author: GRIFFIS, J., for the Court.

text:
    Cedric LINDSEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01337-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.
    Rehearing Denied Sept. 25, 2007.

      Davey L. Tucker, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Cedric Lindsey was convicted of manslaughter. He was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections. Lindsey appeals and argues (1) the trial court improperly held that the Odom charge of juror misconduct was waived, (2) Lindsey was denied compulsory process, and (3) the verdict was against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. During the early morning hours of August 18, 2001, Lindsey was a patron at Club City Lights in Jackson. While there, he was engaged in an argument with Michael Williams over the vandalism of Lindsey’s car two weeks earlier. The argument ended. When the bar closed about 4:30 in the morning, Lindsey left with Orlando Robinson. Williams followed them to the parking lot, continuing the prior argument. Williams’s car was parked to the right of Robinson’s car. Lindsey and Williams exchanged words at the cars, and Lindsey brandished a pocketknife. There was a dispute over whether or not Williams had hit Lindsey in the head with a belt before or after the knife appeared. Lindsey then got into the passenger side of Robinson’s vehicle. Robinson then became involved in a physical altercation with Williams.

¶ 3. Lindsey got out of the car to help Robinson. He left his knife in the car. About this time, between eight and ten patrons joined in the fight, with around fifty more witnessing the fight. Lindsey went back for his pocketknife. Lindsey was approached by Cedric Briggs. Some witnesses testified that Briggs was trying to break up the fight, and others testified that Briggs joined in the fight, attacking Lindsey. Daniel Buckhalter saw the knife and tried to pull Lindsey away from Briggs. When Buckhalter was unsuccessful, he began beating Lindsey from behind. Some witnesses described Lindsey as using his left arm to fend off blows from his head and using his right arm to jab the knife in front of him. Other witnesses testified that the fight was one big group of people, and it was hard to tell who was doing what to whom.

¶ 4. The fight ended with Briggs being stabbed twice in the chest. One of these blows entered his heart. Lindsey ran back in the car and locked the door. Robinson soon followed. Jaworski Minniefield punched out the passenger window and tried to pull Lindsey out of the car. After several minutes, Robinson managed to get the car out of the crowd and drove Lindsey to his mother’s house. Lindsey testified that he realized he had cut someone, but he did not know who and did not know how serious it was.

¶ 5. After Briggs was stabbed, he fell and died at the scene.

¶ 6. Lindsey was tried for manslaughter. Be pled self-defense. After a four day trial, the jury found him guilty.

ANALYSIS

I. Did Richardson waive Lindsey’s Odom challenge?

¶ 7. Lindsey first argues that the trial court erred when it refused to conduct an Odom hearing on a charge of juror misconduct. In particular, he claims a juror failed to honestly respond to questions during voir dire. The State maintains that Lindsey’s mother waived his right to object to the juror.

¶ 8. Parties to jury trials have the right to examine the jury panel in order to exercise their for cause and peremptory challenges. Miss.Code Ann. § 13-5-69 (Rev.2002). A juror’s failure to truthfully respond to voir dire leaves the examining attorney unable to intelligently exercise his challenges. Odom v. State, 355 So.2d 1381,1383 (Miss.1978). Where a prospective juror fails to respond to a question during voir dire, upon motion for new trial, the trial court should determine whether the question was “(1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited.” Id. If so, “the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond.” Id. If prejudice is found, then the trial court shall order a new trial. Id. A trial court’s judgment about whether a jury is fair and impartial will not be disturbed unless it appears clearly that it is wrong. Id.

¶ 9. In Odom, venire member John B. Freshour did not answer when asked if any venire member had a relative in law enforcement. Id. at 1382. His brother was a police officer. Id. Freshour also did not answer when asked if there was any reason why any of the venire members could not be fair and impartial. Id. In fact, his brother investigated the very crime that was on trial. Id. Freshour was eventually selected to serve on the jury, which convicted Odom of burglary. Id. Trial testimony listed his brother by name as one of the investigating officers. Id. Freshour still did not come forward. Id. The Odom court reversed and remanded the case for a new trial. Id. at 1383.

¶ 10. More recently, in Carter v. State, 869 So.2d 1083, 1086 (¶ 10) (Miss.Ct. App.2004), this Court held that a defendant can waive his right to challenge such juror misconduct under Odom. In that case, after the guilty verdict came down, Carter informed his attorney for the first time that four jurors had not truthfully responded during voir dire. Id. at 1085(¶ 5). Three jurors did not admit to knowing the defendant. Id. One juror did not admit to having heard the case discussed. Id. at 1085 — 86(¶ 6). The trial court held a hearing on this allegation at which time it was revealed “that Carter knew at the time of voir dire that the jurors, about whom he later complained, knew him even though they did not raise their hands.” Id. at 1086(¶ 10). Therefore, Carter waived his right to object when he did not do so before the jury was empaneled. Id. This was because “a party who fails to object to the jury’s composition before it is empaneled waives any right to complain thereafter.” Id. at 1087(¶ 12).

¶ 11. Here, venire members were asked during voir dire if they knew any of the defense witnesses in the case. In particular, defendant’s mother Barbara Richardson was named. Juror Tracey D. Horton did not respond. Horton did respond to one question posed in voir dire about family members who had been arrested:

Q .... And let me get in the curve right here with Mr. McConnell’s row. That’s Ms. Horton. Yes, ma’am.
A. (By Juror Tracey D. Horton) A brother, an aunt and a husband. Could I answer privately, please?
Q. You sure can. Okay.

Later, the court called out all jurors, by name, who had indicated they wanted to respond to a question in chambers. This included Tracey Horton. Richardson was present during voir dire. She was not present for most of the actual trial, as she was the next to the last witness to testify. Horton was eventually selected as juror number 11.

¶ 12. As part of the motion for a new trial, judgment of acquittal, and judgment notwithstanding verdict, Lindsey argued:

(ix) the defendant was highly prejudiced and did not receive a fair trial by the presence of Tracey D. Horton, Juror No. 11. This juror failed to advise the Court that she had prior knowledge of the defendant’s background and family and that she was a co-employee with Barbara Richardson, the mother of the defendant where she has numerous complaints and conflicts with Ms. Richardson concerning the manner in which she served as a teacher for her son, Trey Horton, Ms. Richardson’s Affidavit is attached as exhibit A....

