author: ISHEE, J.,

text:
    Phillip YOUNG, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KP-01690-COA.
    Court of Appeals of Mississippi.
    July 31, 2007.

      Phillip Young, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the court.

¶ 1. Phillip Young was convicted of carjacking following his trial by jury on November 12, 2002, in the Circuit Court of Sunflower County. He was sentenced to a term of fifteen years in the custody of the Mississippi Department of Corrections, with ten years to serve and five years suspended and five years’ post-release supervision. Young was also ordered to pay court costs in the amount of $530, $250 to the crime victims’ compensation fund, and a fine of $1,000. The circuit court denied Young’s motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial. Aggrieved, Young appeals. Finding no error, we affirm.

FACTS

¶ 2. Young was indicted by a Sunflower County grand jury on December 28, 2001, for one count of carjacking and two counts of aggravated assault. On February 4, 2002, the court entered a pretrial order overruling Young’s motion to suppress identification testimony, finding “under the totality of the circumstances, the eyewitness identifications were not tainted and should not be suppressed.” A trial was held on November 12, 2002, at which time three of the State’s witnesses positively identified Young as being the driver of the green Maxima in question.

¶ 3. Specifically, Martha Grant testified that she and Jerry Parker, her boyfriend at the time and husband at the time of trial, were washing their vehicles at the Double Quick car wash on Highway 82 in Indianola, Mississippi, on November 9, 2001. Grant’s vehicle, a white Bonneville, was parked in one stall and both Grant and Parker were washing it and the green Maxima, Parker’s vehicle, was parked in the stall next to them. At the time of the carjacking, Parker had asked Grant to get some more change from the Maxima so that they could finish washing the Bonneville. Grant testified that after she retrieved the change from the Maxima, she was approached by Young from behind and as she turned around Young shoved her and said “give me those damn keys.” Grant then testified that Young “snatched them out of her hand” and she ran to tell Parker what had happened. Grant further testified that the Maxima stalled as Young tried to drive off and she and Parker had a clear view of Young and he was “grinning at them.” According to Grant, she and Parker then got in the Bonneville and pursued the Maxima down Highway 82 toward Greenville and then onto Road 448 going toward Shaw. At some point on 448, the driver of the Maxima turned off the road and parked briefly, but then turned around and met the Bonneville head on and hit the passenger side of the Bonneville before continuing toward Shaw. No one involved was injured. Grant testified that as she and Parker followed the Maxi-ma they shouted to a friend passing, “Somebody stole Jerry’s car. Call the police.” Grant further stated that after the Maxima had hit them they stopped at a lady’s house somewhere on Road 448 and called the police. According to Grant, the police said they had already received a call about the incident and they were “on their way out there looking for him.” Grant said next they went to the Indianola Police Station to give their statements. While at the station, the police brought in Young, in handcuffs, and Grant testified that she stated, “that’s him.” She further stated that no one at the station specifically pointed Young out to her or asked her to identify him. Grant further identified Young in court as the man who had shoved her and driven off in the Maxima from the Double Quick, and as the same man who ran into her and Parker on the county road while they were in pursuit of the Maxima.

¶ 4. The State then presented testimony by Parker, who corroborated Grant’s testimony regarding his and Grant’s presence at the Double Quick on Highway 82 and that a man drove off in the Maxima while they were there attempting to wash their cars. Specifically, Parker testified that after Grant told him that someone had just stolen his car, he ran to the stall where the Maxima was parked and that the car had stalled as Young was attempting to drive off. Parker stated, “I was standing in front of the car. I was looking at the guy that was in the car, and he was looking at me laughing.” He stated that once the car quit stalling, Young drove right toward him and he had to jump out of the way to keep from being hit. Parker testified that he was about five feet from the front of the Maxima when Young drove off and that he got a good look at the driver for about fifteen seconds. Parker further corroborated Grant’s testimony regarding their pursuit of the Maxima and also testified that Young was the driver of the Maxima as it side-swiped them on the county road. Parker testified that after they abandoned their pursuit and called the police, they went to the Indianola Police Station and that while they were there the police brought Young in, in handcuffs. Parker testified that upon seeing Young at the police station, “I told the police officer, the guy that I made the report out to, I told him ‘that’s the guy that stole my car.’ ” Parker also identified Young in the courtroom as the man who drove off in his car at the Double Quick and the same driver as was out on the county road.

¶ 5. Robert Sanders, a motor carrier inspector for the State of Mississippi and witness for the State, testified that he was patrolling in Bolivar County when he heard over the radio that a stolen car was coming out of Sunflower County into Bolivar. Sanders said he positioned himself at an intersection right outside the city limits of Shaw and shortly thereafter saw a green Maxima “coming off 448, with other law enforcement officers in pursuit of it.” Sanders further testified that the Maxima then “turned right onto Dean Boulevard, I was there at the intersection ... came within a few feet of my vehicle, saw my unit, panicked, made a left turn into the Wild Bill’s parking lot.” He stated that he had a clear view of the driver because their vehicles were “side by side, heading in opposite directions, which put the driver on my side of my vehicle,” and he then identified Young in the courtroom as the driver of the Maxima. Sanders then testified that after about fifteen or twenty minutes and still within the city limits of Shaw, a message came across the radio that “[the carjacker] had been located on the south side of Shaw ... and that the vehicle that he was driving was parked in Mr. Clifton Anderson or Ms. Rosie Anderson’s driveway.” Sanders said he then went to the location he had heard over the radio and that when he got there, “one of the City of Shaw police officers and other law enforcement officers had obtained this driver, and had put him into custody.” Sanders further stated that the person detained was “identical” to the person he had seen driving the Maxima. Sanders also identified, in court, that Young was the driver that had met him in the Maxima, as well as the man the police had detained in Shaw.

¶ 6. Charles Smith, captain and chief of detectives with the Indianola Police Department, also testified for the State. Smith testified that he was aware of the carjacking due to radio reports he heard after he left work that Friday afternoon, however, he was not personally involved with the matter until the following Tuesday, at which point he conducted interviews with Grant and Parker. Smith stated that both Grant and Parker “positively identified the suspect by photograph” and that the individual they identified was Young. Smith testified that because the Maxima was recovered in Shaw and later carried back into Sunflower County by a wrecker service, he did not attempt to obtain any fingerprints from the Maxima. It was his opinion that after the time lapse of when he saw the vehicle and the fact that others had been inside the vehicle he would not have been successful in getting any fingerprints off the Maxima that would have been of any use. Smith testified that he was not aware of any video surveillance at the Double Quick until the preliminary hearings began involving this matter. Once he became aware of the possible videos, he testified that he called the Double Quick and the manager informed him that the tapes had been recorded over. After the State admitted Smith’s report into evidence, he read the “details” portion aloud to the court which was his summation of Grant and Parker’s interviews with him. In pertinent part the report stated, “the defendant was brought back to the Indianola Police Department by Deputy Sheriff Doug Grantham, where he came in contact with the victims who were at the Indianola P.D. filing a report with Sergeant Robert Kirklin. Both of the victims indicated to Sergeant Kirklin that the person that was with Deputy Grantham was the one who had taken the car from victim Grant and also hit the victim Parker.”

¶ 7. At the close of the State’s case-in-chief, Young’s appointed counsel made a motion for directed verdict, which the court denied. Young’s counsel presented three witnesses, including Young. He first called Captain Smith and questioned him regarding Smith’s investigation into the voluntary statement Young gave after he was given his Miranda rights. Smith testified that he had attempted to locate Jessie Warren, the individual that Young indicated he was in Shaw with prior to his arrest; however, Smith was unsuccessful in locating him. Officer Robert Kirklin, with the Indianola Police Department, then testified for the defense regarding his involvement. Kirklin stated that he had taken the original complaint from Parker and Grant regarding the carjacking and had then contacted his investigator, Captain Smith, who took charge of the matter from that point. Kirklin testified that the complaint contained the name “Earl Conrad” because Grant had named him and thought “he might have been the suspect, but she wasn’t sure.”

¶ 8. Phillip Young, after being advised of his right to testify or not in his own defense, took the witness stand and gave his version of what happened on November 9, 2001, prior to him being arrested. According to Young, he had ridden into Shaw with Jessie Warren. Young stated he knew Warren because they had previously worked together. He testified that they had been in Cleveland before coming to Shaw that day and that the last time he saw Warren was around 3:00 that afternoon. Young stated, “We was just stopping through, you know. And he told me that he was 'going to be right back in about fifteen or twenty minutes. I didn’t want to wait on him; so next thing I know, I was going to jail.” Young stated on direct examination that he was just standing around, looking to see what the police were doing when he was arrested. However, on cross-examination he stated that he had seen the police come by while he was standing outside a club and so he walked down closer to where the police were and that he “ended up getting into it with a few guys.” He testified that he had not seen Warren since that day and he did not know where Warren was or how to contact him, although, he also stated he had been in jail since he was arrested.

