text:
    Terry Lamar STEWART, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01847-COA.
    Court of Appeals of Mississippi.
    June 15, 2004.
    Rehearing Denied Sept. 7, 2004.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Terry Lamar Stewart was convicted in the Circuit Court of Jackson County of capital murder and sentenced to life in prison without parole. Aggrieved by his conviction and sentence, Stewart appeals to this Court and raises the following five issues.

ISSUES PRESENTED

I. Were Stewart’s due process rights violated by the three-year delay from the time of his arrest until his trial?

II. Did the trial court commit reversible error by denying Stewart’s motion to suppress statements made to the police?

III. Did the trial court commit reversible error by allowing Stewart to be tried and convicted by an unsworn jury?

IV. Did the trial court err by refusing to allow Simeon Dykes to testify regarding his plea bargain of manslaughter?

V. Was the evidence presented sufficient to convict Stewart of capital murder?

STATEMENT OF FACTS

¶ 2. The record reflects that during the evening hours of Friday, July 8, 1998, Stewart along with a friend, Simeon Dykes, met Ralph Clayton Bourg, who was later the victim, at a bar in Pascagoula, Mississippi, called Third and Short. The men left Third and Short and went to another bar called Thunders. Stewart was not allowed inside Thunders because he did not have identification. Dykes and Bourg proceeded inside Thunders to continue drinking. After several hours passed, Dykes and Bourg left Thunders after they purchased some beer to take with them. They picked up Stewart and went out to The Point, a secluded location on the beach of the Mississippi Gulf Coast in Pascagoula. Dykes and Bourg began to fight and punch each other. Stewart jumped on Bourg and began stabbing him with a knife. Stewart and Dykes left Bourg at The Point after Dykes stole his wallet. Bourg’s body was found at The Point by a man running along the beach the following morning. Bourg had been stabbed several times in his neck and chest area. Bourg’s empty wallet was discovered inside Dykes’ car.

¶ 3. Dykes and Stewart were jointly indicted for capital murder in violation of Mississippi Code Annotated Section 97-3-19(2)(e) (Rev.2000). Dykes pled guilty to the lesser offense of manslaughter. Stewart was convicted of capital murder and sentenced to life without parole. Stewart’s motion for a new trial, or in the alternative a JNOV, was denied by the trial court. From that order, Stewart now appeals to this Court.

ISSUES PRESENTED

I. WERE STEWART’S DUE PROCESS RIGHTS VIOLATED BY THE THREE YEAR DELAY FROM THE TIME OF HIS ARREST UNTIL HIS TRIAL?

¶ 4. Stewart claims that his fundamental due process rights were violated by the three-year delay from the time of his arrest until his trial. Stewart was arrested on July 11, 1998, indicted on September 22, 1998, and his trial began on August 8, 2001. He specifically states that he is not raising the Sixth Amendment right to a speedy trial argument on appeal but that he was denied due process because of the delay. Since Stewart does not raise the Sixth Amendment argument, we will not discuss the merits of that claim.

¶ 5. The record reflects that Stewart’s trial was continued seven times with three continuances being agreed to by both the State and the defense. The other four were requested by Stewart’s trial counsel. Since Stewart has asserted that his claim is not a denial of a speedy trial but a denial of due process, he limits the issue to pre-indictment delay. The case of De La Beckwith v. State, 707 So.2d 547, 569 (¶ 77) (Miss.1997), provides the analysis when a defendant claims a due process violation because of delay. To sustain a claim that a due process violation has occurred, the defendant must prove: (1) that the pre-indictment delay caused actual prejudice and (2) the delay was an intentional device by the government to obtain a tactical advantage over the defendant. Id. Stewart’s claim does not fit the description of De La Beckwith because his claim does not involve a pre-indictment delay. Stewart complains of the three-year delay after his arrest and indictment but before his trial. Therefore, the analysis of De La Beckwith and its progeny is inapplicable to Stewart’s claim.

¶ 6. Stewart also argues that his access to the courts was limited because he could not object to the seven continuances made on his claim. Stewart also claims that he was denied an opportunity to call a hearing on his two motions for relief due to the delay of his trial. A prisoner is entitled to either access to the courts to prepare and file legal documents or adequate assistance from persons legally trained to do so. Parisie v. State, 848 So.2d 880, 884(¶ 9) (Miss.Ct.App.2002). If he receives either his rights have been protected. Id. Stewart’s claim of denial of access to courts is without merit because he was appointed counsel to represent him. The record also indicates that Stewart filed several pre-trial motions on his own behalf. Stewart was not denied access to the court. This issue is without merit.

II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY DENYING STEWART’S MOTION TO SUPPRESS STATEMENTS MADE TO THE POLICE?

¶ 7. Stewart asserts that the trial court erred by denying his motion to suppress statements he made to the police following his arrest. Stewart claims that the statements should have been excluded because he was denied his right to an initial appearance within forty-eight hours of arrest as provided by Rule 6.03 of the Uniform Rules of Circuit and County Court.

¶8. When this Court reviews a trial court’s ruling on a suppression hearing, we must determine whether the trial court’s finding is supported by substantial evidence considering the totality of the circumstances. Reid v. State, 825 So.2d 701, 702(¶ 5) (Miss.Ct.App.2002). The admissibility of evidence lies within the trial court’s discretion and will only be reversed if this discretion is abused. Crawford v. State, 754 So.2d 1211, 1215(¶7) (Miss.2000). “The discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence.” Reid, 825 So.2d at 702(¶ 5) (quoting Johnston v. State, 567 So.2d 237, 238 (Miss.1990)).