In her affidavit, Barbara Richardson stated:

I noticed for the first time during the jury foreman reading of the verdict that Tracey Horton, juror no. 11[,] was an individual that was a co-employee of mine at Emmanuel Christian School....
I was surprised to see Tracey Horton on the jury because she knows my family and I know her family and we had a conflict of personalities.
I served as a teacher at the Emmanuel school and I taught her son Trey Horton.
Tracey Horton did not approve of the manner in which I disciplined Trey at school and we had several confrontations concerning her complaints and my concerns.
I do no believe that Tracey Horton could serve on my son’s jury as a fair and impartial juror.
I do believe that Tracey Horton unfairly prejudiced the jury to find my son guilty.

¶ 13. At the hearing on the motion, this is the only issue raised in the motion that Lindsey argued. We note that Lindsey’s brief argues that “[n]o testimony was taken at that hearing from either Cedric Lindsey, Barbara Richardson or Tracey Horton concerning any knowledge or relationship that those persons might have of each other.” A review of the transcript reveals that Lindsey made no request for the trial court to consider any testimony or evidence other than Richardson’s affidavit. The affidavit was marked as an exhibit then Lindsey’s counsel stated, “And then that’s all we would have.” We cannot find the trial court in error for not considering testimony or evidence that was never offered by the defendant.

¶ 14. In response, the State reminded the trial court that Richardson: sat in the courtroom for a lengthy voir dire process, and I believe the court was limiting us to 45 minutes per side at that time.

[Richardson] was in court for the voir dire, which included the court’s voir dire of the jury, and Ms. Mansell for the State’s voir dire of the jury, which took at least 45 minutes, and Mr. Tucker’s voir dire of the jury that took probably not quite that long, but we’re talking about an hour and a half period when she’s in the courtroom with the juror in question.
At the point that Ms. Mansell, I think was the one that requested that the rule be invoked, the witnesses left the courtroom, and Ms. Richardson was not in the court room for the State’s side of the case, but during the defendant’s presentation ... Ms. Richardson was actually called as a witness.
And on direct examination she was just a few feet away from this juror. Probably eight or ten feet away from the juror that she now remembers. She also was cross-examined.
... Ms. Richardson was also present in the courtroom when her son, the defendant was examined and cross-examined at length. He was on the stand for about an hour.
And then she was in the room for closing arguments. And we ran over on closing arguments. Mr Tucker ran over on his. We ran over on ours. And, of course, the jury instructions were read. So we’re talking at least — we’re talking that she was in the courtroom at least four hours, four hours, with this lady and it’s only when the verdict comes back that she remembers, oh yeah, I remember this lady.
So just for the record Ms. Richardson wants her son to have another bite at the apple after the verdict was read. And I understand that she wants her son out of jail, but it’s kind of — her credibility is kind of questionable here.

The court offered Lindsey’s counsel an opportunity to respond, and he stated “[NJothing further, your honor.”

¶ 15. The trial court determined that the assistant district attorney’s recollection of Richardson’s attendance at trial was accurate. The court held that Lindsey’s challenge would have been considered if it had been brought to the court’s attention during voir dire or the trial. The court concluded that Lindsey waited too long to raise Richardson’s claim, and. it “was waived by the fact that she waited until after the verdict, and it is too late to bring it up.” The court denied Lindsey’s motion.

¶ 16. The question here is whether Lindsey may rely on his mother’s post-trial concern about one of the jurors, which she recognized during the trial and did not bring to the court’s attention until after the trial was completed, to claim that his right to exercise peremptory challenges was impeded by Horton’s failure to answer an unambiguous question. The key to this inquiry is whether that answer, which was not given, would have allowed Lindsey’s counsel to make an informed decision about whether to strike juror Horton. See Odom, 355 So.2d at 1383. Hence, we must consider whether Horton’s failure to answer left Lindsey’s counsel “uninformed arid unable to ask any follow-up questions to elicit the necessary facts to intelligently reach a decision to exercise a peremptory challenge or to challenge a juror for cause.” Id. It is clear to this Court that the trial court determined that Lindsey’s counsel was not left uninformed. Indeed, the State argued that Richardson attended the voir dire, testified in defense of her son, and so participated in the trial that the trial court would have expected the defendant’s mother to identify and bring the issue to the court’s attention before the verdict was reached. Hence, the trial court determined that Lindsey had or should have had actual knowledge that the juror was untruthful, and the defendant yet remained silent. See Doss v. State, 906 So.2d 836, 840 (¶¶ 16-17) (Miss.Ct.App. 2004); Carter, 869 So.2d at 1086(¶ 10); Brooks v. State, 835 So.2d 958, 962(¶ 20) (Miss.Ct.App.2003); Bell v. State, 835 So.2d 953, 957(¶ 12) (Miss.Ct.App.2003).

¶ 17. We are of the opinion that the resolution of this matter is based on the trial court’s consideration of the evidence submitted to support the motion for a new trial. The trial court clearly found Ms. Richardson’s affidavit to lack credibility and there were not sufficient grounds to grant the motion. We will not substitute our judgment for that of the trial court. Indeed, we hold that the trial judge’s ruling was within his discretion. We find no merit to this issue.

II. Did the judge err in excluding defense witnesses?

¶ 18. Next, Lindsey argues that the trial court erred in excluding certain defense witnesses and limiting the testimony of others. He complains that the trial court did not follow the correct procedure set forth in the Uniform Circuit and County Court Rule 9.04, and it violated his Sixth Amendment right to compulsory process. The State argues that Lindsey has shown no prejudice from these exclusions.

¶ 19. The standard of review for discovery violations is abuse of discretion. Porter v. State, 869 So.2d 414, 419(¶ 18) (Miss.Ct.App.2004). We will affirm unless “there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Id.

[T]he prosecution must disclose to each defendant or to defendant’s attorney ... the existence of which is known or by the exercise of due diligence may become known to the prosecution.... Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of ... the substance of any oral statement made by any such witness!.]

URCCC 9.04(A)(1). Reciprocal discovery rules apply to the defendant. Scott v. State, 831 So.2d 576, 578(¶ 8) (Miss.Ct.App. 2002). One of the main purposes of this rule is to prevent trial by ambush. Dotson v. State, 593 So.2d 7, 12 (Miss.1991). “When the trial court is confronted with a discovery violation, the trial court should follow the procedures set forth in Box [v. State, 437 So.2d 19, 23 (Miss.1983)].” Porter, 869 So.2d at 420(¶ 19). The Box procedure has been incorporated into the Uniform Rules of Circuit and County Court. URCCC 9.04(1); Kolberg v. State, 829 So.2d 29, 53(¶ 48) (Miss.2002); Scott, 831 So.2d at 578(¶ 9). Rule 9.04 states, in part:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.
The court shall follow the same procedure for violation of discovery by the defense.

