author: COBB, Presiding Justice,

text:
    Rodney GRAY v. STATE of Mississippi.
    No. 1999-DR-00592-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2004.
    Rehearing Denied Dec. 2, 2004.

      Office of Capital PosWConviction Counsel by Robert Ryan, Louwlynn Vanzetta Williams, attorneys for appellant.
    Office of the Attorney General by Marvin L. White, Jr., attorney for appellee.
   COBB, Presiding Justice,

for the Court.

¶ 1. On January 25, 1996, a Newton County jury convicted Rodney Gray of the capital murder of Grace Blackwell. This Court thereafter affirmed Gray’s conviction and sentence on direct appeal. Gray v. State, 728 So.2d 36 (Miss.1998). Gray filed a petition for writ of certiorari with the United States Supreme Court, which that Court denied. Gray v. Miss., 526 U.S. 1055, 119 S.Ct. 1366, 143 L.Ed.2d 526 (1999). Gray now seeks leave to pursue post-conviction relief in the trial court.

¶ 2. The purpose of post-conviction proceedings is to bring forward facts to the trial court that were not known at the time of the judgment. Williams v. State, 669 So.2d 44, 52 (Miss.1996). The procedure is limited to those facts and matters which could not or should not have been brought at trial or on direct appeal. Id.; Miss.Code Ann. §§ 99-39-1 to -29 (Rev.2000 & Supp.2003). If newly discovered evidence would likely produce a different result or verdict and the proponent shows that the evidence was “discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching” then such evidence warrants a new trial. Ormond v. State, 599 So.2d 951, 962 (Miss.1992).

FACTS

¶ 3. On the morning of August 15, 1994, 79-year-old Grace Blackwell drove to the drive-through teller window of her bank in Jasper County. Blackwell presented a blank check and asked the teller to fill the check out in the amount of $1200. The teller’s view of the ear’s back seat was blocked by hanging clothes. The teller testified that after giving her the money, she heard Blackwell say, “I’m hurrying, I’m hurrying.” The teller notified the police, and they went to Blackwell’s home only to find the front door open and the phone disconnected. Witnesses testified that they saw Blackwell’s car around noontime being driven by a young black male, and one witness identified the driver as Rodney Gray.

¶ 4. Police found Blackwell’s body at the end of a bridge in Newton County at 1:40 p.m. Her car was found elsewhere in Newton County. Investigators determined that Blackwell had been killed by a shotgun blast to the mouth. Later, an autopsy revealed that Blackwell had also been raped and that her body had been run over by a car.

¶ 5. Investigators questioned Rodney Gray on August 15 about Blackwell’s disappearance and arrested him that same day. While in jail, Gray phoned his girlfriend, Mildred Curry, to tell her that he had hidden money in a bathroom vent. A search of Curry’s trailer turned up $1,123 hidden in the bathroom air duct. The clothes and boots which Gray had been wearing on the day of the murder were found in a bucket behind Curry’s trailer.

¶ 6. A Newton County grand jury indicted Gray for the capital murder of Grace Blackwell in violation of Miss.Code Ann. § 97 — 3—19(2)(e) (murder while engaged in the commission of the crime of kidnapping/and/or rape). Attorneys Thomas D. Lee and B. Jackson Thames, Jr. represented Gray in the trial court. At trial, FBI experts testified that the foot print at the Blackwell home came from Gray’s boot and that tests on DNA samples taken from Blackwell’s undergarments showed that Gray was the likely source. The probability that the semen came from someone other than Gray was 1 in 446,000,000. Further testimony came from Russell Saunders, one of Gray’s cell mates, who testified that while in jail Gray told him that he (Gray) had forced Blackwell to withdraw money from the bank, raped her and then shot her with a .410 shotgun. The jury found Gray guilty of capital murder and then heard evidence as to mitigating and aggravating circumstances pertinent to the determination of the sentence which should be imposed on Gray. After hearing testimony from several witnesses from the State and the defense, the jury reached a unanimous verdict finding that Rodney Gray should suffer death for the capital murder of Blackwell.

ANALYSIS

I. Ineffective Assistance of Counsel:

¶ 7. Gray alleges several instances of ineffective assistance of counsel in support of his motion for post-conviction relief. The benchmark for judging any claim of ineffectiveness of counsel must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To receive post-conviction relief for ineffective assistance of counsel, a claimant must demonstrate (1) that counsel’s performance was deficient and (2) that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). There is no constitutional right to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988). The defendant has a right to have competent counsel, but this right does not entitle the defendant to have an attorney who makes no mistakes at trial. Mohr v. State, 584 So.2d 426, 430 (Miss.1991). Thus, the focus of the inquiry is whether counsel’s assistance was reasonable considering all the circumstances. Stringer, 454 So.2d at 477.

¶ 8. Under the first prong of the Strickland test, defense counsel is presumed competent. Cabello, 524 So.2d at 315. A reviewing court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance. Furthermore, the reviewing court must consider whether the challenged act or omission might be sound trial strategy. Stringer, 454 So.2d at 477.

¶ 9. In evaluating the second prong of the Strickland test, a reviewing court must determine whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. This means a probability sufficient to undermine the confidence in the outcome. Mohr, 584 So.2d at 430. Additionally, in a death penalty case, the ultimate inquiry is “whether there is a reasonable probability that, absent the errors, the sentencer— including an appellate court, to the extent it independently re-weighs the evidence— would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. If the post-conviction application fails on either of the Strickland prongs, the analysis of that issue ends. Davis v. State, 743 So.2d 326, 334 (Miss.1999) (citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996)).

A. Change of Venue

¶ 10. Gray’s first allegation of ineffective assistance of counsel is that his trial counsel failed to properly argue a motion for change of venue. Gray raised this issue on direct appeal to this Court after his conviction. Gray v. State, 728 So.2d at 63. At trial, the motion was accompanied by two affidavits alleging that Gray could not receive a fair trial in Newton County because the crime involved a black defendant and a white victim. During the hearing on the motion, the State presented six witnesses who testified to the contrary. Id. The trial court denied the motion, and this Court held that the State had successfully rebutted the presumption that Gray could not receive a fair trial in Newton County. Id. at 66.

¶ 11. This Court addressed the issue of whether the trial court properly denied the motion to transfer venue on Gray’s direct appeal. Thus, Gray is now proeedurally barred by res judicata from relitigating this issue through post-conviction relief. Miss.Code Ann. § 99-39-21(3) (1972 & Supp.2003). Furthermore, Gray cannot relitigate this issue in the guise of an ineffective assistance of counsel claim. Williams v. State, 722 So.2d 447, 449 (Miss.1998). On the merits, Gray offers as evidence to support his request for post-conviction relief only the motion to transfer venue and attached newspaper articles presented to the trial court. However, Gray does not present new or additional evidence not offered or unavailable to the trial court regarding the issue of community prejudice and whether he could receive a fair trial in Newton County. Accordingly, this issue is without merit.

B. Continuance

¶ 12. Gray next argues that his trial counsel were ineffective in failing to seek a continuance of the trial after the motion for change of venue was denied. Inasmuch as the motion for change of venue was properly denied, counsel cannot be faulted for deciding not to seek a continuance. The failure to raise objections or make motions which have no merit cannot be viewed as poor representation. Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994). The motion to change venue was denied on October 30, 1995, and trial was not scheduled to begin until November 27, 1995. Trial counsel did in fact file a motion for continuance based upon other matters on November 17, 1995, and the trial was postponed until January 22, 1996. Thus, Gray’s trial counsel requested and obtained a continuance lasting 56 days from the date of the trial setting and 84 days from the date of the denial of the motion to transfer venue. Accordingly, this issue is without merit.

C. Motion to quash the jury venire

¶ 13. Gray next asserts that his trial counsel were ineffective by failing to develop an “adequate and sufficient record” as to potential black jurors struck by the State for cause. After the removal of jurors for cause, Gray’s trial counsel moved to quash the venire for two reasons: (1) there was an insufficient number of African-Americans on the panel in relation to the percentage of blacks in Newton County, and (2) the printed juror summonses mailed to potential jurors had “capital murder” printed on them in bold print, thus prejudicing the prospective jury pool. The trial court denied this motion. Gray asserts that the motion to quash the jury venire should have been granted and that but for trial counsel’s ineffective representation, the outcome would likely have been different.

