text:
    Bobby HERRON, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01817-COA.
    Court of Appeals of Mississippi.
    April 4, 2006.
    Rehearing Denied Aug. 1, 2006.
    Certiorari Denied Nov. 2, 2006.

      Timothy E. Ervin, Aberdeen, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. A Monroe County jury convicted Bobby Herron of murder, and the circuit court sentenced him to life in the custody of the Mississippi Department of Corrections. Aggrieved, Herron appeals and alleges the following errors: (1) whether the trial judge abused his discretion in failing to grant a mistrial when it was discovered that a juror knew a witness that was scheduled to testify, (2) whether the trial court erred in failing to grant a directed verdict in his favor at the close of the State’s case-in-chief, and (3) whether the trial court erred in failing to grant a judgment notwithstanding the verdict or a new trial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In the case sub judice, the only undisputed fact is that Sterlyn Fields was shot in the back of the head with a sixteen gauge shotgun while at the home of Bobby Herron, in Nettleton. As to the remaining facts, both the prosecution and Herron gave varying accounts of the events which led to Fields’s death and Herron’s arrest for his murder.

¶ 4. According to the prosecution, Her-ron was upset about his battery having been stolen from his truck some days before the shooting. Herron apparently received information from some source that Fields was the person who had stolen his battery. Acting on this information, Her-ron accosted Fields at a nearby business, dragged Fields back to his home, and shot Fields in the back of the head while Fields begged for his life. After shooting Fields, Herron got into his truck and drove to the police station and informed the police of the crime that he had committed.

¶ 5. At trial, Eddie Reed, a police officer with the Nettleton Police Department, testified that he was working out in the gym behind the police station when Herron came to him and admitted “that he had shot Sterlyn Fields in the back of the head with a 16-gauge shotgun, [and] he was lying dead in his yard.” Reed further testified that, four days before the shooting, when he was investigating and filling out a report on Herron’s stolen battery, Herron told him “that if he found out, you know, who stole his truck battery that I wouldn’t have to worry about them anymore.”

¶ 6. Chris Patterson, a police officer with the Nettleton Police Department, was dispatched to the scene of the crime. He testified that, upon arrival at the scene, he found Fields in Herron’s yard, lying on his stomach with a large hole in his head and barely breathing. Patterson also stated that he discovered brain matter and parts of Fields’s hand on Herron’s carport. Patterson further testified that he later discovered the murder weapon behind the seat of Herron’s truck.

¶ 7. Thomas Adams, then acting chief of the Nettleton Police Department, testified that when he arrived at the scene, he noticed that Fields had a large hole in the left backside of his head and “half his hand was gone.” Adams also testified that, while at the scene, Steve Orr, a cousin of Fields, told him that Orr saw the entire incident and “saw Bobby shoot Sterlyn in cold blood.”

¶ 8. Steve Orr testified that he witnessed the entire incident which transpired between Herron and Fields. According to Orr, Herron approached Fields outside the business, accused him of stealing his battery, said that he was going to kill Fields for stealing his battery, grabbed Fields and began dragging him down the street toward Herron’s house. Orr stated that he followed behind the two men from a distance until they reached Herron’s house. Orr testified that, as he came around the corner of Herron’s house, he saw Fields on his knees with Herron eight to ten feet away holding a shotgun. Orr stated that Fields begged for his life, saying, “Mister, I ain’t done nothing to you, please don’t shoot me.” Orr further stated that he also pleaded with Herron, but Her-ron still pulled the trigger.

¶ 9. Anthony Walker lived three houses from Herron. He testified that he witnessed everything except the shooting, which he only heard. Walker stated that he saw Herron dragging ■ Fields toward Herron’s house. Walker also stated that he heard Herron tell Fields that he was going to kill him because he had stolen his truck battery. Walker further stated that he heard Orr tell Herron, “Bobby, don’t shoot him. You don’t have to shoot him.”

¶ 10. Doctor Steven Hayne, the forensic pathologist who performed the autopsy on Fields’s body, testified that Fields died from a gunshot wound to the back left side of the head. Dr. Hayne gave his expert opinion that the muzzle of the murder weapon was at least two feet away from the victim’s head and hands, that the victim’s hands were up around his head in a defensive posture, and that there was no gunshot residue on the victim’s hands. Dr. Hayne found the wounds to be consistent with Fields being on his knees with the shooter behind him and to his left, shooting downward.

¶ 11. Herron took the stand and testified in his own defense. He testified that he was on his way to get something to eat when Fields approached him and asked for money to buy alcohol. According to Her-ron, at that same time, Orr also approached him and began acting aggressively. Fearing for his safety, Herron stated that he ran back to his house. Herron testified that, once home, he heard a noise and went outside, where he found Fields and Orr rummaging through his truck. Herron testified that he went inside and got his shotgun, hoping that the sight of it would scare the two men into leaving. Herron further testified that after he came back outside with his shotgun, he told the two men to get off his property. According to Herron, Orr complied and left, but Fields refused to leave and started coming toward him. Herron testified that once Fields got close enough to him, he grabbed the shotgun, causing a struggle over it. Herron went on to state that during the struggle, Fields slipped, twisted as he was falling, and was accidentally shot in back of the head as the gun went off.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Motion for a Mistrial

¶ 12. Herron argues that the court should have declared a mistrial when it was discovered, during the course of the trial, that one of the selected jurors knew Adams. Herron contends that during voir dire by the court, the juror should have informed the judge of his relationship with Adams when the court read the potential witness list. Herron maintains that the failure of the juror to inform the court of his acquaintance with Adams amounted to prejudice to him in selecting a jury. We note that, contrary to what Herron intimates in his brief, the court never asked members of the venire if they knew any of the potential witnesses. In conducting voir dire, the court stated:

Now, some of you may know one or all of these people, but that’s not really the question. The question is whether your knowledge of them would tend to make their testimony more believable or less believable or would influence you somewhat. If that’s the case, I need to know it at this time.

(emphasis added).

¶ 13. “Whether to grant a motion for a mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion.” Pulphus v. State, 782 So.2d 1220, 1223(¶ 10) (Miss.2001). “The failure of the court to grant a motion for a mistrial will not be overturned on appeal unless the trial court abused its discretion.” Bass v. State, 597 So.2d 182, 191 (Miss.1992).

¶ 14. In overruling Herron’s motion for a mistrial, the court stated:

the jurors were thoroughly voir dired by the Court, and the Court explained to them, upon reading this list of potential witnesses to be offered on behalf of the State and the defense — the jury panel was questioned and informed by the Court that the issue was not whether or. not they simply knew someone who might be a witness for either side, but whether that knowledge would have any bearing on them or influence on them, one way or the other, for or against either party if chosen.... The test is not whether or not they know someone, but it’s whether or not they would be influenced one way or another by that person’s testimony. And the fact that you attend church with someone is not an automatic exclusion either.

We agree with the court. Here, the court was satisfied that the members of the veni-re could be fair and impartial if chosen to serve on the jury, regardless of any association or acquaintances with potential witnesses. Based on these facts, we cannot find that the lower court abused its discretion in denying the motion for a mistrial.

¶ 15. Furthermore, we agree with the court’s statement that: “Just because the court asked the questions that it did, that certainly did not preclude the State nor the defense from following up with any other questions regarding potential relationships that may — that the members of the jury panel might have with any witnesses.” The prejudice that Herron now claims he suffered could have been avoided had his attorney followed up the court’s voir dire with his own voir dire into relationships between the jury panel and potential witnesses. Therefore, we decline to hold the trial court in error.

2. Posttrial Motions

¶ 16. Herron first contends that the trial court erred in denying his motion for a directed verdict at the close of the State’s case-in-chief. It is a well settled principle of Mississippi law that “when the defendant proceeds with his case after the State rests and the court overrules the defendant’s motion for a directed verdict, the defendant has waived the appeal of that directed verdict.” Shelton v. State, 853 So.2d 1171, 1186(¶ 49) (Miss.2003) (citing Holland v. State, 656 So.2d 1192, 1197 (Miss.1995)). Therefore, Herron effectively waived his motion for a directed verdict when the trial court denied the motion and he proceeded with his case. Consequently, this issue is proeedurally barred.

¶ 17. Herron next argues about the sufficiency and weight of the evidence. In doing so, he combines his arguments regarding the sufficiency of the evidence with his arguments regarding the weight of the evidence. We address them separately below.

(a) Weight of the Evidence

¶ 18. Herron argues that the trial court erred in denying his motion for a new trial. Motions for a new trial challenge the weight of the evidence. “When reviewing a denial for a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (quoting Herring v. State, 691 So.2d 948, 957 (Miss.1997)). “However, the evidence should be weighed in the light most favorable to the verdict.” Id. It is within the discretion of the court whether to grant a new trial, and this discretion should be exercised “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)).

