author: COBB, Presiding Justice,

text:
    Elliot CULP v. STATE of Mississippi.
    No. 2002-KA-01966-SCT.
    Supreme Court of Mississippi.
    Dec. 15, 2005.
    Rehearing Denied March 16, 2006.

      Imhotep Alkebu-Lan, Chokwe Lumum-ba, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before COBB, P.J., CARLSON and RANDOLPH, JJ.
   COBB, Presiding Justice,

for the Court.

¶ 1. Elliot Culp was tried by a Holmes County Circuit Court jury on a multi-count indictment for forcible rape, armed robbery, kidnaping, arson, aggravated assault, conspiracy to commit an armed robbery, and capital murder while in the commission of felonious abuse of a child. On February 18, 2002, he was found guilty of all counts except capital murder, and was sentenced to serve sixty years incarceration in the Mississippi Department of Corrections. The trial court subsequently denied Culp’s motions to quash the indictment, for J.N.O.V. and alternately, for a new trial. On appeal, we conclude that there is no merit to the issues raised by Culp, and we affirm the judgment of the Holmes County Circuit Court.

FACTS

¶ 2. On the evening of February 28, 2000, Jane Doe, and Allen Scott, were found severely beaten and in critical condition on the side of the road near Durant, Mississippi. Earlier that day, a rest stop security officer had seen them and bought them bus tickets to return to their homes in Texas. Later that day, Durant police officer Howard Harrison saw Doe and Scott at the bus stop with Culp and Travis Lowe.

¶ 3. Culp and Lowe took Scott and Doe out into the country, brandished a pistol which had been taken from Lowe’s sister’s home, and demanded $5,000 which Scott was rumored to have stolen from someone in Texas. When told that they did not have any such money, Culp forced Scott out of the car and held the gun to his head while Lowe raped Doe. Culp also raped her, then burned Scott and Doe’s clothing, and cut Scott’s throat and Doe’s side with a knife. Before leaving the scene, Culp beat Scott, and Lowe beat Doe with a baseball bat. Then Culp and Lowe drove away, leaving Doe and Scott on the side of the road.

¶4. Two people passing by called an ambulance after they saw the bodies and fire. Scott and Doe were transported to the hospital where Scott later died from lethal blunt force trauma to the skull. Doe was in a coma but later regained consciousness and recovered.

¶5. Since he had last seen the victims with Culp and Lowe, Officer Harrison and another officer went to Culp’s house where they briefly spoke with Culp’s mother and then asked Culp to come down to the police station to discuss his relationship with the victims. While at the police station Culp’s mother brought him fresh clothing and the clothes he was wearing were taken. The officers obtained a warrant for a blood sample from Culp and Lowe, and subsequently DNA from blood spots on Culp’s shirt and shoes was found to be consistent with Doe’s DNA. DNA evidence from Culp was also found on a vaginal swab taken from Doe.

¶ 6. In exchange for leniency in sentencing, Lowe confessed to officials that he and Culp committed the attacks on Doe and Scott as part of a robbery. Culp’s statement was that he left Doe and Scott at the bus station. He also said he did have intercourse with Doe, but it was consensual.

PROCEDURAL HISTORY

¶ 7. On March 20, 2000, a Holmes County grand jury indicted Culp and Lowe on thirteen counts. As to Culp, two of the counts were quashed. The trial court granted Culp’s pretrial motion to suppress in-court identification by Doe. Culp also moved to suppress the other evidence, arguing that it was obtained from an illegal arrest at Culp’s home. The trial judge denied this motion, finding that Culp was not arrested at that time and that the police had probable cause to seize the evidence.

¶ 8. At the close of the State’s case, Culp moved for a directed verdict on all counts, and the trial court granted only one, being robbery by exhibition of a deadly weapon. On March 20, 2002, the jury returned a verdict of guilty on all counts of the indictment except capital murder by felonious abuse of a child, and Culp was sentenced to sixty years in the custody of the Mississippi Department of Corrections.

¶ 9. Culp subsequently filed a motion to quash the indictment, alleging that two members of the grand jury were “interested.” After conducting a two-day hearing, during which numerous members of the grand jury were questioned, as well as the county prosecutor, the trial court denied Culp’s motion, finding that the presence of the two grand jurors did not violate Culp’s rights. Culp appeals and asserts the following errors:

I. The circuit court erred in denying Culp’s motion to suppress evidence obtained via an unlawful arrest and search.
II. The circuit court erred in denying Culp’s motion to suppress Officer Harrison’s identification of Culp.
III. The circuit court erred in denying Culp’s motion for a directed verdict.
IV. Culp was convicted based upon inconsistent jury verdicts.
V. Culp was denied due process because he was convicted of multipliei-tous counts.
VI. Culp’s rights to a fair trial and due process of law were violated because he was indicted by an improperly composed grand jury.
VII. Culp’s right to due process of law was violated because the prosecutor failed to comply with discovery pursuant to Brady v. Maryland.
VIII.The cumulative impact of the errors violated Culp’s right to a fair trial.

ANALYSIS

I. DENIAL OF CULP’S MOTION TO SUPPRESS EVIDENCE.

¶ 10. In determining whether the issuance of a search warrant is proper, an appellate court will review the trial judge’s decision to determine whether there was a substantial basis for concluding that probable cause existed. Petti v. State, 666 So.2d 754, 757 (Miss.1995) (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). The reviewing court will overturn the trial court if there is an absence of substantial credible evidence to support the issuance of the search warrant. Magee v. State, 542 So.2d 228, 231 (Miss.1989).

¶ 11. Culp asserts that the search warrant for a blood sample violated his rights in three ways: (1) it was based on an illegal arrest made in Culp’s home without an arrest warrant or exigent circumstances; (2) by surrendering his clothes, he was required to make a statement in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (3) the search warrant was based on evidence which did not amount to probable cause. Our review of the record reveals otherwise.

1. Whether the Police Illegally Arrested Culp at his Home

¶ 12. Culp relies on Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), in support of his illegal arrest argument. His reliance is misplaced, however, because Welsh is clearly distinguishable on its facts. Police officers entered Welsh’s home, without a warrant or consent, and found him lying naked in his bed. They placed him under arrest for driving while under the influence of an intoxicant. The Supreme Court held that a nighttime entry into Welch’s home to arrest him for a civil traffic offense was “clearly prohibited by the special protection afforded the individual in his home by the Fourth Amendment.” Id. at 754, 104 S.Ct. 2091.

¶ 13. We have found that “arrest” means the “taking into custody of another person by an officer ... for the purpose of holding him to answer an alleged or suspected crime.” Blue v. State, 674 So.2d 1184, 1202 (Miss.1996). Someone who voluntarily accompanies the police to another location for questioning has not been arrested. Id. We have also held that the test for determining when a person is “in custody” is whether a reasonable person would feel that they were going to jail and not just being temporarily detained. Godbold v. State, 731 So.2d 1184, 1187 (Miss.1999). Ultimately this means whether a reasonable person felt they had the freedom to refuse police demands. Id. The United States Supreme Court has held that one does not have to be affirmatively told that they had the right to refuse for their actions to be voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 234, 93 S.Ct. 2041, 2051, 36 L.Ed.2d 854 (1973). This Court has held that the voluntariness of an accused’s consent is based on the “totality of the circumstances” including among other things: the location of the encounter, any overt coercion, the display of weapons, experience of the defendant with the criminal justice system, and the defendant’s age. Jones v. State ex rel. Miss. Dep’t of Pub. Safy, 607 So.2d 23, 27 (Miss.1991).

¶ 14. Culp’s assertion that he was arrested at his home is not borne out by the record, which clearly indicates that the officers were there to speak to him because he and Lowe were the last people seen with the victims. The officers did not arrest Culp at that time, and in fact, told Culp’s mother that they merely wanted to question him. Culp agreed to accompany the officers to the police station.

¶ 15. When the officers asked Culp to go with them to the police station, they were doing so to further a general investigation and not to hold Culp to answer for a specific crime. It was not until later that the evidence against Culp indicated his involvement in the assault of one victim and the assault and rape of the other. At all times Culp remained free to refuse to go with the officers. Although they did not tell Culp that he had the right to refuse, under Schneckloth they were not obligated to do so. Further, the fact that the two officers were armed does not make Culp’s consent involuntary. They did not display their weapons or indicate that they were present at Culp’s home for the purpose of arresting him, or that force would be used against him. Officer Harrison merely asked Culp to come to the police station to answer questions regarding his relationship with the victims. In Jones, we clearly illustrated that the presence of armed police does not itself make consent involuntary, but is rather part of the “totality of the circumstances” to be considered. Jones, 607 So.2d at 27. Also, Culp had experience with police investigations, because he had previously been indicted for another crime.

2. Whether Taking Culp’s Clothes Violated the Fifth Amendments

¶ 16. At the police station, Chief Eskridge escorted Culp into his offiee, where they talked while waiting for Sheriff March to arrive. While they were talking, Culp asked the Chief, without being prompted, whether he should remove his clothing and surrender it to the police. Eskridge responded that he probably should do so, but did not compel Culp to surrender his clothing.

¶ 17. Eskridge did not know that Sheriff March, while en route from the crime scene to the station, had spoken to someone and suggested that Culp’s clothes needed to be examined. After the Sheriff arrived at the police station, he took the clothes which Culp had removed, and placed them into an evidence bag. While doing this, he noticed red spots which appeared to be blood on them. At trial, the Sheriff acknowledged that Culp would not have been free to leave until he had an opportunity to speak with him and that Culp was represented by counsel. The record is silent as to whether Culp did, or did not, ask to leave.

¶ 18. The Fifth Amendment secures the right to have an attorney present if requested by individuals subject to “custodial interrogation.” Godbold, 731 So.2d at 1187 (citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). If the right to an attorney is denied or questioning continues without an attorney present after the accused has requested one, then the prosecution is prohibited from using any resulting statements. Miranda, 384 U.S. at 444, 86 S.Ct. 1602.