¶ 14. Gray fails to explain with any specificity in what manner the record was purportedly deficient. To establish a pri-ma facie case alleging that a jury represents an unfair cross-section of the community, Gray must demonstrate: “(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Lanier v. State, 533 So.2d 473, 477 (Miss.1988). Gray offered no evidence at trial or in the present case demonstrating “systematic exclusion.” The record before this Court shows that the trial judge overruled many of the State’s challenges for cause and that the trial judge excluded both black and white jurors for valid reasons of cause, including hardship. Thus, Gray has failed to establish a prima facie case of systematic exclusion under the standard set out in Lanier. Gray’s inability to meet the standard set out in Lanier also prevents him from demonstrating that his trial counsel’s performance was deficient under the first prong of the Strickland standard.

¶ 15. In regard to Gray’s claim that trial counsel was ineffective by failing to offer proof of jury prejudice resulting from the words “capital murder” being printed on the jury summons form, the record shows that trial counsel conducted a voir dire of the panel regarding potential prejudice resulting from the jury summons. Gray v. State, 728 So.2d at 66. Gray’s trial counsel at both the trial and direct appellate level could offer no proof besides speculation that the venire was prejudiced as a result of the summons. Id. at 66-67. Furthermore, Gray has presented no additional evidence of prejudice of the jury venire with his petition for post-conviction relief. Accordingly, the issue of ineffective assistance of counsel regarding the motion to quash the jury venire is without merit.

D. Motion to dismiss

¶ 16. Next, Gray alleges that trial counsel failed to properly challenge the indictment, arguing that the underlying felonies listed in the indictment caused it to be substantially defective and counsel’s motion to dismiss the indictment should have been granted. The Court analyzed this issue on direct appeal and found it to be proeedurally barred. Despite the bar, the Court further analyzed the issue of the sufficiency of the indictment and found it to be without merit. Id.

¶ 17. The indictment charged that Rodney Gray “did willfully, unlawfully, felo-niously and of his malice aforethought kill and murder Grace Blackwell, a human being, while engaged in the commission of the crime of kidnaping [sic] and/or rape.” Gray asserts that the indictment fails to state the essential elements of the offense charged and that the motion to dismiss was denied because trial counsel was ineffective in “properly addressing the issue.” On direct appeal, this Court noted that pursuant to Rule 7.06 of the Uniform Rules of County and Circuit Court, an indictment is sufficient where it discloses: 1) the name of the accused; 2) the date on which the indictment was returned; 3) a statement that the prosecution is brought in the name of the State; 4) the county and judicial district in which the indictment is brought; 5) the date on which the offense was committed; 6) the signature of the grand jury foreman; and, 7) the words, “against the peace and dignity of the state.” Gray, 728 So.2d at 70. The Court specifically held that the indictment adequately put Gray on notice of the charge of capital murder and that it was not necessary to specifically set forth all the elements of the underlying felonies contained in the indictment. Id. at 70-71. Thus, the second prong of the Strickland test requiring that, but for counsel’s errors the result would have been different, is not met. Furthermore, the evidence presented at trial was sufficient to prove both kidnaping and rape beyond a reasonable doubt. The motion to dismiss the indictment was properly denied simply because it lacked merit and not because it was ineffectively argued. The claim of ineffective assistance of counsel regarding the motion to dismiss the indictment is without merit.

E. Jail house confessions

¶ 18. Gray alleges that trial counsel were ineffective for failure to exclude from evidence the statements which Gray made to his cell mates as well as the failure to secure an adequate cautionary instruction after the statements were admitted. Russell Saunders and Cleveland McCall both shared a cell with Gray after his arrest, and both testified at trial that Gray had admitted his guilt to them. However, Gray’s trial counsel cross-examined both of them on their testimony. Id. at 71-72. On direct appeal, this Court initially held the issue to be proeedurally barred but went on to alternatively find that the issue had no merit.

Gray claims the two inmates stood to gain something in exchange for their testimony. This court has not viewed such testimony favorably. See McNeal v. State, 551 So.2d 151, 158 (Miss.1989). The evidence in the record before the court does not establish the inmates received anything in exchange for their statements. True, Saunders was made a trusty sometime after he told the sheriff what Gray had said, but his testimony indicated that he had served sufficient time to become a trusty. The charges against McCall were dropped after the man who claimed McCall had stolen his car failed to show up in court.

Gray, 728 So.2d at 72. Since the Court has previously considered this issue both procedurally and on the merits and no new evidence has been provided in the petition for post-conviction relief, the doctrine of res judicata applies and bars reconsideration. Miss.Code Ann. § 99-39-21(3) (1972 & Supp.2003).

F. Failure to develop/present mitigating evidence

¶ 19. Gray alleges that trial counsel were ineffective by failing to investigate and present mitigating evidence during the sentencing phase of the trial. Gray argues that if trial counsel had conducted a thorough investigation of his background, ample evidence of mental illness and mental retardation would have been discovered and could have been presented to the jury for mitigation in sentencing. As evidence of this assertion, Gray’s current counsel attaches the affidavits of Annie Lois Tatum (Gray’s mother), Deirdre Jackson and Tomika Harris of the Mississippi Office of Capital Post-Conviction Counsel, Stephanie Wilson and Melissa Jones (Gray’s older sisters), and Ola Jones (Gray’s former teacher). Gray argues that the information obtained post-trial from the above affiants and other individuals who knew him as a child supports his claim that he suffers from mild mental retardation and that had such information been presented to the jury, there is a reasonable probability that the outcome of the sentencing proceeding would have been markedly different.

¶ 20. The failure to present a case in mitigation during the sentencing phase of a capital trial is not, per se, ineffective assistance of counsel. Williams v. State, 722 So.2d at 450 (citing Williams v. Cain, 125 F.3d 269, 277 (5th Cir.1997)). Furthermore, where a motion for post-conviction relief makes no showing that interviewing additional witnesses would have produced a different outcome, the petitioner has failed to make out a prima facie claim of ineffective assistance of counsel. United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989); Foster v. State, 687 So.2d at 1134. In addition, this Court has previously held that so long as trial counsel presents to the sentencing jury evidence of a capital defendant’s educational background, psychological profile and childhood experience, there is no professional error under the Strickland standard. Brown v. State, 798 So.2d 481, 498-99 (Miss.2001). In the present case, Gray’s defense attorneys did, in fact, present a case in mitigation for the jury to consider.

¶ 21. At the sentencing phase of the trial, defense counsel called Rosa Gallaspy and Luise Bradley to testify that they had watched Gray grow up and that he had no predisposition toward violence. Gray’s attorney also called Roosevelt Jones, a local minister, and Hattie Morgan, a neighbor, to give similar testimony. Rodney Gray’s mother, Annie Tatum, testified at the sentencing phase of the trial that her divorce from Rodney’s father was a source of emotional trauma to Rodney and that the divorce adversely impacted his performance in school.

¶ 22. In regard to Gray’s mental capacity, the trial court ordered that Gray be given a mental assessment, and forensic psychologist Charlton S. Stanley, Ph.D., issued a report that Gray possessed a full scale IQ score of 80. The report characterized Gray as “dull normal,” but not as mentally retarded. Upon the basis of Dr. Stanley’s report, trial counsel were not deficient according to the Strickland standard in failing to offer further evidence of mental retardation. Evidence that Gray was “dull normal” would have had little if any persuasive effect on the jury in mitigation. The issue of failure to present mitigating evidence is a close call, but according to the evidence presented, Gray’s trial counsel were not ineffective according to the Strickland standard.

G. Failure to present a meaningful defense

¶ 23. Gray’s final claim of ineffective trial counsel is based on counsel calling only five defense witnesses and in not having Gray testify in his own behalf. Decisions regarding which witnesses to call are decidedly within the realm of trial strategy. King v. State, 679 So.2d 208, 211 (Miss.1996). Gray offers no affidavits, documents or other evidence to support this claim as required by Miss.Code Ann. § 99 — 39—9(l)(e). Furthermore, the record discloses that the trial court explained to Gray in great detail that he had a constitutional right to testify in his own behalf but he voluntarily chose not to do so. The claim of ineffective assistance of counsel in failing to present a meaningful defense is without merit.

¶ 24. Inasmuch as all the alleged instances of ineffective assistance of counsel are without merit, it follows that the entire issue is without merit.