¶ 19. Despite Herron’s assertion that Fields was accidentally shot in the back of the head while the two wrestled over the gun, we cannot view the evidence in the light most favorable to the verdict and say that an unconscionable injustice resulted from the jury’s verdict. Officer Reed testified that Herron came to him and told him that he had shot Fields in the back of the head and that Fields was lying dead in his yard. Officer Patterson and Adams testified that they arrived at Herron’s house to find Fields’s lying face down in the yard with a gunshot wound to the back of the head. Orr, who was an eyewitness to the incident, testified that he saw Her-ron shoot Fields without justification. Walker’s testimony corroborated Orr’s testimony about events that transpired between Herron and Fields before Fields was fatally shot. The forensic evidence indicated that the shooting was not accidental.

¶ 20. We cannot say that allowing the verdict to stand would sanction an unconscionable injustice. Therefore, the trial court did not abuse its discretion in denying a new trial. This allegation of error is without merit.

(b) Sufficiency of the Evidence

¶ 21. Herron contends that the trial court erred in denying his motion for a judgment notwithstanding the verdict. A motion for a judgment notwithstanding the verdict challenges the legal sufficiency of the evidence presented at trial. The Mississippi Supreme Court has stated:

that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for a directed verdict or for judgment notwithstanding the verdict, the critical inquiry is 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.’ However, this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶22. Considering the evidence in the light most favorable to the prosecution, we find that there was sufficient evidence for a reasonable jury to find that Herron committed the crime of murder. The prosecution produced an eyewitness to the murder, in addition to another witness who heard Herron state that he was going to kill Fields for stealing his battery. More importantly, Officer Reed testified that Herron admitted to him that he had shot and killed Fields. Although Herron testified that the shooting was accidental and done in self-defense, Orr contradicted Her-ron’s testimony by testifying that he witnessed Herron shoot Fields in the back of the head while Fields was on his knees begging for his life. Dr. Hayne testified that it was highly unlikely that Fields was shot in the manner that Herron described and that Orr’s version of the shooting was more consistent with the forensic evidence. Therefore, the evidence presented was sufficient to support a conviction. Herron’s assertion of error is without merit.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

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

      . During a break, a bailiff informed the court that a juror had told him that he knew Adams because they attended the same church.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    HERRING GAS COMPANY, INC., Appellant v. Paul M. NEWTON, Jr., Jonathan B. Fairbank and Michael M. Taylor, Appellees.
    No. 2004-CA-02137-COA.
    Court of Appeals of Mississippi.
    April 18, 2006.
    Rehearing Denied Sept. 19, 2006.
    Certiorari Denied Nov. 2, 2006.

      Marjorie Selby Busching, Heather Marie Aby, John L. Maxey, Jackson, attorneys for appellant.
    Paul M. Newton, Gulfport, Jonathan B. Fairbank, Michael M. Taylor, Brookhaven, attorneys for appellees.
   KING, C.J.,

for the Court.

¶ 1. On March 20, 2003, Paul M. Newton, Jonathan B. Fairbank, and Michael M. Taylor (attorneys) filed a petition for declaratory judgment, asking the Harrison County Chancery Court to command Herring Gas Company, Inc. (Herring Gas) to issue to the attorneys stock certificates to reflect that stock, transferred to them by Steven Scott Herring (Herring), a family-member stockholder in Herring Gas. In response to the attorneys’ action, Herring Gas asked the trial court to nullify the attempted transfer of stock, and to grant a declaratory judgment to prohibit Herring from transferring his stock.

¶2. Herring Gas filed a motion for change of venue which was denied on August 18, 2003. The attorneys filed a motion for summary judgment on September 5, 2003, and on February 5, 2004, the court entered its final judgment granting summary judgment in favor of the attorneys. Aggrieved by the decision granting summary judgment, Herring Gas raises the following issues on appeal:

1. WHETHER THE DENIAL OF HERRING GAS’ MOTION FOR CHANGE OF VENUE IS REVERSIBLE ERROR; AND
2. WHETHER THE LOWER COURT ERRED IN ITS RULING GRANTING SUMMARY JUDGMENT WHICH ORDERED THE ISSUANCE OF HERRING GAS COMPANY, INC.’S STOCK CERTIFICATES TO APPELLEES.

Finding no error in the chancellor’s decision, we affirm.

STATEMENT OF FACTS

¶ 3. Herring is a stockholder in Herring Gas, a family owned Mississippi corporation with its principal place of business in Meadville, Franklin County, Mississippi. Herring was the holder of stock certificate number 135, which represented the ownership of 755.334 shares of Herring Gas. Herring sent this stock certificate to Paul Newton in Harrison County with the intent of transferring to each of the attorneys 251.778 shares of Herring Gas stock. On January 8, 2003, from his office in Harrison county, Newton sent stock certif-ieatel35, along with a Letter of Instruction to Herring Gas, directing that it issue certificates of stock in Herring Gas to Appel-lees. Each of the attorneys was to receive a stock certificate reflecting ownership of 251.778 shares of Herring Gas. By correspondence dated January 24, 2003, Herring Gas declined to issue the stock certificate.

DISCUSSION

1. Whether the denial of Herring Gas’ motion for change of venue is reversible error

¶ 4. A motion for change of venue falls within the discretion of the trial judge, and the decision to grant or deny it will not be disturbed unless it appears “there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case.” Guice v. Mississippi Life Ins. Co., 836 So.2d 756, 758-759(¶ 10) (Miss.2003).

¶ 5. The attorneys filed their declaratory judgment action in Harrison County. Herring Gas claims that nothing in Harrison County fixes venue there, and venue should be in Franklin County where Herring Gas’ principal place of business is, and where all Herring Gas’ corporate books and records are kept.

¶ 6. Venue in chancery court is governed by statute. Miss.Code Ann. § 11-5-1 (Rev.2002). When the pending action involves personal property, venue is proper in the chancery court of the county in which the property, or some portion thereof, may be. Id. Ultimately, plaintiffs have a choice of where to sue defendants among permissible venues. Forrest County Gen. Hosp. v. Conway, 700 So.2d 324, 326(¶ 12) (Miss.1997).

¶ 7. Under the laws of this State, personal property, when used in any statute, includes “goods, chattels, effects, evidences of rights of action, and all written instruments by which any pecuniary obligation, or any right, title, or interest in any real or personal estate, shall be created, acknowledged, transferred, incurred, defeated, discharged, or diminished.” Miss. Code Ann. § 1-3-41 (Rev.2005). This definition clearly covers stock certificate no. 135, which was the incorporeal personal property of Herring. See Cartwright v. Deposit Guar. Nat. Bank, 675 So.2d 847, 847 (Miss.1996) (incorporeal personal property includes stocks). In trying to transfer this property to the attorneys, Herring sent the actual certificate to Newton, whose office is located in Harrison County. Newton then sent the certificate on January 8, 2003 with a letter of instruction to Herring Gas. This transmission was done by certified mail, evidenced by a requested return receipt. The attorneys maintain that the green certified mail receipt is “evidence of a right of action,” constituting their personal property right pursuant to Mississippi Code Annotated § 1 — 3—41, and that venue was proper in Harrison County pursuant to § 11-5-1. The chancellor held that this receipt in Harrison County was adequate to show a pecuniary obligation of right, title, or interest in the personal estate created, acknowledged, or transferred. We agree and, accordingly, hold that venue was proper in Harrison County. This claim is without merit.

2. Whether the lower court erred in its ruling granting summary judgment which ordered the issuance of Herring Gas Company, Inc.’s stock certificates to Appellees.

¶ 8. A motion for summary judgment should only be granted when there are no disputed material facts. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207(¶ 7) (Miss.1999). The burden of proving the absence of disputed material issues of fact rests upon the moving party. Miller v. Meeks, 762 So.2d 302(¶ 3) (Miss. 2000). When faced with a motion for summary judgment, the court is obligated to review all evidentiary matters before it, including admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Id. In considering whether there exists material disputed facts, the court is further obligated to view the facts in the light most favorable to the nonmoving party. Robinson, 732 So.2d at 206(¶ 7). If after having done so, the court finds that the plaintiff would be unable to prove any set of facts, which would support his or her claim, then summary judgment is appropriate. Id. The presence of fact issues does not defeat summary judgment; however, the court must be convinced that the fact issues present are material. Dailey v. Methodist Medical Center, 790 So.2d 903, 907 (¶ 3) (Miss.App.2001).

¶ 9. On appeal, we review the grant of summary judgment de novo. Massey v. Tingle, 867 So.2d 235, 238(¶ 6) (Miss.2004).

