author: CARLSON, Justice,

text:
    COLUMBIA LAND DEVELOPMENT, LLC, Columbia Marketplace, Ltd. and Columbia Golf Resort & Casino Corporation v. The SECRETARY OF STATE of the State of Mississippi, Eric Clark.
    No. 2002-CA-02025-SCT.
    Supreme Court of Mississippi.
    March 25, 2004.

      Paul J. Delcambre, Jr., Ben Harry Stone, Gulfport, Scott E. Andress, Jackson, Patricia Ann Bailey, attorneys for appellants.
    Daniel L. Singletary, David M. McMul-lan, Jr., Jackson, attorneys for appellee.
    Before SMITH, P.J., COBB and CARLSON, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. In today’s appeal, this Court is requested to determine the authority of the Secretary of State under the Public Trust Tidelands Act to finally approve or disapprove a proposed lease of this State’s public tidelands. The Mississippi Gaming Commission had previously conditionally approved the site for gaming, but the Secretary of State disapproved the proposed lease. The property owners challenged that disapproval by filing a Petition for Declaratory Action and Mandatory Injunction in the Chancery Court of the First Judicial District of Harrison County. The chancellor denied the petition and the subsequent Motion to Reconsider, For a New Trial, or Entry of Judgment as a Matter of Law. For the following reasons, this Court affirms the decision of the chancellor.

FACTS AND PROCEEDINGS IN THE AGENCIES AND CHANCERY COURT

¶2. Two corporate entities, Columbia Land Development, LLC (“Columbia LLC”) and Columbia Marketplace, LTD (“Columbia LTD”) collectively own approximately four hundred acres of real property fronting the Bay of St. Louis in the First Judicial District of Harrison County, Mississippi. The property is leased to Columbia Golf Resort & Casino Corporation (“Columbia GR & C”) for purposes of developing a resort, including a golf course, hotel, and gaming vessel.

¶ 3. The property is located on the tip of a peninsula which is bordered by the Wolf River to the north, the Bayou Portage to the south, and the Bay of St. Louis to the west. The peninsula lies north of the City of Pass Christian and south of the community of De Lisle. Specifically, the location of the proposed casino gaming vessel is in the waters of the Bay of Bayou Portage at the northeastern end of the Henderson Avenue (Portage) bridge. The waters upon which the casino vessel would sit are also commonly referred to as “Bay of Portage” or “Bayou Portage.” The tidelands where the proposed casino gaming vessel would be located carry a “commercial” designation under the Coastal Wetlands Use Plan. Although the vessel location, being in an unincorporated area, carries no municipal zoning designation, the land immediately south of the site is zoned commercial by the City of Pass Christian. Permits have previously been granted by the Mississippi Department of Marine Resources and the United States Army Corps of Engineers for the construction of a marina on the site.

¶ 4. On March 22, 1996, Columbia LLC filed an “Application for Standard Lease of Public Trust Tidelands” with the Secretary of State for the purpose of construction of a marina and a gaming vessel. The Secretary of State acknowledged receipt of the application, which was practically identical to that submitted by the previous owner. The Secretary of State had issued a permit to the previous owner for a marina on the site, however, that project was never completed. The previous owner had indicated that the marina would be constructed on Bayou Portage, but Columbia’s application indicated the site was on the Bay of St. Louis. Noting the discrepancy, the Secretary of State required a ruling from the Mississippi Gaming Commission that the site was on the Bay of St. Louis and not on a river or bayou leading into the Bay.

¶ 5. Columbia GR & C filed an application with the Mississippi Gaming Commission for a license to conduct gaming. The Gaming Commission conducted a preliminary site assessment and held a public hearing to determine the suitability of the site. The Gaming Commission unanimously voted to grant site approval, and there was no challenge to the Gaming Commission’s action.

¶ 6. Despite the approval from the Gaming Commission, by letter dated September 18, 1996, the Secretary of State denied the lease and stated that the site did not satisfy the geographical requirements of the Mississippi Gaming Control Act of 1990, Miss.Code Ann. §§ 75-76-1 et seq. (Rev.2000). That same letter notified Columbia LLC that if a marina were built on the site rather than a casino gaming development, the lease application would be processed. Several meetings were held between representatives of the corporate entities and officials from the Secretary of State’s Office, including Secretary of State Eric Clark, in an effort to “work it out” but to no avail. The Columbia entities contend that they were informed the main reason for denial of the lease application was Dr. Clark’s personal conviction against gaming. However, Dr. Clark testified at the hearing before the chancellor (and the chancellor so found), that there were additional reasons for the denial other than the location, including:

(1) the rural/residential nature of the area, its remoteness effecting [sic] the viability of a casino, the lack of infrastructure, and its incompatibility with a casino; (2) the added impairment of the pollution in Bay St. Louis; (3) negative environmental effect on the tidelands and uplands due to casino development; the relatively pristine nature of the site and surroundings; and (5) the costs to the community in taxes and infrastructure costs. Additionally, the Secretary of State stated that there was no casino operator/developer with sufficient financial resources committed to the project and the effects of a failed casino were harmful to the environment.

(footnotes omitted).

¶ 7. Columbia LLC filed a Petition for Declaratory Judgment and Mandatory Injunction in the First Judicial District of Harrison County Chancery Court on January 17, 1997. The Secretary of State filed a Motion to Dismiss on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. The Secretary of State’s motion was denied. After discovery, a Renewed Motion to Dismiss, or in the alternative, for Judgment on the Pleadings was filed by the Secretary of State on May 21, 1999. That motion was also denied.

¶ 8. A trial was held before Chancellor Thomas W. Teel on November 8, 2001, and by Order entered on November 14, 2001, the chancellor denied the requested relief and dismissed the petition for declaratory and injunctive relief. The Motion to Reconsider, For a New Trial, or for Entry of Judgment as a Matter of Law was filed on November 26, 2001. However, Chancellor Teel left office on February 21, 2002, and an Order of Recusal was subsequently signed by all four chancellors of the Eighth Chancery Court District and entered on May 20, 2002. Thus, by Order of this Court, Honorable Denise S. Owens was appointed as Special Judge. A hearing was held before Chancellor Owens on October 16, 2002 and, by Order dated November 20, 2002, the previously filed motion for reconsideration was denied. Columbia has thus perfected this appeal.

¶ 9. This Court has accepted an amici curiae brief filed by Imperial Palace of Mississippi, Inc. and Treasure Bay Corp. These friends of the Court are Mississippi corporations holding littoral rights and State tidelands leases in Harrison County and are engaged in the business of dockside gaming.

ISSUES AS PRESENTED BY THE PARTIES

¶ 10. In its brief, Columbia states the issues as follows: Whether the State of Mississippi is the trustee of the public trust tidelands and the Secretary of State is only the trustee of the fund generated by the land held in trust; whether the Secretary of State when negotiating a lease of tidelands property has veto power over other state agencies who have been granted authority by the Legislature to evaluate and make determinations regarding the legality and suitability of proposed uses of tidelands property; whether the Secretary of State abused his discretion in refusing to negotiate a tidelands lease with Columbia after the decision of the Mississippi Gaming Commission that the planned site was legal and suitable for gaming resort purposes; and, whether Miss.Code Ann. § 29-1-107(2) (Rev.2000) of the Tidelands Act, as construed by the chancellor, is unconstitutionally vague and violates Columbia’s fourteenth amendment right of due process.

¶ 11. On the other hand, in his brief before this Court, the Secretary of State states the issues as follows: Whether the Mississippi legislature, in the Tidelands Act, delegated to the Secretary of State the role of management of the tidelands as a trustee, as held by this Court in Wiesenberg whether the Secretary of State has been delegated broad discretion to manage the public trust tidelands; whether the Secretary of State abused his discretion in declining to enter into a tidelands lease with Columbia for use of public trust tidelands for casino gaming; whether the stare decisis effect of Wiesenberg precludes consideration of the issue of the constitutionality of the Tidelands Act; and, whether the chancellor correctly held that Columbia’s littoral rights were simply nonexclusive privileges entitling the upland owner with access to, and limited use of, the adjacent public trust tidelands.

¶ 12. Finally, Imperial Palace and Treasure Bay, as amici curiae, present several questions to this Court for consideration: (1) Who is the trustee of the public trust tidelands? (2) What type of trust is the Tidelands Trust? (3) What are littoral rights?

¶ 13. With all of this having been said, we determine that the crucial issue before us may be stated and discussed as follows:

WHETHER THE SECRETARY OF STATE HAS THE FINAL DECISION-MAKING AUTHORITY CONCERNING A PROPOSED PUBLIC TRUST TIDELANDS LEASE.

STANDARD OF REVIEW

¶ 14. In reviewing an opinion issued after a trial on the merits held before a chancellor, this Court’s standard of review is well established. The findings of the chancellor will not be overturned by this Court unless they are manifestly wrong, not supported by substantial credible evidence, or an erroneous legal standard was applied. Vaughn v. Vaughn, 798 So.2d 431, 433(¶ 9) (Miss.2001); Tucker v. Prisock, 791 So.2d 190, 192 (¶10) (Miss.2001). For questions of law, a de novo standard of review is applied. Id.

ANALYSIS

I. Public Tidelands Trust

¶ 15. At the heart of this case is the question of who has authority to act as the trustee of the public trust tidelands. Columbia and the amici assert that the responsibility falls upon the Legislature and is non-delegable. The Secretary of State asserts that he is the trustee for all public lands in Mississippi, including the public trust tidelands, under Miss.Code Ann. § 7-11-11 (Rev.2002) and §§ 29-1-1 et seq. (Rev.2000). We agree with the Secretary of State.