URCCC 9.04(1).

¶ 20. For example, in Montgomery v. State, 891 So.2d 179 (Miss.2004), the supreme court upheld the exclusion of a defense witness. In that case, the only thing provided to the State in discovery was the witness’s name, address, and telephone number. Id. at 184(1119). Montgomery violated discovery by not providing the substance of the witness’s testimony. Id.

¶ 21. Exclusion of the defendant’s evidence, however, implicates his Sixth Amendment right to compulsory process. Morris v. State, 927 So.2d 744, 747(¶ 8) (Miss.2006). The evidence cannot be excluded unless the circuit court determines that the defendant’s discovery violation is “willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence.” Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Our own supreme court has cautioned that the sanction of exclusion should “be reserved for eases in which the defendant participates significantly in some deliberate, cynical scheme to gain a substantial tactical advantage.” Houston v. State, 531 So.2d 598, 611 (Miss.1988).

¶ 22. This Court had an opportunity to balance the competing interests of the discovery rules and the compulsory process clause in Scott v. State, 831 So.2d 576 (Miss.Ct.App.2002). Scott was charged with possession of a firearm by a felon. Id. at 576(¶ 1). His defense was that he feared for his life, because he had been shot and had received death threats. Id. at 577 (¶¶ 3^4). At trial, he attempted to produce medical records to corroborate his claim. Id. at (¶ 3). This evidence was excluded, because he had not provided this to the State in discovery. Id. The Court reasoned:

Scott’s defense had always been that he carried a gun for fear of his life. Scott acknowledged that he had known about the documents for some time and could have provided them to his attorney. Introducing the evidence would have given the defense a strategic advantage. It would have been difficult for the State to pursue the authenticity of the two medical billing statements. Also it would have been impossible for the State to question the treating physicians concerning the documents.

Id. at 579(¶ 14). The Court found that Scott had committed a willful discovery violation and upheld the exclusion of evidence. Id.

¶ 23. Again, in Morris, the supreme court upheld the exclusion of defense witnesses. Morris, 927 So.2d at 747(¶ 9). Morris was convicted of simple assault on a police officer. Id. at 745(¶ 2). On the day of trial, defense counsel presented the prosecution with a list of previously undisclosed witnesses. Id. at 746(¶ 3). Two of these were eyewitnesses who would corroborate Morris’s defense that he did not fire a gun, and the gun was planted on him by the police. Id. at (¶ 4). The court held that Morris’s discovery violation was a willful attempt to gain a tactical advantage. Id. at 747(¶ 9). Id. It found, “The only-reason proffered by Morris for failure to designate these witnesses sooner was the police department’s failure to find these witnesses and give the names to Morris through discovery.” Id. Defense counsel waited until the weekend prior to trial to find the witnesses and waited until the morning of trial to give the list to the prosecution. Id. Therefore, despite the fact that the trial court did not implement the required URCCC 9.04 procedure, the court upheld the exclusion of evidence. Id.

¶ 24. In the case sub judice, the prosecution objected before the defendant put on his case, because the defendant had merely given the name, telephone number and addresses of its witnesses and did not provide a summary of their oral statements. These witnesses were Richardson, Robinson, Mario White, Mario Nash, and Fentress McGraw. All that the defense told the prosecution was that these witnesses would testify consistent with their preliminary hearing testimony and in Robinson’s case, consistent with his police statement. The trial court limited the witnesses’ testimony accordingly. The transcript of the preliminary hearing was not entered into the record. Robinson’s statement was. Only Richardson and Robinson testified. White, Nash and McGraw did not. Lindsey made no offer of proof as to what these last three witnesses would have said.

¶ 25. We find that Lindsey is guilty of a willful discovery violation. He admitted to taking oral statements from these witnesses. He offered no reason whatsoever for not disclosing the statements, even though the case had been pending for approximately four years. Therefore, consistent with Taylor and Scott, we hold that the trial court did not abuse its discretion in excluding/limiting the testimony.

III. Was the verdict against the overwhelming weight of the evidence ?

¶ 26. Although Lindsey styles this issue as weight only, he appears to argue both sufficiency and weight of the evidence. Therefore, out of an abundance of caution, we will address both. Lindsey claims that the verdict is against the sufficiency and the weight of the evidence.

¶ 27. In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844(¶ 16) (Miss.2005). Usually, if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we will uphold the verdict. Id.

¶ 28. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when'it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. at (¶ 18). The evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.

¶ 29. Manslaughter is defined as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.” Miss.Code Ann. § 97-3-85 (Rev.2006). It was undisputed that Lindsey killed Briggs, without malice, in the heat of passion with the use of a dangerous weapon. The only contested issue was whether Lindsey acted in self-defense. There was undisputed testimony that Lindsey was the only one in the fight with a dangerous weapon. All others were using their fists, and Williams was possibly using his belt. Several witnesses described Lindsey making stabbing, thrusting motions with his knife, rather than swinging motions. One witness testified that Lindsey had Briggs on the ground during the fight. Several witnesses describe Briggs’s actions as trying to break up the fight and pull Lindsey away from it. There was evidence that in the middle of the fight with Briggs, Lindsey left and then returned with the knife. This was sufficient evidence for the jury to find that Lindsey was not acting in selfdefense. Griffin v. State, 495 So.2d 1352, 1354 (Miss.1986) (holding defendant who left the fight, got a knife, and returned to the fight using the knife could not claim self-defense).

¶ 30. We likewise find that the verdict was not against the overwhelming weight of the evidence. The evidence which favored Lindsey’s theory was that he heard Briggs call for a gun while they were fighting. However, no other witness heard this. Lindsey and one other witness describe Lindsey as the person being knocked to the ground by Briggs. Others describe the scene as one big group fight with several people fighting Lindsey at one time. However the evidence indicates that Lindsey was making stabbing motions from the beginning of the fight before he was thus attacked. Also the evidence was that at the time that Briggs was stabbed, Lindsey was off the ground and the person/people attacking him from behind had been pulled away by others. Thus, we cannot say that the verdict worked an unconscionable injustice. This issue has no merit.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.

      . The court also noted that “no firm, unbending rule can be laid down that would control every situation that might arise on the voir dire of prospective jurors. Therefore, each case must be decided on an ad hoc basis considering the facts then before the court.’’ Id.


source: Caselaw Access Project

author: ISHEE, J., for the Court.

license: Public Domain

text:
    Eugene HART a/k/a Earl Hart, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-KA-00927-COA.
    Court of Appeals of Mississippi.
    June 12, 2007.
    Rehearing Denied Sept. 25, 2007.

