author: ROBERTS, J.,

text:
    Jeff STEWART, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00533-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.

      William C. Bristow, Tupelo, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On February 23, 2005, Jeff Stewart was convicted in the Lee County Circuit Court of conspiracy to manufacture methamphetamine and sentenced to serve twenty years, with twelve years suspended, in the Mississippi Department of Corrections. Aggrieved, Stewart appeals and asserts two errors: (1) the circuit erred in prohibiting him from calling witnesses to testify that the co-conspirator signed a document recanting his statement to law enforcement personnel, and (2) the circuit court erred in denying his motions for a directed verdict and judgment notwithstanding the verdict. Finding that Stewart failed to preserve the first issue for appellate review, and that the verdict was neither against the weight nor sufficiency of the evidence, we affirm.

FACTS

¶ 2. On September 4, 2003, Officer John Moses, a narcotics officer with the Tupelo Police Department, received a telephone call from a confidential informant. That confidential informant advised Officer Moses that a man, later identified as Adam Johnson, purchased a large number of lithium batteries at a Wal-Mart. Agent Moses and another police officer located the suspect in the Wal-Mart parking lot, followed him, and ultimately stopped him. Although Johnson denied doing anything illegal, the officers noticed Red Devil Lye and dry ice in his vehicle. After further questioning, Johnson said Jeff Stewart loaned him the vehicle and asked him to pick up the lithium batteries, Red Devil Lye and dry ice so they could manufacture methamphetamine.

¶ 3. From Johnson, Agent Moses obtained a receipt for the lithium batteries. That receipt showed that Johnson paid for the lithium batteries with Stewart’s debit card. Agent Moses confronted Stewart with Johnson’s allegations. Stewart admitted he ordered the lithium batteries, but he said they were for his remote control. Stewart further admitted to Agent Moses that he ordered the dry ice, but intended to use it for a camping trip. Additionally, Agent Moses testified that in a subsequent interview, Stewart admitted that he intended to use the dry ice to manufacture methamphetamine. However, that statement was neither recorded nor reduced to writing.

ANALYSIS

I. Did the circuit court err when it denied admission of the document in which Johnson purportedly recanted his previous statement?

¶ 4. At trial Johnson testified that Stewart asked him to take his vehicle and pick up the precursors for the purpose of manufacturing methamphetamine. On cross-examination, Stewart’s counsel confronted Johnson with a document. It contained what Stewart purported to be Johnson’s signature. That document contained a written statement that Johnson bought the lithium batteries for his camera, the Red Devil Lye for work, and the dry ice for camping. Additionally, the document stated that Stewart did not know what methamphetamine was, and that he had no plan to manufacture it. The document also contained two additional purported signatures: Jeff Stewart’s, who may or may not have been the same person as the appellant, and Helen Stewart’s, who is otherwise unidentified in the record. All signatures are dated August 8, 2004, which was nearly a year after Johnson’s initial statement to Officer Moses on September 4, 2003.

¶ 5. During cross-examination, counsel for Gilbert, William Bristow, asked Johnson, “[w]ell, since we’ve been talking about lies throughout your testimony, do you know of any reason why if these folks [Jeff and Helen Stewart] come to testify that they saw you sign that document, do you know why they would be making that lie?” Johnson replied, “No, sir.” That exchange concluded Johnson’s cross-examination. The State rested, and the jury was escorted from the courtroom. Stewart’s counsel then moved for a directed verdict, which the circuit court denied. Stewart’s counsel then made the following proffer:

This will be in the form of a proffer as well. But during the break, I spoke with Mr. Farris [the prosecutor] about the testimony we heard from Mr. Adam Johnson and specifically his answer to my questioning about whether or not he signed a statement in August of 2004.
For purposes of the record, that 'statement, in effect, is a recanting of the written statement signed by Mr. Johnson at Agent Moses’ office on September 4th, 2003. I understand this is a collateral attack on the witness, but I wanted to ask for the court’s ruling so that it will help me decide on my order of witnesses, if any, in the case in our case in chief.
Mr. Farris replied:
Ma’am, the State would object to such testimony because it is, in fact, a collateral attack on a witness. He had the witness on the stand subject to cross-examination. The witness gave him the answer. He did not like the answer, but he went as far as he felt like he should go, and anything further would be a collateral attack.

The circuit court allowed the document to be introduced for identification only, and ruled:

I believe it [the document] would be a collateral attack on a witness, and Mr. Bristow, I don’t know of any way under the rules or procedure that you could go about doing that. I think if I allowed it, it would be inappropriate. I’m not going to allow you collaterally attack that witness. You are bound by the answer the witness gave you on cross-examination.

Mr. Bristow then stated, ‘Yes, ma’am. And with that ruling, I will advise the Court that when the jury returns we will announce that we do rest.”

¶ 6. On appeal, Stewart argues that testimony concerning whether or not Johnson signed the document in which he recanted his statement and directly contradicted his sworn testimony was not a collateral attack. We agree.

¶ 7. Mississippi Rule of Evidence 611(b) provides, “[c]ross-examination shall not be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” Trial courts have discretion in determining if a question is' so far afield'from the facts of the case to be irrelevant. Hosford v. State, 560 So.2d 163, 165 (Miss.1990). However, where evidence of a collateral fact goes directly to whether a witness testified truthfully, that evidence is admissible and a circuit' court that denies its admission abuses its discretion. E.g., Clark v. State, 514 So.2d 1221, 1223-24 (Miss.1987). Furthermore, according to Mississippi Rule of Evidence 613(b), when a party seeks to introduce extrinsic evidence of a prior inconsistent statement, the witness must be shown the evidence and be given an opportunity to explain or deny that the evidence is what it is purported to be. In this case, Johnson had that opportunity.

¶ 8. However, Stewart did not directly attempt to call either Jeff or Helen Stewart. A fair reading of the record could indicate that having incorrectly found the document was “collateral,” the circuit court would undoubtedly have found sponsoring testimony inadmissible. However, Stewart failed to proffer what would have been the testimony of one or both of the witnesses. Mississippi Rule of Evidence 103(a)(2) requires an offer of proof of the substance of the evidence. The question Stewart seeks to raise on appeal is whether the circuit court erred in not allowing the jury to hear what Jeff and/or Helen Stewart had to say concerning whether Johnson signed the document. Nothing in the record indicates what Jeff or Helen Stewart’s testimony would have been. What Stewart sought to proffer was the document itself, rather than what the testimony would be. The need for a proffer is not merely academic. Assuming one or both of the witnesses would have agreed to testify, either they or Johnson would have been committing perjury. This Court cannot assume something outside of the record. See e.g. Brown, v. State, 338 So.2d 1008, 1010 (Miss.1976); Knight v. State, 360 So.2d 674, 678 (Miss.1978). Therefore, there is no basis on which to find that the circuit court had an opportunity to determine whether Jeff or Helen Stewart would have been prepared to swear under oath that Johnson signed the document. As such, we find that the issue was not preserved for appellate review.

II. Was the evidence sufficient to convict Stewart and was the jury verdict against the overwhelming weight of the evidence?

¶ 9. A motion for a JNOV, and a request for a peremptory instruction challenge the legal sufficiency of the evidence. Jefferson v. State, 818 So.2d 1099, 1110— 11(¶ 30) (Miss.2002). Appellate review is limited to whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed, and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843(¶16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). After viewing the evidence in the light most favorable to the prosecution, the evidence is sufficient if any rational trier of fact could have found the defendant committed each element of the crime beyond a reasonable doubt. Id. Here, even assuming that the Jeff and/or Helen Stewart had testified, the jury was still left with Agent Moses’ testimony that there both was a receipt showing Stewart had purchased the lithium batteries with his debit card, and that Stewart admitted to ordering the dry ice. Moreover, Agent Moses also testified to a subsequent, though unrecorded, statement by Stewart in which he admitted that the dry ice was intended to be used to manufacture methamphetamine.

¶ 10. As for the weight of the evidence, “[a] motion for a new trial seeks to vacate the judgment on grounds related to the weight, not sufficiency, of the evidence.” Verner v. State, 812 So.2d 1147(¶ 6) (Miss.Ct.App.2002). “A motion for a new trial is addressed to the trial court’s sound discretion.” Fleming v. State, 732 So.2d 172(¶ 37) (Miss.1999). We may only reverse the circuit court’s decision when we are convinced that the circuit court abused its discretion when it overruled Stewart’s motion for a new trial. Smith v. State, 868 So.2d 1048(¶ 11) (Miss.Ct.App.2004).

¶ 11. “Matters regarding the credibility and weight to be accorded 'the evidence are to be- resolved by the jury.” Vemer, 812 So.2d at (¶ 7). “Where there is conflicting testimony, the jury is the judge of the credibility df the witnesses.” Bessent v. State, 808 So.2d 979(¶21) (Miss.Ct.App.2001). Even the testimony of' a single uncorroborated witness can sustain a conviction even though there may be more than one witness testifying to the contrary. Verner, 812 So.2d at (¶ 7).

¶ 12. Accordingly, “[t]his Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Smith v. State, 868 So.2d at (¶ 11). Rather, “this Court must consider all the evidence, not just that supporting the case for the prosecution, in the light most consistent with the verdict, and give the State all favorable inferences which may be drawn from that evidence.” Fleming, 732 So.2d at (¶ 38).

¶ 13. Here, even assuming that the Jeff and/or Helen Stewart had testified, the jury was still left with Agent Moses’ testimony that there both was a receipt showing Stewart had purchased the lithium batteries with his debit card, and that Stewart admitted to ordering the dry ice. Moreover, Agent Moses also testified to a subsequent, though unrecorded, statement by Stewart in which he admitted that the dry ice was intended to be used to manufacture methamphetamine.