¶ 16. The title to the public trust tidelands was vested in this State at the inception of statehood and such title is held in trust by the State of Mississippi for the benefit of the public. Miss.Code. Ann. § 29-15-5 (Rev.2000). This Court has long recognized that the tidelands are a part of the public trust. State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44 (1938); Rouse v. Saucier’s Heirs, 166 Miss. 704, 146 So. 291 (1933). For a thorough review of the establishment and history of the Public Tidelands Trust, see Secretary of State v. Wiesenberg, 633 So.2d 983, 987-89 (Miss.1994).

¶ 17. The public trust tidelands are unique and ever changing with the ebb and flow of the tide. The trust encompasses this unique corpus which is to be protected for the use and possession of the general public and the upland owners. The public trust tidelands are characterized as follows:

Tidelands and submerged lands are held by the state in trust for use of all the people, and are so held in their character as the beds and shores of the sea and its tidally affected arms and tributaries for the purposes defined by common law and statutory law. Littoral and riparian property owners have common law and statutory rights under the Coastal Wetlands Protection Law which extend into the waters and beyond the low tide line, and the state’s responsibilities as trustee extends to such owners as well as to the other members of the public.

Miss.Code Ann. § 29-15-5 (Rev.2000). The terms “riparian” and “littoral” are occasionally used interchangeably; however, there is a distinction between the two:

“Riparian” is defined as
Belonging or relating to the bank of a river or stream; of or on the bank. Land lying beyond the natural watershed of a stream is not “riparian.” The term is sometimes used as relating to the shore of the sea or other tidal water, or of a lake or other considerable body of water not having the character of a watercourse. But this is not accurate. The proper word to be employed in such connections is “littoral.”
Black’s Law Dictionary 1327 (6th ed.l990)(emphasis added). “Littoral rights” are those “[r]ights concerning properties abutting an ocean, sea or lake rather than a river or stream (riparian). Littoral rights are usually concerned with the use and enjoyment' of the shore.” Watts v. Lawrence, 703 So.2d 236, 238 (Miss.1997) (quoting Black’s Law Dictionary 934).

Stewart v. Hoover, 815 So.2d 1157, 1163 (¶ 19) (Miss.2002). In the boundary line dispute case of Cinque Bambini Partnership v. State, 491 So.2d 508 (Miss.1986), this Court noted a distinction of property rights: “while the lands below tidewaters may not be alienated except for high public purposes and generally only with the consent of the legislature, lands below navigable freshwaters are susceptible of wholly private ownership.” Id. at 517 & n. 5.

¶ 18. “Littoral rights, though, are not property rights per se; they are merely licenses or privileges.” Watts v. Lawrence, 703 So.2d 236, 238 (Miss.1997) (citing Miss. State Highway Comm’n v. Gilich, 609 So.2d 367, 375 (Miss.1992)). In Watts, adjoining land owner brought suit challenging his neighbor’s right to construct a boathouse. The construction was approved by the Bureau of Marine Resources. We concluded that: “Owners of land whose property abut the water at the high watermark are entitled to enjoy their littoral rights. However, these rights are administered through the agency so designated by statute. That agency’s procedures and requirements must be followed.” 703 So.2d at 239.

¶ 19. The public policy of the State of Mississippi regarding that trust has been stated by the Legislature as the:

[preservation of the natural state of the public trust tidelands and their ecosystems and to prevent the despoliation and destruction of them, except where a specific alternation of specific public trust tidelands would serve a higher public interest in compliance with the public purposes of the public trust in which such tidelands are held.

Miss.Code Ann. § 29-15-3 (Rev.2000). These public purposes have been found to include:

navigation and transportation, Rouse v. Saucier’s Heirs, 166 Miss. 704, 146 So. 291 (1933); Martin v. O’Brien, 34 Miss. 21 (1857); commerce, Rouse v. Saucier’s Heirs, 166 Miss. 704, 146 So. 291 (1933); fishing, State ex rel. Rice v. Stewart, 184 Miss. 202, 231, 184 So. 44, 50 (1938); bathing, swimming and other recreational activities, Treuting v. Bridge and Park Commission of City of Biloxi, 199 So.2d 627, 632-33 (Miss.1967); development of mineral resources, Treuting v. Bridge and Park Commission of City of Biloxi, 199 So.2d 627, 633 (Miss.1967); environmental protection and preservation, Miss.Code. Ann. Secs. 49-27-3 and -5(a) (Supp.1985); the enhancement of aquatic, avarian and marine life, sea agriculture and doubt others. See Marks v. Whitney, 6 Cal.3d 251, 491 P.2d 374, 98 Cal.Rptr. 790 (1971). Suffice it to say that the purposes of the trust have evolved with the needs and sensitivities of the people — and the capacity of trust properties through proper stewardship to serve those needs.

Cinque Bambini P’ship v. State, 491 So.2d at 513. The rules of the Secretary of State reflect the same public purposes. See Rules of Secretary of State for the Administration, Control, and Leasing of Public Trust Tidelands, Rules 1(B) & 4(B)(1) & (2).

¶ 20. Clearly, the littoral property at issue in the case sub judice is subject to the public tidelands trust and the associated rules and regulations. The State of Mississippi is the trustee of the public trust tidelands. “The State, as trustee, may not divest itself of its duties. However, the state, by statute, may vest in others the authority to do acts which the trustee cannot practicably be expected to perform.” Wiesenberg, 633 So.2d at 997 (citing Turney v. Marion County Bd. of Educ., 481 So.2d 770, 777 (Miss.1985)). The Legislature has done just that.

The Secretary of State shall have charge of the swamp and the overflowed lands and indemnity lands in lieu thereof, the internal improvement lands, the lands forfeited to the state for nonpayment of taxes after the time allowed by law for redemption shall have expired, and of all other public lands belonging to or under the control of the state. The regulation, sale and disposition of all such lands shall be made through the secretary of state’s office.
The secretary of state shall sign all conveyances and leases of any and all state-owned lands and shall record same in a book kept in his office for such purposes.

Miss.Code Ann. § 7-11-11 (Rev.2002).

¶ 21. This Court has found that: “The Secretary of State is a constitutionally created office and is statutorily responsible for the public trust lands.” Wiesenberg, 633 So.2d at 997. In Wiesenberg, we held that the delegation of the management of the tidelands to the Secretary of State was constitutional. Thus, notwithstanding Columbia’s contentions to the contrary, the Secretary of State is not merely an administrator. The Secretary of State, subject to approval by the Governor, has been granted via legislative enactment the discretion to enter into leases involving the public tideland property. Miss.Code Ann. § 29-1-107(2) (Rev.2000) states:

The Secretary of State, with the approval of the Governor, may rent or lease surface lands, tidelands or submerged lands owned or controlled by the State of Mississippi lying in or adjacent to Mississippi Sound or Gulf of Mexico or streams emptying therein, for a period not exceeding forty (40) years for rent payable to the state annually. The lessee under such agreement may construct such necessary items from marking channels, docking, wharflng, mooring or fleeting vessels which shall be in aid of navigation and not obstructions thereto.

(emphasis added). This statute unequivocally affords the Secretary of State the discretion to enter into a lease of the public tidelands.

¶ 22. For the foregoing reasons, the Secretary of State has the responsibility of preserving the public trust tidelands for the people of the State of Mississippi.

II. The Secretary of State’s Role

¶ 23. Columbia contends that once the Mississippi Gaming Commission approved the site for gaming, the Secretary of State was required to enter into a lease of the public trust tidelands. We disagree. When the landowner seeks to construct a gaming vessel, there are several' agencies which have a role in the approval process, and a landowner is required to obtain the requisite permits or approvals from each agency or office. First of all, a landowner is required to obtain a lease of the public trust tidelands adjacent to his littoral property. To do so, the landowner must obtain the approval of the Secretary (with the approval of the Governor). The remaining prerequisites for approval of the establishment of a gaming vessel are not at issue in today’s appeal and, therefore, will not be discussed.

¶ 24. The crucial issue before us today is whether the Secretary of State must approve a lease of the public tidelands upon the approval by the other state agencies which have been granted legislative authority to evaluate and make determinations regarding the legality and suitability of proposed uses of the public tidelands. Although the Secretary of State has acknowledged that the Mississippi Gaming Commission has the exclusive jurisdiction in determining the legality of the site for gaming purposes pursuant to the gaming regulations, the answer to the question at hand does not depend on any decision by the Gaming Commission. The chancellor correctly found that “Mississippi legislation allows the success of any proposed gaming site to be dependent on the approval of numerous state departments and agencies. Each effectively has a veto power.”

¶ 25. The chancellor further reasoned that “[m]ost of the agencies have limited scopes of inquiry (such as [Commission on Marine Resources] and [Department of Environmental Quality]); however, both the MGC and the Secretary of State have broader scopes.” Indeed, the role of the Secretary of State is that of a trustee.

The rule is “that trustees are bound in the management of all the matters of the trust to act in good faith and employ such vigilance, sagacity, diligence and prudence as in general prudent [persons] of discretion and intelligence in like matters employ in their own affairs. The law does not hold a trustee, acting in accord with such rule, responsible for errors of judgment.” “All that equity requires from trustees is common skill, common prudence, and common caution.” [Footnotes omitted]

Turney, 481 So.2d at 777-78 (citing Bogert, Law of Trusts, § 93 (5th ed.1973); see also, Scott, Scott on Trusts, § 174 (3rd ed.1967)). Although Turney involved sixteenth section lands, the same duty applies to the public trust tidelands. Thus, this Court finds that it is the Secretary of State’s constitutional duty to exercise discretion in a manner consistent with the public policy as stated in the Tidelands Act, Miss.Code Ann. § 29-15-3 (Rev.2000).

III. The Secretary’s Decision to Deny the Tidelands Lease

¶26. Columbia argues that by denying the lease, the Secretary of State usurped the authority of the Mississippi Gaming Commission’s determination that the site was legally suitable for a casino. The Secretary of State restates the question before this Court as to whether the Secretary of State was obligated to lease the tidelands to Columbia simply because the Mississippi Gaming Commission had granted preliminary site approval. As previously discussed, the proper question is whether the Secretary of State must enter into a lease with Columbia. As likewise previously discussed, the Secretary of State has been given by statute considerable discretion in determining whether to enter into a lease of the public trust tidelands.

