficiency of the evidence.

A motion for a new trial will be granted when the weight of the evidence is so overwhelming that an unconscionable injustice would result if a new trial is not granted. It is well established that matters regarding the weight of evidence are to be resolved by the jury. As such, our scope of review is limited in considering challenges to the weight of the evidence. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice ....
A directed verdict and judgment notwithstanding the verdict both attack the sufficiency of evidence. Our standard of review with regard to motions challenging the sufficiency of the evidence is well established. When reviewing the quan-turn of the evidence presented at trial on this matter, the question is whether reasonable and fair-minded jurors could have only found the defendant not guilty of the charges, where in the present case the jury found him guilty.

Danner v. State, 748 So.2d 844 (¶¶ 7-8) (Miss.Ct.App.1999) (citations omitted).

¶ 30. First, concerning the weight of the evidence, we examine whether or not an unconscionable injustice would result were we to allow the verdict to stand. Reviewing the evidence in a light favorable to the verdict, we find that those officers involved testified as to the transaction, the substance sold tested positive for the presence of cocaine, and Green himself testified that he did indeed sell the substance to the undercover officer. These facts all support the verdict; thus, we find the judge did not abuse his discretion in denying Green’s motion for new trial.

¶ 31. Concerning the sufficiency of the evidence, we look to Green’s request for directed verdict at the close of the State’s case-in-chief and also to his motion for judgment notwithstanding the verdict in determining whether reasonable and fair-minded jurors could have only found Green not guilty. Reviewing the evidence presented at trial, we find that the jurors certainly had sufficient evidence to find Green guilty, including the officers’ testimony, the videotape of the transaction and the confirmation that the item sold did contain cocaine. We find no merit to this issue.

¶ 32. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO HINDS COUNTY.

McMILLIN, C.J., KING AND SOUTH-WICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS AND CHANDLER, JJ., CONCUR., GRIFEIS, J„ NOT PARTICIPATING.

      . The original opinion is withdrawn and this is substituted. The rehearing motion is denied.

      . U.S. Supreme Court granted certiorari on April 1, 2002, granting oral argument. See Lockyer v. Andrade, 535 U.S. 969, 122 S.Ct. 1434, 152 L.Ed.2d 379 (2002) (memo), argued November 5, 2002. U.S. Supreme Court reversed in Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (U.S.2003) (NO. 01-1127).


source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    Michael WEAVER a/k/a Michael Herbert Weaver, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-00725-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.
    Rehearing Denied June 17, 2003.
    Certiorari Denied Oct. 9, 2003.

      John P. Fox, Houston, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Michael Weaver has appealed from an order of the Circuit Court of Chickasaw County modifying the conditions by which he could avoid spending the final fifteen years of a twenty year sentence in confinement. We affirm.

I.

Factual and Procedural Background

¶ 2. Weaver pled guilty in December 1997 to one count of burglary of a dwelling. He was sentenced to a term of twenty years with five years to serve and the final fifteen suspended “upon his good behavior and subject to the conditions in Section 47-7-35 of the Miss.Code with the exception of subsections d and e.... ” In addition, the judgment of sentence stated that Weaver was to be “banished from a 100 mile radius of Houston, Mississippi for the period of his suspended sentence ....” (emphasis added).

¶ 3. In an earlier appeal from that sentence that began as a proceeding under Mississippi’s post-conviction relief statute, Weaver complained that the banishment provisions of his judgment were prohibited under constitutional considerations and, therefore, unenforceable. Weaver v. State, 764 So.2d 479 (Miss.Ct.App.2000). Alternatively, he contended that such a banishment was, in effect, a term of probation or post-release supervision, and, as such, could not extend longer than five years following his release. Id. at (¶ 9).

¶ 4. This Court, in its earlier opinion, found that the trial court erred when it failed to make appropriate findings on the record concerning the advisability and reasonableness of the banishment provisions similar to those found in Cobb v. State, 437 So.2d 1218 (Miss.1983). We remanded for on-the-record findings as to the relevant considerations. Additionally, this Court appeared to agree with Weaver’s contention that a banishment provision was a condition of probation or supervised release that, under Section 47-7-37 of the Mississippi Code, could not extend longer than five years after release from confinement. Finding the language of the trial court’s judgment on this question to be ambiguous, our Court suggested the need for the trial court, on remand, “to clarify its sentencing order” as to the length of the banishment period. Weaver, 764 So.2d at (¶ 12).

¶ 5. After a hearing on remand, the trial court entered an “Order of the Court Clarifying Sentencing Order” declaring that the original judgment “is hereby amended to remove the provision for banishment and by placing the defendant on supervised probation for a period of five years upon his release from custody.”

¶ 6. Weaver has now appealed from that order, contending that the added requirement of supervised probation is a new and additional element of punishment, more onerous than his original sentence, resulting in his being punished twice for the same crime in violation of the Double Jeopardy provisions of the Constitution of the United States.

II.

Discussion

¶ 7. Once the term of court has ended at which a judgment of sentence is handed down, the general rule is that the trial court has lost its authority to alter or amend the term of punishment afforded to the guilty defendant. Mississippi Comm’n on Judicial Performance v. Russell, 691 So.2d 929, 943 (Miss.1997). Additionally, there is the well-established proposition that any attempt to alter the terms of punishment in order to increase the severity of the punishment, once the sentence originally announced becomes final, is not permitted under considerations arising under the Double Jeopardy Clause of the Constitution of the United States. Leonard v. State, 271 So.2d 445, 447 (Miss.1973); Johnson v. State, 753 So.2d 449 (¶¶ 13-14) (Miss.Ct.App.1999).

¶ 8. In this case, the defendant himself raised the question of the enforceability of his original sentence by bringing an action under this state’s post-conviction relief statute attacking the banishment provision of the sentence. Such an action is authorized under Section 99-39-5(l)(a) of the Mississippi Code as a claim “[t]hat the ... sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi....” Miss.Code Ann. § 99 — 39—5(l)(a) (Rev. 2000). To an extent, Weaver was successful in his challenge since this Court held that it was unable to determine whether the terms of the banishment could pass legal muster. We remanded with directions to the trial court to consider the terms of the banishment as earlier imposed in fight of established guidelines for such provisions as set out by the Mississippi Supreme Court in the Cobb decision. Necessarily included within the mandate of a remand of that nature is the possibility that the trial court, after further inquiry and deliberation, may determine that the original provisions of the judgment relating to banishment could not be supported under the law. Such a determination leads inevitably to the question of what authority the trial court has in that circumstance. Is it limited to simply striking out the offending terms of the sentence, leaving the defendant to abide by such provisions of the judgment — if any there be — that remain? That, in effect, is what Weaver appears to be arguing for in this appeal.