¶ 14. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT OF CONVICTION OF CONSPIRACY TO MANUFACTURE METHAMPHETAMINE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWELVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.

      . The circuit court's decision to not allow the document itself into evidence was not error. Mississippi Rule of Evidence 901 provides, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Calling a witness with first hand knowledge of a document is one such means of introducing the document. M.R.E. 901(b)(1). While it is not necessary that the sponsoring witness be the author of the document, it is necessary that the witness have first hand knowledge that the document is that which it is purported to be. Kearley v. State, 843 So.2d 66(¶ 19) (Miss.Ct.App.2002). In this case, Johnson denied taking part in making it, and no witness with first hand knowledge was called.


source: Caselaw Access Project

license: Public Domain

text:
    David BELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00513-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.

      Imhotep Alkebu-Lan, Jackson, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinehcliff, attorney for appellee.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On February 4, 2004, a jury sitting before the First Judicial District of the Hinds County Circuit Court found David Bell guilty of murdering Charity Ishman. Consequently, the trial judge sentenced Bell to life imprisonment in the custody of the Mississippi Department of Corrections. Posttrial, Bell filed unsuccessful motions for a new trial and for a judgment notwithstanding the jury’s verdict. Aggrieved, Bell appeals and raises the following issues listed verbatim:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT HELD THE UNAVAILABILITY HEARING IN BELL’S ABSENCE.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING BELL HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT PERMITTED THE LAY WITNESS TO TESTIFY TO HIS OPINION THAT INDIVIDUALS WHO DID NOT TESTIFY AT TRIAL WERE TELLING THE TRUTH.
IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED BELL’S MOTION FOR A DIRECTED VERDICT.
V. THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING RELEVANT EVIDENCE FAVORABLE TO BELL.
VI. THE CUMULATIVE IMPACT OF THE TRIAL COURT ERRORS VIOLATED BELL’S CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

Finding that the circuit court erred when it permitted the State’s introduction of evidence contrary to Bell’s constitutional right to confront the witnesses against him, we reverse and remand to the circuit court for a new trial.

FACTS

¶2. Around 9:00 a.m. on August 14, 2000, Christopher Thompson found two very young girls at the front door of his home in Jackson, Mississippi. The two young girls, Adrienne and Ashley, lived next door with their mother, Charity Ish-man. The girls, then aged four and five, asked Mr. Thompson to take them to school. Mr. Thompson asked the girls where he could find their mother. They explained that their mother could not drive them to school because she was dead. Alarmed, Mr. Thompson walked next door with the girls. Mr. Thompson found Charity dead on her living room floor. Mr. Thompson immediately took Adrienne and Ashley back to his house and called the Jackson Police Department.

¶ 3. Officer Jeremiah Jones of the Jackson Police Department was the first law enforcement officer on the scene. Officer Jones arrived at approximately 9:17 a.m. Officer ’ Jones found Charity sitting slumped over in the living room floor. Officer Jones went through Charity’s house and made sure that Charity’s killer was not still there. After Officer Jones cleared the house, an ambulance arrived and the attendants verified that Charity was dead. Then, Officer Jones called his supervisor, the mobile crime lab, homicide detectives, and the coroner. Afterwards, Officer Jones started the initial investigation of the crime scene. Officer Charles Keys arrived shortly after Officer Jones. Together, they set up a perimeter around the crime scene and made sure that no one tampered with or otherwise disturbed any potential evidence.

¶ 4. Detective A Taylor arrived next. After he spoke with Officers Jones and Keys, Detective Taylor talked with Mr. Thompson. Mr. Thompson told Detective Taylor that he discovered Charity when he went next door with Adrienne and Ashley. Detective Taylor then spoke with Adrienne and Ashley. Adrienne, the younger of the two girls, told Detective Taylor what happened to her mother, albeit in the language of a four-year-old. Adrienne also indicated that her father, David Bell, killed Charity. Adrienne elaborated.

¶ 5. According to Adrienne’s version of the events of the previous night, (a) Charity was dead and had “blood on her back;” (b) Bell visited Charity and asked her for money; (c) Charity emptied her purse out on the floor; (d) Bell pushed Charity down over a table, broke the table, and then tried to fix the table; (e) Bell stepped on Charity; (f) Bell broke a mirror in Charity’s bathroom;-' (g) Bell told her and Ashley to go to bed, that he would be back, but he never came back; (h) Bell used a small knife to -put blood on her mother’s back; and (i) Bell broke the front door when he left. After Detective Taylor spoke with the girls, he asked Sergeant Geraldine Green to drive the girls to police headquarters.

¶ 6. Before Sergeant Green drove the girls to police headquarters, Sergeant Green interviewed Adrienne and Ashley. Sergeant Green asked the girls questions as they sat in the front seat of her patrol car. Sergeant Green wrote down Adrienne’s and Ashley’s responses. According to Sergeant Green, Adrienne told her that she was asleep in Charity’s bed when she heard Bell and Charity arguing. She heard Bell ask Charity, “[A]re you going to give me the money.” Adrienne then heard Charity say, “I have to take my kids to school.” When Adrienne got out of bed, she went into the living room, and saw Charity lying on the floor with “blood on her back.” Adrienne also told Sergeant Green that she saw her father and that he wore a black tee shirt and a hospital mask. Ashley, the older of the two girls, told Sergeant Green that Adrienne woke her up and that she got out of bed, walked into the living room, and saw Charity lying on the living room floor with blood on her back. Sergeant Green then drove the girls to police headquarters.

¶ 7. Detective James Roberts, a crime scene investigator, was responsible for collection, preservation and documentation of evidence gathered from Charity’s house. Once he arrived, he photographed the area. Detective Roberts observed that pieces of Charity’s front entry door facing were lying on the floor and the dead bolt was exposed. Detective Roberts concluded that Charity’s door had been kicked in or pushed in. To Detective Roberts, that indicated that Charity’s killer forced his or her way into Charity’s home.

¶ 8. Detective Roberts also noticed that Charity had been stabbed repeatedly and that she had scratches and bruises on her neck indicative of her being choked. Additionally, Detective Roberts observed that: (a) Charity’s coffee table was overturned; (b) shirt buttons were on the floor; (c) a purse was lying on the floor with the contents dumped out; and (d) Charity’s bathroom mirror was broken. Detective Roberts concluded that Charity struggled with her killer. Though he found latent fingerprints on Charity’s bathroom mirror, those fingerprints were not sufficient to produce a positive identity match.

¶ 9. Meanwhile, Bell happened to visit the crime scene. Around 9:30 a.m., Bell walked up to Officer Keys and introduced himself. Bell told Officer Keys that Charity was his ex-girlfriend. Officer Keys contacted Detectives Taylor and Roberts and told them that Bell was at the scene. The detectives told Officer Keys to put Bell in his patrol car so they could question him. Officer Keys put Bell in his patrol car. Approximately ten to fifteen minutes later, at the request of the detectives, Officer Keys took Bell to police headquarters.

¶ 10. Later that day, Detective Taylor interviewed Bell. Bell gave a voluntary oral statement, but refused to commit that statement to writing. According to Detective Taylor’s recollection of Bell’s oral statement, Charity was Bell’s ex-girlfriend and the mother of two of his seven children. Further, Bell had not seen Charity since Father’s Day, approximately two months prior to the date of his statement. Bell also said that Charity was stalking him and obsessed with him.

¶ 11. Bell explained his presence at the crime scene when he told Detective Taylor that he came by Charity’s house because he heard she had been killed. Bell also gave an alibi. According to Bell, he did not see Charity on the day before she was found murdered. Instead, he spent the day attempting to visit various unnamed people and eventually fell asleep on his couch.

¶ 12. Around noon, Detectives Rozerrio Camel, Taylor, Eugene McDonald, Will Gardner and Sergeant Green interviewed Adrienne and Ashley for the third time. This time, Tahona Williams, Adrienne’s and Ashley’s godmother, was with the girls. For the most part, Detective Camel and Detective Taylor asked the questions. Ms. Williams occasionally asked questions as well.

¶ 13. During that third interview, Adrienne again said that Charity “got blood on her back.” Detective Taylor then asked Adrienne how Charity got blood on her back. Adrienne responded, “my daddy.” Detective Taylor next asked Adrienne how she knew that Bell put blood on Charity’s back. Adrienne responded, “ ’[clause I saw him.” When asked how Bell put blood on Charity’s back, Adrienne said, “[t]hey both was fighting.” Adrienne reiterated that Charity and Bell were fighting because Charity would not give him any money. Adrienne also repeated her earlier statements regarding the broken coffee table, broken bathroom mirror, and the fact that Charity emptied her purse.

¶ 14. The detectives also showed the gilds a photo lineup. Neither Adrienne nor Ashley could identify Bell. According to Officer Camel, the photo in the lineup was an older photo of Bell. In that older photo, Bell was clean-shaven. In the photo taken the day he was arrested, Bell had a beard and mustache. However, Adrienne again indicated that Charity’s killer wore a surgical mask:

Camel: You know anybody on this picture? Why did you point to picture #3 and tell me that don’t look like him, like your daddy? Huh?
Adrienne: He don’t look like all of them.
Camel: Huh?
Adrienne: He don’t look like all of them.
Taylor: Which one he look like?
Camel: Which one he look like?
Adrienne: He have a (inaudible) on his mouth like a doctor.
Camel: Like a what?
Adrienne: Like a doctor.
Camel: Okay, just imagine that he ain’t got a mask on his mouth. You seen your daddy ... have you seen your daddy wearing a mask? Have you ever seen him without a mask on?
Adrienne: (inaudible)
Camel: Huh? Have you ever seen him without the mask on?
Adrienne: I saw him and my mama told him to pull it off.
Camel: Did you see him when he took it off?
Adrienne: He didn’t take it off.