¶ 9. The jury found Young guilty of carjacking and not guilty of the two aggravated assault charges. On November 15, 2002, the court sentenced Young to fifteen years in the custody of Mississippi Department of Corrections, with ten years to serve and five years suspended and five years’ post-release supervision. Young was ordered to pay court costs in the amount of $530, $250 to the crime victims’ compensation fund, and a $1,000 fine. Young’s counsel filed a motion for JNOV or, in the alternative, a new trial which was overruled and denied by the trial court on November 21, 2002. On April 11, 2005, the trial court granted Young’s motion for an out-of-time appeal finding that no appeal was ever filed by Young, pro se or by appointed counsel. It is under that order that Young, proceeding pro se and in forma pauperis, appeals to this Court asserting the following issues:

I. Whether the verdict of guilty was against the overwhelming weight of the evidence and that the court erred in denying Young’s motion for new trial.
II. Whether the trial court erred by allowing the identification testimony regarding the alleged show-up.

ISSUES AND ANALYSIS

I. Whether the verdict of guilty was against the overwhelming weight of the evidence and that the court erred in denying Young’s motion for new trial.

¶ 10. Young appears to be asserting not only a challenge of the weight of the evidence, but he also challenges the legal sufficiency of the evidence to support the jury’s guilty verdict. Therefore, we will include a discussion of both the weight of the evidence claim and legal sufficiency of the evidence claim under this one assignment of error.

¶ 11. A motion for a new trial challenges the weight of the evidence. Beckum v. State, 917 So.2d 808, 812(¶ 10) (Miss.Ct.App.2005) (citing Carr v. State, 774 So.2d 469, 472(¶15) (Miss.Ct.App.2000.)). Upon review of a trial court’s denial of a motion for a new trial, this Court must consider the evidence in the light most favorable to upholding the verdict. Id. at 813(¶ 14). We will only reverse a trial court’s decision when convinced that there was an abuse of discretion in failing to grant a new trial. Dudley v. State, 719 So.2d 180, 182(¶ 7) (Miss.1998) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). We must also keep in mind that it is the jury’s responsibility to resolve matters regarding the weight of the evidence and the credibility of witnesses. Beckum, 917 So.2d at 813(¶ 14). It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Washington v. State, 800 So.2d 1140, 1144(¶ 10) (Miss.2001) (citing Manning v. State, 735 So.2d 323, 333(¶ 10) (Miss.1999)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Walker v. State, 881 So.2d 820, 831(¶ 32) (Miss.2004) (citing Dudley, 719 So.2d at 182(¶ 8)); Dilworth v. State, 909 So.2d 731, 737 (¶¶ 20-21) (Miss.2005).

¶ 12. The standard of review for motions for directed verdict and JNOV is abuse of discretion. Smith v. State, 925 So.2d 825, 830(¶ 10) (Miss.2006) (citing Brown v. State, 907 So.2d 336, 339(¶ 8) (Miss.2005)). In considering whether the evidence is sufficient to withstand a motion for directed verdict, or a motion for JNOV, the court must determine that a reasonable, fair-minded juror could find that the accused committed the offense charged beyond a reasonable doubt, and that every element of that offense existed given the evidence presented. Brown, 907 So.2d at 339(¶ 8) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If the evidence fails to meet this test then it is insufficient to support a conviction. Carr, 208 So.2d at 889. However, where substantial evidence of such quality and weight exists to support the verdict, and where reasonable and fair-minded jurors may have found the appellant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47(¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81(¶ 13) (Miss.2001)).

¶ 13. Young argues that the State failed to prove the elements of the carjacking statute, Mississippi Code Annotated section 97-3-117(1) (Rev.2006), which states the following:

[w]hoever shall knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempting to do so, or by any other means shall take a motor vehicle from another person’s immediate actual possession shall be guilty of carjacking.

Young asserts that because Grant testified that she was outside of the vehicle rather than inside, that she was not in “immediate actual possession” and, therefore, the State had not proven all of the elements of a carjacking. Young would have this Court find the words “immediate actual possession” to be very narrowly tailored, although he does not provide any precedent of such a narrow finding. We cannot agree that the legislature intended the statute be construed so literally as to mean that a person commits a carjacking only when an individual is physically inside the vehicle. In Walters v. State, 932 So.2d 860, 861(¶ 3) (Miss.Ct.App.2006), the victim of an armed carjacking was approaching his car when Walters confronted him and ordered the victim into the car; however, the victim refused, eventually was shot and Walters fled the scene in the victim’s vehicle. Id. Though the present case was not an armed carjacking, the facts are similar because neither of the victims were physically inside the vehicle when the carjacking occurred. Grant had just retrieved some money from the vehicle and had the keys in her hand when she was approached by Young, who then demanded the keys from her, snatched them out of her hand and drove off. The record reveals the trial court heard arguments on Young’s present assertion by his appointed counsel not less than three times and each time the trial court was not persuaded that the State had failed to prove the essential elements of the crime of carjacking. We too are not persuaded that the State failed to prove the essential elements of the crime of carjacking. Therefore, we find that it was not reversible error for the trial court to allow the jury to consider the charge.

¶ 14. Furthermore, after a thorough review of the court record, we cannot say that the overwhelming weight of the evidence does not support the jury’s finding that Young was guilty of carjacking, nor do we find that to allow the verdict to stand would be an unconscionable injustice. The jury is charged with weighing the evidence and determining the credibility of witnesses. Nobles v. State, 879 So.2d 1067, 1071(¶ 11) (Miss.Ct.App.2004) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). Sheffield v. State, 749 So.2d 123, 128(¶ 17) (Miss.1999), presents a similar situation where Sheffield argued for a new trial upon the grounds that the weight of the evidence presented did not support the jury’s verdict. The court noted in Sheffield that there was no need for the reviewing court to determine exactly which witnesses and testimonies the jury chose to believe or disbelieve in reaching its verdict. Id. Furthermore, it is enough that the evidence presented a factual dispute for the jury. Id. (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). In the present case, the jury heard three eyewitnesses testify that Young was the man they saw driving the green Maxima, and they also identified Young in court. The jury then had the opportunity to hear Young’s recollection of what happened on November 9, 2001. Young argues that the State did not present any fingerprint evidence or an alleged video from the Double Quick surveillance cameras. Both of these evidentiary issues were addressed by Young’s counsel during Captain Smith’s testimony regarding his investigation of the matter. As stated in Sheffield, this Court cannot determine which witnesses the jury chooses to believe or disbelieve. Sheffield, 749 So.2d at 128(¶ 17). The jury had the duty to discern what witness’s statements to believe or disbelieve and to reach a verdict based upon the evidence it found to be credible. We find that the overwhelming weight of the evidence supports the jury’s verdict of guilty. We also find that reasonable and fair-minded jurors could have found Young guilty based on the weight and quality of evidence before us on appeal. Therefore, this issue is without merit.

II. Whether the trial court erred by allowing the identification testimony regarding the alleged show-up.

¶ 15. The admission or exclusion of evidence is within the discretion of

the trial court. Thompson v. State, 726 So.2d 233, 235(¶ 9) (Miss.Ct.App.1998) (citing Hentz v. State, 542 So.2d 914, 917 (Miss.1989)). When determining whether to suppress pretrial identification evidence, the trial court must decide whether the law enforcement agency employed an identification procedure that would be highly suggestive. Thompson, 726 So.2d at 235(¶ 9) (citing York v. State, 413 So.2d 1372, 1383 (Miss.1982)). The standard of review for suppression hearings on matters of pretrial identification is “whether substantial credible evidence supports the trial court’s finding that, considering the totality of the circumstances the in-court identification testimony was not impressibly tainted.” Guerrero v. State, 943 So.2d 774, 777-78(¶ 9) (Miss.Ct.App.2006) (citing Johnson v. State, 884 So.2d 787, 789(¶ 4) (Miss.Ct.App.2004)); Gray v. State, 728 So.2d 36, 68 (¶ 159) (Miss.1998). On review, the appellant court should reverse the lower court’s grant or denial of a motion to suppress pretrial identification testimony only where there is no credible evidence to support the decision. Guerrero, 943 So.2d at 778(¶ 9) (citing Johnson, 884 So.2d at 789(¶ 4)); Ray v. State, 503 So.2d 222, 224 (Miss.1986).

¶ 16. When determining whether the pretrial identification was impermissibly tainted so as to deprive the defendant of due process, the court should apply the five enumerated factors in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), as applied by this Court in Garner v. State, 856 So.2d 729, 733(¶ 12) (Miss.Ct.App.2003). The five factors are:

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

Id. Ultimately, the court must discern whether the pretrial identification is reliable. Thompson, 726 So.2d at 235(¶ 10) (citing York, 413 So.2d at 1383 (Miss.1982)).

