author: LEE, J.,

text:
    Danny Wayne RUSSELL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01762-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.
    Rehearing Denied July 23, 2002.
    Certiorari Denied Dec. 5, 2002.

      John W. Chapman, Brandon, attorney for appellant.
    Office of the Attorney General By Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., LEE, and CHANDLER, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. In May 2000, a Rankin County Circuit Court jury convicted the appellant, Danny Wayne Russell, of kidnaping and aggravated assault. He was subsequently sentenced to serve eighteen years in jail for the kidnaping conviction and eighteen years in jail for the aggravated assault conviction, said sentences to run concurrently. Russell’s motion for judgment notwithstanding the verdict was denied, and he now appeals to this Court. On appeal, he argues that the State failed to prove he was guilty of aggravated assault and kidnaping, that the trial judge committed reversible error in granting the State’s peremptory instruction, that he was not afforded a speedy trial, and that he was denied effective assistance of counsel. We review the merits of these claims and find this matter must be reversed and remanded on the aggravated assault count and affirmed on the remaining issues.

FACTS

¶ 2. Danny Wayne Russell and Jerri-McDaniel dated and were briefly engaged in early 1999. On or about April 29, 1999, shortly after McDaniel ended their relationship, Russell telephoned McDaniel and asked if he could come to her home in Pearl to retrieve some personal items, to which McDaniel consented. Upon Russell’s arrival, McDaniel opened the door to let Russell in, at which point Russell grabbed her and forced her inside the kitchen and shocked her with a stun gun. After threatening to kill McDaniel, Russell forced her back to her bedroom where he shocked her again. Russell and McDaniel talked at length while they were in the bedroom, all the while Russell had the stun gun. After talking with Russell for approximately one hour, McDaniel told Russell she would resume dating him, which she later testified she said only to get him to leave. Once Russell left, McDaniel immediately called the police who located and pursued Russell, eventually chasing him back to McDaniel’s house where he was arrested. McDaniel went to a hospital to report the events, and a videotape taken of McDaniel reveals bruising and scratches on her back, which resulted from the continued shocks she incurred at Russell’s hands.

DISCUSSION OF THE ISSUES

I. THE STATE FAILED TO MEET ITS BURDEN OF PROVING THE DEFENDANT WAS GUILTY OF AGGRAVATED ASSAULT BY FAILING TO PROVE THAT A STUN GUN IS A DEADLY WEAPON AND THAT THE VICTIM DID INDEED SUFFER SERIOUS BODILY HARM AS A RESULT OF THE DEFENDANT’S ACTS;

II. THE COURT ERRED IN GRANTING JURY INSTRUCTION S-1.

¶ 3. We recognize that the State is responsible for proving each element of the crime beyond a reasonable doubt. Hall v. State, 644 So.2d 1223, 1229 (Miss.1994). The elements of aggravated assault are:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....

Miss.Code Ann. § 97-3-7 (Supp.2001). Russell argues that the State failed to prove that a stun gun is a deadly weapon or is likely to produce death or serious bodily harm. The State presented and the court accepted Dr. Steven Hayne as an expert in the area of forensic pathology. Dr. Hayne testified as to the effects of electricity on the human body and gave his opinion concerning the potential effect a stun gun could have on the body. The defense offered Tim Smith Lyon as an expert to testify concerning the effects of stun guns as deadly weapons, and he testified concerning the mechanics of a stun gun and the use of such device in self-defense. The court found that although Smith Lyon was a firearms expert, he was not qualified to testify as an expert on stun guns. Thus, he was only permitted to testify as a lay witness.

¶ 4. The testimonies of both Dr. Hayne and Smith Lyon were informative, but neither person was qualified by the court as an expert to testify concerning whether a stun gun was indeed a deadly weapon or even a mechanism likely to produce death or serious bodily harm. However, we find that an expert was not needed to make such determination for the jury. We find that an average juror is familiar with the purposes for which a stun gun is used, namely to temporarily immobilize the victim. We refer back to the statutory definition of aggravated assault which states that a person is guilty of this crime if he attempts to cause or does cause serious bodily injury to another person or by attempting to cause such injury with a deadly weapon or other means likely to produce death or serious bodily harm. Miss.Code Ann. § 97-3-7(2) (Supp.2001). The videotape which showed the scratches and bruises McDaniel suffered due to Russell’s actions provided the jury sufficient evidence to determine whether or not Russell intended to seriously harm her. Thus, we find that even if the stun gun is not found to be a deadly weapon, whether or not the repeated use of a stun gun can cause serious bodily injury is an issue the jury can resolve without the necessity of expert testimony on the point.

¶ 5. We also recognize that a serious error occurred in the judge’s decision to give the State’s jury instruction S-l which reads:

If you find from the evidence in this case, beyond a reasonable doubt, that on or about the 29th day of April, 1999, in Rankin County, Mississippi, the Defendant Danny Wayne Russell, did:
1. Unlawfully, feloniously, knowingly and intentionally,
2. attempt to cause serious bodily injury to Jerri McDaniel, a human being, by repeatedly shocking her with a stunn [sic] gun, a deadly weapon;
Then you shall find the defendant guilty of the crime of aggravated assault....

(emphasis added). We look to our standard of review concerning jury instructions: “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Coleman v. State, 697 So.2d 777, 782 (Miss.1997). The instruction listed above is a peremptory instruction since it instructs the jury that a stun gun is indeed a deadly weapon. We find that the judge erred in giving this instruction, and for this reason we reverse and remand.

III. DID THE STATE MEET ITS BURDEN OF PROVING THE DEFENDANT WAS GUILTY OF KID-NAPING?

¶ 6. We look next to Russell’s argument concerning whether the evidence was sufficient to support the kidnaping conviction. Our standard of review concerning the sufficiency of the evidence states:

The credible evidence .'.. consistent with 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. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Edwards v. State, 797 So.2d 1049 (¶ 14) (Miss.Ct.App.2001). We first note that, although Russell asserts to the contrary, statutes and case law in Mississippi have failed to recognize asportation as a necessary element of kidnaping. Holly v. State, 671 So.2d 32, 43 (Miss.1996). To the contrary, a person is guilty of kidnaping if he or she “shall without lawful authority forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be secretly confined or imprisoned against his or her will.... ” Miss. Code Ann. § 97-3-53 (Supp.2001). To more easily understand the breakdown of this particular code section, we look to a previous case which has outlined the statute in a more clear form:

In Hughes v. State, 401 So.2d 1100 (Miss.1981), this Court restated the statute to clearly set forth the elements of kidnapping: [sic]
Every person who shall, without lawful authority
(1) forcibly seize and confine any other;
(2) or shall inveigle or kidnap any other
(3) with intent
(a) to cause such person to be secretly confined or imprisoned in the state against his will,
(b) or to cause such other person to be sent out of this state against his will,
(c) or to cause such other person (1) to be deprived of his liberty, (2) or in any way held to service against his will ...
Under the statute the [S]tate must prove that a person, without lawful authority either (1) forcibly seized and confined another person, or (2) inveigled or kidnapped another person, intending to subject such person to either (a), (b), or (c) above.

Evans v. State, 725 So.2d 613 (¶ 209) (Miss.1997). The language of the indictment charges that Russell did “willfully, unlawfully, feloniously, forcibly seize and confíne [McDaniel] with the intent to cause the said victim to be secretly confined or imprisoned against her will,” which is (1) and (a) above. There is no question that Russell used force to confine the victim by virtue of his use of the stun gun, but whether McDaniel was “secretly confined” or “imprisoned against her will” requires further discussion. See Edwards v. State, 797 So.2d 1049(¶ 21) (Miss.Ct.App.2001) (Only one or the other must be proven.).

¶ 7. We find the case Smiley v. State, 798 So.2d 584 (Miss.Ct.App.2001), disposi-tive on this matter. In Smiley, the defendant went to the home of Sandy Coleman, his ex-wife. Id. at (¶ 2). Coleman opened the door and found Smiley standing with a shotgun. Id. They wrestled as he forced his way into the home. Id. As Smiley sat on the couch with the shotgun in his hand, he explained to her and to her boyfriend, Keith Albright, who was also present that he was going to take Coleman’s car in exchange for money she owed him. Id. at (¶ 3). Coleman and Albright both testified that while Smiley was in the home, they did not feel free to leave, plus Coleman testified that she feared she would be killed that night. Id. at (¶ 5). Upon arresting Smiley, the police found in Smiley’s pocket a small knife, a larger knife, shotgun shells, duct tape and rope. Id. at (¶ 4). The trial court noted that “all the evidence put forth by the State, especially the duct tape and cord could certainly be inferred by the jury that Smiley had the intent to secretly confine them and imprison them against their will.” Id. at (¶ 23). We affirmed, finding the jury had the prerogative to determine whether or not evidence was sufficient to support the conviction of kidnaping. Id.

¶ 8. In the present case, immediately upon entering McDaniel’s home, Russell grabbed McDaniel, threatened her and shocked her with the stun gun. McDaniel testified that everywhere she went, Russell followed closely, holding the stun gun on her. McDaniel testified that she felt she was fighting for her life and that she did not feel free to leave, since he had threatened to kill her and she firmly believed he would. McDaniel testified that Russell kept a little bag with him at all times, including the day of this incident, which contained inhalers needed for his asthmatic condition. The police seized the bag upon arresting Russell and found the inhalers in the bag, along with duct tape, rope, handcuffs, and other personal items. Officer Brady Wiebe of the Pearl Police Department found the bag and he testified that, in his experience, the presence of these items indicated to him, “that someone was fixing to be tied up and kidnapped or hurt.”