¶ 19. To be subject to “custodial interrogation” one must be both in custody and undergoing interrogation. One is in custody if a reasonable person would find their ability to freely leave restricted. Id. Interrogation does not mean only questioning but rather questioning and its “functional equivalent.” Pierre v. State, 607 So.2d 43, 52 (Miss.1992). The United States Supreme Court has defined “functional equivalent” to mean words or actions that the police should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980).

¶ 20. In order for statements from a “custodial interrogation” to be admissible under the Fifth Amendment they must be preceded by proper Miranda warnings. Godbold, 731 So.2d at 1188. The use of statements given in response to police questioning will violate the Fifth Amendment if conducted in the absence of an attorney after the accused has specifically invoked the right to have one. Holland v. State, 587 So.2d 848, 856 (Miss.1991).

¶ 21. The Fifth Amendment privilege against self-incrimination applies only to testimonial evidence and not to real or physical evidence. Upshaw v. State, 350 So.2d 1358, 1364 (Miss.1977). In Up-shaw, this Court held that clothing is not testimonial evidence and therefore the Fifth Amendment privilege against self-incrimination will not bar its introduction at trial. Id. Use of Culp’s clothing did not violate the Fifth Amendment privilege against self-incrimination because it was not testimonial. Clothing, as we stated in Upshaw, is physical evidence and not a statement. Further, at the time that Chief Eskridge told Culp that he should probably surrender his clothing, Culp was not under custodial interrogation. The exchange between Culp and Eskridge was initiated by Culp and not by the police, and lasted only long enough for Eskridge to reply to Culp’s direct inquiry. It did not result in Eskridge asking any questions of Culp or taking any statements from him.

¶ 22. The facts indicate that Culp voluntarily surrendered his clothing to Chief Eskridge without police compulsion. Voluntary consent eliminates the warrant requirement. Morris v. State, 777 So.2d 16, 26 (Miss.2000). When the State relies on consent to justify a seizure, the State must prove that it was voluntarily given and not the product of coercion or duress. Jackson v. State, 418 So.2d 827, 830 (Miss.1982). The Jones Court stated that the trial court must look at the totality of the circumstances to determine if consent was voluntary. Jones, 607 So.2d at 27.

¶ 23. Looking at the circumstances, it is clear that Culp’s consent was voluntary. At the time he removed his clothing he was not confronted with police coercion. He did not object, but quietly sat by while the Sheriff placed his clothes in a bag. In the absence of coercion, Culp’s voluntary behavior and silence means that he consented to the taking, and thus there was no violation of his Fifth Amendment rights.

S. Whether there was Probable Cause to Issue the Search Warrant

¶ 24. If the police require an accused to submit a blood sample, probable cause must exist to prove that the accused committed a crime. McDuff v. State, 763 So.2d 850, 854 (Miss.2000). In order for the police to be granted a search warrant they must demonstrate to the judge evidence of underlying facts and circumstances necessary to provide a substantial basis for finding probable cause. Petti, 666 So.2d at 757.

¶ 25. In the present case the police presented Judge Lewis with the following evidence:

1) an aggravated assault of two victims occurred in Holmes County leaving both in critical condition and unconscious;
2) a large amount of blood was present at the crime scene;
3) a police officer saw defendants Culp and Lowe talking with the victims earlier that evening;
4) Sheriff March had observed spots on Culp’s clothes and on Lowe’s shoe that appeared to be blood; and
5) the crime scene had an imprint of tennis shoe similar to Lowe’s shoe.

Such evidence gives rise to a substantial basis for concluding that probable cause exists. The trial judge did not err in issuing a warrant to have a sample of Culp’s blood taken.

II. DENIAL OF MOTION TO SUPPRESS IDENTIFICATION EVIDENCE.

¶26. When reviewing a trial court’s ruling on the admission or suppression of evidence, this Court must assess whether there was substantial credible evidence to support the trial court’s findings. Magee, 542 So.2d at 231. The admission of evidence lies within the discretion of the trial court and will be reversed only if that discretion is abused. Crawford v. State, 754 So.2d 1211, 1215 (Miss.2000).

¶27. Culp claims that the trial court erred in admitting Officer Harrison’s hearsay testimony that Doe told him that she left the Amigo Mart in a car with the same two men with whom he had seen her earlier. Culp asserts that even if M.R.E. 801(d)(1)(C) is applicable, he was constructively denied the ability to cross-examine Doe because to do so would have been inculpatory.

¶ 28. After Doe regained consciousness, Sheriff March showed her two photo lineups which included Culp and Lowe. At that time, she was unable to pick Culp out of the photos or remember his name. Later, Officer Harrison visited her in the hospital to speak with her about the attack and rape. At that time, she was able to identify Culp by name and picture, but admitted that this was because of the intense media coverage about her rape and assault. However, she was able to confirm to Officer Harrison, without saying names, that she drove away from the Amigo Mart with the same two men that he had seen speaking with Scott and her earlier.

¶ 29. The judge ruled that Doe lacked the independent recollection required to make her identification of Culp trustworthy, finding that it was only as a result of the intense media coverage that Doe was able to recall Culp’s name and image. As a result, Doe’s identification could have been the product of impermissible suggestion and therefore inadmissible. However, the trial court held that Officer Harrison would be permitted to testify regarding the statement given to him, by Doe, that she drove away with the two men that Harrison had earlier seen with her and that they had raped her. The trial court reasoned Harrison had independent personal knowledge of their identity and thus did not require Doe to identify Culp and Lowe.

¶ 30. At trial the State questioned Officer Harrison about the statement given to him by Doe:

Q. Okay. And did you ask her [Doe] whether the same people that you saw her with at the Amigo Mart location were the same ones she left with?
A. Yes, sir....
Q. And without stating what she said to you, did she answer it?
A. Yes sir. She answered yes.

It was Officer Harrison and not Doe, who identified those two individuals as Culp and Lowe in earlier testimony. Defense counsel objected to the testimony as hearsay. The trial court overruled the objection.

¶ 31. The trial court correctly granted Culp’s motion to suppress Doe’s identification of him after she saw his name and picture on the internet and television. Thus, the sole determination for this Court is whether the trial court’s admission of Doe’s statement to Officer Harrison was error. We hold that as an identification, the statement was admissible under M.R.E. 801(d)(1)(C). Defense counsel had the opportunity to cross-examine the hearsay declarant after the statement was admitted into testimony. The fact that counsel chose not to do so was apparently part of trial strategy. Counsel should not be allowed to use a conscious decision at trial to now argue for reversal.

¶ 32. As a statement of identification, Officer Harrison was allowed to testify as to what Doe told him regarding the identity of the two attackers. See Livingston v. State, 519 So.2d 1218, 1221 (Miss.1988). The Mississippi Rules of Evidence exclude these statements from the definition of hearsay:

(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is ... (C) one of identification of a person made after perceiving him....

M.R.E. 801(d)(1)(C). Culp concedes that the statement was an identification, but argues that the declarant was not subject to cross-examination because the style and phrasing of the direct examination constructively denied him the ability to cross-examine Doe. We find this claim to be without merit.

¶ 33. This Court has held that under M.R.E. 611(b) counsel conducting cross-examination is entitled to broad discretion in the subject matter of the questioning. Craft v. State, 656 So.2d 1156, 1162 (Miss.1995). The trial court has discretion to restrict that latitude when the subject matter of questioning has no relevance. Mixon v. State, 794 So.2d 1007, 1013 (Miss.2001). However, lack of relevance will be found only when the information that counsel is attempting to elicit is wholly extraneous and unprovoked by direct examination. Black v. State, 506 So.2d 264, 268 (Miss.1987). One is deprived of the right to cross-examine when the trial court fundamentally and substantially restricts it. Murphy v. State, 453 So.2d 1290, 1292 (Miss.1984). This Court has interpreted this to mean that the party is deprived of the opportunity without fault on their part. Myers v. State, 296 So.2d 695, 701 (Miss.1974). Counsel’s active decision regarding whether or not to file certain motions, call certain witnesses, ask certain questions, and make certain objections falls within the ambit of trial strategy. Cole v. State, 666 So.2d 767, 777 (Miss.1995). The tactical choice of counsel to seek testimony on a particular subject is a personal one and not a restriction by the trial court. Murphy, 453 So.2d at 1293.

¶ 34. In the present case, defense counsel was not deprived of the right to cross-examine Doe nor was that right restricted. Defense counsel understood that if he asked Doe about her identification, her answer would inculpate Culp. Counsel made a conscious decision not to do so. Therefore, it was trial strategy and not a restriction imposed by the trial court, and according to Murphy, there was no abridgement of Culp’s rights. Defense counsel had the opportunity to cross-examine Doe following the testimony of Officer Harrison. Doe in her own testimony discussed the identification of the two men who raped her. Cross-examination would have been proper under M.R.E. 611(b). Defense counsel’s choice not to do so is a textbook example of trial strategy and does not give rise to a denial of the right to cross-examine. The statement was not hearsay, because it falls within M.R.E. 801(d)(1)(C) as an out-of-court identification made by the declarant (Doe) after perceiving the individual (Culp), and she was available for cross-examination. Issue two is without merit.

III. DENIAL OF CULP’S MOTION FOR A DIRECTED VERDICT.

¶ 35. When reviewing the denial of a motion for a directed verdict testing the sufficiency of the evidence, the appellate court does not itself have to be convinced of the guilt of the defendant. Bush v. State, 895 So.2d 836, 843 (Miss.2005). “Instead, the relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” I'd.

¶ 36. After the close of the State’s case, Culp moved for a directed verdict on all remaining counts of the indictment. The motion was denied by the trial court, and Culp now challenges Counts I, II, VIII and IX of the indictment.

Count I (conspiracy to commit robber)

¶ 37. Culp asserts that the State failed to prove a common plan and the necessary “union of minds” between Culp and Lowe to form a conspiracy. However, testimony from other witnesses, including Culp’s co-conspirator, indicate that not only did Culp agree to the conspiracy, but also he was involved in its planning.