¶ 15. On May 13, 2003, the State filed a motion to allow Adrienne’s and Ashley’s statements into evidence through hearsay testimony. That is, the State asked the circuit court to find the girls unavailable pursuant to M.R.E. 804(a)(6) and to find that the various police officers who interviewed them could testify as to what Adrienne and Ashley told them under M.R.E. 803(2), the “excited utterance” exception to the hearsay rule. On July 2, 2003, Bell responded and argued that the circuit court should not allow the officers to testify to the girls’ hearsay testimony. The circuit court considered the State’s motion at a hearing on Friday, July 11, 2003.

¶ 16. Bell did not attend that hearing. According to Bell’s trial attorney, Tom Royals, Mr. Royals notified Bell of the hearing when he sent Bell a letter on the Wednesday before the hearing. Mr. Royals further explained that he also tried to contact Bell by phone, but was unsuccessful. Mr. Royals did not know where Bell was at that time. The circuit court began to reset the matter for the following Friday, but Dr. Angela Herzog, the clinical psychologist who would testify as to whether it would be in the girls’ best interests to testify, explained that she would not be able to attend the rescheduled hearing. To accommodate all parties, the circuit court decided to take up the issue of whether the girls were “unavailable” pursuant to M.R.E. 804(a)(6). However, the circuit court also concluded that Bell should not be absent from the hearing on whether the various police officers could testify as to the girls’ hearsay statements under the excited utterance exception. Consequently, the circuit court rescheduled the hearsay hearing for the following Friday.

¶ 17. According to Dr. Herzog:
It would have a profoundly devastating effect upon both of the girls to be required to discuss the issue of their mother’s death, especially in context of any questions as to the causes of the mother’s death. It’s difficult for them to do that in a clinical setting, in a casual setting, and it has been impossible thus far for them to do that in a setting — in this courtroom setting when the father was not present, let alone when the father would be present.

During Mr. Royals’ cross-examination, Dr. Herzog further explained her conclusion. Dr. Herzog initially interviewed Adrienne and Ashley in her office. In attempting to reach a professional conclusion on the potential psychological harm to the girls, should they testify, Dr. Herzog had the girls visit the courtroom at a time when no proceedings were taking place. Dr. Her-zog further explained:

This was a process that originated in my office of developing a capacity on the children to even talk about this because of their apprehension and distress. For the first couple of times that I met with them it took hours just to develop a rapport with them because these children were so shut down on this issue.
So we did a desensitization paradigm to try to approach the courtroom setting. And we did eventually get them in here, and they were unable to physically — -one of them could get into this booth [the witness chair]. The other one we could not pry into this booth. And I hate to sound as though we were trying to force the child, but we had everybody in place to try to encourage this child.
We modeled for this child to try to desensitize her to the horror of talking about this incident in this room. And she — one of them was unable to do it totally, and the other one would just sit here but would not answer questions. And these children were very distressed just by an attempt to approximate the situation.

In Dr. Herzog’s professional opinion, it would be damaging to the girls if they were to have to testify that they witnessed their father murder their mother. As such, the circuit court determined that the girls qualified as unavailable witnesses pursuant to M.R.E. 804(a)(6).

¶ 18. On July 18, 2003, the circuit court conducted the hearsay portion of the hearing. The State sought to introduce the girls’ statements through the testimony of the Jackson police officers. Following proffered testimony and argument, the circuit court held that the girls’ statements to various Jackson police officers would be admissible under M.R.E. 803(2)-the “excited utterances” exception to the hearsay rule.

¶ 19. Trial on the matter began on February 9, 2004. The State called Officer Jones, Detective Roberts, Paul Trussell, Jr., Director of Human Resources at the University of Mississippi Medical Center where Charity was employed, Cephis Hog-sett, who testified that he saw Bell in the vicinity of Charity’s house the night she was murdered, Officer Keys, Lakeeta McGee, a longtime friend of Charity’s, Detective Taylor, Rozerrio Camel, and Dr. Steven Hayne, an expert witness certified in anatomic pathology, clinical pathology, forensic pathology, and forensic medicine.

¶20. Dr. Hayne performed Charity’s autopsy. Dr. Hayne found that Charity suffered twelve stab wounds. Eleven of those stab wounds were clustered within a space of three inches on the left side of Charity’s chest. Based on the precise clustering of those eleven wounds, Dr. Hayne opined that the stab wounds were inflicted in rapid succession. The twelfth stab wound was to Charity’s neck. Dr. Hayne also found scrapes, scratches, and bruises on Charity’s neck, consistent with injuries from being choked.

¶21. Dr. Hayne initially thought the stab wound to Charity’s neck was the cause of death, but after an internal examination, Dr. Hayne concluded that the cause of Charity’s death was two of the stab wounds to Charity’s chest. Those two stab wounds went “through the chest wall, cutting the cartilage of the chest wall, not the bone tissue of the rib. And as the instrument entered the chest cavity it actually plunged into the heart, producing extensive bleeding from two stab wounds of the heart.” The State rested after Dr. Hayne testified.

¶ 22. During his case-in-chief, Bell called Sergeant Green, Tonya Chandler— who testified that she frequently saw a male at Charity’s house and that the male she saw was not Bell. Andre Harris, Bell’s first cousin, Brad Bell, Bell’s brother who corroborated Bell’s alibi, and finally, Bell himself took the stand.

¶ 23. Bell testified that he lived with his mother and his brother. Further, Bell testified that, on the day before Charity was found murdered, he went to his grandmother’s house around 7:30 p.m. and only stayed about five minutes. He got back to his house around 8:15 p.m. He watched a movie and fell asleep. He did not wake up until his mother got back from a trip to Michigan. He then left his house around 10:15 p.m. to take some shoes to someone named Shantay at the corner of Watkins and Forest Avenue. He left Shantay’s house and stopped at a Chevron and bought a beer. Then he went back to his house around 10:45 or 11:00 p.m. He did not leave his house the rest of the night.

¶ 24. The next morning, he took another one of his children to school. He then went to his grandmother’s house around 8:15 a.m. He had been there thirty or forty minutes when he found out about Charity. He did not say who told him about Charity, though on cross-examination he testified that, around 8:40 a.m., “Peaches called Kenny and Kenny told me.” By Bell’s testimony, he heard about Charity’s murder before Officer Jones, the first responder at the scene, received the call from dispatch. When he heard about Charity, Bell drove to Charity’s house, walked up to Officer Keys, and asked Officer Keys if it was true that Charity was dead. Bell adamantly denied that he killed Charity. Bell rested after he concluded his testimony.

¶ 25. On rebuttal, the State called Dr. Herzog. Dr. Herzog testified about her professional relationship with Adrienne and Ashley. Additionally, Dr. Herzog testified as to Adrienne’s and Ashley’s statements regarding the fact that Bell killed Charity.

¶ 26. Following deliberations, the jury convicted Bell for murder. Posttrial, Bell filed combined motions for a new trial or, alternatively, for a judgment notwithstanding the verdict. The circuit court denied both of Bell’s posttrial motions. Bell appeals.

ANALYSIS

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

HELD THE UNAVAILABILITY HEARING IN BELL’S ABSENCE.

¶ 27. This issue stems from Bell’s absence at the pre-trial unavailability hearing. Bell claims that, because he was absent from the unavailability hearing, we should find reversible error. According to Bell, his absence at the unavailability hearing amounted to a violation of his right to confront witnesses against him. Additionally, Bell cites Chase v. State, 699 So.2d 521 (Miss.1997) and its holding that “a criminal defendant is guaranteed the right to be present at any stage of the criminal proceedings that is critical to the outcome if his presence would contribute to the fairness of the procedure.” Id. at 537 (internal quotations omitted).

¶ 28. The State cites Mack v. State, 650 So.2d 1289 (Miss.1994) and argues that, pursuant to Mack, Bell had no constitutional right to be at a hearing that dealt solely with legal issues and, were he present, Bell would not have contributed to the fairness of the procedure. Id. at 1307. Further, the State submits that Bell suffered no prejudice as a result of his absence. We agree.

¶29. From the record, it is clear that the trial judge was cognizant of Bell’s rights. The trial judge, sua sponte, rescheduled the hearing regarding whether hearsay evidence of Adrienne’s and Ashley’s statements would be admissible through the police officers and detectives who interviewed them. What is more, the trial judge only heard argument and testimony regarding whether Adrienne and Ashley would be “unavailable” to testify within the strict legal meaning of the term. That entailed consideration of whether it would be harmful to Adrienne and Ashley if they were to testify in the presence of Bell, their father. The issue hinged solely on Dr. Herzog’s testimony and her professional opinion. In the context of that hearing, focused solely on the legal determination of the girls’ “unavailability,” Bell would have had no means to contribute to the fairness of the procedures involved in the unavailability hearing. Bell suffered no prejudice due to his failure to attend that hearing — his attorney vigorously cross-examined Dr. Herzog, examined Dr. Herzog’s qualifications, and objected to Dr. Herzog’s testimony. We find no merit to Bell’s first contention.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING BELL HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

¶ 30. In this issue, Bell claims that the circuit court denied him his right to confront the witnesses against him — in particular, his daughters. According to Bell, when the officers testified under the excited utterances exception because Adrienne and Ashley were legally “unavailable,” he had no prior opportunity to cross-examine them or otherwise confront his accusers. Bell submits that reversible error is the result.