¶ 9. As stated earlier, Russell’s challenge to his kidnaping conviction implicates the sufficiency of the evidence. Giving the prosecution all favorable inferences and accepting all credible evidence consistent with Russell’s guilt as true, we are permitted to reverse if we find that reasonable and fair-minded jurors could only find Russell not guilty. Edwards, 797 So.2d at (¶ 14). As occurred in Smiley, we find that the evidence in the present case is sufficient to sustain Russell’s conviction on the kidnaping charge, and we affirm.

IV. WAS RUSSELL’S STATUTORY RIGHT TO A SPEEDY TRIAL VIOLATED?

¶ 10. With regard to a person’s statutory right to a speedy trial, the relevant Mississippi statute reads: “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss.Code Ann. § 99-17-1 (Supp.2001) (emphasis added). As well, both the Mississippi and United States Constitutions insure the defendant a right to a speedy trial, though such calculation is made from the date of arrest rather than arraignment. See Miss. Const, art. 3 § 26; U.S. Const, amend. VI and XIV; Adams v. State, 583 So.2d 165, 167 (Miss.1991). Russell intermingles his argument that his statutory right was violated with a recitation of the Barker factors, which concern a constitutional violation. See Barker v. Wingo, 407 U.S. 514, 529-30, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We review this issue de novo and conduct separate analyses concerning statutory and constitutional rights, yet arrive at the same conclusion: Russell was not denied his right to a speedy trial.

a. Statutory right

¶ 11. The supreme court case of Sharp v. State, 786 So.2d 372 (Miss.2001), addresses the procedure for determining whether or not one’s statutory right to a speedy trial has been violated.

The 270-day rule analysis is very fact specific and hinges upon which side (prosecution or defense) caused the delays. Section 99-17-1 states that “[u]nless good cause be shown, and continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Thus, the reason for the delay is as important as who is responsible.

Sharp, 786 So.2d at (¶ 5). Russell was not arraigned, but we do know the date he waived his arraignment, which was June 25, 1999. For our purpose, we use this date to start the “270 day clock.” On August 5, 1999, approximately two weeks prior to the original trial date, an order was entered granting Russell’s ore tenus motion to allow him to see a psychologist, Dr. Gerald O’Brien. On that date the clock stopped running, since, “[t]ime set aside for a psychiatric evaluation does not weigh against the State ... this delay resulted from [the defendant’s] motion for psychiatric evaluation and ... the time is not attributable to the State because the clock was tolled pending the evaluation.” Elder v. State, 750 So.2d 540(¶ 16) (Miss.Ct.App.1999). The evaluation eventually took place on December 15, 1999. The record does not contain Dr. O’Brien’s report, so we have no indication as to the date such report was concluded; however, for the purposes of our calculations, we can conclude that the earliest possible date Dr. O’Brien’s evaluation could have been complete would have been December 15, 1999, so we start the clock again on that date. The clock stops again on May 22, 2000, which was the date the trial was set. Russell requested and was granted a continuance until May 30, 2000, so this time does not count against the State. We total the days which passed while the clock was “running,” and arrive at a total of 198 days from arraignment to trial, which is below the 270-day statutory time limit and does not amount to a violation of Russell’s statutory right to speedy trial.

b. Constitutional right

¶ 12. “[T]he right to a speedy trial is subject to a knowing and intelligent waiver. This Court will ‘indulge every reasonable presumption against the waiver of a constitutional right.’ Even when a defendant fails to assert his right to a speedy trial he does not permanently waive this right.” Berry v. State, 728 So.2d 568(¶ 3) (Miss.1999) (citations omitted). We find no indication that Russell made any knowing and intelligent waiver of this right, so we find it appropriate to address the issue of whether or not Russell suffered a violation of his constitutional right to a speedy trial.

Although complying with the 270-day rule is suggestive of whether the constitutional speedy trial right has been violated, it is not dispositive. There are different considerations. First, the constitutional right to a speedy trial attaches at the time of arrest rather than arraignment. Whereas the 270-day analysis is an exact mathematical computation of days, the constitutional right is a weighing test based upon the Barker factors, which “are (1) the length of delay, (2) the reasons for the delay, (3) assertion of the right to a speedy trial, and (4) prejudice to the defense.” Furthermore, “[a] delay in excess of eight months between arrest and trial establishes ‘presumptive prejudice’ sufficient to trigger analysis under Barker.”

Sharp, 786 So.2d at (¶ 15) (citations omitted). In reviewing this matter, we utilize a similar analysis as used in the discussion concerning statutory rights, but apply the Barker factors and use the date of arrest rather than the date of arraignment as a starting point for calculating the passage of time

¶ 13. First, concerning the length of delay for constitutional purposes, from the date of arrest, April 29,1999, to the date of trial, May 31, 2000, approximately 395 days passed. This was 155 days beyond the eight month time period which we have said is presumptively prejudicial. Thompson v. State, 773 So.2d 955(¶ 7) (Miss.Ct.App.2000). This weighs in Russell’s favor. Finding such presumption, we move on to the second factor to find the reason for the delay.

¶ 14. As noted in the previous discussion, all of the delays noted were due to Russell’s actions; the 131 days which lapsed between the date of the order for psychological evaluation and the time of the actual exam was counted against him since he requested such evaluation, plus the continuance allowing a seven-day delay for trial in May 2000 was granted at his request and is counted against him. We interchange the date of arrest with our previous calculation noted in footnote one which utilized the date of arraignment and arrive at a total delay time of 255 days. Even though we have found that the total delay time minus the time attributable to Russell’s actions exceeds the eight month presumption, we look to the remaining Barker factors and weigh them cumulatively to arrive at a conclusion.

¶ 15. The third Barker factor concerns Russell’s assertion of his right to speedy trial. We note in the clerk’s papers that on April 6, 2000, Russell filed a motion to dismiss for violation of his right to a speedy trial. In denying such motion, the trial judge noted that Russell only alleges a statutory violation; however, he did preserve his right to appeal on this issue by virtue of his filing such motion. This weighs in Russell’s favor.

¶ 16. The fourth factor concerns prejudice resulting to Russell. The supreme court has stated:

Prejudice of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system .... The prejudice prong of the Barker analysis encompasses interference with a defendant’s liberty and actual prejudice in defending his case.

State v. Magnusen, 646 So.2d 1275, 1284 (Miss.1994). In his brief, Russell claims that the delay in trial resulted in an extensive loss of his freedom since he had been incarcerated since the date of the charge, that witnesses on his behalf had left the jurisdiction (although he fails to say who such witnesses were), and he had suffered great anxiety due to the charges against him. We recognize that Russell was incarcerated from the date of his arrest continuing to the date of trial; however, we also note that a bond was set for his release until trial, conceivably permitting him to leave prison should he so choose. Concerning actual prejudice he suffered in attempting to defend his case, Russell has stated no specific details concerning such prejudice suffered. Russell undoubtedly suffered anxiety in knowing he was being charged with serious crimes; however, we also note that, “[w]hile anxiety of the accused is a cause of concern, where there is no other prejudice asserted on the defendant’s part, this factor has little weight in his favor.” Estes v. State, 782 So.2d 1244 (¶ 13) (Miss.Ct.App.2000). We find this fourth factor weighs strongly in the State’s favor for the purposes of this analysis.

¶ 17. We finally arrive at a balancing of these four factors and find that when we balance all four factors, we find that the delay “overage” was approximately two weeks, all delays were attributable to Russell’s acts, and we cannot find that Russell was harmed by the delay from his arrest to this trial; thus, we find no violation of Russell’s constitutional right to a speedy trial. We affirm on this issue.

V. WAS RUSSELL DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 18. Russell finally claims that he was denied effective assistance of counsel. We look to the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in evaluating claims of ineffective assistance of counsel. “The two-pronged Strickland test instructs us to determine: ‘(1) whether counsel’s performance was deficient, and, if so, (2) whether the deficient performance was prejudicial to the defendant in the sense that our confidence in the correctness of the outcome is undermined.’ ” Washington v. State, 620 So.2d 966, 970 (Miss.1993). We find no indication that Russell’s counsel was ineffective.

Judicial scrutiny of counsel’s performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy”.... In short, defense counsel is presumed competent.

Bailey v. State, 760 So.2d 781 (¶ 8) (Miss.Ct.App.2000) (citations omitted) (emphasis added).

¶ 19. Russell argues in part that he was prejudiced because his original counsel withdrew, that his attorney failed to file certain motions Russell thought were warranted and failed to object when Russell thought he should have, and failed to offer an acceptable witness to qualify as an expert on stun guns, among other things. The record shows that his attorney zealously represented him at the trial and continuously objected to the State’s submissions of evidence and witness testimonies. We conclude that the other matters about which Russell complains fall into the category of “sound trial strategy.” Even if Russell has found examples of less than responsible decisions, we recognize that there is no constitutional right to er-rorless counsel. Hill v. State, 749 So.2d 1143(¶ 18) (Miss.Ct.App.1999). Since his attorney was presumed competent and Russell has failed to show anything to rebut this presumption, and importantly has failed to show he suffered any prejudice, we find no merit to his claim of ineffective assistance of counsel. We affirm on this issue.

¶ 20. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION ON COUNT I, KID-NAPING AND SENTENCE OF EIGHTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED; AND COUNT II, AGGRAVATED ASSAULT IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . Following is a more extensive evaluation of relevant dates and passages of time: From the date of arraignment (June 25, 1999) to the date the psychological evaluation was ordered (August 5, 1999), 40 days passed. From the date of the August 5, 1999 order for evaluation until the actual date of examination on December 15, 1999, 131 days passed, which time was tolled and is not counted against the State, since Russell requested the evaluation. From the date of the conclusion of examination (Dec. 15, 1999) until trial date (May 22, 2000), 157 days passed; however, we can subtract seven days from the 157 total since Russell asked for a continuance and the trial was actually held on May 30, 2000. We calculate the total days against the State (40 + 157 = 197), and the total days against Russell (131 + 7 = 140). To find the total delay time, we subtract the total delay time attributable to Russell (140 days) from the total time from arraignment to trial, which was 338 days, and arrive at a total delay time of 198 days, which is less than the 270-day statutory time limit.

