author: LEE, J., KING, P.J.,

text:
    Billy Wayne KELLY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00210-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2002.
    Rehearing Denied Nov. 26, 2002.
    Certiorari Denied Feb. 20, 2003.

      Anthony J. Buckley, Laurel, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., LEE, and MYERS, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Billy Wayne Kelly was indicted in January 1997 on three counts of depraved heart murder involving the deaths of his wife, Tina, and their two children, two year old Erica and four month old Christopher. A Jones County Circuit Court jury convicU ed Kelly of manslaughter on all three counts, and Kelly was sentenced to serve twenty years in prison for each count, each sentence to run consecutively to all other counts. Kelly appealed to this Court, and in Kelly v. State, 735 So.2d 1071 (Miss.Ct.App.1999), we reversed and remanded for a new trial, finding that the State had violated discovery rules, that improper testimony was allowed without a mistrial, that evidence of prior bad acts was improperly allowed, and that the jury was given improper instructions concerning self-defense.

¶ 2. After remand for a new trial, Kelly was found guilty of manslaughter with regard to the death of his wife, but he was found not guilty with regard to the deaths of his two children. Kelly was sentenced to serve twenty years in prison, with credit given for time already served. He filed a motion for new trial arguing that the verdict was against the overwhelming weight of the evidence, that evidence was improperly presented over his objection, that certain instructions were erroneously given, that the indictment was void, and that his confession was improperly admitted into evidence. The motion was overruled, and he now appeals to this Court, raising the following issues: (1) did the court err in allowing the State to strike a black juror for cause over defense counsel’s Batson objection; (2) did the court err in allowing Kelly’s confession to be admitted into evidence; (3) did the court err in allowing certain expert testimony; and (4) was the verdict against the overwhelming weight of the evidence, and Kelly’s right to protection against double jeopardy violated? We find no merit to these issues and affirm.

FACTS

¶ 3. We thoroughly described the facts in this case in our previous opinion on this matter. See Kelly, 735 So.2d at (¶¶ 3-8). To briefly recap, on or about November 7, 1996, the Kelly family car flooded during a rainstorm in Laurel. After attempts to start the car, Tina and the kids started walking towards her mother’s home. Kelly ran after the others and a fight ensued, resulting in Kelly pushing his wife along with his two small children into a flooded drainage ditch. The three ultimately drowned after a current washed them away. Kelly was later questioned and confessed to pushing the three into the ditch. He recalled his confession a few days later for the district attorney, but later recanted at the trial, claiming he had no part in the deaths of his family and that his confession was the result of threats and promises.

DISCUSSION OF THE ISSUES

I. DID THE COURT ERR IN ALLOWING THE STATE TO STRIKE A BLACK JUROR FOR CAUSE OVER DEFENSE COUNSEL’S BATSON OBJECTION?

¶ 4. With this first issue, Kelly argues that the court violated the rule from Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in allowing the State to strike a black juror for cause. Our standard of review concerning Batson decisions is this:

Batson clearly places upon the trial court the duty to determine whether purposeful discrimination has been shown ... Batson states that “ordinarily,” a reviewing court should give the trial court “great deference” .... [which] has been defined in the Batson context as insulating from appellate reversal any trial findings which are not clearly erroneous.

White v. State, 761 So.2d 221 (¶ 13) (Miss.Ct.App.2000). Kelly specifically cites to the following exchange between the trial judge, the prosecutor, Mr. Hedgepeth, and defense attorneys Buckley and Parrish:

MR. HEDGEPETH: Constance McCann, she was related to one of the witnesses. Which one of the witnesses? On our notes we just put related to witness and didn’t put the name of the witness.
MR. RATCLIFF: My notes reflect that she knows Frank Woods. She’s not related to him.
MR. HEDGEPETH: I didn’t think anybody knew aso [sic] to jurors?
MR. RATCLIFF: I wrote it down as to Constance McCann.
THE COURT: Just make your statement as to what it was so I can rule on it.
MR. HEDGEPETH: We had in our notes that she had responded that she was related to one of the witnesses by marriage. And because of that, we didn’t want her in there.
MR. PARRISH: Your Honor, that’s really pushing it. I don’t know what she said and I don’t know what witness it was, or even if it is actually going to be somebody that will be testifying. Everybody is reading off of a big list here. Unless we — it may be something entirely irrelevant. I noticed that they haven’t exercised challenges on other people, for every white person that said they knew a witness.
MR. HEDGEPETH: Well, also on her questionnaire, it shows that she has only been employed for — I think that’s two weeks. It could be two or seven weeks with Howard Industries as a coil winder. It shows a less stable type of juror than we would want. She’s young with a number of children with no spouse. That doesn’t fit the type of profile of the type juror we would like to have on this panel.
MR. PARRISH: We introduced a copy of that juror questionnaire, and I think it will show other jurors, including white jurors, are in the same category; like Michelle Manning who is a young white woman—
MR. BUCKLEY: With a baby in court today.
MR. PARRISH: — that brought a child into court with her today. They accepted her. And they are wanting to excuse this black woman in addition because they say she has young children. I think we are grasping at things.
MR. HEDGEPETH: Although, Michelle Manning has been employed for three and a half years with the same employer. She’s a professional speech pathologist. Just a totally different type of juror all together.
THE COURT: All right. The Court accepts your reason as being race-neutral.

¶ 5. Kelly argues that this exchange shows that the trial judge erred in accepting the prosecutor’s reason for excluding juror McCann as race-neutral. In the transcript of voir dire proceedings, we find that Kelly requested a Batson hearing after the State’s first three strikes were all against black female jurors. The State addressed the three strikes individually, noting that the first was struck because she was young, unmarried, non-responsive, and failed to adequately fill out her juror questionnaire. The court accepted this as a race-neutral reason. The second juror was struck because she had gone to school with Dennis Bisnette, one of the district attorneys on the case, and she appeared to be “less than honest in her answers,” claiming that although she attended school with Mr. Bisnette for seven years, she did not remember him. The court accepted this as a race-neutral reason. The third juror struck was Constance McCann, whom the State first noted was related by marriage to one of the potential witnesses. Kelly’s attorney stated that his notes reflected that she knew potential witness Frank Woods, but she was not related to him. The prosecutor also noted that McCann was the single mother of several children and that her work history was not steady, distinguishing her from a single white mother that the State had declined to strike because she had been steadily employed in a professional career.

In Davis v. State, 660 So.2d 1228, 1242 (Miss.1995), this Court reiterated a list of reasons accepted as race neutral. “Included among those reasons: age, demeanor, marital status, single with children, prosecutor distrusted juror, educational background, employment history, criminal record, young and single, friend charged with crime, unemployed with no roots in community, posture and demeanor indicated juror was hostile to being in court, juror was late, short term employment.” We have also condoned a peremptory challenge against a juror who was acquainted with the defendant’s family.

Davis v. State, 767 So.2d 986 (¶ 22) (Miss.2000). In the present case, the prosecutor pointed out juror McCann’s status as the single mother of several children, that her work history was not steady, and that she was possibly related to or acquainted with one of the witnesses. According to Davis, these are acceptable race-neutral reasons for exclusion of a juror. We find no error with the judge’s decision to allow the juror to be struck due to the reasons given.

II. DID THE COURT ERR IN ALLOWING KELLY’S CONFESSION

TO BE ADMITTED INTO EVIDENCE?

¶ 6. With his second issue, Nelly argues his confession was improperly admitted as evidence. “The admissibility of evidence rests within the discretion of the trial court. Appellate courts will not reverse a trial court on an admission decision unless the trial court abused its discretion. Evidence which is not relevant is not admissible.” Walker v. State, 759 So.2d 422(¶ 22) (Miss.Ct.App.1999) (citations omitted).

¶ 7. Upon Kelly’s arrest on November 9, 1996, he was taken into custody and was questioned for ten hours by three different officers. After more than nine hours of interrogation, Kelly signed a statement in which he admitted that he argued with his wife by the side of the creek, and that after she first pushed him, he in turn pushed her, causing her to fall into the creek with the kids. Kelly explains that this signed statement was used in a question and answer session on videotape whereby the officer asked questions relative to Kelly’s statement, and Kelly affirmed the story that he had just given in his statement. However, Kelly states on the videotape that although he did not understand his Miranda rights when he signed his statement of confession, he did now, and since the statement closely tied into the subsequent videotaped statement, the latter was the fruit of the poisonous tree and should not have been admitted. In his brief, Kelly also points out that on the videotape at the point that Officer Hosey asks Kelly if he waives his rights, “you can actually see in the picture Officer Hosey’s arm and hand motioning up and down for Billy Wayne Kelly to respond yes to his question!”

¶ 8. First, concerning whether or not Kelly’s initial signed statement was “poison fruit” as would cause the subsequent videotaped confession to be “poisonous fruit” as well, we note that this written statement was not admitted into evidence. Thus, the propriety of the statement is not something which we will contend ourselves. We do look to the video to determine whether or not the judge erred in allowing this to be admitted into evidence.