¶ 9. Stewart was arrested at approximately 4:00 a.m. on July 11, 1998 and was given Miranda warnings about thirty minutes later. The record reflects that Stewart signed a Miranda waiver form at 4:28 a.m. on July 11, 1998. After Stewart signed the form, he gave a statement to police. At no time did Stewart ask for an attorney or invoke his right to remain silent. Three days later, Stewart initiated a conversation with the police regarding the killing of Bourg. Stewart told the police that he needed to clear up some things he said during the first statement. Stewart signed another Miranda waiver form before he spoke to police. During this statement, Stewart mentions that Dykes said he was “gonna roll this guy [Bourg].” Stewart also recalled that Dykes took Bourg’s wallet. During the suppression hearing, the trial judge found beyond a reasonable doubt that Stewart was given his Miranda warnings and freely, voluntarily and intelligently gave the first statement. The trial judge found that Stewart initiated the second conversation with police, was given Miranda warnings and freely, knowingly, intelligently and voluntarily made the second statement.

¶ 10. Uniform Circuit and County Court Rule 6.03 states the following in pertinent part: “Every person in custody shall be taken, without unnecessary delay and within 48 hours of arrest, before a judicial officer or other person authorized by statute for an initial appearance.” Stewart claims that his statements should have been suppressed because he was not given an initial appearance until July 15, 1998. Stewart relies on the case of Abram v. State, 606 So.2d 1015 (Miss.1992), to support his argument. In Abram, the court held the “failure to provide the initial appearance reversible since, as a consequence, Abram gave a confession in the absence of, and in violation of, his right to counsel. Such an error could hardly be deemed harmless, since the conviction of Abram for capital murder was based entirely on his confession.” Abram, 606 So.2d at 1029.

¶ 11. However, two subsequent cases limit the applicability of Abram to Stewart’s. claim. The supreme court recently held that a Rule 6.03 violation does not automatically create a Fourth Amendment violation. Lawrence v. State, 869 So.2d 358 (¶ 12) (Miss.2003). Also, in Jones v. State, 841 So.2d 115, 132 (¶47) (Miss.2003), the court held:

It is well established that the failure to provide an initial appearance for an accused within the time provided is not, of itself, a reason to suppress a confession. ... [T]his Court found that a violation of Rule 6.03 alone will not result in the suppression of evidence or reversible error where the defendant was informed of his rights and made a knowing and voluntary waiver.

¶ 12. Stewart’s reliance on Abram is misplaced because Abram did not sign a waiver form and Stewart did. Also, the court in Abram based its decision to. reverse the conviction on the fact that Abram’s conviction was based solely on his incriminating statement. Stewart was informed of his rights to remain silent and to representation when he was given Miranda warnings prior to his statements to police. Stewart ■ signed two waiver forms stating that he understood his rights and did not wish to assert them. In accordance with Jones, the trial court did not commit reversible error by admitting Stewart’s statements.

III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY ALLOWING STEWART TO BE TRIED AND CONVICTED BY AN UN-SWORN JURY?

¶ 13. Stewart asserts that his conviction should be reversed because he was tried and convicted of capital murder by an unsworn jury. Stewart argues that the jurors in his case should have been sworn according to Mississippi Code Annotated Section 13-5-71 (Rev.2002), the petit juror oath, and Section 13-5-73 (Rev. 2002), the jurors’ oath for capital murder cases. A review of the record does not reveal that an oath was given to the jury; however, the sentencing order states that the jury was duly sworn. In Bell v. State, 360 So.2d 1206, 1215 (Miss.1978), the supreme court found no reversible error where the record did not reflect that the jury was specially sworn. The court held, in such a situation, there exists a rebutta-ble presumption that the trial judge properly performed his duties. Id. Also, when the judgment states that the jury was properly sworn it is presumed that the trial judge performed his duties. Woulard v. State, 832 So.2d 561, 567 (¶24) (Miss.Ct.App.2002). The failure of the court to specifically swear the jury in a capital case is waived where no objection is made by the defendant until the verdict is rendered. This issue cannot be raised for the first, time on appeal. McMillan v. State, 191 Miss. 59, 61, 2 So.2d 823, 824 (1941) (citing Hill v. State, 112 Miss. 375, 383, 73 So. 66, 67 (1916)).

¶ 14. Stewart did not object to the issue of the unsworn jury until his trial was completed and a verdict was rendered. Therefore, Stewart has procedurally waived his claim. His claim also fails on the merits because the sentencing order clearly states that the jury was duly sworn. Stewart did not present sufficient evidence to overcome the presumption that the trial judge properly performed his duties.

IV. DID THE TRIAL COURT ERR BY REFUSING TO ALLOW SIMEON DYKES TO TESTIFY REGARDING HIS PLEA BARGAIN OF MANSLAUGHTER?

¶ 15. Stewart asserts that the trial court erred by refusing to allow his co-indictee, Simeon Dykes, to offer testimony regarding his plea bargain of manslaughter. Dykes and Stewart were jointly indicted for capital murder based upon the killing of Bourg in the commission of a robbery. Dykes pled guilty to the lesser offense of manslaughter while Stewart went to trial on the capital murder charge. At trial, Stewart called Simeon Dykes as a defense witness. Stewart wished to ask Dykes questions regarding his guilty plea to manslaughter as a means of proving that Stewart was also guilty of manslaughter, not capital murder. The State objected to Dykes testifying about his guilty plea and sentence on direct examination. After considering arguments from both sides, the trial judge ruled that Dykes could not testify about his guilty plea and sentence during Stewart’s case-in-chief.

¶ 16. The record reflects that Dykes was allowed to testify about the events that took place on the night Bourg was killed. He told the jury that Stewart stabbed Bourg and that he took Bourg’s wallet. The jury heard evidence on Stewart’s theory of the case and defense. On appeal, Stewart is contesting only the exclusion of evidence regarding Dykes’s guilty plea to manslaughter.