¶ 17. Young’s essential argument appears to be that- the trial court erred in denying the pretrial suppression motion regarding Grant and Parker’s identification of him to Officer Kirklin when Young was brought into the Indianola Police Station in handcuffs. Additionally, he contends that the show-up violated his Sixth Amendment right to counsel. The facts in the present case are similar to those in Guerrero, where Guerrero sought to suppress a pretrial identification of him when he was in the holding cell at the jail and a witness immediately identified him as the shooter as she entered the jail and saw him through a window. Guerrero, 943 So.2d at 778(¶ 10). The witness testified that she immediately recognized Guerrero through the glass because he was wearing the same clothes and had distinctive acne. Id. A deputy testified that the witness had not been told Guerrero was a suspect. Id. This Court found the circumstance to be mere happenstance and that there was nothing in the record to indicate the sheriffs department had purposefully arranged for the encounter between Guerrero and the witness. Id. We find that the circumstances that Grant and Parker identified Young at the Indianola Police Station to be very similar to those of Guerrero’s and that the officers did not do anything purposeful to arrange the encounter which led to Grant and Parker’s identification of Young as the man who had stolen their vehicle. However, in arguendo, if Young did have a legitimate due process claim we are of the same opinion as in Guerrero, that under the Biggers factors, Grant and Parker’s identification of Young was not made under such unnecessarily suggestive circumstances as to destroy the probative value of their identification. Guerrero, 943 So.2d at 779(¶ 12).

¶ 18. As to Young’s claim that his Sixth Amendment right to counsel was violated regarding the “show-up” incident and then later the photographic identification by Grant and Parker, we disagree. The right to counsel under the United States Constitution attaches at the commencement of “formal criminal proceedings of an adversarial nature.” Thompson, 726 So.2d at 236(¶ 17) (citing Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)). Under the United States Supreme Court’s interpretation, formal adversarial proceedings may be initiated by “way of a formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby, 406 U.S. at 689, 92 S.Ct. 1877. However, the Mississippi Supreme Court has held that the “adversarial process begins when the law enforcement arm of the state takes the defendant into custody, and charges him with a crime.” Nixon v. State, 533 So.2d 1078, 1087 (Miss.1987). As in Nixon, we find that Young was merely a suspect at the time of the pretrial identifications and no formal charges had yet been made against him. Therefore, this issue is without merit.

¶ 19. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT OF CONVICTION OF CARJACKING AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED AND FIVE YEARS’ POST-RELEASE SUPERVISION, PAY A FINE OF $1,000 AND PAY $250 TO THE VICTIM’S COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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

      . According to his testimony, the reports came in close to 5 p.m. on Friday and that the following Monday was Veterans Day which was why he did not begin investigating the complaint until the following Tuesday, November 13.

      . Young’s counsel argued this same point at the close of the State’s case-in-chief in his motion for directed verdict, during the discussion of which jury instructions would be given, and again in his motion for JNOV or, in the alternative, a new trial. At no time was the trial judge in agreement with Young’s counsel and each time the assertion was overruled.

      . A show-up is "a pretrial identification procedure in which a suspect is confronted with a witness to or the victim of a crime,” essentially, one-on-one confrontation. Blacks Law Dictionary 1385 (7th Edition 1999).


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Louis William MOSBY, Appellant v. Carolyn MOSBY and Leatrice D. Mosby, Appellees.
    No. 2006-CA-00339-COA.
    Court of Appeals of Mississippi.
    July 31, 2007.

      John H. Cox, Greenville, attorney for appellant.
    Paul Mathis, attorney for appellees.
    Leatrice D. Mosby, Appellee, pro se.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. We are called upon to review the propriety of the chancellor’s order for partition and sale of real property jointly owned by ex-spouses Carolyn B. Mosby and Louis William Mosby.

FACTS

¶ 2. Louis and Carolyn owned a residence as joint tenants with the right of survivorship. The chancery court granted Carolyn a divorce from Louis on November 21, 1979. The divorce decree stated: “That [Louis] is hereby awarded the sole use and possession of the residence located at 211 Garrett Street, Greenville, Washington County, Mississippi. That when said residence is sold, the equity shall be divided equally between the parties hereto.”

¶ 3. On June 21, 1990, Louis married Leatrice Mosby. On February 12, 2002, the mortgage on the property was paid in full and the property stood free and clear of all liens, claims, and encumbrances. On February 15, 2002, Louis conveyed his one-half interest in the property to Lea-trice by quitclaim deed, reserving a life estate for himself.

¶ 4. On January 11, 2005, Carolyn filed a “Petition for Partition and Sale of Real Property, or in the Alternative, for Other Relief.” At the hearing, it was stipulated that Leatrice was a necessary party to the partition action and that Leatrice and Louis were separated and contemplating a divorce. Carolyn argued that Louis’s conveyance to Leatrice contravened the terms of the divorce decree and that she was entitled to a partition sale that would liquidate her equity in the property. Alternatively, Carolyn argued that the conveyance was a sale that triggered the requirement that the equity be divided between the parties. Louis contended that his conveyance to Leatrice was permissible under the divorce decree, that no sale had occurred, and that the award of the use and possession of the residence to him meant that Carolyn could not force partition.

¶ 5. The chancellor found that the quitclaim deed conveyed title to a half-interest in the property to Leatrice and that Lea-trice had taken title with knowledge that she would be a cotenant with Carolyn. The chancellor found that Louis’s conveyance of his half-interest to Leatrice and retention of a life estate was not a sale within the terms of the divorce decree. However, the chancellor found that Louis’s conveyance of his half-interest to a new wife twenty-six years after the divorce was a situation not contemplated by the divorce decree. The chancellor recognized precedent to the effect that parties to a property settlement may contract for one ex-spouse to retain use, possession, and control of the property for a reasonable length of time. Weeks v. Weeks, 403 So.2d 148, 149 (Miss.1981). The chancellor observed that this case did not involve a property settlement agreement but rather a court order awarding use and possession to Louis. The chancellor stated:

The court finds that indeed there has been a change in circumstances of the parties since the Mosby Decree and that this change in circumstances is material, is injurious to the Complainant, and is one that could not have been contemplated by the court at the time it rendered its decree or by the parties. It is certain that the court never contemplated or intended that 26 years later, Complainant would be restricted from getting her equity in the property because Mr. Mosby “conveyed” rather than “sold.” Mr. Mosby has achieved a situation which could not have been intended by the court, i.e., Mr. Mosby has relinquished his ownership rights as a co-tenant, put Complainant at the mercy of a new co-tenant and denied Complainant her equity in the home.

The court ordered a partition by sale with the proceeds to be disbursed equally to Carolyn and Leatrice. Leatrice was to pay Louis the value of his life estate interest from her share of the proceeds.

STANDARD OF REVIEW

¶ 6. This Court’s scope of review of a chancellor’s decision is limited. We review the chancellor’s decision for abuse of discretion and will not disturb the chancellor’s fact-findings unless they were manifestly wrong or clearly erroneous. McNeil v. Hester, 753 So.2d 1057, 1063(¶ 21) (Miss.2000). However, we review all questions of law de novo. Cole v. Nat. Life Ins. Co., 549 So.2d 1301, 1303 (Miss.1989).

LAW AND ANALYSIS

¶ 7. We have condensed Louis’s issues into the following statement:

I. WHETHER THE CHANCELLOR’S ORDER FOR PARTITION OF THE PROPERTY BY SALE WAS MANIFESTLY WRONG, CLEARLY ERRONEOUS, OR APPLIED AN INCORRECT LEGAL STANDARD.

¶ 8. Partition is a statutory right in Mississippi. Mississippi Code Annotated section 11-21-3 (Rev.2004) provides:

Partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the free hold or in a term of years not less than five (5), may be made by judgment of the chancery court of that county in which the lands or some part thereof, are situated; or, if the lands be held by devise or descent, the division may be ordered by the chancery court of the county in which the will was probated or letters of administration granted, although none of the lands be in that county.
However, any person owning an indefeasible fee simple title to an undivided interest in land may procure a partition of said land and have the interest of such person set apart in fee simple from the claims of life or other tenants, re-maindermen or reversioners, provided the life or other tenants, and other known living persons having an interest in the lands, are made defendants if they do not join in the proceeding as plaintiffs.

With one statutory exception, cotenants have an absolute right to partition of property. Cheeks v. Herrington, 523 So.2d 1033, 1035 (Miss.1988). “Possession, or the right of possession, in the tenants in common gives an absolute and unconditional right to partition however inconvenient it may be to make.” Id. (citing Barnes v. Rogers, 206 Miss. 887, 893, 41 So.2d 58, 60 (1949)). The statutory exception prevents a forced partition of the homestead property of a surviving spouse who is using and occupying the property. Miss.Code Ann. § 91-1-23 (Rev.2004).