      Dan W. Duggan, Brandon, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before LEE, P.J., BARNES, ISHEE and CARLTON, JJ.
   ISHEE, J., for the Court.

¶ 1. Eugene Hart was convicted of the burglary of a dwelling by the Rankin County Circuit Court and sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections. Aggrieved, Hart appeals and asserts that his Fifth Amendment constitutional right not to be compelled to testify against himself was infringed upon by a comment made by the assistant district attorney during closing arguments. Finding no error, we affirm.

FACTS

¶ 2. Upon returning home, James Courtney and J.J. Short noticed a suspicious car and realized Short’s house was in the process of being burglarized. They saw Erie Simon come out of the house and attempt to flee, but Short caught him and restrained him until the police arrived. Courtney testified that he saw and heard another man in the house, but he could not identify who it was. When the police arrived, Simon told them that the other man was Eugene Hart.

¶ 3. Police tracked the other suspect who had escaped through a back window of the house for approximately forty-five ■ minutes, but they did not apprehend him. Nearby, they found a discarded bicycle and a shirt, with blood and perspiration on it, lying on a barbed wire fence that had been torn down. Hart later surrendered to the Hinds County Sheriff. When Officer Greg Eklund, of the Rankin County Sheriffs Department, picked up Hart from Hinds County, Hart asked him why they were chasing him so hard on just a burglary.

¶ 4. Simon pled guilty to the ■ burglary charge and received a seven-year sentence with four years suspended. He also testified at trial and implicated Hart .as the second burglar. The prosecution could not connect Hart to the fingerprints in the house nor the boot print on the front door, but an expert testified that the blood from the shirt was from Hart. During closing arguments, the defense objected to what it perceived to be the State’s improper comment on Hart’s failure to testify. The judge clarified that the State was referring to Simon’s testimony and overruled the objection. The jury returned a verdict of guilty of burglary of a dwelling house and sentenced Hart to twenty-five years in the custody of the Mississippi Department of Corrections. Hart appeals and asserts the following issue: whether the district attorney, during closing argument, infringed upon Hart’s Fifth Amendment constitutional right not to be compelled to testify against himself by allegedly commenting on Hart’s failure to take the stand at trial.

STANDARD OF REVIEW

¶ 5. This Court gives discretion to the trial court when reviewing the propriety of statements made during closing arguments. Stevens v. State, 806 So.2d 1031, 1057(¶ 20) (Miss.2001) (citing Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990)). “The trial court is in the best position to determine if an alleged improper comment has a prejudicial effect.” Id.

ISSUES AND ANALYSIS

¶ 6. The only issue Hart asserts on appeal is the alleged improper comment by the prosecutor. Hart specifically refers to one instance in the State’s closing argument:

[The State] He was a first time offender.
He admitted his guilt, he took his punishment, okay? Now truthfully, if Eugene Hart was not involved, he could have come in here yesterday and told you that. There would have been nothing else we could have done about it— [Defense Counsel] Judge, that’s improper.
[The Court] He’s talking about what Simon would testify to; isn’t that right Mr. Emfinger?
[The State] I’m saying that if he had come in here and said somebody else done it, there would have been no other proof we would have had.
[The Court] You’re talking about Simon’s testimony?
[The State] That’s right.
[The Court] Overruled.

¶ 7. Generally, an attorney is given wide latitude to make a closing argument. Johnson v. State, 477 So.2d 196, 209 (Miss. 1985). This is an important part of our adversarial system, and courts must be careful in limiting arguments to the jury. Id. However, this rule must be balanced against the Fifth Amendment right of a criminal defendant not to be compelled to testify against himself. As the Supreme Court stated, no person shall be compelled to testify against himself in a criminal trial. Griffin v. California, 380 U.S. 609, 619, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). This integral right has been incorporated into the Mississippi Constitution by Article 3, Section 26. It is a violation of “an elementary and long established principle of law” for a prosecutor to comment on a defendant’s failure to take the stand at trial. Livingston v. State, 525 So.2d 1300, 1306 (Miss.1988) (quoting Brown v. State, 340 So.2d 718, 722 (Miss.1976)). With such a fundamental right, even the failure to timely object to the prosecution’s comment at trial will not waive the right on appeal. Whigham v. State, 611 So.2d 988, 995 (Miss.1992); Brooks v. State, 209 Miss. 150, 155, 46 So.2d 94, 97 (1950).

¶ 8. Insinuation and innuendo are prohibited as well as direct comments. Wilson v. State, 433 So.2d 1142, 1146 (Miss.1983). A prosecutor may violate a defendant’s right not to be compelled to testify against himself not only by making a direct statement but also by a comment that a jury may reasonably construe to be a comment on the defendant’s failure to testify. Jimpson v. State, 532 So.2d 985, 991 (Miss.1988); Livingston, 525 So.2d at 1305-08; Monroe v. State, 515 So.2d 860, 865 (Miss.1987).

¶ 9. Nevertheless, each case which suggests an improper comment on the defendant’s failure to testify must be reviewed on its own facts. Peterson v. State, 357 So.2d 113, 117 (Miss.1978). The court in Jimpson, after noting that a direct comment was not necessary to violate the defendant’s right, found that there was a difference in commenting on the defendant’s failure to testify and the failure to put on a successful defense. Jimpson, 532 So.2d at 991. The court then went on to find that references that were not entirely clear were not necessarily improper or impermissible. Id. (citing Jones v. State, 517 So.2d 1295, 1302 (Miss.1987)).

¶ 10. If we look only to the portion of the transcript cited by Hart, the comment by the prosecutor could seem improper. Upon reviewing the statement in the context of the argument that preceded and followed it, however, it is clear the prosecutor was not referring to the defendant’s failure to testify. Instead he was arguing for the credibility of his own witness, Simon. Preceding the alleged improper comment is the following argument:

Now I agree, you’ve been instructed that the testimony of a codefendant is supposed to be viewed with great caution. You’re supposed to look at it very carefully, and that’s how I want you to look at it. Eric Simon, though, came in here and pled guilty. But from the moment he was captured until even through yesterday, he indicated that Eugene Hart was the man that was with him. Now, he pled guilty. He got ten years, seven years suspended, three years to serve. He has done his time. He has got one felony conviction, as he said here before. All right, but they want you to believe that Eric got some type of super sweetheart deal. You don’t know that. He was a first-time offender. You don’t know what the usual plea bargain is, or recommendation is, for first-time offenders. You don’t know. You don’t know if he got some super sweetheart deal. He was a first-time offender. He admitted his guilt, he took his punishment, okay?