¶ 9. In the transcript of the video, we find that Officer Hosey used the statement as a guideline with which to direct his questions to Kelly. However, at the beginning of the tape, Hosey clearly explains Kelly’s rights to him, and Kelly affirms that he understands at that time, thereafter making his statement of confession:

HOSEY: Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say could be used against you in Court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you can’t afford one, one will be appointed for you by the court, if you wish. If you decide to answer questions now without a lawyer, you still have the right to stop answering anytime. You also have the right to stop answering at anytime until you talk to a lawyer. You do have the right to have one with you when you’re being questioned. Do you understand what I read to you?
KELLY: I understand it now, but I didn’t earlier.
HOSEY: I know you advised me earlier that you did (Billy: I didn’t) but didn’t know, but now, now you do understand it? You do? Ok.
KELLY: I figured that I’d have to have an attorney present with one in court. I didn’t know that I could have one present here, in here.
HOSEY: Well, do you understand that now?
KELLY: (nods head affirmative) HOSEY: Ok. I’m going to read this waiver to you now, ok? This is another part of the rights form, I have read this statement or have been read this statement as I’m reading it to you, now, of my rights and I understand what my rights are. I hereby waive all these rights. I am willing to make a statement and answer questions, like you have answered questions for us previous to this meeting here. I do not want a lawyer at this time. I understand and know what I am doing. This statement is wholly voluntary. No violence, threats of violence, coercion, inducements of any kind or promises of reward have been directed toward me by anyone in an effort to secure this statement. Furthermore, it is not the result of any sympathetic feelings I have toward any person. I want to back over one part of this, that says no violence. I hadn’t threatened you with violence or has anybody threatened you with violence? Capt. Pickering, Chief Buckhalts or Capt. Dearman? ' KELLY: (shakes his head no)
HOSEY: Coercion. Do you know what coercion is?
KELLY: (shakes his-head no) No sir. HOSEY: Nobody has uh beat you or anything like that?
KELLY: No.
-HOSEY: Inducements of any kind. Nobody has offered you money to talk to us or given or promised you any type of reward for doing this, so that’s what, what we’re talking about, nobody has done that for you, is that correct?
KELLY: (shakes his head affirmative) HOSEY: Ok. Now, you can understand this waiver?
KELLY: Yeah, (shakes his head affirmative).

¶ 10. From this excerpt of the transcript from the videotape, we have clear evidence that before Kelly responded to any questions from Hosey, even if the questions were based on Kelly’s afore signed statement, at the time he was videotaped, Kelly was well aware of his rights and he decided to go ahead with his confession. This being the case, we find the trial judge did not abuse his discretion in admitting the taped confession into evidence.

III. DID THE COURT ERR IN ALLOWING CERTAIN EXPERT TESTIMONY?

¶ 11. With his third issue, Kelly argues that the court erred in allowing Dr. Hayne to testify concerning an alleged mark on Tina Kelly’s face which Dr. Hayne testified was an imprint of her husband’s watch. Kelly claims that Dr. Hayne’s opinion was “rank speculation,” since he only visually examined the evidence and did not explain how many “points of comparison” he had used in positively identifying the wound as having been inflicted by Kelly’s watch.

¶ 12. “The admission of' expert testimony is addressed to the sound discretion of the trial judge. Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand.” Puckett v. State, 737 So.2d 322(¶ 57) (Miss.1999) (citations omitted). In reviewing the testimony of Dr. Hayne, we find that he clearly described the basis for his conclusion that, to a reasonable degree of medical certainty, the watch caused the wounds to Tina Kelly’s face. When asked to explain how he arrived at the conclusion that the watch or a similar watch caused the injuries, the doctor explained:

DR. HAYNE: On the nose of Tina Kelly, there is a clear rectangular pattern forming an incomplete u-shape corresponds to the u-shape, and corresponds to the pattern. You can see squiggly lines on it. In addition, there was a small abrasion adjacent to it that is in line with the first block adjacent to the second block. The distances are the same; the width is the same and the length is the same. So we have multiple points of comparison; cross-sectional, one to the other, right angeles [sic], distances, presents of a incomplete second abrasion adjacent to the first one. So they are multiple points of comparison that showed and that has characteristics of the injury corresponding to an injury produced by this object or an object like this object.

¶ 13. Concerning injuries to Erica Kelly, one of the children, Dr. Hayne also found marks on her face were consistent with the watch:

DR. HAYNE: After looking at the forehead of Erica Kelly, I recognized in my opinion having multiple points of identity produced by two knobs on the side of watch, located towards the mid side of the forehead, and the presence of two rectangular blocks, semi circular curvatures that are identifiable, and also the notch on the opposite side of the watch. So there were multiple points of comparison, the relationships of the two rectangular blocks, and to the relationship to the individual points, curvatures, the distance across, and the like. So they are many, many points of comparison that I thought matched this watch or an object just like this watch that would produce those types of injuries.

¶ 14. Contrary to Kelly’s assertion, as described in the transcript excerpts, Dr. Hayne did have numerous points of comparison which he described with specificity. Thus, we cannot find that the judge abused his discretion in allowing Dr. Hayne’s testimony.

IV. WAS THE EVIDENCE SUFFICIENT TO SUPPORT THE VERDICT AND WAS KELLY’S RIGHT TO PROTECTION AGAINST DOUBLE JEOPARDY VIOLATED?

¶ 15. Finally, Kelly states that the verdict was against the overwhelming weight of the evidence; however, in actuality he makes a sufficiency argument. We cite our familiar standard of review.

[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 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.

Neal v. State, 805 So.2d 520 (¶ 19) (Miss.2002).

a. Sufficiency of evidence

¶ 16. Kelly states that since the jury did not find him guilty for the deaths of his two children, they could only have found him guilty of the death of his wife if they believed the videotaped confession, yet did not believe Kelly’s other initial statements of denial, which he claims is unlikely. We recognize that judgment on the credibility of the evidence is reserved to the jury.

We have repeatedly held that in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court.

Mangum v. State, 762 So.2d 337 (¶ 35) (Miss.2000). The jury viewed the videotape themselves, heard very thorough testimony from the officers and experts and other witnesses, and viewed numerous exhibits, all of which combined to enable them to reach their informed decision. We find that in viewing the evidence in a light favorable to the verdict and accepting the evidence in support of the verdict as true, reasonable and fair-minded jurors could have found Kelly guilty. Thus, we find no merit to Kelly’s argument in this regard.

b. Double jeopardy

¶ 17. Under this issue, Kelly also offers what he calls a “double jeopardy” type argument that, according to jury instruction S-1A, he could only be found guilty of one death if he were found guilty of all three deaths, since the deaths were related. Thus, since the jury failed to convict on the deaths of the two children, their finding of guilty for Kelly’s wife was improper. Whether or not this actually is the case, we cannot find any place in the record where Kelly previously made this argument. Consequently, we find him to be barred now on appeal from raising this argument.

¶ 18. Without waiving the bar, we also find the substantive argument has no merit. Kelly fails to recognize the rule that all jury instructions are to be read and considered as a whole. Walker v. State, 671 So.2d 581, 596 (Miss.1995). We look to the remaining instructions and find that the court’s own instruction properly directed the jury that they were to determine for each of the three victims whether or not Kelly was guilty for each’s death. Reading this instruction in conjunction with instruction S-1A to which Kelly now objects, we find it clear that the jury was properly instructed as to its obligation. Thus, Kelly’s argument is without merit on this issue.

¶ 19. As described herein, Kelly has not raised grounds with this appeal as would give rise to our reversal. Accordingly, we affirm on all issues.

¶ 20. THE JUDGMENT OF THE SECOND JUDICIAL DISTRICT OF JONES COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE TO SERVE TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, MYERS, CHANDLER AND BRANTLEY, JJ„ CONCUR. KING, P.J, CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION. IRVING, J., NOT PARTICIPATING.

KING, P.J.,

concurring.

¶ 21. I concur only in the result of this case, and write separately to express my concerns about the Batson issue.

¶ 22. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), prohibits the use of race as a basis for the exercise of peremptory jury challenges. This prohibition extends to the use of seemingly race-neutral reasons to mask an intent to discriminate. Bogan v. State, 811 So.2d 286(¶ 6) (Miss.Ct.App.2001). The burden is placed upon the trial judge to ensure that so-called facially neutral challenges do not mask discrimination. Id. at (¶ 7); Hatten v. State, 628 So.2d 294, 309 (Miss.1993); Pearson v. State, 746 So.2d 867 (¶ 9) (Miss.Ct.App.1998).

¶ 23. The reasons given by the State for the exercise of its peremptory challenges are extremely shallow even when considered in the best possible light. They represent the type of over generalizations, which serve as a rationalization for discrimination. At worst these reasons are a pretext to mask a discriminatory purpose by the State.

¶ 24. The first challenge was exercised against Retonya Jackson. The trial court had earlier denied the State’s effort to strike her for cause. The discussion regarding this attempted strike for cause was as follows:

The Court: All right. Does the State have anybody for cause?