¶ 27. There is no statutory or constitutional provision or common law pronouncement directing the Secretary of State to consider any specific criteria in making a determination as to whether to lease the public trust tidelands. The only guidance provided by the Legislature is found in Miss.Code Ann. § 29-1-107(2) (Rev.2000) which simply provides that the Secretary of State may lease or rent the tidelands with the approval of the Governor. However, Miss.Code Ann. § 29-15-3(1) (Rev. 2000) states:

It is declared to be the public policy of this state to favor the preservation of the natural state of the public trust tidelands and their ecosystems and to prevent the despoliation and destruction of them, except where specific alteration of specific public trust tidelands would serve a higher public interest in compliance with the public purposes of the public trust in which such tidelands are held.

Absent a higher public interest, the natural state of the public trust tidelands is paramount. Any direction as to specific factors which the Secretary of State should consider in determining whether to enter into a public trust tidelands lease must come from the Legislature, not this Court.

¶ 28. Columbia argued before the trial court, as they do before this Court, that the sole basis for the denial was stated in the letter of September 18, 1996, from Margaret Anne Bretz, Senior Attorney of the Secretary of State’s Office, which stated inter alia that: “In [the Secretary of State’s] judgment, this site does not conform with legislative intent and is not on the Bay of St. Louis, but on a tributary thereto” and that any “post-hoc allegations” should be discounted. The chancellor found that “[s]uch a ruling would deny the reality of the actual process: the various attorneys had discussions; Columbia principal John C. Ellis, Jr., and Secretary Clark had a personal meeting in Jackson to address the various concerns of the Secretary of State in denying a lease.” The chancellor’s order found that the Secretary of State testified to the following additional reasons for the denial of the lease:

(1) the rural/residential nature of the area, its remoteness effecting [sic] the viability of a casino, the lack of infrastructure, and its incompatibility with a casino; (2) the added impairment of the pollution in Bay St. Louis; (3) negative environmental effect on the tidelands and uplands due to casino development; the relatively pristine nature of the site and surroundings; and (5) the costs to the community in taxes and infrastructure costs. Additionally, the Secretary of State stated that there was no casino operator/developer with sufficient financial resources committed to the project and the effects of a failed casino were harmful to the environment.

(footnotes omitted).

¶29. Columbia has placed the Secretary of State’s concerns into three categories: environmental, economical, and opposition from constituents. Columbia asserts that each of these reasons for denial of the public trust tidelands lease fall within the purview of the various agencies which have been given statutory authority to make these determinations. However, as already stated, the Secretary’s role as trustee is much broader in scope than that of these various agencies regarding the public trust tidelands. As stated in Turney:

The rule is “that trustees are bound in the management of all the matters of the trust to act in good faith and employ such vigilance, sagacity, diligence and prudence as in general prudent [persons] of discretion and intelligence in like matters employ in their own affairs. The law does not hold a trustee, acting in accord with such rule, responsible for errors of judgment.” “All that equity requires from trustees is common skill, common prudence, and common caution.”

Turney, 481 So.2d at 777-78 (footnotes omitted).

¶ 30. Again, the question is whether the Secretary of State must lease the land to Columbia. The answer is no. In sum, the chancellor found:

based on the totality of what this Court heard, the Secretary’s actions were not arbitrary (“not done according to reason or judgment”) or capricious (“a lack of understanding or a disregard for surrounding facts and settled controlling principles”). This decision was a judgment call, a discretionary act, a decision based on the Secretary’s understanding of his trusteeship.

This Court agrees. Columbia has failed to show that the decision of the chancellor is manifestly wrong, not supported by substantial credible evidence, or that an erroneous legal standard was applied.

IV. The Constitutionality of the Public Trust Tidelands Act

¶ 31. The question of the constitutionality of the Public Trust Tidelands Act was first raised by Columbia in their Motion to Reconsider, For a New Trial or for Entry of Judgment For the Plaintiffs as a Matter of Law. As the basis for this challenge, Columbia alleges that the statute is unconstitutionally vague. In reliance of their argument, Columbia references ¶ 39 of the chancellor’s order, which states:

Certainly, Columbia should be upset. There are no set rules to follow. A citizen is left without a clear indication of the process, of the requirements, and of how to proceed. There is no procedure for an internal hearing and no clear avenue of appeal. Unfortunately, this is the bare-bones system set forth by the legislation. Certain, the Secretary of State could establish rules which would alleviate these problems, but nothing requires Mm to do so.

¶ 32. Columbia argues that Miss.Code Ann. § 29-1-107(2) (Rev.2000) is unconstitutional because it is vague and that an ordinary person of common intelligence upon reading the statute cannot understand what actions are permissible. The standard for determining whether a statute is constitutional or not is well-established:

“Legislative acts are ... cloaked with a presumption of constitutionality, and unconstitutionality must appear beyond reasonable doubt.” Estate of Smiley, 530 So.2d 18, 21-22 (Miss.1988) (citing Miss. Power Co. v. Goudy, 459 So.2d 257, 263 (Miss.1984)). A statute’s validity is presumed:
We adhere here to the rule that one who assails a legislative enactment must overcome the strong presumption of validity and such assailant must prove his conclusions affirmatively, and clearly establish it beyond a reasonable doubt. All doubts must be resolved in favor of validity of a statute. If possible, a court should construe statutes so as to render them constitutional rather than unconstitutional if the statute under attack does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity.
Loden v. Miss. Pub. Serv. Comm’n, 279 So.2d 636, 640 (Miss.1973) (citations omitted).

Mauldin v. Branch, 866 So.2d 429, 2003 WL 22966144, *5 (¶21) (Miss.2003).

¶ 33. This Court has previously addressed the constitutionality of the Tidelands Act with regard to the discretion delegated to the Secretary of State to draw boundary lines. We held that:

The mere fact that, the discretion granted the Secretary of State could be interpreted in different lights, does not automatically render it vague. See United States v. Dunkel, 900 F.2d 105, 108 (7th Cir.1990). The procedure established by the tidelands legislation has a reasonable relation to the governmental purpose of establishing the boundary of public trust lands and as such is not vague.

Wiesenberg, 633 So.2d at 996. The Tidelands Act does not guarantee a lease for gaming. Only where, in the discretion of the Secretary of State, with approval from the Governor, it is determined that the granting of a lease would serve a higher purpose than to preserve the natural state of the tidelands, may the littoral landowner be granted a lease. Merely because the discretion may be interpreted in different lights does not automatically render it vague. See Wiesenberg, 633 So.2d at 996. As in this case, a party dissatisfied with the Secretary of State’s decision may seek judicial review.

CONCLUSION

¶ 34. This Court recognizes the duties of the State to preserve and protect the public trust tidelands and the State’s delegation of that authority to the Secretary of State. In fulfilling his duties and responsibilities, the Secretary of State must balance the interests of the public with the rights and privileges of the adjacent littoral landowners. Our Legislature has wisely granted authority and responsibilities of certain issues relating directly to the tidelands, particularly those relating to the gaming industry, to various agencies. However, the Secretary of State’s decision to grant a lease of the public trust tidelands is a separate and independent decision from those agencies.

¶ 35. We find that the Secretary of State’s decision to deny a lease of the public trust tidelands to Columbia was made within the discretion granted to him by the Mississippi Legislature. We affirm the chancellor’s judgment denying Columbia’s Petition for Declaratory Action and Mandatory Injunction. We also reaffirm the constitutionality of the Public Trust Tidelands Act.

¶ 36. AFFIRMED.

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

      . The appellants are Columbia Land Development, LLC, Columbia Marketplace, LTD, and Columbia Golf Resort & Casino Corporation. They will quite often throughout this opinion be referred to collectively as simply "Columbia.”

      . Secretary of State v. Wiesenberg, 633 So.2d 983, 987-89 (Miss.1994).

      . "The Mississippi Gaming Control Act has vested the Commission with the authority 'to determine the locations of casinos which wish to build in the Gulf Coast area.' ” Miss. Casino Operators Ass’n v. Miss. Gaming Comm’n, 654 So.2d 892, 894 (Miss.1995) (citing Miss. Code Ann. § 75-76-7).


source: Caselaw Access Project

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

license: Public Domain

text:
    Chokwe LUMUMBA, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-01621-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2003.
    Rehearing Denied Nov. 25, 2003.
    Certiorari Denied March 25, 2004.

      Ishmael Muhammad, attorney for appellant.
    Office of the Attorney General, by Scott Stuart, Jackson, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. The Circuit Court of Leake County was trying Henry Payton on charges of armed robbery, kidnaping, and arson. At trial, Payton was represented by Chokwe Lumumba. After Payton was convicted on the armed robbery and arson charges, Lu-mumba made certain statements to the judge that resulted in contempt action against him. The circuit court signed and entered an order finding that Lumumba failed to respond to the direction of the court and showed total disrespect for the court. Lumumba was found to be in contempt of the court, and the court ordered him to pay a fine of $500 and because of additional misconduct, to serve three days in jail. However, later that same day, the court reduced the amount of the fine to $100. Lumumba filed a timely notice of appeal. The Mississippi Supreme Court signed and entered an order granting immediate consideration of an “Emergency Petition for Writ of Habeas Corpus, or in the Alternative, a Motion on the Denial of the Right of Bail.” The court ordered that the motion be remanded to the Leake County Circuit Court for an immediate hearing on the matter of an appeal bond pursuant to Mississippi Code Annotated section 11-51-11.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL JUDGE ERRED WHEN HE FOUND DEFENSE COUNSEL IN CONTEMPT OF COURT.

