author: RANDOLPH, Justice,

text:
    Tabitha Yolanda MILLER a/k/a Tab v. STATE of Mississippi.
    No. 2005-KA-00566-SCT.
    Supreme Court of Mississippi.
    May 17, 2007.

      Carol L. White-Richard, Phillip Broad-head, Oxford, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   RANDOLPH, Justice,

for the Court.

¶ 1. Tabitha Yolanda Miller appeals from her conviction of manslaughter and sentence to twenty years in the custody of the Mississippi Department of Corrections. She raises two issues: (1) the violation of her right to a speedy trial and (2) the denial of a fundamentally fair trial because she was not allowed to present evidence of prior abuse inflicted upon her by the deceased in support of her self-defense theory of the case. Issue (1) is brought for the first time on appeal. As the verdict of the jury is reversed and this case is being remanded for a new trial, we dismiss this issue without prejudice, to be properly filed with the trial court. In regard to Issue (2), this Court finds the trial court erred in excluding relevant evidence to corroborate Miller’s testimony and that such error affected the jury verdict. Therefore, because Miller was denied a fair trial, the verdict is reversed and the case remanded for a new trial.

FACTS

¶ 2. Miller and Calvin James had a brief, but tumultuous, romantic relationship. James abused drugs and was frequently violent toward Miller, including physically attacking her with a broken bottle in June 2000 and with a box cutter in October 2000, so as to twice cause injuries requiring medical treatment in the months preceding his death. Additionally, in early November 2000, James broke into Miller’s home and left her with a black eye, before being arrested for burglary.

¶ 3. On November 23, 2000, four or five days after breaking up with James, Miller and her four children were invited to Thanksgiving dinner at the home of Tasha Lewis’s mother. That afternoon, James appeared there intoxicated and caused a disturbance. He cursed Miller and told her, “[yj’all got death on y’all. My mam-mie, my daddy, and you.” (Emphasis added). Following dinner, Miller drove to the home of Mary Johnson (“Mary”), Miller’s “ex-sister-in-law.” Upon arrival, she saw James coming down the street and, according to Miller, “he went on in the house behind me cursing.”

¶ 4. Thereafter, James asked for a screwdriver. When Mary told him she did not have a screwdriver, he asked for a knife. According to Mary, “we asked him what he was going to do with it. He said that he was going outside to get [the] door off the old abandoned house, because he had to fix [Miller’s] door.”

¶ 5. When James came back inside, Miller testified that she was sitting on the arm of the couch in the living room and he again began cursing her. She then went into the kitchen and asked Mary’s daughter, Brittany, to cut her a piece of cake. Brittany washed off a knife and handed it to Miller. At that point, James began pushing and shoving her, telling her “Diet’s go.” She then called 911. James continued to curse Miller. She initially did not respond because she “kn[e]w how he is[,]” but then told him to leave her alone. He then punched her in the face. When she warned him to get back, James grabbed a butcher knife and drew it back. Afraid that James was going to stab her, Miller stabbed him in the chest. James began approaching her again and Mary pulled him back. He then collapsed on the living room floor. Miller again called the police. James was pronounced dead at the local hospital soon thereafter. Miller admits that she initially told the police that James fell on the knife.

¶6. Miller was arrested and charged with murder on November 23, 2000. Subsequently, she was indicted for manslaughter on May 10, 2001. On June 19, 2001, Miller served the district attorney with a “Demand for Discovery and Speedy Trial” which stated, in part, that “[Miller] does hereby demand a speedy trial pursuant to the laws and statutes of the State of Mississippi, and pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and pursuant to Article 3, Section 26 of the Mississippi Constitution.” No motion for a speedy trial was filed by Miller with the circuit court either before the verdict or in post-trial motions.

¶ 7. Mary and her daughter, Andrekia, had given statements to the police soon after the incident which indicated that James had verbally abused and hit Miller moments before she stabbed him. At trial, the testimony of Mary and Andrekia changed substantially. They testified at the trial that, although James was cursing and walking toward Miller, he was unarmed and had not hit her. On cross-examination, the defense confronted Mary with her earlier statements to the police. While confessing that she had earlier lied to the police in part, she defiantly declared that she never told the police that she first saw James with a knife or that “he killed hisself cause he the one come in the house with the knife.” She maintained this position even after being informed that there was a transcript of her tape-recorded statement. On direct examination, Andre-kia did not remember giving the police a statement after the incident. On cross-examination, however, Andrekia was shown a transcript of the statement and testified, “I remember this right here[,]” after giving conflicting trial testimony.