¶ 9. A special situation is presented by a petition for partition of property co-owned by ex-spouses, with one spouse having been given use and occupancy of the property by the divorce decree. In Weeks, a property settlement agreement provided that Mr. Weeks was to have the exclusive use, possession, and control of the house and that when the house was sold, the equity would be divided equally between the parties. Weeks, 403 So.2d at 148. Less than two years after the divorce, Mrs. Weeks filed a petition for partition of the property. Id. The court observed that the property settlement agreement was a binding contract and that cotenants may contract to give up the right to partite the property for a reasonable length of time. Id. at 149 (citing Wiener v. Pierce, 203 So.2d 598, 603 (Miss.1967)). The court held that a partition suit would violate the terms of the property settlement agreement under which the parties had agreed Mr. Weeks would have exclusive use, possession, and control of the property. Id. The court held that Mr. Weeks was entitled to retain the exclusive use, possession, and control of the property and stated that there could be no partition unless this use and occupancy extended to a time that “clearly could be said to be unreasonable. Obviously, the reasonableness of such occupancy would depend on the facts of each particular case.” Id.

¶ 10. The chancellor found Weeks to be of limited usefulness in the instant case because Weeks involved a property settlement agreement pursuant to which the parties had, in essence, contracted to fore-go partition. In this case, there was no property settlement agreement; rather, the court in the divorce decree awarded Louis the right to use and occupy the marital home until its sale. In Sartin v. Sartin, 405 So.2d 84, 84 (Miss.1981), a divorce decree had awarded Mrs. Sartin the exclusive use and possession of the co-owned property until she remarried or the court issued further orders. Two months after the divorce, Mr. Sartin sued for partition. Id. at 85. The chancellor denied the request for partition, observing that he had awarded the use and possession of the property to Mrs. Sartin as a form of alimony. Id. The supreme court affirmed the chancellor’s decision. Id. The court observed that, if partition were allowed, Mrs. Sartin would undoubtedly need additional financial support from Mr. Sartin and that the clear intent of the decree was to not allow Mr. Sartin to force partition. Id. at 85, 86. The court stated that “allowing Mr. Sartin to maintain the partition suit would be to allow him to take an action prohibited by the divorce decree.” Id. at 86.

¶ 11. The court held that “partition will not be compelled in derogation of a decree ... [providing that], as part of the settlement of the parties’ mutual rights and obligations, the former spouse has the exclusive right as long as she remains unmarried.” Id. at 85. The court distinguished this case in which the non-occupying ex-spouse sought partition from prior cases in which the occupying ex-spouse had sought partition. Id. at 86 (citing Welborn v. Welborn, 386 So.2d 722 (Miss.1980); Blackmon v. Blackmon, 350 So.2d 44 (Miss.1977)). In those cases, the court held that the occupying ex-spouse had a right to move elsewhere, request partition, and thus surrender the divorce decree’s award of exclusive occupancy. Welborn, 386 So.2d at 725; Blackmon, 350 So.2d at 47. The Sartin court stated that, “ex-wife Sartin has made no such election, and she is entitled to enjoy the provisions of the divorce decree which granted her the right to occupy the subject property as long as she did not remarry, or until further orders of the court.” Sartin, 405 So.2d at 86.

¶ 12. Louis argues that Sartin stands for the proposition that a non-occupying cotenant can never achieve partition of property occupied by an ex-spouse pursuant to an unmodified divorce decree. Louis contends that the only proper route to relief for Carolyn would have been a suit to modify the divorce decree to permit partition. However, a cotenant wishing to partite real property subject to a divorce decree is not required to file suit to modify the decree, but may exercise her statutory right to partition by filing a petition for partition. Blackmon, 350 So.2d at 46. Therefore, Carolyn’s petition for partition was a proper mechanism for seeking partition of the property. Louis also argues that the chancellor’s statement that the court was “in essence modifying the Mosby decree” meant that the court in fact modified the decree. Louis contends that modification was improper in the absence of a material change in circumstances. This argument is without merit because the chancellor clearly granted the petition for partition and did not, in fact, modify the decree. As discussed below, the chancellor did not have to modify the decree in order to grant the relief requested.

¶ 13. The chancellor distinguished Sar-tin from the present case. The chancellor observed that, while Mr. Sartin had petitioned for partition only two months after the divorce decree, Carolyn requested partition twenty-six years after the decree and after Louis conveyed his interest to Leatrice. While Sartin does hold that a cotenant may not partite property occupied by an ex-spouse under a divorce decree, to avoid partition the ex-spouse’s occupancy must comport with the dictates of the divorce decree. Otherwise, the property will be subject to partition. This was the situation in Daughtrey v. Daughtrey, 474 So.2d 598 (Miss.1985). In that case, the divorce decree had awarded Mrs. Daughtrey exclusive use and possession of the co-owned property until the minor child was emancipated. Id. at 600. In time, the minor child became emancipated, but Mrs. Daughtrey continued to occupy the property. Id. Mr. Daughtrey sued for partition. Id. at 599. Mrs. Daughtrey argued that the property was her homestead and that she would incur hardship if forced to move. Id. at 601. The court rejected this argument, holding that Mr. Daughtrey’s statutory right of partition gave him an absolute and unconditional right to partition regardless of any inconvenience to Mrs. Daughtrey. Id. Notably, because the minor child was emancipated, the divorce decree no longer granted Mrs. Daughtrey the exclusive use and occupancy of the property.

¶ 14. Similarly, here the chancellor found that, when Louis conveyed his undivided half-interest in the property to Lea-trice and reserved a life estate, Louis’s use and occupancy of the property ceased to comport with the dictates of the divorce decree, subjecting the property to partition. As found by the chancellor, the divorce decree contemplated that Louis would have the use and occupancy of the property until Louis and Carolyn alienated their half-interests through a sale after which the equity would be divided between them. The chancellor determined that Louis’s conveyance to Leatrice was not a “sale” as contemplated by the divorce decree because Louis failed to convey absolute title to his half-interest, but retained a life estate.

¶ 15. We agree with the chancellor’s conclusions and find no error in her decision. Louis’s conveyance to Leatrice thoroughly frustrated the intent of the decree that Louis and Carolyn would retain their undivided half-interests as joint tenants until such time as the whole property was sold and the equity divided. After their divorce, Louis and Carolyn continued to hold the property as joint tenants. Shepherd v. Shepherd, 336 So.2d 497, 499 (Miss.1976). As the chancellor recognized, the conveyance to Leatrice imposed a new co-tenant upon Carolyn. But the conveyance also severed the joint tenancy and rendered Carolyn a tenant in common with Leatrice. Ayers v. Petro, 417 So.2d 912, 914 (Miss.1982). Thus, not only did the conveyance impose a new cotenant upon Carolyn, it also destroyed her right of survivorship. At this time, if Leatrice died, Carolyn would not survive to Leatrice’s half-interest but would become a cotenant with Leatrice’s heirs. Id. at 915. Carolyn’s loss of her survivorship interest was not intended by the divorce decree, which did not adjust title and contemplated that the parties would retain their respective interests until the property was sold and the equity divided. While Louis was free to dispose of his property as he chose, his conveyance of his half-interest to Leatrice and reservation of a life estate for himself contravened the intent of the divorce decree. Simply put, the decree did not intend to enable Louis to alienate his half-interest but still use and occupy the property indefinitely. The chancellor did not err in granting Carolyn’s petition and ordering a partition by sale.

1116. THE JUDGMENT OF THE CHANCERY COURT OF WASHINGTON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ROBERTS, J.,

text:
    Billy Paul KING, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02234-COA.
    Court of Appeals of Mississippi.
    July 31, 2007.

      W. Mitchell Moran, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   ROBERTS, J.,

for the Court.

¶ 1. On August 17, 2005, Billy King was convicted by a jury of capital murder and sentenced to life imprisonment without parole. King alleges that the trial court committed reversible error when it denied a request for recess or continuance to allow time for the sheriff to serve a subpoena on a potential witness. Finding no error, we affirm.

FACTS

¶ 2. King was indicted on December 14, 2004, for the murder of Bobby Warren by and through Taylor Morado. The indictment charged that King paid Morado $4,000 and a vehicle to murder Warren.

¶ 3. The entire trial took place over three days. Jury selection began on Monday, August 14, 2005, the presentation of evidence occurred on the following day, and deliberations followed by the sentencing phase occurred on the final day. The State’s chief witness was Morado. Morado testified at trial that he entered into Warren’s home by kicking in the door and then shooting Warren nine times. He further testified that he was hired by King and Sara Warren, Bobby Warren’s estranged wife. After Morado murdered Warren, he was paid $4,000 and given a car by King.

¶ 4. Morado testified that he needed the money to pay off a drug debt to Mike Bilskey. Morado testified that, after Bang paid Morado for the murder, he was taken to Bilskey by Raymond Miat. The grounds for this appeal center around these two individuals. The testimony regarding Bils-key and Miat first came out during cross-examination by King’s counsel.

