author: MONACO, J.

text:
    Donald VEDNER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1153.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2003.

      Robert J. Buonauro, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

MONACO, J.

We grant appellee’s motion for rehearing, withdraw our previous opinion and substitute the following therefor.

Donald Vedner, Jr., appeals from the judgment and sentence imposed on him after he was convicted by a jury of DUI manslaughter, vehicular homicide, driving under the influence causing damage or injury, and possession of drug paraphernalia, all of which arose out of an automobile collision in which his passenger was killed. His appeal causes us to compare and examine the tension governing statements made to law enforcement officers who are conducting accident investigations, and statements that are subject to the protection of the Fifth Amendment to the United States Constitution. Mr. Vedner gave three interviews to law enforcement officers, all of which were admitted into evidence. While we conclude that it was error to admit one of them, we affirm the judgment and sentence because we deem the error harmless.

ADJUDICATIVE FACTS

In the pre-dawn hours on the date of the accident, Mr. Vedner crashed into the back of a van driven by Mr. Martinez, who was driving in the eastbound lane of 1-4 at the time. Traffic had slowed because of highway construction, and Mr. Martinez reduced his speed to between 25 and 30 miles per hour. At that point in time, Mr. Vedner, who had been traveling at between 50 and 106 miles per hour, according to the varied testimony at trial, ran into the back of Mr. Martinez’ van. Mr. Vedner was thrown from the car, and Mr. Vedner’s passenger and best friend, Joshua Daly, died of massive head injuries.

A westbound witness to the accident who saw Mr. Vedner thrown from the car testified that he pulled over, approached Mr. Vedner, and smelled alcohol on him. A second witness and a police officer both testified that they also smelled an odor of alcohol coming from Mr. Vedner’s facial area.

A traffic homicide investigator, Lake Mary Police Officer Drummond, responded to the accident scene and immediately saw blood on Mr. Vedner’s face from various head injuries. While Officer Drummond smelled alcohol on Mr. Vedner, no blood sample was drawn at that time. Later, however, urine and blood samples were taken from Mr. Vedner at. the hospital. When Officer Drummond collected Mr. Vedner’s clothing which had been cut off at the scene, he found a pipe containing residue that the officer believed smelled like burnt marijuana inside one of Mr. Ved-ner’s pants pockets.

Law enforcement officers spoke to Mr. Vedner on three occasions prior to his being charged criminally. The first interview was conducted by Officer Drummond on the day after the accident. Before the interview started Officer Drummond read Mr. Vedner his Miranda rights, and Mr. Vedner agreed to waive them. Mr. Ved-ner reported at that time that he had come from an establishment in Orange County called the “Ale House” at about 1:30 in the morning, where he consumed two and one-half beers. The interview continued:

Vedner: Yeah. And uh from there I got in the car and I don’t, I don’t know if it’s from getting hit in the head or what but I know for a fact that I was too drunk at the Ale House to remember what we did after that, I know it wasn’t — .
Officer Thomson: You don’t remember where you went after the Ale House or where you were going on 1-4?
Vedner: Uh, no.

Five days later, Mr. Vedner and his mother went to the Lake Mary Police Department to retrieve his personal property after being invited to do so by law enforcement officers. While there, he agreed to be interviewed a second time. Mr. Vedner was advised that he was not under arrest, that the officers had no intention of arresting him at that time, and that he was free to leave at any time. He was not again warned of his Miranda rights prior to being questioned, however, Mr. Vedner was told that as long as he was there, the officers wanted to ask him about the pipe and whether any marijuana was in the car. Mr. Vedner reported that at sometime between 1:30 and 4:30 a.m., he did smoke approximately three bowls of marijuana with his friend, Mr. Daly. At a suppression hearing held with respect to this interview, Officer Drummond testified that at the time of the second interview, he was “still investigating the accident.”

The third interview took place approximately six months later. At that time Officer Drummond again advised Mr. Ved-ner that he was not under arrest and that he was free to go at any time. Mr. Vedner replied that he understood. He was once again not advised pursuant to Miranda. When Officer Drummond and another interviewer, Officer Thomson, began asking Mr. Vedner about his marijuana use on the date of the accident, the following colloquy took place:

D. VEDNER: Are these the — are these questions? What are they for?
OFC. DRUMMOND: This is just to conclude to the rest of this investigation. This is the investigation right here. O.K. Uh, what we compiled here is not only medical records, uh, interviews, uh, and just evidence—
OFC. THOMSON: Vehicle information.
OFC. DRUMMOND: Right.
D. VEDNER: Like — as far as like the construction not having been signed up and stuff like that?
OFC. DRUMMOND: It has everything. Anything that has to do with that roadway, Florida Highway Patrol being out there—

When asked during a suppression hearing directed to this interview if the accident investigation was still ongoing, Officer Thomson replied that it was. Officer Drummond then informed Mr. Vedner that his blood alcohol level at the time of the crash was under .08, but that the results of the blood and urine tests revealed the presence of cocaine, marijuana and Valium in his system. Mr. Vedner once again pointed out that they had smoked three bowls of marijuana that night. Officer Drummond inquired about the Valium in his system, and Mr. Vedner replied that it was not Valium, but validly prescribed Xa-nax that he used. When the officer mentioned that the lab report reflected the presence of cocaine, Mr. Vedner stated that it had been probably three weeks prior to the accident since he used this drug. A short time later, however, he indicated that it was possible that he had used cocaine the day of, or the day prior to, the accident.

During the course of the third interview, Officer Drummond gave Mr. Vedner some misinformation about the cause of the accident and about the taillights of the van Mr. Vedner had crashed into. Upon being asked if he intended to mislead Mr. Ved-ner at that point in the investigation, he responded that he was “using trickery during the interview to see what comes out.”

A week later, the State filed an information charging Mr. Vedner with criminal conduct. Eventually, he was charged by an amended information with DUI manslaughter, vehicular homicide, driving under the influence causing damage or injury, and possession of drug paraphernalia.

Mr. Vedner filed motions to suppress all three statements. While a number of arguments were advanced by the defense, one in particular deserves consideration. Mr. Vedner argued below that since Officer Thomson was in charge of the accident investigation and Officer Drummond was in charge of the homicide investigation, section. 316.066(4), Florida Statutes (1999), would prohibit the use of statements made in the course of an accident investigation, and the interviews should be suppressed.

Officer Thomson testified that during the first interview, both he and Officer Drummond asked questions. Both officers testified, however, that the accident investigation was ongoing through the last two interviews. Mr. Vedner asserted that since statements that he made were for the purpose of completing a crash report, the final report or statements of his made pursuant to it could not be used as evidence in any criminal trial. Mr. Vedner recognizes, however, that pursuant to State v. Marshall, 695 So.2d 686 (Fla.1997), an officer may testify at trial as to any statement made to the officer by a person involved in a crash if the person’s privilege against self-incrimination was not violated.

The trial court denied the motions to suppress. The judge noted that the first statement was given after Mr. Vedner was advised of his Miranda rights. In addition, the court held that as to the second and third interviews, the statements were non-custodial and should not be suppressed because Mr. Vedner went to the police station of his own free will, was not placed under arrest, and was specifically advised that he was free to go at any time. The court, citing to State v. Johnson, 695 So.2d 771 (Fla. 5th DCA 1997), rev. denied, 705 So.2d 9 (Fla.1997), ruled that since Mr. Vedner was neither in custody nor under arrest, Miranda warnings were not required. The court ruled, however, that evidence concerning Mr. Vedner’s cocaine use would not be allowed.

At trial, Mr. Vedner’s theory of defense was that he was not driving under the influence of alcohol or controlled substances to the extent that his normal faculties were impaired, and that the death of Mr. Daly resulted from the use of a vehicle by Mr. Martinez that had defective taillights. Mr. Vedner’s statements made at all three interviews (with the information concerning his cocaine use redacted), were admitted into evidence. The jury found Mr. Vedner guilty as charged. Mr. Ved-ner was not sentenced for the vehicular homicide, but received a lengthy prison term for the other charges. This appeal followed.

LEGAL ANALYSIS

Subsections 316.066(1) and (2), Florida Statutes (1999), require the driver of a vehicle that has been involved in an accident to make a written report of the crash, if the accident involves bodily injury or death of any person or property damage of at least $500. Because the driver is required to make this report, subsection (4) of the statute excludes the report and statements made to law enforcement for the purpose of completing the crash report from use as evidence at trial in any civil or criminal proceeding. The statute provides, in pertinent part:

(4) Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated.

The intention of the Legislature in adopting subsection (4) was to encourage true and uninhibited reports of accidents, the ultimate goal being to make highways safer. See Department of Highway Safety & Motor Vehicles v. Perry, 702 So.2d 294 (Fla. 5th DCA 1997). Its purpose is to promote a truthful reporting of the facts surrounding the accident, while relieving persons involved from incrimination for their compliance with the law. See Perez v. State, 630 So.2d 1231 (Fla. 2d DCA 1994); Hoctor v. Tucker, 432 So.2d 1352 (Fla. 5th DCA 1983). The statute prohibits the use of statements made by persons involved in accidents in order to avoid violation of the Fifth Amendment privilege against self-incrimination. See State v. Norstrom, 613 So.2d 437, 440 (Fla.1993); Brackin v. Boles, 452 So.2d 540, 544 (Fla.1984).