      . We convert months to days, reasoning that each month contains approximately 30 days (8 months x 30 days/month = 240 days).

      . Refer to footnote number one which lists those significant dates we use in arriving at the following results;
      Date of arrest to date that Russell’s requested psychological evaluation was ordered: 97 days;
      Date of psychological evaluation order to actual date of examination: 131 days;

        Date of conclusion of examination until trial date: 150 days;
      Continuance granted per Russell’s request pushing trial date back: 7 days
      Total days against the State (97 + 150 = 247); Total days against Russell (131 + 7 = 140); Total delay time = 255 days (subtract the total delay time attributable to Russell (140 days) from the total time from arrest to trial (395 days)).


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Eddie James WOULARD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-00917-COA.
    Court of Appeals of Mississippi.
    May 21, 2002.
    Rehearing Denied Aug. 6, 2002.
    Certiorari Denied Dec. 5, 2002.

      Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., BRIDGES, and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Eddie James Woulard was convicted of depraved heart murder and possession of a firearm by a convicted felon in the Circuit Court of Wayne County, Mississippi. Woulard was sentenced to serve a term of life for murder and five years for possession of a firearm by a felon, the sentences to be served consecutively. Feeling aggrieved by the conviction against him, Woulard filed this appeal and alleges four assignments of error. First, Woulard alleges that the trial court erred when it allowed a seven year old witness to testify. Next, he argues that the trial court erred when it allowed Officer Alfred Hill to testify in violation of the rule of sequestration. Woulard further argues that the trial court erred when it allowed Officer Hill to testify concerning incriminating statements made by Woulard. Finally, he argues that the trial court failed to administer the appropriate oaths to the jury

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Eddie James Woulard lived in a home with his wife, Melody, her mother, Monique Parker Terrell, Monique’s husband, Antwan Terrell, and Melody’s three young children, Raven, Shaquita, and Reshod. On or about November 7, 1999, Woulard was at home along with Monique, Antwan, and the three children. Antwan and Raven were watching television together when Woulard came home. Antwan and Woulard soon began to argue with each other. Raven left the room because she was frightened by the argument. She joined Melody and her siblings in her grandmother’s bedroom.

¶4. Raven and the others continued to hear Woulard and Antwan arguing with each other. They then heard a gunshot. Melody went into the room where the two men were and asked Woulard if he shot Antwan. Woulard answered yes and then left the house.

¶ 5. The ambulance driver who was called to the house contacted the sheriffs office to notify the police of the shooting. Officer Martin Milton was in the dispatcher’s. office and answered the telephone call. The ambulance driver informed Officer Milton that he was en route for a possible shooting victim. He gave Officer Milton the address and asked if he would meet him there. Officer Milton agreed and he quickly left to meet the ambulance. He spoke with Melody and from the information she provided him, Officer Milton notified the other on-duty deputies of Wou-lard’s name, description and a possible destination.

¶ 6. Officer Alfred Hill proceeded to the suspected destination, Woulard’s sister’s home, and found Woulard there. After a brief conversation, Officer Hill arrested Woulard. He was later indicted and convicted of the crimes charged.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR IN ALLOWING RAVEN WILLIAMS TO TESTIFY?

¶ 7. Woulard argues that the trial court erred when it allowed Raven Williams, a seven year old child, to testify to the events that occurred on the day in question. He asserts that the court failed to make a proper determination as to the competency of Raven before she was allowed to testify. Woulard further argues that Raven’s competency should have been examined outside the presence of the jury and because the judge insisted on questioning Raven before the jury, he could not ask the “hard” questions because he would appear “mean.”

¶ 8. Any analysis challenging the competency of a witness begins with the assumption that every person is competent to give evidence, subject to certain exceptions based on considerations of policy unrelated to. the capacity of the witness to comprehend and relate relevant information. Barnett v. State, 757 So.2d 323(¶ 13) (Miss.Ct.App.2000). Whether a child is competent to testify is an issue that is largely within the discretion of the trial court. Burbank v. State, 800 So.2d 540(¶ 6) (Miss.Ct.App.2001).

¶ 9. Older case law indicates that before allowing a child witness to testify, the trial judge should determine that the child has the ability to perceive and remember events, to understand and answer questions intelligently, and to comprehend and accept the importance of truthfulness. Brent v. State, 632 So.2d 936, 942 (Miss.1994). However, in Bailey v. State, 729 So.2d 1255(¶ 20) (Miss.1999), the Mississippi Supreme Court determined that it was not necessary for a trial judge to conduct an individual voir dire of a witness of tender years. The court in Bailey stated the witness was asked preliminary questions by the State which did not go to the substance of the child’s testimony. Id. These questions were deemed sufficient for the trial judge to determine that the Brent standard had been met. Id.

¶ 10. In the case sub judice, the State and counsel for Woulard questioned Raven to determine her competency to testify. When questioned by the State, Raven testified in part as follows:

Q: Do you know the difference between truth and a lie?
A: (Nods affirmatively.)
Q: Okay. What would be a lie?
A: When you tell a story.
Q: Okay. Something that is not true?
A: (Nods affirmatively.)
Q: Did you and I talk about how important it is to tell the truth in this particular room?
A: Yes, ma’am.
Q: Okay. And did anybody tell you what to say?
A: No, ma’am.
Q: Can you tell this Judge and this Jury what happened at the trial that day truthfully?
A: Yes, ma’am.
Judge: Would you ask her about does she have a memory about the day of the incident, if she remembers that, and if she does, can she tell it?
Q: What the Judge was talking about is do you remember the day that this happened ... And will you be able to tell the Jury what happened?
A: I know some of it, but I don’t know all of it.
Q: Can you tell us about what you know about, what you saw and heard?
A: Yes, ma’am.

When questioned by counsel for Woulard, Raven testified in part as follows:

Q: Did anybody remind you about anything that happened that day?
A: No, sir.
Q: Okay. So, the day we’re talking about you’re going to tell us all about stuff that you saw?
A: Yes, sir.
Q: Do you remember things that you saw that day?
A: Some of it.
Q: Do you remember why you were over there that day?
A: My mama had to go to work.
Q: Do you know where that house is?
A: Yes, sir.
Q: Do you know whether or not — do you remember anybody telling you about what happened that day?
A: No, sir.

¶ 11. After questioning Raven a second time to determine that she had not been prompted by anyone, counsel for Woulard informed the court that any other questions would go to credibility. The trial judge determined that pursuant to Mississippi Rules of Evidence 601, Raven was competent to testify. He noted that she demonstrated a “present ability to remember events, to understand and answer questions intelligently and to comprehend and appreciate the importance of testifying truthfully.” This decision was well within the judge’s discretion and Woulard has failed to present any evidence to indicate that such a decision was an abuse of discretion.

II. DID THE TRIAL COURT ERR IN ALLOWING OFFICER HILL TO TESTIFY IN VIOLATION OF THE RULE OF SEQUESTRATION?

¶ 12. Woulard argues that the trial court erred in allowing Officer Hill to testify because he was present in the courtroom during the testimony of one of the other witnesses in violation of Mississippi Rule of Evidence 615, the exclusion or sequestration of witnesses. He maintains that Officer Hill’s testimony was necessarily colored because he heard Officer Martin testify and as such, the trial court should not have allowed him to testify.

¶ 13. It is well settled in Mississippi jurisprudence that when a violation of Rule 615 is alleged on appeal, this Court is limited to an abuse of discretion standard of review. Douglas v. State, 525 So.2d 1312, 1318 (Miss.1988). Reversal is not justified unless there is a showing of prejudice sufficient to constitute abuse of discretion on the part of the trial judge in not ordering a mistrial or not excluding testimony. Id.; Whittington v. State, 748 So.2d 716(¶ 19) (Miss.1999).

¶ 14. Rule 615 of the Mississippi Rules of Evidence states:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

The purpose of the rule is “to avoid witnesses ‘tailoring’ their testimony to fit testimony that has gone before.” Rochell v. State, 748 So.2d 103 (¶ 35) (Miss.1999) (quoting Douglas, 525 So.2d at 1317).

¶ 15. It is clear from the record that the State was not aware that Officer Hill was present in the courtroom while the trial was ongoing. Officer Hill was wearing plain clothes and had never met with the prosecutor before the day of trial. The court questioned the State as to the extent of Officer Hill’s testimony before he was allowed to take the stand. The State advised the court that it would not ask Officer Hill questions concerning the substance of Officer Martin’s testimony. The court stated that counsel for Woulard would have full-bore cross-examination and could question Officer Hill in detail about what he may have heard during Officer Martin’s testimony.

¶ 16. After a thorough review of the record, we can find no evidence that Woulard was prejudiced by the court’s decision to allow Officer Hill to testify. Hill’s testimony was brief and only repeated facts that had been previously admitted. Whenever a violation of the rule has occurred, the remedy lies within the court’s discretion. Rochell, 748 So.2d at (¶ 35). Remedies may include prospectively excluding the witness where prejudice will otherwise ensue; striking the witness’s testimony where connivance gave rise to the testimony; striking the witness’s testimony where the testimony gave rise to prejudice; or, most appropriately, allowing the other party to subject the witness to a “full-bore cross-examination” on the facts of the rule violation. Hughes v. State, 735 So.2d 238(¶ 77) (Miss.1999) (quoting Brown v. State, 682 So.2d 340, 349 (Miss.1996)).

¶ 17. The trial court ruled that the appropriate remedy was allowing Woulard a “full-bore cross-examination.” This decision was a proper exercise of the court’s discretion.