¶ 17. The admissibility of evidence is within the sound discretion of the trial judge. Crawford, 754 So.2d at 1215(¶ 7). The decision to admit or exclude evidence will not be reversed absent abuse of discretion. Id. The trial judge ruled that according to Stewart v. State, 662 So.2d 552 (Miss.1995), the testimony about the guilty plea was inadmissible on direct examination by Stewart. “Federal and state appellate courts have found the admission of a co-conspirator’s plea of guilty, while incompetent as substantive evidence of the defendant’s guilt, may be admissible for other purposes.” Clemons v. State, 732 So.2d 883, 890 (¶ 30) (Miss.1999) (quoting United States v. Medley, 913 F.2d 1248, 1257-58 (7th Cir.1990)). In Wallace v. State, 466 So.2d 900, (1985), our state supreme court held that the State’s questioning of a defense witness about a prior guilty plea was not reversible error because the plea was used in rebuttal to impeach the credibility of the witness and not as substantive evidence for the defendant. It is Stewart’s purpose for offering the plea that determines its admissibility.

¶ 18. This was not a situation where Dykes was called as a State’s witness and Stewart sought to use the guilty plea as a method of impeachment during cross-examination. Nor is it a situation similar to Wallace where Dykes was called by Stewart and the State introduced the plea as impeachment evidence. In either of those situations, the guilty plea would be admissible as relevant evidence which might affect Dykes’ credibility in the eyes of the jury. Stewart, 662 So.2d at 563. Here, Stewart wanted to take advantage of Dykes’ plea to a lesser charge of manslaughter and use it as substantive evidence that he did not commit capital murder. The use of Dykes’s plea for this purpose was improper and the trial court did not commit error by excluding such testimony.

V. WAS THE EVIDENCE PRESENTED SUFFICIENT TO CONVICT STEWART OF CAPITAL MURDER?

¶ 19. Our standard of review regarding challenges to convictions based on the sufficiency of the evidence is well-settled. The Mississippi Supreme Court has stated:

[T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the defendant’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury.

Muscolino v. State, 803 So.2d 1240, 1242 (¶ 10) (Miss.Ct.App.2002) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). We reverse a conviction when the evidence, as to an element of a crime, is such that reasonable and fair-minded jurors could only find the accused not guilty. Id.

¶20. Stewart argues on appeal that the evidence presented at trial was not sufficient to support a guilty verdict for capital murder. Specifically, Stewart contends that there was no evidence that Bourg was killed in the commission of a robbery by him. Stewart was convicted of violating section 97-3-19(2)(e) (Rev.2000) of the Mississippi Code which states:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies.

Robbery is defined by statute as: “Every person who shall feloniously take the personal property of another in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.” Miss.Code Ann. § 97-3-73 (Rev.2000).

¶ 21. The record reveals that the jury members heard that Stewart and Dykes met Bourg at a bar called Third and Short. Bourg was bragging about having lots of money and was buying expensive drinks. The men left Third and Short and went to another bar called Thunders to continue drinking. Stewart was not allowed into Thunders because he had lost his identification. Dykes and Bourg proceeded into Thunders. After many hours of drinking, Dykes and Bourg left the bar after buying two six-packs of beers to take with them. They picked up Stewart who had been at Dykes’ house where he was living at the time. The three men went to a secluded area of the beach called The Point. As they got out of the car, Dykes said to Stewart, “I’m gonna roll this guy [Bourg].” Dykes and Bourg got into an argument which caused Dykes to punch Bourg several times in the head. Stewart, who had a knife in his possession, starting kicking Bourg and stabbing him. Dykes admitted that he stole Bourg’s wallet. Stewart and Dykes left Bourg at The Point with six stab wounds which were fatal. Stewart threw the knife used to stab Bourg out the window of Dykes’ car into the water.

¶ 22. Stewart claims that there was insufficient evidence that he participated in the robbery of Bourg and therefore he cannot be guilty of capital murder. Stewart’s argument hinges on the fact that Dykes actually took the wallet. The jury heard testimony that when Dykes and Stewart got into Dykes’ car, Stewart said to Dykes, “I got him good. The blade went all the way through. He’s not so tough now.” Stewart searched through Bourg’s wallet looking for money. No money was found in the wallet, but the men tried to hide the wallet in a sock in Dykes’ car. When reviewing the evidence in the light consistent with the verdict and giving the State all favorable inferences which may be drawn from the evidence, this Court finds that a reasonable juror would find Stewart guilty. This issue is without merit and we affirm the conviction and sentence of the trial court.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO JACKSON COUNTY.

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


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Daniel Clyde KNIGHT, Jr. a/k/a Daniel C. Knight, Jr. a/k/a Danny Knight, Appellant v. CITY OF ABERDEEN, Appellee.
    No. 2003-KM-01603-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2004.
    Mose Lee Sudduth, Columbus, attorney for appellant.

      Robert H. Faulks, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. The Municipal Court of the City of Aberdeen found Danny Knight guilty of driving under the influence, first offense. Knight appealed the conviction to the Circuit Court of Monroe County where he was also found guilty in a non-jury trial. The circuit judge sentenced Knight to two days’ incarceration in the Monroe County jail, with such sentence suspended, upon condition that Knight not violate any laws or statutes of the State of Mississippi. The circuit judge also sentenced Knight to 180 days of unsupervised probation and fined him $1,000, plus costs and assessments. Additionally, Knight was ordered to attend and complete an alcohol safety education program.

¶ 2. Feeling aggrieved by this conviction and sentence, Knight filed this appeal wherein he challenges the sufficiency of the evidence undergirding his conviction.