¶ 10. Herring Gas contends that the grant of summary judgment was in error because disputed material facts existed as to whether there was a limitation on the transferability of the stock. Herring Gas claims that stock certificate number 135 contained a restriction on its transferability, related to the qualified family-owned deduction from estate tax. In his affidavit, Edward G. Herring (Edward) addressed the limitation and stated that all Herring Gas stockholders have been family members since 1990. The limitation on transferability, as contained in the Amended Charter of Incorporation of Herring Gas, provides:

In the event of sale or offer for sale of all or any stock owned by any stockholder or stockholders, such stockholder or stockholders shall first offer same to the other stockholders at a price not to exceed its appraised value as shown by the Books of the Corporation and give them thirty days to accept or reject the purchase of same. And in the event said stockholder or stockholders reject same within the same period, then in that event, said stockholder or stockholders are at liberty to sell said stock to any person or corporation he or they desire.

¶ 11. Steve Herring filed an affidavit denying knowledge of this restriction on transferability of Herring Gas stock. Herring Gas claims that these competing affidavits demonstrate the existence of a dispute of material facts. In issuing his opinion, the chancellor found there to be no issue of disputed material facts. Mississippi Code Annotated § 79-4-6.27(b) (Rev.2001) provides that a restriction on the transfer or registration of transfer of shares is “valid and enforceable against the holder or a transferee of the holder if the restriction is authorized by this section, and its existence is noted conspicuously on the front or back of the certificate.” However, a restriction is not enforceable against a person without knowledge of the restriction. Id.

¶ 12. The only language appearing on the stock certificate concerning transfer is: “transfer to any non-family member will subject transferor to recapture of tax deduction, including tax and interest. Transfer to anyone requires the filing 'with the Internal Revenue Service of Form 706A to amend Recapture Agreement.” (emphasis added). This language bears no indication of any limitation on transferability.

¶ 13. Based on the affidavits and other evidentiary matters before this Court, we find that no genuine issues of material fact exists as to the transferability of Herring Gas stock certificate 135. The limitation was not conspicuously noted on the stock certificate, and Herring Gas has offered no proof that the attorneys or Steve Herring knew that the restrictive clause existed in the amended charter. We have no choice but to affirm the decision of the trial court. Under these circumstances, the restriction may not be enforced. See Mississippi Code Annotated § 79-4-6.27(b) (Rev.2001).

¶ 14. Herring Gas tries to assert other claims of impropriety because of the attorneys’ dealings with Herring, but those issues have no bearing on the summary judgment motion. Therefore, we will not discuss those here.

¶ 15. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. LEE, P.J., AND GRIFFIS, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . This deduction permits tax relief for those inheriting stock in a family owned business. The deduction is conditioned upon the inheriting family members' agreement not to sell the stock outside the family for ten years. Violation of that agreement risks recapture by the IRS of those amounts deducted by the estate.


text:
    Tremayne WHITLOCK, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00239-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.
    Rehearing Denied Aug. 15, 2006.
    Certiorari Denied Nov. 2, 2006.

      Daniel Kyle Robertson, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   KING, C.J.,

for the Court.

¶ 1. Tremayne Whitlock was convicted by a Covington County Circuit Court jury for the May 12, 1999, murder of Alex Jones. Aggrieved, Whitlock raises the following issues on appeal:

1. Whether the trial court erred when it denied Defendant’s Motion for Mistrial and Motion for a New Trial based upon the Prosecutor’s improper comment on the Defendant’s failure to testify.
2. Whether the court erred in failing to instruct the jury to disregard the District Attorney’s comment on the Defendant’s failure to testify-

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On May 12, 1999, Alex Jones (Jones), Lee Scott, Anthony Barnes, Greg Jones, Leverne Jones, Secdrick Booker, and Tremayne Whitlock were barbequing outside of Jones’ grandmother’s house. Jones and Whitlock engaged in a game of dice. During the dice game, a die rolled underneath a vehicle parked in the driveway. Whitlock claimed that the point was in his favor, while Jones indicated that he did not see the point. An argument ensued over who owned the pot of gambling money. Jones grabbed the eighty dollar pot, but eventually split it with Whitlock. Whitlock then drove off. Jones and his friends then went on a leisurely drive, stopping to pick up another friend, Stanley Goudy. Goudy testified that Lee Scott had previously left a gun at his house, and when the guys came to pick him up they requested that he retrieve it from his house, which he did and gave it to Booker.

¶ 4. As Jones and his friends were crossing Highway 49, Whitlock pulled up beside the truck and got out of his vehicle. He walked over to the truck and asked Jones, “Where [sic] my money at now?” and shot Jones two times. Several people jumped out of the truck and began running. Jones and Booker returned fire as Whitlock drove away. Greg and Booker drove Jones to the hospital in Collins where he died. The day after the shooting, Whit-lock gave a statement to Mississippi Highway Patrol Investigator Darrell Perkins who was assisting the Collins Police Department with the investigation of Jones’ death. In his statement, Whitlock admitted shooting Jones’ but claimed that he was acting in self-defense. Whitlock claimed that when he approached the track asking Jones for his money, Jones pointed a gun at him and the guys in the back of the truck jumped out and someone fired at him. Whitlock claimed that he merely returned fire.

¶ 5. Whitlock’s trial commenced on July 15, 2003, where Booker, Goudy, Scott, and Greg Jones testified against Whitlock, giving their eyewitness accounts of the shooting. Additionally, Lawrence Evans testified that shortly before the shooting Whitlock drove by his house asking if Evans had seen Jones and “the gang.” Evans stated that Whitlock had on white gloves and had a pistol sitting in his lap. Darryl Denham, a friend of Whitlock’s who Whitlock picked up shortly before the shooting, confirmed the other eyewitness’ accounts that Whitlock shot first.

ANALYSIS

¶ 6. Whitlock complains that the following statements made by the prosecutor during closing arguments was an improper comment on Whitlock’s failure to testify:

Now, this statement that you will see Mr. Tremayne Whitlock gave, he gave it the day after the shooting. He did not give that statement under oath. In other words, he didn’t raise his hand, and do you swear to tell the truth the whole truth and nothing but the truth, yeah and then give the statement.
These other witnesses that came in here to court yesterday were sworn in to tell the truth.
Okay. This statement was not given under oath. This was a statement given the day after the shooting. The people who came in here in this court and testified were under oath to tell the truth. Okay?

¶ 7. Attorneys are given wide latitude in making closing arguments. Davis v. State, 914 So.2d 200, 207 (Miss.Ct.App. 2005) (citing Robinson v. State, 733 So.2d 333(¶ 13) (Miss.Ct.App.1998)). However, in order to protect an accused’s constitutional right against self-incrimination, prosecutors are forbidden from making direct comments on the defendant’s failure to testify. Jones v. State, 669 So.2d 1383, 1390 (Miss.1995). To do so constitutes reversible error. Jimpson v. State, 532 So.2d 985, 991 (Miss.1988).

¶8. The statement made during the prosecutor’s closing argument, when viewed in isolation, could be construed as an indirect comment on Whitlock’s failure to testify. However, it must be noted that the statement was made in response to defense counsel’s closing argument. In closing, defense counsel made a comparison between the State’s eyewitnesses who claimed that Whitlock was the aggressor and Whitlock’s statement to Officer Perkins in which he claimed that someone in the truck shot first. The relevant portion of defense counsel’s argument follows:

Mr. Bowen[, the prosecutor,] he wants to take this statement of Tremayne Whitlock’s.... This is what Tremayne Whitlock told [Detective Perkins]. That’s what he told them’ the day after [the shooting].... He made this statement — he didn’t have me there. He didn’t have a lawyer then. He didn’t have four years to think about it before he made this. He didn’t meet — he didn’t have four years to tell his story or meet with the District Attorney like them other witnesses did a couple of years ago to get their facts straight again like they told you they did. This is what he said right after it, and Mr. Bowen wants to put witnesses up here, and he starts picking through this.

¶ 9. “[Although a direct reference to the defendant’s failure to testify is strictly prohibited, all other statements must necessarily be looked at on a case by case basis.... [T]he decision as to whether a prosecutor’s comment was improper must be based on the context in which the comment was made.” Johnson v. State, 914 So.2d 270, 272(¶ 11) (Miss.Ct.App.2005) (citing Strahan v. State, 729 So.2d 800, 807 (¶27) (Miss.1998); Fears v. State, 779 So.2d 1125, 1129-30 (¶ 20) (Miss.2000)). Furthermore, it is wholly permissible for a prosecutor to comment upon the weight and sufficiency of the evidence presented by the State. See Johnson, 914 So.2d at 273(¶ 13).