¶ 38. In order to convict for conspiracy pursuant to Miss.Code Ann. § 97-1-1, the State must prove that the conspirators intended to enter into a common plan to further the conspiracy’s common purpose. Franklin v. State, 676 So.2d 287, 288 (Miss.1996). “The conspiracy agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts and conduct of the alleged conspirators.” Id. A conspiracy requires proof of a “union of the minds” of the conspirators. Id.

¶ 39. Applying the facts in the light most favorable to the State, it is clear that Culp and Lowe formed the requisite “union of the minds” required' to conspire to commit robbery. Culp proposed the idea to rob the victims to Lowe and a group of men. Culp asked and received Lowe’s assistance in preparation of the crime. There was a discussion between the two as to the best way to perform the robbery. Lowe and Culp both went together to Lowe’s sister’s house to retrieve the pistol that was used in the robbery. On the way back to the Amigo Mart, Culp again solicited the involvement of others in the commission of the crime. These facts display a “union of the minds” between Culp and Lowe.

Count II (forcible rape)

¶ 40. Culp argues that the State did not present sufficient evidence to prove that he forcibly raped Doe, and that although the indictment charged Culp under Miss.Code Ann. § 97—3—65(3)(a), the statutory rape sentencing provision, the State did not prove that Doe was sixteen years or younger. The State acknowledges that a typographical error was made in Count II of the indictment, which was properly entitled Forcible Rape, but should have cited subsection (4)(a), which addresses forcible rape instead of subsection 3(a), which addresses statutory rape. The purpose of the indictment is to serve notice of the charges against the defendant and the facts underlying such charges. Westmoreland v. State, 246 So.2d 487, 490 (Miss.1971). This does not-require a citation to the specific statute, but merely enough facts so that the defendant is put on notice as to the statute that is alleged to have been violated. Id. at 492. We have held that where the objection to the citation of the statute is first made on appeal such incorrect citation will be treated as surplusage unless it is found prejudicial to the defendant. Id.

¶ 41. Culp’s conviction should not be reversed due to the incorrect citation of the statute in the indictment, especially since the language of Count II spoke in terms of forcible rape. Culp was adequately apprised of the charges levied against him by the State. As a result there was no prejudice to Culp because he sought to confront the charges of forcible rape and not those of statutory rape. The motion for a directed verdict by defense counsel even spoke in terms of forcible rape and not in terms of statutory rape.

¶ 42. Any error was one of form and not substance, and thus the argument regarding Count II fails on its merits. In addition, the motion at trial was substantively different than the issue as raised on appeal. At trial, Culp asked for a directed verdict due to a lack of sufficient evidence to prove Culp’s participation in the forcible rape of Doe. He now asks this Court to reverse his conviction because the indictment contained the terms of forcible rape although the statute cited to was Miss. Code Ann. § 97-3-65(3)(a), statutory rape. Since Culp did not raise the issue at trial, it is procedurally barred, as well.

Counts VIII and IX (aggravated assault)

¶43. Culp asserts that he was entitled to a directed verdict regarding the aggravated assaults of Scott and Doe because neither the physical nor testimonial evidence present is reliable and sufficient to prove that he committed the assaults charged. Our review of the record reveals otherwise.

¶ 44. According to Lowe’s testimony, the events that transpired that night began when Culp learned from a third party that Scott had bragged about robbing someone in Texas of $5,000. On direct examination Hudie Weatherby, a friend of Culp and Lowe, testified that Culp suggested to a group of men, five in total, that they rob Scott and Doe. To aid in this, Culp asked Lowe if he had a pistol that they could use. They also discussed using a bat on the victims. According to Lowe’s testimony, he and Culp then drove to Lowe’s sister’s house where he kept a pistol. On the way back to the Amigo Mart, they stopped the other three men who were originally present and asked them again if they would like to join. It was at that time, according to Weatherby, that Culp informed the group that he intended on killing the victims.

¶ 45. On direct examination Lowe testified that he and Culp encouraged Doe and Scott to drive with them to sell their bus tickets back to the owner of the bus stop so that they would have money to buy a car from Culp. Culp then drove the victims to an isolated stretch of road and produced the pistol, ordered them out of the car, and threatened them with the pistol. It was at that time that Culp and Lowe both raped Doe. After the rape Culp became nervous that Scott and Doe would report them to the police, so Culp stabbed Scott in the neck twice and stabbed Doe in the torso with knives that they had taken from the victims. Culp then beat Scott with a bat. After he had beaten Scott, he handed the bat to Lowe and according to testimony from Lowe, instructed him to beat Doe with the bat, which he did.

¶ 46. There was ample evidence for a reasonable jury to convict. The testimony of Culp’s co-conspirator, Lowe, and Doe is sufficient to support a finding that Culp participated in the aggravated assault of Scott by stabbing him with a knife, and, that he cut Doe with the same knife. While there is no evidence to support the allegation that he personally beat Doe with a bat, there is evidence to support the finding that as an accomplice he aided and incited Lowe to beat her. We find no merit to Culp’s assignments of error regarding Issue III.

IV. INCONSISTENT JURY VERDICTS.

¶47. The jury found Culp guilty of aggravated assault but not guilty of capital murder. Culp argues that these ver-diets are inconsistent, and thus his conviction and subsequent sentence for the aggravated assault of Scott must be vacated. Culp further asserts that whoever assaulted Scott also killed him, and therefore it is logically inconsistent to hold him guilty of aggravated assault, but not capital murder. Culp contends that because he was acquitted of capital murder, his conviction for aggravated assault must also be vacated. In Holloman v. State, 656 So.2d 1134, 1141 (Miss.1995), this Court addressed the issue of inconsistent jury verdicts, as follows:

Regarding inconsistent verdicts, the United States Supreme Court has said this:
[I]nconsistent verdicts — even verdicts that acquit on a predicate offense while convicting on the compound offense- — should not be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury’s error; the Government is precluded from appealing or otherwise upsetting such an acquittal ...
Inconsistent verdicts therefore present a situation where “error,” in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course. ... there is no reason to vacate the respondent’s conviction merely because the verdicts cannot rationally be reconciled. Respondent is given the benefit of her acquittal on the counts on which she was acquitted, and it is neither irrational nor illogical to require her to accept the burden of her conviction on the counts on which the jury convicted. United States v. Powell, 469 U.S. 57, 65, 69, 105 S.Ct. 471, 476-77, 479, 83 L.Ed.2d 461 (1984) (citations omitted).

¶ 48. As noted in Holloman, the Court’s review of the sufficiency of the evidence is adequate protection from jury error or irrationality. Id. Culp states that Scott was beaten with a baseball bat and stabbed, which caused his death, that the jury determined that he committed these acts pursuant to an aggravated assault. Culp then interprets the jury’s determination to mean that the jury found that Scott’s death was somehow not the result of the beating, and thus Culp “beat Scott to death, but did not cause his death.”

¶ 49. A person is guilty of aggravated assault if he:

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

Miss.Code Ann. § 97-3-7(2).

¶ 50. Clearly the essential elements of aggravated assault are present here beyond a reasonable doubt. First, there was the testimony of co-defendant Lowe, implicating Culp as — the person who obtained a pistol, drove Doe and Scott out into the country, raped her, set their clothes on fire, stabbed and cut both of them with a knife and then repeatedly beat Scott with a bat. Even though the State offered leniency to Lowe, the jurors still found his testimony credible. Second, Doe testified similarly to the events of the day in question. Third, there was strong evidence linking Culp to the crime. This includes Doe’s blood found on Culp’s shirt, Culp’s DNA found in Doe’s vagina and eyewitness testimony of a police officer who saw Culp and Lowe together with the victims earlier that day.

¶ 51. Inconsistent verdicts are permissible under the rationale of Powell. Culp’s argument is without merit.

V. WHETHER CULP WAS CONVICTED OF MULTIPLICITOUS COUNTS, THEREBY VIOLATING HIS RIGHT TO DUE PROCESS OF LAW.

¶ 52. Culp argues that his rights under the Mississippi and United States Constitutions were violated when he was charged with both aggravated assault and capital murder by felonious abuse of a child. As this issue involves constitutional rights the standard of review is de novo. Palm v. State, 748 So.2d 135, 142 (Miss.1999).

¶ 53. Culp recasts his argument from Issue IV, asserting that because the aggravated assault merged with capital murder by felonious abuse of a child his conviction for aggravated assault should be vacated. Culp additionally asserts that the charges of aggravated assault and capital murder merged into a single count of capital murder, because neither requires proof of an additional element.

¶ 54. Mississippi follows the test set out by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), when interpreting Miss.Code Ann. § 99-7-2(1). White v. State, 702 So.2d 107, 109 (Miss.1997). In applying this statute, we note that the principles of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution apply, and we use the Blockburger test to determine if a set of facts violates the Double Jeopardy Clause. White, 702 So.2d at 109.

¶ 55. The Blockburger Court said that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact that the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180.

¶ 56. The crime of capital murder by felonious abuse of a child requires proof that a child is involved. This is an additional element that must be proven for capital murder that is not required for aggravated assault. Aggravated assault requires proof of an intent to kill, while capital murder by felonious abuse of a child can be committed with or without intent to kill. Intent to kill is an additional element not required for capital murder by felonious abuse of a child. Therefore, under the Blockburger test, there is no violation of Culp’s constitutional rights. When each separate crime charged requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. This well-stated logic was correctly applied by the Mississippi Court of Appeals in Towner v. State, 812 So.2d 1109, 1114 (Miss.Ct.App.2002)(citing Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975)), and today we adopt and apply it in the present case.

¶ 57. In Powell v. State, 806 So.2d 1069, 1074 (Miss.2001), this Court applied the “same elements” test articulated in Block-burger, clearly indicating that the proper inquiry concerns the elements of the crime, rather than the underlying facts. In the present case, the fact that one crime was committed with a baseball bat and the other with a knife is irrelevant. The United States Supreme Court used similar language in United States v. Dixon, 509 U.S. 688, 689, 113 S.Ct. 2849, 2851, 125 L.Ed.2d 556 (1993), stating that the Blockburger test “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.”