¶ 11. In response to the objection, the judge pointed out that the prosecutor’s comment was referring to testimony by Simon, and the prosecutor agreed that he was indeed referring to Simon. After-wards, the prosecutor continued to argue for the credibility of his witness by noting that the jury had more than just Simon’s testimony on which to rely. He argued that, not only was Simon’s testimony consistent with what he told the police when he was apprehended, but also that the State presented evidence to corroborate his testimony.

¶ 12. This was not a direct comment on Hart’s failure to testify, nor was it insinuation or innuendo referring to the fact that Hart did not testify. The alleged improper comment was right in the middle of a long argument by the prosecutor that his witness was credible. Commenting on a defendant’s failure to take the stand is entirely different from arguing that your own witness’s testimony has been consistent since he was apprehended.

¶ 13. In conclusion, we do not find the comment to be an improper comment on the defendant’s failure to testify. The comment in question was objected to at trial. The judge, in listening to the State’s closing argument realized the comment was in reference to Simon’s testimony and not the failure to testify by Hart. While the propriety of the comment, divorced from the context in which it was uttered, could be questioned, when read with the argument surrounding it, it is clear that it was not improper. The judge was in the best position to determine the propriety of the comment, and it was in his discretion to allow it.

¶ 14. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING HOUSE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR.


author: IRVING, J., for the Court.

text:
    Willie WOODS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02372-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.

      Eduardo Alberto Flechas, James D. Bell, Jackson, attorneys for appellant.
    Office of the Attorney General by R. Stewart Smith, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J., for the Court.

¶ 1. Willie Woods was convicted by a jury of four counts of Medicaid fraud and was sentenced by the Pike County Circuit Court to a total of twenty years, with eight years to serve and twelve years suspended. Aggrieved, Woods appeals and contends that the court erred in issuing a supplemental instruction in response to a question from the jury during its deliberation, that the court erred in denying Woods’s motions for a judgment notwithstanding the verdict and new trial, that the court erred in denying Woods bond pending appeal of his case, that the cumulative effect of the errors in his case mandate reversal, and that no reasonable juror could have found him guilty beyond a reasonable doubt. Finding that the court erred in failing to properly instruct the jury, we reverse and remand for a new trial consistent with this opinion.

FACTS

2. Woods was employed at Southwest Mental Health (Southwest) in Natchez, Mississippi, as an intensive case manager. Essentially, Woods provided services to a variety of clients who suffered from mental health issues and needed special care. For example, Woods would take clients to the doctor and help them with their day-to-day necessities. Evidence at trial indicated that Woods was particularly bad at keeping up with the paperwork that his job entailed, and that he was often behind in filling out required documentation.

¶ 3. At particular issue in this case is Freddie Gates, who was a client of Southwest in 2001 and who suffered from admittedly severe mental issues. According to paperwork filed by Woods, Woods' took Gates to Jackson for cancer treatments and to Fayette for arthritis problems. As a result of the filed paperwork, Southwest filed Medicaid claims for the services claimed by Woods. An investigation by the Attorney General’s Medicaid Fraud Division revealed that on July 11, 2001, October 26, 2001, November 1, 2001, and November 29, 2001, four of the dates claimed by Southwest, no corresponding medical claims were filed by any health care providers. Woods was brought in for questioning, and was ultimately charged with four counts of Medicaid fraud for knowingly submitting false claims that were filed with Medicaid.

¶ 4. Evidence introduced at trial indicated that Gates was known to be a difficult patient. Gates admitted on the stand that he would sometimes tell Woods that he had seen a doctor when Woods took him places, even though he had not actually seen the doctor. There was also conflicting evidence regarding whether Gates had told Woods that he had cancer; on the stand, Gates maintained that he had told Woods and other individuals that he had cancer.

¶ 5. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Supplemental Jtvry Instruction

¶ 6. As stated, Woods argues that the trial court erred when it granted, over his objection, a supplemental instruction after jury deliberations had begun. As we will explain below, we find that the error lies not in the granting of the supplemental instruction, but in the granting of instructions which created confusion for the jury. During its deliberations, the jury sent a question to the court: “As to all Four Counts does # 1 mean any services or does ‘services’ have to relate to the ‘services’ claimed on all supporting documents.” Before issuing a response, the court spoke to both the State and defense counsel about what response, if any, to give. Defense counsel urged the court to issue no response, as he contended that the jury had already been properly instructed. However, the court chose to issue the following written response to the jury: “You should consider all evidence as it relates to the dates of July 11, 2001, October 26, 2001, November 1, 2001 and November 29, 2001. Please keep this note with the jury instructions.”

¶ 7. The jury’s reference to “# 1” indicates that it was referring to instructions 6-9, which read:

Willie Woods has been charged in Count No. 1 with the offense of Medicaid fraud which is alleged to have occurred between July 11, 2001 and November 29, 2001.
In order to prove this count, the prosecution must prove beyond a reasonable doubt each of the following elements of the charge:
That Willie Woods—
1. Failed to provide case management services to Freddie Gates, on July 11, 2001;
2. Made, presented, or caused to be made or presented a claim for Medicaid benefits related to such services, or alleged services; and
3. Knew the claim to be false, fictitious, or fraudulent.
If the prosecution proves beyond a reasonable doubt all of the above-listed elements, then you shall find Willie Woods guilty as charged as to this count.
If the prosecution fails to prove any or all of the above-listed elements beyond a reasonable doubt, then you must find Willie Woods “Not Guilty” as to this count.