¶ 9. That does not appear to be the limit of the trial court’s authority. In instances where the Mississippi Supreme Court has found a sentence to be improper on some ground, the remedy imposed has not been to simply vacate the sentence, but to vacate and remand to the trial court for re-sentencing. See, e.g., Grubb v. State, 584 So.2d 786, 790 (Miss.1991); Carter v. State, 524 So.2d 324, 325 (Miss.1988).

¶ 10. The only limitation on the court’s authority to re-sentence would appear to be the overriding Double Jeopardy provisions of the United States Constitution that would prevent the trial court from imposing a harsher punishment in re-sentencing than existed in the original judgment of sentence. Leonard, 271 So.2d at 447.

¶ 11. In addition to the foregoing considerations, the statute relating to the terms and conditions of probation specifically permits the court to “alter or modify, at any time during the period of probation or post-release supervision the conditions [of probation].... ” Miss.Code Ann. § 47-7-35 (Rev.2000). The initial modification of the conditions attached to Weaver’s post-release activities (submission to post-release supervised parole rather than post-release banishment) occurred while Weaver remained incarcerated rather than “during the period of probation” that was to follow his release. However, we note that the hearing on Weaver’s motion to have that modification vacated occurred after his release. To the extent that the quoted provision relating to the timing of the court’s action would be deemed essential to the court’s authority to act, we are satisfied that the court’s denial of Weaver’s motion to vacate the new sentencing order effectively acted as a reaffirmation of the court’s decision. This part of the proceeding occurred “during the period of probation,” thus meeting the requirement of the statute.

¶ 12. The issue therefore becomes two-fold: (1) do the provisions permitting post-release modification of the terms of probation run afoul of Double Jeopardy concerns, thereby rendering that part of the statute unconstitutional; and (2) if not, did the particular manner in which Weaver’s post-release conditions of behavior were modified violate those same constitutional provisions? Did the substitution of supervised probation instead of banishment amount to a constitutionally-impermissible increase in the harshness or onerous nature of Weaver’s punishment?

¶ 13. As to the first issue, at least two other jurisdictions considering a similar issue did not appear to find an absolute constitutional bar to a modification of the terms of probation. Reyes v. State, 978 P.2d 635, 640 (Alaska Ct.App.1999); Staley v. State, 233 Ga.App. 597, 505 S.E.2d 491, 493-94 (1998). This Court, too, can envision circumstances where it would be entirely appropriate to alter the terms of probation or post-release supervision and we do not conclude that a blanket prohibition against any form of such post-sentence changes is required under the constitutional provisions asserted by Weaver in this appeal. One example might be where the terms of probation are tightened after an apparent probation violation that the trial court is concerned about but seeks to avoid the necessity of revoking the probation.

¶ 14. The second, and more narrow, issue to be answered is whether, on the particular facts of this case, there has been an impermissible increase in the level of punishment being inflicted upon Weaver by virtue of this change in the conditions of his release. Merely deciding that the probation statute permits some changes in probation terms does not necessarily mean that all such changes are permissible since there will always remain questions of enhancement of the punishment that is prohibited by the constitution. Nevertheless, as the Georgia court observed in Staley, “A change in the conditions of probation is not necessarily an increase in sentence.” Id. at 494. By way of illustration of that proposition, the court indicated that “an addition which is clearly and completely rehabilitative does not constitute an additional punishment.” Id.

¶ 15. In the case before us, the court discussed the fact that the original banishment provision was an attempt to remove Weaver from an environment and potential companions believed by the court to be detrimental to Weaver’s chances of rehabilitating himself after release from incarceration. On remand, the trial court apparently concluded, for reasons it did not spell out, that the banishment could not be justified within the context of the Cobb decision and removed it as a condition of the suspension of the remaining fifteen years of Weaver’s sentence. This resulted in the removal of any safeguard against Weaver resuming the associations and lifestyle that the court concluded had contributed to his tendency toward criminal activity. Rather than simply permit Weaver to return to that environment without any oversight or safeguard, the trial court— apparently based purely on considerations of rehabilitation rather than punishment— required Weaver to submit to supervised probation for the first five years after his release.

¶ 16. It is the view of this Court that the requirement of periodically reporting in some appropriate manner to a probation officer who then has the opportunity to monitor Weaver’s post-release activities and, through appropriate supervisory techniques, assist Weaver in avoiding the pitfalls that led to his previous legal problems is not so punitive or onerous as to amount to an unlawful increase of the terms of his punishment. Such periodic reporting as may reasonably be required does not appear unreasonably harsh or burdensome as a condition of continued release from confinement. Such a requirement appears to our satisfaction to be rehabilitative rather than punitive and thus not subject to the constitutional challenges raised by Weaver in this appeal.

¶ 17. Weaver contends, as a part of his argument, that the imposition of supervised probation in this instance is against the holding in Artis v. State, since the original sentence did not impose any probationary conditions on the suspended portion of his release. Artis v. State, 643 So.2d 533, 537-38 (Miss.1994). This simply is inaccurate. Banishment is, of itself, a probationary provision. Cobb, 437 So.2d at 1221.

¶ 18. Additionally, the trial court’s sentencing order specifically conditioned the suspension of fifteen years of Weaver’s sentence “upon his good behavior and subject to the conditions in Section 47-7-35 of the Mississippi Code with the exception of subsection d and e.... ” Section 47-7-35 lists in great detail those requirements that may be attached to the conditional release of a defendant from confinement for only so long as those conditions are complied with. It is plain that Weaver’s post-confinement release was not the kind of unconditioned suspension of a portion of the sentence that occurred in Artis and which would have prevented the court from subsequently tacking on probationary requirements to an otherwise completed sentence. Instead, this sentence was, beyond question, the kind of probationary release discussed in Staley, where the defendant was fully informed that his release after serving only a portion of his total sentence was conditional only and that his continued release from confinement was dependent upon his ability to comply with the conditions of probation set out in the sentencing order. Staley, 505 S.E.2d at 492.

¶ 19. In summary, we do not conclude that the substitution of some period of formal probationary supervision in place of a like term of banishment constitutes an increase in the degree or character of Weaver’s punishment that would invoke constitutional concerns of double jeopardy. We find that requirement to be essentially rehabilitative in its objectives and not punitive. On that basis, we conclude that the change in probation terms was within the circuit court’s authority as contained in Section 47-7-35.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF CHICKASAW COUNTY IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P. JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: GRIFFIS, J.,

text:
    David Lee JACKSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01990-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.
    Rehearing Denied July 29, 2003.
    Certiorari Denied Oct. 16, 2003.

      Laurel G. Weir, Philadelphia, attorney for appellant.
    W. Glenn Watts, by Office of Attorney General, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. David Lee Jackson was convicted of possession of cocaine and sentenced to fifteen years in the custody of the Mississippi Department of Corrections. On appeal, Jackson contends that the trial court erred in not granting his motion for directed verdict and in admitting evidence concerning another crime. Finding no error, we affirm.