¶ 58. The Blockburger test does not look to the facts adduced at trial but rather focuses on the elements of the offense charged. Brock v. State, 530 So.2d 146, 150 (Miss.1988) (citing Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225-26, 53 L.Ed.2d 187 (1977)). Differences in underlying facts are not relevant for determining whether Culp’s constitutional rights have been violated by double jeopardy. Culp’s multiplicitous counts argument is without merit.

VI. GRAND JURY COMPOSITION.

¶ 59. Once a grand jury has been sworn and empaneled, no objection can be raised except as to fraud, according to Miss.Code Ann. § 13 — 5—43. See Polk v. State, 288 So.2d 452 (Miss.1974). In a more recent case, this Court held that grand jury proceedings are sacred, and courts cannot go behind an indictment and inquire into evidence considered by a grand jury. Hood v. State, 523 So.2d 302, 306 (Miss.1988) (citing State v. Matthews, 218 So.2d 743 (Miss.1969); Case v. State, 220 So.2d 289 (1969)). The sole inquiry for an appellate court is whether the grand jury was subjected to improper influences. Id. at 307. Absent evidence that a member of the grand jury acted with malice, hatred, or ill will, or fraud, or otherwise violated the oath taken by grand jurors, it is presumed that the grand jurors did not improperly or illegally act in returning the indictment against the accused. Southward v. State, 293 So.2d 343, 344 (Miss.1974). The circuit court’s factual determinations related to this issue are reviewed by this Court only for clear error. Morris v. State, 777 So.2d 16, 24 (Miss.2000). However, the trial court’s conclusions of law are reviewed de novo. Palm v. State, 748 So.2d 135 (Miss.1999); Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204 (Miss.1998).

¶ 60. Culp argues that his constitutional rights were violated because of the appearance of improper influence and fraud in the grand jury that indicted him, stating that one of the jurors was the wife of the county attorney, she did most of the writing for the grand jury, and “was pretty much doing the talking.” She also had worked as a part-time bookkeeper in her husband’s office at the time of the indictment. Like the other grand jurors, she was instructed that if any time she had an interest or bias in a particular case that she should make that known and ask to be excused. She testified that she felt that she had no reason to excuse herself for bias or interest.

¶ 61. Culp also points out that the foreman of the grand jury was an employee of the Durant Police Department, the same department that assisted in the arrest of Culp’s co-defendant, Travis Lowe. Culp argues that these two improprieties violate his right to an unbiased grand jury, a right which is deeply embedded in the law of this country and, therefore, special care should be taken to ensure that it is not infringed upon. He asserts the trial court should have concerned itself with whether the appearance of impropriety existed.

¶ 62. This Court requires there to be actual influence, not just the appearance of impropriety. Southward, 293 So.2d at 344. Culp relies on Hood, 523 So.2d at 302, for the proposition that the appearance of impropriety alone is enough to quash the indictment. However, Hood is factually distinguishable, because there were two attorneys present during Hood’s grand jury proceedings who were actually interested in the outcome. Southward involved two grand jurors who were allegedly interested because of a family relationship because the husband of the prosecuting witness and his first cousin were members of the grand jury. This Court found that in Southward the accused failed to meet his burden for quashing an indictment because he failed to show that a grand juror acted with malice, hatred, ill will, or fraud. Southward, 293 So.2d at 344.

¶ 63. There is no evidence in the record that there was improper influence on the grand jury. The trial court held an extensive hearing on this issue, over the course of two days. Following argument by both counsel, Culp called eight witnesses. They included county attorney Marc Boutwell; his wife Dawn, who was the bookkeeper for his law office; Barry Mitchell, the dispatcher for the Durant Police Department; Patrick James, a patrolman for the Durant Police Department; and grand jurors David Creamer, Beverly Langston, Darrell Anderson, and Coletta Brown. Culp asked members of the grand jury whether anything influenced them in their decision and they said only the evidence presented influenced their votes. The county attorney testified that he never entered the grand jury room during proceedings regarding Culp, and his wife testified that she did not have any special knowledge about the case, and did not make comments or discuss the case during the grand jury proceeding.

¶ 64. There is contradictory evidence that juror Dawn Boutwell was vocal, and in addition, she served as the secretary of the grand jury. Further, her relationship to the county attorney is arguably stronger than the relationship in Southward. However, these factual differences alone are not enough to require quashing Culp’s indictment.

¶ 65. We noted in Hood that “[w]e do not think it right and now condemn any practice whereby the accuser may also be the trier of fact.” Hood, 523 So.2d at 311. Culp has not shown that the accuser is also the trier of fact in this case. The fact that the county attorney’s wife was on the grand jury does not mean the county attorney exerted improper influence. The trial court specifically found that there was no evidence that the police department employee did anything improper to influence the grand jury. The presumption that the grand jury acted properly, together with the sacredness of grand jury proceedings, prevents this Court from quashing the indictment based on the appearance of impropriety alone.

¶ 66. Culp makes one additional argument that we address summarily. He argues that the prosecution engaged in fraud by presenting the case so quickly to the grand jury. The prosecutor did testify that he had never presented a case to the grand jury as quickly as this one, and Culp contends that this is tantamount to fraud, and would therefore be one of the grounds for quashing the indictment. However, he cites no authority in support of this contention. Culp’s defense is based on the idea that the appearance of impropriety is enough to quash an indictment. This is not the law, and the fact that the prosecutor moved quickly clearly does not constitute fraud.

¶ 67. We affirm the circuit court’s finding that there was no exertion of improper influence. Such decision is not clearly erroneous. Culp has not met his burden of overcoming the presumption that the grand jury acted properly and without improper influence. Issue six is without merit.

VII. FAILURE TO DISCLOSE THE IDENTITY OF THE TWO GRAND JURORS.

¶ 68. This issue involves a constitutional right and thus the standard of review is de novo. Palm v. State, 748 So.2d at 135 (Miss.1999); Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d at 1204 (Miss.1998).

¶ 69. Culp argues that his constitutional rights were violated because the State did not disclose the identity of the two allegedly interested grand jurors and that their identity would be evidence favorable to the defense and material under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). He further asserts that without the tainted indictment, there would not have been a conviction, thus producing a different outcome and satisfying the Giglio test. See Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).

¶ 70. In Brady, the United States Supreme Court said the suppression of material evidence justifies a new trial irrespective of good faith on the part of the prosecutor. Brady, 373 U.S. at 87, 83 S.Ct. 1194. The requirement of materiality is of utmost importance. Materiality has been defined by the United States Supreme Court as evidence that could have a reasonable likelihood of affecting the outcome of the case. More specifically, the Court said that “when the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule. Giglio, 405 U.S. at 153-54, 92 S.Ct. 763, (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)) (emphasis added).

¶ 71. Much of Culp’s argument centers around his incorrect presumption that the appearance of impropriety is enough to quash a grand jury indictment. Based on his misstatement of the law, he incorrectly argues that this evidence is material. However, because the record does not show actual improper influence, the identity of the two grand jurors alleged to be interested is immaterial.

¶ 72. In a recent case, the Mississippi Court of Appeals addressed the issue of grand jurors, albeit in a different context, and came to the same conclusion we reach today. In Busick v. State, 906 So.2d 846, 860 (Miss.Ct.App.2005), the defendant sought to obtain several items of exculpatory evidence, including the identity of the temporary grand jury foreman. Busick argued that the name should have been disclosed because he believed that the foreman worked for the FBI, which was involved in the case, and thus his grand jury service was improper. The Mississippi Court of Appeals agreed with the trial court’s holding that, based on Southward, even if the foreman did work for the FBI, his grand jury service would not constitute grounds for quashing Busick’s indictment. We agree with the Court of Appeals’ rationale, and adopt its holding today. The mere fact that the foreman of the grand jury which indicted Culp was employed part time by one of the same law enforcement agencies which worked on the case, without more, was not evidence that there was an improper effect on the indictment or that any member of the grand jury acted with fraud, ill will, hatred, or malice. There was no requirement that the information about the two “interested” grand jurors must be given to Culp, because it was not material. Because it was not material and there was no showing of an improper effect on the indictment or grand jurors, the trial court was correct in denying Culp’s motion to quash the indictment.

VIII. CUMULATIVE ERROR.

¶ 73. Culp argues that his constitutional rights were violated because of cumulative error, in that the six errors set forth above combine to create an unfair trial, even if not individually reversible. Although Culp correctly states the law, he fails to show any errors which cumulatively require reversal.

¶ 74. In Byrom v. State, 863 So.2d 836, 847 (Miss.2003) we made it clear that each error, whether or not it reaches a level to require reversal, may be considered cumulatively. Byrom is the clearest expression from this Court as to how cumulative error should be analyzed, as follows:

What we wish to clarify here today is that upon appellate review of eases in which we find harmless error or any error which is not specifically found to be reversible in and of itself, we still have the discretion to determine, on a case-by-case basis, as to whether such error or errors, although not reversible when standing alone, may when considered cumulatively require reversal because of the resulting cumulative prejudicial effect.

Byrom, 863 So.2d at 847 (emphasis added).

¶ 75. There is nothing in the record before us that amounts to a violation of Culp’s right to a fair trial. There are no errors that accumulate to result in a fundamentally unfair trial. A criminal defendant is not entitled to a perfect trial, only a fair one. Sand v. State, 467 So.2d 907, 911 (Miss.1985). In a complex case like this one, there will inevitably be minor mistakes. These are a part of the process, and in the interests of judicial efficiency should not result in a reversal. Culp has not shown any errors, which when accumulated, have prejudiced his rights.

CONCLUSION

¶ 76. We conclude that Culp’s claims on appeal are without merit, and affirm his conviction and sentence by the Holmes County Circuit Court.