II. Mental Retardation within the meaning of Atkins v. Virginia

¶ 25. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), held that execution of a mentally retarded prisoner constitutes cruel and unusual punishment prohibited by the Eighth Amendment to the U.S. Constitution. The United States Supreme Court has held that the Eighth Amendment is incorporated by the Fourteenth Amendment. Robinson v. Cal., 370 U.S. 660, 667, 82 S.Ct. 1417, 1421, 8 L.Ed.2d 758 (1962). The Atkins Court held the death penalty to be “excessive” as applied to mentally retarded inmates and found that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded prisoner. Atkins, 536 U.S. at 321, 122 S.Ct. 2242. The Court found that there existed a national consensus which called into question “the relationship between mental retardation and the penological purposes served by the death penalty.” They further recognized that “clinical definitions of mental retardation require not only sub-average intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.” Id. at 317-18, 122 S.Ct. 2242. Furthermore, the Supreme Court stated:

Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

Id. at 317-18,122 S.Ct. 2242.

¶ 26. Determining who is mentally retarded for purposes of this prohibition has been left to the individual States.

Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id., at 399, 405, 416-417, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335.

Atkins, 536 U.S. at 317, 122 S.Ct. 2242. This Court has adopted the definition of mental retardation as promulgated by the American Psychiatric Association [APA], which defines mental retardation as follows:

The essential feature of Mental Retardation is significantly sub-average general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Atkins, 536 U.S. at 309, 122 S.Ct. 2242; Foster v. State, 848 So.2d 172, 174 (Miss.2003).

¶ 27. Based upon the evidence presented in the petition for post-conviction relief, in Gray’s reply to the state’s response to his petition, and the trial record, Gray has not established that he is entitled to a hearing on the issue of mental retardation. Gray provides neither affidavits of experts opining his mental retardation, nor is there any qualified opinion contained in the trial record, other than that of forensic and counseling psychologist, Chariton S. Stanley, Ph.D., who examined Gray before trial by order of the court to determine whether Gray was competent to stand trial and whether there were possible mitigating circumstances in the case. Among the several tests given by Dr. Stanley was the Wechsler Adult Intelligence Scale, which showed Gray’s full scale IQ score of 80, Verbal IQ score of 81, and non-verbal IQ score of 81, all of which Dr. Stanley classified as “low dull normal.” A score on the Wechsler test of 80-81 is well above the maximum score for “mild” mental retardation as defined by the APA. Diagnostic and Statistical Manual of Mental Disorders. 42-43 (4th ed.2000).

¶ 28. Instead, Gray’s post-conviction relief counsel presents elementary and middle school grade records, none of which indicates that his IQ had been tested, or that he was in special education classes. Counsel also presented affidavits of Gray’s immediate family members regarding the deficiencies in his adaptive skills as well as his poor performance in school. In addition there were affidavits from persons from the Mississippi Office of Capital Post-Conviction Counsel, and Ola Jones, identified by Gray’s post-conviction counsel as one of Gray’s former teachers. However, Jones’s name does not appear in the school records where the names of all Gray’s teachers are shown, nor does her affidavit state that she ever taught Gray. Rather, she states that she is currently principal of Bay Springs Elementary School, and that “From what I can recall, Rodney was in the special education program at Bay Springs Middle School between the grades of 4th and 8th. I am not sure at what point he was enrolled in the special education program but it would have been during that time period.” She also states in her affidavit that “I am not sure what his IQ tests scores were. I know that he had to have had a learning disability or he would not have been placed in the special education program.” Although she said that she “taught self-contained children” she did not say that she ever taught Gray. There is no explanation given as to why Jones, as the current principal of the same elementary and middle school attended by Gray from 1978-85, would give such vague statements rather than referring to the school records and providing specific information.

¶ 29. Gray’s counsel bases his assertion of Gray’s mental retardation, with onset before age 18, almost entirely on Jones’s affidavit. The educational records reflect a child who at times struggled in school, but they do not offer any proof that Gray’s difficulties in school were as a result of mental retardation. Furthermore, none of the affiants, other than Dr. Stanley, possess the requisite qualifications to determine mental retardation, and his nine page report of his evaluation of Gray nowhere contains any mention of mental retardation.

¶ 30. The Post-Conviction Collateral Relief Act places the burden upon Gray to prove that he is mentally retarded to such an extent that he may avoid the death penalty. Miss.Code Ann § 99-39-23(7) (Supp.2000). Gray has not met his burden, and this issue is without merit.

III. DNA evidence and the right to confront witnesses

¶ 31. Citing the confrontation clause of the Sixth Amendment, Gray asserts that the testimony of Melissa Smrz, a forensic serologist employed in the FBI laboratory, should have been stricken at trial because she was not the actual examiner who performed the testing on the samples. The FBI’s DNA Laboratory performed tests on semen samples recovered from the victim’s underwear. Smrz stated at trial that she supervised the sampling procedures which were actually performed by a lab technician. Smrz testified that the results showed the mathematical probability that the donor was someone other than Gray was 1 in 446,000,000. Gray alleges that he was denied his Sixth Amendment right to confront the witnesses against him because the lab technician was not available.

¶ 32. This objection was presented to the trial judge who found that Smrz was the head of her department and that the tests were performed under her direction and control. Gray, 728 So.2d at 56. On direct appeal, this Court considered this issue on the merits and affirmed the trial court:

In the case sub judice Gray was able to confront and cross-examine the expert who evaluated the autoradiographs and did the sizing procedure, Ms. Smrz. She based her opinions and testimony on the results of her examinations of the test results. This was permissible testimony under Miss. R. Evid. 703 and did not violate Gray’s Sixth Amendment right to confront witnesses. He was able to cross-examine and confront Ms. Smrz. Therefore, this issue is without merit.

Id. at 57. The issue of the admissibility of the DNA evidence having been previously raised and rejected is now procedurally barred by the doctrine of res judicata. Miss.Code Ann. § 99-39-21(3).

IV. Jury instructions and Tison v. Arizona

¶ 33. Gray argues for the first time that jury instructions given at the sentencing phase of the trial violated his Eighth Amendment rights because the instructions allowed the jury to impose the death sentence without finding that he intended to kill his victim. Gray claims that the instructions were given in contravention of the United States Supreme Court holding in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). In that case, however, the Court held that imposing the death penalty in felony-murder cases upon defendants whose participation in the underlying felony was major and whose mental state was one of reckless indifference to the value of human life was not a violation of the Eighth Amendment prohibition against cruel and unusual punishment. Id. at 157-58, 107 S.Ct. at 1688. In the present case, a challenge to the jury instructions could have been made at both trial and on direct appeal but since it was not, Gray is now procedurally barred from consideration pursuant to Miss.Code Ann. § 99-39-21(1). See Brown v. State, 798 So.2d at 491. Unless Gray can demonstrate cause for failure to raise this issue and actual prejudice resulting from the trial court’s actions, the issue of improper jury instructions is without merit. Miss.Code Ann. § 99-39-21(1).

¶ 34. The jury was instructed in accordance with Miss.Code Ann. § 99—19— 101(7) which provides:

(7) In order to return and impose a sentence of death the jury must make a written finding of one or more of the following:
(a) The defendant actually killed;
(b) The defendant attempted to kill;
(c) The defendant intended that a killing take place;
(d) The defendant contemplated that lethal force would be employed.

It is proper to instruct a jury that it may consider all of the intent factors contained in Miss.Code Ann. § 99-19-101(7), yet may properly find only one of these factors, as the evidence permits. Jordan v. State, 786 So.2d 987, 1026 (Miss.2001). This Court has previously held that the jury can be instructed on all of these factors at the conclusion of the sentencing phase. Neither Tison nor its predecessor, Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), requires more than one of the above findings. Walker v. State, 863 So.2d 1, 26 (Miss.2003).

¶ 35. In order to return a death sentence, the jury must find beyond a reasonable doubt the existence of at least one of these factors. Id. There must, of course, be sufficient evidence to support the jury’s finding of any such factors. Carr v. State, 655 So.2d 824, 838-39 (Miss.1995). The jury found that Gray actually killed Grace Blackwell. Accordingly, Gray cannot prove cause and actual prejudice under Miss.Code Ann. § 99-39-21(1) from his failure to raise this issue before the trial court or on direct appeal, and his claim fails for lack of merit.