¶ 5. Shortly after Morado testified, the State rested its case-in-chief. The trial court then recessed for lunch. The defendant was the first witness to testify during his case-in-chief. Following his testimony, a short bench conference was held to discuss the implications of Sara Warren invoking her Fifth Amendment right not to testify. During this conference, King’s counsel stated that he wanted to have Miat and Bilskey testify during his case-in-chief. King’s counsel stated that they were not present, as he had just heard about them for the first time during the cross-examination of Morado. The State objected to the calling of the witnesses if it would delay the trial. The trial court held that the witnesses would be allowed to testify if they would be able to appear prior to the defense resting its case-in-chief. The court then, at the request of King’s counsel, issued a subpoena instanter for both Bilskey and Miat.

¶ 6. The defense next called Sara Warren. When asked questions concerning the murder, she invoked her Fifth Amendment right not to incriminate herself. Following her testimony, the defense called Bilskey and Miat. Neither being present, the trial court required the defense to move forward. Lacking any other witnesses, the defense rested.

¶ 7. The jury returned a verdict and found King guilty of capital murder. The jury then sentenced King to life imprisonment without parole. Aggrieved, King appealed to the supreme court. The appeal was deflected to this Court for review.

STANDARD OF REVIEW

¶ 8. The decision to grant a continuance is within the discretion of the trial court. Shelton v. State, 853 So.2d 1171, 1181(¶ 35) (Miss.2003) (citing Smiley v. State, 815 So.2d 1140, 1143-44(¶ 14) (Miss.2002)). “The appellate court will not reverse the trial court unless the ruling resulted in manifest injustice.” Id.

ANALYSIS

¶ 9. King alleges that the trial court committed reversible error when it denied a request for recess or continuance to allow time for the sheriff to serve a subpoena on a potential witness. He claims that the trial court abused its discretion when the judge required the trial to move forward, while two witnesses of which the defense had just learned were unavailable to testify. King’s counsel stated that he had just learned about the two witnesses a few hours before, during the cross-examination of the State’s chief witness, Morado.

¶ 10. The defense claimed that it learned about Bilskey and Miat for the first time during cross-examination of Morado. As for Bilskey, we gather from the line of questioning that Morado spoke of him during his statement to police. During cross-examination, King’s counsel brought out that Morado owed money to Bilskey. After eliciting that testimony, counsel asked “[a]nd is that the same person that you stated in this statement that you made, in your confession, that you made to police?” It appears from this line of questioning that King’s counsel did in fact know of Bilskey prior to trial. The supreme court has repeatedly stated the proper process to ensure the attendance of witnesses. See Gates v. State, 484 So.2d 1002, 1006 (Miss.1986) (quoting King v. State, 251 Miss. 161, 168 So.2d 637 (1964)). King’s counsel should have issued a summons when he received Morado’s statement to the police, referencing Bilskey. As to Bilskey, we find that the trial court did not abuse its discretion in denying the continuance in order to allow his testimony at a later date. With respect to Bilskey, defense counsel did not use due diligence, when it learned of Bilskey, to assure that he would be available to testify. Further, the supreme court has held that a trial court did not abuse its discretion in denying a continuance due to an absent witness, when the defendant failed to indicate the whereabouts of the witness or show that the witness would be available in the future. Parham v. State, 229 So.2d 582, 584 (Miss.1969) (citing Ellis v. State, 198 Miss. 804, 23 So.2d 688 (1945)). Here, there is only a vague reference that Bilskey may be somewhere in St. Louis, Missouri.

¶ 11. As to Miat, the same result is reached. A defendant is entitled to compulsory process of those witnesses favorable to his case as guaranteed by Article 3, Section 26 of the Mississippi Constitution and the Sixth Amendment to the United States Constitution. However, this right is not absolute and “may require a showing of some colorable need for persons to be summoned.” Hentz v. State, 542 So.2d 914, 915-16 (Miss.1989). Indeed, the defendant must show that the proposed witness’ testimony would have been relevant, material, and vital. Id. Additionally, a showing of some degree of due diligence is required when claiming the trial court erred in denying a defendant’s motion for a continuance for absence of a witness. Wilson v. State, 716 So.2d 1096(¶ 20) (Miss.1998). Specifically, a motion for new trial raising this issue as error must contain either an affidavit of the absent witness detailing what his testimony would have been, or a showing of the impracticability of obtaining the affidavit despite diligent attempts. Id. (citing Thigpen v. State, 206 Miss. 87, 93, 39 So.2d 768, 769 (1949)); see also Smiley v. State, 815 So.2d 1140(¶ 15) (Miss.2002). Additionally, in Cleveland v. State, 820 So.2d 37(¶ 11) (Miss.Ct.App.2002), this Court held that the trial court did not err in denying Cleveland’s motion for a continuance to allow time for an absent witness, Raymond Murrell, to be found as, on appeal, there was no showing that “it was impossible or impracticable to secure the attendance of the witness or to secure his affidavit.” In affirming the lower court we stated, “[o]ther than the mere assertions made during the trial by counsel for Cleveland regarding Murrell’s testimony, there is no substantial proof that what Murrell would have said would have aided Cleveland.” Id.

¶ 12. In Rogers v. State, 891 So.2d 268(¶ 28) (Miss.Ct.App.2004) this Court held that the trial court’s denial of a defendant’s motion for a continuance to acquire the attendance of newly discovered witnesses was not error. Rogers was convicted in the Circuit Court of Madison County for the sale of cocaine. Id. at (¶ 1). On appeal he argued that the State disclosed a video depicting the drug sale to him prior to trial, but failed to show him a second video played for the jury in which, according to Rogers, different individuals were present from the first video. Id. at (¶ 23). He requested a continuance in order to contact these individuals and have them testify on his behalf. Id. at (¶ 25). The trial court inquired on who these individuals were and issued subpoenas instanter for the persons identified by Rogers. Id. at (¶ 26). However, the trial court denied his motion for a continuance. Id. In affirming the trial court’s ruling, we noted that the court assisted Rogers by issuing subpoenas for the requested witnesses, but held that without any indication that they had personal knowledge on the guilt or innocence of Rogers we could not say the judge erred. Id. at (¶ 28).

¶ 13. King’s attorney supposedly learned of Miat for the first time during cross-examination of Morado. Without any indication in the record for a basis for his belief, King’s attorney stated, “I feel like that [Bilskey or Miat] would seriously impeach Mr. Morado’s testimony, and attack the credibility of the whole story, and that the jury is entitled to hear this.” In furtherance of King’s right of compulsory process, the trial court immediately issued a subpoena instanter, but Miat did not show. There is no indication in the record that King made any further attempt to contact Miat post-trial. This is evident in his motion for a new trial in which he claims that Miat’s “testimony would have impeached the States [sic] witness,” but gives no indication what that testimony would be, or just how it would have impeached the State’s witness.

¶ 14. On appeal, King does not argue that Miat would have any knowledge of his guilt or innocence in the planning and culmination of Warren’s murder. He does not argue that. Miat could shed new light as to discussions Morado claimed he had with King concerning the assassination, to Morado’s claim that he was paid $4,000 given and a vehicle by King for his services, or any substantive issue in the case. He only argues that Miat might have information that would contradict Morado’s testimony that Miat drove him to Bilskey’s house. However, as was the case in Rogers and Cleveland, King has shown neither a colorable need for the presence of Miat through Miat’s proposed testimony by affidavit, nor that it was impossible or impracticable to secure Miat’s affidavit. Therefore, “[w]e cannot reverse [the trial court] because we have no idea what [Miat] would have said in aid of [King],” and as such, there has been no showing that the trial court’s actions resulted in a manifest injustice. Wilson, 716 So.2d at (¶ 21). We affirm.

¶ 15. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: IRVING, J.,

text:
    Michael Ames WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00751-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.
    Tommy Wayne Defer, Water Valley, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., IRVING, and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. Michael Ames Williams was convicted by a jury of possession of more than thirty grams of marihuanaj but less than two-hundred-and-fifty grams, and was sentenced by the Tallahatchie County Circuit Court to serve twenty years in the custody of the Mississippi Department of Corrections as a habitual offender. The court ordered that the sentence run consecutive to Williams’s sentence in cause number CR97-12-C-T2, an April 3, 1998 armed robbery conviction. Aggrieved, Williams appeals and asserts that the court erred in having him restrained in shackles during the trial, in refusing to grant a mistrial during voir dire, and in denying his motion in limine to exclude certain evidence about his conduct during his arrest.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On January 26, 2005, law enforcement officers confronted Williams in a pool hall in Tutwiler, Mississippi, and attempted to serve an arrest warrant on him. Williams struggled with the officers, and as he did so a small bag of what appeared to be marihuana fell out of his sleeve. Williams was taken into custody and transported to the county jail, where he was stripped and searched, a standard procedure upon admission to the jail. During the search, officers found forty-two bags of marihuana concealed in Williams’s underwear. Thereafter, Williams was indicted for possession of marihuana with intent to distribute.