III. DID THE TRIAL COURT ERR IN ALLOWING OFFICER HILL TO TESTIFY TO INCRIMINATING STATEMENTS MADE BY WOU-LARD?

¶ 18. Officer Hill responded to Officer Martin’s call that Woulard may have gone to his sister’s after shooting Antwan. Officer Hill proceeded to that address and saw Woulard in the yard with his sister. Hill testified that Woulard was handing something to his sister. He stepped out of his car and told Woulard that he wanted to talk to him about a shooting. Hill stated that Officer Martin had informed him that Woulard was a suspect in a shooting and was presumed to be armed and dangerous. When Woulard started toward him, Officer Hill stated, “I want the gun.” Woulard answered, “I threw it in the river.”

¶ 19. Woulard claims that this statement should not have been admitted because Officer Hill had not issued him a Miranda warning before asking for the gun. Woulard argues that any conversation between a suspect and a police officer automatically qualifies as an interrogation. He further argues that he was in custody because Officer Hill was looking for him and wanted to question him.

¶ 20. Absent a knowing and intelligent waiver of rights, statements made by a suspect while under “custodial interrogation” are inadmissible at trial where prior to making the statements the suspect was not Miranda warned. Miranda v. Arizona, 384 U.S. 436, 444-45, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Tolbert v. State, 511 So.2d 1368, 1374 (Miss.1987). Firmly embedded in the jurisprudence of this state and many others are circumstances wherein Miranda never comes into play; circumstances which are by definition excluded from Miranda’s scope. Tolbert, 511 So.2d at 1375. “In a non-custodial setting where interrogation is investigatory in nature (general on-the-scene-investigation), Miranda warnings are not required in order that a defendant’s statements be admissible. Even in this setting, statements must be freely and voluntarily given in order to be admissible.” Porter v. State, 616 So.2d 899, 907 (Miss.1993) (citing Nathan v. State, 552 So.2d 99, 103 (Miss.1989)).

¶ 21. The issue in the case sub judice is whether Woulard was in custody when he made the statements and whether they were freely and voluntarily made. The test for whether a person is in custody is whether a reasonable person would feel he was in custody and depends upon the totality of the circumstances. Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996). The factors to be considered include “the place and time of the interrogation, the people present, the amount of force or physical restraint used by the officers, the length and form of the questions, whether the defendant comes to the authorities voluntarily, and what the defendant is told about the situation.” Id. The key point in determining whether a person is in custody as defined by Miranda is whether the person is deprived of his freedom of action in any significant manner and if he is aware of such a deprivation. Id.

¶ 22. Applying the above cited case law to the case at bar, it is clear that Woulard was not in custody. Officer Hill and Wou-lard were standing in Woulard’s sister’s front yard. The only people present were Woulard, Hill, and the sister. Officer Hill had not arrested Woulard, he had not been placed in handcuffs, and he was not even in close physical proximity to Officer Hill; in short, his freedom of action was not significantly restrained.

¶ 23. The circumstances in this case are similar to those presented in Hopkins v. State, 799 So.2d 874(¶ 8) (Miss.2001). In Hopkins, the court stated, “[b]efore he made the statements, Hopkins was not handcuffed or told he was under arrest by Sergeant Williamson or any other law enforcement officer present at the scene. Under these non-coercive conditions, we hold that Hopkins was not ‘in custody’ for Miranda purposes.... ” Also, in Norman v. State, 302 So.2d 254, 258 (Miss.1974), the court approved on the scene questions asked by an officer during the investigation of a shooting as actions taken in the interest of security. Officer Hill told Wou-lard that he wanted the gun as part of his on the scene investigation of the shooting and in the interest of safety. Hill had prior knowledge that Woulard was suspected in a shooting. Officer Hill’s statement was an action taken in furtherance of security and did not amount to custodial interrogation.

IV. DID THE TRIAL COURT ERR BY FAILING TO ADMINISTER THE PROPER OATHS TO THE JURY?

¶24. Woulard asserts that the trial judge failed to administer the proper oaths to the jury. It is not clear from the record when and how the jury was sworn. In Young v. State, 425 So.2d 1022, 1025 (Miss.1983), the Mississippi Supreme Court considered a case with very similar facts. As noted in Young, the beginning of the record does not indicate whether or not the jury was specially sworn. Id. However, the judgement does reflect that the jury was properly sworn. Id. The order states in pertinent part, “the Jury consisting of Cassandra McKenzie and eleven other Jurors, being duly sworn and impanelled .... ”

¶ 25. In Young, the court stated, “[t]he presumption is that the trial judge properly performed his duties ....” Id. (quoting Bell v. State, 360 So.2d 1206, 1215 (Miss. 1978)). Woulard has not presented sufficient evidence to overcome this presumption. As such, this assignment of error is without merit.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY, MISSISSIPPI OF CONVICTION OF COUNT I, MURDER AND SENTENCE OF LIFE AND COUNT II, POSSESSION OF A FIREARM BY A FELON AND SENTENCE OF FIVE YEARS TO RUN CONSECUTIVELY WITH COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. COSTS ARE ASSESSED TO WAYNE COUNTY.

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


author: IRVING, J.,

text:
    Joann CARMICHAEL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00297-COA.
    Court of Appeals of Mississippi.
    May 21, 2002.
    Rehearing Denied Aug. 27, 2002.
    Certiorari Denied Dec. 5, 2002.
    Richard A. Rehfeldt, Jackson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. Joann Carmichael was convicted in the Circuit Court of Leake County of the sale of cocaine. She has appealed and contends (1) that the trial court erred in giving the Sharplin instruction and requiring the jury to continue deliberating following an eleven to one deadlock, and (2) that the trial court erred in sentencing her in absentia. We reject Carmichael’s arguments and affirm the decisions of the trial court.

FACTS

¶ 2. The facts surrounding the sale of the cocaine are not relevant to the disposition of the issues raised in this appeal. It is sufficient to state that according to the State’s proof, Carmichael sold fifty dollars worth of cocaine to Jo Comans, a confidential informant working for the chief of police of the City of Carthage and the sheriff of Leake County. Further, the chief and sheriff, using binoculars, observed the transaction from a distance. Of course, Carmichael denies that any sale took place. In any event, during a two-day trial, a jury convicted Carmichael of selling cocaine. This appeal stems from what transpired during and after the trial on January 16-19, 2001.

¶ 3. On January 16, approximately one hour and twenty-six minutes after the jury was retired to deliberate, the jury was returned to the courtroom for what the trial judge called a status report. The foreman of the jury informed the judge that the jury was split eleven to one. It was approximately 5:10 p.m. when this occurred. The trial judge then sent the jury back to the jury room for further deliberations. Approximately fifty-three minutes later, the jury was returned again to the courtroom, and the trial judge inquired as to whether it had been able to reach a verdict. The foreman of the jury informed the court that it had not been able to do so, whereupon the court pondered available options but ultimately decided to give the Sharplin charge. After giving the Sharplin charge, the trial judge ordered the jury to continue deliberating but offered to have dinner brought in so they could eat and relax a bit before commencing further deliberations. In response to the court’s request for comment on the court’s offer, the foreman of the jury stated, “I don’t know if anything would change right now. We’ve been over everything.” Following the foreman’s comments, the trial judge retired the jury to the jury room for further deliberations. Approximately fourteen minutes later, the trial judge returned the jury to the courtroom for the third and final time and discharged the jury until 9:00 a.m. the following day. After the jury was discharged, the trial judge inquired of counsel for both the State and Carmichael as to whether either desired to place anything in the record. Neither did.

¶ 4. The following morning, January 17, the trial judge advised that he had received a call at home from Carmichael’s counsel who reported that Carmichael’s family had called and advised that Carmichael was having chest pains and had been transported to St. Dominic Hospital in Jackson. Following the court’s announcement regarding Carmichael’s whereabouts, the court asked Mr. Brooks if he had anything that he wanted to place in the record. Mr. Brooks responded in the negative. The bailiff was then directed to bring the jury into the courtroom so that the court could inquire if it had followed the court’s instructions given the previous evening when it was retired for the night. The bailiff returned and advised that the jury had already reached a verdict. At that point, Mr. Brooks moved for a mistrial. His motion was overruled.

¶ 5. At 9:16 a.m., the jury was brought into the courtroom, at which time the trial judge inquired as to whether it had followed the court’s instructions not to discuss the case with each other or family members. No juror indicated that he had failed to follow the court’s instructions. The jury was then retired to the jury room for further deliberations. Approximately twenty minutes later the jury announced that it had reached a verdict. After receiving the jury’s verdict and discharging the jury, the court continued the case pending receipt of a pre-sentence report and contact with Mr. Barnett, Carmichael’s counsel who was not present when the jury reported.

¶ 6. Two days later, on January 19, 2001, at approximately 1:35 p.m., the court reconvened for the purpose of sentencing Carmichael. She was not present, but her counsel did not object to the sentencing in her absence. He explained that he had told her on the morning of the previous day that she had been convicted and that she needed to report to the sheriffs office by 3:00 p.m. that day. She promised to do so but failed. He further explained that he had not heard from her since.

¶ 7. The trial judge found that Carmichael “wilfully, deliberately, and intentionally absented herself from the jurisdiction of the court” and sentenced her to twenty years in the custody of the Mississippi Department of Corrections and revoked her bond. A judgment was entered accordingly. Carmichael’s post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was denied, and this appeal ensued.

DISCUSSION AND ANALYSIS OF THE ISSUES

1. The Sharplin Instruction

¶ 8. Carmichael argues that, before the Sharplin charge may be given, there must be a finding by the trial judge of the likelihood that further deliberations would bring about a verdict. Carmichael asserts that this prerequisite was not met. Consequently, she argues, the trial judge erred in giving the instruction. On the other hand, the State argues that the issue is procedurally barred because Carmichael failed to object to the granting of the instruction. The State also argues that the giving of the instruction was proper under the circumstances.