Mr. Hedgepeth: For cause, we would ask that Retonya Jackson, panel 1 number 3, she was sleeping during voir dire, or appeared to be.
The Court: You should have told me to wake her up then.
Mr. Hedgepeth: She was non-responsive. She didn’t fill out her juror information form. Didn’t fill out most of the slots. She just put “not applicable” on everything as to whether married or anything like that?
The Court: Did she snore?
Mr. Hedgepeth: Didn’t hear her snoring.
Mr. Ratcliff: She did respond to our questions.
The Court: For that reason, I would deny it. You said there was something wrong with her form. What’s wrong with her form?
Mr. Hedgepeth: The only thing she really answered was her name, address, telephone number, and whether or not she had ever been on a jury. She left all of the other information—
The Court: That’s not — you can correct those things. You are an officer of the Court, and the bailiffs are suppose to be paying attention. If they see somebody sleeping, apprise the Court of it and I’ll wake them up.

¶ 25. When the trial court declined to strike Retonya Jackson for cause, the State then exercised a peremptory challenge against her. As to its exercise of this challenge, the record reflects the following:

Mr. Hedgepeth: Okay. On Retonya Jackson, as I stated earlier, she’s young, unmarried, non-responsive. She didn’t fill out her questionnaire as we felt like she should. It doesn’t rise to the level of cause but it is certainly a race-neutral basis.
The Court: All right. The Court will accept that as a race-neutral reason.

¶ 26. While accepting these reasons as race-neutral, the trial court did not examine them to determine whether they appeared to be pretextual. There is no question in the record which the State identified that Jackson should have responded to and failed to do so. Nor is there a suggestion of a correlation between age and marital status and the ability to listen to the evidence and render a fair and impartial verdict.

¶ 27. Ms. Jackson’s juror information card is not a part of the record before this Court; therefore, we are unable to see which information is or is not contained on it. If there was additional information which the State required, it was free to pose those questions to Ms. Jackson. Abundantly clear in the record before this Court is the fact that it did not do so.

¶ 28. Equally troubling are the reasons given for striking Constance McCann.

¶29. The first excuse offered by the State is that McCann was related to a witness. When the defense pointed out this was not correct, the State abandoned that reason. Indeed a review of the trial transcript, shows that McCann indicated merely that she knew a witness, not that she was related to him.

¶ 30. When the relationship excuse failed, the State gave as a general reason McCann was unstable. As evidence of that, the State said (1) she had been working at her present job no more than seven weeks, and (2) that she was young, unmarried and had several children.

¶ 31. The State made no effort to inquire as to whether McCann was in fact unstable. It did not inquire whether this was her first job or just a new job. If it were a new job, then certainly the reason for the change was relevant to the issue of stability. Was it a matter of advancement? Was it necessitated by childcare considerations, or some other family responsibility? Again, the record is abundantly clear that the State made no effort to determine whether McCann was a stable or unstable person.

¶ 32. The reasons offered by the State for the exercise of these challenges are the type of generalizations which readily lend themselves to abuse, and under these circumstances appear to be highly suspect.

¶ 33. The appellant did not make a part of this record the jury roster or jurors’ information cards, or any other evidence which, this Court upon review, could clearly see that like conditions, were accorded different treatment. Had the appellant done so, such information would have been very helpful to this Court in resolving the Batson issues, and might have mandated a different result.

¶ 34. Lacking that information, I can only say that the majority opinion is very troubling to me, and I therefore join in only the result.


source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    David MOODY a/k/a William David Moody, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01020-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2002.
    Rehearing Denied Nov. 5, 2002.
    Certiorari Denied Feb. 13, 2003.

      Scott Joseph Schwartz, Thomas E. Schwartz, Hattiesburg, attorneys for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before MCMILLIN, C.J., LEE and BRANTLEY, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. This is an appeal by David Moody from his conviction in the Circuit Court of Perry County on change of venue to Oktib-beha County of one count of murder in the commission of a felony and one count of accessory after the fact of murder in the commission of a felony. The appeal raises thirteen separate issues which Moody contends warrant a reversal of his convictions. Upon due consideration, this Court finds the issues presented to be without merit and we, therefore, affirm the convictions.

I.

Facts

¶ 2. Though there may be some dispute in the evidence as to the details of these crimes, the larger picture of what transpired on the evening of May 14, 1995, is essentially undisputed. David Moody, then fourteen years old, and his cousin, Kenneth Moody, discovered a young couple alone in a relatively deserted area of Perry County. The two Moodys, acting to carry out a plan to engage in sexual relations with the female half of the couple, Robbie Bond, approached the couple and Kenneth proceeded to beat and stab her male companion, William Hatcher, until he was unable to resist. Bond was also beaten and thrown into the floorboard of the truck driven by the Moodys. After throwing Hatcher’s body into the back of the truck, the Moodys transported the couple to Kenneth Moody’s trailer where they dug a deep pit to dispose of Hatcher’s apparently lifeless body. Kenneth then proceeded to accomplish his original purpose by raping Bond. According to the State, David Moody also raped Bond at that time; however, David Moody testified that he was being coerced by his cousin at that point and that he merely simulated the act of sexual intercourse in order to satisfy his cousin’s demands. To some extent, this claim is corroborated by the fact that DNA testing on bodily fluids recovered from the body of Bond excluded David Moody as the donor of any fluid samples recovered.

¶3. In all events, the cousins subsequently bound Bond and, leaving her at the trailer, returned to the scene of the original abduction and attempted to destroy any evidence of what had transpired. After returning to Kenneth Moody’s trailer, the Moodys forced a running water hose down the young woman’s throat in a ghastly attempt to kill her by drowning. This attempt was apparently unsuccessful, since there was testimony that Kenneth Moody proceeded to violently strike Bond in the head with some object before throwing her into the same pit holding the body of her companion, William Hatcher.

¶4. David Moody, in his defense, does not dispute the essential facts of what transpired during the commission of the crimes. Rather, his defense consisted chiefly of the assertion that his participation was coerced by threats from his cousin that, if he refused to go along, he would meet the same dismal fate as the young couple.

¶ 5. The jury, apparently unpersuaded by David Moody’s claim of duress, convicted him of murder in the commission of the felony of rape in the homicide death of Robbie Bond, and of accessory after the fact of capital murder in the death of William Hatcher. It is from those two convictions that David Moody has perfected this appeal.

¶ 6. Because of the number of issues presented in the appeal, we will avoid a cumbersome recitation of each individual issue at this point by way of preliminary summary, only to repeat the issue when we turn to the discussion necessary to resolve it. Rather, we will proceed to list each issue to be immediately followed by our analysis of its merits in the same order raised by the appellant.

II.

Denial of a Speedy Trial

¶7. By motion filed August 3, 1999, Moody sought to have the indictment against him dismissed on the ground that he had been denied his constitutional right to a speedy trial under the Sixth Amendment. The trial court denied that motion and Moody now asserts that ruling as error before this Court.

¶ 8. No claim was made at the trial court or before this Court of a violation of Mississippi’s statute relating to speedy trial requiring that the trial be accomplished within 270 days of arraignment. Miss. Code Ann. § 99-17-l(Rev.2000). Therefore, considerations arising under the statute are not now before us and we must confine our consideration to the issue of a constitutional violation. Natural Father v. United Methodist Children’s Home, 418 So.2d 807, 809 (Miss.1982).

¶ 9. The length of delay based on broad constitutional concerns is measured, not from arraignment as in the State statute, but rather from the time of arrest until the time of trial. Perry v. State, 419 So.2d 194, 198 (Miss.1982). David Moody was first arrested for the crimes involved in this case on May 18, 1995, and he was subsequently tried and convicted in a jury trial that commenced on February 14, 2000. This delay of some four years and nine months substantially exceeds the presumptively prejudicial period of eight months established by the Mississippi Supreme Court in the case of Smith v. State, 550 So.2d 406, 408 (Miss.1989). The effect of this determination of presumed prejudice is that close scrutiny must be given to the various considerations regarding the impact of the delay to determine if, on balance, the difficulties raised by these considerations give rise to a reasonable determination of actual, as opposed to presumptive, prejudice. Handley v. State, 574 So.2d 671, 676 (Miss.1990). The supreme court has made it clear that the presumption of prejudice arising by substantial delays in bringing a defendant to trial is not, standing alone, enough to support a determination of an infraction of Sixth Amendment speedy trial rights of sufficient gravity to require dismissal of the charges. Adams v. State, 583 So.2d 165,170 (Miss.1991).

¶ 10. The United States Supreme Court, in the case of Barker v. Wingo, set out four separate factors that must be considered in determining whether a defendant’s right to a speedy trial under the Sixth Amendment has been violated. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Supreme Court stated that no single factor can conclusively determine the outcome of such a claim, but that the factors must be considered in conjunction for the purpose of deciding whether, on balance, it can be said that the fundamental guarantee of a prompt trial embodied in the constitution has been irretrievably denied. Id. at 533, 92 S.Ct. 2182. The Mississippi Supreme Court has repeatedly invoked the Barker analysis in considering a speedy trial claim on constitutional grounds. Flores v. State, 574 So.2d 1314 (Miss.1990); Bailey v. State, 463 So.2d 1059 (Miss.1985); Burgess v. State, 473 So.2d 432 (Miss.1985).