II. WHETHER THE STATEMENTS MADE WERE JUSTIFIED BECAUSE COUNSEL WAS ZEALOUSLY REPRESENTING HIS CLIENT.

FACTS

¶ 2. Lumumba was defense counsel for Henry Payton, who was charged and later tried for armed robbery, kidnaping, and arson. The jury found Payton guilty of armed robbery and arson and he was acquitted on the kidnaping- charge. Lumum-ba filed a motion for a new trial and the court conducted a hearing on the motion. The court overruled the motion for a new trial and further announced that no additional hearing would be heard. It was at this time that Lumumba vigorously tried to convince the court that he was not just conducting a fishing expedition, but that his evidence was “very focused and direct.”

¶ 3. Lumumba continued to advise the court that the court’s resolution of the motion was not “unexpected, considering the court’s demeanor during the trial.” When asked what he meant by that statement, Lumumba responded that “the court didn’t handle the trial fairly, is not handling the motion fairly.” The circuit court judge responded by stating that Lumumba was very difficult to work with and that the judge believed that he gave Payton a fair trial.

¶ 4. It was at this time Lumumba wanted to address another issue, and proceeded to give advice to the judge on how to “get along better with other lawyers in the future.” An exchange followed between the judge and Lumumba resulting in the court’s finding Lumumba in contempt of court.

ANALYSIS

I. WHETHER THE TRIAL JUDGE ERRED WHEN HE FOUND DEFENSE COUNSEL IN CONTEMPT OF COURT.

¶ 5. Mississippi law is clear that this Court will follow an ab initio standard of review for an appeal of a criminal contempt conviction and determine “whether on the record, the contemnor is guilty beyond a reasonable doubt.” Premeaux v. Smith, 569 So.2d 681, 688-84 (Miss.1990).

¶ 6. In Jordan v. State, 216 Miss. 542, 62 So.2d 886, 888 (1953), the Mississippi Supreme Court found that a charge of contempt of court consists of words spoken or acts done in the presence of the court which tend to embarrass or prevent orderly administration of justice. A direct criminal contempt “may consist of an open insult, in the presence of the court, to the person of the presiding justice, or a resistance to or defiance of power of the court.” Neely v. State, 98 Miss. 816, 54 So. 315, 316 (1911). “Disorderly conduct in the courtroom, or the use of violence, or threatening, or insulting language to the court, witnesses, or counsel is contempt.” Id. A contempt which is direct, in the presence of the court, may be summarily punished without affidavit, pleading or formal charges. Varvaris v. State, 512 So.2d 886, 887-88 (Miss.1987).

¶7. Lumumba’s first argument is that the statements or conduct made by him occurred after the judge ruled on the motion for a new trial; therefore, there was no longer a proceeding before the court. The record reflects that Lumumba told the judge that he had another issue that had not been addressed or talked about. Although the court had already ruled on the motion, the judge reopened and allowed Lumumba’s argument of whatever issue had not been addressed by the court. All parties, including defense counsel and counsel for the State were still present before the judge in open court.

¶ 8. Further, there is an absence in the record of support for Lumumba’s argument that when he asked for permission to address the court regarding another issue, he should have been allowed to address it since it involved an issue unrelated to the motion for a new trial. The record shows only Lumumba’s request as follows:

Lumumba: Can I address another issue? You don’t want to hear it? You don’t want the Court to hear it? It’s another issue. It’s not what we talked about.
Court: All right. Go ahead.

¶ 9. The request was that it is “another issue. It is not what we talked about.” This language says nothing about being unrelated to the motion for a new trial. There is no question that the parties were, in fact, in the presence of the judge and in open court at the time the statements or conduct was made.

¶ 10. Next, Lumumba claims that the statement advising the judge to learn to get along with other lawyers in the future is not defamatory but a statement of opinion aimed at improving the judge-lawyer relationship in court. The relevant statements were as follows:

Lumumba: And, what I’m doing is offering this to you, so you can, perhaps, get along better with other lawyers in the future.
Court: Will you remove him from the courtroom?
Lumumba: Are you going to have—
Court: I am going to have you removed—
Lumumba: — your henchmen throw me out, Judge?
Lumumba: That’s the way you’ve handled it the whole Court. I’m proud to be thrown out of your Courtroom.
Court: That will cost you three hundred dollars, Mr. Lumumba. Now, if you want to continue—
Lumumba: Look, Judge, if we’ve got to pay for justice around here, I will pay for—
Court: — I will exercise my discretion—
Lumumba: — justice.
Court: — regarding a jail sentence.
Lumumba: I’ve paid other judges to try to get justice, pay you, too, if that’s what is necessary.

¶ 11. If what Lumumba claims is true, that the hearing was over, there was no necessity to give his advice to the judge in open court on the record. Lumumba gave no reason or explanation as to why his advice or recommendations had to be on the record. He could have given his so-called “advice” in private.

¶ 12. Also, no explanations were given regarding the comments about being proud to be thrown out of the courtroom and asking if the judge would have his “henchmen” throw him out. Lumumba neither explains why those statements were necessary in order to preserve for appeal any of Payton’s issues for appellate review, nor does he suggest that the statements were not embarrassing to the court.

¶ 13. Additionally, regarding the statements made that Lumumba paid other judges to get justice, and he would pay this judge as well, Lumumba argues that he was just reacting to a threat to send him to jail after the imposition of the excessive $500 fíne. While Lumumba is correct that the statute limits fines to a sum of $100, the court reduced the fine to $100, later that same day.

II. WHETHER THE STATEMENTS MADE WERE JUSTIFIED BECAUSE COUNSEL WAS ZEALOUSLY REPRESENTING HIS CLIENT.

¶ 14. Finally, Lumumba contends that his statements and conduct were an outgrowth of his professional commitment to zealously represent his client. While Lumumba is certainly correct, that a lawyer should indeed represent his client with zeal, one should not use language “which tends to bring the court into disrepute or disrespect.” Purvis v. Purvis, 657 So.2d 794, 797 (Miss.1994). Clearly, Lu-mumba went beyond his right of zealous representation when he offered “advice” to the judge and announced that he would pay for justice.

¶ 15. Lumumba’s behavior was done in the presence of the court and intended to embarrass or prevent orderly administration of justice. Further, it was both disrespectful to the judge and disruptive to court proceedings. We cannot fathom any situation that would warrant such behavior. This Court finds that the statements made toward the judge about how he can better get along with lawyers in the future, about the judge’s “henchmen,” about being proud to be thrown out of the courtroom, and about paying the judge for justice were made to embarrass the court or impede the administration of justice. This Court finds that the statements go far beyond zealous representation of one’s client, and makes a mockery of the court and its proceedings.

¶ 16. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., AND SOUTHWICK, P.J., THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. KING, P.J., CONCURS WITH SEPARATE OPINION JOINED BY SOUTHWICK, P.J. IRVING, J„ DISSENTS WITH SEPARATE WRITTEN OPINION.

KING, P.J.,

CONCURRING:

¶ 17. I concur in this Court’s affirmance of Mr. Lumumba’s contempt of court conviction. There can be no question but that his conduct was inappropriate.

¶ 18. However, I write separately to express my concern about matters not touched on by the majority opinion.

¶ 19. My reading of the record suggests that both Mr. Lumumba and the trial judge jousted verbally, and in so doing, engaged in questionable conduct.

¶20. The effective administration of justice requires that all parties appearing in the courtroom conduct themselves with appropriate respect for the court. But the effective administration of justice likewise requires that the court’s actions beyond question be undertaken in a manner which appropriately respects all of the parties appearing in the courtroom.

¶ 21. The record before this Court does not allow me to say with confidence that occurred in this case. And while that failure does not excuse Mr. Lumumba’s actions, it provides an opportunity to remind our judges that if they are to receive respect, they must also learn to give it.

SOUTHWICK, P.J., JOINS THIS SEPARATE OPINION.

IRVING, J.,

DISSENTING:

¶22. Judge Marcus D. Gordon found Attorney Chokwe Lumumba guilty of direct contempt of court for essentially beseeching the trial judge to listen and take a little constructive advice about how to better get along with members of the bar. The majority affirms this finding. With respect to my brethren in the majority, I respectfully dissent, for I believe Mr. Lu-mumba’s actions do not support a finding of contempt, but even if they do, the offense should be treated as indirect contempt rather than direct.

¶ 23. Before discussing my rationale for the conclusions that I have reached, I first note the concurring opinion by Presiding Judge King. I agree with the concurring opinion that Mr. Lumumba and the trial judge jousted verbally, and in so doing, they both engaged in questionable conduct. Moreover, I fully agree with the concurring opinion that:

The effective administration of justice requires that all parties appearing in the courtroom conduct themselves with appropriate respect for the court. But the effective administration of justice likewise requires that the court’s actions beyond question be undertaken in a manner which appropriately respects all of the parties appearing in the courtroom.

I also agree with the concurring opinion that the record before this Court does not support a finding that both the trial judge and Mr. Lumumba gave the requisite degree of respect to each other. Rather, it shows two combatants who were unwilling to give an inch for the sake of the effective administration of justice.