¶ 9. We agree with the State that Carmichael did not object to the giving of the instruction. However, the record reflects that the trial judge, prior to giving the instruction, did not seek advice or comment from the attorneys nor did he give them an opportunity to be heard. The trial judge discussed openly the possible options available to him and thereafter immediately decided to give the instruction. Under these facts, we decline to procedurally bar consideration of the issue.

¶ 10. Having decided against the procedural bar, we also agree with the State’s second argument, that the giving of the instruction was proper. It is clear from the record that, at the time the instruction was given, the jury was deadlocked eleven to one. The eleven to one deadlock was made known when the jury was brought in for a status report after approximately an hour and a half of deliberations. At that time, the judge asked, “Do you feel relatively optimistic that you all can discuss further and work through this thing for a verdict?” The foreman answered, “Maybe.” The instruction was not read at this time; rather the jury was returned to the jury room for further deliberations. It was not until after an additional fifty-three minutes of deliberations that the trial judge gave the instruction.

¶ 11. Prior to giving the instruction, the trial judge did not inquire as to whether the split favored the prosecution or the defense. He made no comments which could reasonably be interpreted as giving his preference as to the outcome. He simply gave the instruction and inquired if the jury would like to have dinner before continuing its deliberations. As already observed, when the offer for dinner was made by the court, the foreman of the jury stated, “I don’t know if anything would change right now. We’ve been over everything.” Following the foreman’s comments, the record reflects the following:

BY THE COURT: All right as far as being hungry or anything, is that — I don’t know what time people usually eat. We eat at different times at night; but, if that is a factor, I want you to be comfortable, as far as not being hungry. As I said, I gave you the option about maybe coming back in the morning.
JUROR BROWN (JURY FOREMAN): Maybe.

Following the above colloquy, the jury was returned to the jury room. Approximately fourteen minutes later, after the court received a note from the jury, the court recessed until 9:00 a.m. the next day.

¶ 12. This Court finds, on these facts, that trial court did not err in giving the Sharplin instruction. Consequently, there was no abuse of discretion in denying Carmichael’s motion for a mistrial.

2. Sentencing in Absentia

¶ 13. Carmichael recognizes that, if she intentionally absented herself from the jurisdiction of the court, it was permissible, at the discretion of the trial court, for the court to proceed with sentencing in her absence. However, she argues that she did not knowingly and wilfully absent herself from court. She argues strenuously that she did not know about her sentencing date. Not surprisingly, the State argues that Carmichael, by her actions, waived her right to be present. In support of its position, the State cites McKnight v. State, 738 So.2d 312 (Miss.Ct.App.1999), which holds that the trial court may proceed in the absence of a defendant who voluntarily absents himself from the trial at any point after the trial begins. Id. at (¶ 5).

¶ 14. We are not persuaded by Carmichael’s protestations. Her trial counsel advised the court that he informed her that she had been convicted and that she should report to the sheriffs office the Thursday prior to the Friday when she was sentenced. While counsel did not state that he told her she was being sentenced on Friday, had she reported to the sheriffs office as she had been told, she would have known about her sentencing the following day. Moreover, trial counsel advised the court that he had no objection to the court proceeding with sentencing. The record reflects the following:

BY THE COURT: All right. You may have said it at the beginning, but let me just reinforce it. You make no objection, then, do you as far as the Court proceeding the sentencing without her presence here?
BY MR. BARNETT: No, sir.

¶ 15. As we have already observed, the trial judge found that Carmichael’s absence was intentional. Given her trial counsel’s statement to the court, we cannot say that this finding was clearly erroneous or without evidentiary anchor. In arriving at this conclusion, we are aware that Carmichael’s counsel was not under oath when he advised the court about his discussions with her. However, the trial court was entitled to rely upon his representations inasmuch as counsel is an officer of the court.

¶ 16. We agree with the State that, under the holding in McKnight and by the authority of Mississippi Code Annotated § 99-17-9 (Rev.2000), Carmichael waived her right to be present at sentencing. This issue lacks merit, and the decision of the trial court on this issue is affirmed.

¶ 17. We affirm the trial court in toto. However, we are aware that the trial court, pursuant to a post-conviction relief (PCR) motion filed by Carmichael, reduced her sentence from twenty years to fifteen years. Apparently, the PCR motion was filed some time after this appeal was effectuated. Consequently, nothing in this opinion should be construed as affecting the judgment in the post-conviction relief proceedings since those proceedings are not addressed in this appeal.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . In Sharplin v. State, 330 So.2d 591, 596 (Miss.1976), the Mississippi Supreme Court authorized the giving of the following instruction when "the trial judge is confronted by a hung jury:”
      I know it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so. Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.
      This instruction is now widely referred to as the Sharplin charge.

      . Carmichael’s counsel did not return for the second day of jury deliberations; he arranged for a local attorney, Mr. Robert Brooks, to attend for him.

      . The note is not included in the record, but later comments by the trial judge indicate that the note advised that the jury believed it might reach a verdict the next day if it was then released for the night.

      . This code section reads in pertinent part:
      In criminal cases the presence of the prisoner may be waived, and the trial progress, at the discretion of the court in his absence, if he be in custody and consenting thereto. Miss.Code Ann. § 99-17-9 (Rev.2000).


author: BRIDGES, J.,

text:
    Curtis W. COLLUMS, Deceased, By and Through Julia F. COLLUMS, Executrix of the Estate of Curtis W. Collums and on Behalf of the Wrongful Death Beneficiaries of Curtis W. Collums, Deceased and Julia F. Collums, Individually, and Flex One, Inc., Appellants, v. UNION PLANTERS BANK, N.A., Union Planters Bank of Northeast Mississippi, N.A., Union Planters Bank of Mississippi, and Jim McNeely, Individually, and in His Official Capacity as an Officer of the Other Defendants and John Does 1 through X, Appellees.
    No. 2001-CA-00470-COA.
    Court of Appeals of Mississippi.
    May 28, 2002.
    Rehearing Denied Aug. 20, 2002.
    Certiorari Denied Dec. 5, 2002.

      Dana J. Swan, Clarksdale, attorney for appellants.
    Lester F. Sumners, New Albany, attorney for appellees.
    Before KING, P.J., BRIDGES, and CHANDLER, JJ.
   BRIDGES, J.,

for the court.

Procedural History

¶ 1. A suit for wrongful death was filed in the Circuit Court of the First Judicial District of Chickasaw County against Union Planters Bank, N.A., Union Planters Bank of Northeast Mississippi, N.A., Union Planters Bank of Mississippi, and its agent employee, Jim McNeely, along with John Does 1 through X. The banks and McNeely are accused of causing or contributing to the suicide of Curtis Collums. The defendants removed the case to federal court on grounds of fraudulent joinder. The federal court disagreed and, per Julia Collums’s motion on behalf of the estate, remanded the case back to state court. The defendants sought and received summary judgment from the circuit court on March 2, 2001. Aggrieved, Collums’s estate comes before this Court seeking a reversal of the summary judgment order.

Statement of the Facts

¶ 2. Curtis Collums and his wife, Julia F. Collums, owned and operated Flex One, Inc., a health club in Oxford, Mississippi. In March of 1992, Flex One obtained financing from Sunburst Bank, later acquired by Union Planters Bank of Northeast Mississippi, N.A., which then merged into Union Planters Bank, N.A. (bank). Felicia Collums, the daughter of the owners, worked in the company office and handled the business affairs of the corporation.

¶ 3. Flex One utilized an automatic funds transfer (AFT) account at the bank. This allowed the gym to electronically debit a member’s dues for deposit into Flex One’s account and therefore provide the cash flow for the operation of the business. In April of 1996, Flex One began to experience financial difficulties and became delinquent on its loan payments. The bank had to debit Flex One’s AFT account to make note payments and sent a letter warning of foreclosure to Curtis Collums. To further illustrate their financial difficulties, Flex One did not remit to the Internal Revenue Service the payroll withholdings it had deducted from employees, and on July 21, 1997, a federal tax lien for $36,470.97 was filed against them.

¶4. Curtis Collums was attempting to sell the business and submitted a copy of a written ninety-day option contract for the sale of real estate to the bank for leniency consideration of the note payments. The bank altered the payment agreement and allowed Collums to make interest only payments for the length of the option contract. The contract expired on February 24, 1998, and there was no new contract for sale. As such, the bank started foreclosure proceedings and closed the business AFT account on February 24, setting off the balance against the delinquent loans.

¶ 5. McNeely informed Collums of these proceedings on the same day. Collums asked if the account could be kept open to make payroll on the following Friday. This fact is not in dispute. However, McNeely states he refused to agree to this term but Collums’s wife and daughter say that McNeely agreed to extend the account. On February 24, 1998, McNeely told Collums, “[t]he only solution was to bring the loan current, or to have an unconditional commitment letter to sell the business by the end of week 2-28-98.” Collums responded to McNeely that he could provide documentation that the loan would be paid in full by an insurance settlement by March 10, 1998. Collums later had copies of two of his life insurance policies faxed to McNeely. When McNeely questioned Collums for specifics of the settlement, Collums responded, “You don’t want to know the details.” A memo to the file of February 24, 1998, written by McNeely, and a letter written on February 25, 1998, sent to Collums’s home indicated the same. Collums’s life insurance policies had a combined face value of $700,000 and a total cash value of $27,351.85. According to McNeely’s deposition, the cash value of the policies would not have paid off the loan; however, it would have brought the loan current. McNeely did not specifically state the amount Flex One was in arrears in February of 1998.

¶ 6. On March 6, 1998, Collums got up at his usual time and got ready for his day. He left his home at 3:00 a.m., drove three miles to a church parking lot and shot himself. His body was found later that morning.