¶ 77. COUNT I: CONVICTION OF CONSPIRACY TO COMMIT ROBBERY AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF RAPE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF ARMED ROBBERY AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT III SHALL RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT II. COUNT IV: CONVICTION OF KID-NAPING AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT V: CONVICTION OF KIDNAPING AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS IV AND V SHALL RUN CONCURRENTLY WITH EACH OTHER, BUT CONSECUTIVELY TO THE SENTENCES IMPOSED IN COUNTS II AND III. COUNT VI: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT VII: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS VI AND VII SHALL RUN CONCURRENTLY WITH EACH OTHER BUT CONSECUTIVELY WITH THE SENTENCES IMPOSED IN COUNTS II, III, IV AND V. COUNT VIII: CONVICTION OF ARSON THIRD DEGREE AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IX: CONVICTION OF ARSON THIRD DEGREE AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS I AND VIII AND IX SHALL RUN CONCURRENTLY WITH EACH OTHER AND CONCURRENTLY WITH THE REMAINING COUNTS. APPELLANT SHALL SERVE A TOTAL TERM OF INCARCERATION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR SIXTY (60) YEARS.

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

      . We use a fictitious name for the minor rape victim.

      . Count I, conspiracy to commit robbery; Count II, forcible rape; Count III, forcible rape; Count IV, robbery by exhibition of a deadly weapon on Scott; Count V, robbery by exhibition of a deadly weapon on Doe; Count VI, kidnapping of Scott; Count VII, kidnapping of Doe; Count VIII, aggravated assault on Scott by stabbing him in the neck with a knife; Count IX, aggravated assault on Doe by cutting her with a knife; Count X, aggravated assault on Doe by beating her with a bat; Count XI, third degree arson on the clothing of Doe; Count XII, third degree arson on the clothing of Scott; Count XIII, capital murder by felonious abuse of a child on Scott.

      . Counts III, forcible rape and X, aggravated assault on Doe by beating her with a bat, were quashed. These counts were removed, and the indictment renumbered by the circuit court.

      . This was overheard by Culp, who was not present at the door, because his first statement to the police prior to being questioned was that he was not present at the Amigo Mart, rather he was at ball practice.

      . The Sheriff testified that he believed that since the crime scene was bloody that anyone connected to the commission of the crime might have blood on them. He only knew that Culp was last seen with the victims by Officer Harrison.

      . "Elliot Culp and Travis Lowe, did on or about the 28th day of February, 2000, in Holmes County, Mississippi, willfully, unlawfully and feloniously have forcible sexual intercourse with [Jane Doe].”

      . Aggravated assault is "knowingly caus[ing] bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” Miss.Code Ann. § 97-3-7(2)(b).

      . Capital murder is "[the killing of a human being] [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child.” Miss.Code Ann. § 97-3-19(2)(f). Scott was only fifteen years of age.

      . "Two or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.” Miss.Code Ann. § 99-7-2(1).

      . "Before swearing any grand juror as such, he shall be examined by the court, on oath, touching his qualification. After the grand jurors shall have been sworn and impaneled, no objection shall be raised, by plea or otherwise, to the grand jury, but the impaneling of the grand jury shall be conclusive evidence of its competency and qualifications. However, any party interested may challenge or except to the array for fraud.” Miss.Code Ann. § 13-5-43.

      . The office of the county attorney assisted in the prosecution of this case.


source: Caselaw Access Project

author: SMITH, Chief Justice,

license: Public Domain

text:
    MISSISSIPPI STATE TAX COMMISSION v. MURPHY OIL USA, INC.
    No. 2003-CA-00325-SCT.
    Supreme Court of Mississippi.
    June 15, 2006.

      Gary Wood Stringer, Jackson, Samuel T. Polk, attorneys for appellant.
    Charles Clark, Jamie G. Houston, III, Jackson, W. Terrell Stubbs, attorneys for appellee.
   ON MOTION FOR REHEARING

SMITH, Chief Justice,

for the Court.

¶ 1. The motion for rehearing is denied. The prior opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. In 1999, the Mississippi State Tax Commission (“Commission”) examined the Mississippi Combined Income and Franchise tax returns of Murphy Oil U.S.A., Inc. (“Murphy”) for the following tax years: 1995, 1996, and 1997. As a result of this examination, on September 30, 1999, the Commission assessed additional franchise taxes and interest against Murphy in the amount of $87,952.00. After two internal agency appeals, Murphy sought judicial review in the Chancery Court of Simpson County pursuant to Miss.Code Ann. § 27-13-45 (Rev.2003). On January 17, 2003, the chancellor ordered that the additional franchise tax assessment made by the Commission “shall not be allowed.” The Commission filed a timely appeal to this Court.

¶ 3. In addition to the destination theory, this Court will look at the entirety of events in each unique instance for the purpose of determining franchise taxes. We find that the franchise tax imposed does not violate the commerce or due process clauses of the United States Constitution. Thus, we reverse and render.

FACTS AND PROCEDURAL HISTORY

¶4. Murphy is a Delaware corporation with its principal place of business in El Dorado, Arkansas, and is authorized to do business in the State of Mississippi. Murphy is in the business of refining and marketing petroleum products for wholesale and retail purposes. As part of its operations, Murphy owned and operated a refinery in Meraux, Louisiana; refined products produced at this refinery were shipped through tank trunks, by barge or through a pipeline known as the Collins Pipeline located in Collins, Mississippi. In addition to refining and selling products at wholesale, Murphy also owned and operated service stations in Mississippi to sell products at retail.

¶ 5. The Collins Pipeline starts at Mer-aux, Louisiana, and terminates at the T & M terminal located in Collins, Mississippi. From 1995 to the present, a corporation by the name of Collins Pipeline Company has owned Collins Pipeline. During the tax years in issue, Collins Pipeline Company was owned by Murphy and Chalmette Refining, Inc. The facility at which this pipeline terminates, T & M Terminal, is owned by T & M Terminal Company. During the years in question T & M Terminal Company was also owned by Murphy and Chal-mette.

¶ 6. The T & M terminal at which the Collins Pipeline terminates consists of ten tanks, referred to as “breakout tankage” where products shipped on the pipeline can be stored. Additionally, at the T & M terminal, there are pipes, valves and other equipment that connect that facility to both Colonial Pipeline and Plantation Pipeline to allow for the injection of product from the T & M terminal into either of these pipelines. Colonial Pipeline begins at Pasadena, Texas, and terminates in New Jersey, with numerous terminals and facilities along its pipeline system in Texas, Louisiana, Mississippi, Alabama, Tennessee, Georgia, South Carolina, North Carolina, Virginia, Maryland, Delaware, and New Jersey. Plantation Pipeline begins in Baton Rouge, Louisiana, and terminates in Washington, D.C., with numerous terminals and facilities along its pipelines in Louisiana, Mississippi, Alabama, Tennessee, Georgia, South Carolina, North Carolina, Virginia, and the District of Columbia.

¶ 7. The sales by Murphy, which the auditor reclassified as Mississippi sales resulting in the assessment of additional franchise taxes, were sales made by Murphy where title and control of the property sold was transferred to the purchaser at Collins, Mississippi. The amount of these sales for each of the tax years in issue is as follows: (1) 1995 — $156,826,131.00; (2) 1996 — $199,285,823.00; and (3) 1997— $155,652,973.00. The negotiations of these sales began with traders in El Dorado, Arkansas, who determined what product being manufactured in Meraux was available for sale. Based on a review of the market conditions, a trader would determine which pipeline would give Murphy the greatest return on its sale. After this was determined, the trader would attempt to market the product to potential buyers who were willing to purchase the product using the pipeline selected.

¶ 8. The product to be sold belonged to Murphy while it was being shipped from Meraux to Collins on the Collins Pipeline and while it was in the breakout tankage at the T & M terminal. The product would remain in the breakout tankage at T & M terminal for a few hours up to several days. The length of time the product was stored in Collins, Mississippi depended on quantity and product cycle requirements of the pipelines. Many times, Murphy would already have a buyer for the product before it left the refinery in Meraux, Louisiana. At other times, Murphy would not have a buyer for the product until after the product had left the refinery, and at times, even after it had been placed in the breakout tankage at the T & M terminal. Under the terms of the sales at issue, title, possession and control of the product passed from Murphy to the purchaser when the product was injected from the T & M terminal into either the Colonial Pipeline or the Plantation Pipeline in Collins, Mississippi. Title actually passed as the product was being metered and injected into the pipelines. This metering of the injection of the product into Colonial or Plantation Pipeline was used by Murphy to bill its purchaser for payment. Upon receipt of the report of the metering that took place in Collins, Mississippi, Murphy would bill its customers who would then pay Murphy by wire transfer.

¶ 9. After injection into Colonial or Plantation Pipelines, Murphy had no knowledge of the whereabouts of the product or where the product was ultimately offloaded. Murphy contends these sales are not Mississippi sales for determining its Mississippi sales factor. Furthermore, Murphy had not included these sales as sales in any other state in determining the sales factors.

¶ 10. The Commission examined the Mississippi Combined Income and Franchise Tax Returns of Murphy for tax years 1995, 1996 and 1997. As a result of this examination, an assessment of additional Mississippi franchise tax and interest was issued against Murphy on September 30, 1999. Murphy, pursuant to Miss.Code Ann. § 27-13-43, appealed this assessment to the Board of Review of the Commission for a hearing. After proper notice and a hearing before the Board of Review on March 9, 2000, the Board entered its order affirming the assessment in the original amount of $87,952.00. Following this decision by the Board of Review, Murphy appealed to the full Mississippi State Tax Commission for a hearing on the decision of the Board of Review to affirm the tax in question. A hearing before the full Commission was held on June 21, 2000. On December 6, 2000, the full Commission affirmed the assessment. Murphy was ordered to pay to the Commission the entire assessment of $87,952.00 plus interest.

¶ 11. Following the decision of the full Commission, Murphy timely filed a petition for judicial review in the Chancery Court of Simpson County. After discovery and trial, the chancellor signed a final judgment wherein he ordered “that the additional assessments made by the Mississippi State Tax Commission shall not be allowed and that the sales for the years in question shall be those that were, in fact, downloaded in the state of Mississippi for final destination in the state of Mississippi.” The Commission timely filed its appeal with this Court.

ISSUES

I. Whether the Destination Sales Theory Should Be Applied for Franchise Tax Purposes.

II. Whether the Franchise Tax Violates the Commerce or Due Process Clauses of the United States Constitution.

ANALYSIS

I.