The application of these principles has generated a significant number of appellate opinions. Norstrom is of particular interest because it summarizes the interplay between section 316.066 and the Fifth Amendment. In that case, the defendant voluntarily made statements to law enforcement officers after he had been read his Miranda rights. He had not been advised that he had to answer questions pertaining to the accident. His statements were made, however, while the police officer was involved in the accident investigation phase, as opposed to the criminal investigation phase. The supreme court held that the statements were voluntary and that there was no Fifth Amendment violation, saying that:

[W]e emphasize that the privilege granted under section 316.066 is applicable if no Miranda warnings are given. Further, if a law enforcement officer gives any indication to a defendant that he or she must respond to questions concerning the investigation of an accident, there must be an express statement by the law enforcement official to the defendant that “this is now a criminal investigation,” followed immediately by Miranda warnings, before any statement by the defendant may be admitted. (Emphasis supplied).

Norstrom, 613 So.2d at 440-41; see also State v. Marshall, 695 So.2d 686 (Fla.1997).

From these cases a number of general propositions can be extracted. First, it is clear that statements made pursuant to the requirement to give information for a crash report required by section 316.066 may not be used as evidence in civil, criminal or administrative proceedings. See Perry; Department of Highway Safety & Motor Vehicles v. Corbin, 527 So.2d 868 (Fla. 1st DCA), rev. denied, 534 So.2d 399 (Fla.1988). Second, if during the course of a vehicular accident investigation a law enforcement officer seeks to elicit statements of a person who has been given “any indication” that he or she is required to give accident information, the officer must advise the person of his or her Miranda rights. Under those circumstances only statements made after the advisement of rights may subsequently be used in civil or criminal trials, or administrative proceedings. See Marshall; Norstrom. For other law enforcement encounters associated with vehicular accidents, however, the usual rules and precepts associated with Miranda seem to apply. See, e.g., Cummings v. State, 780 So.2d 149 (Fla. 2d DCA 2000), rev. denied, 796 So.2d 536 (Fla.2001); State v. Evans, 692 So.2d 305 (Fla. 4th DCA 1997).

APPLICATION OF LAW TO FACTS

The statements given by Mr. Ved-ner to law enforcement officers at the initial interview were voluntarily made after he was advised of his Miranda rights and were, therefore, admissible against him. Although Mr. Vedner makes a number of arguments seeking to exclude this evidence, we find them to be without merit.

The second interview was non-custodial and voluntary. Mr. Vedner was asked to come to the police station, and he did so voluntarily. Although he was not readvised of his Miranda rights, Mr. Vedner was told that he could leave at any time, and that he was not under arrest. He thereafter made statements that were introduced against him in the criminal trial. We have searched the record thoroughly for “any indication” that Mr. Vedner was told that he was required to answer the questions of the law enforcement officers, but find none. What is troubling, of course, is that the interview was conducted, at least in part, in connection with the accident investigation. This fact alone, however, does not under Nor-strom and Marshall vitiate the admissibility of his statements.

Subsection 316.066(4) provides that no crash report or statement made to a law enforcement officer for completing a crash report shall be used as evidence in any trial. As noted, however, that subsection specifically permits a law enforcement officer to testify in a criminal trial about statements made to the officer by a person involved in a crash, provided the person’s privilege against self-incrimination is not implicated.

As there was no indication that Mr. Ved-ner was advised or believed that he was required to provide the information sought by the law, enforcement officers, and as the interview was non-custodial and voluntary, we conclude that statements made to the officers were properly introduced into evidence at his criminal trial, despite the failure of the officers to warn Mr. Vedner under Miranda. See Cummings; State v. Johnson, 695 So.2d 771, 774 (Fla. 5th DCA 1997). In this instance, Mr. Vedner’s privilege against self-incrhnination was not violated.

The third interview, however, is problematic. Mr. Vedner specifically inquired about the reasons for the additional questions, and he was told that it was for the accident investigation, not a criminal investigation. Here, there was an “indication” that he was required to answer the questions, and he should have been advised under Miranda, We conclude that the failure to warn Mr. Vedner under Miranda prior to eliciting the statements that were used against him in a criminal trial violated his right against self-incrimination. It was error, therefore, to allow the jury to hear and consider those statements.

HARMLESS ERROR ANALYSIS

The United States Supreme Court has recognized that not all constitutional errors are deemed harmful. Rather some constitutional errors are insignificant in a particular case setting, and may be deemed harmless and not require an automatic reversal. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In Florida, for an error to be harmless, the reviewing court must consider the entire record and determine that there is no reasonable possibility that the error contributed to the conviction. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). In the present case, the statements made in connection with the improper third interview were largely repetitive of the those made in connection with the valid first two interviews. Indeed, the major new revelation contained in the third interview concerned Mr. Vedner’s use of cocaine, and that information was deemed inadmissible by the trial judge.

In circumstances where statements made inadmissible by Miranda are cumulative of validly obtained statements, the courts have generally determined upon a harmless error analysis that a reversal is unnecessary. See, e.g., United States v. Deaton, 468 F.2d 541 (5th Cir.1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1386, 35 L.Ed.2d 597 (1973); Davis v. State, 692 So.2d 943 (Fla. 5th DCA 1997). We conclude, as well, upon a review of the entire record, that the error in-admitting the third interview into evidence was harmless.

We have considered the other matters raised by Mr. Vedner and find them to be non-meritorious.

AFFIRMED.

PETERSON and ORFINGER, JJ„ concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Beyond this, we are concerned about the use of "trickery" by the officers to induce Mr. Vedner to make incriminating statements.


source: Caselaw Access Project

author: SHARP, W., J.

license: Public Domain

text:
    Patricia M. FONT, etc., et al., Appellant, v. STANLEY STEEMER INTERNATIONAL, INC., et al., Appellee.
    No. 5D02-1340.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2003.

      Harry K. Anderson, Jr., of Harry K. Anderson, Jr., P.A., Maitland, and Philip M. Burlington of Caruso, Burlington, Bohn & Compiani; Christian D. Searcy and Darryl L. Lewis of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for Appellants.
    Sandra Manjasek of Manjasek and Moore, Daytona Beach, for Appellees.
   SHARP, W., J.

Patricia Font, as personal representative of Howard Font’s estate, appeals from a final summary judgment in a wrongful death action which determined a franchisor (Stanley Steemer) was not liable under an agency theory for the allegedly negligent acts of its franchisee (Gellner Enterprises) and the franchisee’s employee (O’Connor). On appeal, Font argues the question whether Gellner Enterprises and O’Connor were actual agents of Stanley Steemer is one of fact and thus not appropriate for resolution by summary judgment. We agree and reverse.

In October 1997, Howard Font’s vehicle was involved in a collision with a Ford van. Gellner Enterprises owned the van and used it in its cleaning business, a Stanley Steemer franchise. The van was painted in the distinctive Stanley Steemer colors and did not indicate the franchise was independently owned. The van was being driven by Gellner’s employee, O’Connor, in the course and scope of his employment. Font died a few days later from his injuries received in the accident.

In September 1998, Patricia Font filed this wrongful death action against O’Conner, Gellner Enterprises and Stanley Steemer. Font alleged O’Connor was negligent and drove the van without a valid driver’s license (his license had been suspended) and that Gellner Enterprises was liable because it owned the van and employed O’Connor as a driver when he did not have a valid license. Font also alleged Stanley Steemer was vicariously liable for the negligence of Gellner Enterprises and/or O’Connor based on actual or apparent agency.

Stanley Steemer denied this allegation and moved for summary judgment on the agency issue. Stanley Steemer pointed out that under its franchise agreement, Gellner Enterprises was an independent contractor and not the agent, partner, joint venturer, or employee of Stanley Steemer. Stanley Steemer also claimed there was no evidence it was involved in the day-to-day operation nor exercised any management over Gellner Enterprises in the operation of its day-to-day activities.

The court below found Gellner Enterprises and O’Connor were neither the actual nor apparent agents of Stanley Steemer. On appeal, Font challenges only the determination as to actual agency. The essential elements of an actual agency relationship are: 1) acknowledgment by the principal that the agent will act for him or her, 2) the agent’s acceptance of the undertaking, and 3) control by the principal over the actions of the agent. Goldschmidt v. Holman, 571 So.2d 422 (Fla.1990); Ilgen v. Henderson Properties, Inc., 683 So.2d 513 (Fla. 2d DCA), rev.denied, 686 So.2d 578 (Fla.1996); Robbins v. Hess, 659 So.2d 424 (Fla. 1st DCA 1995).