¶ 31. The admission of testimonial evidence is within the sound discretion of the trial court, which will be found in error only if the ruling was an abuse of discretion. Lynch v. State, 877 So.2d 1254, 1281(¶ 86) (Miss.2004). The trial court must exercise its discretion within the confines of the rules of evidence. Austin v. State, 784 So.2d 186, 193(¶ 23) (Miss.2001). Any error in the admission or exclusion of evidence is not grounds for reversal unless the error adversely affected a substantial right of a party. Lynch, 877 So.2d at 1281 (¶ 86).

¶ 32. As discussed, neither Adrienne nor Ashley testified at trial because they were found “unavailable” pursuant to M.R.E. 804(a)(6). Rule 804(a)(6) states that a child witness is “unavailable” to testify if there is a “substantial likelihood that the emotional or psychological health of the witness would be substantially impaired if the child had to testify in the physical presence of the accused.” Since they were unavailable, and the State had no direct evidence of Bell’s guilt, the State sought to introduce Adrienne’s and Ashley’s statements through other witnesses. Still, the State had to circumvent the hearsay rule to introduce the girls’ testimony.

¶ 33. Under Rule 801(c) of the Mississippi Rules of Evidence, “[hjearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (internal quotations omitted). “Hearsay is not admissible except as provided by law.” M.R.E. 802. At the hearing on the matter, the circuit court held that Adrienne’s and Ashley’s hearsay statements were admissible according to the “excited utterance” exception in M.R.E 803. Under the “excited utterance” exception, “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not excluded by the hearsay rule. M.R.E. 803(2). We mention this for discussion purposes only, as the outcome of this analysis does not depend on whether or not Adrienne’s and Ashley’s statements were proper excited utterances. Rather, our analysis depends on whether Adrienne’s and Ashley’s statements were “testimonial.”

¶ 34. Bell’s trial began on February 9, 2004. On February 12, 2004, the jury found Bell guilty of murder. The United States Supreme Court handed Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) down on March 8, 2004 — nearly a month after Bell’s conviction. Thus, at the time of Bell’s conviction, Crawford had not yet been decided. Bell filed his notice of appeal on March 9, 2004.

¶ 35. We must determine whether we should apply Crawford retroactively. Presently, there is no definitive answer or precedent in Mississippi regarding the retroactive application of Crawford to direct appeals, such as this one, or to collateral appeals. The United States Supreme Court has held that “a new rule for the conduct of criminal prosecutions that is grounded in the United States Constitution applies retroactively to all cases, state or federal, pending on direct review or not yet final.” Powell v. Nevada, 511 U.S. 79, 84, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). In People v. Martinez, 348 Ill.App.3d 521, 284 Ill.Dec. 546, 810 N.E.2d 199, 211 (2004), the Illinois Court of Appeals held that Cmoford applies retroac tively to cases pending on direct review at the time the rule in Crawford was declared. The Michigan Court of Appeals reached the same result in People v. McPherson, 263 Mich.App. 124, 687 N.W.2d 370, 377 fn. 10 (Mich.App.2004). In Clark v. State, 891 So.2d 136(¶32) (Miss.2005), our supreme court did not discuss the retroactive effect of Crawford, yet the Clark court analyzed the substantive issue and found harmless error. The Clark court’s application of Crawford further suggests that Crawford applies retroactively to cases on direct appeal. Applying the precedent in Powell and Clark, as well as the determinations from the foreign state courts, we find that Crawford applies retroactively to direct appeals in Mississippi. We turn to the substance of the issue on appeal.

¶ 36. In Crawford, the United States Supreme Court held that “the Confrontation Clause of the Federal Constitution’s Sixth Amendment bars the admissibility of out-of-court testimonial statements by an unavailable witness offered in a criminal trial to' prove the truth of a matter asserted (also known as hearsay) unless the defendant has had a prior opportunity to cross-examine the witness about the statement.” Frazier v. State, 907 So.2d 985(¶36) (Miss.Ct.App.2005). As a result, “testimonial hearsay must be exposed to confrontation by way of cross-examination prior to reaching admissible status, while non-testimonial hearsay does not trigger the need for confrontation to be admissible.” Id. at (¶ 39). “Thus, our application of Crawford to the present facts depends upon a determination of whether the evidence admitted is ‘testimonial.’ ” Id. Crawford declined to provide a firm definition of “testimonial” evidence. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Even so, Crawford did provide examples of “testimonial” evidence. Id. According to Crawford, prior testimony at a preliminary hearing, before a grand jury, or at a former trial and prior testimony during police interrogations, are all examples of “testimonial” evidence. Id.

¶ 37. While not directly on point to the present matter, in Elkins v. State, 918 So.2d 828 (Miss.Ct.App.2005), the defendant argued that, pursuant to Crawford, a trial court violated his right to confront the witnesses against him when it allowed a witness to testify under the tender years exception. Id. at (¶ 11). This Court held that Crawford did not apply to the facts in Elkins because the hearsay declarant testified at trial and was subject to cross-examination. Id. at (¶ 12).

¶ 38. Here, the facts relating to the hearsay analysis are undisputed. Adrienne and Ashley were legally unavailable to testify during trial. Numerous police officers testified as to what Adrienne and Ashley said to them on the morning that Charity was found murdered. Those police officers went to Charity’s house only after Mr. Thompson reported finding Charity murdered. Adrienne and Ashley gave their statements as a result of questions asked by police officers. The police officers asked those questions with the intent to surmise the events surrounding Charity’s murder. The act of questioning, sometimes termed “interrogation,” was in the strict context of the investigation. There can be no doubt that the girls’ hearsay statements, offered through other witnesses because the girls were unavailable, qualifies as prior testimony made during police interrogations. Likewise, there can be no doubt that Bell never had the opportunity to cross-examine his daughters and he could not do so through cross-examination of the police officers following their hearsay testimony gleaned from police interrogations. Therefore, Bell had no opportunity to cross-examine the witnesses against him. Such evidence is one of the few specific examples of prohibited evidence mentioned in Crawford. Thus, we are of the opinion that the hearsay testimony at issue resulted in a violation of Bell’s constitutional rights. The State produced no other eyewitness testimony of the violent death of Charity. Bell gave no confession and testified before the jury that he did not commit the murder. Admission of this constitutionally prohibited hearsay can hardly be viewed as harmless error. Accordingly, we reverse Bell’s conviction and remand to the circuit court for a new trial consistent with this opinion.

¶ 39. Because we feel reversal is constitutionally required and that the remaining issues, as framed, are unlikely to reoccur during retrial, we find it unnecessary and unwise to address those moot issues.

¶ 40. THE JUDGMENT OF THE FIRST JUDICIAL DISTRICT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE 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 HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.

      . Although we have serious questions and concerns regarding whether the girls' statements, offered in response to police questions at the scene of the crime, in the front seat of a police car, or at police headquarters, properly qualify as “excited utterances,” resolution of that issue is unnecessary because the trial judge had previously held that Adrienne and Ashley were unavailable under M.R.E. 804(a)(6).

      . Our resolution of the retroactive application of Crawford to direct appeals is in no way determinative as to the retroactive application of Crawford to collateral appeals.


author: ISHEE, J.,

text:
    William Dewayne SAVELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01953-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

"¶ 1. William Dewayne Saveli was convicted of the murder of'Mandy Davis in the Circuit Court of Neshoba County and sentenced to life imprisonment in the Mississippi Department of Corrections (“MDOC”). Aggrieved by his sentence and conviction, Saveli now appeals. Finding no error, we affirm.

FACTS

¶ 2. Davis was last seen on Wednesday, September 10, 2003, visiting Saveli’s trailer after having dropped her car off at Saveli’s automobile repair shop (located next to his trailer) to be fixed. Davis had been acquainted with Saveli for a number of years, and she visited him regularly. Patsy Pope, Saveli’s mistress through whom he fathered a child, testified that she saw Davis at Saveli’s trailer at approximately 6:30 p.m. on September 10, 2003. Davis’s mother testified that Davis did not come home on the night of September 10, 2003. On Thursday, September 11, 2003, Davis did not show up at work at the school where she taught as a substitute. On the evening of Thursday, September 11, 2003, Saveli called Davis’s home and said that her automobile was ready to be picked up. When Davis’s mother arrived at Saveli’s automobile repair shop, Saveli told her that Davis had been there on Wednesday and left with someone else, who he did not see. On Saturday, September 13, 2003, Davis’s mother phoned the Philadelphia Police Department and reported Davis missing.

¶ 3. Also on September 13, 2003, after officers learned that Davis had last been seen with Saveli, Captain Dickie Sistrunk of the Philadelphia Police Department called Saveli and asked him to come to the police station to answer some questions concerning Davis. Saveli testified at the suppression hearing that when Sistrunk called him, he was told to “come to the police department or either they would pick [him] up.” Saveli arrived in his own vehicle. Saveli was not under arrest nor even a suspect at this time, and officers did not yet know for sure that a crime had been committed. When .Saveli first arrived, he went to the office of a police investigator, Jimmy Reid, to answer questions concerning Davis. Saveli asked to use the restroom, at which point Reid showed him the restroom and left Saveli alone. Saveli testified at the suppression hearing that when he returned from the restroom, he walked back into Reid’s office and was there for two or three minutes before Reid returned.

¶ 4. Saveli told Reid that Davis had been at his trailer on September 10, 2003 getting her automobile fixed, that she had narcotics in her possession, and that she had left with someone else who he did not see. He additionally told Reid that he was awakened that night by a “popping sound,” and that he went outside and saw that his truck was on fire. At the time .of the interview with Reid, Saveli was wearing a splint on his hand. He stated that he had injured it breaking his truck window to get wrecker keys from inside. Reid then thanked Saveli for coming in, and Saveli left in his own vehicle. Saveli was at the police station for approximately thirty-five to forty-five minutes.