¶ 24. To support the points that I will make in the paragraphs that follow, I set forth the entire incident as reflected in the record:

BY THE COURT: I am going to overrule your motion. There must be some finality to these cases. What that is, it appeal's to me to be entirely a fishing matter, so the final order of this Court is your motion for new trial is overruled.
BY MR. LUMUMBA: Well, Judge, this—
BY THE COURT: No additional hearing will be heard regarding your motion for new trial.
BY MR. LUMUMBA: Just for the record, Your Honor, it’s a little more— it’s a little less than a fishing expedition. We have already got jurors who have said they know these people, and, to try to bring the people in is not a fishing expedition. In fact, it is very focused and direct.
But, the Court’s resolution of the motion is not to be unexpected, given the Court’s demeanor during the entire trial.
BY THE COURT: What do you mean by that?
BY MR. LUMUMBA: What I mean is that the Court didn’t handle the trial fairly, is not handling the motion fairly-
BY THE COURT: Well, you make it very difficult to work with, Mr. Lu-mumba. I think I gave you a fair trial, and, certainly, anything that I did before the jury, nothing that I did—
BY MR. LUMUMBA: Well, let me say this, Judge.
BY THE COURT: — influenced the verdict of the jury.
BY MR. LUMUMBA: Let me say this, Judge.
BY THE COURT: Just a minute, now. I’m—
BY MR. LUMUMBA: I have—
BY THE COURT: You just—
BY MR. LUMUMBA: — another—
BY THE COURT: — wait just a minute.
BY MR. LUMUMBA; I have another—
BY THE COURT: I’m the Judge of this Court—
BY MR. LUMUMBA: I have another issue. I just want you to know I have another issue.
BY THE COURT: I want you to know this hearing is now over with and—
BY MR. LUMUMBA: Can I ask—
BY THE COURT: And, there will be nothing else to be made of record.
BY MR. LUMUMBA: Can I address another issue? You don’t want to hear it? You don’t want the Court to hear it? It’s another issue. It’s not what we talked about.
BY THE COURT: All right. Go ahead.
BY MR. LUMUMBA: And, what I’m doing is offering this to you, so you can, perhaps, get along better with other lawyers in the future.
BY THE COURT: Well, don’t you worry about—
BY MR. LUMUMBA: Okay. Can I finish?
BY THE COURT: — how I get along with lawyers.
BY MR. LUMUMBA: Can I finish, please?
BY THE COURT: You worry about how you get along with Courts.
BY MR. LUMUMBA: Can I finish, please?
BY THE COURT: No.
BY MR. LUMUMBA: Judge—
BY THE COURT: Remove him from the Courtroom.
BY MR. LUMUMBA: Are you going to have—
BY THE COURT: I am going to have you removed—
BY MR. LUMUMBA: — your henchmen throw me out, Judge?
BY THE COURT: Until you show some respect to the Court—
BY MR. LUMUMBA: I’m trying to show you some respect.
BY THE COURT: Will you remove him from the Courtroom?
BY MR. LUMUMBA: That’s the way you’ve handled it the whole Court. I’m proud to be thrown out of your Courtroom.
BY THE COURT: All right. Just a minute. That will cost you three hundred dollars, Mr. Lumumba. Now, if you want to continue—
BY MR. LUMUMBA: Look, Judge, if we’ve got to pay for justice around here, I will pay for—
BY THE COURT: I will exercise my discretion — •
BY MR. LUMUMBA: — justice.
BY THE COURT: — regarding a jail sentence.
BY MR. LUMUMBA: I’ve paid other judges to try to get justice, pay you, too, if that’s what is necessary.
BY THE COURT: It will cost you $500.00. You will serve three days in the County Jail. You will start serving it immediately, for contempt of Court.
BY MR. LUMUMBA: No problem. Are you going to feed me? I can’t get my bag.
BY THE COURT: Court is in recess.

¶ 25. It is clear to me from the above colloquy that Mr. Lumumba’s “another issue” did not relate at all to the matter of the motion for a new trial and that the proceedings on the motion, for all practical and legal purposes, had ended when the trial judge announced that “And, there will be nothing else to be made of record.” It is equally clear to me that the trial judge ordered the courtroom bailiff to remove Mr. Lumumba from the courtroom because the trial judge became upset with Mr. Lumumba’s attempt to offer the court some advice on how to better get along with members of the bar.

¶26. It cannot be reasonably argued that Mr. Lumumba had been disrespectful to the court at the point when the trial judge ordered him removed from the courtroom unless, of course, being persistent and forceful in advocacy constitutes disrespect. It should be noted that when the trial judge ordered Mr. Lumumba’s removal from the courtroom, Mr. Lumum-ba had not disobeyed the trial judge, obstructed any judicial proceeding, or done anything that could arguably support a finding of contempt. This is important because it was the trial judge’s overreaction to Mr. Lumumba’s persistent attempts to remonstrate with the judge that led to the arguably inappropriate language by Mr. Lumumba. In other words, it was only after the trial judge, without good cause, ordered Mr. Lumumba removed from the courtroom that the matter really became heated. I do not believe it is appropriate for a judge to provoke an incident and then take advantage of the situation that he created. In my opinion, that is what happened here. It is one thing to be in control of the courtroom, but quite another thing to be in control while lacking the proper judicial temperance.

¶ 27. The trial judge determined that Mr. Lumumba was in contempt of court when Mr. Lumumba, responding to the trial judge’s heavy-handed tactics of having Mr. Lumumba removed from the courtroom, retorted: “That’s the way you’ve handled it the whole Court. I’m proud to be thrown out of your Courtroom.” The trial judge responded immediately that Mr. Lumumba’s comment would cost him three hundred dollars. So the evidentiary basis for the contempt boils down to a single statement by Mr. Lumumba expressing his view that the trial judge had not been fair in his rulings throughout the underlying trial and that Mr. Lumumba was proud to be thrown out of the judge’s courtroom. In my opinion, this single statement made under these particular circumstances does not provide a sufficient basis for finding Mr. Lumumba in contempt, particularly since there had not been any obstruction of a judicial proceeding, no repeated refusal to obey a court order or directive, and no threats to the judge or anyone else. This is not to say that Mr. Lumumba’s subsequent comment about paying for justice was appropriate. However, it is clear that this comment was not referring to bribing the judge to obtain justice but to a prior occasion when Mr. Lumumba had been found guilty of contempt and fined by another judge. In any event, it was not this comment that formed the basis of the citation for contempt.

¶28. Although, for reasons previously stated, I do not find a sufficient evidentia-ry basis to support the contempt finding by the trial court, I do find, assuming arguendo that the evidence supports a finding of contempt, that the matter should have been dealt with as an indirect, rather than a direct or summary, contempt proceeding.

¶ 29. “Summary contempt is justified only where there has been a ‘disorderly or obstreperous interference’ with the conduct of a trial.” In re Gustafson, 619 F.2d 1354, 1358 (9th Cir.1980). “In factual situations involving disrespectful conduct on the part of attorneys or pro se parties, courts have applied summary contempt only after a finding of ‘material obstruction or disruption.’ ” Id. at 1359.

¶ 30. In Gustafson, a federal district trial judge found Robert T. Gustafson in direct or summary contempt as a result of the following exchange which occurred during Gustafson’s closing argument in a complex conspiracy case:

GUSTAFSON: I must close, but before I do, I want you to know that Julio Zamora feels strongly about this case and his prayers have been that you will render a just and merciful verdict. For his wife and his children, too—
MRS. WITTMAN: Objection, your hon- or.
THE COURT: Mr. Gustafson you cannot, ladies and gentlemen, base a verdict based on any sympathy whatsoever. The case, and the verdict you render must be based on the facts and only the facts, nothing else.
MR. GUSTAFSON: I was just trying to say, your honor, and I’d like to have a ruling on it for his wife and his two children, too—
MRS. WITTMAN: Same objection, your honor.
THE COURT: That has nothing to do with it. His wife, his two children, nothing. It’s the facts of the case.
MR. GUSTAFSON: Thank you. Ladies and gentlemen of the jury, I have just presented you, or you have been presented, with an example of the operation between the bench and the prosecutor in quashing and quelling this evidence of a defense counsel trying to do his level best for his client, and I am going to have to rely upon you to give him every benefit of every doubt to my client, despite those efforts. Thank you, and I hope you have a Merry Christmas.

Id. at 1355-56. After Gustafson concluded his closing argument, the trial court excused the jury, recessed the trial for the day and summarily held Gustafson in contempt.

¶ 31. On appeal, the Ninth Circuit held that Gustafson’s remarks may have been contemptuous but that summary or direct contempt under Rule 42(a) of the Federal Rules of Criminal Procedure was improper and that the trial court should have proceeded under Rule 42(b). I quote the rule as quoted by the court:

(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.
(b) Disposition Upon Notice of Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall proceed on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant.... The defendant is entitled to trial by jury.... If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent.

Id. at 1356. (emphasis added).

¶ 32. In reversing the district’s court summary finding of contempt, the Gustaf-son court instructed:

Criminal contempts are divided into two classes: direct contempts, which occur in the presence of the court, and indirect contempts, which occur outside the presence of the court. A narrowly limited class of direct contempts may be punished under the summary procedures of Rule 42(a). Most direct contempts, however, and all contempts occurring outside the presence of the court, must be disposed of in accordance with the notice and hearing requirements of Rule 42(b).

Id. (citations omitted).

¶ 33. The Gustafson court further instructed that:

On its face, Rule 42(a) establishes just two prerequisites to imposition of summary punishment, both relating to the direct nature of the contempt. This rule, however, is not read literally to mean that the occurrence of a contemptuous act in the actual presence of the court is the only prerequisite to exercise of the summary contempt power. Both the Supreme Court and the circuit courts of appeal have emphasized that summary contempt is reserved for “exceptional circumstances ...” such as acts threatening the judge or disrupting a hearing or obstructing court proceedings. Moreover, because summary contempt fills “the heed for immediate penal vindication of the dignity of the court ...” it is confined to “unusual situations ... where instant action is necessary to protect the judicial institution itself.”

Id. at 1356-57. (emphasis added and citations omitted).

¶ 34. While this is not a federal contempt case, the teachings of Gustafson are persuasive. Surely, if contemptuous comments made during a closing argument do not warrant being treated in summary fashion, comments which were made, as in our case, at the close of a judicial proceeding do not warrant summary disposition. Moreover, it cannot be legitimately argued that the facts here presented any sort of exceptional circumstances such as threats to the judge or disruption of a court proceeding. The court proceeding had concluded.