Legal Analysis And Standard of Review

¶ 7. In cases of summary judgment, this Court conducts a de novo review of the trial court’s grant of summary judgment. Parham v. Moore, 552 So.2d 121, 122 (Miss.1989). A grant of summary judgment is allowed only where the moving party has demonstrated there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994). A fact which resolves any of the issues raised by the parties is a material fact. Strantz v. Pinion, 652 So.2d 738, 741 (Miss.1995). A trial court should deny summary judgment if a full presentation of evidence would raise a triable issue. Id. at 741.

¶ 8. Collums’s wrongful death heirs charged the bank and McNeely with intentional infliction of emotional distress, negligent infliction of emotional distress, conversion, unfair business practices, interference with prospective advantage, interference with business relations, wrongful setoff, breach of contract and abuse of process, all of which proximately resulted in the wrongful death of Curtis Collums. Furthermore, Collums’s estate asserts that the bank and McNeely allegedly breached their fiduciary duties and their duties of good faith and fair dealing owed to the heirs.

¶ 9. All of the previously mentioned claims stem from the closing of the account and the taking of the funds. However, Felicia Collums, the deceased’s daughter and an employee of Flex One, stated that the heirs had no physical evidence of intentional infliction of emotional stress. Without a deliberate and intentional act for the purpose of causing harm, that claim fails. The official court file does not contain the complete depositions of all parties. It contains limited passages which indicate a brief foundation for the remaining claims.

¶ 10. The heirs also claim that, as a result of closing such account, the bank kept the money which was not their property, and that resulted in a conversion of the funds. However, we find that the money in the account actually belonged to the bank. Therefore, the bank is not liable for any wrongdoing. “It is well settled that funds deposited to a general account belong to the bank, with the bank becoming a debtor to the owner of the account for the amount on deposit.” Deposit Guar. Natl Bank v. Simrall, 524 So.2d 295, 298-300 (Miss.1987). As stated by the United States Supreme Court, “[t]he deposit by a customer with his banker is one of loan, with the superadded obligation that the money is to be paid when demanded by a check.” Id. (quoting Davis v. Elmira Sav. Bank, 161 U.S. 275, 288, 16 S.Ct. 502, 40 L.Ed. 700 (1896)). As such, there was no conversion.

¶ 11. The “set-off’ principle gives financial institutions the ability to apply a debtor’s deposit to payment of his debt then due. Simrall, 524 So.2d at 299-300. The Mississippi Supreme Court stated in Moreland v. People’s Bank:

It is well settled that the bank itself has a right, if it so desires, to apply whatever amount the maker of the note has on deposit with it to a payment on the note. Or, in other words, the bank itself has the right to set off the amount it owes the depositor against the amount owed it by the depositor. The relation existing between a bank and a depositor is simply one of debtor and creditor.

Moreland v. People’s Bank, 114 Miss. 203, 211-12, 74 So. 828, 829-30 (1917). As such, the bank was not at fault by closing the account and applying the balance to the overdue note.

¶ 12. The testimony about McNeely’s “promise” to keep the account open until Friday is inadmissible as hearsay testimony. It was offered to prove the truth of the matter asserted. The testimony was that McNeely agreed to keep the account open as told via telephone to Curtis Collums. Curtis then told Felicia and Julia Collums, resulting in double hearsay. One could attempt to argue that this testimony was within the dying declaration exception to the hearsay rule found in Rule 804(b)(2) of the Mississippi Rules of Evidence. The general requirements concerning the admissibility of dying declarations can be found in Watts v. State, 492 So.2d 1281, 1287 (Miss.1986), where our supreme court set forth specific requirements for dying declarations which includes: (a) the wounded person is in extre-mis and dies after making the statement, (b) the person realizes that he is mortally wounded, and (c) he has no hope of recovery. None of these requirements are met in the case at bar. Curtis told his family of this agreement with McNeely on February 25, 1998. He died on March 6, 1998. This scenario does not meet the requirements set forth in Watts. This statement does not qualify for any other exception for hearsay testimony.

¶ 13. For argument’s sake, we must determine if the “promise” made to Collums is to be considered a contract. An agreement to extend payment, in order to be binding, must be supported by sufficient consideration. Hattiesburg Prod. Credit Ass’n v. Smith, 191 Miss. 119, 120, 1 So.2d 768, 769 (1941). The so-called “promise,” if it is to even be considered as offer and acceptance, between McNeely, the bank, and Curtis Collums, was not supported by any consideration. Collums offered nothing beneficial to the bank in exchange for holding the account open. Additionally, we have no credible evidence that the promise ever actually existed. Hearsay testimony is not credible evidence. Moreover, a search of the record shows evidence to the contrary. McNeely wrote Curtis Collums a letter dated February 25, 1998, specifically stating that the account was closed. McNeely further notes that the bank received the fax of the insurance information but the letter states that McNeely did not understand how that would bring the account current. Also, McNeely’s handwritten memo to the file dated February 24, 1998, states that the request was made but that the bank could not hold open the account. The memo states that McNeely explained to Collums the only solution was to bring the loan payments current. It is this Court’s opinion that no contract ever existed, Curtis Collums was well aware that there was no promise to keep the account open and therefore, no further discussion about this topic is warranted.

¶ 14. The heirs of Curtis Col-lums rely heavily on State ex. rel Richardson v. Edgeworth, 214 So.2d 579, 582-88 (Miss.1968). This Mississippi case held that suicide is actionable if the suicide is proximately caused by intentional wrongdoing by the defendant and is the result of an irresistible impulse. Id. at 585-88. Irresistible impulse was discussed in the federal case of Shamburger v. Grand Casino of Mississippi, Inc./Biloxi, 84 F.Supp.2d 794, 798 (S.D.Miss.1998). The district court stated that

under Mississippi law it is essential, inter alia, that the decedent must have been in a state of “mental disturbance” in order to be deemed as acting under an irresistible impulse. In addition, he must not be in control of his faculties, or be able to discern the nature nor understand the consequences of his own actions in taking his life. Moreover, the act must be “without conscious violation,” a requirement which further emphasized the extreme severity of the mental state which must exist in the decedent in order to establish the presence of an irresistible impulse. Finally, the impulse must in fact be proximately caused by the wrongful conduct of the defendant.

Id. at 798.

¶ 15. The Collums heirs presented an affidavit from Dr. L.D. Hutt, a clinical psychologist from Memphis, Tennessee. Through interviews with Julia and Felicia Collums, Dr. Hutt evaluated Curtis Col-lums’s behavior for a two month period prior to his suicide. Based on those interviews, Dr. Hutt’s affidavit stated that “Curtis Collums became severely depressed during this time period and such depression qualifies as a mental illness as generally recognized within the area of clinical psychology. It is my opinion that, because of his mental illness, he suffered an irresistible impulse to commit suicide, and did indeed commit suicide.”

¶ 16. This Court, following the Shamburger case, views irresistible impulse as a failure to control the body and not be able to understand the consequences of certain actions. We do not interpret Curtis Collums’s behavior as an irresistible impulse. He planned his suicide and knew the benefits that his family would receive upon his death from his life insurance policies. Furthermore, he forewarned McNeely at the bank and told him the loan would be paid by March 10 by an insurance settlement and he had the values of the two life insurance policies sent to McNeely prior to the suicide to verify the amount. Suicide was not an impulse that Collums did not fully consider. He knew the consequences of his actions and planned the act for a number of days.

¶ 17. There was no intentional act by the bank or McNeely giving rise to application of the Edgeworth case. Edgeworth was an action against justices of peace, deputy sheriffs and surety companies for wrongful death by suicide, allegedly caused by intentional abuse of legal process. Edgeworth, 214 So.2d at 581-85. The public figures were collecting funds from bad check writers for private individuals and abusing the criminal process in the collection procedures. Id. Examining the case at bar, there were no allegedly intentional acts that the bank or McNeely could be held responsible for. Felicia Col-lums stated in her deposition that she had no evidence of McNeely or anyone else intentionally causing harm to her father and that she knew of no ill will against her father.

¶ 18. We now briefly address the issue of a fiduciary relationship between Collums and Union Planters Bank. “Whenever there is a relationship between two people in which one person is in a position to exercise a dominant influence upon the other because of the latter’s dependency upon the former, arising either from weakness of mind or body, or through trust, the law does not hesitate to characterize such relationship as fiduciary in character.” Hopewell Enter., Inc. v. Trustmark Nat’l Bank, 680 So.2d 812, 816 (Miss.1996). We do not view Collums’s relationship with Union Planter’s as this type of relationship. It was simply an arms length business transaction relationship involving a normal debtor-creditor relationship. Union Planters had nothing to gain from the success or failure of Flex One, Inc., as the loan agreement fixed the contractual terms. This relationship was not fiduciary in nature and, as such, it could not be breached. The claim is not actionable.

¶ 19. The actions of McNeely as an agent of the bank were within the law. The bank had attempted to provide assistance to Curtis Collums with the ninety days of interest only payments. After that period ended, the bank had the legal right to set-off. They bank did nothing improper in the eyes of the law. As tragic as this situation is, the heirs of Curtis Collums do not have an actionable claim against McNeely and Union Planters Bank. The grant of summary judgment was proper by the Circuit Court of Chickasaw County and is affirmed.

¶ 20. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT IS AFFIRMED. COSTS ARE ASSESSED AGAINST THE APPELLANTS.

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


text:
    Deshawn JACKSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00231-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2002.
    Rehearing Denied Dec. 10, 2002.

      Edmund J. Phillips, Jr., Newton, attorney for appellant.
    Office of the Attorney General, by Charles W. Maris Jr., attorney for appel-lee.
    Before McMILLIN, C.J., BRIDGES, and THOMAS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. The Circuit Court of Scott County convicted Deshawn Jackson of capital murder and sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections without possibility of parole. Jackson filed his appeal •with this Court in a timely fashion, making the following assignments of error:

STATEMENT OF ISSUES
I. DID THE COURT ERR IN ADMINISTERING VOIR DIRE?
II. DID THE COURT ERR IN GRANTING THE STATE BATSON RELIEF FOR JACKSON’S PEREMPTORY STRIKE OF RICKY DERRICK?
III. DID THE COURT ERR IN PERMITTING OFFICER ROGERS’S TESTIMONY?
IV. DID THE COURT ERR IN DENYING JACKSON’S MOTION TO SUPPRESS HIS CONFESSION?