¶ 11. Though Moody separately raises the speedy trial provisions of the Mississippi Constitution, the case law of this State seems reasonably clear that no rights beyond those discussed in Barker arise under the Mississippi Constitution. We will make our determination of the merits of Moody’s claim on the basis of the four Barker factors, which, in summary, are (a) the length of delay; (b) the reason (or reasons) for the delay; (c) whether the defendant asserted his right to a speedy trial; and (d) the existence of actual prejudice to the defendant occasioned by the length of the delay. Barker, 407 U.S. at 530, 92 S.Ct. 2182; Herring v. State, 691 So.2d 948, 955 (Miss.1997).

A.

Length of Delay

¶ 12. The delay in this case was plainly of sufficient duration to raise serious concerns regarding Moody’s constitutional guarantee of a speedy trial since it substantially exceeded the benchmark of eight months established by the Mississippi Supreme Court in Smith. As we have already indicated, however, the sole effect of this determination is that the reviewing court must give close scrutiny to the remaining Barker issues to attempt to discover whether the presumptively prejudicial delay did, in fact, do harm of constitutional proportion to the defendant. Herring, 691 So.2d at 955. There are examples in case law of delays that substantially exceed the period involved in this case for which no prejudice fatal to the State’s right to prosecute was found. See, e.g., De La Beck-with v. State, 707 So.2d 547 (Miss.1997).

B.

Reason for the Delay

¶ 13. The record shows that David Moody and his cousin, Kenneth Moody, were originally indicted as co-indictees for these crimes and that the prosecution had, at some fairly early point, reached a tentative plea agreement with Kenneth Moody. The plea agreement included a commitment by Kenneth Moody to appear as a witness on behalf of the State in any subsequent prosecution of David Moody. After this agreement was entered into, however, the trial court refused to accept Kenneth Moody’s guilty plea offered in re-banee on the terms of the plea agreement. This had the effect of calling into question the availability of Kenneth Moody to testify at the trial of David Moody and prompted an appeal to the Mississippi Supreme Court by the State seeking an adjudication that the agreement was enforceable. The case was ultimately decided in favor of the State’s position in a case handed down on June 11, 1998. Moody v. State, 716 So.2d 592 (Miss.1998).

¶ 14. The bulk of the period of delay in bringing David Moody to trial was occasioned by the fact that, on March 29, 1996, the State filed a motion for continuance in David Moody’s prosecution, alleging that Kenneth Moody was potentially a material witness in the case and asking that a trial date for David Moody be delayed until the availability of Kenneth Moody could be determined-a question that could not be answered until the appeal underway regarding Kenneth Moody’s plea agreement was resolved. Though there is no transcript of a hearing on the State’s motion, the motion states on its face that the State believed that David Moody was not opposed to the motion and the order granting the continuance recites as fact that defense counsel did not oppose the motion.

¶ 15. In this appeal, defense counsel characterizes this scenario as being an effort by the State to obtain an unfair “tactical advantage” over Moody. We cannot agree with that suggestion. It is the obligation of the prosecution to vigorously pursue the full development of the relevant facts in a criminal prosecution and it was in the fulfillment of that duty that the State sought to obtain the first-hand evidence regarding David Moody’s role in the crime that could only be supplied by Kenneth Moody. That the State was temporarily thwarted in that effort by the trial judge’s reluctance to give effect to the only stratagem the prosecution was able to devise to obtain Kenneth Moody’s testimony cannot be attributed to any failure by the prosecution or to an attempt to manipulate the criminal justice system to David Moody’s detriment. Certainly, the time from the appeal in Kenneth Moody’s case until the Mississippi Supreme Court decided the matter was substantial, but, as this Court can take judicial notice, the appeal came at a time when the appellate system of the State was experiencing substantial delays brought on by an excessively crowded docket that had existed for a number of years. In that context, it simply cannot be fairly contended that the delay occasioned by the effort to obtain the eyewitness testimony of Kenneth Moody in this criminal prosecution was attributable to the State for purposes of Barker analysis.

¶ 16. Before this Court, Moody contends that the evidence in the record that he assented to the delay is unsatisfactory, intimating that he, in fact, might not have done so. An appellate court must make its determinations of what transpired in the court below based solely on the record. Martin v. McGraw, 249 Miss. 334, 346, 160 So.2d 89, 90 (1964). While a transcript of a hearing on the continuance motion might have proven enlightening and while it may have been preferable for the prosecution or the trial court to have had defense counsel affirmatively sign off on the record on the proposed delay while the appeal of Kenneth Moody’s plea agreement was being resolved, the fact remains that both the motion and the trial court’s order— both of which were contemporaneous entries in the official record of this prosecution — indicate acquiescence on the part of the defense. Had that not been the case and had David Moody preferred that he be speedily brought to trial, it would certainly be reasonable to assume that the defense attorneys, in diligent pursuit of their duty, would have promptly and aggressively pointed out the erroneous assumptions of both the prosecution and trial court. In the absence of such evidence, we think it appropriate to treat the delay during the appeal as being consented to by the defense and thus not contributing to a showing of prejudice to the defendant.

¶ 17. The other delay of some duration was occasioned by the fact that two of David Moody’s original defense attorneys had subsequently gone to work as assistant prosecutors for the district attorney, giving rise to the necessity of both (a) appointing substitute defense counsel, and (b) appointing a special prosecutor after the district attorney concluded that the presence of both former defense attorneys in his office required that his office not conduct the prosecution. While the delays caused by such difficulties in the conduct of the prosecution are regrettable, they are the sort of things that inevitably arise and there is no evidence that the necessary transitions were unduly delayed without justification. We do not conclude that these delays must be counted against the State in weighing whether the State, either purposely or through inexcusable procrastination, delayed bringing its prosecution of David Moody to trial.

C.

Assertion of Speedy Trial Claim

¶ 18. David Moody points out that, at some point, he filed a proceeding in federal district court seeking discharge from confinement and dismissal of the criminal charges pending against him. He claims this fact as being an assertion of his right to a speedy trial. We interpret the consideration of a speedy trial demand as set out in Barker as being a demand filed in the prosecution itself. No such demand was ever filed. To the contrary, as we have already discussed above, insofar as the record in this case demonstrates, Moody was agreeable to delay his trial until the matter of the availability of Kenneth Moody as a witness was resolved by the Mississippi Supreme Court.

¶ 19. Somewhat late in the proceeding, on August 8, 1999, Moody did file a motion to dismiss for failure to grant a speedy trial. The Mississippi Supreme Court has plainly held that there is a fundamental difference between a prompt demand for a speedy trial and the circumstance where the defendant sits silently until he concludes that a speedy trial violation may have occurred and seeks to be discharged without trial based on that perceived violation. Perry v. State, 637 So.2d 871, 875 (Miss.1994).

¶ 20. As has been pointed out, it is not the defendant’s duty to force the State to proceed with its prosecution. Id. Nevertheless, case law has also recognized that a defendant honestly desiring a speedy trial can reasonably be expected to do something to accomplish that aim. On this record, Moody’s claim of a Sixth Amendment violation has not been bolstered by evidence that he ever actively pursued a more timely trial than he ultimately received. This factor must be weighed against Moody in determining the speedy trial issue.

D.

Actual Prejudice Arising from the Delay

¶ 21. Moody was incarcerated throughout the time from the original bringing of charges until the date of his trial. The fact of pre-trial confinement during any periods of delay is evidence of actual prejudice to the defendant. Barker, 407 U.S. at 534, 92 S.Ct. 2182. This factor tends to weigh against the State since the period of confinement in this trial was, by any measure, substantial.

¶22. Despite this, however, the fact remains that Moody had to be aware throughout the entire lengthy period necessary to resolve the appeal of Kenneth Moody’s proposed plea agreement that the record indicated that he had consented to a delay in his trial. As to all other matters causing delay, there is every indication that the State proceeded with reasonable dispatch to work out those matters and get the case into a triable posture. We decline to sanction a situation where the defendant sits silently and without objection through a lengthy appellate proceeding, the outcome of which has the potential to directly affect that nature of the case presented against him, then belatedly seeks to avoid ever having to face the charges brought against him because of the length of time it ultimately took to resolve the appeal.

¶23. Another factor in assessing actual prejudice is the unavailability of witnesses arising out of the length of the delay in bringing a matter to trial. Taylor v. State, 672 So.2d 1246, 1261 (Miss.1996). Moody attempts to show prejudice in this regard by pointing out that his father died after his arrest but before he was brought to trial. However, Moody cites to nothing that his father could have testified about regarding his innocence of the criminal charges. Apparently, Moody’s father was a prospective witness in the nature of a character witness in the penalty phase of this capital murder prosecution.

¶24. However, since Moody did not receive the death penalty, the unavailability of his father to testify in an attempt to avoid the death penalty is moot. Without a proffer of what probative information Moody’s father may have possessed regarding Moody’s guilt or innocence of the charges themselves, we cannot speculate as to what this potential witness might have been able to say of benefit to the defense.

E.

Balancing the Factors

¶ 25. Performing the required balancing of all of the factors regarding a Sixth Amendment speedy trial claim, we do not conclude that Moody has made the necessary showing that the State deprived him of a speedy trial under circumstances that would require this Court to set aside his convictions and discharge him from confinement.