¶ 3. We find the evidence sufficient to support Knight’s conviction. Consequently, we affirm his conviction as well as his sentence.

FACTS

¶4. On the evening of July 5, 2001, James Huffman, was traveling north on Highway 45 toward Aberdeen. While in route, he encountered a red Chevy pickup truck, also traveling north. As he followed behind the truck, Huffman noticed that the truck was weaving periodically across the centerline of the highway. Huffman attempted to pass the truck, but the truck continued to veer closely to the centerline of the highway. Consequently, Huffman abandoned his efforts to overtake the truck. Huffman then called 911 and reported the truck and its tag number.

¶ 5. Soon after Huffman’s call to 911, the Aberdeen Police Department’s dispatcher was notified that a caller had reported that a red pickup truck, which was coming into Aberdeen from Highway 45, needed to be checked out because it was swerving on the highway. Officer Robert Russell, a patrolman for the Aberdeen Police Department, departed the station to look for the red pickup truck with the specific tag number that the dispatcher had provided.

¶ 6. Officer Russell first observed, on Highway 45 South in the area of Chestnut Street, a pickup truck matching the description given by the dispatcher. Officer Russell followed the pickup truck and observed the truck make a wide right turn onto Meridian Street. The pickup then ran off the right side of the road, moved back onto the road and across the center-line of the street.

¶ 7. After seeing the truck make these series of maneuvers, Officer Russell activated his blue lights and proceeded to stop the vehicle on Chestnut Street just off South Meridian Street. After the truck came to a stop, Officer Russell went to the window on the driver’s side. He immediately smelled a strong odor of alcohol emanating from that window. When Officer Russell asked the driver for the driver’s license and proof of insurance, the driver of the vehicle just looked at Officer Russell, although he later gave his license to Officer Russell. The driver was identified as Danny Knight. He did not have any proof of insurance with him at the time of the stop.

¶ 8. When Officer Russell inquired whether Knight had had anything to drink, Knight responded that he had drunk a six pack of beer since leaving work at 5:00 p.m. and had drunk his last beer about twenty minutes prior to his being stopped by the officer. Officer Russell asked Knight to exit the truck. As Knight complied, Officer Russell smelled a strong aroma of alcohol gushing from Knight’s truck. Also, as Knight exited the truck, he stumbled slightly and grabbed the bed of the truck to stabilize himself. Officer Russell administered a portable Intoxilyzer test to Knight. The test was positive for alcohol consumption. Knight was arrested and transported to the Aberdeen Police Department. While at the station, Knight refused on two occasions to give a breath sample for analysis by an Intoxilyzer machine.

¶ 9. Knight was charged with driving under the influence, first offense and, as previously noted, was first convicted of the charge in the Municipal Court of Aberdeen. He was also convicted in a de nova bench trial by the Circuit Court of Monroe County, leading to this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. Knight argues that the Circuit Court of Monroe County should have dismissed the DUI charge against him because the City of Aberdeen failed to prove the charge beyond a reasonable doubt.

¶ 11. In challenges to the sufficiency of evidence, the standard of review requires that the evidence be considered in the light most favorable to the City and that all credible evidence consistent with Knight’s guilt be accepted as true. McRee v. State, 732 So.2d 246, 249(¶9) (Miss.1999). In reviewing a claim of-insufficient evidence, an appellate court must review all of the evidence in the light most consistent with the lower court’s ruling. See Smith v. State, 802 So.2d 82, 85(1110) (Miss.2001). The prosecution is given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. “If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required.” Mangum v. State, 762 So.2d 337, 341(¶ 11) (Miss.2000).

1Í 12. Knight cites Richbourg v. State, 744 So.2d 352 (Miss.Ct.App.1999), for his argument that the evidence was insufficient to support the conviction. However, the case is clearly distinguishable.

If 13. In Richbourg, the defendant was making a trip from Kansas City, Missouri to Panama City, Florida and had an accident, in Monroe County, Mississippi, with another vehicle. Id. at 353-54(¶ 2). Several hours before the accident, the defendant had stopped in St. Louis for lunch and had one beer. Id. at 354(¶3). A highway patrol officer arrived at the scene of the accident and observed some ruptured cans of beer in the trunk of the defendant’s vehicle and smelled alcohol on the person of the defendant. Id. Based on these perceptions, the patrol officer conducted a horizontal gauge nystagmus (HGN) test on the defendant, and thereafter, based on the results of the HGN test, asked the defendant to blow into the officer’s portable alcosensor. Id. at (¶ 4). The defendant refused to comply. As a result of his refusal to comply, the defendant was transported to the county jail. Id. At the jail, the defendant refused to submit to an Intoxilyzer test. As a result, he was charged with driving under the influence and was convicted in two inferior courts. Id.

¶ 14. On appeal, we reversed and rendered the lower courts’ decisions. Id. at 357(¶ 16). We pointed out that the arresting officer admitted that he did not witness the defendant driving the vehicle, that the smell of alcohol in and of itself did not indicate how much alcohol the defendant had consumed, that the officer did not administer any tests to the defendant, other than the HGN test, to determine intoxication, and that the officer did not observe the defendant stumble or stagger around. We also noted that the officer did not observe any slurring of speech by the defendant and that the defendant was not argumentative with the officer. Id. at 856(¶ 10).