(emphasis added). This instruction was tendered by Woods. A similar instruction tendered by the State was given to the jury as Instruction 10:

The Court instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that during, between and/or about July 11, 2001, and November 29, 2001, the Defendant, Willie Woods, did wilfully, unlawfully and feloniously make, present and cause to be made and presented in Pike County, Mississippi, a false, fictitious and fraudulent claim for Medicaid benefits in the amount of or about Three Hundred and Fifty Dollars ($350.00), knowing the claim to be false, fictitious and fraudulent, in that the Defendant presented that on or about July 11, 2001, he had provided ease management services related to cancer treatment in Jackson, Mississippi, for Freddie Gates, a Medicaid recipient, knowing at the time that the claim was submitted that the described services had not been provided, then you shall find the Defendant guilty of Medicaid fraud as charged in Count I.
The Court further instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that during, between and/or about October 26, 2001, and November 7, 2001, the Defendant, Willie Woods, did ... in that the Defendant presented that on or about October 26, 2001, he had provided case management services related to cancer treatment in Jackson, Mississippi, for Freddie Gates, a Medicaid recipient, knowing at the time that the claim was submitted that the described services had not been provided, then you shall find the Defendant guilty of Medicaid fraud as charged in Count II.
The Court further instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that during, between and/or about November 1, 2001, and December 6, 2001, the Defendant, Willie Woods, did ... in that the Defendant presented that on or about November 1, 2001, he had provided case management services related to treatment in Fayette, Mississippi for the arthritic hand of Freddie Gates, a Medicaid recipient, knowing at the time that the claim was submitted that the described services had not been provided, then you shall find the Defendant guilty of Medicaid fraud as charged in Count III.
The Court further instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that during, between and/or about November 29, 2001, and December 6, 2001, the Defendant, Willie Woods, did ... in that the Defendant presented that on or about November 29, 2001, he had provided case management services related to cancer treatment in Jackson, Mississippi, for Freddie Gates, a Medicaid recipient, knowing at the time that the claim was submitted that the described services had not been provided, then you shall find the Defendant guilty of Medicaid fraud as charged in Count IV.

(emphasis added).

¶ 8. A review of these instructions reveals that they are in direct conflict. Instructions 6-9 authorize the jury to find Woods not guilty if it finds that he provided any case management services on the dates in question, while the State’s instruction specifies what types of services Woods was supposed to have rendered on those dates but does not apprise the jury if those services are case management services. There was evidence that Woods provided some ease management services on the dates in question, although not the specific case management services indicated on the forms that he turned in to Southwest. It is apparent to this Court that the jury’s question to the lower court was an attempt to discern which of these two instructions the jury was supposed to follow. Shortly after the court issued its supplemental instruction, the jury returned with a guilty verdict on all four counts.

¶ 9. According to Rule 3.10 of the Uniform Rules of Circuit and County Court:

If the jury, after they retire for deliberation, desires to be informed of any point of law, the court shall instruct the jury to reduce its question to writing and the court in its discretion, after affording the parties an opportunity to state their objections or assent, may grant additional written instructions in response to the jury’s request.

The Mississippi Supreme Court has further clarified the procedure that trial courts are to follow after receiving a question from the jury: “Our first recommendation is that the circuit judge determine whether it is necessary to give any further instruction. Unless it is necessary to give another instruction for clarity or to cover an omission, it is necessary that no further instruction be given.” Payton v. State, 897 So.2d 921, 955 (¶ 138) (Miss.2003) (quoting Girton v. State, 446 So.2d 570, 572 (Miss.1984)). We review the court’s decision under an abuse of discretion standard. Mickell v. State, 735 So.2d 1031, 1033(¶ 7) (Miss.1999).

¶ 10. In this case, it was not necessary to give further instruction; rather, the court never should have allowed both Woods’s instructions and the State’s instruction. The fact that the jury appeared to be torn between whether it had to find that Woods failed to provide specific medical services or whether it could find that Woods simply provided services other than the ones contained in his logs indicates the severity of the confusion created by the granting of the two instructions. We note that Woods opposed the granting of the State’s instruction, while the State interposed no objection to Woods’s instructions.

¶ 11. Although it is presumed that the jury follows the instructions it is given, in this case it was impossible for the jury to follow all the instructions it was given, as the phrase “case management services” was never defined for the jury. “A circuit judge has a responsibility to see that the jury is properly instructed.” Duvall v. State, 634 So.2d 524, 526 (Miss.1994) (citing Peterson v. State, 518 So.2d 632, 637-38 (1987)). Therefore, we reverse and remand for a new trial without improper jury instructions.

2. Sufficiency and Weight of the Evidence

¶ 12. Woods complains of both the denial of his motion for a judgment notwithstanding the verdict and the denial of his motion for a new trial. While the former challenges the sufficiency of the evidence convicting Woods, the latter challenges the weight of the evidence used to sustain the conviction. Hales v. State, 933 So.2d 962, 968 (¶¶ 20-21) (Miss.2006). Accordingly, we address each separately below.

Sufficiency of the Evidence

¶ 13. The evidence supporting a conviction is sufficient if it “would support a verdict of guilty beyond reasonable doubt....” Robinson v. State, 940 So.2d 235, 240(¶ 13) (Miss.2006) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). When determining if this is the case, we look at the evidence “in a light most favorable to the State.” Id. at 239-40(¶ 13) (citing McClain, 625 So.2d at 778). Because we look at the evidence in the light most favorable to the State, we must “accept as true all evidence consistent with [Woods]’ guilt, together with all favorable inferences that may be reasonably drawn from the evidence, and disregard the evidence favorable to the defendant.” Id. at 240(¶ 13) (citations omitted).

¶ 14. After reviewing the evidence in this case, we find that the evidence was sufficient to sustain Woods’s conviction. Regardless of the fact that we are reversing due to the improper and contradictory instructions given to the jury, had there been no conflicting jury instructions and no supplemental instruction issued by the court, we would affirm Woods’s conviction. The evidence was clear that Woods claimed to have taken Gates to various health care facilities on the four dates in question, and yet the facilities had no record of ever having seen Gates. Furthermore, although Gates testified that he would sometimes tell Woods that he had seen a doctor when he had not, the records maintained by Woods indicate that he actually spoke with doctors on the dates in question and discussed Gates’s health with them. In light of such evidence, we would find that a reasonable jury could reasonably find Woods guilty beyond a reasonable doubt.

Weight of the Evidence

¶ 15. “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Townsend v. State, 939 So.2d 796, 803(¶ 35) (Miss.2006) (quoting Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005)). A new trial based on the weight of the evidence should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. 803-04(¶ 35) (quoting Bush, 895 So.2d at 844(¶ 18)).

¶ 16. In the absence of the already-discussed conflicting jury instructions, allowing the verdict in this case to stand would not sanction an unconscionable injustice. The evidence presented in Woods’s defense was (1) that he was behind in his record-keeping and may have accidentally falsified his records, (2) Gates’s testimony that he may have lied to Woods about seeing doctors on the dates in question, (3) testimony of several witnesses who claimed that they saw Woods and Gates together on or around the relevant dates in the indictment, and (4) Woods’s claims that there was no evidence regarding whether he intentionally falsified any records. As to all the points above, the jury heard all the evidence in this case and was entitled, as the fact-finder, to draw from it whatever conclusions it found most plausible. See Townsend, 939 So.2d at 802(¶27). Furthermore, points one and four are refuted by Woods’s own handwritten records where he talks about speaking with Gates’s doctors when, in fact, the evidence is clear that Gates did not see any doctors on the dates in the records. Taking all the evidence into account, allowing Gates’s verdict to stand would not “sanction an unconscionable injustice,” at least in the absence of improper jury instructions.