The existence of an agency relationship is normally one for the trier of fact to decide. Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla.2003); Goldschmidt; Robbins. The question can be resolved by summary judgment only in those cases where the evidence is capable of but one determination and there is no evidentiary question for the jury to resolve. Goldschmidt; Robbins. The party alleging the agency relationship bears the burden of proving it, just as the party moving for summary judgment has the burden to prove the absence of material fact issues. Robbins.

Here the parties’ franchise agreement expressly provides that Gellner is an independent contractor and not the agent or employee of Stanley Steemer. Nonetheless, the nature of the parties’ relationship is not determined by the descriptive labels employed by the parties themselves. Villazon; Parker v. Domino’s Pizza, Inc., 629 So.2d 1026 (Fla. 4th DCA 1993), rev. denied, 639 So.2d 977 (Fla.1994). Rather the test is one of control:

Whether one party is a mere agent rather than an independent contractor as to the other party is to be determined by measuring the right to control and not by considering only the actual control exercised by the latter over the former ... If the employer’s right to control the activities of an employee extends to the manner in which a task is to be performed, then the employee is not an independent contractor.

Parker v. Domino’s Pizza, 629 So.2d at 1027. See also Ortega v. General Motors Corp., 392 So.2d 40, 41 (Fla. 4th DCA 1980)(where the employee is merely subject to the control or direction of the employer as to the result to be procured, he is an independent contractor; if the employee is subject to the control of the employer as to the means to be used, then he is not an independent contractor).

Applying the “control” test to a franchise is not an easy task. On the one hand, a franchise clearly has an independent aspect to it. See, e.g., § 817.416(l)(b), Fla. Stat. Here, for example, Gellner Enterprises owned the van involved in the accident and was in sole control and management of its motor vehicles. Stanley Steemer does not hold any stock or have any ownership interest in Gellner Enterprises, did not employ O’Connor or any other Gellner Enterprise employee and does not hire, fire, or supervise any of Gellner Enterprises’s employees.

On the other hand, a franchisor by necessity must retain some control over the use of its names, goods or services. See Drexel v. Union Prescription Centers, Inc., 582 F.2d 781 (3d Cir.1978). Whether the control retained by the franchisor is also sufficient to establish an employer/employee relationship depends in each case upon the nature and extent of such control as defined in the agreement or by the actual practice of the parties. Drexel.

Here the parties’ franchise agreement states Stanley Steemer developed and manufactures the Stanley Steemer Carpet Cleaning machine and owns trade secrets, trademarks, service marks and patents related to carpet cleaning. Stanley Steemer granted Gellner Enterprises exclusive use of the Stanley Steemer trademarks, patents, and cleaning system and an exclusive license to own and operate a Stanley Steemer business in a specifically assigned geographical area. Gellner Enterprises was required to obtain Stanley Steemer’s express written consent to service customer locations outside of its area and to refer requests to service customer locations outside its area to other Stanley Steemer franchisees or to Stanley Steemer.

Gellner Enterprises was required to start its business within three months after the date of the agreement. Gellner Enterprises had to pay an initial licensing fee and then pay monthly royalty payments equal to six percent of its gross sales. Stanley Steemer provided bulletins which contained specifications and procedures for operating the business and provided initial training and any subsequent training deemed necessary for the proper operation of the business.

Gellner Enterprises was required to clean carpets and upholstery only with patented Stanley Steemer carpet cleaning machines and cleaning products and to strictly adhere to the Stanley Steemer method of cleaning. Gellner Enterprises agreed to observe all the requirements in the Stanley Steemer manuals and clean carpets and upholstery only in accordance with the procedures proscribed in those manuals.

Prior to starting business, Gellner Enterprises had to purchase at least one of the most recent Stanley Steemer carpet cleaning machines and a van in which it was to be mounted. The franchise agreement required Gellner Enterprises to transport the cleaning machines, equipment and supplies only in a van-type truck which meets Stanley Steemer’s specifications. Those specifications included the size, color, appearance and other characteristics incident to maintaining the Stanley Steemer image. Gellner Enterprises had to submit a written description of each truck it intended to use and Stanley Steemer had ten days in which to approve the truck. Only signs conforming to Stanley Steemer specifications could be used on the vehicle.

Stanley Steemer had to approve all advertising in advance and required Gellner Enterprises to contribute to advertising on a national basis. Gellner Enterprise employees had to wear uniforms which conform to Stanley Steemer’s specification for design, color, fabric, durability, cleanliness and other characteristics incident to maintaining the Stanley Steemer image. Gell-ner Enterprises was required to have public liability, products liability and workers compensation insurance and, except for workers compensation insurance, to insure both itself and Stanley Steemer.

In Mobil Oil Corporation v. Bransford, 648 So.2d 119 (Fla.1995), the Florida Supreme Court recognized the mere use of franchise logos and related advertisements does not necessarily indicate the franchisor has actual or apparent control over any substantial aspect of the franchisee’s business or employment decisions. Nor does the provision of routine contractual support services refute this conclusion. On the other hand, franchisors may well enter into an agency relationship with a franchisee if, by contract or action or representation, the franchisor has directly or apparently participated in some substantial way in directing or managing acts of the franchisee, beyond the mere fact of providing contractual franchise support activities.

In that case, the plaintiff Bransford went to a Mobil Mini Mart gas station owned by Mobil and leased to Berman. Bransford was attacked and beaten by one of Berman’s employees. Bransford sued Mobil claiming it had established an apparent agency relationship with Berman. Bransford alleged Mobil owned the property, Mobil products were sold in the station, Mobil trademarks and logos were used throughout the premises, and the franchise agreement required the use of Mobil symbols and the selling of Mobil products.

The court found Bransford’s allegations legally insufficient to plead a case against Mobil. Although the court spoke broadly in terms of both apparent and actual agency, Bransford’s action was based on apparent agency only. Thus Mobil Oil has limited value in helping us resolve this case.

In Ortega v. General Motors Corp., 392 So.2d 40, 41 (Fla. 4th DCA 1980), Ortega sued General Motors claiming it was vicariously liable for the negligence of its franchisee South Bay Equipment Company which allegedly caused the death of her husband. The court entered summary judgment for General Motors and Ortega appealed.

The franchise agreement specifically stated that South Bay was an independent contractor. The agreement also required South Bay to obtain General Motors’s approval for the location and design of the dealership, remain open for business during set hours and days, follow a uniform system of accounting specified by General Motors, make its records available for inspection by General Motors, establish minimum capital prescribed by General Motors, meet standards set by General Motors as to sales and customer services, maintain a parts department and customer service department, provide service for trucks sold by General Motors dealers, and obtain training for its service department by General Motors.

Despite these requirements, the fourth district concluded the method of operation of South Bay’s business on a day-to-day basis was controlled by South Bay as an independent contractor and not by General Motors. Thus the order granting summary judgment to General Motors was affirmed. The court noted South Bay is an independently owned company and General Motors owns none of its stock. General Motors did not regulate the hiring, firing or supervising of South Bay’s employees. South Bay exclusively determined those matters as well as wages and other employee benefits provided to its workers.

Several years later, however, the fourth district found the franchise agreement and operating manual from Domino’s Pizza generated a question of fact on the agency issue. Parker v. Domino’s Pizza, Inc., 629 So.2d 1026 (Fla. 4th DCA 1993), rev. denied, 639 So.2d 977 (Fla.1994). That case involved a personal injury action against the franchisor Domino’s, its franchisee and the franchisee’s delivery driver.

The Domino’s franchise agreement provided that the franchisee was an independent contractor. However, the agreement also imposed sales quotas, location sites and guidelines for changing locations, required that Domino’s approve the site and architectural plans, required managers to spend no less than forty hours per week at the store, mandated the use of Domino’s bookkeeping requirements and required the franchisee to submit weekly, monthly and annual reports. Domino’s also retained the right to advise the franchisee on improvements, food preparations, hiring, advertising and general operational procedures. The manual which Domino’s provided to its franchisees contained directions for almost every facet of the business.

The franchise agreements in Ortega, Domino’s and the present case all provide the franchisee is an independent contractor. In Villazon, the court observed it is not uncommon for parties to include con-clusory statements in documents with regard to the independence of the relationship of the parties. This may occur even when other contractual provisions and the totality of the circumstances reflect otherwise. The facts peculiar to each case must govern the ultimate disposition.

Plainly there is no “bright line” for determining when the requirements and restrictions in a franchise agreement renders the franchisee an agent of the franchisor. Because of the multitude of facts which must be examined to determine the nature of the parties’ relationship, we are unable to say, as a matter of law, that Gellner Enterprises is not an agent of Stanley Steemer. Accordingly, we reverse the summary judgment and remand for further proceedings.

REVERSED and REMANDED.

THOMPSON and TORPY, JJ., concur.

      . Gellner Enterprises was not providing services to Howard Font at the time of the accident.

      . Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, LP, 760 So.2d 126 (Fla.2000). The standard of appellate review for a grant of summary judgment is de novo. Id.