¶ 15. Unlike Richbourg, there was strong evidence in this case that Knight was driving under the influence of alcohol. We see no need to recount the facts here. It is sufficient to say that, based on the facts as recited earlier in this opinion, the circuit judge was justified in finding Knight guilty as charged. Therefore, we find no merit in Knight’s contention that the evidence was insufficient to support his conviction of driving under the influence, first offense.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF TWO DAYS’ INCARCERATION IN THE MONROE COUNTY JAIL, WITH SENTENCE SUSPENDED, PAYMENT OF $1,000 FINE AND 180 DAYS OF UNSUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The impact of the two vehicles apparently caused a forty-five pound dumbbell, which the defendant kept in the trunk, to rupture the cans of beer.


author: BRIDGES, P.J., IRVING, J.,

text:
    In the Interest of J.D.W., a Minor.
    No. 2003-CA-01580-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2004.
    Charles E. Miller, McComb, attorney for appellant.
    John Damond Ready, attorney for ap-pellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. A youth court petition was filed against J.D.W., a minor, on October 15, 2002, in the Youth Court of Lawrence County, Mississippi. A hearing was held before the youth court referee and J.D.W. was adjudicated delinquent and sent to Columbia Training School to remain until he is twenty. He was thirteen at the time. The motion for reconsideration was denied and this appeal was taken.

¶ 2. On appeal, the following issues were raised

ISSUE ONE: YOUTH COURT ERRED IN NOT FOLLOWING THE MISS. RULES OF CIVIL PROCEDURE IN HEARING MOTIONS THAT WERE FILED ON JANUARY 2003.
ISSUE TWO: YOUTH COURT ERRED IN NOT FOLLOWING MISS. YOUTH COURT STATUTES IN NOT CONDUCTING DISPOSITION HEARING.
ISSUE THREE: YOUTH COURT ERRED IN FINDING [J.D.W.] GUILTY WHEN NO EVIDENCE OR TESTIMONY WAS PRESENTED TO FORM A REASONABLE DOUBT. ISSUE FOUR: YOUTH COURT
ERRED' IN ALLOWING [J.D.W.] TO BE TAKEN INTO CUSTODY BY BEING SHACKLED IN THE PRESENCE OF A 25-30 MEMBER AUDIENCE DURING THE COURT PROCEEDINGS.

¶ 3. The appellee, the Youth Court of Laurence County, did not file an appellee’s brief, but rather filed “Appellee’s Motion to Dismiss and Appellee’s Response to Brief for Appellant.” In the motion, the appellee contends that the hearing was held before the youth court referee, not a youth court judge, and that pursuant to Mississippi Code Annotated § 43-21-111(5) a rehearing by the judge shall be allowed if any party files a written motion for rehearing within three days after notice of the referee’s order.

¶ 4. The referee’s “fill in the blank” order of commitment was signed and filed on May 21, 2003, and the motion for reconsideration was filed on May 22, 2003. In the motion J.D.W., through his court-appointed attorney, set forth specific objections to the order of commitment, including all the issues raised on appeal, and specific facts were stated in support of these issues. On June 19, 2003, an order was entered and signed by “YOUTH COURT JUDGE.” The signature is illegible so it is impossible for this Court to determine exactly who signed this order. What is clear, however, is that the record before this Court clearly contradicts the position taken by the youth court.

¶ 5. Particularly troubling is the lack of any transcript of any hearing in this case, although the designation of record clearly asked that it be included. All we have before the Court are the documents filed with the chancery clerk and such facts as we have taken from the motions filed by the appellant and from the appellant’s brief.

FACTS

¶ 6. J.D.W. was accused of making a threatening phone call “by calling a school employee a bitch, making reference to a bomb threat which happened the day before and demanding money all in violation of Sec. 97-29-45 of the MS Code.” The complaint was filed on October 15, 2002.

¶ 7. Several motions were filed on January 7, 2003: motion to suppress evidence; motion to dismiss: probable cause; motion to suppress illegal search of vehicle; motion to suppress illegally obtained tangible evidence; motion to suppress illegally obtained statements; and motion to dismiss indictment. The last motion alleged a denial of due process and insufficient evidence. The record also contains subpoenas for witnesses and for telephone records. The telephone records are included in the record on appeal. There are also numerous motions for continuance.

¶ 8. The order of commitment signed by the referee was a form order which recited no facts, and the order denying the motion to reconsider also gives no indication of any factual basis for the court’s decision. In the motion for reconsideration the following was stated:

Motions were filed on January, 2003. The court refused to hear motions. In March 2003, a hearing was held against [J.D.W.], The deputy sheriff testified that he had no direct evidence that [J.D.W.] committed the act. D.R. was called, testified that he did not know who made the calls. The testimony of J.W. and [J.D.W.] revealed that they did not make the calls nor they see anyone else who made the calls.
After the hearing the youth judge continued the case. [J.D.W.j’s attorney moved for dismissal, which the judge denied. The prosecutor and police office approached D.R. insisting that he change his testimony or they would prosecute him. He refused to change his testimony, therefore, he appeared for a hearing. D.R. testified and the youth court judge immediately adjudicated him guilty and sentenced [J.D.W.] and D.R. to training school.
The youth court judge did not allow a disposition hearing. The youth court judge required that the child be shackled in the presence of everyone present. There were over 25-30 people present in the audience observing the child being shackled.

¶ 9. The facts alleged in this motion and revived in the appellant’s brief have not been disputed or challenged by anything before the Court.