S. Denial of Appeal Bond

¶ 17. The relevant portion of Mississippi Code Annotated section 99-35-115(2) (Supp.2006) states:

(a) A person convicted of any felony, not enumerated in subsection (l), shall be entitled to be released from imprisonment on bail pending an appeal to the Supreme Court, within the discretion of a judicial officer, if the convict shows by clear and convincing evidence that release of the convict would not constitute a special danger to any other person or to the community, and that a condition or a combination of conditions may be placed on release that will reasonably assure the appearance of the convict as required, and only when the peculiar circumstances of the case render it proper.
(b) If bail is denied, the judicial officer shall place the reasons for such denial of record in the case.
(c) For the purposes of this section, “judicial officer” means the trial court or trial judge, a judge of the district in which the conviction occurred, the Supreme Court or a justice of the Supreme Court in vacation of the court.

(emphasis added). The statutory language clearly indicates that the decision whether to issue an appeal bond is at the trial court’s discretion. In this case, the court provided in the record reasons for the denial. Here, the trial court found that, regardless of the fact that Woods was willing to be closely monitored, no amount of monitoring would be sufficient to convince the court that Woods posed no danger to himself or the community at large. The court specifically noted that Woods had been placed on suicide watch, which made the court believe that Woods posed a danger to himself. Rob Rushton, an investigator with the Attorney General’s Medicaid Fraud Control unit, testified that Woods had said that he would shoot himself rather than go to jail. Furthermore, the court noted that it was concerned with letting Woods out on appeal bond because “in view of the area in which he lives, being in the hurricane Katrina disaster area, the fields are ripe for harvest for his expertise.... The situation is going to be a gold mine to folks that wish to practice fraud.”

¶ 18. After reviewing the reasons given by the court, we cannot say that the court abused its discretion in denying appeal bond to Woods.

A Cumulative Error

¶ 19. This issue is moot, as we have found reversible error.

5. Reasonable Juror

¶ 20. Woods’s contention in this issue, that no reasonable juror could have found him guilty beyond a reasonable doubt, has already been addressed in our section detailing the weight and sufficiency óf the evidence.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF FOUR COUNTS OF MEDICAID FRAUD AND SENTENCE OF FIVE YEARS ON EACH COUNT TO RUN CONSECUTIVELY, WITH TWO YEARS TO SERVE ON EACH COUNT AND THREE YEARS SUSPENDED ON EACH COUNT, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.

      . Woods was sentenced to five years on each count, with two years to serve on each count and three years suspended from each count. Furthermore, the court ordered that the first five years of Woods’s post-release supervision is to be served on a reporting, supervised basis, while the remaining seven years are to be served on a non7reporting, unsupervised basis.

      . The quoted language is from Instruction 6. The other instructions were identically worded and merely contained the other three dates referenced in the indictment.

      . Subsection (1) relates to serious offenses, such as those related to children or that involve a sentence of death or life imprisonment. Therefore, subsection (1) does not apply to Woods.


author: BARNES, J., for the court.

text:
    Joseph Chris SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01398-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Joseph Chris Smith, Appellant, pro se.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J., for the court.

¶ 1. Joseph Christopher Smith, pro se, appeals the judgment of the Circuit Court of Lowndes County, Mississippi, dismissing his motion for post-conviction relief. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 14, 2005, Joseph Christopher Smith was indicted on a charge of robbery. The indictment stated that, on November 23, 2004; Smith “did unlawfully, wilfully, and feloniously, take, steal and carry away from the presence of Denise Swain, the personal property of Jr. Food Store, Inc.” Specifically, Smith entered the Jr. Food Store in Columbus, Mississippi, asked the cashier (Swain) for change and, when she opened the cash register, jumped over the counter and forcibly took several hundred dollars from the register. The cashier obtained Smith’s license plate number and, after Smith was later detained by the authorities, identified him through a photograph. On April 12, 2005, the State made a motion to amend the indictment to reflect Smith’s habitual offender status under Mississippi Code Annotated section 99-19-83 (2000). At the plea hearing on May 16, 2005, Smith entered a petition to enter a guilty plea for robbery as a habitual offender waiving his right to trial by jury. It was at this time the State requested that the trial court amend the indictment under 99-19-81, instead of 99-19-83, based on Smith’s guilty plea, which the court granted. The court, in its order, imposed a sentence of fifteen years with no chance for parole and a $10,000 fine.

¶ 3. On May 4, 2006, Smith filed a motion for post-conviction collateral relief pursuant to Mississippi Code Annotated section 99-39-1(2000). The trial court denied Smith’s petition, and it is from this order he appeals, citing several issues. We will consolidate these issues as necessary for the sake of efficiency and clarity.

STANDARD OF REVIEW

¶ 4. “In reviewing a trial court’s decision to deny a defendant’s petition for post-conviction relief, we will not disturb the court’s findings of fact unless clearly erroneous; however, we apply the de novo standard to questions of law.” Buck v. State, 838 So.2d 256, 258(¶ 6) (Miss.2003).

I. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH AN EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF.

¶ 5. In order to obtain an evidentia-ry hearing on an ineffective assistance of counsel claim, such as alleged by Smith, the defendant must state a prima facie claim in his petition to the lower court. Robertson v. State, 669 So.2d 11, 13 (Miss. 1996). “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Hodges v. State, 949 So.2d 706, 716(¶20) (Miss.2006) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In order to prove a claim of ineffective assistance of counsel, a defendant must show that the counsel’s performance was deficient, and that the deficient performance prejudiced the defense. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985) (citing Strickland, 466 U.S. at 693, 104 S.Ct. 2052). Therefore, a “defendant is entitled to an evidentiary hearing if he can raise facts regarding either deficiency of counsel’s conduct or prejudice to the defense.” Schuck v. State, 865 So.2d 1111, 1125(1146) (Miss.2003).

¶ 6. A case where there is a claim of ineffective assistance of counsel “should be decided based on the totality of the circumstances, that is, by looking to the evidence in the entire record.” Garibaldi v. State, 840 So.2d 793, 795(¶4) (Miss.Ct.App. 2003). Smith offers no facts or evidence to the Court to support his claim. The record reflects that Smith signed a very detailed petition to enter a guilty plea, which stated very clearly that he understood and made his plea voluntarily and willingly. In addition, at the plea hearing, Smith told the trial judge that he was satisfied with his lawyer’s advice and understood the implications of pleading guilty.