FACTS

¶ 2. On January 21, 2001, a Mississippi State Trooper was on patrol traveling south on Highway 45 when his radar registered a vehicle traveling north at a rate of 83 miles per hour in a 55 miles per hour zone. The trooper pursued the vehicle, which did not stop despite the flashing blue lights. After several miles, the vehicle stopped and the trooper asked the driver, David L. Jackson, to get out of the vehicle. The trooper patted the driver down at the scene and then transported him to the Clarke County Sheriffs Department. Jackson was arrested for not wearing a seat belt, failure to yield to a trooper, speeding, and reckless driving.

¶ 3. During an inventory search as part of the routine booking procedures at the sheriffs department, the trooper found a bag in Jackson’s shoes containing substances that appeared to be cocaine and marijuana. As a result, Jackson was then additionally charged with possession of cocaine and possession -of marijuana. After receiving his Miranda warnings and signing a Miranda waiver of rights form, Jackson confessed that he possessed the cocaine and intended to smoke it at a party. The Mississippi Crime Lab analyzed the substance and reported it revealed a positive test for cocaine, weighing in at 25.31 grams.

¶ 4. At trial, the trooper identified Jackson as the man that was arrested on January 21, 2001. Jackson’s confession was also admitted into evidence. Additionally, an employee of the Mississippi Crime Lab testified that the substance found in Jackson’s shoe was cocaine. After the State rested, Jackson moved for a directed verdict which was denied. Subsequently, after the defense rested and the instructions were given, the jury found Jackson guilty on the possession of cocaine charge.

I. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING JACKSON’S DIRECTED VERDICT.

¶ 5. Jackson contends that the motion for directed verdict should have been granted. Specifically, Jackson challenges the legality of the searches and the sufficiency of the evidence.

¶ 6. First, we address the legality of the searches. The trooper searched Jackson twice, once after exiting his vehicle and once at the sheriffs department during booking. As to the first search, Jackson claims that the pat down was illegal because he was stopped for a misdemeanor offense while no emergency circumstances existed. Despite the constitutional preference for searches conducted pursuant to an authorized search warrant, both the United States Supreme Court and the Mississippi Supreme Court have recognized certain exceptions to the warrant requirement. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (the court recognizes that there are exceptions to the warrant requirement for a search); Graves v. State, 708 So.2d 858, 862-63 (Miss.1997)(the court set forth numerous exceptions to the requirement of obtaining a valid search warrant). Some of the more established exceptions recognized by the Mississippi Supreme Court include “search incident to arrest, search of a vehicle, plain view, stop and frisk, hot pursuit and emergency search, administrative search.... ” Id. Therefore, according to prevailing authority, the trooper’s pat down search was legal because the search was incident to the arrest.

¶ 7. As to the search at the sheriffs department, the Mississippi Supreme Court decision in Rankin v. State, 636 So.2d 652 (Miss.1994) governs. In Rankin, the defendant was arrested for carrying a concealed weapon. When he arrived at the jail, officers searched the defendant’s jacket and found cocaine. The defendant was then placed under arrest for possession of cocaine. On appeal, the defendant argued that his clothing was illegally searched. The Mississippi Supreme Court set forth two grounds in holding that the strictures of the Fourth Amendment were met by the search. First, the court noted that because the personal effects of one under lawful custodial arrest were subject to search at the time and place of arrest, they were likewise subject to a warrantless search at the place of detention. Id. at 657. Second, the court stated that the search was also valid as “part of a routine inventory procedure at the place of detention, incident to processing the arrestee.” Id.

¶ 8. Accordingly, we find that the circumstances in Rankin are similar to the present case. Jackson was under lawful custodial arrest and the search took place pursuant to a routine inventory search at the place of detention, incident to his processing. Therefore, we find Jackson’s contention that the searches were illegal to be without merit.

¶ 9. Jackson also appears to argue that his constitutional rights were violated because he was searched twice. However, he cites no authority to support this contention. This Court will not review any issues where the party has failed to cite relevant authority. Williams v. State, 708 So.2d 1358, 1360-61(¶ 12) (Miss.1998). Therefore, we will not address this particular issue.

¶ 10. We next address Jackson’s second argument in this assignment of error, that the trial court erred in not granting his motion for directed verdict. A request for a directed verdict implicates the sufficiency of the evidence. The standard of review for the legal sufficiency of the evidence is well settled:

[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.

Gleeton v. State, 716 So.2d 1083, 1087(¶ 14) (Miss.1998).

¶ 11. At trial, the trooper identified Jackson as the man he arrested and as the individual who possessed the alleged cocaine. An employee of the Mississippi Crime Lab also testified that the substance found in Jackson’s shoe did test positive for cocaine. More importantly, Jackson confessed to possessing the cocaine. Therefore, we find that the evidence was clearly sufficient to support his conviction.

¶ 12. Finally, in this assignment of error, Jackson also raises as error a faulty indictment claim. Jackson raised this issue for the first time on appeal. Issues raised for the first time on appeal are procedurally barred from review as they have not first been addressed by the trial court. Mack v. State, 784 So.2d 976, 978(¶ 10) (Miss.Ct.App.2001). As an appellate court, we cannot find that a trial judge committed reversible error on a matter not brought before him to consider. Smith v. State, 724 So.2d 280, 313 (¶ 127) (Miss.1998). Accordingly, this issue is barred from our review. We find the first assignment of error to be without merit.

II. WHETHER THE COURT ERRED IN PERMITTING EVIDENCE OF ANOTHER CRIME, POSSESSION OF MARIJUANA, WHICH HE WAS NOT INDICTED FOR.

¶ 13. Jackson argues that because he was not indicted for possession of marijuana the trial court erred in allowing references to the marijuana found in his shoe. In particular, when the trooper was asked what he had found in Jackson’s shoe, the trooper testified that he had found substances that looked like cocaine and a marijuana leaf. Jackson also objected to the admission of the evidence submission form received by the Mississippi Crime Lab listing what had been found in Jackson’s shoe. The form stated what had been submitted to the Crime Lab for testing, ie., a white substance and a green leafy substance, but did not identify the substances as cocaine and marijuana. Additionally, at trial, the Crime Lab employee only testified as to the cocaine, not the marijuana.

¶ 14. To support his argument, Jackson cites Eubanks v. State, 419 So.2d 1330 (Miss.1982). In Eubanks, the Mississippi Supreme Court held that it was reversible error when the trial court allowed the State to offer evidence of other separate and independent crimes and acts of misconduct not charged in the indictment. Id. at 1331. The instant case is distinguished from Eubanks. Here, the marijuana found in Jackson’s shoe did not derive from a separate and independent circumstance and crime because it was found simultaneously with and in the same packaging as the cocaine. Moreover, Jackson fails to establish how he was prejudiced by this reference.