¶ 10. After viewing the statements of each attorney in context, it is clear that the prosecutor was commenting upon the weight of the evidence rather than on Whitlock’s failure to testify. This issue is without merit. Since we find that the prosecutor’s statement was permissible, Whitlock’s second issue necessarily fails.

¶11. THE JUDGMENT OF THE COVINGTON COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: LEE, P.J.,

text:
    Kenneth Dewayne CARTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01361-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.
    Rehearing Denied Aug. 15, 2006.
    Certiorari Denied Nov. 2, 2006.

      Kenneth Dewayne Carter, Appellant, pro se.
    Thomas Perry Setser, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On May 6, 2003, Kenneth Dewayne Carter was indicted by the grand jury of Warren County for armed robbery, carrying a concealed weapon as a convicted felon, simple assault on a law enforcement officer and escape from confinement. On June 3, 2003, Carter sought a psychiatric evaluation; however, the court denied the motion the next day.

¶ 2. On the first day of trial, Carter indicated to the court that he desired to represent himself. The court conducted a hearing in chambers regarding Carter’s competency and found that Carter was, indeed, competent. The court instructed Carter’s appointed counsel, Josie Hudson, to assist Carter in the event Carter requested assistance.

¶ 3. At the close of the State’s case, Carter moved for a directed verdict on all counts. The court granted the directed verdict on the charge of escaping while in police custody but denied the motion regarding the other charges. The jury returned a not guilty verdict on the simple assault charge, but convicted Carter of armed robbery and carrying a concealed weapon as a convicted felon. Carter was sentenced to serve two concurrent life sentences in the custody of the Mississippi Department of Corrections.

¶ 4. It is from this conviction that Carter appeals, with Thomas Setser as appointed appellate counsel. In conformity with our supreme court’s recent ruling in Lindsey v. State, 939 So.2d 743 (Miss.2005), Setser filed a brief stating that he found no arguable issues supporting Carter’s appeal. Setser further stated that he arrived at this conclusion after reviewing the record and examining the reasons and circumstances surrounding the arrest; any possible violation of Carter’s right to counsel; the entire trial transcript including all exhibits, jury instructions and rulings of the trial court; possible prosecutorial misconduct; and the application of the law in sentencing Carter.

¶ 5. Carter filed a brief on his own behalf, arguing the following assignments of error: (1) that he received ineffective assistance of trial counsel; (2) that he was “unconstitutionally deprived of his qualified right to counsel of his choice;” (3) that he was denied a fair hearing on his objections to counsel; (4) that the court failed to elicit a proper waiver of counsel; (5) that the trial court improperly denied his motion for a continuance; and (6) that the State failed to prove the charge of possession of a firearm by a convicted felon.

¶ 6. Finding no merit to these issues, we affirm.

FACTS

¶ 7. On January 22, 2003, Carter walked into the Payless Shoe Store on Clay Street in Vicksburg, pulled out a gun, and demanded that Retha Clark, a store employee, remove the money from the register and place it in a box. Cynthia Batchelor was shopping in the store at the time and called the police on her cellular telephone. Linda Lewis was also working that day, and she helped Clark open the cash register. Once the register was opened, Lewis removed the drawer containing the cash and handed the drawer to Carter. Carter grabbed the money himself and concealed it in a shoe box. Edric Cooper also observed the robbery from across the street and called the police for assistance.

¶ 8. Before Carter could leave, Sergeants Adarryll Dent and William Combs arrived and entered the store, approaching Carter from behind. When Carter realized the police were in the store, he dropped his weapon and screamed, “Y’all got me, y’all got me!” The officers handcuffed Carter and instructed him to lie down on the floor. Carter remained on the floor for a moment, then he suddenly jumped to his feet and ran to the door. Sergeant Dent tackled Carter, and they fell into the store window. Carter kicked Sergeant Dent while the other officers attempted to subdue him. After a brief struggle, Carter was escorted to the police station. En route to the station, Carter again attempted to escape by kicking out the rear window frame of the squad car. Officer Dent, who was driving Carter, stopped the vehicle and called for backup. When backup arrived the officers restrained Carter’s legs and transported him to the station.

I. WAS CARTER DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 9. For a defendant to prevail on a claim of ineffective assistance of counsel, he must prove (1) that his counsel’s performance was deficient and (2) that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defense counsel is presumed competent. Woodward v. State, 843 So.2d 1, 7 (¶ 14) (Miss.2003). “In order to overcome this presumption, the appellant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Phinisee v. State, 864 So.2d 988, 990 (¶ 9) (Miss.Ct.App.2004). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 10. Carter argues that his trial counsel failed to investigate, failed to seek defense witnesses such as a psychiatrist, and failed to meet with him and otherwise prepare the case for trial. Carter points out that Hudson was appointed as counsel on April 21, 2003, he was indicted on May 6 and the trial was held on June 16. Carter argues that Hudson failed to acquire and review the store’s security tape, which could possibly show a different scenario from that presented by the witnesses at trial. Carter finally argues that Hudson had a conflict of interest which prevented her from zealously and effectively representing him. The State argues that Carter has failed to show any deficiency in Hudson’s representation and that Carter has failed to show he suffered any prejudice from the alleged malfeasance.

¶ 11. Carter’s complaints are con-clusory, vague and unsupported by the record. Carter fails to indicate which witnesses Hudson neglected to interview and how such a failure prejudiced his defense. Likewise, Carter simply states that Hudson had a conflict of interest and offers nothing in support of his assertion. “[Pjrejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” Sharp v. State, 786 So.2d 372, 382 (¶ 24) (Miss.2001) (quoting Smith v. State, 666 So.2d 810, 812-13 (Miss.1995)). Carter has failed to show Hudson’s alleged conflict of interest, and he has failed to show any adverse effect on his lawyer’s performance. As such, this argument is without merit.

¶ 12. Regarding counsel’s failure to secure a psychiatric evaluation, defense counsel sought an evaluation, and the trial court denied the motion. The record does not indicate that Carter was incompetent to stand trial, nor does the record indicate that Carter had a history of mental illness. In short, this argument rests on nothing more than Carter’s assertion that he was entitled to an evaluation. On appeal, this Court must limit our inquiry to facts contained in the record and not upon mere assertions in the briefs. Colenburg v. State, 735 So.2d 1099, 1102 (¶ 8) (Miss.Ct. App.1999) (citing Parham v. State, 229 So.2d 582, 583 (Miss.1969)). As such, these arguments are without merit.

¶ 13. Regarding Hudson’s alleged failure to investigate a security tape, the record reflects that the surveillance tape and security photographs were tendered to Hudson during discovery. Nothing in the record indicates that the tape would show anything to contradict the accounts of the two Payless employees, the customer, the witness who observed the crime from across the street, and the responding officers.

¶ 14. Carter has wholly failed to show any deficiency in Hudson’s representation; therefore, this issue is without merit.

II. WAS CARTER UNCONSTITUTIONALLY DEPRIVED OF THE COUNSEL OF HIS CHOICE?

¶ 15. Carter next argues that he was unconstitutionally deprived of the attorney of his choice. Carter argues that the court “summarily and arbitrarily denied the motion for substitution of counsel without utilizing proper discretion, which was prejudicial to [Carter] because it eliminated his chance to change counsel for good cause.”

¶ 16. Carter is mistaken in his review of the record, as there was no motion for the substitution of counsel prior to trial. During the motion for a continuance, Hudson stated that Carter had just informed her that his family was in the process of trying to hire an attorney to represent him. The court denied the motion for a continuance and told Carter he was free to hire counsel if he so desired, but the trial was set for Monday.

¶ 17. Carter argues that under Watson v. State, 196 So.2d 893 (Miss.1967), he was entitled to a hearing regarding his constitutional right to representation. Carter’s reliance is misplaced. In Watson, the defendant was appointed counsel after representing to the court that he was indigent. He was tried and convicted of burglary, and the conviction was reversed and remanded by the supreme court due to a defect in the indictment.

¶ 18. On remand, the trial court ascertained that Watson owned certain land, and, therefore, could not be considered indigent. The case was set for trial, Watson appeared and requested a continuance, and the continuance was denied. Watson was convicted and appealed. The supreme court reversed, finding that the record was incomplete, as it did not indicate what measures, if any, Watson was able to take to secure counsel in the forty-eight hours between his arraignment and trial. Additionally, because the record was incomplete, the supreme court ruled that it was unable to determine whether the court abused its discretion in failing to grant Watson additional time to secure counsel. Id. at 896.