THE COURT: Now, have you discussed with your lawyers any defenses you might have to the charge?
SMITH: Yes.
THE COURT: Are you satisfied with the advice and help that your lawyer has given you?
SMITH: Yes.

To establish prejudice, Smith “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different.” Davis v. State, 897 So.2d 960, 967(¶ 16) (Miss.2004). There is no evidence in the record or specific facts given in Smith’s brief which would prove that his counsel was less than competent in his representation of Smith. In White v. State, 921 So.2d 402, 406(1112) (Miss.Ct. App.2006), this Court did not find ineffective assistance of counsel when, through counsel’s successful negotiations, the defendant was able to receive a lenient sentence and escape a possible life sentence. Just as in White, Smith’s counsel also negotiated for a lesser sentence and the retirement of outstanding criminal charges, in exchange for Smith’s guilty plea.

¶ 7. We find that Smith failed to raise a prima facie claim of ineffective counsel; therefore, no evidentiary hearing by the trial court was warranted. This claim of error is without merit.

II. WHETHER THE TRIAL COURT ERRED IN ITS ORDER TO AMEND INDICTMENT PURSUANT TO MISS. CODE ANN. SECTION 99-19-81.

¶ 8. The State originally filed a mo-, tion (on April 12, 2005) to amend the indictment under Mississippi Code Annotated section .99-19-83. This statute states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more ‘ in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence■ shall he sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added). However, since Smith agreed to enter a guilty plea on the charge of robbery, the State requested, at the hearing, that the court, upon sentencing, proceed under Mississippi Code Annotated section 99-19-81. That statute, although also a habitual offender statute, is more lenient. It states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced■ to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added).

¶ 9. Smith argues that the State’s failure to make a formal motion in the record to amend the indictment under section 99-19-81 is error and cause for remand and re-sentencing. We find no such error. Rule 7.09 of the Uniform Rules of Circuit and County Court provides:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

Sturgis v. State, 379 So.2d 534, 536 (Miss. 1980) held that “where no objection was made at trial to- the state’s motion to amend an indictment, and the court orally allowed the amendment, and the district attorney made the amendment on the face of the indictment by interlining or otherwise, and the amendment was not jurisdictional, the Court has held objection could not be raised for the first time on appeal that no order allowing the amendment was put on the minutes of the court.”

¶ 10. Smith was made aware of the substance of the amendment to the indictment at the hearing. The court and both attorneys made every attempt to explain the difference between the two statutes and its implications. The trial judge asked Smith on five separate occasions during the hearing if he understood the implications of section 99-19-81 (a mandatory maximum sentence of fifteen years without parole and a $10,000 fine) versus section 99-19-83 (mandatory life imprisonment without parole and a $10,000 fine). The court also made clear to Smith that the application of section 99-19-81 was only a condition of the guilty plea agreement and if he wanted to plead not guilty and go to trial, the State would proceed under 99-19-83. Smith, although a little confused at one point, conferred briefly with counsel, and then proceeded to say unequivocally that he understood the difference and still wanted to enter a plea of guilty.

¶ 11. An amendment of an indictment which charges a defendant as a habitual offender under section 99-19-81, rather than section 99-19-83 (which imposes a greater sentence than section 99-19-81), is an amendment of form rather than substance and is, therefore, permissible since the amendment only affects the sentence and not the underlying offenses for which the defendant was tried. See Nathan v. State, 552 So.2d 99 (Miss.1989). Further, the amendment was not made due to some original error on the part of the State but as a result of a lenient plea agreement. We find no error in the amendment.

¶ 12. Smith further contends that the State’s motion to amend indictment, filed on April 12, 2005, was defective and should not have been granted. Specifically, the motion to amend indictment listed a prior conviction in Cause #94-CR-3947A for stealing a motor vehicle, for which Smith was sentenced March 27, 1995, to serve a term of five years. Based on the record, this information was erroneous. Smith was actually convicted of attempt to steal a motor vehicle in that specific instance. However, the classification of the crime as a felony and the sentencing date and terms in the indictment were correct. The Mississippi Supreme Court has held, “prior offenses used to charge the defendant as an habitual offender are not substantive elements of the offense charged.” Wilson v. State, 935 So.2d 945, 949(¶ 12) (Miss. 2006) (quoting Swington v. State, 742 So.2d 1106, 1118(¶ 44) (Miss.1999)). While we agree that there was a minor omission in the motion, Smith was nonetheless convicted of a felony and still qualified as habitual offender under section 99-19-81. Smith was provided adequate notice that the State would seek habitual offender status, and the State provided Smith’s counsel records of the prior convictions. We find that the evidence presented by the State satisfied the requirements of Mississippi Code Annotated section 99-19-81 and did not unlawfully enhance Smith’s penalty-

ill WHETHER SMITH’S GUILTY PLEA WAS INVOLUNTARY AND AFFORDED HIM NO OPPORTUNITY TO DEFEND FORMER CHARGES AGAINST HIM.

¶ 13. “A plea is deemed ‘voluntary and intelligent’ only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). Here, Smith is asserting that his plea was involuntarily given as he had no opportunity to confront witnesses and evidence on the charges, specifically the charge of attempt to steal a motor vehicle, which led to his classification as a habitual offender. As we have already stated, a defendant’s prior offenses in a habitual offender case are not substantive elements of the claim. Wilson 935 So.2d at 949.

¶ 14. Upon review of Smith’s claims of error, we find that the trial court’s denial of post-conviction relief was warranted, and we affirm.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Smith was previously convicted on three counts: (1) a conviction in the Circuit Court of St. Louis County, Missouri, on June 26, 1997, for stealing-felony for which Smith was sentenced to serve seven years; (2) a conviction in the Circuit Court of St. Louis County, Missouri, on March 27, 1995, of attempt to steal a motor vehicle with a sentence of five years; and (3) a conviction on August 7, 1995, in the Circuit Court of Madison County, Illinois, for receiving, possessing, or selling a stolen motor vehicle.

      . Smith also had pending cases in Clay County, Mississippi, under several counts which included one for grand larceny, one for robbery and two simple assaults on law enforcement officers. As a condition of the plea negotiation in this case, Smith pled guilty to the grand larceny in Clay County, and all other counts were retired. Under this plea negotiation, Smith received five years in the custody of the Mississippi Department of Corrections followed by five years of post-release supervision to run consecutive to the sentence in this case.