¶ 8. Additionally, Miller sought to introduce the testimony of Officers Thomas Ross and Freddie Cannon of the Green-ville Police Department to corroborate her testimony regarding prior abuse inflicted upon her by James, under Miss. R. Evid. 404(a)(2). The State objected to Ross’s testimony, which pertained to the June 16, 2000, incident of physical abuse, on grounds of remoteness. Likewise, the State objected to Cannon’s testimony, which pertained to the November 5, 2000, burglary incident. The circuit court sustained both objections. Thereafter, Miller proffered testimony of both officers. Officer Ross testified that he was dispatched to the hospital following an assault in which Miller was the victim and James was the suspect. According to Officer Ross, Miller recounted that after a dispute arose over a crack pipe, “she said ... that [James] picked up a bottle and hit her on the left arm next to the elbow causing a cut to her arm that had to be stitched up by the doctor.” Officer Cannon testified that he arrested James for burglarizing Miller’s home.

¶ 9. On February 9, 2005, the jury found Miller guilty of manslaughter. The Circuit Court of Washington County then sentenced her to twenty years in the custody of the Mississippi Department of Corrections. Miller’s motion for judgment notwithstanding the verdict (“JNOV”) or, in the alternative, for a new trial, which did not raise the speedy trial issue, was denied by the circuit court. Thereafter, she filed notice of appeal.

ANALYSIS

I. DENIAL OF A SPEEDY TRIAL.

¶ 10. This Court has stated that the:

[r]eview of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under this Court’s standard of review, this Court will uphold a decision based on substantial, credible evidence. If no probative evidence supports the trial court’s finding of good cause, this Court will ordinarily reverse.

DeLoach v. State, 722 So.2d 512, 516 (Miss.1998) (citations omitted) (emphasis added). Miller now argues, for the first time, that the delay in her trial violated a statutory right to a trial within 270 days of her arraignment under Miss.Code Ann. § 99-17-1 (Rev.2000) and a constitutional right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution; Article 8, Section 26 of the Mississippi Constitution; and the unanimous holding of the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

¶ 11. As this issue is raised for the first time on appeal, the trial court was not afforded the opportunity to conduct an evi-dentiary hearing and consider evidence and/or testimony regarding the speedy trial issue. This Court is ill-suited to act as a fact-finder. See Southern v. Miss. State Hosp., 853 So.2d 1212, 1214 (Miss.2003) (“The role of an appellate court is not to be a fact finder but rather determine and apply the law to the facts determined by the trier of fact.”). Therefore, this issue is dismissed without prejudice. If properly filed, the circuit court, a court of record, with testimony and exhibits, is better positioned to assess Miller’s claim of a speedy trial violation under the totality of the circumstances via an evidentiary hearing. At that evidentiary hearing, both the defendant and the State may address the length of the delay, the reason for the delay, the timeliness and adequacy of Miller’s assertion of her right, and prejudice to Miller, along with other relevant circumstances. See Barker, 407 U.S. at 530, 533, 92 S.Ct. 2182.

II. DENIAL OF A FUNDAMENTALLY FAIR TRIAL.

¶ 12. Regarding the testimony of Officers Ross and Cannon, Miller argues that:

[presentation of credible evidence of the continuing course of violence that James inflicted on [Miller] in an attempt to establish the reasonableness of her belief that the danger to her of death or great bodily harm was imminent was denied by the trial court, thereby eliminating the material facts that were imperative to aid the jury in understanding the dire situation that [Miller] faced, and thereby rendering a fair verdict based on all of the material evidence in this case.

Furthermore, Miller insists that:

[t]he trial court erroneously and with great prejudice to [Miller] refused to allow the testimony of the officers, which was absolutely essential to corroborate not only the details of [Miller’s] testimony, but also her theory of defense, clearly establishing [Miller’s] state of mind to the jury at the time of the incident.

In total, Miller asserts that because “the jury was not able to place themselves in [Miller’s] position at the time of the killing and apprehend the situation as it was to her,” she “was prejudiced and the court committed reversible error by refusing to allow the testimony pursuant to Miss. R. Evid. 404(a)(2).” In response, the State unpersuasively maintains that the testimony of Officers Ross and Cannon was cumulative and any resulting error was harmless.