FACTS

¶ 2. On March 21, 2000, around 11 p.m., Jose and Jonny Aristizabal were walking from their trailer in Forest to the B.C. Rogers plant where they worked. Along the way, Jackson and two others attacked the Aristizabals, robbed them, and then Jackson shot Jose Aristizabal as he lay on the ground. Aristizabal later died from the wounds received in the robbery.

ANALYSIS

I. DID THE COURT ERR IN ADMINISTERING VOIR DIRE?

¶3. Jackson failed to object to the State’s allegedly improper questions during voir dire. Questions of prosecutorial misconduct will not be addressed where the defendant did not raise the question at trial. Dufour v. State, 483 So.2d 307, 311(Miss.1985). Failure to object at trial acts as a procedural bar in an appeal. Carr v. State, 655 So.2d 824, 853 (Miss.1995). Even if Jackson had objected at trial, it remains doubtful that he would have prevailed, since the State’s questions during voir dire informed the jurors of their responsibilities and did not ask the jurors to return a given verdict before they heard the evidence. “There is no error in ascertaining whether potential jurors know what is expected of them in order to determine their suitability to serve as jurors.” Palm v. State, 748 So.2d 135, 138 (¶ 10) (Miss.1999). The Mississippi Supreme Court has held that where there is no request for a specific verdict, there is no error. Stringer v. State, 500 So.2d 928, 938 (Miss.1986). Jackson can point to no such request; thus, even a search for plain error fails him.

II. DID THE COURT ERR IN GRANTING THE STATE BATSON RELIEF FOR JACKSON’S PEREMPTORY STRIKE OF RICKY DERRICK?

¶ 4. This Court grants great deference to a trial court’s rulings on a Bat-son challenge. Spann v. State, 771 So.2d 883, 904 (¶ 61) (Miss.2000). We review Batson rulings for clear error. Johnson v. State, 529 So.2d 577, 583 (Miss.1988). A Batson challenge to peremptory challenges has three steps: first, the opponent of the peremptory challenge must make out a prima facie case of purposeful racial discrimination. Puckett v. State, 788 So.2d 752, 756 (¶ 10) (Miss.2001). Jackson struck eleven white veniremen and two black veniremen, and the court held that the State had made a prima facie case.

¶ 5. Second, the proponent of the strike must offer a race-neutral reason for the strike. Puckett, 788 So.2d at 758 (¶ 14). Jackson’s stated reason for his peremptory challenge was that he had no specific reason, “other than to get down the line to some other jurors that I wanted to keep.” The court essentially held that this non-reason did not meet Jackson’s burden under the second prong of Batson. Jackson argues correctly that the reasons need not be persuasive or plausible; however, they must still be reasons. Id. The court did not even have to reach the third step, which requires the opponent of the strike to prove purposeful racial discrimination before the court will nullify a peremptory challenge. Henley v. State, 729 So.2d 232, 240 (¶ 38) (Miss.1998).

¶ 6. Jackson had the burden to provide a facially race-neutral reason to support his peremptory challenge of Derrick. The record is illuminating, since Jackson provided ten race-neutral reasons for ten other white veniremen, but could not in fact provide one for this juror. This fact by itself suggests no nefarious intent or purposeful racial discrimination, but instead illuminates a troubling facet of the Batson line of cases: peremptory challenges are no longer truly peremptory, but merely peremptory but for race or gender or religiously motivated challenges. As a necessary consequence of the Batson line of cases, Jackson’s appeal on this ground must fail.

III.DID THE COURT ERR IN PERMITTING OFFICER ROGERS’S TESTIMONY?

¶ 7. Jackson appeals the court’s ruling permitting the testimony of Officer Trey Rogers concerning Jackson’s prior false statement to the police and the circumstances of his confession to the police to come in on rebuttal. The objectionable language follows:

Q: The first statement, what he said in it, based upon what you already know about the robbery, and murder of Jose Aristizabal, were you aware of whether or not he was telling you was the truth or a falsehood?
A: Yes, sir.
By Mr. Brooks: Your Honor, we would like to renew our objection made during the motion to suppress.
By the Court: Objection overruled.
Q: And what he told you the first time, did that jibe or coincide with the facts as you knew them to exist?
A: No, sir. According to eyewitness statements, it didn’t match up. We knew that it wasn’t true.
Q: All right; and—
By Mr. Brooks: Now, your Honor, at this point, I would like to move for a mistrial for the admission of that into evidence.
By the Court: Overruled.

¶ 8. Jackson appeals the court’s decision on the grounds that Rogers’s testimony constituted hearsay. At trial, this ground was not cited; in fact, the objection offered at trial appears to all intents and purposes to be a general objection, or an objection related to the motion to suppress Jackson’s confession, and not an objection on hearsay grounds at all. Specific grounds for an objection must be stated contemporaneously with the objection, and all objections not made at the time of testimony are deemed waived. Sellers v. State, 773 So.2d 350, 353 (¶ 11) (Miss.App.2000).

¶ 9. But even if Jackson’s appeal was not proeedurally barred on this issue, there is still the inescapable fact that Rogers’s testimony in no way constitutes hearsay. Rogers’s statement is clearly one that he was qualified to make, as it reflected his state of mind when Jackson’s initial statement to the police was made. As such, it constitutes a lay opinion, of the sort which any individual with personal knowledge of the case that Rogers had could permissibly make in a court of law.

IV. DID THE COURT ERR IN DENYING JACKSON’S MOTION TO SUPPRESS HIS CONFESSION?

¶ 10. Jackson alleges in his appeal that he was not read his Miranda rights and did not make a voluntary and knowing waiver. However, during his testimony in the motion to suppress, Jackson admitted that he had knowingly and voluntarily waived his Miranda rights. The record on its face gives the lie to this assignment of error, and we decline to treat it further.

CONCLUSION

¶ 11. Jackson makes four assignments of error. One is flatly contradicted on its face by the record. Of the remaining three grounds for appeal, Jackson’s argument on both the court’s handling of voir dire and admitting hearsay must fail for lack of an appropriate contemporaneous objection. Finally, Jackson erroneously argues that once a prima facie case of racial discrimination a la Batson has been found, that a non-reason for a peremptory challenge is responsive to the burden of Batson. This is not the case, and although nearly any reason may meet the criterion of being facially race-neutral, the reason must still be provided in the instant of the challenge by the proponent of the peremptory challenge.

¶ 12. For the foregoing reasons, we affirm.

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

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


author: BRANTLEY, J.,

text:
    Deborah WEEKS, Appellant, v. Roland WEEKS, Appellee.
    No. 2001-CA-01031-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2002.
    Rehearing Denied Dec. 3, 2002.

      Aleita M. Sullivan, Mendenhall, attorney for appellant.
    Henry Laird, Gulfport, Thomas W. Crockett, Jr., Jackson, attorneys for appel-lee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   BRANTLEY, J.,

for the court.

¶ 1. Deborah Weeks was granted a divorce on the ground of adultery in the Chancery Court of the First Judicial District of Harrison County. Deborah perfected this appeal seeking a review limited to the financial aspects of the divorce judgment. She contends that the chancellor abused his discretion in failing to grant a continuance and in dividing the marital property. In addition, she argues that the chancellor erred in failing to award adequate lump sum alimony, periodic alimony, medical insurance and attorney’s fees. Finding several errors, we affirm in part and reverse and remand in part for further proceedings consistent with this opinion.

FACTS

¶ 2. Roland and Deborah Weeks were married on September 16, 1978, the second marriage for both parties. Roland has two adult children from his previous marriage. Deborah has one adult child from her previous marriage who lived with Roland and Deborah during their marriage. One child was born during their marriage who was fifteen at the time of the divorce hearing. The parties separated in early 1992 resulting in Roland leaving the marital home. Their child remained with her mother until approximately one year prior to the divorce hearing at which time she moved in with her father.

¶ 3. Roland was sixty-four at the time of the hearing and the publisher of The Sun Herald, a newspaper in Gulfport. He is a college graduate from South Carolina who began working for The State Record, a newspaper in South Carolina in 1963 and transferred to the Mississippi paper in 1968 becoming the president of the company. The State Record sold the paper to Knight Ridder at which time Roland’s title became that of publisher. Roland is required to retire from the newspaper at age sixty-five.

¶ 4. Deborah was fifty-one at the time of the hearing. She is a college graduate who worked in advertising prior to her marriage. She met Roland when she worked at The Sun Herald as an advertising account executive. Prior to their marriage, she stopped working at the newspaper and worked at a pharmaceutical company. However, she stopped working completely shortly after their marriage. At the hearing, Deborah and Roland testified that Deborah’s health was poor. She claimed to have a degenerative nerve disease, Sjorgen’s Syndrome, glaucoma and other eye problems, back and neck problems along with having had several surgeries for various problems.

¶ 5. Deborah was granted a divorce on the ground of adultery following an uncontested hearing on the issue of the divorce. The only issues raised on appeal deal with the financial aspects of the divorce. The chancellor found that there were no separate assets and entered an order after a hearing dividing all of the marital property.

¶ 6. Deborah was awarded the $360,000 marital home (with the remaining $18,000 debt), her $40,000 BMW, $40,000 in household furnishings, one-fourth of the 401(k) valued at $282,750, one-third of the defined benefit pension and retirement plan, in-eluding annual payments which had a cash value of $2,000,000 and $50,000 in cash. Deborah received approximately one third of the estate valued at $5,219,567.