      . We have reviewed other pertinent cases— from our state and other jurisdictions — cited by the parties and have conducted our own independent research. Although the cases involve similar franchise agreement provisions, the courts have reached different conclusions on the agency issue. Compare Fernandez v. Valle, 364 So.2d 835 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 457 (Fla.1979); Patterson v. Western Auto Supply Co., 991 F.Supp. 1319 (M.D.Ala.1997); Drexel v. Union Prescription Centers, Inc., 582 F.2d 781 (3d Cir.1978); Singleton v. International Dairy Queen, Inc., 332 A.2d 160 (Super.Ct.Del.1975), with Miller ex rel. Bailey v. Piedmont Steam Company, Inc., 137 N.C.App. 520, 528 S.E.2d 923, rev. denied, 352 N.C. 590, 544 S.E.2d 782 (2000).


author: TORPY, J.

text:
    STATE of Florida, Appellant/Cross-appellee, v. Dwayne McKENZIE, Appellee/Cross-appellant.
    No. 5D02-3072.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for AppellanVCross-appellee.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appel-lee/Cross-appellant.
   TORPY, J.

See State v. Estevez, 753 So.2d 1 (Fla.1999).

AFFIRMED.

GRIFFIN and THOMPSON, JJ., concur.


author: THOMPSON, J.

text:
    George SKELLIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3598.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2003.
    George Skellie, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Appellant, George Skellie, appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. On 21 June 2000, Skellie entered nolo contendere pleas to burglary of a dwelling and grand theft. Skellie was sentenced as a habitual offender to 12 years of incarceration followed by 3 years of probation for the burglary. Skellie was also sentenced to a concurrent five year term of incarceration for the grand theft.

In his 3.850 motion, Skellie claimed that his plea to burglary was entered without full understanding due to ineffective assistance of counsel, who told him there was no defense to the burglary charge. Although Skellie waived all defenses by entering the plea, he nevertheless may be entitled to 3.850 relief if he can show that counsel did not adequately investigate or pursue a viable defense. Cf. Siegel v. State, 586 So.2d 1341 (Fla. 5th DCA 1991). Skellie alleged he told counsel that the building was not a dwelling, but was an upholstery shop, and he was employed by the owner of the business to do construction work on the inside of the building. Skellie told counsel he had permission from the owner to be in the building at the time the alleged burglary took place. The trial court denied relief, stating that consent to enter was not a complete defense, as Skellie could still be guilty of a burglary if he had remained on the premises surreptitiously. A person commits a burglary if he enters or remains in a dwelling, structure, or conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. See § 810.02(1)(a), Fla. Stat. (2002). The alternative “remaining in” theory of burglary is difficult to apply. In Delgado v. State, 776 So.2d 233 (Fla.2000), superseded by statute as stated in R.C. v. State, 793 So.2d 1078 n. 1 (Fla. 2d DCA 2001), the supreme court held that if a person is licensed or invited to enter a dwelling or other building, he cannot be convicted of burglary under the “remaining in” theory unless the person remains on the premises surreptitiously. The trial court cited Delgado and relied on it in finding that Skellie had not established that his attorney misadvised him.

Before Delgado, the “remaining in” theory of proving burglary did not require that a person’s continued presence in the dwelling or building be surreptitious. Rather, the state only had to prove that the consent to enter given by the owner or occupant had been withdrawn, a fact which could be established by circumstantial evidence. See, e.g., Raleigh v. State, 705 So.2d 1324 (Fla.1997), receded from by Delgado v. State, 776 So.2d 233 (Fla.2000); Jimenez v. State, 703 So.2d 437 (Fla.1997), receded from by Delgado v. State, 776 So.2d 233 (Fla.2000). The Florida Legislature expressly nullified the holding in Delgado. The legislature stated that in order for a burglary to occur, it is not necessary for the licensee or invitee to remain in the dwelling, structure, or conveyance surreptitiously. See § 810.015(1), Fla. Stat. (2002). While consensual entry remains an affirmative defense to burglary, the lack of consent may be established by circumstantial evidence. See § 810.015(3), Fla. Stat. (2002).

The question in this case is whether Skellie had permission from the owner to enter and remain in the building where the grand theft occurred. If so, and if such permission was not withdrawn or if Skellie did not remain in the building surreptitiously, he would have had a viable defense to the burglary charge, if not the grand theft charge. This would be so regardless of whether Delgado applied to appellant’s case. Skellie claimed that he told counsel that he had permission from the owner to be in the building at the time of the alleged grand theft, but defense counsel did not inform him that he had a complete defense to the burglary charge. Therefore, defendant stated a legally sufficient claim of ineffective assistance of counsel.

The trial court did not attach documents which could refute Skellie’s claim, by showing that Skellie did not have permission to enter, or that he remained on the premises surreptitiously. At the plea hearing on 21 June 2000, the prosecutor referred to a factual basis that was given by the state at an earlier hearing on 22 February 2000. However, the transcript of the 22 February hearing was not attached to the order denying relief. In denying relief, the trial court only speculated that appellant may not have had a complete defense, as Skellie may have remained on the premises surreptitiously. As the record before this court does not conclusively refute appellant’s claim, the order denying relief is reversed, and the case is remanded for the trial court to either attach documents refuting the claim of ineffective assistance of counsel, or hold an evidentiary hearing. Cf. Coley v. State, 801 So.2d 205 (Fla. 2d DCA 2001).

REVERSED and REMANDED.

SAWAYA, C.J., and PLEUS, J., concur.

      . Skellie entered his plea on 21 June 2000, whereas the final Delgado opinion was not issued until 24 August 2000. However, the initial Delgado opinion, later withdrawn and superseded by the published opinion, was issued on 3 February 2000. See Delgado v. State, 25 Fla. L. Weekly S79 (Fla. Feb. 3, 2000) (opinion withdrawn). The final Delgado opinion on 24 August 2000, announced that its decision would not apply retroactively to convictions that were already final. Skel-lie’s conviction was on appeal at the time the final Delgado opinion was issued, and therefore was not final. See Skellie v. State, 796 So.2d 1290 (Fla. 5th DCA 2001). However, the nullification of Delgado was stated by the legislature to apply retroactively to 1 February 2000. See § 810.015(2), Fla. Stat. (2002). It has been questioned whether the legislature could nullify Delgado retroactively. See, e.g., Foster v. State, - So.2d -, 2002 WL 1285453, 27 Fla. L. Weekly D1360 (Fla. 1st DCA June 12, 2002).


author: STEVENSON, J. STONE, J.,

text:
    David RAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3067.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.

      Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING OR CLARIFICATION

STEVENSON, J.

On motion for rehearing or clarification, we withdraw our prior opinion and issue the following in its place.

The appellant, David Ray, was stopped for riding his bicycle at night without the proper lights. Subsequently, based on Ray’s fidgety behavior, the deputy performed a weapons pat-down and retrieved crack cocaine rocks from Ray’s pocket. Ray pled no contest to a charge of possession of cocaine, reserving his right to appeal the trial court’s denial of his motion to suppress. Because the circumstances did not support a reasonable suspicion that Ray was carrying a weapon, we reverse.

The only witness to testify at the suppression hearing was Deputy Perry, an eleven-year law enforcement veteran. Perry stated that he was patrolling an area known for its illegal drug activity and stopped Ray for riding a bicycle at night without proper illumination. By the time the deputy got to Ray, he had stopped and was straddling the bike, talking to several individuals in a car. The deputy described Ray’s movements as “furtive,” explaining that “[h]e put his body between myself and him” and “[h]e wouldn’t stay open.” Additionally, the deputy stated that despite several requests, Ray did not want to remove his hands from his jacket pocket. Ray’s initial response to the deputy was “why are you bothering me?” The deputy then came around the car, stood directly behind Ray and asked Ray to put his hands on his head. According to Perry, Ray’s reluctance to remove and keep his hands away from his pockets coupled with the deputy’s knowledge of the link between drugs and weapons made him concerned for his safety.

Although the deputy testified that he did not observe any bulges in Ray’s clothing, after having Ray place his hands on his head, the deputy inquired whether Ray had a weapon. When Ray said “no,” the deputy asked for Ray’s permission to pat him down. According to the deputy, Ray consented. While conducting the pat-down, the deputy felt a plastic baggie in Ray’s front, left pocket. The deputy expressly denied that he manipulated the bag in any way and testified that, based on his experience and training, he knew that such bags were used for drug packaging. The deputy removed the item and found crack cocaine rocks. On these facts, the trial court denied Ray’s motion to suppress, finding that Ray’s nervous behavior supported the weapons pat-down. The trial court’s determination that the facts were sufficient to give the deputy reasonable suspicion to believe Ray was armed is reviewed de novo on appeal. See Pagan v. State, 830 So.2d 792, 806 (Fla.2002)(citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and Connor v. State, 803 So.2d 598 (Fla.2001), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002)), cert. denied, — U.S. -, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003).