DISCUSSION

• ¶ 10. This Court in Cooley v. Merrell, 788 So.2d 840, 841-42 (¶4) (Miss.Ct.App. 2001) stated:

We must address the question of what to do when the opposing side does not properly and timely file a brief. When “it is not apparent to us from the record, in the light of the appellant’s brief, that the judgment is in fact correct,” we have several options regarding what course of action to pursue. W.T. Raleigh Co. v. Armstrong, 165 Miss. 380, 140 So. 527 (1932). Raleigh further states that appellate courts have the discretion, on default of the appellee, to either (1) reverse based on both a complicated or voluminous record and a well-written brief, thoroughly stating the facts and correct citations and applications of law, “so that the brief makes out an apparent case of error.” Id. at 527. This Court is not required to scour the record in order to find a plausible argument for the appellee, “but will accept appellant’s brief as confessed and will reverse.” Id. Or the court may (2) affirm if the record easily avails itself to examination, and upon examination we readily detect a convincing and valid basis or ground upon which we may safely affirm, thus disregarding the default of appellee. Id. at 528.
However, the case will be reversed and remanded when this Court is presented with only one side of the argument to review, an insufficient record and a judgment that has not clear support from the record.

¶ 11. The clear conclusion is that this Court must reverse this case. The issues raised by the appellant have not been addressed and there is definitely an insufficient record. Neither the referee’s order nor the order of the youth court provides us with any support for the adjudication of the appellant as a delinquent. We cannot say with any certainty that the appellant was provided due process or that there is any evidence to support the charges against him. The case is reversed and remanded to the Lawrence County Youth Court with directions that, if the court determines that the charges against the appellant should be revived, that a full hearing before the youth court judge should be held and that this hearing should be of record.

¶ 12. THE JUDGMENT OF THE YOUTH COURT OF LAWRENCE COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. THE COSTS OF APPEAL ARE ASSESSED TO LAWRENCE COUNTY.

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

IRVING, J.,

Concurring in Part and Dissenting in Part.

¶ 13. I agree that we are unable to discharge our appellate oversight responsibilities given the state of the record before us. However, I do not believe that the case should be reversed and remanded. I believe that we ought to hold our decision in abeyance pending a supplementation of the record. I would enter an order to that effect rather than reverse and remand. Therefore, I respectfully dissent from that portion of the majority opinion which remands and permits a full hearing on remand.

¶ 14. I see no need for a remand because proceedings already have been held on the act of delinquency allegedly committed by J.D.W. The remand is not based on an erroneous evidentiary ruling in those proceedings; it is predicated upon the fact that the appellate record is insufficient to allow us, as a reviewing court, to say with confidence that the trial record supports the judgment. As already stated, I agree with this assessment. However, it is the responsibility of the appellant to provide a record which will support his allegations of error. The majority points out that the appellant designated as a part of his record on appeal the transcript of the hearing before the youth court judge. This may be true, yet, it remained his responsibility to see that the transcript was included. He failed to do so. Consequently, I find no basis for holding anyone else responsible for the absence of the transcript.

¶ 15. Since a brief was not filed on behalf of Lawrence County or the State and since the transcript of the proceedings in the trial court was not included in the appellate record, I would order a supplementation of the record and resolve the issues based on the allegations of error contained in the appellant’s brief, consistent with our standard of review when the appellee fails to file a brief.

LEE, P.J., AND GRIFFIS, J., JOIN THIS SEPARATE WRITTEN OPINION.


author: MYERS, J.,

text:
    Ricky RYALS, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-00499-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2004.
    Ricky Ryals, appellant, pro se.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Ricky Ryals was indicted for capital murder in the Circuit Court of Forrest County. He pled guilty and was sentenced to life imprisonment. Ryals filed a motion for post-conviction relief that was summarily dismissed by the trial judge. Ryals now appeals to this Court and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED IN ACCEPTING THE PLEA BECAUSE THE STATE PRESENTED NO EVIDENCE OF GUILT
II. WHETHER THE PLEA WAS VOLUNTARILY AND INTELLIGENTLY ENTERED
III. WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

STATEMENT OF FACTS

¶2. Ryals was indicted in the Circuit Court of Forrest County for capital murder pursuant to Mississippi Code Annotated Section 97 — 3—19(2)(e) (Rev.2000). He pled guilty and received a life sentence to be served in the custody of the Mississippi Department of Corrections pursuant to Mississippi Code Annotated Section 97-3-21(b) (Rev.2000).

¶ 3. Almost three years later, Ryals filed a motion to “vacate and set aside guilty plea” in the sentencing court arguing that the State failed to offer any evidence of guilt. The trial court treated Ryals’ motion as a petition for post-conviction relief and summarily dismissed it pursuant to Mississippi Code Annotated Section 99-39-11(2) (Rev.2000). The trial judge ruled that since the only issue was the State’s alleged insufficiency of evidence, Ryals effectively waived this matter when he knowingly and voluntarily pled guilty to the charge. Aggrieved by this result, Ryals perfected the present appeal.

¶ 4. Ryals contends that the “sole” issue was whether the State’s offer of proof was sufficient for the court to accept his plea. However, his petition and appellate brief allude to the fact that his plea was invalid and that he received ineffective assistance of counsel. Therefore, out of an abundance of caution, we will analyze all three issues.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ACCEPTING THE PLEA BECAUSE THE STATE PRESENTED NO EVIDENCE OF GUILT

¶ 5. “When this Court reviews a trial court’s decision to deny a petition for post-conviction relief, it will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Williams v. State, 872 So.2d 711, 712(¶2) (Miss.Ct.App.2004). “However, where questions of law are raised the applicable standard of review is de novo.” Id.

¶ 6. With his first issue, Ryals argues that, although he pled guilty, the evidence was insufficient to convict him. In Swift v. State, 815 So.2d 1230, 1234 (¶ 13) (Miss.Ct.App.2001), this Court stated:

The law is well settled that when properly entered and accepted, “[a] guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt, (emphasis added).

¶ 7. Assuming that Ryals’ guilty plea was valid, he waived his opportunity for a jury to review the sufficiency of evidence in his case. See Steele v. State, 845 So.2d 758, 759(¶ 4) (Miss.Ct.App.2003); Smith v. State, 845 So.2d 730, 733(¶ 6) (Miss.Ct.App. 2003). Therefore, we turn to the next issue.