¶ 5. Police visited Saveli’s property on Sunday, September 14, 2003, and looked around with Saveli’s consent, but found nothing helpful in locating Davis. On Monday, September 15, 2003, police began looking around on the property of Ted and Patty Pope, where Saveli was known to regularly hunt. On the first trip to the Pope property, police found nothing of interest.

¶ 6. On Tuesday, September 16, 2003, police interviewed Saveli again. At this time, though Saveli was not under arrest, he was advised of his rights pursuant to Miranda v. Arizona, after which Saveli signed, dated, timed and acknowledged a waiver of those rights. At this interview, Saveli again mentioned the narcotics Davis allegedly brought to his trailer on September 10, 2003. Saveli mentioned, in connection with the burning of his truck, a person named “Iceman” that he “used to run dope for.” An officer testifying at trial stated that Saveli “was very inconsistent” in this interview and “would say one thing, but ... a sentence or two later ... contradict what he said.” Saveli said in this interview that he suspected that “Iceman” picked Davis up from his trailer on September 10, 2003, though he did not see him. After the interview, Saveli drove himself home.

¶ 7. Later in the afternoon on September 16, 2003, police received a call from Patty Pope saying Saveli had called her that day saying he had been attacked. Police arriving at the scene noted that Saveli was bleeding from both his eye and from his rib cage area. He told police that Iceman had hit him in the eye with a two-by-four and kicked him while he was on the ground. At a police interview the next day, September 17, 2003, Saveli, after again waiving his Miranda rights, stated that he was wearing his glasses when Iceman hit him, but when police questioned as to how he got hit in the eye with a two-by-four without breaking his glasses, Saveli got angry. Saveli stated that he owed Iceman money from when he ran dope for him five years previously, but Saveli could not explain why Iceman waited until five years later to attack him. Police also asked him during this interview, “if you were in our shoes, where would you look [for Davis?],” and Saveli gave them three locations: “off highway 16 up past the casino,” “old Longino Road,” and on the Pope property.

¶ 8. Also on September 17, 2003, Patty Pope went to Saveli’s property to bring him food, and noticed Saveli in a truck on top of a hill. She drove up and noticed “a bunch of blood on the ground.” She stated that Saveli told her he had taken some pills and cut his wrist. He also had a gun to his forehead. Patty stated that, when she examined the cut, she noticed that it “was not really cut for the amount of blood that — that I noticed was everywhere.” Patty stated that eventually Saveli calmed down and went back to the trailer.

¶ 9. On September 18, 2003, police again went to search the Pope property, this time with the aid of a helicopter. An officer spotted something red in a pond on the property, and when investigators retrieved it, they found that it was a red fireman’s bag with black handles, partially unzipped. Through the partially unzipped opening, officers saw what appeared to be human remains. Upon opening the bag, police found two severed arms, a severed head, and a severed leg, along with blue plastic material, a glove and several bricks. The crime lab experts later determined the limbs and head to belong to Davis. Davis’s torso, with one leg attached, was found on September 19, 2003, in a nearby creek, partially burned, with nine stab wounds to the left chest area. A glove matching the one found in the red fireman’s bag was found in the area near the torso. Crime lab experts determined Davis’s cause of death to be the nine stab wounds to the chest.

¶ 10. After the bag was found, charges were filed against Saveli. When police went to arrest him, Saveli would not come out of his trailer. Members of the SWAT team arrived, forced entry to the trailer, and arrested Saveli. It was later discovered that the red bag belonged to Ted Pope and was kept in his GMC truck. Saveli had borrowed Ted Pope’s truck on Sunday, September 14, 2003, after his truck burned. Saveli’s truck was not returned until a week after the body was found, and the bag was not in the truck when it was returned. Further searches of the Pope property led officers to a brick pile, where shoe prints were observed. The shoe prints matched a pair of shoes later confiscated from Saveli’s residence. The blue vinyl material in the bag was from a children’s swimming pool cover Ted Pope had behind his house. A kaiser blade with hairs from Davis on it was found in the back of the black GMC truck.

¶ 11. Ruth Ann Smith, a neighbor of the Popes who knew Saveli well, testified at trial that she saw Saveli on September 17, 2003 on the Popes’ property. She was standing in her kitchen window, washing dishes, when she saw Saveli driving a four-wheeler out of the woods. He parked the four-wheeler at a shed, ran to the carport of the Popes’ home, and ran back to the four-wheeler carrying a red bag with black handles. He also had “something blue” that he attached to the four-wheeler. Sa-veli left for some time, and then reappeared riding the four-wheeler, at which point he retrieved “something long and shiny” from the Popes’ shed. He then went back into the woods. He reappeared a long period of time later, threw something into the Popes’ shed, and then drove the four-wheeler to the Popes’ home. Smith then saw Saveli drive away at a high speed in Ted Pope’s GMC truck.

¶ 12. On September 25, 2003, while Sa-veli was in jail, he allegedly passed word to investigators that he wanted to talk. Sa-veli contended at trial, however, that he never said he wanted to talk to anyone. At any rate, an investigator subsequently went to get him and took him outside to smoke a cigarette. Saveli told the investigator that he would tell him everything he needed to know, and the investigator took Saveli back into the jail, where he advised him of his Miranda rights. Saveli waived them. Saveli then admitted to killing Davis, but he claimed it was an accident. He claimed that he, Davis and Iceman were at a shack in the woods where Davis allegedly hid narcotics. He said that she retrieved the narcotics, but then got into an argument with Iceman about them. Saveli claimed .that he then hit Davis “up side her head” to get her to be quiet, causing her knees to buckle, after which she fell to the ground face forward. He stated that, when he turned her over, he knew he had killed her. Saveli claimed that he and Iceman then tried to put the body in an old well, but were unsuccessful, so buried her in- a shallow grave. The following day, he put the body in a “Dive Team” bag to keep it together. Iceman’s brother, Bradley, supposedly was to dispose of the body. Police then went to the site mentioned by Saveli and found the bag and shallow grave. Saveli subsequently signed a more in-depth confession.

¶ 13. In the in-depth confession, Saveli claimed that, on September 15, 2003, he took Bradley out to the Pope property and showed him “a way to go behind Patty’s to get Mandy’s body so no one would see him.” Saveli stated that he then gave Bradley a red fire department bag he took out of Ted Pope’s truck.

¶ 14. At the conclusion of the State’s evidence, Saveli offered no evidence. Sa-veli was convicted of murder in the Circuit Court of Neshoba County, and sentenced to life imprisonment in the custody of the MDOC. Aggrieved by his conviction and sentence, Saveli appeals, asserting the following: (1) that the trial court erred by failing to suppress his first statement to police; (2) that the trial court erred by overruling his hearsay objection; (3) that the trial court erred by admitting into evidence two photographs of the fireman’s bag containing the body parts, exhibits 37 and 38; (4) that the trial court erred by overruling his objection to admissibility into evidence of a pair of tennis shoes seized from his home; (5) that the trial court erred in sustaining the objection of the prosecutor to Saveli’s cross-examination of Patty Pope; and (6) that the trial court erred by admitting into evidence Sa-veli’s confession.

STANDARD OF REVIEW

¶ 15. “Relevancy and admissibility of evidence are largely within the discretion of the trial court, and reversal may be had only where that discretion has been abused.” Price v. State, 898 So.2d 641, 653(¶ 29) (Miss.2005) (quoting White v. State, 742 So.2d 1126, 1134(¶ 29) (Miss.1999)). The trial court must exercise its discretion within the scope Mississippi Rules of Evidence, and we will reverse only when an abuse of discretion prejudicing the accused occurs. Id.

ISSUES AND ANALYSIS

I. Whether the trial court erred by failing to suppress Saveli’s first statement.

¶ 16. Saveli contends that the trial court erred by failing to suppress his first statement to police because police failed to advis.e him of his Miranda rights before he made the statement. A defendant seeking to overturn a trial court’s unfavorable ruling on a motion to suppress “bears a heavy burden.” Sanders v. State, 835 So.2d 45, 50(¶ 15) (2003) (citing Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996)). “‘Where, on conflicting evidence, the lower court admits a statement into evidence, this Court generally must affirm.’ ” Sanders, 835 So.2d at 50(¶ 15) (quoting Dancer v. State, 721 So.2d 583, 587(¶18) (Miss.1998)).

¶ 17. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that “the prosecution may not use statements, whether exculpatory or incul-patory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602; see also Manix v. State, 895 So.2d 167, 180(¶ 38) (Miss.2005) (citing Tolbert v. State, 511 So.2d 1368, 1374 (Miss.1987) (outlining application of Miranda in Mississippi)). Such custodial interrogation must “be preceded by advising the defendant that he has the right to remain silent and the right to the presence of an attorney.” Miranda, 384 U.S. at 479, 86 S.Ct. 1602; Balfour v. State, 598 So.2d 731, 742 (Miss.1992). “Custodial interrogation” has been defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 458, 86 S.Ct. 1602. The custody test for Miranda purposes has been described as follows:

“Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.”

Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)). “Any noncustodial statement given freely and voluntarily without coercion requires no Miranda warning for admissibility.” Tolbert, 511 So.2d at 1375 (citations omitted).