There is no question that the stop itself was valid. See, e.g., State v. Wilson, 725 So.2d 1143 (Fla. 2d DCA 1998). Since the stop was valid, the question becomes whether the deputy’s weapons pat-down was permissible. Following a stop, “police officers are authorized to execute a pat-down for weapons only where they have a reasonable suspicion to believe that a suspect is armed with a dangerous weapon.” Campuzano v. State, 771 So.2d 1238, 1243 (Fla. 4th DCA 2000); see also § 901.151(5), Fla. Stat. (2002); Johnson v. State, 785 So.2d 1224, 1226 (Fla. 4th DCA 2001)(stating that “a [weapons] pat down is authorized when ... the officer has probable cause to believe that the person stopped is armed with a dangerous weapon”). Such a pat-down will be justified where “a reasonably prudent officer, under the circumstances which exist at the time of the stop, would be warranted in the belief that his safety, or the safety of others, was in danger.” L.D. v. State, 770 So.2d 164, 165 (Fla. 4th DCA 2000).

One of the recognized circumstances justifying a weapons pat-down is the combination of the defendant’s nervousness and the officer’s observation of a bulge in the defendant’s clothing. See, e.g., Richardson v. State, 599 So.2d 703 (Fla. 1st DCA 1992); Graham v. State, 495 So.2d 852 (Fla. 4th DCA 1986). Here, Perry expressly acknowledged that he did not observe any bulges in Ray’s clothing. As for the deputy’s “knowledge” of the link between drugs and weapons, here, there was nothing linking Ray to drugs, or. to any other potential criminal activity for that matter. Perry stopped Ray simply to discuss Ray’s failure to have the proper fighting on his bicycle. Consequently, we are left with the deputy’s testimony that Ray was reluctant to remove his hands from his pockets. We conclude that the circumstances presented in the instant case are insufficient to establish a reasonable suspicion that Ray was armed with a dangerous weapon.

This case is similar to several others where, following a non-criminal traffic stop, the defendant appeared nervous and kept his hands in or near his pockets. In E.H. v. State, 593 So.2d 243 (Fla. 5th DCA 1991), the court held that an officer’s pat-down search pursuant to a traffic stop lacked “probable cause” where the defendant kept reaching into his pocket but the officer noticed no bulge in the defendant’s clothing that would indicate that he was carrying a weapon and there was no indication or suspicion that the defendant had been engaged in criminal activity at the time of the stop. Similarly, in Coleman v. State, 723 So.2d 387 (Fla. 2d DCA 1999), another traffic stop case, the court held that defendant’s nervousness and the fact that he was holding his hand over his pants pocket was not sufficient to justify a weapons pat-down. The court in Coleman noted that the officer acknowledged that he did not see any bulges in the defendant’s clothing and the officer had not observed any criminal activity afoot. See id. at 388.

Additionally, the State would have us uphold the weapons pat-down on the ground that Ray consented. While the trial court never reached this issue, on these facts, it cannot be said that Ray’s “consent” was anything other than acquiescence to a show of police authority. The deputy stopped the defendant, in the dark, ordered him to remove his hands from his pockets, approached him from behind, and then ordered him to place his hands on his head. It was only after ordering Ray to place his hands on his head that the deputy asked for “permission” to search Ray. As the court stated in State v. Iaccarino, 767 So.2d 470, 476 (Fla. 2d DCA 2000):

When the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.

Lastly, even had the pat-down been proper, the testimony in the instant record was woefully inadequate to allow the officer to be able to legally retrieve the item from Ray’s pocket based on the “plain feel” doctrine. See Doctor v. State, 596 So.2d 442 (Fla.1992). The testimony in this regard on direct examination was as follows:

Q. [State] You patted him down and you said you felt what?
A. [Officer Perry] I felt a plastic bagg[ie] in the front left pocket.
Q. Did you manipulate it in any way?
A. No, I did not.
Q. Based on your training and experience what did you believe this plastic substance to be?
A. Based upon my training and experience I know it’s often used for packaging, selling, and distribution of narcotics.
Q. What did you do as a result of feeling that?
A. I removed plastic baggies containing several pieces of rock cocaine.

Perry did not testify that he felt anything unique about the package in Ray’s pocket which would indicate that narcotics were contained within it. Officer Perry’s testimony merely established that he felt a plastic baggie and believed that it contained narcotics because narcotics are frequently packaged in plastic baggies. In order to justify a seizure based on the plain feel doctrine, at a minimum, the officer must testify that, based on his experience, the item’s contour or mass makes its identity as contraband immediately apparent. See Jordan v. State, 664 So.2d 272 (Fla. 5th DCA 1995). The State failed to establish that Perry had probable cause to remove the plastic baggie from Ray’s pocket.

Consequently, the trial court erred in denying Ray’s motion to suppress. As the ruling on the motion was dispositive of the possession charge, we remand with instructions that Ray be discharged.

REVERSED and REMANDED.

WARNER, J., concurs.

STONE, J., concurs specially with opinion.

STONE, J.,

concurring specially.

I do not agree with the majority that the officer, on these facts, could not conduct the initial pat down for weapons out of concern for safety. Nevertheless, I concur in reversing based on the unlawful seizure of the item from Ray’s pocket.

      . While the term "probable cause” is employed in the statute and in much of the case law addressing the circumstances required to support a weapons pat-down, our supreme court has held that, in this context, the term "probable cause” is "not utilized in the same sense that the term is used when referring to arrests or search warrants.” State v. Webb, 398 So.2d 820, 824 (Fla.1981).


author: KNOLL, Justice. PER CURIAM.

text:
    LOUISIANA ASSESSORS’ RETIREMENT FUND v. CITY OF NEW ORLEANS, et al.
    No. 2002-CA-1435.
    Supreme Court of Louisiana.
    Feb. 7, 2003.
    Opinion Denying Rehearing April 21, 2003.
    Daniel Clay Wirtz, Robert Alan Breith-raupt, for Appellant.
    Barry W. Ashe, Charles H. Braud, Jr., Baton Rouge, Richard P. Ieyoub, Attorney General, Denise M. Pilie, Dana M. Shelton, Phillip A. Wittmann, Deborah L. Wilson, Charles L. Rice, Jr., Eric O. Person, New Orleans, Wayne J. Lee, Joyce G. Joseph, for Respondent.
    G. Anthony Gelderman, III, Erin C. Hangarthner, Robert D. Klausner, Robert E. Tarcza, New Orleans, Tina M. Walsh, for Sheriffs’ Pension & Relief Fund Board (Amicus Curiae)
   KNOLL, Justice.

The Louisiana Assessors’ Retirement Fund (the Assessors’ Fund) has appealed the district court’s judgment which declared La.Rev.Stat. Ann. §§ 11:1481 and 11:82 unconstitutional on grounds of equal protection. For reasons that follow, we reverse the district court’s holding and remand this case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On April 18, 1994, the Assessors’ Fund filed suit against the city of New Orleans, the city’s treasurer, and the city’s collector of revenue (the City) to recover amounts allegedly owed to the Assessors’ Fund by the city pursuant to La.Rev.Stat. Ann. §§ 11:1481 and 11:82. Among other defenses raised, the City filed a reconven-tional demand for declaratory judgment seeking to have La.Rev.Stat. [¡¡Ann. § 11:1481 declared unconstitutional on equal protection grounds because it allegedly imposes a disproportionate financial burden on the taxpayers of the city of New Orleans compared to other political subdivisions. Subsequently, Marc Morial, then mayor of the city of New Orleans (Morial), filed a petition for intervention, appearing in his capacity as mayor of the city and in his individual capacity as a city taxpayer. In his petition of intervention, Morial particularly asserted that La.Rev.Stat. Ann. § 11:1481 was unconstitutional because it violated the guarantee of equal protection set out in the United States and Louisiana constitutions.

After a three-day trial on the merits, the district judge agreed with the contention that La.Rev.Stat. Ann. §§ 11:1481 and 11:82 were unconstitutional on equal protection grounds. In particular, the district court stated:

[T]he enforcement of the statute[s] as written produces discriminatory results against the City of New Orleans. This Court finds the statutes violate the equal protection clause of the U.S. Constitution and the Louisiana Constitution.

Thereafter, the trial court signed a judgment that reads in pertinent part:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of the Defendants, and against the Plaintiff, Louisiana Assessors’ Retirement Fund, finding that La. R.S. 11:1481 and La. R.S. 11:82 violate the Equal Protection Clause of the United States Constitution and the Louisiana Constitution.