¶ 36. Gray farther alleges that the Mississippi death penalty statutes are unconstitutional in that they are applied to all defendants who are guilty of felony murder. This Court has held previously that Mississippi’s capital murder scheme is not unconstitutional simply because it makes the death penalty a possible punishment for felony murder without a requirement to prove an intent to kill. See Simmons v. State, 805 So.2d 452, 507 (Miss. 2001). This same argument has been rejected as it relates to depraved heart murder. Grayson v. State, 806 So.2d 241, 252 (Miss.2001). Gray’s constitutional rights under the Eighth Amendment are safeguarded since the factors contained in Miss.Code Ann. § 99-19-101(7) require that the jury find the requisite intent set forth in Enmund and Tison before a death penalty verdict can be returned. In the present case, the jury was properly instructed pursuant to Miss.Code Ann. § 99-19-101(7) and found all four of those factors. That is all that is required by the decisions of the United States Supreme Court and the federal constitution. Gray has simply failed to show the necessary cause and actual prejudice required by Miss.Code Ann. § 99-39-21(1) to overcome the procedural bar to consideration of this claim.

V. Form of the verdict

¶ 37. Gray next argues that the form of the sentencing verdict was defective for failure to include a written confirmation that the jury found the aggravating factors listed in Miss.Code Ann. § 99 — 19— 101 beyond a reasonable doubt. This claim could have been raised at trial and on direct appeal, but was not. The matter is now procedurally barred from consideration for the first time on collateral review. Miss.Code Ann. § 99-39-21(1).

¶ 38. Without waiving the procedural bar, we determine that the issue is without merit. In the sentencing phase of capital trials, statutory aggravating circumstances must be unanimously found beyond a reasonable doubt. White v. State, 532 So.2d 1207, 1219 (Miss.1988). In the present case, State’s Jury Instruction No. 2 specifically required that the jurors “must unanimously find, beyond a reasonable doubt that one or more of the preceding aggravating circumstances exists in this case to return the death penalty.” There is an abundance of case law stating that it is presumed that jurors follow the instructions of the court. Payne v. State, 462 So.2d 902, 904 (Miss. 1984) (internal citations omitted).

¶ 39. The jury in Gray’s trial returned a written verdict announcing that they had unanimously found the existence of the aggravating circumstances. Once a defendant has been convicted in the guilt phase of a capital trial, the presumption of innocence disappears. Delo v. Lashley, 507 U.S. 272, 278, 113 S.Ct. 1222, 1225-26, 122 L.Ed.2d 620 (1993). It necessarily follows that Gray’s jury found the aggravating circumstances to exist beyond a reasonable doubt even though those particular words were not written on the face of the verdict. This issue is without merit.

VI. Cumulative Error

¶ 40. Next, Gray argues generically that the alleged preceding errors, taken as a whole, deprived him of a fair trial. This Court has previously held that “where there is ‘no reversible error’ in any part, ... there is no reversible error to the whole.” Byrom v. State, 863 So.2d 836, 847 (Miss.2003) (quoting McFee v. State, 511 So.2d 130, 136 (Miss.1987)). Since Gray has not yet shown any actual error by the trial court, there can be no cumulative effect and no adverse impact upon his constitutional right to fair trial. This issue is without merit.

VII. Cumulative Effect of the Failure to Make Certain Objections

¶41. Next, Gray contends there were five instances of ineffective assistance of counsel whose cumulative effect was to deprive him of a fundamentally fair trial. These alleged omissions include: (1) failure to object to the State’s use of jury strikes for cause against African-Americans; (2) failure to object to the jury instructions S-3, S-4 and S — 6; (3) failure to object to the testimony of Gray’s cell mates; (4) failure to object to the prejudicial effect of pretrial publicity; and, (5) failure to submit jury instructions to weigh informant testimony with caution. Gray also argues that he was denied his fundamental rights due to his trial counsel’s failure to cite authority concerning issues presented on direct appeal.

¶42. With regard to the first alleged instance of nonfeasance concerning the State’s use of jury strikes, this particular claim has been previously discussed herein and found to be without merit. Also, the second claim regarding jury instructions S-3 and S-4 was raised on direct appeal and found to be without merit. Gray, 728 So.2d at 75-76. The record shows that trial counsel did in fact object to instruction S-6 although on grounds different from what Gray now asserts should have been the basis. Id at 60-61. The decision must be attributed to trial strategy by defense counsel.

¶ 43. The third claim concerning the testimony of Gray’s cell mates, Saunders and McCall, was raised and rejected on direct appeal. Although this Court employed a procedural bar on direct appeal, it nonetheless analyzed the merits of the claim and found them lacking. Id. at 71-72. As for the fourth claim of failing to defuse the potential adverse impact of pretrial publicity, defense counsel sought a change of venue as discussed previously on direct appeal. As analyzed earlier, this Court discussed the effect of local news coverage within that context and found no irrefutable presumption that Gray could not receive a fair trial. Id. at 67. This Court also addressed Gray’s fifth instance of alleged misconduct pertaining to informant testimony on direct appeal and found the issue to be without merit. Id. at 72.

¶ 44. Gray is now procedurally barred by res judicata from relitigating the issues previously before this Court on direct appeal through the present petition for post-conviction relief. Miss.Code Ann. § 99-39-21(3). With no error to be found on the part of trial counsel in these enumerated instances, there can be no cumulative error to have deprived Gray of a fundamentally fair trial. Byrom, 863 So.2d at 847. Thus, this issue is without merit.

VIII. Aggravating Factors Not Charged in the Indictment

¶ 45. Next, Gray argues that his death sentence must be vacated because the aggravating circumstances of capital murder found by the jury were not included in the indictment. Gray relies on the rulings of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428,153 L.Ed.2d 556 (2002). In Apprendi and Ring, the Court held unconstitutional sentencing procedures where a judge rather than a jury determined whether there were aggravating circumstances sufficient to warrant imposition of the death penalty.

¶46. Specifically, in Ring the Court addressed the issue of whether the Arizona capital sentencing process as upheld in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), was constitutional under Apprendi. In Walton, the Supreme Court held that the Arizona capital sentencing process in which the jury decided guilt and the judge made findings on aggravating factors was constitutional. The Supreme Court in Ring overruled the Walton case stating:

[W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047. Because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury.

Ring, 536 U.S. at 609, 122 S.Ct. 2428.

¶ 47. Despite Gray’s argument, the Supreme Court’s holding in Ring is limited in scope. The Court in Ring specifically stated that “Ring’s claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him.” Id. at 597 n. 4, 122 S.Ct. 2428. Unlike Gray, Ring did not contend that his indictment was constitutionally defective. Thus, the issue of whether the aggravating circumstances must be included in the indictment is not controlled by the holding in Ring. See Stevens v. State, 867 So.2d 219, 226-27 (Miss.2003).

¶ 48. A defendant is not entitled to formal notice of the aggravating circumstances to be employed by the prosecution and that an indictment for capital murder puts a defendant on sufficient notice that the statutory aggravating factors will be used against him. Smith v. State, 729 So.2d 1191, 1224 (Miss.1998) (relying on Williams v. State, 445 So.2d 798 (Miss.1984)). The Court in Williams said:

We believe that the fact that our capital murder statute lists and defines to some degree the possible aggravating circumstances surely refutes the appellant’s contention that he had inadequate notice. Anytime an individual is charged with murder, he is put on notice that the death penalty may result. And, our death penalty statute clearly states the only aggravating circumstances which may be relied upon by the prosecution in seeking the ultimate punishment.

Williams, 445 So.2d at 804-05. In addition, this Court has recently rejected similar arguments in Stevens v. State, 867 So.2d 219, 225-27 (Miss.2003). Thus, the issue of the omission of aggravating circumstances in the indictment is without merit.

IX. Death Sentence Disproportionate to the Offense

¶ 49. Finally, Gray asserts that his death penalty sentence was disproportionately imposed. On direct appeal, this Court conducted a proportionality review as required by the Eighth Amendment and specifically found that Gray’s death sentence was not disproportionate. Gray, 728 So.2d at 78. Consequently, the issue is now procedurally barred from collateral review. Miss.Code Ann. § 99-39-21(3).

CONCLUSION

¶ 50. The Application for Leave to File a Petition for Posi^Conviction Relief in the Trial Court filed by Rodney Gray is denied.

¶ 51. APPLICATION FOR LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

      . Gray’s reply was filed December 31, 2003, and no further reply or supplementation was filed subsequent to this Court's definitive opinion, published on May 20, 2004, regarding the standards and procedures to be followed in order to obtain an evidentiary hearing in the trial court on the issue of mental retardation. See Chase v. State, 873 So.2d 1013 (Miss.2004).