¶ 15. In this assignment of error, Jackson also claims that he was prejudiced by testimony concerning the street value of the cocaine found in his shoe. At trial, an officer with the Meridian Police Department testified that the 25.31 grams of cocaine found on Jackson was worth $4,500 to $6,000 depending on how it was sold. After further reviewing the record, we find that Jackson objected at trial to the testimony on the grounds that the amount stated was speculative, not that it was prejudicial. In Haddox v. State, 636 So.2d 1229, 1240 (Miss.1994), the Mississippi Supreme Court held that the assertion on appeal of grounds for an objection, which was not the assertion at trial, is not an issue properly preserved on appeal. Therefore, because this argument is not preserved for appeal, this Court cannot reverse based upon it. Accordingly, we find the second assignment of error to be without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF CLARKE COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND ENHANCED SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $5,000 IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: SOUTHWICK, P.J.,

text:
    Larry HYMES, Appellant, v. Willard L. McILWAIN, Jr., George T. Kelly and George Dunbar Prewitt, Appellees.
    No. 2001-CP-01783-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.
    Rehearing Denied June 3, 2003.

      Larry Hymes (Pro Se), attorney for appellant.
    George T. Kelly (Pro Se), George Dunbar Prewitt (Pro Se), Willard L. Mcllwain (Pro Se), attorneys for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Larry Hymes’ claim of legal malpractice was dismissed on summary judgment based on the applicable statute of limitations. On appeal, Hymes argues that the trial court used an improper date for the commencement of the limitation period. We disagree with the contention and affirm.

FACTS

¶ 2. In 1991, Larry Hymes was convicted of possession of marijuana with intent to sell or distribute and of possession of a firearm by a convicted felon. He was sentenced to a total of thirty-five years in prison. After direct appeal resulted in affirmance of the conviction, in 1995 Hymes pursued post-conviction relief based on ineffective assistance of counsel. The relief sought was eventually granted and Hymes’ conviction was vacated in May 2000.

¶ 3. In January 2001, Hymes filed a professional malpractice suit against the three attorneys who represented him in the 1991 criminal trial. The complaint alleged the attorneys’ malpractice resulted in his improper conviction and incarceration of some nine years. The attorneys were Willard L. Mcllwain, Jr., George T. Kelly, and George Dunbar Prewitt.

¶ 4. After denying in their answer all allegations of malpractice, the defendants filed a motion for summary judgment on July 2, 2001, approximately one week after the court-mandated deadline for submitting motions had passed. In the order granting summary judgment, the trial court mistakenly found that Hymes had failed to file an answer to the motion. The court also found that the suit was time-barred by the expiration of the three-year statute of limitation.

DISCUSSION

¶ 5. In addition to the tort claims of negligence and professional malpractice, Hymes contends he was denied effective assistance of counsel as required by the Sixth Amendment to the United States Constitution. He urges that his claims are not time-barred as the statute of limitation on such a claim did not begin to run until his conviction was vacated.

¶ 6. For this proposition, Hymes relies upon the United States Supreme Court case of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the court addressed the claims of the petitioner, a convicted and incarcerated felon, against prosecutors and law enforcement officers involved in his case. Heck alleged the defendants had deliberately destroyed exculpatory evidence in order to convict him, thereby violating his constitutional rights and giving rise to a cause of action under section 1983 of Title 42 of the United States Code. Id. at 484, 114 S.Ct. 2364.

¶ 7. The Supreme Court analogized the substance of Heck’s claims to the common law tort of malicious prosecution. It then concluded that one of the necessary elements for succeeding in a malicious prosecution suit is that the legal proceedings have been finally resolved in favor of the accused. Id. Without such a requirement, the new litigation would be a collateral attack upon the legality of a conviction by seeking money damages through a civil suit rather than through the proper channel of habeas corpus proceedings. Id. For if such a plaintiff was successful in the civil suit, the judicial system would be faced with conflicting and irreconcilable outcomes arising out of the same event or transaction. Id.

¶ 8. Finding this reasoning sound, the Heck court held that a section 1983 claim which has the effect of casting aspersions upon the legality of either conviction or confinement if successful is not cognizable until the conviction upon which the claim is based has been legally voided. Id. at 486-87, 114 S.Ct. 2364. Hymes urges that Heck requires a finding that the statute of limitation did not begin to rim on his claims until his petition for post-conviction relief was granted in May 2000.

¶ 9. The problem with analogizing Heck to the present litigation is that this is neither a section 1983 action against governmental actors nor is it akin to a malicious prosecution suit. It is true that the Sixth Amendment obligates states to provide appointed counsel to indigent defendants, and to assure that counsel is professionally adequate. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The Fourteenth Amendment protects individuals from constitutional violations perpetrated against them by the State but not by private individuals. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 930, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Under section 1983, the federal government has provided for civil redress against individuals who, under color of state law, deprive another of “any rights, privileges, or immunities secured by the Constitution or laws.” This has been interpreted to mean that “the conduct causing the deprivation of a federal right be fairly attributable to the State.” Id. at 937, 102 S.Ct. 2744.

¶ 10. The Supreme Court has ruled that, for purposes of section 1983 liability, public defenders are not State actors when the alleged constitutional violation arose as a result of traditional defense counsel duties. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Except for the source of payment, the relationship between public defender and client is indistinguishable from that of any other attorney and client. Id. at 318, 102 S.Ct. 445. Once a lawyer has undertaken representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, court-appointed or serving in a legal aid or defender program. Id. Thus, section 1983 was properly not used by Hymes in this case, but instead he is seeking normal professional malpractice liability.

¶ 11. Though Hymes does not proceed under section 1983, he still wants the analysis of Heck to apply insofar as concerns the statute of limitation. All that Heck provides relevant here is that were this a suit akin to malicious prosecution against State actors, the setting aside of the underlying conviction would be a prerequisite for the bringing of a damage suit. Hymes is not complaining of State action nor is he bringing a suit similar in its elements to a malicious prosecution suit. We find Heck and its statute of limitations conclusions to be inapplicable.

¶ 12. Hymes argues that this Court has already taken Heck where he wants it to go in Ott v. Mitchell, 792 So.2d 332 (Miss.Ct.App.2001). There, an imprisoned plaintiff attempted to bring a civil suit against district attorneys, law enforcement officers and confidential informants for various violations of his civil rights. We relied upon Heck because the suit was exactly what Heck was meant to address-civil suits against State actors which, if successful, would cast significant doubts upon a criminal conviction via an improper civil suit collateral attack. Thus Ott confirms our present interpretation of Heck. It does not undermine it.