DISCUSSION

As noted above, the defendants in the principal demand, the city of New Orleans, the city’s treasurer, and the city’s collector of revenue, sought to have La.Rev.Stat.3 Ann. § 11:1481 declared unconstitutional on equal protection grounds. From the outset, we find the district court improperly found these municipal defendants fell within the scope of protection of the equal protection clauses of the United States and Louisiana Constitutions. To the contrary, it is well established the City, as a political subdivision of the state rather than a “person,” is without the protections of La. Const. Ann. art. I, the Declaration of Rights Article, or the Due Process and Equal Protection Clauses of the United States Constitution. The jurisprudence has long held that municipalities are not entitled to Fourteenth Amendment protections. Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40, 53 S.Ct. 431, 77 L.Ed. 1015; Risty v. Chicago, R.I. & P. Ry. Co., 270 U.S. 378, 390, 46 S.Ct. 236, 70 L.Ed. 641 (1926) (“The power of the state and its agencies over municipal corporations within its territory is not restrained by the provisions of the Fourteenth Amendment.”); Warren County, Miss. v. Hester, 219 La. 763, 54 So.2d 12, 18 (1951), cert. denied, 342 U.S. 877, 72 S.Ct. 167, 96 L.Ed. 659 (1951) (“[I]t is plain that the Fourteenth Amendment of the Federal Constitution, declaring that no state shall deprive any person of life, liberty or property without due process of law nor deny any person within its jurisdiction the equal protection of the laws, is utterly without application to the political subdivisions of a state, which cannot be viewed as a person within the purview of the constitutional provision.”); Morial v. Smith & Wesson Corp., 2000-1132 (La.4/3/01), 785 So.2d 1, 13; State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949); 2 DENNIS JENSEN & GAIL A. O’GRADNEY, MCQUILLIN MUNICIPAL CORPORATIONS § 4.20 at 60 (3rd ed. 1996) (“Municipal corporations are political subdivisions of the state, created for exercising any governmental powers of the state as may be entrusted to them and they may not assert the protection of the due process clause against action of the state government.”). See also City of Newark v. New Jersey, 262 U.S. 192, 43 S.Ct. 539, 67 L.Ed. 943 (1923); City of New York v. Richardson, 473 F.2d 923 (2nd Cir.1973); Yonkers Comm’n on Human Rights v. City of Yonkers, 654 F.Supp. 544 (S.D.N.Y.1987); Bartels v. Roussel, 303 So.2d 833 (La.App. 1 Cir.1974); Penny v. Bowden, 199 So.2d 345 (La.App. 3 Cir.1967). Correspondingly, Article I of the Louisiana Constitution protects only the rights of “persons” and does not protect government entities against unjust government action. Morial, 785 So.2d at 13. Therefore, the trial court erred when it granted judgment in favor of these municipal defendants on grounds of the equal protection clause.

As to Morial’s separate intervention as a city taxpayer in which he asserts the unconstitutionality of La.Rev.Stat. Ann. § 11:1481 on equal protection grounds, we note nothing in the trial court’s written reasons for judgment or the judgment itself indicates it even reached Morial’s contentions as an individual separate from that urged by the City.

LaCode Civ. PROC. Ann. art. 1031 identifies an intervention as “[a] demand incidental to the principal demand.” La. Code Civ. PROC. Ann. art. 1091 allows a third person having an interest in a pending action to intervene. The intervenor may join with the plaintiffs, unite with the defendant, or oppose both plaintiff and defendant. Id. Although Morial’s alignment in the litigation is not specified in the pleading of intervention, a fair reading of the pleadings of intervention which raises the issue of the constitutionality of LaRev. Stat. Ann. § 11:1481 reveals an alignment with the defendants. Notwithstanding, particularly as applicable in the present case, it is clear Morial the intervenor is a separate party to the litigation. Though normally that distinction may be of little or no moment, it is critical in the case sub judice because the multiple municipal defendants cannot raise the issue of equal protection and a properly qualified interve-nor as a separate individual taxpayer 15may. Moreover, even though the trial court judgment is styled “in favor of the Defendants,” no mention is made of Morial as an intervenor in the litigation or the disposition of his assertion. Therefore, to the extent the judgment may be construed as being applicable to Morial in his individual or private capacity it is also reversed. See n5, supra.

For the foregoing reasons, we reverse the judgment of the trial court and remand this matter to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

JOHNSON, J., concurs in result.

ON APPLICATION FOR REHEARING

PER CURIAM.

The application for rehearing is denied. In the opinion of February 7, 2003, the Court majority did not directly address the issue of Mayor Marc Morial’s standing as an intervenor. We did not conclude that Mayor Morial had standing, nor did we remand the matter to the district court in particular for further consideration of his claims. Rather, this Court simply reversed the district court’s judgment of unconstitutionality, and remanded the case “to the trial court for further proceedings consistent with this opinion,” leaving it within the discretion of the district court to determine what issues or claims remained for resolution.

Rehearing denied.

      . La. Const. Ann. art. V, § 5(D) provides, in part, that a case shall be appealable to this Court if "a law or ordinance has been declared unconstitutional, ...”

      . La.Rev.Stat. Ann. § ll:1481(l)(a) directs the city tax collector for the city of New Orleans to remit to the Assessors’ Fund "one percent of taxes shown to be collectible by the tax rolls, including that shown on the tax roll to be exempted by virtue of homestead exemptions, for the city of New Orleans.” La.Rev. Stat. Ann. § 11:82 provides, in pertinent part, that ad valorem tax contributions to state and statewide public retirement systems shall be as follows: "(1) Assessors' Retirement Fund. Dedicated funds are .25% (1% for Orleans Parish) of aggregate taxes shown to be collectible by the tax rolls of each parish.

      . We note that although the trial court found both statutes unconstitutional, the pleadings filed by the City and Morial did not specifically allege the unconstitutionality of La.Rev.Stat. Ann. § 11:82. Even though our jurisprudence is firmly established that the constitutionality of a statute must be attacked with specificity, because of our disposition of this case we do not address this issue.

      . Because of this ruling, the district court did not reach the City's additional arguments that the statutes also violate the provisions of La. Const. Ann. art. VI, §§ 26 and 32 (prohibiting the diversion of the proceeds of special taxes), § 19 (limiting the state's right to impose ad valorem taxes), and La. Const. Ann. art. VI (limiting interference with home rule charter governments).

      . We caution the trial court not to infer any ruling on our potential resolution of Morial’s assertion of the issue of equal protection. The trial court should apply the appropriate procedural and substantive law, with its attendant interpretative jurisprudence, regarding Morial's intervention. In its consideration of this issue, the trial court should not infer from our opinion that this Court is predisposed to answer this question in any particular way.


author: GRAVES, J., for the Court.

text:
    Dexter Tramayne WELLS v. STATE of Mississippi.
    No. 2002-KA-00401-SCT.
    Supreme Court of Mississippi.
    May 8, 2003.
    Rehearing Denied Aug. 7, 2003.

      Ross Parker Simons, Thomas L. Mussel-man, Biloxi, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorneys for appellee.
    BEFORE SMITH, P.J., EASLEY and GRAVES, JJ.
   GRAVES, J., for the Court.

¶ 1. Dexter Tramayne Wells (Wells) was convicted by a jury in the Circuit Court of Jackson County of aggravated assault and murder. He was sentenced to twenty years imprisonment on the aggravated assault conviction and life imprisonment on the murder conviction. The sentences are concurrent. From these convictions and sentences, Wells appeals and presents the following issues for this Court’s review:

I. Whether the trial court erred in admitting Chris Wells’s testimony under M.R.E. 801(d)(1)(b), 803(1) and 803(2).
II. Whether the trial court erred in granting jury instructions S-7 and S-ll.
III. Whether the trial court abused its discretion when it ruled that recross-examination is not allowed in Mississippi.
IV. Whether the verdicts were against the overwhelming weight of the evidence.
V. Whether Miss.Code Ann. § 47-5-139(l)(a) is unconstitutional.

FACTS

¶ 2. On January 27, 1996, Willie Sampson McCorvey a/k/a Frank borrowed the truck of his nephew, Darius Vaxter, to go to the store. He did not return. McCor-vey was later found murdered on Freeman Road in Jackson County, Mississippi. Cynthia Williams, the girlfriend of Vaxter, noticed that the truck had returned, but it was parked in a different place from where McCorvey or Vaxter would normally park. A masked perpetrator, known to us now as Victor McCoy, knocked first and when Williams would not allow him to enter, he kicked the door in and entered the trailer. Williams was shot in the back of her left shoulder. Williams called out to Vaxter for help. A struggle ensued between McCoy and Vaxter. During the struggle, Vaxter unmasked McCoy, and once McCoy was identified, he called out to Train a/k/a Dexter Wells to help him. Once Williams realized that someone was with McCoy, she hurried to lock the front door and called 911. From the window by the front door, Williams identified Wells as the other assailant. Wells unsuccessfully tried to break into the front door and broke out the front outdoor light. McCoy and Wells fled the scene prior to the police’s arrival. The police retrieved a Tec 9 gun at the scene. No latent fingerprints were retrieved because the gun was muddy. Wells and McCoy were indicted for Count I aggravated assault against Williams, Count II aggravated assault of Vaxter and Count III murder of McCorvey on February 14, 1997. McCoy entered a guilty plea to both counts of aggravated assault and to manslaughter on April 28, 1998, and May 1, 1998. Subsequently, he was sentenced to twenty years on each count to be served concurrently in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. Wells was tried and convicted of Count I aggravated assault of Williams and Count III murder of McCorvey on December 4, 2001. Wells was sentenced to twenty years imprisonment on Count I and to life imprisonment on Count II in the custody of the MDOC to run concurrently. The trial court denied Well’s motion for JNOV or in the alternative a new trial. From that denial, WeU’s has perfected this appeal.