¶ 18. According to this Court: [t]he admissibility of testimonial evidence is left to the sound discretion of the trial court within the boundaries of the Mississippi Rules of Evidence, and it will not be found in error unless it has abused its discretion. Such error will warrant reversal only when the abuse of discretion has resulted in prejudice to the accused.

Harris v. State, 861 So.2d 1003, 1018 (Miss.2003) (emphasis added). Miss. R. Evid. 404(a)(2) provides, “[e]vidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: ... [ejvidence of a pertinent trait of character of the victim of the crime offered by an accused-” Miss. R. Evid. 404(a)(2). However, “such evidence is not competent until there has first been some evidence that the victim had been the aggressor.” Robinson v. State, 566 So.2d 1240, 1241 (Miss.1990) (emphasis added). In the case sub judice, sufficient evidence was adduced to create a jury issue as to whether James was the aggressor in the November 23, 2000, incident. Mary’s statement to the police provided that James was verbally abusive to Miller and had wielded a knife in the kitchen; Andrekia’s statement to the police said that James verbally abused and hit Miller before she stabbed him; Lewis testified that James threatened Miller earlier in the day, stating that “she got death around her[;]” and Miller testified that James punched her in the face and was about to stab her with a butcher knife when she stabbed him. “[W]here any doubt exists as to who was the aggressor in an incident which results in the death of a participant or where a defendant claims self-defense, evidence of a deceased’s previous threats and harassments against defendant ... is admissible.” Day v. State, 589 So.2d 637, 642 (Miss.1991). The importance of admitting such evidence lies in the fact that it “enables jurors to put themselves in the defendant’s place at the time of the killing and view the situation as it appeared to him.” Id. The testimony of those officers was relevant to support her testimony of prior incidents. Given that evidence was presented that James was the aggressor, this Court finds that the circuit court abused its discretion in deeming the testimony of Officers Ross and Cannon inadmissible. Furthermore, this error was not harmless, as it cannot be maintained that “the same result would have been reached had [the error] not existed.” Burnside v. State, 882 So.2d 212, 216 (Miss.2004) (quoting Lancaster v. State, 200 So. 721, 722 (Miss.1941)). In short, “[wjithout all the facts and circumstances surrounding the [incident], the jury was handicapped in determining what really occurred, and [Miller] was prejudiced by any decision that resulted.” Day, 589 So.2d at 644. Given that prejudice, this case is reversed and remanded to the circuit court for a new trial.

CONCLUSION

¶ 14. Based upon the aforementioned analysis, this Court finds that Issue (1) was improperly raised for the first time on appeal and, therefore, is dismissed without prejudice to properly file a motion in the trial court. Regarding Issue (2), this Court finds the trial court erred in excluding relevant and probative evidence which affected the jury verdict. As Miller was denied a fair trial, the verdict is reversed and the case remanded for a new trial.

¶ 15. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND DIAZ, P. JJ., CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Miller testified they were not together long because "[h]e used to mistreat me.”

      . James’s autopsy revealed "the presence of ethyl alcohol, drinking alcohol, at a high level in the blood system as well as the urine at a concentration of 0.18 percent, ethyl alcohol in the blood and 0.29 percent in the urine specimen.” Moreover, the physician who performed the autopsy averred that "the blood alcohol was with reasonable certainty higher than what is recorded in that there was administration of fluids to the decedent which would have a dilutional effect o[n] the blood ethyl alcohol level.”

      . This statement was corroborated by Lewis.

      . According to Mary, she and Miller were "still friends" at this time.

      . According to Miller, "[James] had [the knife] on the side of him at first when he was coming toward me, and then he raised it up.”

      . This demand was also filed with the Washington County Circuit Clerk.

      . Note that Travis Johnson, Mary's son, testified that James had "jumped at” Miller, "[a]cting like he was going to hit her[,]” before she stabbed him.

      . Which states, "[ujnless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss.Code Ann. § 99-17-1 (Rev.2000) (emphasis added).

      . In Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), the United States Supreme Court established that the right to a speedy trial is fundamental and, therefore, imposed upon the states by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

      .Regarding Miller’s argument that a change in witness testimony constitutes prejudice, this Court notes that, at present, she offers no proof, only inferences. Furthermore, ”[c]hanges in witnesses’ testimony are not necessarily due to the passage of time and do not, by themselves, constitute proof of prejudice due to delay.” State of Wisconsin v. Huusko, 296 Wis.2d 935, 724 N.W.2d 273, 2006 WL 2596780, *1, 2006 Wisc.App. LEXIS 837 at *4 (Wisc.App.2006). This Court is fully aware that witnesses regularly change their testimony and that, standing alone, does not mean that a delay in trial caused her prejudice.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Louis GARRETT a/k/a Louie Christopher Garrett a/k/a Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01855-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.
    Rehearing Denied Jan. 30, 2007.