¶ 18. Saveli testified at the suppression hearing that he came to the police department on September 13, 2003, at the behest of Sistrunk because Sistrunk told him that if he did not come, officers would come to “pick him up.” This testimony was never corroborated by either Sistrunk or Reid. Further, even if such language was used by Sistrunk, it was ambiguous, as officers knew Saveli’s truck had burned in the early morning hours of September 11, 2003. Saveli drove himself to the police station. He further testified that he knew officers just wanted to question him concerning Davis’s whereabouts. Officers at the time did not yet know that a crime had been committed. Once at the police station, Saveli went back to Reid’s office, then asked if he could use the restroom. Reid pointed out the restroom to Saveli, and then went elsewhere in the station, leaving Saveli unattended. Further, when Saveli returned to Reid’s office from the restroom, Reid did not return to the office for two to three minutes, again leaving Saveli unattended. The interview lasted approximately thirty-five to forty-five minutes, after which Saveli left in his own vehicle. Beyond Saveli’s uncorroborated testimony concerning his initial conversation with Sistrunk, there was no evidence of any threats, promises or coercion either before or during the entire course of the interview.

¶ 19. Given the totality of the above circumstances, we hold that a reasonable person in Saveli’s position would not have felt that his freedom of movement was restrained anywhere near the degree associated with a formal arrest. Quite to the contrary, he arrived in his own vehicle, was significantly unsupervised while at the station, and left in his own vehicle less than an hour after he arrived. Saveli was not in custody within the meaning of Miranda, and the statement was freely and voluntarily given. Therefore, Miranda warnings were entirely unnecessary in this situation. Saveli has thus failed to meet the heavy burden necessary for him to overcome in order for us to reverse the trial court’s overruling of his motion to suppress.

II. Whether the trial court erred in overruling Saveli’s hearsay objection.

¶20. Saveli next objects to the trial judge’s overruling his objection to hearsay in the following exchange, which took place during the direct examination of Reid by the prosecution:

Q. Okay. Now I believe you also looked on the property of Ted and Patty Pope to see if you could turn up anything?
A. At which point?
Q. This would have been — uli—early on — uh—probably on the weekend or shortly thereafter.
A. I — on Monday, I rode a four-wheeler — uh—from the back of Burnside Park — uh—back up to the railroad tracks. Uh — they come out on — I think it’s 571 maybe for the Burnside Road — uh—I never did — we— we were on which I think would be the east side of the railroad tracks and went out to the road and come back, but I — and that borders the Pope property. Uh — -we were in the area, yes, sir.
Q. Did you find anything then that— that helped you?
A. No, sir, not at that time.
Q. Why — why were you looking out there?
A. We were just trying to determine any — any place that she might could be. Uh — information had been received that [Saveli] had hunted on the Pope property — uh—and that Patty Pope and him knew each other and it — they had hunted on that property.
BY [COUNSEL FOR SAVELL]: Your Honor, this — this would have to be hearsay testimony that is offered at this point, your Honor. He’s not laid any predicate for how he knows the knowledge and I object to this testimony.
BY THE COURT: Overruled.

¶ 21. Rule 801(c) of the Mississippi Rules of Evidence defines hearsay: “ ‘Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” See Swindle v. State, 502 So.2d 652, 658 (Miss.1987) (“To constitute hearsay, extrajudicial words must by some means present a statement, declaration, or assertion introduced for the purpose of proving the truth of the matter contained in or asserted by the item or thing”). Mississippi Rule of Evidence 802 holds that hearsay is inadmissible, except as provided by law. Logically, when a statement is not offered into evidence to prove the truth of its subject matter, it does not fit the definition of hearsay, and may not be excluded from evidence under Rule 802. See Thorson v. State, 895 So.2d 85, 126(¶ 95) (Miss.2004) (citing Knight v. State, 601 So.2d 408, 406 (Miss.1992)). For example, a statement is not hearsay if “offered merely to show its effect on someone.” Id. In Butler v. State, 758 So.2d 1063, 1065(¶ 9) (Miss.2000), the defendant objected to the following statement by an officer as hearsay:

Q. And did you [Officer Jackson] determine as to what happened there that night?
A. Yes, Sir. Mr. Boyte had explained that as he came out to his truck, someone had jumped him, grabbed the money bag, and they got in a tussle. And he went down to the ground, was still hanging on to the money bag. And at some point he was hit. He said he looked around to try to get his head in a different location and he was struck again. At that point he turned the money bag loose and two subjects ran away.

The supreme court in Butler explained: “[T]he out of court statement ... was not admitted for the purpose of proving the truth of the assertion made, but to explain the steps taken by Officer Jackson to investigate the incident. The truth of the statement ... was not in issue.” Id.; see id. at (¶ 10) (discussing holding in Swindle that officer’s testimony about informant tip was admissible to show why officer “acted as he did and was at a particular place at a particular time”).

¶ 22. In the case sub judice, Reid testified that “information had been received that [Saveli] had hunted on the Pope property — uh—and that Patty Pope and him knew each other and it — they had hunted on that property.” He gave this testimony in response to the prosecutor questioning him as to why he searched the Pope property. Clearly, the purpose of the offer of the out-of-court statement in this instance was to show the effect on the officer, i.e., why Reid “acted as he did and was at a particular place at a particular time.” The matter was not asserted for its truth, and therefore not hearsay. This assignment of error is clearly without merit.

III. Whether the trial court erred by admitting into evidence exhibits 37 and 38.

¶ 23. Saveli next contends that the admission into evidence of exhibits 37 and 38, photographs of the red fireman’s bag containing Davis’s limbs and head, was erroneous. He asserts that the prejudicial effect of these photographs on the jury far outweighed their probative value, and that the trial judge should have consequently excluded them. In support of his argument, Saveli cites Rule 403 of the Mississippi Rules of Evidence, which states, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.”

¶ 24. “It is well settled in this state that the admission of photographs is a matter left to the sound discretion of the trial judge and that his decision favoring admissibility will not be disturbed absent a clear abuse of that judicial discretion.” Noe v. State, 616 So.2d 298, 303 (Miss.1993) (citing Gardner v. State, 573 So.2d 716, 718-19 (Miss.1990); Sudduth v. State, 562 So.2d 67, 69-70 (Miss.1990)). The discretion of the trial judge in this matter is almost unlimited, “regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Id. (quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)). So long as a photograph has probative value and serves a meaningful evidentiary purpose, it may still be admissible despite being gruesome, grisly or inflammatory. Id. (citations omitted). The trial judge’s discretion, however, while “almost unlimited,” is not completely unfettered. Id. However, it has been noted by the Mississippi Supreme Court that “photographs have been held ‘to be so gruesome and inflammatory as to be prejudicial in only one circumstance, close-up photograph of a partly decomposed, maggot-infested skull.’ ” Taylor v. State, 672 So.2d 1246, 1270-71 (Miss.1996) (noting solitary instance of photographs being held prejudicial in McNeal v. State, 551 So.2d 151 (Miss.1989)).

¶ 25. “Photographs are considered to have evidentiary value in the following instances: ‘(1) aid in describing the circumstances of the killing; (2) describe the location of the body and the cause of death; (3) supplement or [clarify] witness testimony.’ ” McIntosh v. State, 917 So.2d 78, 83-84(¶ 13) (Miss.2005) (quoting Spann v. State, 771 So.2d 883, 895(¶31) (Miss.2000)).

¶ 26. In the case sub judice, the complained of photographs are quite gruesome. However, so too was the manner in which Davis’s body was hidden. The photographs serve both to show the location of the remains and to supplement witness testimony concerning the location of the remains, as well as the state in which they were discovered. Furthermore, we do not find the photographs so repetitive as to lose their probative value, as the angles and details emphasized by each photograph are distinct. Thus, the photographs were of obvious probative value, and the trial judge correctly so held. The trial judge clearly considered the potential danger of prejudice, but found it outweighed by the probative value of the photographs. He thoroughly discussed the photographs with counsel for both sides concerning why the photographs were being offered into evidence prior to making his ruling. Accordingly, we cannot say that the trial judge abused his broad discretion concerning the admission of the photographs, exhibits 37 and 38. This assignment of error is without merit.

IV. Whether the trial court erred in overruling Saveli’s objection to admissibility into evidence of the pair of tennis shoes and denying Saveli’s motion to suppress them.

¶ 27. Saveli argues that the trial court erred by admitting into evidence a pair of tennis shoes seized from his home which matched shoe prints found at a location related to the crime. He asserts that, though the search warrant pursuant to which police searched his home authorized the seizure of shoes, nothing in the affidavit or underlying facts and circumstances supporting the warrant supported seizure of shoes. Saveli thus contends that his Fourth Amendment rights against unreasonable search and seizure were violated due to this lack of probable cause.

¶ 28. The United States Supreme Court has established a “totality of the circumstances” standard for the determination of the existence of probable cause for the issuance of a warrant. Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see Lee v. State, 435 So.2d 674, 676 (Miss.1983) (adopting “totality of the circumstances” standard in Mississippi). This simply requires a magistrate to “make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317. “[Reviewing a magistrate’s issuance of a search warrant on appeal does not require that we make a de novo determination of probable cause; therefore, our standard of review is to determine whether there was a substantial basis for the magistrate finding probable cause.” Pittman v. State, 904 So.2d 1185, 1189(¶ 4) (Miss.Ct.App.2004) (citing Smith v. State, 504 So.2d 1194, 1196 (Miss.1987)).

¶ 29. Sistrunk and Officer Danny Knight, after finding the remains of Davis in the red fireman’s bag on the Pope property, presented the judge issuing the warrant with an affidavit stating that they had good reason to believe that things such as a “Kaiser blade, ax, hachet(s) [sic], chain saws ... boots, shoes, clothes, gloves and other instrumentalities used in the Mom-mission of a crime” could be found in or on Saveli’s home and property. The underlying facts supporting the belief that such things could be found on Saveli’s property included, inter alia, the following: Davis had last been seen at Saveli’s property; Saveli had given inconsistent statements to police; there was an intentional fire set in Saveli’s truck on September 11, 2003; Davis’s remains had been found in a red fireman’s bag previously known to have been carried in the vehicle Saveli was driving at the time; police received information from “a close personal friend” that Saveli told her where the body might be located; and, Saveli “would and does have access to the area where the human remains were found.” We find these facts to be more than ample to support seizure from Saveli’s residence of the pair of tennis shoes. When police search a premises pursuant to a warrant in a murder investigation, clothing and shoes of a suspect are items typically searched for because of the importance of DNA, tissue and fiber analysis, as well as other evidentiary purposes. Therefore, it is clear that the magistrate in the case sub judice had a substantial basis for finding probable cause to issue a search warrant listing shoes among the items to be searched for and seized. This assignment of error is thus without merit.