¶ 13. Controlling authority in the present suit is not Heck but standard legal malpractice jurisprudence. The period of limitation in such a suit begins to run as of the date the client learns, or through reasonable diligence should have learned of his counsel’s negligence. Smith v. Sneed, 638 So.2d 1252, 1253 (Miss.1994). This was the ground upon which the trial court found the suit untimely. Hymes was not required by the operative cause of action for professional malpractice to prove that the effects of his counsel’s alleged negligence had been finally set aside. The limitation period was therefore not awaiting final resolution of the criminal matter before it would begin.

¶ 14. Hymes had reason to know his attorneys acted negligently for quite some time before filing suit against them. Ineffective assistance of counsel was the basis for vacating the sentence. The petition for post-conviction relief was filed in 1995, although it was not ultimately successful until 2000. At the very latest, the statute of limitations began to run in 1995 when it became apparent Hymes knew of his attorneys’ deficient performance. The filing of this civil suit comes too late.

¶ 15. Because the statute of limitation issue is dispositive, we need not address other issues.

¶ 16. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, P.J.,

text:
    Donald Wade MILLER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01223-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.
    Rehearing Denied June 10, 2003.
    Certiorari Granted Sept. 25, 2003.
    James W. Amos, Hernando, attorney for appellant.
    Office of the Attorney General by: W. Glenn Watts, attorney for appellee.
    Before KING, P.J., LEE and IRVING, JJ.
   KING, P.J.,

for the court.

¶ 1. Donald Wade Miller was convicted of arson in the DeSoto County Circuit Court. He was sentenced to a term of one year in the custody of the Mississippi Department of Corrections followed by supervised probation of ten years. Aggrieved by his conviction, Miller has perfected this appeal. He presents for this Court’s consideration the following issues, which we quote verbatim:

I. The court erred in failing to sustain the motion for directed verdict made by Defendant at the close of the State’s case-in-chief, and at the conclusion of the trial, and the court erred in failing to give Defendant’s peremptory instruction at the conclusion of the trial.
II. The verdict of the jury is contrary to law and the weight of the evidence.

FACTS

¶ 2. At approximately 2:49 p.m. on February 29, 2000, the Love Volunteer Fire Department received a report of a fire at 3789 Jaybird Road, Hernando, Mississippi, the residence of Donald Wade Miller. Upon arrival, Sam Witt of the Hernando Fire Department observed smoke coming from the roof on the right front side of the trailer home.

¶ 3. DeSoto County Deputy Fire Marshall Mike Hancock was called to investigate the matter and arrived at approximately 4:00 p.m. with a canine trained to sign for accelerants or flammable liquids. Shortly thereafter, Miller returned home, and at the request of Officer Hancock consented to a search of the property. Officer Hancock allowed his trained canine to search the property for accelerants. The canine signaled the presence of an acceler-ant in the center of the couch. Photographs were entered into evidence of the couch and the canine’s search.

¶ 4. At trial, Mike Lynchard, a custodian of records at BellSouth Telecommunications, testified that a two minute call from Miller’s unlisted number at the trailer home was made at 2:38 p.m. on the day of the incident to a Memphis phone number. Lynchard stated that he did not know to whom the Memphis number was listed nor who made the call to that number.

¶ 5. John Anderson, an acquaintance of Miller, testified that when he drove by Miller’s trailer, he “noticed smoke coming from the trailer.” He slowed down and noticed fire “through the window of the trailer.” Anderson stopped, called 911 to report the fire at approximately 2:49 p.m., and moved Miller’s dog from the yard.

¶ 6. Geniene Bowdre, who lived across the street from Miller, testified that on the day of the incident, she saw a vehicle coming out of one of the driveways, either Miller’s or the one next to him, but she was not sure. Then, she saw smoke coming from the trailer.

¶ 7. Sam Lauderdale, a State Farm Insurance agent, testified that Miller’s mother is an employee of his and that he “got a telephone call that Donnie’s home was on fire. Ánd a few minutes later, he (Miller) pulled into the parking lot and came into the office or came up the office steps, and I walked out and said, ‘[w]e’ve gotten a call that your home is on fire.’ And he turned around and left.”

¶8. Bradley Schinker, the State’s fire investigator expert, testified that when he came to the east side of the living room, he noticed that the couch was almost burned out in the center and that “the fire started in this area.” Schinker also indicated that he found no faulty wiring after inspecting the trailer. He testified that smoking was ruled out and that he determined this was some type of intentional act.

¶ 9. Lee James, a claims representative for State Farm Insurance, testified that she interviewed Miller, who admitted that he was a smoker but denied being on his couch smoking the day of the fire.

¶ 10. At the conclusion of the State’s case, Miller moved for a directed verdict claiming that the State had failed to prove beyond a reasonable doubt that he had committed arson. This motion was denied.

¶ 11. Miller testified that he did not intentionally start the fire. He stated that he might have accidentally started the fire, but did not state how it may have accidentally occurred.

¶ 12. Miller’s sister, Darlene Ellis, testified that she owned the couch prior to giving it to her brother. She stated that her boys spilled gun cleaning solvent on the couch approximately three months pri- or to it being given to Miller.

¶ 13. Miller requested a peremptory instruction which was denied by the trial court. Miller was found guilty and sentenced to one year in the custody of the Mississippi Department of Corrections followed by ten years of post-release supervision for the purpose of insuring payment of restitution in the amount of $51,255.91 to State Farm.

¶ 14. Miller filed a motion for JNOV, or in the alternative, a motion for a new trial, which was denied.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in denying Miller’s motion for directed verdict and in denying Miller’s request for a peremptory instruction.

¶ 15. Miller argues that the trial court erred in denying his motion for a directed verdict and erred in denying his peremptory instruction. He suggests that there was insufficient evidence to establish that he intentionally set fire to his trailer. Miller relies on Isaac v. State, 645 So.2d 903 (Miss.1994) to support his argument. In Isaac, the court reversed and rendered holding the evidence insufficient to conclude that Isaac intentionally started a fire at Shannon Jackson’s apartment in McComb, Mississippi. Isaac had lived with Jackson previously, but they were not living together on the day of the fire. Isaac testified that he went to Jackson’s apartment between 1:00 and 1:30 a.m., knocked on the front door, but did not get an answer. He indicated that he had a cigarette in his right hand and lifted the mailbox up with his left hand and started calling Jackson. Afterwards, Isaac lifted the towel hanging on the front door to look through the window. Because the towel on the other side of the door prevented him from seeing inside, Isaac then proceeded to the back door where Jackson told him that the front door was on fire. He went into the apartment and put the fire out with the fire extinguisher, told Jackson not to call the police, and left. Isaac stated that he did not intentionally start the fire at Jackson’s apartment. The supreme court noted that “the State failed to prove beyond a reasonable doubt that Isaac ‘willfully and maliciously’ started the fire in question.” Isaac v. State, 645 So.2d 903, 910 (Miss.1994).