¶ 12. The chancery court reviewed this matter in a full evidentiary hearing, complete with a full record. In Tenneco, Inc. v. Barr, 224 So.2d 208, 211 (Miss.1969), this Court held that “[i]t is manifest, from the express provisions of [Mississippi Code Annotated 1942] § 9220-31, that the Legislature has made it the public policy of this state to provide a full evidentiary judicial hearing in cases of the character now under consideration.” Section 9220-31 is the predecessor to current Miss.Code Ann. §§ 27-7-73 (income tax — judicial review) and 27-13-45 (franchise tax — judicial review). In Tenneco, as well as in the present matter, “the chancellor heard evidence and determined the cause as in ‘other cases’ as provided by the statute.” 224 So.2d at 210. Thus, in accordance with Tenneco, the chancellor in this case reviewed evidence and determined the case under the authority of §§ 27-7-73 and 27-13-45. This Court must now ascertain whether the chancery court arrived at the proper determination.

¶ 13. Murphy argues the chancellor’s ruling should be affirmed because the pre-1996 version of Miss.Code Ann. Section 27-7-23(c)(3)(A)(i) provides for the application of the Destination Sales Theory to determine those “sales” assignable to Mississippi for purposes of any formula in which a sales factor is included regardless of ownership, title, control or risk of loss. The pre-1996 version of Section 27-7-23(c)(3)(A), in its entirety provides:

(3) Except as provided in Sections 27-7-24, 27-7-24.1, 27-7-24.3, 27-7-24.5 and 27-7-24.7, Mississippi Code of 1972, for the purpose of any formula which includes a sales factor, sales shall be assigned to Mississippi based on the following conditions:
(A) Sales of tangible personal property, including interest, carrying charges, deferred charges and delivery charges incident to such sales, are in this state if:
(i) The property is delivered or shipped to a purchaser, or to the designee of the purchaser, other than the United States Government, within this state regardless of f.o.b. point or other conditions of the sale; or
(ii) The property is shipped from an office, store, warehouse, factory, or other place of storage in this state, and (a) the purchaser is the United States Government, or (b) the taxpayer is not taxable in the state of the purchaser.

¶ 14. Murphy contends § 27-7-23(c)(3)(A)(i) (Rev.1996) provides for application of the destination sales theory to determine whether sales are assignable to Mississippi for franchise tax purposes; however, the language of Section 27-7-23(c)(3)(A)(ii) clearly and plainly provides for an additional method, other than the destination of the product, for determining a formula’s sales factor.

¶ 15. In Mississippi State Tax Comm’n v. Chevron U.S.A., Inc., 650 So.2d 1353 (Miss.1995), this Court stated:

Mississippi follows a destination sales theory which means that the sale is allocated to the state where the product is delivered to the customer. However, this theory does not identify what is actually being done in Mississippi, rather, it is a method by which interstate sales are apportioned to the various states where the corporate taxpayer does business.
The destination sales theory was specifically rejected by this Court as a way to account for Mississippi receipts for franchise tax purposes. See Southern Package Corp. v. State Tax Comm’n, 195 Miss. 864, 15 So.2d 436 (1944).... This Court recognized that franchise tax is imposed on a corporation based on what is actually being done in Mississippi, regardless of the ultimate destination of the product. Id., 15 So.2d at 437-38.

650 So.2d at 1357. For the most part Chevron correctly states the applicable law, however a complete rejection of the destination sales theory is a somewhat broad interpretation of this Court’s holding in Southern Package. Southern Package expressly states: “the franchise tax is for the corporate privilege or franchise of doing in this state what was done and is being done here regardless of the ultimate destination of the products or by what legalistic means they may get there.” Southern Package, 195 Miss. at 874, 15 So.2d at 438. Thus, Southern Package does not specifically reject the destination theory for franchise tax purposes, as Chevron states. Therefore, to quell future concerns, we recognize the incongruity between Chevron and Southern Package. Although, Chevron and Southern Package are factually distinguishable from the case at bar, the destination theory theme in each case vastly outweighs any factual dissimilarities among the cases.

¶ 16. Notwithstanding the over-broad nature of Chevron, today we acknowledge that because a franchise tax is based on what is being done in Mississippi, the destination theory will never be used as the sole method of determining franchise taxes, but a product’s destination may be used as a factor for franchise tax assessment. It is apparent to this Court that the destination of a product is only one facet of measuring what is being done in the state (the true measure of determining franchise taxes). Hence, we now look at the entirety of events in each unique instance to determine whether a Mississippi sale is present for franchise tax purposes.

¶ 17. Additionally, the problem in Southern Package was the package corporation was attempting to manipulate its operations to reduce its amount of franchise tax liability. Here, Murphy is apparently attempting the same but on a smaller, less obvious scale. In this case, Murphy shipped their unsold product to the storage tanks at Collins, Mississippi, where the product was held for a number of days and eventually sold from Murphy’s office in Arkansas to a buyer in an entirely different state. Moreover, Murphy did not consider these transactions as sales in any state, despite recording them as Mississippi sales in its accounting records. Thus, as the Commission insists, Murphy has effectively created “nowhere sales.”

¶ 18. A “nowhere sale” is obviously what the language of § 27 — 7—23(c)(3)(A) (ii) was designed to preclude. See supra. Pursuant to § 27 — 7—23(c)(3) (A) (ii), in the case at bar, the product was shipped from a “place of storage in this state” (the breakout tankage), and Murphy was not taxable in the state of the purchaser. Therefore, in accordance with the statute, the product should be thrown back to Mississippi and treated as sales in this state for the purpose of calculating an applicable formula for calculating franchise taxes.

¶ 19. Further when the pertinent facts of this case are considered in the overall scheme of the activity being conducted in this state, we find franchise taxes should be assessed. A bird’s eye view of pertinent facts leads to such a conclusion; these facts include:

1. Murphy accounts for the sales at issue by using a Mississippi state code;

2. The product at issue was unsold when it was placed into the breakout tank storage;

3. Murphy did not apportion the sales to any staté, effectively creating a nowhere sale;

4. The product was stored and metered in Collins, Mississippi;

5. Transfer of title, ownership and control occurred in Mississippi;

6. Murphy’s product received public protection, among other advantages, while being stored in Mississippi.

¶ 20. This Court does however point out the activity in the case at bar is just inside the franchise tax’s threshold; absent one of the elements set forth in the facts of this case the results could be different. Nevertheless, after a collective review of the foregoing facts we find the chancellor’s judgment was erroneous.

II.

¶ 21. Murphy also contends that Mississippi’s claiming these sales on the basis that the sales are not being claimed by another state violates the commerce clause. On the other hand, the Commission argues that these sales should be treated as Mississippi sales unless Murphy can show the sales are being reported or assigned to another state. Murphy contends that Mississippi cannot assign these sales unless the taxing statute so provides and such assignment does not offend the due process and commerce clauses. First, Mississippi can assign these sales because the franchise tax statute does allow Mississippi to tax these activities. Furthermore, the taxing statute also provides that Mississippi can assign these sales if “the taxpayer is not taxable in the state of the purchaser.” Miss.Code Ann. § 27-7-23(c)(3)(ii)(b) (Rev.1991). Murphy had no knowledge of the whereabouts of the product or its ultimate destination and was not taxed by the states of the purchasers. Therefore, Mississippi can tax these sales unless such a tax would violate the commerce clause.

¶ 22. Murphy concludes that treating the sales as Mississippi sales under the facts of this case would violate the commerce clause and due process clause under the four-part Complete Auto test as provided in Marx v. Truck Renting & Leasing Ass’n, Inc., 520 So.2d 1333, 1342-43 (Miss.1987) (citing Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977)). This test requires that “(1) [t]he tax must be applied to an activity with a substantial nexus with the taxing state; (2) the tax must be fairly apportioned; (3) the tax must not discriminate against interstate commerce; (4) the tax must be fairly related to services provided by the taxing state.” Marx, 520 So.2d at 1342-43. However, Murphy only argues that the first and fourth prongs of the test are violated.

1. Nexus with the Taxing State

¶ 23. Murphy contends the tax does not have a substantial nexus with Mississippi. As this Court has stated, the mere fact that income is generated outside this state will not prevent taxation of that income, for purposes of a commerce clause challenge, so long as there is a nexus between the tax and the transaction within the taxing state. Id. at 1343.

¶ 24. In order to satisfy the minimal connection prong of the four-prong test, the corporation being taxed must avail itself of “the substantial privilege of carrying on business within the state.” Miss. State Tax Comm’n v. Bates, 567 So.2d 190, 193 (Miss.1990) (citing Marx, 520 So.2d at 1342). The taxing power exerted by the state must bear a fiscal relation to protections, opportunities, and benefits given by the state so that the state may properly ask for compensation for what it has given the taxpayer. Bates, 567 So.2d at 193. In determining whether the first prong is met, the inquiry must focus on the underlying activities conducted within the state, and in order for the taxpayer to avoid such taxation it must show the income was derived from activities unrelated to activities conducted within the taxing state. Id.

¶ 25. Again, franchise taxation is based on what is actually being done or carried on in Mississippi. In addition to being merely stored in Mississippi for periods not exceeding five days, the product was metered when it was stored in Collins, Mississippi, which was the basis for Murphy to bill its purchasers for the sale. In addition to being metered and billed in Mississippi, the transfer of title, ownership and control of the product also occurred in Collins, Mississippi. Once metered and billed in Mississippi, the purchasers took absolute control of the product, and Murphy had no knowledge of the whereabouts of the product or its ultimate destination. A franchise tax is measured by what is actually being done or carried on in Mississippi, which is exactly what occurred when Murphy stored, metered, billed and transferred title and ownership of the petroleum products. Murphy did not merely store the fuel in Mississippi. Therefore, there is a substantial nexus between the tax and the transaction within Mississippi.