      . These tests were administered in 1995, when Gray was 23 years old. There is no mention in the record before us that the Minnesota Multiphasic Personality Inventory-II was administered. See Foster, 848 So.2d at 174.


source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    Betty ANDRUS, Keith Barrett, Debera Bridges, Gary Coleman and Phillip Price v. Charlie C. ELLIS, Sammy Hancock, Azzie Mae Starr and Wanda N. Woods.
    No. 2003-IA-01842-SCT.
    Supreme Court of Mississippi.
    Nov. 4, 2004.

      H. Mitchell Cowan, Vikki J. Taylor, Jackson, John R. Chiles, Reid Stephens Manley, Robert D. Gholson, Marcus Douglas Evans, Laurel, attorneys for appellants.
    T. Roe Frazer, F. Lee Bowie, Jackson, attorneys for appellees.
    Before SMITH, C.J., CARLSON and DICKINSON, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. On March 22, 2002, several Plaintiffs filed suit against eight individual Defendants claiming that the Defendants fraudulently induced them to purchase credit insurance policies in connection with consumer loans made by Commercial Credit Corporation. Plaintiffs allege either that they were not aware that they had purchased credit insurance, or they were aware, but thought such was required to obtain the loans. All Defendants are either current or former employees of Commercial Credit, which is now known as CitiFinancial, Inc. Plaintiffs did not sue Commercial Credit.

¶ 2. Following discovery, Defendants filed two motions: one to sever and transfer and the other for summary judgment. A hearing before the circuit court was held regarding both. Both motions and Defendants’ subsequent motion for interlocutory appeal certification were denied. On August 21, 2003, this Court granted Defendants’ motion for emergency stay and request for interlocutory appeal. See M.R.A.P. 5. No brief has been submitted on the Plaintiffs’ behalf.

¶ 3. Finding that the claims are barred by Miss.Code Ann. § 15-1-49 (Rev.2003), this Court reverses and renders the trial court’s denial of summary judgment.

FACTS

¶ 4. Plaintiffs jointly commenced this action alleging that the Defendants fraudulently and negligently induced them to purchase various types of credit insurance in connection with their loans. The transactions at issue are independent of each other, and all occurred from 1988 to 1995 while the Defendants were employees of Commercial Credit.

¶ 5. The facts surrounding the Plaintiffs’ loans are as follows:

Charles C. Ellis

¶ 6. Ellis’s claim is based on two loans and against Defendants Coleman and An-drus, former employees of Commercial Credit. Both loans were transacted at the Hattiesburg office of Commercial Credit. Ellis contracted for credit life and credit disability insurance in connection to both loans.

¶ 7. The first loan was prepared by Coleman and agreed to on August 1, 1991. Ellis testified that he believed the credit insurance was required but only remembered it being recommended to him or suggested that “he needed it.” Ellis received copies of the documents resulting from the transaction, which he kept at home. Ellis testified that he read part of the document, but he did not remember reading the insurance disclosure. He testified that had he read the documents he would have known that the insurance was not required. There was no testimony that after receiving the loan he had any further contact with the Defendants regarding the loan or insurance.

¶ 8. The second loan was on January 16, 1998. Ellis was unsure who solicited him but he alleged that it was either Defendant Andrus or Boleware. This loan was wholly separate from the 1991 loan, which at this time was paid off. During his deposition, Ellis stated that he wanted credit insurance in case something happened to him and that is why he accepted it. There was no testimony that after receiving the loan he had any further contact with the Defendants regarding the loan or insurance.

Sammy Hancock

¶ 9. Hancock received several loans from Commercial Credit. He admitted that he requested credit disability insurance in connection to each loan, but claimed that he was unaware that he also contracted for credit life and property insurance. He testified that there was no discussion between him and the employees of Commercial Credit concerning credit life and property insurance. Hancock actually collected disability benefits under the coverage he purchased. As a result of these benefits, his loan was paid in full. Hancock can read and received copies of the loan documents, which he kept at home.

¶ 10. Hancock’s first loan was on June 23, 1993, and was prepared by Defendant Bridges-Pankowski. He claims that Bridges-Pankowski never told him that he was purchasing credit life and property insurance in connection to this loan. He testified that he only requested credit disability.

¶ 11. Hancock’s next loan was on October 4, 1993, and again handled by Defendant Bridges-Pankowski. Hancock admitted that during this transaction he knew that he was purchasing credit life and property insurance. He testified that he reviewed the documents at home following the transaction. He made no objections.

¶ 12. Hancock renewed this loan on November 25,1994. It is unclear which Commercial Credit employee handled the transaction. Hancock testified that he again was aware that he was purchasing credit life and property insurance and that he assumed the loan was being renewed under the same terms. Hancock did not remember any discussion between him and employees of Commercial Credit regarding insurance.

¶ 13. The final transaction was on August 23, 1995, when Hancock renewed the previous loan. Again, he was aware that he had credit disability, life and property coverage. His recollection was that he became aware of this after he reviewed the documents several weeks later.

Azzie Mae Starr

¶ 14. Starr obtained a loan on November 8, 1995. Her claim is against Defendant Moss. Starr purchased only property insurance and paid a one-time fee. Starr testified that she remembered being told that she needed to get property insurance. Starr testified that she read the loan documents, which she saved at home. She never objected to the insurance. Starr did not know she was suing individual Defendants and did not recall anything that employees at Commercial Credit told her was untrue.

Wanda Woods

¶ 15. The claims of Woods and her husband were against Defendants Barrett and Coleman. She obtained three loans, with the first being on November 20, 1988. As collateral for this loan, Woods pledged her mobile home. Woods believed that she had bought credit health insurance, not life or disability, in connection with her loan. She thought credit insurance was required to receive the loan. She does not remember who prepared the loan, and none of the named Defendants signed the documents in connection with the loan.

¶ 16. Her second loan was obtained on August 13, 1990. With a one time premium, she purchased credit life insurance in connection to this loan. Though she could not remember who, Woods testified that an employee represented to her that she was purchasing health insurance which was required. Woods signed beside the disclosure of credit life premium on the promissory note and disclosure statement. Also, contained in the loan agreement was a disclosure statement informing her that credit insurance was optional. Woods testified that she understood the disclosure statement and that the loan agreement indicated that credit insurance was not mandatory.

¶ 17. Woods’s second loan was on February 17, 1994. Woods does not remember which employee handled this loan, though Defendants Barrett and Coleman signed the loan documents. She purchased joint credit life insurance in connection with this loan. Though her signature appears on the note next to the disclosure, Woods testified that no one informed her that she was purchasing life insurance. Woods admitted that she never read the documents, even though she received copies of the documents and kept them at home.

¶ 18. Because she believed that she had health insurance, Woods attempted to make a claim on her insurance in 1990 and 1991. At this time, she was informed that she only had credit life insurance, not health.

¶ 19. Woods has satisfied her obligations under the loans. Woods believed that she was suing Commercial Credit and not individual Defendants. She could not recall anything that Defendants Barrett and Coleman told her about her loans.

ANALYSIS

¶ 20. Defendants raise the following issues:

I. Are the Claims Barred by the Statute of Limitations.
II. Did the Circuit Court Err When it Denied the Defendants’ Motion for Summary Judgment on Plaintiffs’ claims for Fraudulent and Negligent Misrepresentation.
III. Did the Circuit Court Err When it Denied the Defendants’ Motion for Summary Judgment on Punitive and Emotional Distress Damages.
III. Should the Plaintiffs’ Claims be Severed in Accordance with M.R.C.P. 21 and Transferred to the Proper Venue.

¶21. Because it is dispositive, we address only the statute of limitations issue.

I. Statute of Limitations

¶22. It is undisputed that the three-year statute of limitations set forth in Miss.Code Ann. § 15-1-49 (Rev.2003) is controlling in the instant case. See Stephens v. Equitable Life Assurance Soc’y of the United States, 850 So.2d 78 (Miss.2003); Am. Bankers Ins. Co. of Florida v. Wells, 819 So.2d 1196 (Miss.2001). Section 15-1-49 provides in part:

(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.

This Court employs de novo review when considering issues of law such as statutes of limitations. Stephens, 850 So.2d at 82.

¶ 23. The trial court provided no reasons as to why it denied summary judgment based on the statute of limitations. Seemingly, the application and resulting bar under § 15-1-49 is certain. The most recent loan transaction at issue occurred in 1995. With filing of the complaint occurring on March 22, 2002, the statute would bar all claims that accrued prior to March 22, 1999. Thus, in the absence of an exception, statutory or otherwise, the claims are barred.