III.

Suppression of Statement

¶26. The record shows that, on May 18, 1995, Moody, in the company of his aunt and half-brother, approached Sheriff Billy McGee in an agitated state and indicated that he wished to talk. The sheriff testified that, because of Moody’s emotional condition, he first concluded that he might have been the victim of some crime and was attempting to report that fact. It was only after the conversation began that the sheriff began to understand that Moody was relating to him facts regarding the recent double homicide in terms that indicated he was present when the crimes were committed. There is nothing in the record to indicate that Moody, at that time, directly implicated himself in the crime or that he was confined or detained against his will in any way by the sheriff.

¶ 27. After realizing that Moody seemed to have information relating to the murders, the sheriff transported him to a meeting with a detective named Danny Rigel, who was investigating the case. After it became apparent that Moody’s story could implicate him in the crime, Detective Rigel gave Moody his Miranda warnings and obtained a videotaped statement from him.

¶ 28. At a subsequent suppression hearing, the trial court concluded that the statement was, in fact, given freely and voluntarily after Moody had been fully apprized of the various constitutional rights afforded him in that situation — a required recitation that must be given to a detained suspect and which has come to be widely known as the suspect’s Miranda rights.

¶ 29. In this appeal, Moody offers two alternative arguments as to why the trial court erred in not suppressing his statement in response to his motion to suppress.

¶ 30. Firstly, he claims that because of his age and his agitated emotional condition, he was incapable on that day of making the sort of informed decision to waive his constitutional right against self-incrimination that the law requires. The voluntariness of a confession is a question of fact for determination by the trial court. McGowan v. State, 706 So.2d 231 (¶¶ 21-22) (Miss.1997). The State, as the proponent of the evidence, has the burden of showing that the statement was freely and voluntarily given by a suspect fully informed of his right not to do so. Spann v. State, 771 So.2d 883 (¶ 49) (Miss.2000).

¶ 31. Sitting as fact-finder on the matter, the trial court’s conclusions regarding the credibility of witnesses are entitled to deference on appeal, since the trial court hears the evidence directly and is best positioned to effectively gauge what weight and worth to afford potentially competing versions of the same events. Id. at (¶ 48). In this instance, the court heard the testimony of the investigating officers that they fully informed Moody of his rights, that he indicated that he understood those rights, that he appeared in fact to have understood them, and that he voluntarily elected to waive those rights and offer his statement. The court found that evidence believable and we have no basis on this record to conclude that this determination was in error.

¶ 32. Certainly, the fact that Moody was only fourteen years of age is a proper element for the court to consider in assessing the informed nature of the waiver of rights. Clemons v. State, 733 So.2d 266 (¶ 11) (Miss.1999). However, age alone is not conclusive of the question. In this case, it must be remembered that the defendant, of his own volition, came to law enforcement officers to discuss the matter of the murders. Whether prompted to do so by matters of conscience or other factors known only to Moody, it is evident that he had given advance thought to the fact of reporting his close involvement in the crimes. Though originally quite agitated, the officers reported that Moody became less emotional and appeared rational when discussing the matter of waiving his Miranda rights. The court further had the benefit of the videotape in assessing the voluntary nature of Moody’s statement. Based on the totality of the evidence, we are unable to conclude that the trial court erred in determining that the State had met its burden to defeat Moody’s claim that his statement was inadmissible based on a violation by the State of his right against self-incrimination afforded him under the constitution.

¶ 33. Secondly, Moody claims that his statement should be suppressed because it was obtained without the presence of a parent and without representation by counsel, all in violation of provisions of the Mississippi Youth Court Act. Crimes of the nature brought in this proceeding are within the exclusive jurisdiction of the circuit court from their inception, rendering the provisions of the Youth Court Act inapplicable. Miss.Code Ann. § 43-21-151(l)(a) (Rev.2000); Winters v. State, 473 So.2d 452, 459 (Miss.1985). The Winters decision made clear that the complete inapplicability of the Youth Court Act’s provisions extended to questions regarding the admissibility of pre-trial statements made by youthful offenders. Id. at 456.

¶34. Moody attempts to distinguish Winters and invoke the protection of the Youth Court Act in this case by pointing out that he had not been formally charged with these crimes at the time he offered his statement. We decline to put that fine a point on the Winters decision. Once a minor becomes a suspect in a crime carrying a potential life sentence or death to the extent that it becomes necessary to detain that person and inform him of his Miranda rights prior to an attempt to interrogate him, we conclude that Section 43-21 — 151(l)(a) is sufficiently invoked so as to remove that youthful suspect from the protections otherwise afforded him under the Youth Court Act.

IV.

Failure to Sever the Counts

¶ 35. Moody sought to sever the two murder counts for which he was indicted in a single multi-count indictment and to be tried separately on each charge. The trial court refused and Moody raises that as error on appeal.

¶ 36. Section 99-7-2 of the Mississippi Code specifically permits multiple counts in a single indictment where the offenses are based on the same transaction or consist of two or more offenses connected together or part of a common scheme or plan. Miss.Code 7km. § 99-7-2 (Rev. 2000). It is difficult to envision two crimes more hopelessly intertwined than these two tragic murders. This issue is plainly without merit.

V.

Failure to Transfer this Case to Youth Court

¶ 37. Moody sought to have his case transferred to Youth Court under Section 43-21-159(4) of the Mississippi Code. That statute permits the circuit court having original jurisdiction of a youthful offender to nevertheless transfer the matter to the appropriate Youth Court upon a finding that it is in the defendant’s best interest and the best interest of justice. Miss.Code 7km. § 43-21-159(4) (Rev.2000).

¶ 38. Moody sought such transfer by motion, but never obtained a definitive ruling from the trial court on the motion. He now asserts that we should remand for a hearing on the motion. It is the obligation of the movant to diligently pursue any motion to final ruling by the trial court. George County v. Davis, 721 So.2d 1101(¶ 14) (Miss.1998) (citing Uniform Rules of Circuit and County Court Rule 2.04). It is a fundamental principle of appellate practice that any motion made at the trial level not ruled upon prior to the conclusion of the proceeding before the trial court is deemed waived. Snider v. State, 755 So.2d 507(¶7) (Miss.Ct.App.1999) (citing Hemmingway v. State, 483 So.2d 1335, 1337 (Miss.1986)). That principle applies in this case and we decline Moody’s belated request for a remand for a hearing on his motion.

VI.

Motion to Quash the Venire

¶ 39. During jury selection, one venire member actively voiced his distrust of all lawyers to other members of the potential jury panel. Tkiother potential juror publicly expressed the view that people who commit violent crimes should suffer as much as their victims. Claiming these remarks were unduly inflammatory, defense counsel sought to have the venire dismissed and a mistrial declared. The trial court denied the motion and that is raised as error on appeal. The court conducted a thorough inquiry of all potential jurors seeking to determine whether they had been adversely affected in any way by these statements and received individual assurances from enough venire members to seat a jury that the statements had not affected their ability to fairly and impartially decide the case based on the facts and the law. Such matters are left to the sound discretion of the trial court. Hop-son v. State, 625 So.2d 395, 403 (Miss. 1993). We can see no abuse of the trial court’s discretion in the commendable manner in which these potential problems were handled, permitting the case to proceed to conclusion.

VII.

Prosecutorial Misconduct in Opening and Closing Statements

¶ 40. Moody claims that the trial court should have granted a mistrial on two separate occasions based on the prosecuting attorney’s (a) misuse of the State’s opening statement and (b) improper and inflammatory use of closing argument.

A.

Opening Statement

¶ 41. During opening statement, the prosecutor remarked that “[n]ow, you may be wondering at this point, as I am, what can he say—what can he say. He admitted it all.” The prosecutor subsequently informed the trial court that his remarks were intended to point out that Moody had given a statement that the prosecution believed substantially implicated him in the crimes. While these remarks might reasonably be interpreted as an improper challenge to the defendant to waive his Fifth Amendment right against self-incrimination and take the stand to testify, Moody does not advance that argument.

¶42. Instead, Moody argues in vague terms that a prosecutor must “refrain from doing or saying anything that would tend to cause the jury to disfavor the defendant due to matters other than evidence relating to the crime.” While a fairly detailed statement tending to directly implicate a person in two grisly murders would certainly have the potential to cause the jury to disfavor that person, we do not think that this evident reference to the victim’s statement—already ruled admissible by the trial court—was an improper attempt by the prosecution to curry disfavor for the defendant among the jurors. Therefore, as to the specific issue presented to us in the appeal, we find no error in the trial court’s refusal to grant a mistrial based on these statements by the prosecution.

B.