¶ 16. When faced with a challenge to the sufficiency of the evidence, this Court views the denial of a directed verdict and the denial of a peremptory instruction in the following manner:

In judging the sufficiency of the evidence on a motion for a directed verdict or request for peremptory instruction, the trial judge is required to accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant. Clemons v. State, 460 So.2d 835 (Miss.1984); Forbes v. State, 437 So.2d 59 (Miss.1983); Bullock v. State, 391 So.2d 601 (Miss.1980). If, under this standard, sufficient evidence to support the jury’s verdict of guilty exists, the motion for a directed verdict and request for peremptory instruction should be overruled.

Isaac v. State, 645 So.2d 903, 907 (Miss.1994).

¶ 17. The evidence consistent with the verdict is as follows: (1) Miller was the sole occupant of the trailer, (2) a telephone call was made from the trailer approximately ten minutes before the fire was reported, (3) Miller was the last person known to be at the trailer, (4) a car was seen leaving the vicinity of Miller’s trailer shortly before the fire, (5) the fire was started deliberately, (6) Miller was at home between 2:38 p.m. and 2:40 p.m., (7) the fire was reported at approximately 2:49 p.m., and (8) a call was made from Miller’s trailer at approximately 2:38 p.m.

¶ 18. The evidence in this case is purely circumstantial. However, a verdict of guilty may properly be based upon circumstantial evidence. Walton v. State, 642 So.2d 930, 932 (Miss.1994). When the evidence is considered and the evidence favorable to the State, including all reasonable inferences, is accepted as true, it is apparent that Miller was not entitled to a directed verdict or peremptory instruction.

¶ 19. Miller seems to place great weight upon the Isaac case. However, in Isaac, the defense offered a plausible and unre-butted suggestion of accident. That is not true in this case.

II.

Whether the verdict was contrary to law and against the weight of the evidence.

¶ 20. Miller argues that the verdict was contrary to law and against the weight of the evidence. He claims that Gatlin v. State, 754 So.2d 1157 (Miss.1999) and Holloman v. State, 151 Miss. 202, 117 So. 532 (1928) are cases which are comparable to his, where the court reversed the convictions for arson for insufficient evidence for inferring that the defendants started the fires. In Gatlin, a witness testified that he took Gatlin to his girlfriend’s house to retrieve his wallet and other papers. The house was destroyed by fire that same morning. The witness stated that Gatlin did not take any accelerant into the house, nor did they speed away or attempt to conceal their movements upon leaving the house. The fire marshall testified that an accelerant was used to start the fire and that it was his opinion that the fire was not accidentally started. Upon review, the Mississippi Supreme Court stated:

In this case Gatlin was at the scene of the fire at a time where he could have started the fire, but there was no admission by him that he actually did start the fire, such as with Isaac. Gatlin’s motive, if any, was similar to that of Isaac’s, domestic troubles with his girlfriend. Fire Marshall Clark testified that an accelerant had been used to start the fire, in such an amount that he felt it was no accident, but there is no physical evidence connecting Gatlin with the fire. We find that there is no more evidence supporting this conviction than any of the others previously cited which this Court reversed and rendered. The judgment of the Court of Appeals is reversed and rendered in favor of Larry Gatlin.

Gatlin v. State, 754 So.2d 1157(¶ 9) (Miss.1999). Gatlin was reversed due to insufficient evidence to support a conviction; Holloman was reversed for the same reason.

¶ 21. In Holloman, the defendant was a tenant on the Shows’ farm. There was some trouble between Shows and Hollo-man or Holloman’s father. A witness testified at trial that Holloman said that he was “ ‘going to burn the house or barn of Mr. Shows in order to get even,’ that Shows had beat him out of his crop, and that appellant attempted to get him to aid him in the burning of the house or barn.” On the night of the fire, Holloman’s father’s property, which was usually kept in the barn, had been removed. The fire originated in the rear of the bam. There were tracks found in the rear of the barn that were made by a person wearing a peculiar shoe, run over on the side, and a worn place in the center of the sole. Bloodhounds followed this track for about two miles, lost it, and picked it up again, then followed it into the village of Ovette, where it was lost. There was testimony that the track found near the rear of the barn compared favorably with the shoe track made by the shoes worn by Hollo-man when he was arrested. Nevertheless, the supreme court noted there was a lack of substantial evidence sufficient to sustain a conviction for arson.

¶ 22. In this matter, this Court must review all evidence contained in the record. Challenges to the weight of the evidence are viewed as follows:

Procedurally, such challenges contend that defendant’s motion for new trial should have been granted. Miss. Unif. Crim. R. of Cir. Ct. Prac. 5.16. The decision to grant a new trial rests in the sound discretion of the trial court, and the motion should not be granted except to prevent “an unconscionable injustice.” “[We must] consider all the evidence, not just that supporting the ease for the prosecution, in the light most consistent with the verdict,” and then reverse only on the basis of abuse of discretion. The prosecution is entitled to the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, granting the motion is required.

Jones v. State, 635 So.2d 884, 887 (Miss.1994) (citations omitted).

¶ 23. This Court noted the evidence in support of the verdict in addressing issue I, and will not repeat it here. Miller denied deliberately setting a fire, but admitted that he might have started a fire accidentally as a result of smoking. Under direct examination he testified to the following:

Q. What did you do after that?
A. I went back in the living room, grabbed my mail and started looking at it.
Q. How long did that take?
A. Not even five minutes.
Q. Were you smoking then?
A. I don’t recall.
Q. Could you have been smoking?
A. Possibly.
Q. And then what happened? What did you do?
A. After I got through looking at my mail and everything, I was sitting there on the couch to see what, you know — the day is still young so I decided to go up town. So I went up town to my friend’s garage.
Q. Did he (Mr. Schinker) ask you whether or not you smoked that day in the house?
A. No, he didn’t.
Q. Did he ask you if you smoked anywhere in the house, the living room?
A. He didn’t really specifically ask me any questions. We was [sic] just general conversation.
Q. Let me ask this question: Mr. Miller, did you intentionally start this fire?
A. No, I didn’t.
Q. Is it possible that you started it?
A. Accidentally maybe, but not intentionally.

¶ 24. The State on cross-examination noted several discrepancies in Miller’s testimony. Representative of them is the following testimony:

Q. Well, if you’re on your computer at 2:49 and he’s (John Anderson) calling 911 at 2:49, that means you’re inside while your place is on fire?
A. I wasn’t there.
Q. You just said you were there at 2:49.
A. I might have been there at 2:49, but my place wasn’t on fire while I was there.
Q. So the records are wrong?
A. I guess they are.
Q. We’ve heard or seen a written statement. We’ve heard testimony from two other witnesses, actually three. You denied that Brian Sehinker ever asked you about smoking cigarettes. This gentleman right here. So he’s lying, right?
A. I never told him that I was not smoking in my house.
Q. Well, then, therefore, that means he’s lying when he took the stand, right?
A. I guess he did.