¶ 24. As noted, no brief was filed on behalf of the Plaintiffs. In situations such as this, the Court may consider the failure as a confession of error and reverse. Miller v. Pannell, 815 So.2d 1117, 1119 (Miss.2002). This is 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. Id. (citing May v. May, 297 So.2d 912, 913 (Miss.1974)). Though this failure alone is sufficient to warrant reversal, we consider the merits.

¶ 25. The Plaintiffs allege fraudulent and negligent misrepresentation and fraudulent inducement. Much of the Plaintiffs’ argument relies on the fact that Commercial Credit is not a party to the proceedings. In addition to the allegations that they were either not aware that they had purchased credit insurance or were misled into believing that it was necessary, the Plaintiffs alleged that the Defendants failed to disclose that they received a commission from the sale of credit insurance.

¶ 26. The Plaintiffs reject any argument in which the Defendants rely on the written agreements entered into by Commercial Credit and the Plaintiffs. This position is based on the fact that the protective language therein does not specifically include the individual Defendants. The Plaintiffs believe the agreements are limited in that they can only be applied to Commercial Credit and thus cannot be used as a defense by an employee who, contrary to company policy, used illicit tactics to sell insurance. Plaintiffs entered into the record, excerpts from a sales training book and a branch manual distributed by Commercial Credit. The Plaintiffs rely on these excerpts to support their claim that the Defendants breached the standard of care as set forth by Commercial Credit and which as employees they were obligated to follow.

¶ 27. As to the issue of the statutory bar, there are two cases, Wells and Stephens, that we consider. In American Bankers’ Ins. Co. of Florida v. Wells, 819 So.2d 1196 (Miss.2001), this Court discussed possible exceptions that would support the tolling of § 15-1-49. Focusing on alleged backdating of force-placed insur-anee coverage, the Court ruled that the test on whether to toll the statute of limitations is whether a reasonable person similarly situated would have discovered potential claims. Id. at 1201. The plaintiffs in Wells alleged that the banks committed fraud by backdating and charging borrowers insurance premiums from the date their other insurance lapsed rather than from the date that force-placed coverage actually began. After confirming that the promissory notes did not authorize the lender to backdate coverage, and thus that the plaintiffs had actionable claims, the Court considered if and when the two plaintiffs received notice of the backdating. Id. at 1202. As to the first plaintiff, the Court found that based on the fact that she denied ever receiving notice of the force-placed coverage and based on the fact that there was no testimony that she indeed ever received such, the statute of limitations was tolled until the time at which she first received notice of the backdating. Id. In that instance, the Court assumed it to be during discovery. Id. As to the second plaintiff, the Court ruled that he received notice, in the form of certificates of insurance, each time force-placed insurance was issued. Id. Based on the fact that he received notice more than three years before the filing of the complaint, the Court found his claim to be barred. Id.

¶ 28. Applying Wells, the claims in the instant case are barred. Like the second plaintiff in Wells, here all the Plaintiffs were on notice. All Plaintiffs testified during their depositions that they received copies of the loan documents. It is undisputed that contained in each loan agreement was an insurance disclosure which informed the borrower that credit insurance was not required and that the decision to make the loan would not be affected by the borrower’s decision. “In Mississippi, a person is charged with knowing the contents of any document that he executes.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 725 (Miss.2002) (citing J.R. Watkins Co. v. Runnels, 252 Miss. 87, 172 So.2d 567, 571 (1965) (“A person cannot avoid a written contract which he has entered into on the ground that he did not read it or have it read to him.”)). “[A] person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.” Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991). Accordingly, the Plaintiffs are charged with notice and therefore all claims accrued at the time the loan agreements were executed. Plaintiffs cannot rely on the fact that Commercial Credit is not a party to the action in order to circumvent the unambiguous language of the loan agreement or to avoid being charged with notice.

¶ 29. In the other case, this Court considered § 15-1^19 and statutory exceptions thereto. See Stephens v. Equitable Life Assur. Soc’y, 850 So.2d 78 (Miss.2003) (relied on in Ross v. CitiFinancial, Inc., 344 F.3d 458 (5th. Cir.2003)). In Stephens, the plaintiffs sued Equitable Life and its agent based on theories of fraudulent misrepresentation and concealment. Plaintiffs alleged that while purchasing life insurance in 1972 they were misled regarding the amount and duration of premiums. Id. at 79. Considering the fraud claim first, the Court held that the claims accrued in 1972 when the insurance was purchased. Id. at 83. Because the complaint was not filed until 2001, the claims were barred under the applicable statute of limitations. Id. The Court stated that under this Court’s precedent, insureds are charged with knowledge of the contents of written agreements notwithstanding whether they actually read such agreement. Id.

¶ 30. The Court then considered § 15-1-67, which provides:

If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

Miss.Code Ann. § 15-1-67 (Rev.2003). Under the doctrine of fraudulent concealment, the running of the statute of limitations is tolled. Stephens, 850 So.2d at 83 (quoting Robinson v. Cobb, 763 So.2d 883, 887 (Miss.2000)). This requires proof of two elements: subsequent affirmative acts of concealment and due diligence. That is, there must be some subsequent affirmative act by the defendant which was designed to prevent and which did prevent discovery of the claim. Stephens, 850 So.2d at 83-84. Proof of this act must also be coupled with proof that despite his or her due diligence, the plaintiff was unable to discover the claim. Id. Here, Plaintiffs fail as to both elements.

¶ 31. There are no specific charges of subsequent affirmative acts of concealment contained in either the record or the testimony of the Plaintiffs. Aside from the broad allegations contained in the complaint, only Plaintiff Woods positively asserts that the nature of the coverage was misrepresented to her. Assuming arguen-do that this satisfies the affirmative act requirement, based on her testimony it is certain that she is unable to satisfy the due diligence requirement. She was informed as early as 1991 that she did not have health insurance. At this point, diligence requires Woods to either object or inquire as to why her understanding of the insurance contract fundamentally differs from Commercial Credit’s understanding. However, Woods testified that she never read the loan documents and the record indicates that, subsequent to this denial, she returned to Commercial Credit for another loan. Based on this, Woods is precluded from relying on the doctrine of fraudulent concealment.

¶ 32. Woods’s testimony aside, the testimony of the remaining Plaintiffs does not support the proposition that the Defendants committed any affirmative acts. The other Plaintiffs testified generally that their understanding of the transaction was contrary to the unambiguous terms contained in the written contract. None testified that the defendants made any oral misrepresentation, much less subsequent acts of concealment.

¶ 33. As for due diligence, all Plaintiffs received copies of the loan documents. Save Plaintiff Woods, all admitted that to some extent they reviewed the loan documents. Yet, despite the unambiguous language, none testified as to why they failed to object or inquire further regarding the fact that, their understanding of the transaction differed from the insurance disclosure. None raised an objection to the insurance until the filing of the complaint.

¶34. As to the alleged failure to disclose commissions, the Court finds this argument without merit. In the course of a private transaction where the seller encourages a buyer to purchase additional products, one would assume that the seller is motivated by some sort of incentive such as, in this instance, a commission. There is no testimony that the Defendants concealed or denied that they were receiving commissions nor is there any testimony regarding whether the Plaintiffs specifically inquired as to such. Likewise, there is no allegation in fact or duty under law to support the argument that the Defendants were obligated to do so. We presume that parties enter into private transactions for their own personal benefit.

CONCLUSION

¶ 35. Plaintiffs’ claims are barred by § 15-1-49. There is no proof of fraudulent concealment by the Defendants, and thus the Plaintiffs may not avail themselves of the tolling mechanism provided under § 15-1-67. We reverse the circuit court’s judgment and render judgment here finally dismissing plaintiffs’ complaint and this action with prejudice as barred by the applicable statute of limitations.

¶ 36. REVERSED AND RENDERED.

SMITH, C.J., WALLER AND COBB, P.JJ., AND DICKINSON, J., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Several original Plaintiffs' claims were dismissed based on a binding arbitration clause.

      . The types of credit insurance involved credit life, disability or property.

      . Based on the fact that Woods’s husband was listed as a co-borrower, he joined the complaint.

      . The current three-year statute of limitations in Section 15-1-49 was not applicable in 1972. Id. at 83. This required the Court to apply the then-applicable six-year catchall statute of limitations.


author: CHANDLER, J., IRVING, J.,

text:
    STATE of Mississippi, Appellant v. Tony HAYES, Appellee.
    No. 2003-KA-00781-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.
    Rehearing Denied Nov. 16, 2004.
    James H. Powell, III, Durant, attorney for appellant.
    Whitman D. Mounger, Greenwood, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   CHANDLER, J.,

for the Court.