¶ 4. Williams initially hired his own attorney to represent him. However, he and his attorney had a falling out, and that attorney was released from the case. Thereafter, the court appointed an attorney to represent Williams. On the morning of trial, Williams requested a continuance to get a new attorney, claiming that his court-appointed attorney had not done enough to prepare for his case. The attorney, who was present, denied Williams’s allegations and stated that he had prepared adequately for the trial. The court refused to grant a continuance and stated that the trial would continue as scheduled. During this time, Williams was extremely belligerent with the court, and the judge had difficulty speaking over him.

1Í 5. When the court attempted to begin voir dire, Williams refused to leave the judge’s chambers. Thereafter, the judge returned to her chambers. At that time, Williams refused to respond to the court in any way. The court ordered that Williams be put in shackles and returned to the jury room for trial. The court reasoned that Williams’s demeanor, his history, and the fact that it had taken six officers to restrain him during his arrest indicated that Williams posed a risk to those in the courtroom. The court specifically noted that, due to the layout of the courtroom and Williams’s clothing, it would be exceedingly difficult for the jury to see the shackles unless Williams drew attention to them. Trial then proceeded, presumably with Williams shackled.

¶ 6. During voir dire, the court asked the jury panel if any of them knew Williams. One of the potential jurors stated that he knew Williams: “I work for the county jail, for CCA, and he’s been in and out of the jail sometime.” Williams immediately requested a mistrial, which was denied. Williams took the stand in his defense, and at the close of the evidence, the jury found Williams guilty of simple possession of marihuana.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Use of Restraints in Presence of Jury

¶ 8. In his first contention of error, Williams claims that the court erred in allowing him to enter the courtroom in restraints. In general, a defendant has the right to be “free of shackles or handcuffs” when in front of the jury. Smith v. State, 877 So.2d 369, 379(¶ 17) (Miss.2004) (citations omitted). “However, where there is a risk of escape or the possibility of harm to other persons, restraint devices may be used in the judge’s discretion.” Id. (citing Brown v. State, 798 So.2d 481, 501(¶ 42) (Miss.2001)). There must be a showing of prejudice to Williams before we will reverse his conviction on this ground. Payton v. State, 897 So.2d 921, 932(¶ 16) (Miss.2003) (citing Lockett v. State, 517 So.2d 1317, 1329 (Miss.1987); Hickson v. State, 472 So.2d 379, 383 (Miss.1985)).

¶ 9. The court in this case ordered that Williams be shackled only after he became belligerent and refused to enter the courtroom under his own volition. The sheriff who was present noted that it had taken six officers to subdue Williams when he was arrested. The court found that Williams should be shackled, and explained:

Let the record reflect that Mr. Williams is still refusing to look at the court or to speak to the court or to answer any questions from the court. So the record will reflect that Mr. Williams is refusing to cooperate and refusing to talk with his attorney or to make any record on his own behalf. Based on Mr. Williams’s conduct this morning, his demeanor before this court, I see him clearly as a security risk at this time, and I’m going to grant the sheriffs request to keep him in leg irons as we are before the court this morning.
The record should reflect that Mr. Williams is indicted for possession of more than 30 grams of marijuana as a 99-19-83 habitual offender. He has two prior convictions for grand larceny and for armed robbery out of this county. He has, in fact, been revoked and I believe is doing a ten year sentence at this time on a revoked sentence. He is a[sic] MDOC inmate and the court has many, many security concerns about this courthouse, even on a good day.

The sheriff then noted that “based on the clothes that he’s got on, it’s going to be very unlikely anybody would see handcuffs or leg irons on him anyhow.” The court had also made a previous finding regarding the visibility of the restraints:

Well, leg shackles have just been placed on this defendant, and I want the record to be abundantly clear that if Mr. Williams were to walk from the point where he is right now in chambers and into that courtroom and sit at counsel table, there is a sufficient bar in that courtroom that would prevent any juror from knowing that he is, in fact, shackled. There is a solid barrier between the area where the jurors are sitting and the area of the counsel table. His feet would be completely concealed where they could not be seen by the jury panel. If Mr. Williams, however, chooses to and walks out of this chambers and makes a disturbance there in the courtroom, no doubt the jury panel will be made aware that there are restraints. So, as the court sees it, that’s up to Mr. Williams how he chooses to handle that.

Williams’s attorney did not agree with the court’s assessment that it would be impossible for the jury to see Williams’s feet, as he stated that there were “spaces, cracks in between where you can look through and see a person’s feet.”

¶ 10. Given Williams’s belligerent demeanor, his past history of violence, the fact that it had taken six officers to arrest him, and his refusal to cooperate in proceeding with the trial, we cannot say that the court erred in ordering that he be shackled the morning of trial. Furthermore, Williams has shown no prejudice that resulted from this shackling. In fact, Williams has not even shown that any of the jurors actually observed the shackles. The court and the sheriff indicated that, due to a combination of the clothes that Williams was wearing and the layout of the courtroom, it would be very difficult for the jury panel to see the shackles. Williams has produced nothing to indicate that the jury was able to see the shackles despite his clothes and the courtroom furniture.

¶ 11. This contention is without merit.

2. Denial of Mistrial

¶ 12. In his second claim of error, Williams argues that the court erred in refusing to grant a mistrial after a potential juror stated that he knew Williams because Williams had been in and out of the county jail. We review the grant or denial of a mistrial under an abuse of discretion standard. Sipp v. State, 936 So.2d 326, 331(¶ 7) (Miss.2006) (citing Tate v. State, 912 So.2d 919, 932(¶ 41) (Miss.2005)). “The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s case; however, the trial judge is permitted considerable discretion in determining whether a mistrial is warranted since the judge is best positioned for measuring the prejudicial effect.” Id. (citing Tate, 912 So.2d at 932(¶ 41)).

¶ 13. Given the highly deferential standard of review that applies to the denial of a motion for a mistrial, we cannot say that the court erred, or that “substantial and irreparable prejudice” was done to Williams’s case. Williams also contends that the court should have instructed the jury to disregard the remarks, although Williams did not request any such cautionary instruction. We find that this contention is procedurally barred from appeal because of Williams’s failure to request such an instruction. See Rubenstein v. State, 941 So.2d 735, 760-61 (¶¶ 89-92) (Miss.2006). Furthermore, any error in this regard was harmless. Williams took the stand and testified that he had previously been in jail for some period of time. Any harm done by a potential juror stating that he knew Williams from the county jail became harmless when Williams himself openly testified that he had been in jail prior to trial.

¶ 14. This contention is also without merit.

3. Motion in Limine

¶ 15. In his final claim of error, Williams contends that the court erred in refusing to suppress testimony by the arresting officers regarding his arrest, either by granting Williams’s pretrial motion in limine, or by sustaining his objections made to the testimony during trial. Specifically, Williams did not want the officers to testify about how he fought with them as they attempted to arrest him. We will not reverse a trial court for the admission or denial of evidence unless the court abused its discretion. Mingo v. State, 944 So.2d 18, 28(¶ 27) (Miss.2006).

¶ 16. There are at least two reasons justifying admission of the evidence in question. First, the marihuana was discovered by the officers when it fell out of Williams’s shirt sleeve as he struggled with the officers in a futile attempt to avoid being arrested pursuant to an arrest warrant. Therefore, testimony about the struggle was necessary to relate to the jury the complete story of how the marihuana was discovered. Second, Rule 404(b) of the Mississippi Rules of Evidence states that evidence of another crime or bad act is admissible to show “other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” The Mississippi Supreme Court has noted that “it is well settled that evidence of flight or escape is admissible as an exception to M.R.E. 404(b) in order to show guilty knowledge.” Shumpert v. State, 935 So.2d 962, 974(¶ 48) (Miss.2006). Likewise, Williams’s struggle with the officers is admissible because it tends to show his “guilty knowledge” of the marihuana.

¶ 17. Even if evidence is generally admissible under 404(b), it must still “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 considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403. Given the highly relevant and probative nature of this aspect of the evidence, we do not find that the dangers of unfair prejudice and confusion outweighed the reasons for admitting the evidence. Therefore, the court did not abuse its discretion in allowing the evidence to be admitted.

¶ 18. Furthermore, given the overwhelming weight of the evidence against Williams, even were we incorrect and error flowed from the court’s admission of the testimony, any such error would be harmless. See Isom v. State, 928 So.2d 840, 845-46(¶ 15) (Miss.2006).

¶ 19. This contention of error is also without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF TALLAHATCHIE COUNTY OF CONVICTION OF POSSESSION OF MARIHUANA, IN AN AMOUNT LESS THAN TWO HUNDRED FIFTY GRAMS BUT MORE THAN THIRTY GRAMS AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AS A HABITUAL OFFENDER, TO BE SERVED CONSECUTIVELY TO THE SENTENCE IMPOSED IN CAUSE NO. CR97-12-C-T2, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TALLAHATCHIE COUNTY.