2. Tax Fairly Apportioned

¶ 26. The party opposing the tax must show by clear and cogent evidence that the tax is out of proportion to the activity which takes place in Mississippi. Tenn. Gas Pipeline Co. v. Marx, 594 So.2d 615, 618 (Miss.1992); Marx, 520 So.2d at 1344. Murphy does not specifically address the second prong of the test; nevertheless, we will address this issue. Murphy merely asserts that inclusion of the sales at issue into the franchise tax apportionment formula results in an inconsistent tax assessment by the Commission. Murphy suggests the Commission’s determination of the sales at issue as “Mississippi Receipts” leads to a less than equitable tax level after calculation of the franchise tax apportionment formula. Murphy implies that the Commission’s designation of these sales as “Mississippi Receipts”, and the subsequent inclusion of these sales in the numerator of the franchise tax formula, results in an improper franchise tax.

¶ 27. As previously determined under the first prong, a franchise tax is measured by what is actually being done or carried on in Mississippi; here, Murphy stored, metered, billed and transferred title and ownership of the petroleum products. Therefore, it is proper to include these sales in the franchise tax apportionment formula because the franchise tax statute does allow Mississippi to tax these activities. Further, Murphy does not present any clear and cogent evidence to the contrary. Thus, the Commission fairly apportioned the franchise tax under the apportionment formula.

3. No Discrimination Against Interstate Commerce

¶ 28. Murphy does not address the third prong of the test, nevertheless we must consider this element. In Marx, this Court decreed that “[i]f the tax causes so called ‘double taxation’ so that an interstate taxpayer is subjected to two taxes on the same income that an intrastate taxpayer would pay one tax on, then the tax is said to be discriminatory.” Marx, 520 So.2d at 1345 (citing Armco Inc. v. Hardesty, 467 U.S. 638, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984)). Further, “[a] state tax that favors an in-state business over an out-of-state business for the sole reason of location is prohibited by the commerce clause.” Tenn. Gas Pipeline, 594 So.2d at 618. Murphy is not subject to double taxation as a result of the franchise tax in this case, nor does the franchise tax imposed discriminate against interstate commerce in favor of intrastate commerce. Therefore, the franchise tax is not discriminatory, and this prong of the test is satisfied.

4. Tax is Fairly Related to Services of the State

¶ 29. The final prong of the test determines whether the activity which generated the income is related to the activities conducted in Mississippi. Additionally, “the fourth prong of the Complete Auto test focuses on the wide range of benefits provided to the taxpayer, not just the precise activity connected to the interstate activity at issue.” Goldberg v. Sweet, 488 U.S. 252, 267, 109 S.Ct. 582, 102 L.Ed.2d 607 (1989). In the present case, all of the activities mentioned above occurred in Mississippi and relate to the particular sales in question. Moreover, Murphy receives police and fire protection, use of transit in Mississippi and other advantages of civilized society. See D.H. Holmes Co., Ltd. v. McNamara, 486 U.S. 24, 32, 108 S.Ct. 1619, 100 L.Ed.2d 21 (1988). “Furthermore, [Murphy] is currently availing itself of the use of our court system.” Tenn. Gas Pipeline, 594 So.2d at 619. “It follows that [Murphy] should pay its share of the tax burden in Mississippi although it is involved in interstate commerce.” Id. (citing American Trucking Ass’ns, Inc. v. Scheiner, 483 U.S. 266, 296, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987)). Consequently, there is a fair relationship between the services provided by Mississippi in allowing the sales to occur and the value of those sales. Hence the fourth and final prong of the test is satisfied.

¶ 30. The franchise tax imposed by the Commission has a sufficient nexus with Mississippi; is fairly apportioned under the apportionment formula; does not discriminate against interstate commerce in favor of intrastate commerce; and is fairly related to services provided by Mississippi. Therefore, contrary to Murphy’s contention, the franchise tax imposed by the Commission does not violate the commerce or due process clauses of the United States Constitution.

CONCLUSION

¶ 31. For these reasons, we reverse the judgment of the chancery court, and we render judgment reinstating and affirming the order of the Mississippi State Tax Commission.

¶ 32. REVERSED AND RENDERED.

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


author: RANDOLPH, Justice,

text:
    A & F PROPERTIES, LLC v. MADISON COUNTY BOARD OF SUPERVISORS, Lake Caroline, Inc. and Lake Caroline Owners Association.
    No. 2004-CC-02302-SCT.
    Supreme Court of Mississippi.
    June 29, 2006.

      G. Todd Burwell, William Larry La-tham, Ridgeland, attorneys for appellant.
    Robert Richard Cirilli, Jr., Edmund L. Brunini, Jr., Jackson, Thomas A. Cook, Ridgeland, Lisa Michele McCain, Steven H. Smith, Jackson, attorneys for appellees.
    Before WALLER, P.J., GRAVES and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. On July 14, 1989, following public notice and a public hearing, the Madison County Board of Supervisors (“Board”) adopted the petition of Lake Caroline, Inc. (“LCI”) to have 3,047 acres of property rezoned from A-l Agricultural Classification to P-1 Planned Unit Development District Classification. On September 27, 1995, LCI and A & F Properties, LLC (“AFP”) entered into a Contract wherein LCI agreed to sell 154 acres within the Lake Caroline Planned Unit Development (“PUD”) to AFP for ten ($10) dollars. As additional consideration, AFP agreed to construct “an eighteen (18) hole semi-private golf course” on the subject property. Regarding the golf course, the Contract provided that the property must be used and maintained as a golf course for ten (10) years from December 31, 1996. Moreover, LCI contractually agreed “not to compete with [AFP]” during that period in any golf course operation within the Lake Caroline development “so long as [AFP] operates a golf course.” Finally, the Contract also provided that “[i]f [AFP] should desire to sell the Golf Course during the first seven (7) years, [LCI] ... shall be given a right of first refusal to purchase the golf course.... ” (Emphasis added). On November 3, 1995, LCI conveyed the property to AFP by warranty deed. In addition to reiterating portions of the Contract regarding restrictions on the use and transfer of the property as a golf course, the Warranty Deed provided that, “[t]he warranty of this conveyance is made subject to ... (2) All applicable zoning ordinances of the governmental authority having jurisdiction over the herein conveyed property.” In 1996, AFP developed the 154 acres as a golf course within the PUD.

¶ 2. At some point after June 26, 1989, the 1989 Master Plan for the Lake Caroline PUD could not be found in the Madison County records. In 1998, the Board adopted and duly recorded a different Master Plan (“1998 Master Plan”) and declared that all future actions affecting development within the PUD must be in conformity with it. Like the 1989 Master Plan, the 1998 Master Plan provided that “the developer reserves the right, in its sole discretion, to alter or amend the uses and locations illustrated on this plan.” Unlike the 1989 Master Plan, the 1998 Master Plan illustrated a golf course as an amenity within the PUD. The 1998 Master Plan was prepared, filed, and adopted without the knowledge or involvement of AFP, and again unlike 1989, there was neither public notice, nor a public hearing regarding its adoption by the Board. On February 22, 2001, the 1998 Master Plan was allegedly amended, adding 217 small residential lots (“2001 Master Plan”), without public notice or a public hearing. On January 8, 2003, the Master Plan was again allegedly amended, providing for the addition of six (6) commercial lots (“2003 Master Plan”), once again without public notice or a public hearing.

¶ 3. On September 1, 2003, AFP advised the Board of its intention to convert the golf course into a residential subdivision. AFP asserted that the golf course was not profitable and was not being used by residents of the Lake Caroline PUD. On September 9, 2003, Madison County Zoning Administrator Brad Sellers sent a letter to AFP stating that the golf course is zoned as a PUD and “[a]ny changes planned therein must be approved by the [Board] through an amendment to the Master Development Plan.” Up to this point, AFP alleges that it was unaware of any Master Plan for the PUD other than the 1989 Master Plan. On November 7, 2003, AFP filed a request asking the Board to hear its proposal to amend the Lake Caroline Master Plan to allow AFP to change the use of its property from a golf course to a residential subdivision. Unlike with the 1998 substitution and the 2001 and January 2003 alleged amendments, the Board refused to consider AFP’s request without public notice and a public hearing. On December 12, 2003, a public hearing was held by the Board regarding AFP’s request. After lengthy argument from AFP, LCI, and LCOA, a transcript of the hearing reveals that the Board unanimously voted to table AFP’s request and not reconsider the matter before November 2006; and its decision was duly recorded in the Board’s minutes. This action of the Board was not appealed.

¶ 4. The composition of the Board changed in January 2004 as the result of elections the prior year. Despite the Board’s December 12, 2003, ruling, and without seeking to rescind that ruling, AFP re-filed its prior request on March 26, 2004, for the newly-constituted Board to hear and consider the proposed amendment to the Lake Caroline Master Plan. The newly-constituted Board granted AFP’s public hearing request. At an April 23, 2004, public hearing, the Board received and considered argument, testimony, and documentary evidence. Significantly, LCI and the Lake Caroline Owners Association (“LCOA”) argued that the hearing should be barred under the doctrines of res judicata and equitable estop-pel by virtue of its substantive similarity to the December 12, 2003, hearing. They claimed that the Board’s prior ruling that the request was premature applied until November 2006. A board member offered a motion to table consideration of the matter until December 2006, but the motion died for lack of a second. Thereafter, another Board member offered a motion to deny AFP’s request. That motion was seconded. After discussion, the Board unanimously voted to deny AFP’s request to amend the Lake Caroline Master Plan, which was duly recorded in the minutes of said meeting.

¶ 5. On May 3, 2004, AFP filed its Notice of Appeal and Bill of Exceptions, appealing the Board’s denial of its request to amend the Lake Caroline Master Plan. On October 25, 2004, the Opinion and Order of the Circuit Court of Madison County affirmed the Board’s denial of AFP’s request. The circuit court found, inter alia, the Board’s denial could be justified insofar as any decision the Board rendered for AFP would be premature, as the LCI-AFP Contract required the golf course to remain functional until December 31, 2006. On November 8, 2004, the Final Judgment of the Circuit Court of Madison County, affirming the denial of AFP’s request to amend, was entered. On November 16, 2004, AFP filed its Notice of Appeal against the Board, LCI, and LCOA (“Ap-pellees”), appealing the Final Judgment of the Circuit Court of Madison County. Specifically, AFP seeks approval of its request to amend the Master Plan and a remand of its request for approval of its development or site plan to the Board for consideration and action in accordance with the Madison County Zoning Ordinance.