¶ 1. This case arises from a March 3, 2003 sentencing order of the Humphreys County Circuit Court issued after Tony Hayes entered a guilty plea for the crimes of armed robbery and aggravated assault. The State’s sole issue on appeal is whether the circuit court had the discretion to suspend any part of Hayes’s armed robbery sentence. Finding that the discretionary provisions of Mississippi Code Annotated Section 47-7-33 (Rev.2000) are applicable to a sentence imposed by a circuit judge for armed robbery pursuant to Mississippi Code Annotated Section 97-3-79 (Rev. 2000), we affirm the order of the circuit court.

FACTS

¶ 2. Tony Hayes was indicted by a grand jury of the Humphreys County Circuit Court on one count of armed robbery and one count of aggravated assault on August 29, 2002. He was charged with a February 3, 2002 attack upon his grandmother, Cleotha Pitts. Hayes, who admitted hitting his grandmother on the head with a piece of metal after taking money from her purse, entered a plea of guilty on February 19, 2003.

¶ 3. A sentencing hearing was held on March 3, 2003. At the hearing, it was established that at the time of the robbery, Hayes was high on crack cocaine and looking for money to buy more drugs. For several months prior to the incident, fearing that he might cause harm to himself or someone else, Hayes unsuccessfully had sought help for his escalating drug problem. Subsequently, he went through a forty-eight-day in-patient drug treatment program at the Mississippi State Hospital, followed by a sixty-day secondary drug treatment program at Metro Counseling in Jackson.

¶ 4. After hearing testimony from Hayes’s relatives and minister, as well as from two deputy sheriffs and a social worker who testified on his behalf, the circuit judge sentenced him on both counts concurrently to serve ten years in the custody of the Mississippi Department of Corrections, with credit given for the one year served in confinement prior to the entry of his guilty plea. She suspended the remaining nine years of his sentence, placing him on supervised probation for a period of three years. In addition to the terms and provisions of supervised probation imposed by the Mississippi Department of Corrections, the circuit judge required that Hayes receive additional in-patient treatment at a drug rehabilitation facility.

¶ 5. The State now contends that the sentence imposed by the circuit court is illegal, asserting that § 47-7-33 does not provide for the suspension of any part of a sentence for armed robbery imposed pursuant to § 97-3-79.

LAW AND ANALYSIS

I. WHETHER MISS. CODE ANN. § 47-7-33 ALLOWS THE SUSPENSION OF ANY PART OF A SENTENCE FOR ARMED ROBBERY IMPOSED PURSUANT TO MISS. CODE ANN. § 97-3-79

¶ 6. “The length of a sentence is within the discretion of the judge limited by statutory and constitutional provisions.” Havard v. State, 800 So.2d 1193, 1201 (¶ 30)(Miss.Ct.App.2001); Jackson v. State, 551 So.2d 132, 149 (Miss.1989). The circuit court or county court further may suspend the execution of a felony sentence, entirely, or in part, and place the defendant on probation. Moore v. State, 585 So.2d 738, 740 (Miss.1991). Section 47-7-33 provides as follows for such judicial discretion and imposes certain limits thereon.

When it appears to the satisfaction of any circuit court or county court in the State of Mississippi, having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in termtime or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence. In placing any defendant on probation, the court, or judge, shall direct that such defendant be under the supervision of the Department of Corrections.

Miss.Code Ann. § 47-7-33(l)(Rev.2000). Thus, by statute, the circuit court may suspend the sentence given and order the defendant to be placed on probation except where the defendant previously has been convicted of a felony or the maximum sentence which may be imposed is life imprisonment or the death penalty.

¶ 7. After entering his plea of guilty, the circuit court sentenced Hayes for armed robbery pursuant to § 97-3-79, which provides:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

Miss.Code Ann. § 97-3-79 (Rev.2000)(emphasis added). Hayes was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections, with nine years of that sentence suspended. He was given credit for one year served prior to entering his guilty plea. The circuit judge further placed Hayes on three years supervised probation, conditioned upon his compliance with the requirements of the Mississippi Department of Corrections as well as receipt of further in-patient drug rehabilitation.

¶ 8. This Court “ ‘will not review the sentence, if it is within the limits prescribed by statute.’ ” Jones v. State, 669 So.2d 1383, 1393 (Miss.1995), quoting Green v. State, 631 So.2d 167, 176 (Miss.1994). The State contends that the sentence given does not conform with the statutory limits, asserting that the circuit judge was precluded from suspending any part of Hayes’s sentence by the provision of § 47-7-33 which limits the exercise of judicial discretion when a life sentence may be imposed for the crime. Indeed, a person found guilty of armed robbery “shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury.” Miss.Code Ann. § 97-3-79 (emphasis added). Hayes, however, was not found guilty and sentenced by a jury; he was sentenced by the circuit judge after entering a plea of guilty.

¶ 9. Hayes relies on the language of § 97-3-79 which, he correctly asserts, sets forth a distinction between a sentence which may be imposed by a jury and one which may be set by the circuit court. As the Mississippi Supreme Court noted in Jones, “[t]he statute on armed robbery provides that the defendant can be sentenced to life by the jury. Where the jury does not sentence the defendant to life ..., the judge ‘shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.’ ” Jones, 669 So.2d at 1393 (quoting Miss. Code Ann. § 97-3-79 (Rev.2000) (emphasis in original)).

¶ 10. In Marshall v. Cabana, 835 F.2d 1101 (5th Cir.1988), the Fifth Circuit addressed the interplay between §§ 47-7-33 and 97-3-79 in the context of a habeas petitioner who asserted that he could not be incarcerated for a probation violation when, he alleged, he was not properly on probation. As the court pointed out, “[b]y pleading guilty to armed robbery, Marshall placed his sentencing under the exclusive control of the judge before whom he pled.” Marshall, 835 F.2d at 1102. Thus, where there is no jury trial, armed robbery is not a crime for which a life sentence may be imposed under § 97-3-79. Id. at 1102-03. By statute, the judge is limited to sentencing the defendant to “ ‘a definite term reasonably expected to be less than life.’ ” Id. at 1103, quoting Stewart v. State, 372 So.2d 257, 259 (Miss.1979). Accordingly, the Fifth Circuit found that the circuit court properly had sentenced Marshall to a term of imprisonment of twenty-five years under the provisions of § 97-3-79 and further, that he acted within his discretion in suspending part of that sentence under § 47-7-33. Marshall, 835 F.2d at 1103.

¶ 11. There is no merit to the State’s assignment of error. Hayes’s assertion that the circuit judge properly exercised her discretion in suspending part of his sentence pursuant to §§ 47-7-33 and 97-3-79 is well-supported by case law. Section 97-3-79 does not provide for a maximum sentence of life for armed robbery when the sentence is imposed by a judge rather than a jury. Thus, the circuit judge had the statutory authority, pursuant to § 47-7-33, to suspend any part of Hayes’s sentence to the extent that “the ends of justice and the best interest of the public, as well as the defendant, will be served thereby.” Miss.Code Ann. § 47-7-33 (Rev.2000). Hayes had no prior felony convictions. He had an acknowledged drug problem, but had sought and obtained treatment, and the circuit judge’s sentencing order required that he receive further rehabilitation as a condition of his supervised probation. Testimony presented at the sentencing hearing by Hayes’s family, his minister, a social worker and local law enforcement officials all supported the exercise of the circuit court’s discretion as serving the ends of justice and the best interests of Hayes and the public. Accordingly, we affirm the decision of the circuit court.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF HUMPHREYS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HUMPHREYS COUNTY.

KING, C.J., BRIDGES, P.J., LEE, MYERS AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, P.J. BARNES, J., NOT PARTICIPATING.

IRVING, J.,

concurring:

¶ 13. I agree with the majority that the circuit judge had the authority to suspend a portion of Hayes’s sentence for armed robbery. However, I believe the rationale offered by the majority should be expanded. This separate writing is an attempt to do that.

¶ 14. The resolution of the issue before us depends upon a proper interpretation of the interplay between two statutes: Mississippi Code Annotated section 97-3-79 (Rev.2000) and Mississippi Code Annotated section 47-7-33(1) (Rev.2000).

¶ 15. Mississippi Code Annotated section 97-3-79 (Rev.2000) provides:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the -penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three years, (emphasis added).