V. Whether the trial court erred in sustaining the objection of the prosecutor to Saveli’s cross-examination of Patty Pope.

¶ 30. Saveli contends that the trial judge erred in sustaining the prosecution’s objection in the following exchange during Saveli’s cross-examination of Pope:

Q. Monday, September twenty-second, you were the — you were — uh—interviewed by Dickie Sistrunk and Officer Knight, weren’t you?
A. If that was the paperwork date.
Q. Then the next day on the twenty-third, they took you to Jackson for an interview didn’t they?
BY [PROSECUTION]: Your Honor, I’ve got an objection.
BY THE COURT: Sustained.
BY [COUNSEL FOR SAVELL]: Your Honor, is the' Court ruling that she can’t answer if she was the subject of an interview in Jackson?
BY THE COURT: I think I know what you’re going into—
BY [COUNSEL FOR SAVELL]: Your Honor, I’m not going any further than that.
BY THE COURT: I sustain the objection.
[COUNSEL FOR SAVELL] CONTINUES:
Q. Were you interviewed the next day on Tuesday? You said you interviewed on Monday, were you interviewed again on Tuesday?
A. Yes, sir, if there’s paperwork on that date I was.
Q. That didn’t occur in Philadelphia, did it?
BY [PROSECUTION]: Objection, your Honor?
BY THE COURT: Sustained.

Saveli presents no argument as to this issue aside from citing a passage from a case explaining the importance of cross-examination as an evidentiary tool. See Patrick v. State, 285 So.2d 165, 167 (Miss.1973) (quoting Prewitt v. State, 156 Miss. 731, 735, 126 So. 824, 825 (1930)). He fails utterly to direct our attention to how the trial judge’s ruling constituted an abuse of discretion or resulted in prejudice to him. We see nothing in the record to indicate that the trial judge abused his discretion in sustaining the prosecution’s objections in the above exchange, and we see no prejudice to Saveli even if the trial judge’s discretion were abused. Accordingly, this assignment of error is without merit.

VI. Whether the trial court erred in admitting into evidence Saveli’s confession.

¶ 31. Saveli contends that his confession on September 25, 2003, was taken at a time after he had requested appointment of counsel. He contends that he requested counsel both at his initial appearance and on other occasions. Saveli further argues that, though the investigator who took his confession testified at the suppression hearing that jailers had informed him that Saveli wanted to see him, the investigator’s notes and reports did not reflect this. Saveli thus argues that his right to counsel was violated by officer-initiated interrogation and that the confession should have been suppressed as a result.

¶ 32. An accused’s Sixth Amendment right to counsel accrues once the accused is in custody. Brink v. State, 888 So.2d 437, 447(¶28) (Miss.Ct.App.2004) (citing Balfour v. State, 598 So.2d 731, 743 (Miss.1992)). “Specifically, the right attaches at the point in time when the initial appearance ought to have been held.” Brink, 888 So.2d at 447(¶ 28) (citing McGilberry v. State, 741 So.2d 894, 904(¶ 17) (Miss.1999)). Once the accused asserts the right to an attorney, the right attaches and “any statements obtained from the accused during subsequent police-initiated custodial questioning regarding the charge at issue (even if the accused purports to waive his rights) are inadmissible.” Balfour, 598 So.2d at 742 (quoting McNeil v. Wisconsin, 501 U.S. 171, 179, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). “[A]n accused, having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (emphasis added). “Although a defendant may sometimes later regret his decision to speak with police, the Sixth Amendment does not disable a criminal defendant from exercising his free will.” Michigan v. Harvey, 494 U.S. 344, 353, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990)

¶ 33. In reviewing a trial court’s denial of a motion to suppress a confession, “we apply the familiar general rule that since the trial court sits as the fact-finder when determining the issue of whether an accused’s confession has been intelligently, knowingly and voluntarily given, we will only reverse the trial court’s determination of this issue when such determination is manifestly wrong.” Glasper v. State, 914 So.2d 708, 716(¶21) (Miss.2005). In order for us to reverse a trial court’s determination on admissibility into evidence of a confession, the trial court must have committed manifest error, applied an incorrect legal standard, or rendered a decision contrary to the overwhelming weight of the evidence. Id. at 716-17 (citations omitted). Further, “there is no doubt that a confession is only admissible after the State has proven beyond a reasonable doubt that the accused’s confession was not the product of promises, threats or inducements.” Id. at 717 (citations omitted).

¶ 34. In the case sub judice, the trial judge found that the confession was admissible after hearing testimony both from the officer taking the confession and from Saveli. The trial judge heard conflicting accounts from the officer and Saveli as to whether Saveli initiated the confession, and found the officer’s testimony to be more credible. The record shows evidence that Saveli initiated the contact, signed a waiver, and gave a confession. There is no evidence in the record of promises, threats or coercion leading to the confession. The trial judge was thus satisfied that the confession was knowing, intelligent and voluntary. Further, Saveli’s argument that the confession “in no way comported with the autopsy report of death by nine stab wounds to the chest” does not bar the admissibility of the confession. Therefore, we find nothing indicating to us that the trial judge manifestly erred, applied an incorrect legal standard, or made a decision contrary to overwhelming weight of the evidence. This assignment of error is without merit.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTION IS AFFIRMED. ALL COST OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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

      . Saveli told Reid that Davis had a bag of "ice" (a form of methamphetamine) that she was looking to sell, and that he estimated its value at approximately $400.

      . An investigator was sent to Saveli's property to investigate reports of a fire in the early morning hours of September 11, 2003. Sa-veli told the investigator that he came outside and saw his truck on fire, burst the window to get some wrecker keys, and used a wrecker to push the burning truck away from his trailer. The investigator saw no skid marks, however. Additionally, the investigator determined that the' fire had been man-made, as traces of accelerants were present. The investigator further determined that the passenger door was open during the blaze, thus discounting Saveli’s claims that he had to break a window.

      . The Fourth Amendment to the United States Constitution states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV.


author: LEE, P.J.,

text:
    Ronnie D. POWELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01790-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.

      Henry C. Clay, Ridgeland, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On the morning of April 6, 2003, Ronnie Powell entered a BP Service Station in Vicksburg. Linda Redditt, an employee at the BP, testified that Powell approached her, brandishing a gun. Powell demanded money, which Redditt gave to Powell. Although Powell was wearing a gray cap with a black fishnet stocking over his face, Redditt was able to give a description of Powell. Shortly after being apprehended, Powell confessed to committing the crime.

¶2. On March 12, 2004, a jury in the Warren County Circuit Court found Powell guilty of armed robbery. Powell was sentenced to twenty years, with fifteen to serve in the custody of the Mississippi Department of Corrections, the remainder suspended and five years’ post-release supervision. Powell now appeals to this Court asserting the following: (1) the trial court erred in denying Powell’s motion for mistrial and/or motion to set aside the verdict as a result of jury misconduct; (2) the trial court erred in failing to suppress both the out-of-court and in-court identification of Powell by Redditt; (3) the trial court erred in denying Powell’s motion to suppress his confession; and (4) the trial court erred in denying his peremptory instruction and subsequent motion for a judgment notwithstanding the verdict because the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

DISCUSSION

I. DID THE TRIAL COURT ERR IN DENYING POWELL’S MOTION FOR A MISTRIAL AND/OR MOTION TO SET ASIDE THE VERDICT DUE TO JURY MISCONDUCT?

¶ 3. In his first issue on appeal, Powell argues that the trial court erred in denying his motion for a mistrial due to jury misconduct. Powell contends that a mistrial should have been granted because a juror was talking on a cell phone during deliberations and a juror had a discussion with a third party, Senator Mike Chaney, about deliberations. It is well-settled that the grant or denial of a motion for mistrial is within the discretion of the trial court and, upon review, we must determine whether the trial court abused its discretion in its ruling. Pulphus v. State, 782 So.2d 1220, 1222 (¶ 10) (Miss.2001).

¶ 4. During deliberations, the trial judge received a phone call from Senator Chaney who had spoken with one of the jurors. Senator Chaney stated that this juror was angry because another juror was talking on her cell phone during deliberations. After much discussion, the trial judge allowed the jury to reach a verdict. Once the jury was dismissed, the trial judge conducted an examination of the juror who had spoken with Senator Chaney, Jamey Douglas. Douglas, who owns a construction company, stated that Chaney had called him the previous evening about some dirt work. Douglas told Chaney that he was in the middle of jury service and that a few jurors were using their cell phones during deliberations. Douglas stated, “I just didn’t think that was right.” Douglas further stated that he did not speak about the merits of the case with Chaney nor did he inform Chaney of the breakdown of the votes thus far.

¶ 5. In regards to some of the jurors using cell phones during deliberations, there was no testimony presented as to which jurors were on their cell phones, what they were discussing, when they used the cell phones or how long they might have been on their cell phones. Furthermore, at no time were the jurors instructed that they could not take their cell phones into the jury room. After hearing arguments concerning the motion for mistrial, the trial judge took the matter under advisement and also permitted the parties to submit briefs on the matter. Ultimately, the trial judge denied the motion, as well as a motion for a JNOV, finding that “[wjithout more on the content of [the communication between Chaney and Douglas or any alleged cell phone conversation], the Court cannot say that it is reasonably possible any communications altered the verdict.”