II. WHETHER THE PLEA WAS VOLUNTARILY AND INTELLIGENTLY ENTERED

¶ 8. Ryals alleges that when the trial court asked for his plea he stated that he did not commit the crime. Our rules of criminal procedure require the following when a defendant is arraigned and wishes to plead guilty:

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

URCCC 8.04 A.

¶ 9. “Pursuant to this rule Sutton’s pleas may only be considered as having been voluntarily made if he was properly advised by counsel and had a full understanding of the consequences of his actions.” Sutton v. State, 873 So.2d 120, 123 (¶ 15) (Miss.Ct.App.2004).

¶ 10. At his plea hearing, Ryals stated that he was competent to enter a plea of guilty. Ryals also stated that he understood the nature of the charge against him, that he did, in fact, commit capital murder, and that he was aware of the maximum and minimum penalties that accompany it. Finally, Ryals stated that he was aware that by pleading guilty he was giving up certain constitutional rights, such as a right to a trial by jury.

¶ 11. A careful review of the record does reveal that Ryals denied killing his pregnant wife. Ryals stated that he participated in his wife’s murder but his brother was the one who actually beat her with a bat and slit her throat. Ryals stated that his intention was to have his wife murdered because his girlfriend wanted her out of the picture.

¶ 12. This statement, however, was made during the sentencing phase of the bifurcated hearing in an attempt to offer mitigating evidence. The guilt phase had already been completed during which Ryals effectively entered a guilty plea. At the sentencing phase, the trial court out of an abundance of caution, asked Ryals if he was the same Ricky B. Ryals who had • earlier that day signed the Entry of Guilty Plea and Agreed Waiver of the Jury in which Ryals waived a jury for the purpose of sentencing, to which Ryals answered that he was. The judge asked again if Ryals affirmed and ratified that he had signed the waiver to be effective in the sentencing phase and Ryals said that he did. The judge then asked Ryals and his attorneys if they sought a continuance of the sentencing phase and each replied that they did not. The judge then commenced the sentencing phase.

¶ 13. “In a request for post-conviction relief, a trial court is entitled to place great weight on the testimony given at a plea hearing.” Id. at (¶ 17). This is because “[statements made under oath in open court have a strong presumption of truthfulness.” Jackson v. State, 872 So.2d 708, 711 (¶ 11) (Miss.Ct.App.2004). Since Ryals is merely seeking to contradict the testimony that was given during his plea hearing, we find no error.

III. WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 14. Ryals argues that he received ineffective assistance of counsel because his attorneys failed to adequately review the State’s physical evidence against him. Ryals also argues that his attorneys told him to plead guilty in order to avoid the death penalty.

¶ 15. In analyzing this issue, we apply the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires us to answer two questions. First, whether counsel’s overall performance was deficient. Id. at 687, 104 S.Ct. 2052. Second, whether or not the deficient performance, if any, prejudiced the defense. Id. The burden of proof falls on Ryals to prove both prongs and counsel’s performance should be measured by a totality of the circumstances. Smith, 845 So.2d at 731(¶2). Finally, “there is a strong, yet rebuttable, presumption that the actions by the defense counsel were reasonable and strategic.” Id.

¶ 16. The record reveals that defense counsel was present at the time of the plea hearing. Ryals stated to the judge in open court that he was satisfied with counsel’s performance. In fact, there is absolutely no evidence that would support Ryals’ theory that defense counsel was deficient or that defense counsel forced Ryals to plead guilty. The bare allegation that defense counsel did not want a death penalty trial is insufficient, in and of itself, to constitute a claim of ineffective assistance of counsel. Steen v. State, 868 So.2d 1038, 1040 (¶ 17) (Miss.Ct.App.2004). More importantly, there is also no evidence that the result would have been different, but for counsel’s unprofessional errors. Consequently, Ryals has failed to prove either prong under Strickland. As a result, we find no error.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Mark Dane ROGERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01814-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2004.

      Edmund J. Phillips, P. Shawn Harris, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. A Scott County jury convicted Mark Dane Rogers of grand larceny. The trial judge sentenced him to five years in the custody of the Mississippi Department of Corrections. Rogers now appeals and asserts that the trial court erred in refusing to grant certain jury instructions, in failing to grant his motion for a directed verdict or new trial, and in failing to quash the indictment due to the State’s failure to provide him a preliminary hearing.

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

. FACTS

¶ 3. On August 10, 2001, Mark Rogers went to Fisherman’s Corner convenience store and purchased a pack of cigarettes. Diane Jennings Palm, a cashier at the store, testified that she rang up the purchase, and as the cash register drawer opened, Rogers reached over the counter and into the drawer. Palm further testified that Rogers took money out of the register and left. Palm stated that she then called the police and notified the store’s owner, who instructed her to continue to run the register. Palm further testified that no additional money was taken out of the register other than that which Rogers had taken.

¶ 4. Dorothy Simpson, owner of Fisherman’s Corner, testified that she arrived at the store after the robbery, that she counted the money in Palm’s register and determined that it was short $280.74. On cross-examination, Simpson admitted that no one counted the register immediately after the theft, and that Palm continued to run the register for three additional hours before the money in the register was counted.

¶ 5. Rogers was arrested two days after the incident. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Denial of Jury Instruction

¶ 6. Rogers argues that the trial court erred in refusing to grant a peremptory instruction and an instruction informing the jury that it cannot place any significance on the fact he chose not to testify. We discuss the denial of the peremptory instruction in our discussion of the sufficiency of the evidence issue. The refused instruction regarding the proper treatment by the jury of Rogers’s failure to testify is as follows:

The court instructs the jury that the jury must not consider the fact that the Defendant did not testify in this case as evidence against him nor does this fact arouse even a suspicion that he is guilty, but the State must prove him guilty beyond every reasonable doubt; if the State has not done this, then the jury must find the Defendant “Not Guilty.”