¶ 19. Watson lost his appointed representation because he was no longer considered indigent; however, this contrasts with Carter’s predicament because Carter was continuously represented by counsel until he petitioned to represent himself. Even then, the court granted him advisory counsel who assisted him at trial. See Metcalf v. State, 629 So.2d 558, 562 (Miss.1993). Carter did not go unrepresented, and the record does not indicate that Carter requested a substitution of counsel prior to or during the motion hearing. Indeed, when the court denied Carter’s motion for a continuance, Carter’s only response was, “Can we get another judge, Your Honor? I want a motion for a new judge. I want to go in front of Judge Patrick.”

¶ 20. As there was no motion for the substitution of counsel, we review the court’s denial of the motion for a continuance, assuming, arguendo, that Carter requested the continuance for the purpose of securing new representation. The denial of a last minute continuance to retain new counsel is within the trial court’s discretion. Nelson v. State, 850 So.2d 201, 204 (¶ 7) (Miss.Ct.App.2003). To succeed in this claim on appeal, the defendant must show an abuse of the court’s discretion and that the abuse actually worked an injustice in his case. Id. Carter has failed to meet both elements, as he only speculates that “there’s a possibility that counsel may [have] needed a brief continuance to prepare for trial.” This issue is without merit.

¶ 21. Although the arguments advanced by Carter refer to his representation prior to and during trial, we do note that after trial and prior to sentencing, Carter sought to have another attorney represent him, stating, ‘Tour Honor, if I may bring it to your attention, I might seek your approval if I might have another attorney represent me at the sentencing part of this case.” The court denied the motion. We find no abuse of discretion in denying this motion, as Carter has failed to address this motion in his brief and as the record does not support an inference that the court abused its discretion in denying the motion.

III. WAS CARTER IMPROPERLY DENIED A FAIR HEARING REGARDING HIS OBJECTIONS TO HIS ATTORNEY?

¶ 22. The record does not indicate, and Carter fails to identify where or when, objections to his attorney were raised before the trial court. As discussed in Section II of this opinion, Carter’s only response to the court’s denial of the motion for a continuance was to request a transfer to another judge. We note that it is the appellant’s duty “to point to specific factual issues supporting his various claims for relief, to be accompanied by citations to the record showing where the evidence relating to such issues may be found and to citations to legal authorities, where available, to support his contentions.” Moody v. State, 838 So.2d 324, 338 (¶ 57) (Miss.Ct.App.2002). Without such support for his arguments, this Court cannot adequately determine whether this issue has merit. As such, we decline to address it.

IV. DID CARTER VALIDLY WAIVE HIS RIGHT TO COUNSEL?

¶ 23. Carter argues that he did not validly waive his right to counsel as “trial counsel was ineffective and the trial court would not allow substitution of counsel.” This argument rests upon Carter’s assertion that the court improperly denied his motion to substitute counsel prior to trial. As discussed in Section II of this opinion, such a motion was never brought before the trial court. Notwithstanding the insufficiency of his argument, we address the validity of his waiver and his self-representation.

¶ 24. The right of a defendant to conduct his own defense is not absolute, existing only where the waiver of counsel can be made in a knowing, intelligent and voluntary manner. Howard v. State, 701 So.2d 274, 279 (Miss.1997) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). We review a court’s decision to allow pro se representation for an abuse of discretion. Metcalf, 629 So.2d at 566.

¶ 25. The trial court complied with Rule 8.05 of the Uniform Rules of Circuit and County Court, informing Carter that he had the right to have an attorney represent him and that if he could not afford one, the State would appoint an attorney to defend or assist in his defense; that Carter had the right to conduct a defense; that the court would not relax the complex rules of the court, including evidentiary rules and rules of procedure and protocol, and that Carter must conform to the same rules as an attorney would; that without legal advice his ability to defend himself would be hampered; and that proceeding without an attorney usually increases the likelihood of an unfavorable outcome for the defendant.

¶ 26. We note that Carter did not proceed strictly pro se, as he was assisted by Hudson as well as by A1 Rhodes, an attorney who participated in the trial at Hudson’s request. These attorneys argued objections, conferred with Carter, advised Carter, and questioned witnesses. Additionally, while Carter handled his own opening statement, Rhodes conducted Carter’s closing arguments. This assisted representation makes Carter’s involuntariness claim more suspect, as he received more professional assistance than he requested. See Metcalf, 629 So.2d at 566. We find no abuse of discretion in allowing Carter to proceed with the assistance of Hudson and Rhodes. This issue is without merit.

y. DID THE COURT IMPROPERLY DENY CARTER’S MOTION FOR A CONTINUANCE?

¶ 27. The denial of a motion for a continuance is reviewed for an abuse of discretion, and the denial will not provide grounds for reversal unless “shown to have resulted in manifest injustice.” Payton v. State, 897 So.2d 921, 931 (¶ 11) (Miss.2003). Carter argues that the court abused its discretion as his attorney was ill-prepared for trial. Carter cites Hudson’s argument to the court that she needed additional time to investigate and prepare a proper defense in addition to Hudson’s statement that she was having difficulty communicating with Carter. The court noted that Hudson had been appointed in April and that Carter was obligated to cooperate with counsel if he desired representation. We agree that Carter was obligated to cooperate with Hudson in the preparation of his defense. See, e.g., Tolliver v. State, 802 So.2d 125, 127 (¶ 9) (Miss.Ct.App.2001) (a defendant’s claim to ineffective assistance of counsel cannot be substantiated by his refusal to cooperate with counsel).

¶ 28. Carter has failed to indicate what further investigation was needed and what additional witnesses would have been called, and we are unpersuaded by his generic argument that further investigation was necessary. We cannot find an abuse of discretion in the court’s decision to prevent a fishing expedition seeking unknown and unidentified witnesses. See Johnson v. State, 872 So.2d 65, 70 (¶ 20) (Miss.Ct.App.2004).

¶ 29. Carter has failed to show that the court abused its discretion and that the denial resulted in a manifest injustice; therefore, this issue is without merit.

VI. DID THE STATE IMPROPERLY PROVE THE CHARGE OF POSSESSION OF A FIREARM BY A CONVICTED FELON?

¶ 30. Citing to Sanders v. State, 825 So.2d 53 (Miss.Ct.App.2002), Carter attacks the sufficiency of the evidence, arguing that the State offered no stipulation regarding his prior convictions or no other substantial evidence supporting his prior convictions. Carter is correct to the extent that the State did not offer a stipulation regarding his prior convictions, because the State introduced into evidence an order accepting Carter’s guilty plea to a charge of robbery and sentencing him to serve seven years in the custody of the Mississippi Department of Corrections for that crime.

¶ 31. We note that when the State moved to admit the document, Carter’s attorney began to assail the document’s authenticity, to which Carter responded, “Your honor, the State may present the document. I agree to it. No objection.” The document was then admitted into evidence without objection. It is well-settled law that failure to object at trial waives the objection on appeal. Bounds v. State, 852 So.2d 51, 55 (¶ 10) (Miss.Ct.App.2002). As Carter has waived his objection to the admissibility of the document, we consider the sufficiency of the State’s evidence.

¶ 32. In reviewing the sufficiency of the evidence, our supreme court has held,

The critical inquiry is whether the evidence shows “beyond a reasonable doubt that 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)). On appeal, we consider the evidence in a light most favorable to the State. Id. at (¶ 17).

¶ 33. To successfully convict Carter of this charge, the State must prove (1) that Carter had been convicted of a felony under the laws of this state or any other state and (2) that he possessed a firearm. See Miss.Code Ann. § 97-37-5 (Rev.2000); see also Estes v. State, 782 So.2d 1244, 1254-55 (¶ 27) (Miss.Ct.App.2000). When a prior conviction is an element of a crime, the State is authorized to introduce evidence of the conviction and is not limited in its method of proof. Evans v. State, 802 So.2d 137, 141 (¶ 9) (Miss.Ct.App.2001).

¶ 34. There was sufficient evidence to convict Carter of possession of a firearm as a convicted felon, as the State introduced evidence that Carter had previously pled guilty to burglary, and five witnesses testified that Carter brandished a gun which was partially concealed in a shoe box during the robbery of the Payless Shoe Store. As such, this issue is without merit.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF CONVICTION OF COUNT I, ARMED ROBBERY AS A VIOLENT HABITUAL OFFENDER AND SENTENCE OF LIFE AND COUNT II, CARRYING A CONCEALED WEAPON AND SENTENCE OF LIFE TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, 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: SOUTHWICK, J.,

text:
    Monica MARTIN, Mother, Guardian, and On Behalf of the Minor Children: Denise Patrice Martin, Pascha Monique Smith, Patrick Carnelious Smith, Jr., and Payco Montay Smith, Appellant v. RANKIN CIRCLE APARTMENTS d/b/a Mississippi Industrial College Homes, Inc., d/b/a Mississippi Industrial College Homes, Inc. of the Christian Methodist Episcopal Church; Brown & Robinson Systems & Services, P.A.; Mary Frances Robinson In Her Capacity as an Employee of Brown & Robinson Systems & Services; and Robert Young, In His Capacity as an Employee Of Brown & Robinson Systems & Services, All Jointly and Severally, Appellees.
    No. 2004-CA-02216-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.
    Rehearing Denied Nov. 7, 2006.