Closing Argument

¶ 43. During summation, the prosecutor made certain comments that Moody claims were prejudicial concerning Moody’s attempts to conceal the facts and his lack of any demonstrated remorse for his part in the crimes. No contemporaneous objections to these arguments were made. If an improper argument is being made, a contemporaneous objection permits the trial court to take such corrective action as is necessary to cure the problem and avoid the needless expense and delay of a full retrial. Johnson v. State, 477 So.2d 196, 210 (Miss.1985). It is largely for that reason that an appellate court will not consider for the first time on appeal a claim of prejudice arising during the trial that the trial court was not given the opportunity to resolve after a timely objection. Colburn v. State, 431 So.2d 1111, 1113-14 (Miss.1983). We do not find the remarks so egregious as to warrant relief on the theory of plain error affecting the fundamental fairness of the trial, electing rather to treat this issue as being procedurally barred.

VIII.

Failure of Trial Court to Quash the Indictment or Direct a Verdict of Acquittal

¶44. Moody claims that the indictment was fatally defective in charging the underlying crime of rape, since the indictment charged the underlying crime only by the use of the word “rape,” but failed to affirmatively allege that the victim was of previously chaste character, that being one of the constituent elements of rape as defined by Section 97-3-71 of the Mississippi Code. In Mackbee v. State, the defendant advanced a similar argument where the underlying crime in a capital murder prosecution was robbery. Mackbee v. State, 575 So.2d 16, 34 (1990). The indictment charged the underlying crime only as “robbery” without setting out the various elements of the crime, yet the Mississippi Supreme Court found that a capital murder indictment in this form, not challenged at the inception by a demurrer, was sufficient to inform the defendant of the nature of the charge brought against him. Id. at 35.

¶45. We can find no basis to distinguish Mackbee. The allegation that the murder occurred during the commission of the crime of rape against the female victim was sufficient.

¶46. As to the more general claim that the evidence of guilt was insufficient to sustain a guilty verdict, we resolve such claims by reviewing the evidence in the light most favorable to the prosecution. Garrett v. State, 549 So.2d 1325, 1331 (Miss.1989). In that circumstance, we are satisfied that the State presented substantial evidence that, if found credible by the jury, would easily establish the commission of each of the elements of the crimes for which David Moody stands convicted. The evidence, viewed in the light favorable to upholding the jury’s verdict, would also support a reasonable inference that David Moody participated in each of the critical acts of the crimes, either by his own actions or by acting as a willing accomplice of Kenneth Moody. Though Moody had no obligation to take the stand and attempt to directly advance his argument that he only participated in the crimes out of a real fear of imminent bodily injury at the hands of his cousin, his failure to do so certainly had the effect of substantially weakening those claims that appeared only in his pre-trial statements to investigating officers. Even in his own version of events given during the statement, David Moody would seem to have had multiple opportunities to flee with relative ease from the location of these heinous crimes, yet the fact remains that he did not do so and he has yet to articulate a credible reason for that failure. The right not to testify is absolute, but the consequence of leaving deeply incriminating circumstances unexplained to the jury is an inevitable consequence of such a decision. That the jury found Moody’s claims of coercion implausible on this record is not surprising.

¶ 47. As a corollary to Moody’s argument that the indictment’s failure to charge the previously chaste character of the rape victim rendered the indictment fatally defective, he also argues that the State’s evidence was insufficient because of its failure to offer affirmative evidence on the point. Section 97-3-69 of the Mississippi Code creates a presumption of chastity and places the burden on the defendant to prove otherwise. Miss.Code Ann. § 97-3-69 (Rev.2000). Moody offered no evidence to carry the burden placed on him by the statute so that the presumption necessarily prevails on this issue.

¶ 48. The claim that the evidence was insufficient to convict, depending as it does almost exclusively on Moody’s unsubstantiated claims of coercion, is without any merit.

IX.

Error in Granting Instruction S-3

¶ 49. Moody complains that S-3, giving the elements of the underlying crime of rape, failed to include the requirement that the jury determine the victim’s previous chaste character. In the context of this case, where there was no evidence whatsoever presented by the defense to put the victim’s character for chaste behavior into issue, thereby leaving the statutory presumption of chastity to unequivocally control the issue, we find the failure to include the matter in the instruction on what constituted rape to be harmless error.

X.

Aiding and Abetting Instruction

¶50. Moody claims that the instruction on aiding and abetting was defective because it did not require a finding that he “wilfully” assisted in the commission of the crimes; thereby depriving him of his “coercion” defense. At trial, Moody’s objection to the instruction consisted principally of a contention that it amounted to a “conspiracy” instruction, and that no criminal conspiracy had been charged in the indictment. Objections to instructions must be based on specific articulated grounds and all objections not so stated are deemed waived. Crawford v. State, 787 So.2d 1236 (¶ 35) (Miss.2001). We find this narrow objection argued on appeal to be different from that asserted before the trial court and, thus, procedurally barred.

¶ 51. In all events, we do not think the instruction, when considered in conjunction with all others, has any tendency to mislead or confuse the jury or to impermissi-bly lower the State’s burden of proof. This issue is without merit.

XI.

Instruction on Chaste Character

¶ 52. The trial court gave an instruction regarding the statutory presumption of the previous chaste character of the victim, and Moody claims that was reversible error. Since the instruction defining the underlying crime of rape did not include any reference to the victim’s character for chastity, it could be argued that this instruction could have proven confusing; however, it was not an erroneous statement of the law as Moody contends. His contention that the State had to somehow affirmatively prove the victim’s chaste character in order to convict is without merit.

XII.

Failure to Give a Duress Instruction

¶ 53. The trial court refused to give Moody an instruction setting out the legal defense that acting under duress or coercion of sufficient gravity can constitute a defense to a criminal charge on the theory that a defendant acting under such compulsion does not possess the necessary criminal intent.

¶ 54. The only evidence of coercion came in Moody’s taped statement to police. He did not take the stand to reveal to the jury the entire body of facts that he contended placed him in real fear of imminent bodily injury or death at the hands of his cousin, Kenneth Moody, with whom he had been voluntarily joy riding and drinking intoxicating beverages only moments before the commencement of these horrible crimes. Neither did he ever offer any credible explanation for his failure, over the prolonged period of the events of this episode, to avail himself of multiple opportunities to resist the coercive powers of his cousin or to simply flee from his presence and seek assistance. Certainly the defense of duress rises substantially above mere acts of intimidation of hyperbolic threats and there is nothing credible in this record that would reasonably support such a finding by the jury.

¶ 55. The evidence to support an instruction on the defendant’s theory of his defense need not be of any particular persuasive power. Ellis v. State, 778 So.2d 114 (¶ 15) (Miss.2000). Nevertheless, every instruction must find some credible support in the record in order to justify its being offered to enlighten the jury. Jones v. State, 797 So.2d 922 (¶ 16) (Miss.2001). In this case, we cannot say that the self-serving statements in Moody’s police statement, unaccompanied by any corroborating evidence or by Moody’s own testimony as to his state of mind and the source of his anxiety given directly to the jury, rose to the level of requiring a “duress” instruction and we decline to reverse this conviction on that basis. In doing so, we note that defense counsel was permitted to argue Moody’s lack of criminal intent based on fear of harm from his cousin if he did not do his bidding, thereby adequately presenting this defense to the jury for consideration.

XIII.

Alternate Sentencing under Youth Court Act

¶ 56. Moody claims that the trial court should have considered sentencing Moody under the Youth Court Law even after he was convicted as an adult. Such discretion is afforded the trial court under Section 43-21-159(3) of the Mississippi Code. However, there is no indication in the record that Moody ever asked the court to consider such alternate form of sentencing. The maximum punishment under Section 43-21-159(3) is one year in the county jail. Even assuming the trial court had some affirmative duty to consider such alternative sentencing on the record prior to sentencing Moody to the Department of Corrections as an adult, we are satisfied beyond question that the absence of a finding by the circuit court that one year in the county jail was an inappropriate punishment for crimes of this magnitude is, to the extent that it constitutes error, entirely harmless error.

XIV.

Failure to Grant a New Trial

¶ 57. Moody asserts error in the trial court’s failure to grant a new trial. His argument on this point lacks any specificity. It makes broad and largely conclu-sory allegations of “numerous errors committed at trial coupled with the fact that the prosecution withheld information prior to trial.” It is the duty of the appellant to point to specific factual issues supporting his various claims for relief, to be accompanied by citations to the record showing where the evidence relating to such issues may be found and to citations to legal authorities, where available, to support his contentions. Misso v. Oliver, 666 So.2d 1366, 1369-70 (Miss.1996). Without such support for his arguments, an appellate court cannot adequately consider an issue raised on appeal and make an informed decision as to whether it has, or does not have, merit.

¶ 58. Finding ourselves without enough information in Moody’s brief to determine whether his claim to a new trial is meritorious, we decline to consider the issue.

¶ 59. THE JUDGMENT OF THE CIRCUIT COURT OF PERRY COUNTY ON CHANGE OF VENUE TO OK-TIBBEHA COUNTY OF CONVICTION OF COUNT I CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT; COUNT II ACCESSORY AFTER THE FACT TO CAPITAL MURDER AND SENTENCE OF FIVE YEARS, SAID SENTENCE TO RUN CONSECUTIVELY TO SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PERRY COUNTY.