¶ 35. For the reasons presented, I respectfully dissent.


author: KING, P.J.,

text:
    Chaddrick BROWN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01667-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2003.
    Rehearing Denied Jan. 27, 2004.
    Certiorari Denied March 25, 2004.
    Dan W. Duggan, Brandon, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   KING, P.J.,

for the Court.

¶ 1. Chaddrick Brown was found guilty of armed robbery in the Circuit Court of Rankin County. He was sentenced to a term of forty years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction, Brown has appealed and raised the following issues:

I. Whether the trial court committed reversible error when it failed to exclude hearsay evidence.

II. Whether Brown received effective assistance of counsel.

FACTS

¶ 2. Dennis Wade, an assistant manager on the night shift at Burger King on Pearson Road in Pearl, testified that he was robbed at gunpoint. Mr. Wade testified that shortly after midnight on July 16, 1998, he had finished counting the store’s money for the day, placed it in a deposit bag, and got into his car. According to Wade, someone opened the door and put a gun in his face.

¶ 3. The robbery was investigated by Detective Aaron Hirschfield of the Pearl Police Department. Hirschfield stated that in interviewing Wade, the name of Jerry Windham, a former employee was mentioned as a possible suspect. While being interviewed by Hirschfield, Wind-ham stated that he should “check out” Chaddrick Brown, also a former employee. As the investigation continued, Hirschfield was contacted by Gregory Usry who indicated that he might have some information concerning the robbery at Burger King.

¶ 4. Hirschfield testified that Usry told him about Carl Snell who might know about the robbery as well. Hirschfield then interviewed Snell and Justin Evans, another person he discovered through his investigation who might have some information regarding the robbery. Subsequently, Hirschfield obtained a written and videotaped statement from Evans that he and Brown robbed Wade.

¶ 5. Evans testified that he and Brown waited near the drive-through window for the night manager to come out. As the manager approached his car with the money bag, Brown put a gun in his face and took the money. After Evans and Brown took the money from the manager, they ran to the Harold Apartments, split the money, and went home.

¶ 6. Brown denied involvement in the robbery and testified to some uncertainty as to his whereabouts on the day of the robbery.

¶ 7. On cross-examination, Brown volunteered information about having previously been in .jail. In response to questions on this volunteered information, Brown indicated that he was in a military type of program in “Sunflower County, state penitentiary.” No objection was offered to these questions or responses.

ISSUES AND ANALYSIS

I.

Whether the trial court committed reversible error when it failed to exclude hearsay evidence.

¶ 8. Brown asserts that the trial court erred when it allowed hearsay testimony to be admitted into evidence despite the objections raised. Brown claims that the cumulative effect of the hearsay prevented his receipt of a fair trial.

¶ 9. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c); Harrison v. State, 722 So.2d 681(¶ 4) (Miss.1998).

¶ 10. Brown contends that the State elicited a number of responses from Detective Hirschfield which constituted hearsay. The testimony of which Brown complains may generally be described as Detective Hirschfield’s detailing of the actions taken in his investigation and the reasons for those actions. Where objection is made, the trial court must first determine whether the statement is hearsay. If the statement is determined to be hearsay, then the question of whether or not the statement meets one of the exceptions under Mississippi Rules of Evidence 803 or 804 must be addressed. Our review of the record reveals that no objection was made to most of this testimony.

¶ 11. The failure to object to the admission of inappropriate evidence precludes this Court’s review of that matter. Duplantis v. State, 644 So.2d 1235, 1247 (Miss.1994). This Court will not place a trial court in error on a matter which was not placed before it. Bishop v. State, 771 So.2d 397 (¶ 14) (Miss.Ct.App.2000).

¶ 12. However this information would have been admissible even if Brown had made a timely objection. It is elemental that a police officer may testify that he received a complaint, and the action which he took as a result of that complaint. Butler v. State, 758 So.2d 1063 (¶ 10) (Miss.Ct.App.2000).

¶ 13. The record does reflect that Brown objected when Detective Hirsch-field offered the following testimony:

Q. Based on that interview with Mr. Usry, where were you in your suspect search after this interview?
A. Still with Chaddrick Brown and another name came up of Carl Snell.
Q. So Carl Snell’s name popped up out of Greg Usry?
A. Yes, sir, it did.
Q. Were you able to determine from your interview with Mr. Usry the source of Mr. Usry’s reported information?
A. Yes, sir, I was.
Q. What did you determine to be the source of his information?
MR. ROGERS (Brown’s attorney): Your Honor, I object to that because he’s using that, and it’s hearsay is what he’s doing with that report.
THE COURT: Well, he hasn’t testified to any hearsay from the report that I’ve heard so far. He’s trying to lay a foundation for a police investigation, I think. As long as he’s not repeating anything the witness said, I think he can outline for the jury where his investigation led him. And I think that’s what he’s trying to do.
MR. ROGERS: Your Honor, for the record he’s not reading from it. Trying to get it in the back door, because saying what’s contained in it. He’s back dooring [sic] it that way.
THE COURT: Overruled. I caution the witness not to testify what any person told him.
Q. (Mr. Jones, continuing): My question was this. After your interview with Mr. Usry, were you able to determine the source of Mr. Usry’s information?
MR. ROGERS: I object to that.
THE COURT: Overruled.
MR. ROGERS: That’s still hearsay.
THE COURT: Overruled.
A. Yes, sir, I was.
Q. (Mr. Jones, continuing): What was that source?
A. The source was Chaddrick Brown.

¶ 14. The testimony set out above was hearsay, and should have been excluded. The failure to exclude that testimony was error. However, that error became harmless when Greg Usry subsequently testified to the same information. While Usry’s testimony was also hearsay, it was admissible as a statement against interest under Rule 804(b)(3) of the Mississippi Rules of Evidence.

¶ 15. This Court has consistently held that “the relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Alexander v. State, 759 So.2d 411(¶ 9) (Miss.2000). Under these facts, this Court cannot say that discretion has been abused. Accordingly, we hold this issue to be without merit.

II.

Whether Brown received effective assistance of counsel.

¶ 16. Brown asks this Court to reverse his conviction due to the supposed ineffective assistance of his attorney. He specifically argues that defense counsel should have objected to the admission of information of Brown’s prior incarceration.

¶ 17. The testimony of which Brown complains is as follows:

Q. But back in February, were you reading your Bible then?
A. Back in February when I was in jail?
Q. Yeah.
A. Yes, sir. When I got to jail on February 14th, I went to the RID.
Q. You went to RID?
A. Yes, sir.
Q. How long did you do in RID?
A. Six months.
Q. What is RID?
A. Like a program, like, you know, like a military, basic program, you know, just go through there and get your life together and stuff like that. You know, you just do basically what the military do [sic].

¶ 18. The information of which Brown complains was not sought from Brown, but rather was volunteered by him. This Court will not entertain an appellant’s complaint concerning evidence which he brought out at trial. Garmon v. State, 755 So.2d 542(¶ 8) (Miss.Ct.App.1999).

¶ 19. This issue is without merit.

¶ 20. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . Mississippi Rule of Evidence 803 provides hearsay exceptions when the declarant is available. Mississippi Rule of Evidence 804 provides hearsay exceptions when the declar-ant is unavailable.

      . Mississippi Rule of Evidence 804(b)(3) provides: (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.


author: BRIDGES, J.,

text:
    Obbie Bernard MURPHY, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-KA-01688-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.
    Certiorari Denied March 25, 2004.

      Glenn F. Rishel, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

BRIDGES, J.,

for the Court.

¶ 1. The appellant’s motion for rehearing is denied. The original opinion is withdrawn and this opinion is substituted therefor.

¶ 2. The grand jury of Harrison County indicted Obbie Bernard Murphy as an habitual offender on counts of robbery, carjacking, attempted carjacking, and kidnap-ing. Murphy was found guilty on all counts and was sentenced to serve a term of forty-five years for the charges of robbery, carjacking, and attempted carjacking and thirty-five years for the charge of kidnaping, to run concurrently with the first sentence without the possibility of parole. It is from that judgment and conviction that Murphy now appeals.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL JUDGE ERRED WHEN HE SUSTAINED AN OBJECTION AGAINST ONE OF MURPHY’S PEREMPTORY STRIKES BECAUSE IT DISCRIMINATED ON THE BASIS OF RACE.

II. WHETHER THE STATE CONDUCTED AN IMPERMISSIBLY SUGGESTIVE IDENTIFICATION PROCEDURE WHICH RESULTED IN AN IRREPARABLE MIS-IDENTIFI CATION.

III. WHETHER THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MURPHY HAD THE CRIMINAL INTENT TO KIDNAP CHRYSTAL STEVENS.

IV. WHETHER THE TRIAL JUDGE ERRED WHEN HE ADMITTED A STATEMENT MADE BY MURPHY.

¶ 3. Murphy filed his pro se supplemental brief setting forth two other issues, both of which were addressed in our majority opinion but not specifically referred to. We now address those issues although the State, in its brief, did not respond to them. We now specifically add those two issues that are verbatim from Murphy’s supplemental brief.

V. THAT THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT PUT NICOLETTE STUBB’S [sic] IN FEAR OF IMMEDIATE INJURY TO HER PERSON.

VI. THAT THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT TOOK FROM CRYSTAL DAWN STEVEN’S IMMEDIATE ACTUAL POSSESSION, A MOTOR VEHICLE TO WIT: ONE (1) CHEVROLET [sic] CAMARO.

FACTS

¶ 4. On August 14, 1999, Murphy walked into a Shell Gas Station located on Pass Road in Gulfport, Mississippi. According to Nicole Stubbs, an employee who was working at the time in question, Murphy walked in and out of the store several times. Stubbs testified that Murphy finally approached her carrying a six-pack of beer. After ringing up the beer and telling him the total, Murphy then told her to give him all of the money in the cash register. After receiving the money, Murphy asked for some cigarettes, and then left the store.