STANDARD OF REVIEW

¶ 6. “The standard of review of an order of a Board of Supervisors is the same standard which applies in appeals from the decisions of administrative agencies.” Ladner v. Harrison County Bd. of Supervisors, 793 So.2d 637, 638 (Miss. 2001) (citing Barnes v. Bd. of Supervisors, DeSoto County, 553 So.2d 508, 511 (Miss. 1989)). The decision of the Board will not be disturbed unless its order “was unsupported by substantial evidence; was arbitrary or capricious; was beyond the [Board’s] scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” Id. (citing Bd. of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss. 1996)) (emphasis added). As to questions of law, however, the Board’s decision will be reviewed de novo. See Harrah’s Vicksburg Corp. v. Pennebaker, 812 So.2d 163, 170 (Miss.2001).

ANALYSIS

¶ 7. AFP raised, and the Board and LCI responded to, the following issues:

(1)Was the Board’s denial of AFP’s Request to Amend Caroline Master Plan and Approve Residential Development supported by substantial evidence?
(2)Was the Board’s denial of the Request arbitrary and capricious?
(3)Was the Board’s denial of the Request a violation of AFP’s due process rights?
(4)Was the Board’s denial of the Request a violation of AFP’s equal protection rights?
(5)Did the Board’s denial of the Request exceed the Board’s legislative authority as set forth by the Madison County Zoning Ordinance?
(6)Was the Board’s denial of the Request contrary to the Ordinance and therefore unlawful?
(7)Did the Circuit Court of Madison County, Mississippi err or abuse its discretion in affirming the denial of the Request filed by AFP?

¶ 8. LCOA presents the issues as follows:

(1)AFP had no legal right/“standing” to amend the Lake Caroline Planned Unit Development.
(2)AFP’s Request to Amend the Lake Caroline PUD was “premature” and contractually prohibited.
(3)The Lake Caroline PUD was officially and properly approved by the Board on February 25, 1998, and cannot now be collaterally attacked.
(4)AFP failed and refused to comply with Sections 402.9-1—402.9-6, Madison County Zoning Ordinances.
(5)AFP was “equitably estopped” from seeking/granting the relief requested by AFP.

¶ 9. This Court finds that Appellant Issue (7) and Appellee LCOA Issue (2) are dispositive. Simply stated, was AFP’s Request to Amend Caroline Master Plan and Approve Residential Development premature, and if answered in the affirmative, would the Board’s denial of the Request, as affirmed by the Circuit Court of Madison County, likewise be premature?

¶ 10. The Circuit Court of Madison County, in its Opinion and Order, properly found that “interpretation of the golf course agreement is at the core of this matter.” Moreover, the circuit court determined that “given the pending and/or impending litigation between the parties ... AFP’s request was, in fact, premature before such litigation had been finally concluded.” The circuit court also found:

[w]hile the Board is called on to make many decisions on many issues, it is not the body to adjudicate the rights and responsibilities of AFP and the Developer under the golf course agreement or any assertions of rights in relation thereto by the Homeowners, or any claims it previously violated AFP’s constitutional rights.

In short, “that litigation, not a Board meeting, which is summary in nature, is the vehicle to determine the duties of all the parties as to such future.” Only following that litigation or upon expiration of the contract could an amendment to the Master Plan avoid being premature. As such, the circuit court concluded that “[t]he Board’s denial can be upheld on the basis that any decision by it that far from December 31, 2006, and/or prior to the other parties sorting out their various rights and responsibilities under the golf course agreement, would be premature.” Appellees assert that AFP’s request was not only premature, but contractually prohibited by virtue of the plain language of the LCI-AFP Contract. In short, they contend AFP is contractually required to continue using the property as a golf course through December 31, 2006.

¶ 11. “The standard of review for questions concerning the construction of a contract are questions of law that are committed to the court rather than to the fact-finder.” Ferrara v. Walters, 919 So.2d 876, 881 (Miss.2005) (citing Warwick v. Gautier Utility Dist., 738 So.2d 212, 215 (Miss.1999); Miss. State Highway Comm’n v. Patterson Enters., Ltd., 627 So.2d 261, 263 (Miss.1993)). Questions of law are reviewed by this Court de novo. See Biddix v. McConnell, 911 So.2d 468, 471 (Miss.2005) (citing G.B. “Boots" Smith Corp. v. Cobb, 860 So.2d 774, 776-77 (Miss.2003)). Only if the contract is deemed ambiguous will the “subsequent interpretation” involve “a finding of fact.” Id. (citing Rotenberry v. Hooker, 864 So.2d 266, 269 (Miss.2003)).

¶ 12. “Our law requires this Court to accept the plain meaning of a contract as the intent of the parties where no ambiguity exists.” Ferrara, 919 So.2d at 882 (citations omitted). In other words, “[l]egal purpose or intent should first be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence.” Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752 (Miss.2003) (citations omitted). In applying the “four corners” test, “[o]ur concern is not nearly so much with what the parties may have intended, but with what they said, since the words employed are by far the best resource for ascertaining the intent and assigning meaning with fairness and accuracy.” Id. (citing Simmons v. Bank of Miss., 593 So.2d 40, 42-43 (Miss.1992)). “Only if the contract is unclear or ambiguous can a court go beyond the text to determine the parties true intent.” Id. at 752-53 (citing Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss.1990)). In short, this Court “will not rewrite or deem a contract ambiguous where the language is clear and indicative of its contents.” Miss. Farm Bureau Mut. Ins. Co. v. Walters, 908 So.2d 765, 769 (Miss.2005) (citing State Auto. Mut. Ins. Co. v. Glover, 253 Miss. 477, 176 So.2d 256, 258 (1965)).

¶ 13. Here, the plain, unambiguous language of the LCI-AFP Contract mandates that the property be maintained as a golf course until December 31, 2006. Prior to December 31, 2006, AFP is contractually bound to either maintain the property as a golf course or sell it to another who will maintain it as such. To require AFP to submit to the provisions of the contract which it freely entered into with LCI respects the plain language of the contract. See Walters, 908 So.2d at 769.

¶ 14. The circuit court properly identified the prematurity issue. However, the circuit court failed to address the significance of the Board’s December 2003 ruling, which was not appealed. Rather than appealing, AFP simply ignored the prior ruling, and filed another request with the newly constituted Board three months later. At the subsequent hearing, LCOA properly argued to the Board that res judicata should control. “Under Mississippi law, res judicata or collateral estoppel precludes relitigation of administrative decisions.” Smith v. Univ. of Miss., 797 So.2d 956, 963 (Miss.2001) (involving a terminated state employee who failed to appeal the dismissal decision of the Personnel Action Review Board to the circuit court by writ of certiorari as mandated by Miss.Code Ann. Sections 11-51-93 and - 95). See also Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So.2d 853, 861 (Miss.Ct.App.1999) (involving the failure to file an appeal of the Permit Board’s decision within twenty days after it was entered into the books as mandated by Miss. Code Ann. Section 49-17-29). According to Zimmerman, “[ojnce an agency decision is made and the decision remains unap-pealed beyond the time to appeal, it is barred by administrative res judicata or collateral estoppel.” 747 So.2d at 861 (citing Hood v. Miss. Dep’t of Wildlife Conservation, 571 So.2d 263, 268 (Miss.1990)). In denying AFP’s request, the Board erroneously ignored its binding initial ruling of prematurity. In failing to acknowledge that initial ruling of the Board, which effectively renders this action non-justiciable until after December 31, 2006, the circuit court’s prematurity analysis was incomplete.

¶ 15. Only after December 31, 2006, when AFP’s contractual obligation to maintain the golf course expires, is AFP free to petition the Board regarding other uses for the subject property. Until that time, when this action ripens, this Court has no power to issue an advisory opinion. See In re Summers, 325 U.S. 561, 567, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945) (in federal appellate courts, the case or controversy requirement mandates “an actual controversy over an issue, not a desire for an abstract declaration of the law.”); Furstein v. Hill, 218 Conn. 610, 627, 590 A.2d 939 (1991) (at the state level, as well, “the existence of an actual controversy is an essential prerequisite to appellate jurisdiction.”); Allred v. Webb, 641 So.2d 1218, 1220 (Miss.1994) (the Mississippi Supreme Court “[has] no power to issue advisory opinions.”); Insured Savs. & Loan Ass’n v. State, 242 Miss. 547, 554, 135 So.2d 703, 706 (1961) (“The Supreme Court has no power to render advisory opinions.”). Therefore, the circuit court’s affirmance of the Board’s denial of AFP’s request was proper, but only because AFP’s request was premature contractually and barred by virtue of the Board’s initial ruling.

CONCLUSION

¶ 16. For these reasons, this Court finds that the circuit court was correct in rejecting AFP’s request for relief, but not for the stated reasons. This Court concludes that AFP’s request is premature until the relevant provision of the LCI-AFP Contract expires on December 31, 2006. Therefore, the circuit court’s judgment is affirmed.

¶ 17. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND GRAVES, JJ„ CONCUR. DICKINSON, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J„ NOT PARTICIPATING.

      . In addition to the 154 acres conveyed to AFP, LCI agreed to convey an additional ten (10) residential subdivision lots to AFP, to be developed by LCI.

      . According to Madison County Zoning Administrator Brad Sellers, "there was no Master Site Plan on file in my office and one could not be found in the Madison County Chancery Clerk’s office for the Lake Caroline Planned Unit Development....”

      . No evidence can be found in the record of Board minutes authorizing this amendment or new Master Plan.

      . See footnote 3.

      . Specifically, AFP claimed that only 22 of 300 homeowners within the Lake Caroline development were members of the golf course.

      . According to Brad Sellers, ''[t]he language in the zoning ordinance says it is ambiguous .... The procedure that we have followed in amendments to Master Plans have not been [to my] notice public hearings. They’ve simply prepared the amendment that they’ve proposed and presented it to the Board of Supervisors at a regular scheduled hearing.” The public notice and public hearing in this situation was "at the request of the Board," effectively creating a legal requirement which was previously non-existent.