¶ 6. The trial judge thoroughly considered this matter and found that mere speculation of jury influence was not enough to set aside the verdict. See Boyles v. State, 778 So.2d 144, 147 (¶ 6) (Miss.Ct.App.2000) (the mere possibility that the jurors may have been influenced by some extraneous matter is not enough to set aside a verdict). From the evidence in the record, we find that the trial judge did not abuse his discretion in its ruling. This issue is without merit.

II. DID THE TRIAL COURT ERR IN FAILING TO SUPPRESS BOTH THE OUT-OF-COURT AND IN-COURT IDENTIFICATION OF POWELL BY RED-DITT?

¶ 7. In his second issue on appeal, Powell argues that the trial court erred in failing to suppress both the out-of-court and in-court identification of Powell by Redditt. Powell contends that the two-person photographic line-up was impermis-sibly suggestive and thus tainted Redditt’s in-court identification. We note that these two photographs were never introduced into evidence.

¶ 8. In Thompson v. State, 483 So.2d 690, 692 (Miss.1986), our supreme court stated:

An impermissibly suggestive pretrial identification does not preclude in-court identification by an eye witness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it, (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

In Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the U.S. Supreme Court set out five factors to be considered in determining whether a lineup is impermissibly suggestive: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. In practice, Mississippi has tended to place a heavy burden on defendants who are contesting the propriety of a pretrial identification procedure. Brown v. State, 829 So.2d 93, 102 (¶ 18) (Miss.2002).

¶ 9. Officer Randy Lewis testified that he did not plan to show Redditt the usual line-up of six photographs because he did not think she would be able to identify Powell due to the fishnet stocking over his face. Powell argues that showing Redditt two photographs was impermissibly suggestive. However, according to Redditt’s testimony, she arrived at the station to give her statement and, while waiting at Officer Lewis’s desk, saw some photographs. During trial, Redditt testified to the following:

Redditt: And I reached — I looked over on his desk, and there were some pictures there. I just picked them up, looking at them.
Bonner [Prosecutor]: How many pictures were there?
Redditt: Two.
Bonner: Okay. Tell me what happened.
Redditt: I picked them up. There was another guy on top, and I looked at that, and I flipped it over and looked at the other one underneath it. And I looked at him and I told Randy then, I said, “Randy, this looks like the guy’s eyes.” And he said, “Well, how was his skin? Was it lighter or darker?” I said, “It was light, sort of, about a shade or two lighter than the other guy.”
Bonner: Um-hum.
Redditt: And I looked at them. I didn’t even have to guess. “This is him, Randy.”
Bonner: Okay. Did he—
Redditt: And he said—
Bonner: Did he put two photographs down and say, which one is he?
Redditt: No. I picked them up myself.
Bonner: Okay.
Redditt: He didn’t ask me to identify them.

¶ 10. It is apparent from the record that Redditt had no doubts as to the identity of Powell. Redditt stood three feet away from Powell during the robbery and was able to give a good description of him to the police. Furthermore, Redditt testified that the first thing she noticed about Powell was his eyes. Redditt stated that she watched him take the money out of the register “because I thought his eyes — they were so pretty, and he was so young-looking. His skin was so smooth and young.” Redditt also stated that the fishnet stocking Powell had over his face consisted of a “big weave” and she “could see his face pretty good.”

¶ 11. We fail to find that Redditt’s identification of Powell from the photograph on Lewis’s desk or the process by which Red-ditt identified Powell from this photograph is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Even if we were to find Redditt’s out-of-court identification was suggestive, Powell confessed to the crime. See Dennis v. State, 904 So.2d 1134, 1136 (¶ 13) (Miss.Ct.App.2004). This issue is without merit.

III. DID THE TRIAL COURT ERR IN DENYING POWELL’S MOTION TO SUPPRESS HIS CON- ... FESSION?

¶ 12. In his third issue on appeal, Powell argues that the trial court erred in denying his motion to suppress his confession. The standard of review regarding the admissibility of a confession is as follows: this Court will reverse a trial court’s finding that a confession is admissible only when an incorrect legal standard was applied, manifest error was committed, or the decision is contrary to the overwhelming weight of the evidence. Stokes v. State, 797 So.2d 381, 383 (¶ 3) (Miss.Ct.App.2001). It is the State’s burden to prove beyond a reasonable doubt all facts prerequisite to admissibility of a confession. Walker v. State, 759 So.2d 422 (¶ 6) (Miss.Ct.App.1999). The State meets this burden and establishes a prima facie case by the testimony of an officer, or another person who has knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. Cox v. State, 586 So.2d 761, 763 (Miss.1991). Furthermore, under Cox, once this burden is met, the defendant must provide evidence or testimony that the statement was not voluntary. Id. at 764.

¶ 13. At the suppression hearing, the State offered the testimony of several officers present during the interrogation as well as the audiotape of the confession. Officers Tom Wilson, Randy Lewis, and Mark Culbertson of the Vicksburg Police Department all testified that they did not threaten Powell, nor did they make promises to Powell in order to obtain his confession. Powell argues that these officers told him they would let his fiancee out of jail and that he might only get probation if he confessed. Officer Wilson was called to rebut statements made to Powell concerning his fiancee. Officer Wilson testified that at no time did anyone attempt to coerce Powell into confessing in exchange for releasing his fiancee from jail. There was ample testimony to support the volun-tariness of Powell’s confession. We cannot find any error by the trial court in allowing the jury to hear Powell’s confession. . This issue is without merit.

IV. DID THÜE TRIAL COURT ERR IN DENYING HIS PEREMPTORY INSTRUCTION AND SUBSEQUENT MOTION FOR A JNOV BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 14. In his fourth issue, Powell argues that the trial court erred in denying his peremptory instruction and motion for a JNOV because the verdict was against the overwhelming weight of the evidence. Powell claims to be challenging the overwhelming weight of the evidence, but his arguments clearly discuss the legal sufficiency of the evidence. “The standard of review for a denial of a directed verdict, peremptory instruction and a JNOV are identical.” Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003). All three challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In reviewing the sufficiency of the evidence, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence. Bell v. State, 910 So.2d 640, 646 (¶ 16) (Miss.Ct.App.2005). Furthermore, it is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Evans v. State, 725 So.2d 613, 680-81 (¶ 293) (Miss.1997).

¶ 15. Notwithstanding an eyewitness’s identification, Powell confessed to the crime, and the jury was inclined to believe him. Taking the evidence in the light most favorable to the State, we find that there was sufficient evidence that Powell committed the armed robbery. This issue is without merit.

¶ 16. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY WITH A DEADLY WEAPON AND SENTENCE OF TWENTY YEARS WITH FIFTEEN TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TBÍÉ REMAINDER SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

KING, C.J., MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES,’"ISHEE AND ROBERTS, JJ., CONCUR!


author: LEE, P. J.,

text:
    Charles BEAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00805-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.

      Charles Bean, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.:‘
   LEE, P. J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On July 15, 2004, in the Clay County Circuit' Court, Charles Bean pled guilty to grand larceny and sale of cocaine. Bean was sentenced to serve five years on the grand larceny charge and ordered to pay $750 in restitution. Bean was also sentenced to serve seventeen years on the sale of cocaine charge with five years’ post-release supervision and a fine of $5,000. Both the five year sentence and the seventeen year sentence are to be served concurrently in the custody of the Mississippi Department of Corrections. We note that a number of other charges were retired to Bean’s file in return for his guilty plea on the grand larceny and sale of cocaine charges.

¶ 2. Subsequently, Bean filed a motion to withdraw his guilty plea, alleging that it was not entered voluntarily and intelligently. After reviewing the file and pleadings, the trial court found Bean’s argument to be without merit and denied his motion. During this time, Bean also filed a petition for a sentence reduction. Just two days after ruling on Bean’s motion to withdraw his guilty plea, the trial court reviewed the petition, finding that the “motion is a subsequent filing which the previous filing was ruled upon by this Court.” The trial court dismissed the sentence reduction petition as a frivolous filing.

¶ 3. Bean now appeals to this Court stating that his plea was not voluntarily and intelligently entered because he was in jail when the crimes allegedly occurred. Finding no merit, we affirm.

STANDARD OF REVIEW

¶ 4. The standard of review for a denial of a post-conviction motion is well-stated. The findings of the trial court must be clearly erroneous in order to overturn a lower court’s denial of a post-conviction relief motion. McClinton v. State, 799 So.2d 123, 126 (¶4) (Miss.Ct.App.2001).

DISCUSSION

¶ 5. In his only issue on appeal, Bean asserts that his guilty plea was not entered into voluntarily or intelligently because he was in jail when the crimes charged were committed. We first note that it is Bean’s duty to justify his arguments of error with a proper record, which does not include mere assertions in his brief. Am. Fire Prot., Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995). Facts alleged to exist by Bean must be proved and placed before this Court by a certified record as required by law; otherwise, we cannot know of their existence. Phillips v. State, 421 So.2d 476, 478 (Miss.1982). Bean alleges that he was in jail when the crimes were committed; however, there is nothing in the record to support this allegation nor is there a copy of the indictment contained in the record.

¶ 6. The only helpful document in the record is a transcript of the plea colloquy wherein Bean admits that he committed the crimes to which he pled guilty. “Great weight is given to statements made under oath and in open court during sentencing.” Young v. State, 731 So.2d 1120, 1123(¶ 12) (Miss.1999). We find no merit in this issue; thus, we affirm.

¶ 7. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

KING, C.J., MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.