DISCUSSION

Admissibility of Chris Wells’s Testimony

4. Wells argues that the State failed to meet all the required rules for admission of the statement of his cousin, Chris Wells under the hearsay exception M.R.E. 801(d)(1)(b) for the following reasons: (1) Victor McCoy was not subject to cross-examination concerning the statement alleged by Chris Wells; (2) the statement made by Chris Wells was not consistent with McCoy’s testimony; and (3) the statement was not offered to rebut an express or implied charge against McCoy by the defense of recent fabrication or improper influence or motive. Wells also contends that the statement allegedly made to Chris Wells by McCoy was not made while McCoy was perceiving an event or immediately thereafter. Wells further contends that there was no testimony concerning the lapse of time between the murder and when McCoy entered the vehicle with Chris and Byron Wells. Wells argues that the requirement for spontaneity has not been met. Wells also argues that there was no testimony that McCoy described or explained the event.

¶ 5. There was a pre-trial motion in li-mine to exclude statements made by McCoy to Chris Wells. Chris Wells stated that McCoy made statements to him after McCoy fled from Vaxter’s home on the night of January 27, 1996 when McCoy flagged down the car driven by McCoy’s uncle Bryon Wells. Chris Wells was a passenger in the car. Chris Wells described McCoy as excited when he entered the car and that he could hear it in his voice. McCoy indicated that he wanted to go to Gautier. Chris Wells testified that McCoy stated, “Me and Train done killed Frank.” Chris Wells further stated that when Byron Wells asked McCoy about Wells’s whereabouts, he said, “I don’t know. He left me.” However, in an earlier statement given to police, Chris Wells apparently said after McCoy calmed down, McCoy declared that he and Wells had killed Frank.

¶ 6. The judge took the arguments of counsel under advisement and decided not to make a ruling on the motion at the time. Before Chris Wells’s testimony, Wells renewed his objection that Chris Wells’s testimony should be excluded on the basis of not falling under any hearsay exception. The court ruled as follows:

BY THE COURT: Well, this court has done a lot of research. And, as y’all know, we listened to the testimony of Victor McCoy during the lunch break. And although this court is first to admit that Mr. McCoy’s testimony was, for lack of a better way of saying it, all over the page, it started out he did it alone, then he went to he admitted he gave that statement. Repeatedly, said, if he said it, it must have been true. Then he also tried to say, at one point, that he didn’t really remember the details. So, he’s really all over the place in his testimony.
Clearly, in the brief cross-examination done by the defense attorney, Mr. Mus-selman, if not directly, he certainly implied that he gave that statement to the Court simply to get a deal from the State. So, I think that puts this squarely under 801(d)(1)(b), a prior consistent statement made before the statement we’re referring to, is one reason that it’s admissible.
I’ve also looked at the other, if in fact the — and 801 says it’s not hearsay at all. I’ve also looked at the other cases concerning 803, as to hearsay exceptions, and I also find that his statements fall under hearsay exception 803(1) and 803(2). It’s my understanding that these are statements — this was a statement made shortly after the incident. I have looked — Mr. Musselman and I had a discussion earlier about the time span. I don’t know the exact time span, but I know it’s after leaving the scene, catching a ride with somebody. And, I’ll hear from the witness, I believe, the — I don’t know how many miles that is eight, ten miles from Moss Point. I think you said in between Moss Point and Gautier, which is several miles apart, so you’re not talking about a long time span. And I can’t find any case law that says there is any particular time involved. It’s the circumstances of the statement. And I’m not convinced that because they were made immediately afterwards, before he had time for any reflection, that they are reliable, based upon that, which would fall under 803(1) and fall into, but that’s all the time the Court has had to do the research. So, I’m denying your motion in limine and I’m going to allow the witness to testify for the State.

¶ 7. M.R.E. 801(d)(1)(b) states in pertinent part:

(d) Statements Which Are Not Hearsay. A statement is not hearsay if: (1) Prior Statement by Witness. The de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive

The prior consistent statement of McCoy was properly admitted. McCoy, the de-clarant, admitted at trial that the statement which he gave to police in accordance with his plea agreement was a true statement. In that statement, he said that he and Wells were together when McCorvey was murdered and that they both shot the weapon used to commit the murder at the time McCorvey was shot. He also admitted that Wells was with him at Darius Vaxter’s trailer because he called out to him for help. However, while on the stand McCoy stated that he was alone when he murdered McCorvey, when he shot Williams and when he pistol-whipped Vax-ter. Also during his testimony, McCoy stated on numerous occasions that he could not remember what happened that night. McCoy was not a cooperative witness which is evidenced by the trial judge’s statement that “Mr. McCoy’s testimony was, for lack of a better way of saying it, all over the page, it started out he did it alone, then he went to he admitted he gave that statement. Repeatedly, McCoy said, if he said it, it must have been true. Then he also tried to say, at one point, that he didn’t really remember the details. So, he’s really all over the place in his testimony.”

¶ 8. The statement made by Chris Wells is consistent with McCoy’s written statement and was offered to rebut an express or implied charge against McCoy for fabricating a previous statement by later stating on the witness stand that he was alone when the crimes took place. A prior inconsistent statement may be used to rebut the testimony of a witness whose memory fails him to prevent “an unwilling witness from seeking refuge in a lack of recollection.” Bush v. State, 667 So.2d 26, 28 (Miss.1996).

¶ 9. Chris Wells stated that McCoy said that he and Wells killed McCorvey and that Wells had left McCoy at Vaxter’s house. This is consistent with McCoy’s earlier written statement that he and Wells were together on the night of January 27, 1996, and that they acted together to commit the crimes. For these reasons, we find that the trial judge properly admitted the statement McCoy made to Chris Wells into evidence.

¶ 10. The statement is also admissible in under Rule 803(1) & (2) which states:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition made while the de-clarant was perceiving the event or condition or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

¶ 11. The statement made to Chris Wells by McCoy falls under Rule 803(1) because McCoy explained that he and Wells had killed McCorvey to Chris Wells, the first person he encountered after leaving Vaxter’s trailer. “To be admissible under this exception, the statement must be spontaneous. The determination of spontaneity ‘is a question for the trial judge, whose action should not be overturned unless this Court would be justified in concluding that under all and any reasonable interpretation of the facts, the exclamation could not have been spontaneous.’ ” Clark v. State, 693 So.2d 927, 932 (Miss.1997) (citing Evans v. State, 547 So.2d 38, 41 (Miss.1989)).

¶ 12. Upon killing McCorvey, McCoy immediately drove in Vaxter’s truck to Vaxter’s home and assaulted both Williams and Vaxter. After his fight with Vaxter, McCoy managed to run away and flagged down a car. In the car on the way to Gautier, McCoy told Chris Wells about the murder. In a previous statement given to the police, Chris Wells stated that once they got around Gautier, McCoy calmed down enough to tell him that he and Wells had killed McCorvey.

¶ 13. Since Gautier and the Three Rivers Community in Jackson County are only several miles apart, we agree with the trial court that it is inconsequential whether the statement “Me and Train done lolled Frank” was made as soon as McCoy entered the car or whether it was made in route to Gautier. In either event, not very much time passed between the time McCoy entered the car and his statement. Therefore, we conclude that the statement was sufficiently contemporaneous to fit within the exception and that the trial court did not err in admitting McCoy’s statement into evidence under the M.R.E. 803(1).

¶ 14. The statement made to Chris Wells by McCoy is also admissible as an excited utterance under M.R.E. 803(2). McCoy made the statement to Chris Wells while still under the stress of startling events. “The reliability of an excited utterance is based on the premise that circumstances may place the declar-ant in such an excited state as to temporarily impede the capacity for reflection. This exception is broader in scope than the ‘present sense impression’ exception in that the statement need only ‘relate’ to the startling event as opposed to ‘describing’ it.” Clark v. State, 693 So.2d at 932.

¶ 15. When Chris and Byron Wells picked McCoy up, he was running from the scene of a crime to evade the police. Surely, he was still under the stress of the incident. McCoy never had time to calm down after the murder. McCoy committed one violent attack and went on to Vaxter’s home and committed another. Furthermore, Chris Wells testified that McCoy was excited when they picked him up and that he could hear it in McCoy’s voice. Additionally, in an earlier statement that Chris Wells had made to the police, he described McCoy as visibly upset when he got into the car. The statement made by McCoy related to the event and was made within hours of it. In addition, the statement was made while he was excited. Therefore, the trial court committed no error in admitting the statement into evidence under the excited utterance exception.