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


author: SOUTHWICK, P.J.,

text:
    Gregory TAYLOR, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00842-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2002.
    Rehearing Denied Nov. 26, 2002.
    Certiorari Denied Feb. 20, 2003.
    Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General, by Glenn W. Watts, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Gregory Taylor was found guilty of felony shoplifting by a circuit court jury and sentenced as an habitual offender. Taylor appeals arguing that the indictment was defective and that the jurors’ handwritten form of verdict was insufficient to find him guilty of a felony. We find Taylor’s arguments lack merit. Accordingly, we affirm.

STATEMENT OF THE FACTS

¶ 2. On October 29, 2000, Gregory Taylor entered a grocery store in Waynesboro. One of the store’s cashiers immediately notified the manager, Hal Odom, that Taylor had arrived. Odom, who had previously asked Taylor not to return unless he intended to buy something, secreted himself at a vantage point from which he could observe Taylor. The unwitting Taylor proceeded to the meat counter. Taylor took two or more packages of meat and stuffed them into his pants. He then paid for a drink and exited the premises. Odom first notified police and then confronted Taylor outside the store. Odom reached for Taylor’s baggy shirt to reveal the stolen goods. Taylor swatted Odom’s hand away, threatened to sue, and ran away when informed of the police’s imminent arrival.

¶ 3. Taylor was indicted and convicted of felony shoplifting. This is his appeal.

DISCUSSION

1. Flaws in the indictment

¶ 4. The crime of shoplifting is a misdemeanor unless the accused is a sufficient recidivist. The statute is long. We omit the portions defining the offense itself. What is relevant for this appeal are the sentencing sections on taking property of less than $250 in value.

(5) A person convicted of shoplifting merchandise for which the merchant’s stated price is less than or equal to Two Hundred Fifty Dollars ($250.00) shall be punished as follows:
(a) Upon a first shoplifting conviction the defendant shall be guilty of a misdemeanor and fined not more than Seven Hundred Fifty Dollars ($750.00), or punished by imprisonment not to exceed thirty (30) days, or by both such fine and imprisonment.
(b) Upon a second shoplifting conviction the defendant shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00) or punished by imprisonment not to exceed ninety (90) days, or by both such fine and imprisonment.
(6) Upon a third or subsequent shoplifting conviction the defendant shall be guilty of a felony and fined not more than One Thousand Dollars ($1,000.00), or imprisoned for a term not exceeding five (5) years, or by both such fine and imprisonment....
(8) In determining the number of prior shoplifting convictions for purposes of imposing punishment under this section, the court shall disregard all such convictions occurring more than seven (7) years prior to the shoplifting offense in question.

Miss.Code Ann. § 97-23-93 (Rev.2000).

¶ 5. Taylor had earlier been convicted of four separate shoplifting offenses. The first two convictions were in January and March 1994, and were charged as misdemeanors. The next two on May 5, 1998, and on March 14, 2000, resulted in felony shoplifting convictions.

¶ 6. Taylor’s present indictment referenced the prior two felony shoplifting convictions on an exhibit to the indictment. The exhibit did not just list the former convictions, but they appeared in a form for indicating prior convictions for habitual offender status under Mississippi Code section 99-19-81. That statute provides that if a person has been previously convicted of two felonies growing out of separate incidents at different times, and sentenced to separate terms of incarceration of at least one year each, then later convictions must result in the maximum term of imprisonment for the offense, to be served without reduction or parole. Miss. Code Ann. § 99-19-81 (Rev.2000). Taylor’s two prior convictions were each said to be for “felony shoplifting,” a crime that itself requires two other prior convictions for shoplifting.

¶ 7. What was stated on the first page of the indictment used phrasing for multiple shoplifting crimes and addressed the general habitual offender statute. After describing the details of the then-latest shoplifting, the indictment’s first page stated this:

This offense having followed the shoplifting 2nd and the shoplifting 2d having followed the shoplifting 1st and all prior shoplifting convictions being a violation of 97-23-93 MCA (see exhibit “A” for prior convictions)
This defendant, eighteen (18) years of age or over or having been certified as an adult, having been previously convicted of at least two (2) felony convictions arising out of separate transactions and separate occurrences, and having been sentenced to serve at least one (1) year with a state or federal penal institution, the State is seeking sentencing pursuant to M.C.A. Section 99-19-81. (See attached exhibit “A” incorporated herein) in violation of Section 97-23-93....

¶ 8. Three issues arise from this. First, since Taylor was being charged with his third felony shoplifting, could the State use the general habitual statute and seek the maximum sentence for felony shoplifting and for it to be served without reduction or parole? For felony shoplifting, the sentence is not to be more than five years’ imprisonment and a $1,000 fine. Miss. Code Ann. § 97-23-93(6) (Rev.2000). We find nothing in the language of the shoplifting statute nor in this habitual offender statute that prevents conviction of a third felony shoplifting from having the normal maximum sentencing rules apply. No error exists in Taylor’s being charged as a habitual offender.

¶ 9. The second issue is whether a description in the indictment was needed of the underlying misdemeanor convictions that predated all three felony charges. Taylor was being accused of his fifth shoplifting offense. Shoplifting cannot be a felony unless there have been at least two prior shoplifting convictions within seven years. The plain language of the statute does not require that misdemeanor shoplifting convictions have occurred within that time.

¶ 10. This is the operative statutory language:

(6) Upon a third or subsequent shoplifting conviction the defendant shall be guilty of a felony and fined not more than One Thousand Dollars ($1,000.00), or imprisoned for a term not exceeding five (5) years, or by both such fine and imprisonment....
(8) In determining the number of prior shoplifting convictions for purposes of imposing punishment under this section, the court shall disregard all such convictions occurring more than seven (7) years prior to the shoplifting offense in question.

Miss.Code Ann. § 97-23-93 (Rev.2000) (emphasis added). Subpart (6) provides that the third “or subsequent shoplifting conviction” will be a felony. Subpart (8) provides that in order to determine the number of “prior shoplifting convictions”— statutory language that does not limit the prior convictions to misdemeanors — only those within the stated time frame may be considered.

¶ 11. An indictment is to state each element of the offense charged. Pe terson v. State, 671 So.2d 647, 654 (Miss.1996). There is no necessary element of felony shoplifting that the person have been convicted of two misdemeanor shoplifting offenses within the preceding seven years. Two prior felony shopliftings will do as well. In a hearing on pre-trial motions, the State offered to amend the indictment to include the earlier misdemeanor convictions. Judge Larry Roberts denied the motion based on the objection that this would be a substantive change rather than one in form. Still, the court found that the convictions listed were adequate to support this felony shoplifting conviction. The trial judge captured the precise defect in Taylor’s reasoning when he stated that “to conclude that a defendant who has two prior felony shoplifting convictions cannot be guilty of another felony shoplifting conviction without first having two more misdemeanors in the meantime is ludicrous.”

¶ 12. There is yet another perspective on the indictment, and that forms Taylor’s third issue. He wishes us to apply the principles developed for the offense of driving under the influence, an offense which employs a similar escalating penalty statutory scheme. Until recently the Supreme Court held that “each prior [DUI] conviction is an element of the felony offense, and each must be specifically charged.” Ashcraft v. City of Richland, 620 So.2d 1210, 1212 (Miss.1993). A ritualistic recitation was necessary — the first offense had to be described and specifically labeled “DUI first offense,” and then the second offense similarly described and labeled. If any misstep in the presentation occurred, the flawed indictment could only support conviction for a misdemeanor. Id.

¶ 13. Taylor recognizes that Ashcraft has been overruled. Mcllwain v. State, 700 So.2d 586, 589 (Miss.1997). Taylor suggests that what caused this awkward pleading rule for drunk driving to be abandoned was a statutory change. See Miss. Code Ann. § 63-11-30(8) (Supp.2001). In fact, the Mcllwain opinion noted the statutory change, not yet in effect for Mcll-wain’s conviction, only after holding that the simplification of the indictment requirement was mandated by the clear language of the unamended statute. Id. at 589 & 589 n. 2.

¶ 14. This Court earlier considered this exact question. “While the shoplifting statute has not been amended, the only logical conclusion we may draw from the Mcllwain decision is that enumeration of prior convictions in statutory schemes containing graduated penalties for successive convictions is contrary to legislative intent.” Moore v. State, 781 So.2d 159, 163 (Miss.Ct.App.2000). Therefore, we find that the indictment did not have to identify one of the prior convictions as the first shoplifting offense and another as the second.

¶ 15. The indictment needed to allege that Taylor had been convicted twice previously of shoplifting in order to make the current offense a felony. It also needed to show prior felony convictions in order for the habitual sentencing statute to apply. We find no error for the same prior convictions to be shown on one exhibit in order to serve both functions.

2. Flaws in the verdict form

¶ 16. A jury instruction provided that the verdict should be indicated with one of the following:

“We, the Jury, find the Defendant guilty of Felony shoplifting.”
“We, the Jury, find the Defendant not guilty.”

¶ 17. Taylor argues that the handwritten verdict returned by the jury was ambiguous: “We, jury, fine [find] defendant guilty.” At trial, Taylor argued that jurors might have wanted to find him guilty of a misdemeanor, and that the verdict form could not be corrected.