¶ 5. Stubbs further testified that after walking out of the store, Murphy approached a man sitting in a truck and after having a brief conversation, he then proceeded to walk over to a gray Chevrolet Camaro. Chrystal Stevens was sitting in the passenger seat of the Camaro. Murphy told Stevens to get out of the car, but she informed him that she could not because the door was bound shut with a bungee cord. Because the keys were left in the ignition, Murphy got into the car and drove away. While stopped at a red light, Stevens took the opportunity to push really hard on the door and when it opened, she quickly exited the vehicle. A short time later, police found the Camaro and Murphy in front of a nearby residence.

ANALYSIS

I. WHETHER THE TRIAL JUDGE ERRED WHEN HE SUSTAINED AN OBJECTION AGAINST ONE OF MURPHY’S PEREMPTORY STRIKES BECAUSE IT DISCRIMINATED ON THE BASIS OF RACE.

¶ 6. “On review, the trial court’s determinations under Batson are afforded great deference because they are, in large part, based on credibility.” McGilberry v. State, 741 So.2d 894, 923 (¶ 118) (Miss.1999) (citing Coleman v. State, 697 So.2d 777, 785 (Miss.1997)). “This Court will not reverse any factual findings relating to a Batson challenge unless they are clearly erroneous.” Id. The Mississippi Supreme Court has held that the trial judge is afforded great deference in determining if the expressed reasons for exclusion of a venire person from the challenged party is in fact race neutral. Stevens v. State, 806 So.2d 1031, 1047(¶ 70) (Miss.2001) (citing Tanner v. State, 764 So.2d 385, 393(¶ 14) (Miss.2000)). In Stewart v. State, the court held that “one of the reasons the trial court is granted such deference in a Batson issue is because the demeanor of the attorney making the challenge is often the best evidence on the issue of race neutrality.” Stewart v. State, 662 So.2d 552, 559 (Miss.1995).

¶ 7. Murphy exercised peremptory strikes on two jurors who are white which caused the State to make a Batson challenge. Murphy argues that he had a bad feeling about these two jurors based on their demeanor during voir dire. The court held that this was not a race neutral reason and denied the peremptory challenge.

¶ 8. The court in Davis v. State, 660 So.2d 1228, 1242 (Miss.1995), reiterated a list of reasons accepted as race neutral. “Included among those reasons: age, demeanor, marital status, single with children, prosecutor distrusted juror, educational background, employment history, criminal record, young and single, friend charged with crime, unemployed with no roots in community, posture and demeanor indicated juror was hostile to being in court, juror was late, short term employment.” Id. The Mississippi Supreme Court has also accepted demeanor as a legitimate, race neutral basis for a peremptory challenge. Walker v. State, 671 So.2d 581, 628 (Miss.1995). However, while demeanor can be sufficient to support a claim that a peremptory strike was race neutral, the trial judge must assess all of the evidence before him. Stevens, 806 So.2d at 1047-48(¶ 70).

¶ 9. We will not reverse a trial judge’s factual findings on this issue unless they appear clearly erroneous or against the overwhelming weight of the evidence. Walters v. State, 720 So.2d 856, 865(¶ 28) (Miss.1998). According to the record, the trial court’s findings on Murphy’s challenges are not clearly erroneous nor against the weight of the evidence. The trial judge saw the demeanor of the potential jurors and the lawyers bringing the strikes. The judge is in the best position to assess the overall credibility of the statements made in voir dire and by presenters of the peremptory strikes. The record indicates that the presenter of the peremptory strike initially stated that he struck a juror “simply because I just had a bad feeling about him.” Later, the presenter said, “His general demeanor, what we thought of him just by looking at him that we felt it would be better if we didn’t have him on the jury. And I think that’s a race neutral reason.” Based upon these statements made by the presenter when he supported his peremptory strike, the trial judge was not clearly erroneous when he sustained the objection to the peremptory strikes. Therefore, this issue is without merit.

II. WHETHER THE STATE CONDUCTED AN IMPERMISSIBLY SUGGESTIVE IDENTIFICATION PROCEDURE WHICH RESULTED IN AN IRREPARABLE MIS-IDENTIFICATION.

¶ 10. Murphy alleges that the trial court should not have admitted the out-of-court and in-court identifications by the eyewitnesses to the robbery, carjacking, and kidnaping. He believes that law enforcement conducted an impermissibly suggestive identification procedure.

¶ 11. In Ellis v. State, the Mississippi Supreme Court stated the applicable standard of review as follows:

The standard of review for suppression hearing findings in a matter of pretrial identification cases is whether or not substantial credible evidence supports the trial court’s findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted.

Ellis v. State, 667 So.2d 599, 605 (Miss.1995).

¶ 12. The ultimate question is whether or not, under the totality of the circumstances, even though the confrontation was suggestive, the identification was reliable, despite the suggestiveness. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Regarding an improperly suggestive pre-trial identification’s tainting subsequent identification at trial, the Mississippi Supreme Court evaluates the factors enumerated in Biggers to determine whether the in-court identification is “sufficiently reliable to overcome the taint of the prior improperly attained identification.” Gayten v. State, 595 So.2d 409, 418 (Miss.1992). The Biggers factors include:

(1) the opportunity of the witness to view the accused at the time of the crime;
(2) the degree of attention exhibited by the witness;
(3) the accuracy of the witness’ prior description of the criminal;
(4) the level of certainty exhibited by the witness at the confrontation;
(5) the length of time between the crime and the confrontation.

Ellis, 667 So.2d at 605.

¶ 13. “Even though the pre-trial identification is impermissibly suggestive,” an in-court identification should only be excluded if the conduct, considered under the Biggers factors, “gave rise to a very substantial likelihood of irreparable mis-identifieation.” Mason v. State, 736 So.2d 1053, 1056(¶ 9) (Miss.Ct.App.1999); see also York v. State, 413 So.2d 1372, 1384 (Miss.1982).

¶ 14. The theory behind Murphy’s argument is mind-boggling. Not only did Murphy give a statement that he was in the store, took the money, and took the car, but there was also a videotape that showed Murphy in the store. At trial, Murphy never claimed that he was misidentified. Nor did he argue that someone else committed the crimes. Murphy merely argues that he did not commit all of the elements of robbery, carjacking, and kid-naping.

¶ 15. The facts contained in the record clearly support a finding that the in-court identification was not impermissibly tainted by a pre-trial identification procedure. There was substantial evidence that Murphy was the person who went into the store, took the money from the clerk, then approached two people in vehicles, and drove away in one of the cars while a person was still inside. The evidence contained in the record included Murphy’s statement to the police, a videotape which recorded the robbery, and the testimony of the witnesses to the crime. Therefore, in the absence of a substantial likelihood of irreparable misidentification, there is no merit to this issue.

III. WHETHER THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MURPHY HAD THE CRIMINAL INTENT TO KIDNAP CHRYSTAL STEVENS.

¶ 16. Murphy contends that the State failed to prove that he intended to kidnap Chrystal Stevens. He claims that he intended to steal the car, and in fact told Stevens to get out. Because of the failure of the door to open, Murphy drove away with her still inside the car. Murphy blames the car.

¶ 17. The Mississippi Supreme Court stated that “kidnaping is not a specific intent crime.” Milano v. State, 790 So.2d 179, 187(¶ 32) (Miss.2001). “Therefore, it is sufficient that the surrounding circumstances resulted in a way to effectively become kidnaping as opposed to the actual intent to kidnap.” Id. When Murphy decided to drive away with Chrystal Stevens in the car, he knew he was taking her against her will. There is not an absence of criminal intent to kidnap merely because Murphy would not have driven off with Stevens if she could have opened the door. He knew he was taking her away against her will when he drove the car away. Murphy had the criminal intent required to commit the crime of kidnaping; therefore, this issue is without merit.

IV. WHETHER THE TRIAL JUDGE ERRED WHEN HE ADMITTED A STATEMENT MADE BY MURPHY.

¶ 18. After the officers apprehended Murphy, he made a few comments in response to a statement made by one officer which was directed at another officer. Officer Werby stated, “Well, he won’t be doing that again,” which Murphy responded to by saying, “You wanna bet. As soon as I get out I’m going to do it again. Y’all can’t stop me.” Murphy claims that his comments were not relevant, and that the prejudice far outweighed any probative value. He also contends that the comments were made without a valid waiver of Murphy’s Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶ 19. The Mississippi Supreme Court has held that:

[A] confession or statement relating to culpability may be admitted into evidence if it is given freely and voluntarily, and without the influence of promises or threats. Pinkney v. State, 538 So.2d 829, 342 (Miss.1988) ... A volunteered statement, voiced without prompting or interrogation, is admissible in evidence if made prior to the warning and of course if it were voluntarily and spontaneously made subsequent to [the Miranda warning], it would remain admissible in evidence. Burge v. State, 282 So.2d 223, 226 (Miss.1973). Furthermore, this Court has said an officer is not required to turn a “deaf ear” to such statements. Burge, 282 So.2d at 226. This Court will not reverse a trial court’s finding regarding the admission of a [culpable statement] unless it is manifestly wrong. Lockett v. State, 517 So.2d 1317, 1328 (Miss.1987).

Posey v. State, 822 So.2d 315, 319(¶ 17) (Miss.Ct.App.2002) (citing Ricks v. State, 611 So.2d 212, 214 (Miss.1992)) (emphasis added).

¶20. There is ample evidence in the record that supports the trial judge’s finding that the statement was voluntarily and spontaneously given without coercion or interrogation from the investigators. The statement was spontaneous and not prompted within the meaning of Miranda; therefore, suppression of the voluntary statement was not required. Thus, this issue has no merit.

V. DID THE STATE FAIL TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT PUT NI-COLETTE STUBBS IN FEAR OF IMMEDIATE INJURY TO HER PERSON?