      Barrett Jerome Clisby, Oxford, D. Reid Wamble, attorneys for appellant.
    Dion Jeffery Shanley, Oxford, John D. Brady, Columbus, attorneys for appellees.
    Before MYERS, P.J., SOUTHWICK and IRVING, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. The Marshall County Circuit Court granted summary judgment to defendants in a premises liability and wrongful death case. The event that led to the suit was the fatal shooting of a man in the parking lot of an apartment complex. On appeal, the victim’s heirs allege that a common law premises liability legal standard should not have been applied, as they seek recovery based on tortious breach of the implied warranty of habitability. Further, even under the premises liability standard, the heirs allege that the victim was an invitee who was owed a duty of reasonable care in providing a safe premises. We conclude that the trial court applied the proper standards and the status of the victim was irrelevant in the grant of summary judgment. We affirm.

FACTS

¶ 2. On April 27, 2001, Patrick Smith was shot and killed by Dontral Campbell in the parking lot of the Rankin Circle Apartments in Holly Springs. Rankin Circle is owned by a division of the Christian Methodist Episcopal Church and managed by Brown & Robinson Systems. They, along with Mary Frances Robinson and Robert Young, are the defendants in this suit. Plaintiffs are Monica Martin, who was Patrick Smith’s girlfriend and mother of his children; Smith’s mother; and other relatives. We will at times refer to all plaintiffs as “Martin.”

¶ 3. The victim Smith and Monica Martin were the parents of four children and were said to be planning to be married. The shooting occurred after a series of events that was set in motion months earlier when Martin learned that Smith may have fathered another woman’s child.

¶ 4. At about noon on the day of the shooting, Martin completed her shift at work and drove from Oxford to Holly Springs, to visit her sister who lived at Rankin Circle, the apartment complex at which, the shooting later occurred. When she arrived, Smith’s brother asked her to take him to a restaurant. Martin agreed. On the way, Martin noticed that she was being followed by LaKenya Hubbard, the woman who allegedly had been impregnated by Smith. Martin took Smith’s brother to a restaurant. Then she drove back to Rankin Circle. When she arrived she noticed Smith was frying fish with various other people. She drove through Rankin Circle, exited, and started toward another residential area. Martin described her actions as “joy-riding.”

¶ 5. At some point during the drive, Martin again noticed she was being followed by Hubbard. Various other people were in Hubbard’s vehicle. Hubbard would follow Martin for a time, then Martin would tauntingly follow Hubbard. After a while, Martin stopped at another apartment complex where Hubbard had parked. While both vehicles were parked, someone from the Hubbard car approached Martin. Martin rolled down her window. The Hubbard emissary began to question Martin as to the nature of her business with Hubbard. After a discussion, the person returned to the Hubbard group, and Martin drove away.

¶ 6. Martin returned to Rankin Circle. There, she picked up Patrick Smith and informed him of the earlier encounter with Hubbard. The two agreed to return to the complex where Martin had left Hubbard. They were followed in another car by their four children and various friends.

¶ 7. En route to the other location to find Hubbard, they noticed Hubbard and others on a street near Rust College. Martin immediately made a U-turn to follow them. Martin caught up to Hubbard. Both groups stopped at a residence owned by one of Hubbard’s cousins, Cedric Hampton. There were a number of people gathered at the Hampton residence.

¶ 8. Smith exited the car and confronted Hubbard about her earlier following of Martin. He told Hubbard that he did not want a relationship with her. He also told her to leave Martin alone. Others exchanged angry words, with Martin at some point refusing to fight Hubbard.

¶ 9. Smith got back into the car and headed back to Rankin Circle. As the Smith group was parking, Hampton appeared, flanked by another male, and confronted Smith. Soon Dontral Campbell, the person who would kill Smith, arrived and joined in the argument in favor of Hampton. The argument ended and Campbell and Hampton got into Hampton’s car and drove away.

¶ 10. Martin then decided that she wished to resume riding in her car. She and her four children departed, this time without Smith. A half hour later, Martin returned to Rankin Circle. It was around 11:00 p.m. She saw a group of people assembled. Smith and Campbell were again arguing. The nature of this argument is unclear, as there are many perspectives about it in the record. Regardless of details, the argument was an angry one.

¶ 11. There is some conflict in the record as to when a gun first appeared. There is also conflict as to when the participants learned that Campbell was carrying a weapon, though most recognized Campbell as being armed. The argument raged, culminating in Campbell’s shooting Smith twice in the side. Some bystanders dragged Smith between two cars to shield him from further shots. Campbell fired a few more shots and fled. Smith died hours later.

¶ 12. Martin testified that before moving to Oxford, she had lived in Rankin Circle for seventeen years in the same building and apartment. Martin said that she and Smith met at Rankin Circle as children. She had known property manager, Mary Frances Robinson, for her entire life.

¶ 13. Robinson’s testimony was that she was aware of dangerous conditions at Rankin Circle and did her utmost to address the safety problems there. These are the measures that she was shown to have taken: (1) She kept regular business hours at her Rankin Circle office. (2) She arranged with Officer Robert Young of the Holly Springs Police Department to provide part-time security for the complex, in exchange for a rent-free apartment. This arrangement was still in place during April 2001, but Young was not present on the evening of the shooting. (3) In addition to Young, Robinson herself patrolled the complex. She had attended apartment security workshops given by the U.S. Department of Housing and Urban Development. Also, she had been appointed as an auxiliary policewoman by the mayor of Holly Springs. She had previously made a “citizen’s arrest” of two people by forcing them in her car and driving them to the police station. (4) She posted “No Loitering” signs and a notice that guests should be inside their apartments while on the property. (5) Robinson filed numerous trespassing complaints during the previous year against undesirables who had been loitering on the property. (6) She maintained a list of people whom she would not allow on the property. (7) She placed additional lighting in the Rankin Circle parking lot prior to the shooting. (8) She gated the complex, but local authorities forced her to remove the gate so that there would be proper access and exit in case of a fire.

¶ 14. Robinson said she knew the shooter Campbell and was aware of his criminal record. She was also aware that Campbell had shot two other people, including Campbell’s own brother.

¶ 15. Rankin Circle was subsidized by HUD under the Section Eight program, a feature of which was providing grant money to reimburse local law enforcement agencies for security protection. Robinson testified that she was unaware of any private security company then doing business in Marshall County. As part of its regulation of the complex, HUD performed an annual evaluation of the property and did not require that the property manager provide security personnel.

¶ 16. Holly Springs Chief of Police John Deal testified that Rankin Circle constituted a high crime area, specifying domestic violence and drug crime. Every witness giving testimony in the record agreed that Rankin Circle was a high crime area despite Robinson’s efforts.

DISCUSSION

¶ 17. On summary judgment, the trial judge applied caselaw concerning the liability of business premises owners for the acts of criminals on their property. The plaintiffs argue that the circuit judge applied the wrong legal standard. Instead, we are urged to apply a warranty of habitability.

¶ 18. Since the trial judge granted a motion for summary judgment, we review his decision from the same perspective and applying the same standards as should have been used below. The evidence such as affidavits, depositions, and documents, along with all inferences that could be made from that evidence, are viewed by us in the light favorable to the non-moving party. Travis v. Stewart, 680 So.2d 214, 216 (Miss.1996). We evaluate anew whether the evidence submitted on the motion reveals that there is no dispute of material fact and whether because of such lack of dispute, the moving part is entitled to judgment as a matter of law. M.R.C.P. 56(c); McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996). Summary judgment cannot substitute for a trial to resolve disputes of material fact, but neither should a trial on undisputed material facts substitute for a summary judgment. Wolf v. Stanley Works, 757 So.2d 316, 319 (Miss.Ct.App.2000).

¶ 19. We have summarized the evidence already. At points we indicated that there was understandable disagreement about certain details in the events that occurred late at night among groups of people antagonistic towards each other. The trial judge determined that such facts as were genuinely disputed were immaterial. Martin’s appellate challenge to that ruling is not so much that there were material factual disputes, but rather that the undisputed facts did not prove the defendants entitled to judgment as a matter of law.