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

      . At trial, the court reduced the charge to simple possession of marihuana.


author: IRVING, J„

text:
    James E. GODBOLD, Appellant v. WATER VALLEY, Mississippi, Appellee.
    No. 2006-KM-00572-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.

      Jeffrey Jude Padgett, Batesville, for appellant.
    Tommy W. Defer, Water Valley, for ap-pellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J„

for the Court.

¶ 1. James Godbold was convicted of first offense driving under the influence (DUI) by the Water Valley, Mississippi, Municipal Court and was sentenced to pay a $751 fine. Aggrieved, Godbold appealed his conviction to the Yalobusha County Circuit Court, which conducted a trial de novo. The circuit court also found Godbold guilty. Godbold now appeals, and asserts (1) that the proper procedures were not followed when his blood alcohol content was tested with the Intoxilizer 8000, and (2) that the citation issued to him was flawed because it did not include the physical address of the courthouse.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Godbold was involved in a two-vehicle accident on May 14, 2005, in Water Valley, Mississippi. Water Valley Police Officer Marshall Jackson questioned Godbold at the scene and noted the strong smell of alcohol coming from Godbold’s breath. According to Officer Jackson, Godbold admitted to drinking earlier in the night at a local restaurant. Officer Jackson also noted that Godbold’s speech was slowed and that his eyes were bloodshot. After Godbold tested positive for the presence of alcohol on a portable test at the scene, Godbold was taken into custody'and transported to the Yalobusha County Sheriffs Department. While there, Godbold’s blood alcohol content was tested using the Intoxilizer 8000, which showed a .11 saturation.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Intoxilizer 8000 Test

¶ 5. Godbold first contends that the court erred in allowing the admission of his Intoxilizer 8000 test results. Specifically, Godbold asserts that a statutorily-required fifteen-minute observation period was not performed in this case. Godbold bases this contention on the fact that the test indicates that the official observation period began at 12:13 a.m., while the actual test began at 12:26 a.m., only thirteen minutes later.

¶ 6. This argument fails because Godbold did not blow into the machine at the start of the test. After thirteen minutes had passed, the report indicates that preliminary matters were done on the machine, such as calibration. Godbold then blew into the machine twice — once at 12:38 a.m., and once at 12:40 a.m. The 12:40 a.m. test yielded the lowest result, .11, and Godbold was charged with DUI on the basis of that test. Therefore, the record clearly reflects that the test in question began twenty-seven minutes after the observation period began, well beyond the statutorily-required fifteen-minute waiting period. Godbold has presented no evidence to suggest that the observation of him did not continue as the machine was calibrated in preparation for his test. The relevant statute, Mississippi Code Annotated section 63-11-5(1) (Rev.2004), states only that no test can be given “within fifteen minutes of consumption of any substance by mouth.” Clearly, Godbold was observed for over fifteen minutes and was not observed to consume “any substance by mouth.”

¶ 7. Admission of evidence, including DUI test results, is “largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” McIlwain v. State, 700 So.2d 586, 590(¶ 17) (Miss.1997) (quoting Johnston v. State, 567 So.2d 237, 238 (Miss.1990)). The proper predicate, as outlined in Mcllwain, was established in this case to allow admission of the test results. See id. at 590(¶ 18). Specifically, the proper procedures were followed, the administrator of the test was certified to perform the test, and the machine had been properly certified.

¶ 8. This contention is without merit.

2. Sufficiency of the Citation

¶ 9. Godbold contends that the citation issued him was insufficient because it contained a post office box address for the Water Valley Municipal Court rather than a physical address. As support for his argument, Godbold cites Mississippi Attorney General Opinion No.2006-00216, which states: “There is no statutory requirement referencing ‘address’ on the traffic ticket. However it is the opinion of this office that the ‘address’ must be the physical address of the applicable court.... The mailing address ... may also be included in addition to the physical address.” However, Godbold admits that the relevant statute, Mississippi Code Annotated section 63-9-21 (Rev.2004), contains no requirement that a citation contain a court’s physical address.

¶ 10. We note at the outset that the above opinion was rendered on June 2, 2006, after the resolution of Godbold’s case. Therefore, the opinion could not have been used as guidance in the issuance of the citation in Godbold’s case. Furthermore, opinions issued by the Attorney General are merely advisory and are not binding on courts. See Shelter Mut. Ins. Co. v. Dale, 914 So.2d 698, 703(¶ 19) (Miss.2005). The Mississippi Supreme Court has stated that a citation that contains all of the information required by section 63-9-21, and that has been properly filed and attested to by the issuing officer, constitutes a “sworn affidavit.” Wheeler v. Stewart, 798 So.2d 386, 390(¶ 8) (Miss.2001). Finally, any error in the citation for not including the physical address of the court was clearly harmless and does not require a reversal of this case. Godbold has alleged no prejudice resulting from the absence of the court’s physical address on his citation.

¶ 11. This issue is also without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY OF CONVICTION OF DRIVING UNDER THE INFLUENCE FIRST OFFENSE AND SENTENCE OF NO JAIL TIME AND A FINE OF $751 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: GRIFFIS, J.,

text:
    Norris HOLLY, Sr. and Bobbie D. Holly, Appellants v. HARRAH’S TUNICA CORPORATION, Harrah’s Operating Company, Inc., Kym Sleezer, David Potts and Robert Casey, Appellees.
    No. 2006-CP-00805-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.

      Norris Holly, Sr., Appellant, pro se.
    Bobbie D. Holly, Appellant, pro se.
    John W. Simmons, George W. Loveland, II, attorneys for appellees.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Norris Holly, Sr., and Bobbie D. Holly brought this action against Harrah’s Tunica Corporation, Harrah’s Operating Company, Inc., Kym Sleezer, David Potts, Robert Casey, and John Does 1-10 for malicious prosecution, abuse of process, civil conspiracy, intentional infliction of emotional distress, menace, negligence, assault, defamation, false imprisonment, battery, and loss of consortium. The trial court dismissed the action for failure to obtain counsel. Mr. and Mrs. Holly appeal and argue they should be allowed to pursue their action pro se. We find error and reverse and remand the case for further proceedings.

FACTS

¶ 2. Mr. and Mrs. Holly are residents of Friars Point, Coahoma County. Norris Holly was employed as a slot host at Har-rah’s Casino in Robinsonville, Mississippi. On or about September 30, 2000, Harrah’s accused Norris of embezzling $2,000. Mr. and Mrs. Holly allege that Norris was threatened, interrogated, handcuffed and paraded around three floors of the casino. Norris spent three days in jail, and the charges against him were eventually dropped.

¶ 3. On June 25, 2001, Mr. and Mrs. Holly filed their complaint and commenced this action against several of Harrah’s corporate entities and several of Harrah’s employees who were directly involved in the incident. The complaint was signed by attorney Curt Crowley, and it listed W.O. Luckett, Jr. and the Luckett Law Firm, P.A., as counsel for the plaintiffs.

¶ 4. On August 20, 2001, the defendants filed an answer and counterclaim. The defendants’ counterclaim asserted a claim for conversion and asked for compensatory damages of $2,000 and punitive damages.

¶ 5. On December 4, 2001, the court entered an order that granted the defendants’ motion to extend deadlines. The deadline for discovery, the filing of motions and filing a pretrial statement were set. On April 8, 2002, the court entered an order that granted the defendants’ second motion to extend deadlines. On April 15, 2002, the court entered an order granting defendants’ motion to compel discovery and ordering plaintiffs’ counsel to pay defendants’ attorney’s fees as sanctions. On June 11, 2002, the court entered an order that denied the plaintiffs’ motion to vacate the order imposing sanctions.

¶ 6. On June 20, 2002, plaintiffs’ counsel of record, Curt Crowley, filed a motion to withdraw. As part of the motion, attorney Crowley asked the court for permission to withdraw based on his relocation and “for other reasons disclosed to the court in camera ...” This Court takes note that the motion to withdraw only asked for permission for Crowley to withdraw. The motion made no request for permission for attorney Luckett or the Luckett Law Firm, P.A. to withdraw. By order dated September 9, 2002, the court granted Crowley permission to withdraw and ordered the plaintiffs to retain substitute counsel within sixty days from August 14, 2002. Thus, the plaintiffs had until October 14th to obtain counsel.

¶ 7. On October 16, 2002, the defendants filed a motion to dismiss. The motion stated that it was filed “pursuant to Rules 12 and 56 of the Mississippi Rules of Civil Procedure” and asked the court to dismiss the plaintiffs’ complaint for their failure to get substitute counsel. The motion did not include a notice of hearing. Two days later, on October 18th, Norris Holly filed a motion for extension of time and claimed that he had surgery on September 20th, was diagnosed with cancer and had to attend physical therapy.