Mississippi Code Annotated section 47-7-33(1) (Rev.2000) provides in pertinent part:

"When it appears to the satisfaction of any circuit court or county court in the State of Mississippi, having original jurisdiction over criminal actions, or the judge thereof, that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in termtime or in vacation, shall have the power, after conviction or plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may he imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of.imprisonment after the defendant shall have begun to serve such sentence, (emphasis added).

¶ 16. Section 97-3-79 requires that the sentence for armed robbery be less than life in only one instance and that is when the jury fails to fix the penalty at imprisonment for life in the state penitentiary. By the language employed in the statute, did the legislature intend that in all armed robbery cases, the defendant should at least be exposed to a possible life sentence? Or, did the legislature intend to place in the defendant’s hands, by his choice to plead guilty, an absolute right to avoid exposure to a life sentence? In my judgment, these are questions that must be pondered. Coupled with these questions is another question which, in my judgment, is overarching. And that question is, whether a jury has “failed to fix the penalty at life in the penitentiary” when, in the case of a plea of guilty, the jury has not even had the opportunity to consider the penalty.

¶ 17. The term “fails” means “to fall short, to decline, to abandon, to forsake, to omit to perform, to leave something undone, or to neglect.” The AmeeioaN Heritage College DiotionaRY 490 (3rd ed.1997). Clearly, the legislature, by use of the word “fail” in the statute, contemplated that the jury would have an opportunity to pass upon the sentence because, based on the definition of the word “fail,” a jury cannot fail to do anything that it has not had an opportunity to consider. In armed robbery cases where a defendant pleads guilty, the jury is denied the opportunity to- consider the appropriate sentence. Therefore, in such cases, the jury has not failed to ' fix the sentence at life in the penitentiary; rather, the jury has been denied the opportunity to consider fixing the sentence at life in the penitentiary. Consequently, it seems to be at least debatable, then, based on a literal reading of the statute, whether a trial judge has the authority to sentence a defendant in an armed robbery case where a guilty plea has been entered because, in that instance, a jury has not failed to fix the sentence.

¶ 18. If the jury’s failure to fix the penalty at life imprisonment is a prerequisite to the trial judge’s authority to impose a sentence of less than life, it seems to me that a tenable argument could be made that, in armed robbery cases where the defendant pleads guilty, the trial judge should first submit the case to a jury for its consideration of the appropriate sentence, and only after a jury has failed to fix the sentence at life in the penitentiary is a judge then allowed to sentence the defendant. While, the question of whether a judge has the authority to impose a sentence in an armed robbery case pursuant to a plea of guilty, without prior consideration of the sentence by a jury, may be debatable, it is not debatable that in such a case the jury has not failed to fix the sentence at life imprisonment.

¶ 19. Having determined that an armed robbery case, where a defendant is sentenced by the circuit court as a result of his guilty plea, is not a case where the jury has failed to fix the sentence at life in the penitentiary, I now turn to consideration of the other statute, section 47-7-33(1). As noted earlier, section 47-7-33(1) empowers circuit and county judges, after a defendant’s conviction, to place the defendant on probation, except in cases where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof.

¶ 20. Without a doubt, armed robbery is a case, generically speaking, where life imprisonment is the maximum penalty which may be imposed. The question then becomes does a plea of guilty to a charge of armed robbery transform an armed robbery case, generally, from being one in which life imprisonment is the maximum penalty which may be imposed or does the plea of guilty simply prevent the imposition of a sentence of life imprisonment in the specific case before the court. Additionally, I may ask, did the legislature, in enacting section 47-7-33(1), intend to identify broad categories of eases in which a suspended sentence would not be allowed. Or, did the legislature intend to address specific cases in which the penalty for the broad category of cases, to which the specific case belongs, could be manipulated by circumstances unrelated to the nature of the case or the crime itself? For example, when one pleads guilty to armed robbery, he is pleading guilty to a broad category crime where life imprisonment is the maximum penalty which may be imposed. It is the circumstance of how the conviction was obtained, rather than the classification of the crime, which precludes consideration of the imposition of a sentence of life imprisonment.

¶ 21. I have raised relevant questions without providing appropriate answers. That is because, in my judgment, a proper construction of the statutes provides no definitive answers. Hence, I am not sure what the legislature intended, but it seems to me that it must have contemplated that there would be guilty pleas in armed robbery cases. That being the case, it further seems plausible to me that the legislature would have realized the inherent incongruousness of the sentencing scheme as it relates to a sentence handed down following a conviction by a jury and a sentence handed down following a conviction pursuant to a plea of guilty.

¶ 22. Since we are dealing with a criminal statute, and criminal statutes are to be strictly construed, I give to the defendant the benefit of the paradox which is created by a strict construction of section 47-7-33(1) to cases of armed robbery where the defendant pleads guilty. A fair and common sense reading of section 47-7-33(1), as it applies to armed robbery cases where the defendant pleads guilty, is that the prohibition on suspending the sentence in cases where life imprisonment is the maximum penalty which may be imposed, does not apply.

¶ 23. For the reasons expressed, I concur with the majority that the circuit judge possessed the power to suspend a portion of Hayes’s sentence for armed robbery.

BRIDGES, P.J., JOINS THIS SEPARATE WRITTEN OPINION.

      . It is also not debatable that requiring a jury to first pass on the sentence in cases where a plea of guilty has been offered would discourage guilty pleas and would be practicably unworkable.


author: GRIFFIS, J.,

text:
    Robert COX a/k/a Pig, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-01925-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2004.
    Richard Burdine, Columbus, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. On July 16, 2003, Robert Cox was convicted of the sale of cocaine and sentenced to eighteen years in the custody of the Mississippi Department of Corrections and five years of post-release supervision. Cox was also ordered to pay a fine of $5,000.

¶ 2. Cox filed a motion for judgment notwithstanding the verdict or in the alternative a new trial. The trial court denied this motion. On appeal, Cox argues that the trial court erred in denying his motion for JNOV or in the alternative a new trial since an exchange of drugs was not shown and the confidential informant was not thoroughly searched.

STANDARD OF REVIEW

¶ 3. We must consider all of the evidence 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. We may reverse only where the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty. Gleeton v. State, 716 So.2d 1083, 1087 (Miss.1998) (overruled on other grounds by Miss. Transp. Comm’n v. McLemore, 863 So.2d 31 (Miss.2003)).

ANALYSIS

¶ 4. Cox contends that the trial court erred in denying his motion for JNOV and, in the alternative, for a new trial on the basis that the jury’s verdict was contrary to the overwhelming weight of the evidence. Cox argues that the videotape introduced by the prosecution did not show cocaine being exchanged between the parties.

¶ 5. Recently, in Bullins v. State, 868 So.2d 1045, 1046 (Miss.Ct.App.2004), the defendant was charged with and convicted of the sale of cocaine. After the trial court denied his motion for JNOV and new trial, Bullins appealed claiming that the videotape did not show the drug exchange. Id. At trial, the narcotics agent testified that he searched the informant and the car they were using for drugs. Id. The narcotics agent identified Bullins as the person who sold the cocaine and a videotape was shown that revealed the cocaine in Bullins’ hand briefly. Id. at 1046-47. However, there was no audiotape of the drug transaction due to low batteries. Id. at 1047. Upon review, this Court held that the evidence supported the jury’s findings and affirmed the trial court’s decision convicting Bullins of the sale of cocaine. Id. at 1048.

¶ 6. Here, as in Bullins, the narcotics agent and the confidential informant gave the jury an eyewitness account of the drug transaction. They identified Cox as the person who sold the drugs. A videotape and audiotape of the transaction was admitted into evidence. Accepting as true all the evidence favorable to the State, we conclude that the evidence supports the jury’s findings. Thus, this argument is without merit.

¶ 7. Cox also contends that the narcotics agent did not thoroughly search the confidential informant prior to the transaction. However, the trial transcript indicates that the confidential informant was properly searched. The narcotics agent testified that he searched the confidential informant for drugs, paraphernalia, and weapons and then wired him with recording equipment. As a result, we find an adequate search was conducted.

¶ 8. When the evidence is conflicting the jury will be the sole judge of the credibility of witnesses. Kircher v. State, 753 So.2d 1017, 1029(¶ 56) (Miss.1999). After hearing all evidence, the jury returned a guilty verdict. In viewing the evidence in the light most favorable to the verdict, we do not find that the trial court erred in denying Cox’s motion for JNOV or in the alternative a new trial.

¶ 9. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF EIGHTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS’ POST-RELEASE SUPERVISION AND FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, BARNES AND ISHEE, JJ., CONCUR.