¶ 20. There are five issues presented to us on appeal. All approach the question of the proper legal theory to apply, and whether disputes of material fact arise under that theory. We reorganize the appellate complaints into two parts. First we will discuss the law and relevant facts that Martin argues should have been applied. Then we examine what the trial court actually did. In that division we seek proper resolution of the legal ramifications of the shooting on these premises.

1. Implied, warranty of habitability

¶ 21. There is an implied warranty of habitability for residential leases. The warranty was first recognized in a Supreme Court concurring opinion in 1991. O’Cain v. Harvey Freeman & Sons, 603 So.2d 824, 831 (Miss.1991) (Sullivan, J., concurring, joined by court majority). The event that led to the O’Cain litigation was an assault on the tenant of an apartment. The alleged negligence was an inadequate lock on the sliding door from the patio into the apartment. Id. at 825-26. The plaintiff was not the assaulted tenant but instead was a roommate who claimed emotional distress from the assault on her friend. The O’Cain majority found that a claim could be presented under traditional negligence principles: if the lock was defective, was a latent defect of which the tenant or guest had no knowledge, and was a proximate cause of allowing the criminal access, and if that entry and the injuries claimed by the plaintiff were reasonably foreseeable, the elements of a negligence suit existed. Id. at 829-31. The concurring opinion agreed with allowing the litigation to proceed, but addressed more generally the tension that the judge found between long-existing caveat emptor rules applicable to landlords’ obligations to tenants and the realities of a “shift away from agrarian life.... ” Id. at 831 (Sullivan, J., concurring). The concurring justices, which constituted a majority of the court, believed that the “[m]ore progressive courts” had implied a warranty of habitability into the “modern landlord-tenant relationships,” effectively ending caveat emptor. Id.

¶ 22. The concurrence favored an implied warranty of habitability for residential leases:

Such a holding would be in line with the recent legislative enactment of the Residential Landlord and Tenant Act (RLTA), H.B. No. 293, Regular Sess. 1991 (effective July 1, 1991), which requires a landlord to “comply with the requirements of applicable building and housing codes materially affecting health and safety” and to “[mjaintain the dwelling unit, its plumbing, heating and/or cooling system, in substantially the same condition as at the inception of the lease” RLTA, H.B. No. 293, section 12(a) & (b) (Emphasis added). Although the legislature did not expressly impose a duty upon landlords to provide and maintain fit and habitable premises, by allowing tenants the right to repair defects and receive reimbursement of the expenses of such repairs which violate the obligations of the landlord, see RLTA, H.B. No. 293, section 8, the Legislature has implicitly recognized an implied warranty of habitability with the standard being the building and housing codes.

Id. at 832. Under that implied warranty, the landlord owed a duty “to use reasonable care to provide safe premises at the inception of the lease.” Id. at 833.

¶ 23. How to interpret the O’Cain concurring opinion is best answered by examining the clarifications and elaborations since then. The Mississippi Supreme Court’s first application of O’Cain emphasized that the implied warranty of habitability does not create negligence per se for housing code violations. Sweatt v. Murphy, 733 So.2d 207, 210 (Miss.1999). Quoting the O’Cain concurrence, the Sweatt court endorsed this formulation of the warranty:

Recognizing that building and housing codes which affect health and safety generally are often governed locally, I advocate that the bare minimum standard for an implied warranty of habitability should require a landlord to provide reasonably safe premises at the inception of a lease, and to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless expressly waived by the tenant.

Id., quoting O’Cain, 603 So.2d at 833 (Sullivan, J., concurring).

¶24. The warranted safety that the plaintiffs argue their deceased was not provided was freedom from criminal actions. Unlike O’Cain, here there is no allegation of an undeniably repairable defect in the property such as a broken lock. Instead, the claim is based on the atmosphere of violence and crime at this apartment complex and the defendants’ failure to remove the threats. At summary judgment, the plaintiffs claimed such defects as that there was no effective management plan to deal with crime, that community counseling and seeking feedback from residents would have helped develop such a plan, and that the security guard was absent the night of the shooting. Whether this warranty is relevant to such crime prevention considerations is what we now examine.

¶ 25. We have reviewed each of the thirteen reported precedents starting with O’Cain that interpret Mississippi law and use O’Cain or the warranty that it recognized in the premises liability context. Only in the O’Cain concurring opinion is the implied warranty of habitability discussed as relevant to a landlord’s duty to protect against criminal conduct. We have quoted relevant excerpts from that opinion. It is evident that those judges are using the vehicle of the O’Cain appeal to urge the abandonment of caveat emptor in the landlord-tenant relationship. Reliance by the concurrence on the then-recent Residential Landlord and Tenant Act, which is not focused on protections against criminals but instead on more general standards arising under local housing codes, is also an indication of the reach of the warranty. O’Cain, 603 So.2d at 832.

¶ 26. Three of the later opinions citing O’Cain involve injuries arising from crimes, but those opinions refer to the O’Cain majority opinion and its analysis of general premises liability. O’Cain, 603 So.2d at 830. We will later review those three opinions. Before doing so, we look at the more common uses of O’Cain. The vast majority of the implied warranty litigation concerns general physical defects on the premises. E.g., Stonecipher v. Komhaus, 623 So.2d 955 (Miss.1993) (seller of home liability to purchaser for a tree which fell on the property); Green v. Dale-wood Property Owners Association, Inc., 919 So.2d 1000 (Miss.Ct.App.2005) (association of owners allegedly failed to keep premises reasonably safe for visitor).; Sample v. Haga, 824 So.2d 627 (Miss.Ct.App.2001) (landlord liability for death of guests in house fire); Houston v. York, 755 So.2d 495 (Miss.Ct.App.1999) (landlord and contractor negligence in installation of a fireplace mantel that fell and injured tenant). This utilization is consistent with the O’Cain concurrence’s focus, that tenants were impliedly owed in all leases compliance with basic housing standards.

¶ 27. We now examine the three opinions that refer to O’Cain when analyzing responsibility to protect tenants against criminals. In one precedent, an employee of a lawyer whose office was in a high-crime area was assaulted. Simpson v. Boyd, 880 So.2d 1047, 1052 (Miss.2004). The issue of negligence per se was discussed, since there was a local ordinance that required buildings to have emergency exits. Quoting the O’Cain majority opinion and not the concurrence, the court found that “the question of superceding intervening cause [arising from the actions of a criminal] is so inextricably tied to causation, it is difficult to imagine a circumstance where such an issue would not be one for the trier of fact.” Id. at 1053, quoting O’Cain, 603 So.2d at 830. We will discuss in the next section of our opinion the question of intervening cause.

¶ 28. Another precedent applying Mississippi law and citing O’Cain in relation to a crime on premises also just referred to the majority opinion and not to the concurrence. Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265 (5th Cir.1998). The property on which the assault occurred was a grocery store and no warranty of habitability was discussed.

¶29. A decision from this Court also cited the O’Cain majority opinion and never mentioned the concurrence or a warranty. Price v. Park Management, Inc., 831 So.2d 550 (Miss.Ct.App.2002). We concluded that a landlord was not liable where a tenant’s guest was assaulted on the premises. This Court found that a landlord owed the guest only the duty to refrain from wanton or wilful injury. Id. at 551-52. More recently, we cited Price for the same principle. Minor Child v. Miss. State Fed. of Colored Women’s Club Housing for the Elderly in Clinton, No.2005CA-00055, 941 So.2d 820, 2006 WL 696455 (Miss.Ct.App. March 21, 2006). Apparently the plaintiff in neither case raised the habitability warranty. Two expert commentators have found Price inconsistent with another one of our precedents. Weems & Weems, Mississippi Law of Tokts, § 5-6 (Supp.2005) (comparing Price to Joiner v. Haley, 777 So.2d 50, 52 (Miss.Ct.App.2000), and finding that the guest in Price would under Joiner have been owed reasonable safety). We will review Joiner next.

¶ 30. The remaining decisions citing O’Cain do not involve criminal conduct as the source of injury. The suits concern defects in the leased property that caused an accidental injury. The first and most thorough explanation of the interplay of the implied warranty of habitability and general premises liability rules was in an opinion by Chief Judge McMillin of this Court. Joiner, 777 So.2d 50. In that suit, the plaintiff alleged that a building project on a rented house had been left in a dangerous condition. Construction of a second floor balcony was commenced then stopped, with a doorway into thin air one floor above a concrete patio left unsecured. The plaintiff as a guest at a party held by the renter of the house opened the door and stepped out in order to get fresh air. She was seriously injured in the fall. Id. at 51. We concluded that there was “no reason why Joiner should not be permitted to advance a claim sounding in tort against the premises owner, the. cause of action having as its foundation a tortious breach of the implied warranty of habitability standard announced in O’Cain rather than requiring Joiner, as a matter of law, to proceed under previously-existing premises liability decisions.” Id. at 52. We found fact issues of whether this second-floor doorway into nothingness “was an unreasonably dangerous condition affecting the habitability of the premises,” and whether the efforts that were taken to secure the door against inadvertent opening were reasonable. We also concluded that a guest of a tenant would be a proper plaintiff to assert damages arising from breach of the warranty. Id.