Rogers also contends that the Fifth Amendment to the U.S. Constitution requires a trial judge to instruct the jury, if requested by a criminal defendant, that the jury may not draw an adverse inference from a defendant’s failure to testify.

¶ 7. The State maintains that, since the jury was given an instruction identical to the one which Rogers requested, no error occurred as a result of the court’s refusal to grant the instruction requested by Rogers. In support of its argument, the State directs our attention to Watson v. State, 521 So.2d 1290 (Miss.1988).

¶ 8. In Watson, the defendant alleged error in the court’s failure to grant an instruction similar to the one which was refused in this case. The Mississippi Supreme Court held that although the defendant was entitled to the instruction, another instruction given by the court substantially covered the subject matter which was addressed by the refused instruction.

¶ 9. Here, the trial judge gave an instruction during voir dire that was similar to the one approved in Watson. The judge instructed potential jurors that:

Mark Dane Rogers is presumed to be innocent. It is sort of like a coat or garment that he is clothed with. He is legally clothed with that presumption of innocence. And that presumption stays with him throughout the course of the trial until and unless the State of Mississippi overcomes that presumption of innocence there. Another constitutional aspect is that the defendant is not required to take the stand and testify. This is a very cherished legal right that is embedded in our constitutional form of government. The defendant would not take the stand because it possibly might incriminate himself — he might incriminate himself. And if he does not take the stand — he may. Trial strategy may call for that. But, if he does not, it is no inference of his guilt. And the— you as jurors would be instructed that would be no inference of guilt.

¶ 10. We find that the forgoing instruction was sufficient and substantially covered the matter addressed by Rogers’s instruction. Therefore, this issue lacks merit.

(2) Motion for Directed, Verdict or Peremptory Instruction and for a New Trial

¶ 11. Rogers next contends that the trial court erred in failing to grant his motion for a directed verdict, peremptory instruction, and motion for a new trial. He maintains that the State’s failure to prove beyond a reasonable doubt that the amount of money stolen was $250 or more limited the jury to finding him either innocent or guilty of nothing more than petit larceny.

¶ 12. The standard of review for a denial of a directed verdict and peremptory instruction are identical. Hawthorne v. State, 835 So.2d 14, 21(¶31) (Miss.2003) citing Coleman v. State, 697 So.2d 777, 787 (Miss.1997). A motion for a directed verdict and request for a peremptory instruction challenge the legal sufficiency of the evidence. Id. citing McClain v. State, 625 So.2d 774, 778 (Miss.1993). “On the issue of legal sufficiency, reversal can only occur when evidence of one or more of the elements of the charged offense is such that ‘reasonable and fair-minded jurors could only find the accused not guilty.’ ” Id. citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987).

¶ 13. We find that the State offered ample evidence in support of Rogers’s conviction. The cashier, Palm, testified that she observed Rogers take money from the cash register. Further, the store’s owner testified that after the robbery, her accounting showed that the register was short by $280.74. The owner also testified to the procedure used for balancing the cash register. She stated that at the end of each shift, the cashiers put the money into a safe along with a cash register tape that reflects the total sales for that shift, and if the money in the safe matched the amount on the register tape, the register was balanced. Therefore, accepting the evidence in the light most favorable to the State, the jury was justified in finding Rogers guilty of grand larceny.

¶ 14. We next address Rogers’s contention that he should have been granted a new trial.

In reviewing the decision of the trial court on a motion for a new trial, [an appellate court] views all of the evidence in the light most consistent with the jury verdict. A motion for a new trial addresses the weight of the evidence and should only be granted to prevent an unconscionable injustice. Accordingly, we reverse and remand for a new trial only upon reaching the conclusion that the trial court has abused its discretion in failing to grant a new trial.

Daniels v. State, 742 So.2d 1140, 1143(¶ 11) (Miss.1999).

¶ 15. The facts and the permissible inferences which may be drawn from those facts strongly point toward Roger’s guilt. We have reviewed the evidence presented by the State in support of Roger’s conviction, and we are not convinced that the jury’s verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Consequently, we find that the trial judge did not abuse his discretion in denying Roger’s motion for a new trial.

(8) Indictment

¶ 16. Rogers last argument is that the court erred in failing to quash the indictment due to the State’s failure to provide him a preliminary hearing. He submits that he was arrested on August 11, 2001, but was not indicted until October 3, 2001. Rogers further asserts that he was incarcerated throughout this time but was not provided a preliminary hearing even though he requested one.

¶ 17. The State counters that once Rogers was indicted, this issue became moot. We agree. “Once the indictment occurs, even [if] a preliminary hearing [has] not been provided, that question becomes moot.” Hogan v. State, 730 So.2d 100, 101(¶ 3) (Miss.Ct.App.1998). Since “[t]he purpose of a preliminary hearing is to [determine] whether there is probable cause to believe that the defendant has committed an offense, [t]he indictment by a grand jury removes the purpose of the hearing and none need thereafter be conducted.” Id. (citing Mayfield v. State, 612 So.2d 1120,1129 (Miss.1992)).

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY OF CONVICTION OF GRAND LARCENY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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

      . At the time the charges were brought against Rogers, in order to be convicted of grand larceny the value of the item taken had to be $250 or greater. The larceny statute has since been amended to require a value of $500 or greater. The amendment had not occurred when Rogers was tried and convicted.