¶ 25. Any conflicts in evidence are to be resolved by the jury. Groseclose v. State, 440 So.2d 297, 301 (Miss.1983).

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, augumented [sic] 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.

Id. at 300.

¶ 26. In this case the record contains substantial evidence from which the jury could conclude that Miller was guilty of arson. This Court affirms the ruling of the trial court.

¶ 27. However, this Court notes that in addition to serving one year in the custody of the Mississippi Department of Corrections, the trial court sentenced Miller to a term of ten years supervised probation. Pursuant to Miss.Code Ann. Section 47-7-37 (Rev.2000), a period of post-release supervision shall not exceed five years. Ellis v. State, 748 So.2d 130(¶ 12) (Miss.1999). This Court therefore notes as plain error that portion of the sentence which imposes a period of post-release supervision of ten years.

¶ 28. We therefore affirm the conviction, but reverse and remand for the limited purpose of correcting that portion of the sentence which requires post-release supervision for a period in excess of five years.

¶ 29. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF ARSON IN THE FIRST DEGREE AND SENTENCE OF ONE YEAR IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY RESTITUTION OF $51,255.91 IS AFFIRMED. THAT PORTION OF THE SENTENCE IMPOSING TEN YEARS OF POST RELEASE SUPERVISION IS REVERSED AND REMANDED FOR CORRECTION OF SENTENCE CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED AGAINST THE APPELLANT.

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


author: IRVING, J.,

text:
    Russell Brian RICHARDSON, Appellant, v. Donna Marie Bruchman RICHARDSON, Appellee.
    No. 2002-CP-00011-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.
    Rehearing Denied July 29, 2003.
    Certiorari Denied Nov. 6, 2003.

      Russell Brian Richardson, Pro se, attorney for appellant.
    Leigh A. Rutherford, Hernando, attorney for appellee.
   IRVING, J.,

for the court.

¶ 1. Russell Brian Richardson appeals from a judgment of the Chancery Court of DeSoto County Mississippi granting his wife, Donna Marie Bruchman Richardson, a divorce on the ground of habitual cruel and inhuman treatment. It is difficult to determine exactly what Russell is contending in his pro se appeal, but as best as we can decipher, he is contending (1) that the trial court violated his right to represent himself or somehow caused him prejudice, (2) that the trial court conspired and colluded with his wife’s attorney, (3) that the trial court erred by allowing a summons to be issued for him to defend against the claim that he was guilty of habitual cruel and inhuman treatment of his wife, and (4) that the trial court erred by granting a divorce on the grounds of habitual cruel and inhuman treatment without establishing the corpus delicti necessary to render a proper judgment. We take this last assignment to mean that the evidence was insufficient to sustain the judgment of divorce on the ground of habitual cruel and inhuman treatment.

¶ 2. We find no merit in any of Russell’s issues; therefore, we affirm the trial judge.

FACTS

¶3. In a complaint for divorce, Donna accused Russell of habitual cruel and inhuman treatment. At trial, she-called four witnesses, including herself and Russell as an adverse witness.

¶ 4. Donna testified that approximately three months after her marriage, Russell told her he still loved his ex-wife and that hurt her very badly. She moved to her mother’s house but returned to the marital domicile after Russell apologized. Thereafter, things were okay for a while. Then Russell started calling her names and using vulgar and abusive language. For example, he often called her a whore, a slut, and a f-g b — h. She became depressed and started taking medication for her depression. At the time of the trial, she was taking Prozac. She testified that approximately seven years prior to trial, she became addicted to Hydrocodon and was indicted for forging a prescription for it. Russell was very unhappy about what she did and did not provide her much support, telling her that she was a common criminal. Donna further testified that the summer prior to trial she had a miscarriage and that Russell was very unhappy about her getting pregnant. He told her that she got pregnant to trap him. This hurt her very much. She also testified that Russell accused her of infidelity throughout the sixteen years of the marriage and that such accusations of infidelity were even made in the presence of other persons. She stated that these accusations had caused her to become depressed and to suffer low self-esteem. She denied that she had ever committed adultery.

¶ 5. Donna testified that the final episode which led her to file for divorce occurred when she wanted to attend the funeral of one of her Black neighbors. When she spoke to Russell about her attending the funeral, he became very angry and accused her of improper motives. She decided not to attend the funeral, but he then insisted that she go, accusing her in the meantime of wanting to have a relationship with a Black man and telling her to “go get you one of those big Black d — k mother-f-rs.” This statement was made in the presence of the children, ages ten and five. She testified that the thing that really stuck out in her mind about the relationship with Russell was that he always accused her of having an affair with somebody on every job she ever had.

¶ 6. Russell denied being abusive to Donna but admitted that both of them cursed each other from time to time. He also admitted that he spent some time at the casinos as a way of dealing with the stress of the marriage.

¶ 7. Mary McArthur, Donna’s mother, testified that Russell was abusive to Donna, that he called her vulgar names in the presence of the children, as well as in the presence of other persons. She said this conduct on the part of Russell caused Donna to have low self-esteem. She did not feel comfortable visiting in Donna’s home because Russell would ignore her.

¶ 8. Donna Thomas, one of Donna’s friends, testified that Donna was intimidated by Russell. She testified that she did not feel comfortable visiting Donna because Russell would just ignore her. When she spoke to him, he said nothing. Thomas said that when Donna was around Russell, Donna would be terrified, that she could not think straight, and that she would shake and lose her concentration in the middle of a discussion. She testified that she did not think Russell ever abused Donna physically but did so mentally.

¶ 9. Russell’s case consisted of his testimony and the testimony of his ten-year-old son, Reed. Russell testified that he never physically attacked Donna, a fact that was corroborated by Donna, Thomas, and Reed. He admitted cursing Donna at times but defended his actions in this regard by asserting that Donna cursed him as well.

¶ 10. Reed testified concerning his observations of his parents’ relationship. He also testified that Donna had cursed Russell in the presence of him and his sister, that he had never seen Russell beat Donna and that he would not be happier living without Russell. Reed also testified that he knew his father loved him and that it was his desire that his father and mother would get back together.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 11. We first note that Donna did not file a brief. Her failure to file a brief leaves us with two options:

The first alternative is to take the appel-lee’s failure to file a brief as a confession of error and reverse. This should be done when the record is complicated or of large volume and the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error. The second alternative is to disregard the appellee’s error and affirm. This alternative should be used when the record can be conveniently examined and such examination reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed.