¶ 8. The clerk’s docket does not show the entry of an order on the plaintiffs’ motion for an extension of time. However, attached to the defendants’ second motion to dismiss, as Exhibit 4, is an order, dated October 18th and signed by the trial judge, that granted the plaintiffs a thirty day extension.

¶ 9. On November 18, 2002, Wilbert L. Johnson filed an entry of appearance to serve as counsel for the plaintiff. The certificate of service indicates that a copy was served on defendants’ counsel. Nevertheless, one day later, on November 19th, the defendants executed (it was filed on November 20th) the second motion to dismiss for failure “to retain substitute counsel in accordance with court’s prior orders.” The motion was not served on Johnson and there was no notice of hearing. That same day, on November 20th, the trial court signed an order that granted the motion to dismiss. The order provided that the plaintiffs failed “to comply with this court’s two prior orders requiring plaintiffs to retain substitute counsel within the time periods set forth in those orders.”

¶ 10. On December 4, 2002, the plaintiffs filed a motion to set aside the order of dismissal. On December 18th, the defendants filed their response in opposition to the motion to set aside order of dismissal. The record before us does not include an order by the trial court that ever granted the motion and reinstated the case or denied the motion to set aside the dismissal.

¶ 11. On September 17, 2003, Johnson filed a motion for leave to withdraw as counsel for the plaintiffs. The reason given was that Johnson’s National Guard unit was summoned to active duty on January 24, 2004. The motion asked the court to allow the Hollys ninety days to obtain counsel. The motion did not contain a notice of hearing. By order dated September 23, 2003, the court granted Johnson’s motion for leave to withdraw and gave the Hollys ninety days to obtain counsel.

¶ 12. On December 18, 2003, Lawrence M. Magdovitz, II filed a notice of appearance as counsel for the plaintiffs.

¶ 13. On May 17, 2005, Robert M. Tyner of the Luckett Tyner Law Firm, P.A. filed a motion to withdraw as counsel for the plaintiffs. The motion indicated that Tyner was co-counsel with Magdovitz, and a potential conflict of interest developed for Tyner. The motion indicated no prejudice to the plaintiffs because Magdovitz would continue their representation. On May 26, 2005, the court entered an order that ordered “that Robert M. Tyner, Jr. and the firm of Luckett Tyner Law Firm, P.A. should be allowed to withdraw.”

¶ 14. On September 16, 2005, the defendants filed a motion to dismiss plaintiffs’ complaint. As grounds for the motion, the defendants argued that the plaintiffs failed to prosecute the case for more than three years and the defendants were prejudiced thereby. The motion asked that the complaint be dismissed with prejudice pursuant to Rule 41 of the Mississippi Rules of Civil Procedure. On September 22, 2005, the defendants’ counsel served a notice of hearing of defendants’ motion to dismiss plaintiffs complaint on Magdovitz, the plaintiffs’ counsel. The hearing was scheduled for October 24, 2005. On September 23rd, Magdovitz served the plaintiffs’ response to the motion.

¶ 15. By order dated April 25, 2006, the trial court denied the motion to set aside order of dismissal. The order stated:

Procedurally, this matter has many twists and turns. The plaintiffs have retained several different attorneys throughout the course of the litigation for various different reasons. Most recently, the plaintiffs have been represented by the Honorable Lawrence Magdovitz, II.
On November 20, 2002, this court entered an order dismissing the complaint against the defendants due to the plaintiffs’ failure to retain substitute counsel in the period established by this court in a previous order. Subsequently, the plaintiffs retained the Honorable Wilbert L. Johnson to represent them. Mr. Johnson filed a motion to set aside the order of dismissal, but before the motion could be ruled on, Mr. Johnson had to withdraw as counsel after being called to active duty with the United States Military.
Following Mr. Johnson’s withdrawal, the plaintiffs retained the Honorable Robert M. Tyner, Jr. to represent them. Mr. Tyner later filed a motion to withdraw citing a conflict that had arose. After Mr. Tyners’s withdrawal, the plaintiffs retained their current counsel, the Honorable Lawrence Magdovitz, II.
On September 16, 2005, the defendants filed another motion to dismiss.
It is the opinion of the court that since plaintiffs’ motion to set aside order of dismissal has heretofore not been ruled on, the previous order of dismissal entered by the court is still valid. It is for that reason that the defendants’ motion to dismiss is not ripe.
Considering all of the history in this matter and the merits of the motion itself, the plaintiffs’ motion to set aside order of default is hereby DENIED. The complaint against the defendants is finally DISMISSED.

¶ 16. On May 11, 2006, Mr. and Mrs. Holly filed their notice of appeal. Mr. and Mrs. Holly are not represented by counsel on appeal and proceed pro se.

STANDARD OF REVIEW

¶ 17. The standard of review of an involuntary dismissal is abuse of discretion. Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990).

ANALYSIS

¶ 18. Rule 41(b) of the Mississippi Rules of Civil Procedure provides for an involuntary dismissal with prejudice, “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.” The rule also allows for the dismissal to operate as an adjudication on the merits. Id. However, because the law favors a trial on the merits, a dismissal with prejudice should be executed reluctantly. Hoffman v. Paracelsus Health Care, 752 So.2d 1030, 1034(¶ 11) (Miss.1999). It is an extreme and harsh sanction which is reserved for the most egregious cases. Id. “Moreover, dismissal for failure to comply with an order of the [court] is appropriate only where there is a clear record of delay or contumacious conduct and lesser sanctions would not serve the best interests of justice.” Wallace, 572 So.2d at 376.

¶ 19. Our review of this matter is based on the record before us. We begin with the findings in the trial judge’s order. We find three compelling reasons that require this Court to reverse and remand this case for further proceedings.

¶ 20. First, there was no factual basis to support the court’s entry of the order of dismissal. The order of dismissal was entered two days after the plaintiffs did exactly what they were ordered to do, acquire substitute counsel. The October 18, 2002 order gave the plaintiffs thirty days to retain counsel. The thirty day period would expire on November 17th, which was a Sunday. Accordingly, by filing an entry of appearance on Monday, November 18, 2002, the plaintiffs complied with the court’s October 18th order. The entry of appearance apparently crossed in the mail with the defendants’ motion to dismiss. According to the record, when the court entered the order on November 20th, the plaintiffs were in compliance with the earlier court order. Thus, there was no factual basis for the trial court to enter an order of dismissal.

¶ 21. Second, the procedural requirements were not followed and proper notice was not permitted by the court’s action. On November 19th, defendants served a copy of the motion to dismiss on Mr. and Mrs. Holly. The motion was not set for hearing. Rule 6(d) of the Mississippi Rules of Civil Procedure provides that a “written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time fixed for the hearing, unless a different period is fixed by these rules or by order of the court.” Our rules clearly required that the defendants give the plaintiffs notice of the motion and at least five days to respond. These rules notwithstanding, the court entered an order the following day, on November 20th, and the timing of the entry of the order failed to allow the plaintiffs’ proper notice or an opportunity to be heard.

¶ 22. Finally, there was no legal basis to support the dismissal. “There is no requirement that a party must be represented by an attorney. Therefore, dismissing a party’s lawsuit simply because that party has not acquired an attorney is clearly an abuse of discretion.” Camacho v. Chandeleur Homes, Inc., 862 So.2d 540, 544(¶ 16) (Miss.Ct.App.2003). We find no legal authority that requires a party to be represented by an attorney. Indeed, Mississippi courthouses are open to its citizens. Miss. Const. art. 3, § 24. Our constitution demands that “[a]ll courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.” Id. Further, “[n]o person shall be barred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both.” Miss. Const. art. 3, § 25. For the trial court to require an attorney imposes a restriction that our constitution, statutes and case authority do not support. Bullard v. Morris, 547 So.2d 789, 790 (Miss.1989); Saxon v. Harvey, 223 So.2d 620, 623-24 (Miss.1969) (holding a party may represent him or herself even though not licensed to practice law).

¶ 23. In their brief before this Court, the defendants/appellees argue that the motion to set aside was not timely brought. The trial court’s final judgment dated April 25, 2006, indicates that it is the final and appealable judgment. Also, even if we agreed that the original 2002 order was the final judgment, the motion to set aside was timely. Rule 60(b) requires that a motion to set aside must be made within six months of the final judgment where the movant is relying on fraud, misrepresentation or a mistake of fact. Mr. and Mrs. Holly made their motion within a matter of days and argued that the trial court relied on a mistake of fact.

¶ 24. We find that the trial court abused its discretion. Therefore, we reverse and remand this case for further proceedings consistent with this opinion.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

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

      . Indeed, the plaintiffs should have been allowed more time under Rule 6(a), Saturdays, Sundays and legal holidays excluded when time less than seven days, and 6(d), three days added for service by mail.