¶ 7. Roland was awarded the remaining marital property of approximately two thirds of the estate including his home valued at $300,000, two planes and a hangar valued at $180,000, $40,000 in household goods, a limited partnership valued at $300,000 (receiving $30,000 in income per year), Knight Ridder and other stocks valued at $261,000 and all remaining assets. Under the retirement plan, Roland has various options and may choose a lump sum payment of $2,000,000 with $75,000 per year or periodic payments at various rates ranging from $228,000 to $308,000.

DISCUSSION OF ISSUES

I. WHETHER THE CHANCELLOR ERRED IN DENYING THE MOTION FOR A CONTINUANCE.

¶ 8. On September 28, 2000, three weeks prior to trial, Deborah filed a motion for continuance and to compel discovery. The chancellor, who later recused himself, denied the continuance, but did grant the order to compel discovery. The trial began, with a new chancellor and the motion was not renewed, but mentioned near the end of the trial. Deborah argues that the chancellor erred in failing to grant this continuance. Due to the failure to grant a continuance, Deborah maintains that she was unable to obtain complete discovery and ascertain what happened to some of the assets.

¶ 9. The decision to grant or deny a motion for a continuance is within the discretion of the judge and will not be reversed unless that discretion has been abused. Dew v. Langford, 666 So.2d 739, 746 (Miss.1995). Prejudice must result from the denial in order to have that decision reversed. Id. Here, the case had been pending for over a year and Deborah had changed attorneys several times prior to trial. Instead of renewing the motion, Deborah proceeded with the trial. The continuance was not mentioned until near the end of the trial; however, the motion was not renewed then either. Deborah claims she did not have time to go through all of the information gathered from discovery and needs additional discovery to trace some assets.

¶ 10. However, we cannot find that she was prejudiced in any form. The chancellor was aware that certain money could not be traced. Roland testified that he used the money to live on during the separation at which time he gave Deborah his pay checks from the newspaper. The chancellor was also aware that some of the money was lost in investments. From the chancellor’s order, it is clear that he took the money in question into account in making his decision. No prejudice resulted; therefore, this issue is without merit.

II. WHETHER THE CHANCELLOR ERRED BY FAILING TO MAKE AN EQUITABLE DIVISION OF THE MARITAL PROPERTY.

¶ 11. Deborah argues that the chancellor erred in failing to make an equitable division of the marital property. The division of the property, as stated in detail above, is approximately one third to Deborah and two thirds to Roland. A chancellor’s findings will not be reversed unless the decision is manifestly wrong, clearly erroneous or resulted from an abuse of discretion. Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994).

¶ 12. In order to determine an equitable division of property, the chancellor must first determine which assets were marital, their value and follow the appropriate factors in distributing the assets. Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). Here, the chancellor addressed each of the Ferguson factors. Deborah argues that the chancellor did not consider her non-economic contributions to the accumulation of marital property.

¶ 13. The Mississippi Supreme Court has recognized that a spouse that stays at home to care for the family and contribute to the career of the other spouse without contributing to the family economically, still receives an equitable portion of the marital assets. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). Here, the Weekses were married twenty-two years; however, the parties have led separate lives since 1992. Although Deborah testified that she cared for their daughter and entertained for Roland’s business, Roland testified that Deborah harassed him at his job to the point that a restraining order had to be obtained along with extra security at the newspaper. Additionally, Deborah admitted to an affair around 1984 when she filed a motion, which was denied, for the determination of paternity for the Weekses’s minor child. The chancellor found that neither party contributed to the stability of the marriage. From the evidence presented at the hearing, we cannot find any error in this determination, nor the chancellors’s distribution of the marital property.

III. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD ADEQUATE LUMP SUM ALIMONY.

¶ 14. Deborah argues that the chancellor erred in awarding her inadequate lump sum alimony. Although, the chancellor denied alimony, he did order Roland to pay Deborah $50,000 in cash within five days of the entry of judgment. This was not lump sum alimony, but part of the division of marital assets.

¶ 15. The decision to award lump sum alimony is within the discretion of the chancellor and will not be reversed unless that discretion was abused. McEachern v. McEachern, 605 So.2d 809, 814 (Miss.1992). In order to award lump sum alimony, the chancellor must look at the substantial contribution to the accumulation of total wealth, length of the marriage, the inadequacy of the separate estate and the financial security of the spouse. Flechas v. Flechas, 791 So.2d 295, 304(¶ 31) (Miss.Ct.App.2000) (citing Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988)). Here, we find no abuse of discretion in failing to award lump sum alimony; however, we will address periodic alimony as a separate issue.

IV. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD PERIODIC ALIMONY.

¶ 16. Deborah argues that the chancellor erred in failing to award her periodic alimony. An award of alimony is within the discretion of the chancellor and will not be reversed unless it resulted in manifest error or an abuse of discretion. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). “In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust, or grossly inadequate as to evidence an abuse of discretion.” Id.

¶ 17. In Armstrong, the Mississippi Supreme Court set forth twelve factors to be considered in awarding alimony. Id. These factors include: income and expenses, health and earning capacity, needs, obligations, length of marriage, presence of minor children, age, standard of living, tax consequences, fault and any other equitable factors. Id. Although, an on-the-record analysis of the Armstrong factors are helpful in appellate review, the lack of that analysis does not require reversal, unless manifest error has resulted. Godwin v. Godwin, 758 So.2d 384, 387 (¶¶ 10-11) (Miss.1999).

¶ 18. Here, the chancellor denied any award of alimony without an on-the-record consideration of the Armstrong factors. We find this failure to consider the Armstrong factors to be a manifest error. The gross disparity in the estates of both parties calls for a consideration of whether alimony is appropriate. The chancellor found that Deborah was adequately provided for in the division of assets; however, we find that not to be the case. There was undisputed evidence concerning the state of Deborah’s health which was set forth in the recital of facts. Although, the chancellor did not place much credit on Deborah’s ill health considering her request for expenses to care for a horse and jet ski. However, no one questioned or contradicted Deborah’s testimony concerning her poor health and large medical bills. Deborah has not worked for the past twenty-two years and was fifty-one at the time of the hearing enjoying a substantial standard of living throughout the twenty-two years of marriage.

¶ 19. Additionally, Roland left the marriage in 1992 due to an affair. Further, although, the chancellor found that each party wasted assets, there is a large amount of money unaccounted for which Roland had access to, not Deborah. Deborah has no separate estate or income outside of the division of the marital property. We find that the chancellor erred in failing to award periodic alimony.

¶ 20. “The wife is entitled to support corresponding to her rank and condition in life, and the estate of her husband.” Tutor v. Tutor, 494 So.2d 362 (Miss.1986) (citing Jenkins v. Jenkins, 278 So.2d 446, 449-50 (Miss.1973)). In accordance with Tutor and Armstrong, Deborah is entitled to continue living in the same standard of living as she has grown accustomed to during the course of her twenty-two year marriage. Deborah maintained the home during their marriage and after their separation for the benefit of their daughter until one year prior to the divorce hearing.

¶ 21. In the discussion on the division of property, the chancellor placed great weight on the need to divide the assets in such a way to prevent future friction between the couple. However, due to the fact that they have a child, contact and possible friction between the couple will be inevitable. Taking all the evidence into consideration, we must conclude that the chancellor erred in failing to award Deborah any alimony. Therefore, we reverse and remand with instructions to the chancellor to award periodic alimony to Deborah.

V. WHETHER THE CHANCELLOR ERRED IN FAILING TO ORDER ROLAND TO PROVIDE DEBORAH WITH MEDICAL INSURANCE.

¶ 22. Deborah contends that the chancellor erred in failing to order Roland to provide her with medical insurance. The chancellor does have the ability to order medical insurance as a type of alimony. Driste v. Driste, 738 So.2d 763, 766(¶ 11) (Miss.Ct.App.1998). As we have already found that the chancellor erred in failing to award any periodic alimony, we also reverse the chancellor’s decision not to order Roland to provide medical insurance for Deborah. Therefore, for the same reason that we set forth above, in reversing the chancellor’s decision for periodic alimony, we reverse and remand the issue of medical insurance to the chancellor for reconsideration when determining an appropriate periodic alimony award.

VI. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD ATTORNEY’S FEES TO DEBORAH.

¶ 23. Deborah’s final assignment of error is that the chancellor erred in failing to award her attorney’s fees. “Generally the award of attorney fees in a divorce case is left to the discretion of the trial court.” Burnham-Steptoe v. Steptoe, 755 So.2d 1225, 1235(¶ 36) (Miss.Ct.App.1999) (quoting Cheatham v. Cheatham, 537 So.2d 435, 440 (Miss.1988)). An appellate court is “reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney fees.” Geiger v. Geiger, 530 So.2d 185, 187 (Miss.1988). Additionally, the Court maintains a “general rule that where ‘a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.’ ” Id. (quoting Martin v. Martin, 566 So.2d 704 (Miss.1990)).

¶ 24. The Mississippi Supreme Court reversed a chancellor’s denial of attorney’s fees when the evidence was sufficient for the chancellor to determine whether an award of attorney’s fees were necessary by considering the McKee factors. Nix v. Nix, 790 So.2d 198, 200-01(¶ 7) (Miss.2001) (citing McKee v. McKee, 418 So.2d 764, 767 (Miss.1982)). Here, the evidence presented included Deborah’s testimony concerning her inability to pay and the bills were introduced into evidence. Although, the chancellor stated he would determine the issue of attorney’s fees, he failed to set forth any reason for denying attorney’s fees with reference to the McKee factors. For the same reasons that we are reversing the issue of periodic alimony, we reverse the chancellor’s denial of attorney’s fees and the case is remanded for a determination based upon the existing record and by applying the McKee factors of whether an award of attorney’s fees is warranted.

¶ 25. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND APPELLEE.

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