Jury Instructions

¶ 16. Wells argues that jury instructions S-7 and S-11 are Hornburger instructions on aiding and abetting and were condemned by the Supreme Court in Milano v. State, 790 So.2d 179, 184-85 (Miss.2001).

¶ 17. Jury Instruction S-7 states:

The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, wilfully and feloniously doing any act which is an element of the crime, or immediately connected with it or leading to its commission, is as much a principal as if he had, with his own hand, committed the whole offense.
Therefore, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Dexter Tramayne Wells, was present at the time of the murder of Willie Sampson McCorvey, and consented and encouraged the commission of that crime, and did knowingly, wilfully, unlawfully, and feloniously do any act which is an element of that crime, or immediately connected with that crime, or leading to its commission, then you shall find defendant, Dexter Tramayne Wells, guilty of the crime of murder.

¶ 18. Jury Instruction S-11 states:

The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, or immediately connected with it or leading to its commission, is as much a principal as if he had, with his own hand, committed the whole offense.
Therefore, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Dexter Tramayne Wells, was present at time of the aggravated assault of Cynthia Williams, and consented to and encouraged the commission of that crime, and did knowingly, wilfully, unlawfully, and feloniously do any act which is an element of that crime, or immediately connected with that crime, or leading to its commission, then you shall find defendant, Dexter Tramayne Wells, guilty of the crime of aggravated assault.

Wells objected to S-11 as duplicative of jury instruction S-5. Wells also objected to S-7 and S-11 because the court had given S-5, a general statement of the law on aiding and abetting. The attorney for Wells made the following objection: “Judge, for the record, we object to both. The only change — it’s a different instruction and the only thing they added was a half sentence, to obviously, to try and get it before the jury three times, the same principle.” Both instructions were given.

¶ 19. The State correctly asserted that Wells did not preserve this issue for the purposes of appeal. The failure of an offended party to properly object to a jury instruction bars the issue on appeal. Jones v. State, 776 So.2d 643, 653 (Miss.2000).

It is ... the rule of this Court that no assignment of error based on the giving of an instruction to the jury will be considered on appeal unless a specific objection was made to the instruction in the trial court stating the particular ground or grounds for such objection. However, in extreme cases, this Court may raise an objection to a jury instruction in order to prevent manifest injustice.

Watson v. State, 483 So.2d 1326, 1329 (Miss.1986). “A general objection [or one different from the one argued on appeal] to a jury instruction does not suffice to preserve the issue for appeal.” Wells made no specific objection to jury instructions S-7 and S-ll based on the issues he has raised on appeal. For this reason, this issue is waived. Id.

Recross-examination

¶ 20. At the conclusion of redirect examination of Officer Robert Mabens, an investigator for the Jackson County Sheriffs Department, the following colloquy transpired:

BY MR. MUSSELMAN: Judge, I have one follow-up question.
By MR. MUSSELMAN (continuing):
Q. Mr. Lawrence wanted you to read a little but. I want you to read—
BY THE COURT: Wait a minute. Approach the bench.
(At the bench.)
BY THE COURT: We don’t have recross.
BY MR. LAWRENCE: I’d object.
BY MR. MUSSELMAN: Judge, we want to go into the next part, about her saying something—
BY THE COURT: Which part?
BY MR. LAWRENCE: I object, Judge.
BY MR. MUSSELMAN: Where she says, “ I’m not trying to tell you all no story. I told the lady on the 911 tape.” I think I can get into that.
BY THE COURT: We don’t have recross.
BY MR. MUSSELMAN: Okay, I want to put this on the record, though, Judge.
BY THE COURT: Go ahead.
BY MR. MUSSELMAN: Okay. I’d proffer my recross-examination to you that I would have officer Mabens go through the next couple of lines, after Mr. Lawrence had him stop reading, where she said, “If you get that 911 tape, I told the lady,” and then she said, “I’m not trying to tell you all no story.”

¶ 21. Wells contends that the trial court erred in refusing to allow him to recross-examine the investigator in order to raise the issue of spoliation of evidence. Wells directs us to Hubbard v. State, 437 So.2d 430, 434 (Miss.1983), for the proposition that recross-examination is allowed under Mississippi law and that the trial judge’s refusal was a violation of his constitutional rights.

¶ 22. Wells correctly asserts that recross-examination is allowed. However, “recross examination may be limited by the trial judge in his sound discretion.” Id. “Denial of recross examination is appropriate where there is no claim of oversight and no reason stated why the matter was not inquired into on the cross-examination.” Wells did not raise a claim of oversight in his objection nor did he state a reason why he did not inquire into to the issue during his opportunity for cross-examination. Id. A review of the record reveals that the trial judge allowed full cross-examination and if counsel did not take advantage of that opportunity, the error should not be imputed to the trial judge. For the reasons stated, this issue is meritless.

Sufficiency of the Evidence

¶ 23. Wells argues that the jury’s verdict convicting him of aggravated assault and murder was not based on legally sufficient evidence. Wells asserts that there is no testimony on any action by Wells that will satisfy the State’s burden of proving beyond a reasonable doubt that Wells committed the elements of the crime of aggravated assault. Well also argues that the evidence against him for the murder of McCorvey is insufficient because the sole witness to the murder, McCoy, testified that he was alone when the crime occurred. Wells maintains that the only testimony which linked him to the murder was the hearsay testimony of Chris Wells.

¶ 24. When reviewing the sufficiency of evidence “all evidence and inferences derived therefrom, tending to support the verdict, must be accepted as true, while all evidence favoring the defendant must be disregarded.” Ballenger v. State, 667 So.2d 1242, 1252-53 (Miss.1995). A jury verdict cannot be reversed “unless it is found that no reasonable and fairminded hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.” Id.

¶ 25. One who acts with others in the commission of a crime and aids and abets is responsible as a principal in the offense. Bass v. State, 231 So.2d 495, 496 (Miss.1970). Miss.Code Ann § 97-3-7(2)(a) & (b) (Rev.2000) states:

(2) 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—19(l)(a) & (b) (Rev.2000) states:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being; (b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual;

¶ 26. McCoy pleaded guilty to murdering McCorvey, to shooting Williams and to pistol-whipping Vaxter. McCoy also admitted in his statement for his plea agreement that Wells shot at McCorvey and that he called to Wells to assist him while he was fighting with Vaxter at Vaxter’s home. Furthermore, Chris Wells testified that McCoy stated that he and Wells killed McCorvey and that Wells had left McCoy at Vaxter’s home. Additionally, Williams testified that when McCoy called out, “Train help me. Help me. They got me. They got me,” she realized that there was someone with McCoy. She stated that she quickly ran to lock the door to call the police and she could see Train a/k/a Wells through the window as he tried unsuccessfully to enter the trailer. Additionally, she identified Wells in court as the man she saw from in the window of the trailer on the night in question. She further testified that Wells knocked the front light out by the door and ran off when he heard her talking to the 911 operator.

¶ 27. The evidence reveals that Wells acted with McCoy in the commission of the crimes of aggravated assault against Williams and the murder of McCorvey. The jury is the finder of facts, and its duty is to weigh the credibility and veracity of each witness. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). The jury also had the opportunity to observe the demeanor of the witnesses. Upon hearing all of the testimony, the jury convicted Wells of aggravated assault and murder. The evidence is sufficient that a reasonable fair-minded juror could have found Wells guilty; therefore, no reversible error was committed.

Sentencing

¶ 28. Wells argues that Miss.Code Ann. § 47-5-139(l)(a) is unconstitutional because it makes an age-based distinction which lengthens a criminal sentence simply because of the age of the inmate. Miss.Code Ann. § 47-5-139(l)(a) (Rev. 2000) states in pertinent part:

(1) An inmate shall not be eligible for the earned time allowance if: (a) The inmate was sentenced to life imprisonment; but an inmate, except an inmate sentenced to life imprisonment for capital murder, who has reached the age of sixty-five (65) or older and who has served at least fifteen (15) years may petition the sentencing court for conditional release;

Wells furthers contends that it is improper for the court to impose a harsher sentence for a like crime conditioned on the age of the offender.

¶ 29. Wells never raised this argument in the trial court or in his motion for JNOV or in the alternative a new trial. This Court continues to adhere to the rule that when a party fails to raise a constitutional issue in the trial court, that issue will not be decided on appeal. Colburn v. State, 431 So.2d 1111, 1114 (Miss.1983). “Only matters of jurisdiction may be raised for the first time on appeal.” Id. Because this issue was not preserved for the purposes of appeal, it is also waived.

CONCLUSION

¶ 30. We hold that all issues in this matter are without merit or are proeedurally barred, and we affirm the trial court’s judgment.

¶ 31. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED COUNT II: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES SHALL RUN CONCURRENTLY.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ, EASLEY AND CARLSON, JJ., CONCUR.

      . Victor McCoy's statement in accordance with his plea agreement stated that he and Wells encountered McCorvey driving Vaxter’s truck when they were headed to Vaxter's trailer to talk to him. They flagged the track down, and an altercation ensued.