Miller v. Pannell, 815 So.2d 1117, 1119(¶7) (Miss.2002) (citations omitted). We choose the second option.

1. Abridgement of the Right of Self-representation

¶ 12. Russell refers us to that portion of the trial judge’s opinion where the trial judge characterized him as controlling and manipulative. Russell complains that the trial judge, by this description, was characterizing him as a person with standards beneath those possessed by the judge’s acquaintances. Russell also takes offense to the fact that when he made it known that he was planning to call the parties’ ten-year-old son to testify, the trial judge stated that there were some inquiries that he had to make before allowing the child to testify. Russell does not explain how any of this robbed him of the right to represent himself, or as he put it one time, to due process. He does assert, however, that “[t]he primary focus of this case must be on whether the defendant had a fair chance to present his case in his own way, without prejudice or discrimination.” He submits that a “pro se defendant is entitled to preserve actual control over the case he chooses to present to the court.”

¶ 13. Russell is not specific in explaining how he was denied due process or to what extent he was not allowed to maintain control over his case; however, we surmise that he may be referring in part to the limitations that the trial judge placed on the testimony that Reed could give. We have thoroughly examined the record in this case and do not find any instances where Russell’s right to represent himself was in any way unfairly abridged. The limitations that were placed on Reed’s testimony were proper and mandated by our rules of evidence. This issue lacks merit.

2. Conspiracy and Collusion

¶ 14. In this assignment of error, Russell asserts that “[t]he DeSoto County Chancery Court erred by conspiring and colluding with Plaintiffs attorney in a scheme or artifice to defraud defendant [in violation of] civil procedure guidelines as established in Titles 18 and 28 of the U.S.C.A. which govern Mississippi Code 9-5-137 ... and Article 4, Section I of the Constitution of the United States.”

¶ 15. Russell does not clearly explain the conspiracy or collusion. As best we can tell, Russell appears to be offended by two things: (1) his inability to make as part of the record the documents and proceedings relating to a bar complaint that he filed against Donna’s attorney for including habitual cruel and inhuman treatment as one of the grounds for divorce in Donna’s complaint, and (2) the absence of a notation on the trial court clerk’s docket of the filing of the Rule 81(d)(2) summons on July 16, 2001, the date of a hearing when, presumably, the matter of temporary relief was to be considered.

¶ 16. As to the first complaint, it is obvious that the bar proceedings were irrelevant to the issue before the trial judge. Consequently, we find no merit here. Likewise, we find no merit to Russell’s complaint about what the docket does not show, although we are not entirely certain of what he complains. Suffice it to say that our review of the docket sheet contained in the record shows that both the Rule 4 and Rule 81(d) summonses were issued on July 5, 2001, and the returns were filed on July 11, 2001. They both indicate that they were served on Russell personally on July 6, 2001. Our further review of the record reveals that no hearing was commenced against Russell without adequate and timely process. This issue lacks merit.

3. The Issuance of the Summons

¶ 17. Russell contends that the trial court erred “by summoning [him] to answer for an infamous charge without presentment of indictment of a grand jury.” Apparently, Russell believes being charged with “habitual cruel and inhuman treatment” is synonymous with being charged with an infamous crime. In his defense, he cites the Fifth Amendment’s proscription of requiring a person to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.

¶ 18. Apparently, Russell reasons that a summons should not have been issued for him because the charge laid in the divorce complaint against him can be made only via a criminal presentment or indictment. This argument is ludicrous and is utterly without merit. Russell was not, and has not, been charged with a criminal offense. The summons was properly issued on the civil complaint.

J. The Sufficiency of the Evidence

¶ 19. Russell contends that the decision of the trial judge was arbitrary, irrational and against the greater weight of the testimony and evidence provided by Russell. He takes issue particularly with the trial court’s interpretation of the phrase, “habitual cruel and inhuman treatment,” by directing us to the record where, in his opinion, the trial judge defined the phrase “habitual cruel and inhuman treatment.” Russell also correctly points out that “habitual cruel and inhuman treatment” is “conduct that endangers life, limb or health or creates a reasonable apprehension of such danger, thereby rendering the relationship unsafe for the party seeking relief, or in the alternative, is conduct so unnatural and infamous as to make the marriage revolting.”

¶ 20. At the conclusion of the evidence, the trial judge made some general observations. He talked informally for the benefit of the parties, inquiring as to whether there was any chance that they may reconcile. During this informal talk, he tried to allay Russell’s concerns about the charge of habitual cruel and inhuman treatment. This is what the trial judge said:

I need to talk about habitual cruel and inhuman treatment, because that seemed to inflame you a little bit; and you can go off on another ground. If you all could not reconcile, you could go off on another ground, joint legal custody, and you all could work out the provisions. If you could, I would be happy to approve whatever you all could approve. Habitual cruel and inhuman treatment is one of twelve grounds for divorce, as we have, historically, had in this State. Some people call it inhumane, but that’s not the way it is, at all; it’s habitual cruel and inhuman treatment. It’s the seventh ground for divorce. It’s been there since, as the old folks say, time immemorial; it’s been there, longer than anybody can remember ... It simply means, that one side has been treated to the point that it’s been adverse and detrimental to their health and well-being, and divorce should be granted on that ground ... It is not an offensive thing. It might be personal to you, but it simply means, that she was treated in a manner and a circumstance that was harmful to her and adverse to her.

¶ 21. It is clear that Russell has mis-perceived the trial judge’s extended effort to offer him some comfort for the stress that Russell felt as a result of having been charged in the divorce complaint with committing habitual cruel and inhuman treatment against Russell’s wife.

¶22. The trial judge, in deciding to grant the divorce on the ground of habitual cruel and inhuman treatment, characterized the case as the most egregious name-calling case that he had heard in many years. He found that Russell used the most demeaning language toward Donna and that Russell was a controlling and manipulative person. The trial judge found that Russell had manipulated Donna to the point where she could not tolerate it any longer and that Russell’s actions had caused havoc with Donna’s physical and mental health.

¶23. We fully understand that Russell does not want to be divorced from Donna, but his desire is not the measuring stick by which we determine whether the trial judge committed error in granting the divorce. Once the trial judge has determined that the standard of proof has been met for granting a divorce on the ground of habitual cruel and inhuman treatment, we are not at liberty to disturb that finding unless we find manifest error of law or fact. Bodne v. King, 835 So.2d 52, 58(¶ 19) (Miss.2003). We have thoroughly reviewed the record, and, based on that review in light of our standard of review, we cannot say that the trial judge manifestly erred in granting the divorce on the ground of habitual cruel and inhuman treatment. There is sufficient evidence in the record to support this finding. Accordingly, we affirm the judgment of the trial court.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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