¶ 21. Murphy claims that the State is required to prove each element of the crime, but failed to do so in this case. He states that the State failed to prove that he put Nicolette Stubbs in “fear of immediate injury to her person.”

¶ 22. According to Crocker v. State, 272 So.2d 664, 665 (Miss.1973), “[i]t is well settled that the three essential elements of robbery are as follows: (1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence.” In dealing with the second element, “if putting in fear is relied upon, it must be the fear under duress of which the owner parts with possession.” Id. It is this second element that Murphy argues that the State failed to prove.

¶ 23. While we recognize that fear after a robbery will not suffice to support that it was the cause of the robbery, Clayton v. State, 759 So.2d 1169, 1172(¶ 8) (Miss.1999), we do not find that to be the case in the case sub judice, as Murphy asserts. After a thorough review of the record, we find that it clearly shows that the State properly established, through Stubbs’ testimony, that she was in fear when she was robbed. Accepting as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, Noe v. State, 616 So.2d 298, 302 (Miss.1993), we find that this testimony supports the reasonable inference that Stubbs was robbed because she was in fear and that the requisite element for robbery was established.

VI. DID THE STATE FAIL TO PROVE BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT TOOK FROM CRYSTAL DAWN STEVEN’S IMMEDIATE ACTUAL POSSESSION, A MOTOR VEHICLE TO WIT: ONE (1) CHEVROLET [sic] CAMARO?

¶ 24. Murphy alleges that the State failed to prove that he “took from Crystal Dawn Stevens’s immediate actual possession, a motor vehicle to wit one (1) Chevrolet [sic] Camaro.” Murphy also claims that the fact remains that Crystal had no immediate actual possession of this vehicle.

¶ 25. While Mississippi has no case law on point, there are several other jurisdictions which have defined the meaning of “immediate actual possession.” For example, the court of appeals in the District of Columbia stated that “a thing is within one’s immediate actual possession so long as it is within such range that he could, if not deterred by violence or fear, retain actual physical control over it.” Winstead v. United States, 809 A.2d 607, 610 (D.C.2002) (citing Rouse v. United States, 402 A.2d 1218, 1220 (D.C.1979)). The court held in agreement with the District of Columbia Circuit that immediate actual possession “is retained if the car is within such range that the victim could, if not deterred by violence or fear, retain actual physical control over it.” Id. (citing United States v. Gilliam, 334 U.S.App. D.C. 391, 402-03, 167 F.3d 628, 639-40 (1999) (affirming convictions of earjackers who confronted their victim and took his car after he stepped out of the vehicle to unlock a parking lot gate)).

¶26. Also, the Virginia Court of Appeals stated that “possession of a vehicle may be actual or constructive.” Brown v. Commonwealth, 37 Va.App. 507, 520-21, 559 S.E.2d 415, 422 (2002). “Constructive possession occurs where an individual has the means of exercising dominion or control over the vehicle.” Id. at 521, 559 S.E.2d 415. See Bell v. Commonwealth, 21 Va.App. 693, 698-99, 467 S.E.2d 289, 292 (Va.Ct.App.1996).

¶ 27. According to Black’s Law Dictionary, actual possession is the “physical occupancy or control over property.” Black’s Law Dictionary 1183 (7th ed.1999). Applying these principles, the evidence established that Crystal had actual possession of Veronica Early’s car. She was sitting in the passenger seat with the keys in the ignition. Crystal could easily have swung her legs over and driven the car away. At the time of Murphy’s approach, she quite literally had direct physical control of the car. Clearly, Crystal occupied the vehicle at the time Murphy seized it. She was in possession of the vehicle. She also had control of the running vehicle at the time it was seized.

¶ 28. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION ON COUNT I OF ROBBERY AND SENTENCE OF FIFTEEN YEARS; COUNT II OF CARJACKING AND SENTENCE OF FIFTEEN YEARS; COUNT III OF ATTEMPTED CARJACKING AND SENTENCE OF FIFTEEN YEARS; AND COUNT IV OF KIDNAPING AND SENTENCE OF THIRTY YEARS AS AN HABITUAL OFFENDER ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. SENTENCES FOR COUNTS I, II, & III ARE TO RUN CONSECUTIVELY WITH EACH OTHER AND COUNT IV IS TO RUN CONCURRENTLY WITH COUNTS I, II, & III. ALL COSTS OF THIS APPEAL ARE TAXED TO HARRISON COUNTY.

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


text:
    Arlis Kimble STEEN, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01794-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.
    Rehearing Denied March 23, 2004.

      Arlis Kimble Steen, Jr., Appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   KING, P.J.,

for the Court.

¶ 1. On September 24, 2002, Arlis Kim-ble Steen, Jr., pro se, filed a motion for post-conviction collateral relief in the Circuit Court of Attala County, Mississippi. That motion was denied, and Steen has perfected this appeal.

¶ 2. On appeal, Steen has raised the following issues:

I. Whether he received effective assistance of counsel.

II. Whether his guilty pleas were voluntary.

FACTS

¶ 3. In September 1999, Steen was indicted on two counts of the sale of marijuana.

¶ 4. On September 14, 2000, Steen, represented by counsel, entered guilty pleas to the charges against him. During the plea hearing, the trial judge questioned Steen to determine whether his pleas of guilty to the sale of marijuana were knowingly and voluntarily made. Steen testified that he understood the nature of the charges and was in fact guilty of the crimes. The trial judge questioned Steen to determine whether he was under the influence of drugs or undergoing any mental treatment. Steen stated that he was neither under the influence of drugs nor undergoing treatment.

¶ 5. The trial judge asked if Steen understood that he was entitled to a public trial by jury, had the right to cross-examine those persons testifying against him, and the right to subpoena witnesses to testify on his behalf. Steen indicated that he understood these rights. The trial judge informed Steen that pleading guilty would waive these constitutional rights including the right to testify or not testify. Steen indicated that he understood the waiver of these rights.

¶ 6. Additionally, the trial judge asked Steen whether he had fully discussed all the facts and circumstances surrounding this case with his attorney. Steen responded affirmatively. The trial judge asked Steen whether he had talked about any possible defenses available to him if he went to trial. Steen indicated that he did discuss this with his attorney. The trial judge asked Steen whether he had been threatened or coerced into pleading guilty. Steen stated that he had not been threatened or coerced into pleading guilty. The trial judge also asked whether he understood the minimum and maximum penalties required by law on the charges against him. Steen .acknowledged that he understood this. The trial judge asked Steen if he was satisfied with his attorney’s representation, to which Steen responded, “Yes, sir.”

¶ 7. The trial judge then accepted Steen’s plea of guilty to each charge of the sale of marijuana.

ISSUES AND ANALYSIS

I.

Whether Steen received effective assistance of counsel.

¶ 8. Steen claims that his attorney’s deficient performance deprived him of a fair trial, and the effective assistance of counsel. To establish an ineffective assistance of counsel claim, Steen must show (1) a deficiency of counsel’s performance that is (2) sufficient to constitute prejudice to his defense. Swift v. State, 815 So.2d 1230(¶ 17) (Miss.Ct.App.2001).

¶ 9. In support of his claim, Steen asserts that his attorney discouraged him from pursuing a sound defense by leading him to think that presenting a defense would not be beneficial against the State. Steen maintains that his attorney failed to investigate any mitigating evidence in preparation for his case and failed to conduct interviews with witnesses.

¶ 10. Mississippi Code Annotated Section 99-39-9 (Rev.2000), provides that motions for post-conviction relief should contain affidavits which include facts and state how or by whom these facts will -be proven. Laushaw v. State, 791 So.2d 854(¶.14) (Miss.Ct.App.2001). Although Steen has made the above assertions, he has not provided a list of these witnesses nor has he provided affidavits or other evidence which set forth the facts and evidence to support this claim. Moore v. State, 676 So.2d 244, 246 (Miss.1996).

¶ 11. The record of the plea hearing reflects that Steen, under oath, indicated satisfaction with his attorney’s representation. This Court places great weight upon the sworn testimony of a defendant given during a plea hearing, Calvert v. State, 726 So.2d 228(¶ 11) (Miss.Ct.App.1998), and requires something more than mere assertions to disregard that testimony. Id.

¶ 12. Because no evidence has been presented to this Court in support of Steen’s position, we find no merit in this issue.

II.

Whether Steen’s guilty pleas were voluntary.

¶ 13. Steen asserts that his guilty pleas were involuntary due to threats and coercion.

¶ 14. Rule 8.03(A)(3) of the Uniform Circuit and County Court Rules states:

3. Voluntariness. Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.

The record reflects that when asked by the trial judge whether he had been threatened or coerced into pleading guilty, Steen stated that he had not been threatened or coerced. Again, this Court does, and is entitled, to place great weight upon the sworn testimony of a defendant given at a plea hearing. Templeton v. State, 725 So.2d 764(¶ 11) (Miss.1998). This is true even where the defendant now raises assertions to the contrary. Steen stated that he was guilty of the sale of marijuana as set forth in the indictments, and it was for that reason he entered pleas of guilty.

¶ 15. In his petition for post-conviction collateral relief, Steen now claims that his attorney placed undue pressure on him to plead guilty by leading him to believe that he would receive a longer sentence than another co-defendant. Steen also alleges that the district attorney informed a relative that Steen would receive the maximum sentence if he did not plead guilty. Steen asserts that he was threatened by former Sheriff Troy Steed and drug enforcement agents Mike Perkins and Adrian Lamond who indicated that if he did not plead guilty, his sentence would be greater.

¶ 16. While Steen has made all of these allegations, he has failed to produce evidence to establish their truth. Where defendant now seeks to contradict a solemn statement under oath, he is required to offer significantly more than mere allegations. White v. State, 818 So.2d 369(115) (Miss.Ct.App.2002). Steen has not met this burden.

¶ 17. This Court finds no merit in this claim.

¶ 18. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.

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