¶ 31. Our opinion in Joiner could not alter that a suit under the warranty “is, in essence, a negligence action” in which the “the standard tort defenses” such as “intervening cause” would apply. Svveatt, 733 So.2d at 211-12, quoting O’Cain, 603 So.2d at 833. Though the implied warranty arises because of a contractual relationship, breaches of the warranty sound in tort.

¶ 32. We will discuss in the next section a standard tort defense that is significant in the final resolution of this ease: the knowledge of the injured person of the dangers on the premises will prevent recovery for a failure to warn. We find that this defense is consistent with the obligation of a landlord under the warranty to “provide reasonably safe premises at the inception of a lease, and to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless expressly waived by the tenant.” Sweatt, 733 So.2d at 210, quoting O’Cain, 603 So.2d at 833 (Sullivan, J., concurring). The dangers of crime at Rankin Circle were well-known by all and steps were taken to address the problems.

¶ 33. We find no support in the precedents that the Supreme Court has created dual and inconsistent principles for gauging the reasonableness of landlords’ general conduct as to crime, one arising from the usual negligence analysis and the other applicable to the “in essence” negligence actions that assert a warranty of habitability. The implied warranty of habitability is not a useful alternative perspective to view whether defendants should have had security guards, a crime management plan, or other heightened measures to respond to an atmosphere of crime. In O’Cain, the possible defect in a lock on the apartment door, and whether that defect led to a criminal assault, are the kind of issues that fit smoothly within the “bare minimum” building and housing code standards that O’Cain relied upon when a majority of the court abandoned the traditional caveat emptor doctrine for real property leases. O’Cain, 603 So.2d at 832. The plaintiffs are seeking far more than bare minima at Rankin Circle Apartments.

¶ 34. Though some states have analyzed liability for third party criminal acts against tenants as part of the warranty of habitability, others have not found the warranty controlling. 1 Friedman on Leases, § 10:1:9[F], at 10-69 (5th ed. 2005). Whatever the doctrinal label, the result of a claim that an atmosphere of violence existed is the one reached under premises liability rules.

¶ 35. We now turn to the present legal standards for determining whether there has been a tortious breach of the premises liability duties owed by a landlord to a tenant.

2. Premises liability

¶ 36. Much attention is given on appeal to, and for the trial judge and defendants, controlling authority is found in a relatively recent Supreme Court precedent. Titus v. Williams, 844 So.2d 459 (Miss.2003). The plaintiffs deny the relevance of Titus because it is a common law premises liability decision and not one based on a tor-tious breach of the implied warranty of habitability. However, we have already compared the analysis that would arise under the warranty theory and find that it leads us into negligence law. A careful review of Titus is in order.

¶ 37. Milton Titus, III was shot and killed by a third party in the parking lot of a convenience store. The store did not employ a security guard, though a guard had been used by previous owners. The subject store and surrounding area was well known for its illegal activity, including fights and drug deals. ' The shooting came out of an argument over a woman when Titus, who was not privy to the initial argument, appeared and entered the argument. The situation quickly worsened and Titus was killed. Id. at 462-64. Titus’s heirs brought suit against the convenience store. The Supreme Court affirmed the circuit court’s grant of summary judgment to the defendants.

¶ 38. The court started with the issue of whether the dangerous conditions constituted active or affirmative negligence by the store owners. See Hoffman v. Planters Gin Co., 358 So.2d 1008 (Miss.1978). The Titus court interpreted Hoffman as finding that a premises owner owed a duty of ordinary care even to an invitee, when an affirmative act of the owner “subjects a licensee to unusual danger or increases the hazard to the licensee when the presence of the licensee is known.” Titus, 844 So.2d at 465. The court found negligence that created the conditions leading to injury, such as failure to prevent criminal conduct, but that did not initiate the injury-causing actions themselves, could not be the basis for applying the Hoffman affirmative negligence doctrine. Id. at 466. The court analyzed this as an absence of proximate cause, which is defined as the “cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.” Id., quoting Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666, 671 (Miss.2001). The court held the Titus store owner was not actively negligent despite that “an atmosphere of violence” existed on the store premises, the owner knew this, and failed to rectify the problems. Titus, 844 So.2d at 466-67.

¶ 39. The Titus court retained the distinctions between an invitee, licensee, and trespasser in premises liability cases. Id. One of the issues raised by the plaintiffs in our appeal is that they should be considered invitees. The common law analysis employing these distinctions is a three-step process. First, a determination is made of one’s status as invitee, licensee, or trespasser. Second, a determination is made of the duty owed the person by the premises owner. Third, a determination is made of whether the premises owner breached the duty. Id. at 467.

¶ 40. For invitees, the owner must keep the premises reasonably safe and warn only of hidden danger. Invitee status falls on those who enter property at the express or implied invitation of the owner or occupant to their mutual advantage. A licensee enters property only for his own advantage but also has the implied permission of the owner. A trespasser is a person who enters without any right at all — be it express or implied — and does so merely for his own purposes. Property owners owe both trespassers and licensees the duty to refrain from willful or wanton injury. Id. The defendants in our case believed Smith was a trespasser.

¶ 41. The court found that, although initially a licensee, Titus became a trespasser on the store property when he returned intent upon fighting. Id. The status, though, was irrelevant. The broadest duty owed anyone who enters on a landowner’s property was to provide reasonably safe premises and to warn of hidden dangers. The key holding in Titus is “that the duty to warn disappears entirely when it is shown that the injured person did, in fact, observe and fully appreciate the peril.” Id., quoting III. Cent. R.R. v. Crawford, 244 Miss. 300, 315, 143 So.2d 427, 431 (1962).

¶ 42. Turning now to the undisputed facts in the present case, it is evident that the deceased Smith was fully cognizant of the developing dangers around him. To the extent his heirs argue that allowing a atmosphere of danger to exist at this location was a breach of the defendant’s duty, the deceased had been participating in that atmosphere for a substantial period of time before the actual shot was fired. He had been in a position to “observe and fully appreciate the peril” that was imminent, given the day’s events of which he had clearly been a part. Moreover, the deceased was not a stranger to these apartments and whatever atmosphere existed there. Martin testified that she and the deceased, Patrick Smith, met during their childhood at Rankin Circle. Smith had some contact with Rankin Circle for a significant portion of his life.

¶ 43. What we have at most in the present case is that the defendants “furnished the condition” in which the shooting occurred but did not “put in motion” the shooting itself. Titus, 844 So.2d at 466, quoting Newell v. Southern Jitney Jungle Co., 830 So.2d 621, 623 (Miss.2002). In Newell, the Supreme Court held that it would not attach strict liability to property owners for injuries occurring on the premises “as a result of criminal acts by third parties.” Id. at 624. In our case, the shooter Campbell’s appearance at the complex is an intervening cause as is recognized both in premises liability decisions such as Titus and in the warranty of habitability cases such as Sweatt. Nearly every witness testified to knowing of Campbell’s reputation for criminal activity and violence and that Patrick Smith was involved with drugs. The defendants did not “put in motion” the events leading up to the shooting. The deceased needed no further warnings than he received.

¶ 44. Martin argues that an outcome-changing distinction is that the shooting in Titus occurred at a store instead of a residential area. We find no relevance to the duty owed based on that distinction. As in Titus, there was here an absent property owner (the Christian Methodist Episcopal Church) and a landlord who operated and controlled Rankin Circle (Mary Frances Robinson). To the extent there was an “atmosphere of violence” surrounding Rankin Circle, Robinson had tried to address the problem. An equally important condition underlying the shooting was the accelerating animosities arising during the fatal night’s driving encounters among the principals in this event. It is true that the implied warranty of habitability applies in residential situations, but we have already discussed why that warranty does not assist the plaintiffs here.

¶ 45. The Mississippi Supreme Court has refused to make owners the insurers of an invitee’s safety. Strict liability is not imposed on them in premises liability cases. Corley v. Evans, 835 So.2d 30, 41 (Miss.2003). Unless those boundaries are crossed, the judgment here was correct.

3. Other issues

¶ 46. The plaintiffs argue other theories, such as negligent infliction of emotional distress. We find that our conclusions as to the defendants’ non-negligent performance of their duty under premises liability principles removes the necessary negligence or even intentional conduct that must be found under the other theories.

¶ 47. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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