¶ 18. This jury had only one crime to consider — felony shoplifting. There was no lesser-offense instruction. The jury’s hand-written response, while not precisely conforming to the instruction given it for deliberation, nevertheless clearly demonstrated a finding of guilt. The debate over a misdemeanor that is central to this appeal in both the indictment and verdict form issues was not an issue presented to the jury. Jurors were asked to find Taylor guilty or not guilty of only one crime. They responded to the only question that they were asked by saying “guilty.”

¶ 19. What is necessary in a verdict from the jury is clarity. The jury was polled, though the trial judge merely asked whether each juror agreed that the verdict was to find the defendant guilty, i.e., the judge did not state the offense either. All jurors agreed that this was their verdict. After they were dismissed, the prosecutor asked that the verdict be conformed with the verdict form instruction, by adding the offense. Defense counsel objected, saying that the jurors might have “meant a misdemeanor.” The trial court responded that “they were not given that option. They had one option, guilty of felony shoplifting or not guilty.”

¶20. A statute recognizes that some lack of formality may unavoidably appear in jury verdicts:

No special form of verdict is required, and where there has been a substantial compliance with the requirements of the law in rendering a verdict, a judgment shall not be arrested or reversed for mere want of form therein.

Miss.Code Ann. § 11-7-157 (1972). The jury verdict was sufficient.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE AS AN HABITUAL OFFENDER TO A TERM OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS HEREBY AFFIRMED. THE SENTENCE SHALL RUN CONSECUTIVELY TO ANY PREVIOUS SENTENCES. ALL COSTS OF APPEAL ARE ASSESSED TO WAYNE COUNTY.

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


author: LEE, J.,

text:
    Joe PATE, a/k/a Joseph Paite, a/k/a Joe Paite, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00861-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2002.
    Rehearing Denied Nov. 26, 2002.
    Certiorari Denied Feb. 20, 2003.

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

for the court.

¶ 1. Joe Pate was convicted in the Holmes County Circuit Court of sale of cocaine and sentenced as an habitual offender to serve thirty years in prison. He appeals asserting five issues: 1) the circuit court erred in curtailing his cross-examination of an agent of a narcotics task force; 2) the circuit court erred in allowing evidence of the cocaine because the State failed to maintain a chain of custody; 3) sentence is disproportionate to the offense; 4) the State failed to show he was an habitual offender; and 5) the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. Celia Murphy was an agent for the North Central Narcotics Task Force. On August 12, 1999, she instructed informant Maxine King to go to Joe Pate’s home in Lexington, Mississippi, to attempt to purchase illegal drugs. King drove to Pate’s house, Pate approached the driver’s side window of King’s car, King told Pate she wanted forty dollars worth of crack cocaine, and Pate then went into his house and returned with the drugs. At a post-buy meeting, King turned over to Murphy a small package of crack cocaine that King bought with forty dollars supplied by Murphy. King corroborated the testimony that Murphy gave. The transaction was videotaped, and the jury viewed the tape.

ANALYSIS

I. CURTAILED CROSS-EXAMINATION

¶ 3. Pate contends that the circuit court curtailed his cross-examination of Murphy and prevented him from casting doubt on Murphy’s assertion that she saw the drug buy. Trial courts have the discretionary power to limit repetitive cross-examination so as to provide for the orderly presentation of evidence and the elimination of needless waste of time. McDowell v. State, 807 So.2d 413, 422(¶23) (Miss.2001) (citing comments to M.R.E. 611). In this case, Pate contended that an eight foot high wooden fence blocked Murphy’s view of Pate’s property. Even though the jury viewed the videotape showing that Pate behaved in a way consistent with what Murphy described, Pate contends he should have been allowed to further cross-examine Murphy so the jury would find Murphy’s testimony not believable. The record shows that Pate cross-examined Murphy extensively on the issue of what she observed. Ten pages of the transcript are devoted to this single issue. Pate inquired at least four times as to whether the fence blocked Murphy’s view and how she could have kept the drug purchase in view. Murphy testified she could not account for the fence because she did not recall it. She testified that Lexington is built on a hill. She drove to Pate’s home, following King’s vehicle. As King parked, she drove past and continued on to a point behind Pate’s home and watched the transaction from a hillside. From this position, she was higher in elevation than was Pate’s house, so she had a clear line of sight over the roof of Pate’s home to observe the transaction occurring in the front yard and on the street. The matter was fully investigated on cross-examination, and the record does not disclose that the circuit court abused its discretion. There is no merit to this assignment of error.

II. ADMISSION OF THE COCAINE INTO EVIDENCE

¶ 4. Pate contends that the circuit court erred in admitting the crack cocaine into evidence. The basis for this contention is that Pate asserts that the State failed to maintain a proper chain of custody. Decisions by trial courts to admit evidence of contraband are subject to only discretionary review, and will only be reversed upon a showing of prejudice to the defendant. Gilley v. State, 748 So.2d 123, 127(¶ 10) (Miss.1999). Where a defendant objects to the introduction of evidence of contraband on the basis of an insufficient chain of custody, he must raise a “reasonable inference of probable tampering.” Doby v. State, 532 So.2d 584, 588 (Miss.1988) (quoting Gibson v. State, 503 So.2d 230, 234 (Miss.1987)).

¶ 5. In this case, Murphy testified that she sealed the cocaine inside an evidence bag and locked the bag inside an evidence locker. Mary Nolan brought the evidence to the Mississippi Crime Lab technician who tested it. However, there is no indication of who removed the evidence bag from the evidence locker or how Nolan came into possession of the bag. A very similar factual scenario was presented in Doby, where the defense objected to the chain of custody because “there was no testimony concerning any person who may have received the exhibit at the Crime Lab, when the exhibit was received, or absence of paper work or receipts of any kind showing that it was received at the Crime Lab.” Doby, 532 So.2d at 588. In that case, the supreme court failed to find any inference of tampering or any showing of prejudice to warrant reversal. Id. Pate’s only assertion of probable tampering is that the indictment charged him with sale of “0.2 grams, more or less, of Cocaine,” but when tested by the Mississippi Crime Lab, the sample weighed 10.1 grams. The tested drug sample weighed approximately fifty times more than the amount of the drug charged in the indictment. The variance in the weight of the tested drug sample and the weight of the drug charged in the indictment clearly is a matter of concern and raises several questions. Chief among those questions is whether the correct sample was tested. The trial judge was very much aware of this concern and appropriately considered with great care the testimony related to the chain of custody prior to allowing the drug into evidence.

¶ 6. This Court notes that a variance in the tested weight and indictment weight of a drug, without more, is insufficient to establish a presumption of tampering, so as to require exclusion of the evidence. Once admitted into evidence, it becomes merely another item of evidence whose worth and credibility are to be determined by the trier of fact. We find this issue is without merit.

III. SENTENCE GROSSLY DISPROPORTIONATE TO THE OFFENSE

¶ 7. Pate contends that because the circuit court sentenced him as an habitual offender to the maximum sentence of thirty years’ confinement, under Miss.Code Ann. § 99-19-81 (Rev.2000), the sentence was disproportionate to his offense for sale of forty dollars worth of cocaine, and thus the sentence violates his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Pate makes no argument based upon the Mississippi State Constitution, and at trial, Pate failed to raise this issue. The failure to raise the issue of habitual offender status resulting in a grossly disproportionate sentence acts to bar the issue on appeal. Bell v. State, 769 So.2d 247, 250(¶ 8) (Miss.Ct.App.2000). Pate failed to raise this issue at trial, and is barred from asserting it on appeal.

¶ 8. Pate urges this Court to find plain error. Plain error will allow an appellate court to address an issue not raised at trial if the record shows that error did occur and the substantive rights of the accused were violated. Grubb v. State, 584 So.2d 786, 789 (Miss.1991). However, even assuming the issue was not barred, the issue would be without merit. The United States Supreme Court has found that recidivist statutes do not violate the United States Constitution. Rummel v. Estelle, 445 U.S. 263, 284-85, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Similarly, our supreme court has consistently found that habitual offender sentencing is not contrary to constitutional protections. See, e.g. Huntley v. State, 524 So.2d 572, 575-76 (Miss.1988). Accordingly, this issue is without merit.

IV. PROOF OF HABITUAL OFFENDER STATUS

¶ 9. Pate contends that the State failed to prove he was an habitual offender, and he bases his argument on the premise that the sentencing hearing was brief. Rule 11.03 of the Uniform Rules of Circuit and County Court Practice requires that sentencing as an habitual offender occur at a separate hearing outside the presence of the jury. In this case, such a hearing was held at which time the State introduced certified copies of two prior convictions resulting in sentences of more than one year. This is all that is required of the State. See Nathan v. State, 552 So.2d 99, 106 (Miss.1989). This issue is without merit.

V. WEIGHT OF THE EVIDENCE

¶ 10. Pate finally contends that the verdict was against the weight of the evidence. A motion for a new trial is addressed to the trial court’s discretion, and an appellate court will not reverse the decision unless allowing the verdict to stand would work “an unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). In this case, two witnesses testified to the transaction, and a videotape of it was shown to the jury. This issue is without merit.

¶ 11. THE JUDGMENT OF HOLMES 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 ASSESSED TO THE APPELLANT.

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