      Thomas M. Fortner, Virginia L. Watkins, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Louie Christopher Garrett was convicted in the Circuit Court of Hinds County of aggravated assault. Garrett was found to be an habitual offender and sentenced to a term of life without parole in the custody of the Mississippi Department of Corrections. Following this conviction, Garrett appeals to this Court raising numerous issues.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Louie Christopher Garrett and Carol Roxanne Winham met one another in a Jackson bar where Winham worked as a waitress in early 2003. Shortly after this meeting the two began to live together in Winham’s home where Garrett paid part of the mortgage and household expenses. After a period of time the relationship began to falter and Winham asked her son to “put him out” on July 21, 2003. Upon being removed from Winham’s home, Garrett approached Robert Terry Smith, who was a friend and co-worker of Garrett, to talk to Winham for him.

¶4. On July 23, 2003, Smith went to Winham’s house to talk to her about the relationship between her and Garrett. When Smith arrived at the house Winham suggested that they go to a local bar and play pool, which they did. After a period of time they returned to Winham’s house and went to the backyard where they drank beer and talked about the relationship between Winham and Garrett.

¶ 5. Garrett arrived at the house during this time and proceeded to the rear of the house where he found Smith and Winham. Garrett testified that he found Winham straddling Smith. At this point Garrett entered the backyard and an attack occurred. During the attack Smith was knocked unconscious and came to after the attack was over. During the attack Win-ham was struck by a two by four and chased down the street. Winham received a broken arm, cuts and bruises from the attack.

¶ 6. Garrett was indicted on two counts for causing bodily injury to Smith and Winham by striking them with a two by four, an instrument likely to cause death or serious bodily injury. At trial, Garrett was found guilty of aggravated assault against Winham and not guilty of aggravated assault against Smith. The trial court found Garrett had at least two prior felony convictions, one of which was a crime of violence, and therefore sentenced Garrett to life without parole. From this conviction Garrett appeals raising the following:

I. THE TRIAL COURT ERRED WHEN IT DENIED GARRETT’S MOTION FOR A MISTRIAL AFTER ADMITTING TESTIMONY FROM ROBERT SMITH WHICH WAS HEARSAY SUBJECT TO NO EXCEPTION AND WAS INADMISSIBLE UNDER MISSISSIPPI RULE OF EVIDENCE 404.
II. BLATANT AND REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT REQUIRE REVERSAL.
III. THE TRIAL COURT ERRED WHEN IT REFUSED GARRETT’S INSTRUCTION D-3 ON SELF-DEFENSE, AS AN EVIDENTIARY BASIS CLEARLY EXISTED AND THE COURT THEREBY DENIED GARRETT HIS RIGHT TO PRESENT HIS THEORY OF THE CASE.
IV. THE TRIAL COURT ERRED WHEN IT GRANTED INSTRUCTION S-2A AS THE INSTRUCTION OMITTED AN ESSENTIAL ELEMENT REGARDING THE BURDEN OF THE PROOF TO WHICH THE STATE IS HELD.
V. THE TRIAL COURT ERRED WHEN IT REJECTED INSTRUCTION D-2 PERMITTING THE JURY TO CONSIDER THE LESSER OFFENSE OF SIMPLE ASSAULT WHEN THE RECORD CLEARLY SUPPORTED CONSIDERATION OF A LESSER OFFENSE.
VI. THE TRIAL COURT ERRED IN SENTENCING GARRETT TO LIFE WITHOUT POSSIBILITY OF PAROLE UNDER MISSISSIPPI CODE ANNOTATED § 99-19-83 (REV.2000) AS THE PROSECUTION FAILED TO PROVE GARRETT SERVED THE REQUISITE ONE YEAR FOR EACH OF TWO PREVIOUS FELONY CONVICTIONS.
VII. THE TRIAL COURT ERRED IN SENTENCING GARRETT AS A HABITUAL OFFENDER AS NO PROOF WAS ADDUCED TO DEMONSTRATE GARRETT WAS THE SAME INDIVIDUAL CHARGED IN THE PREVIOUS TWO FELONIES.
VIII. THE TRIAL COURT ERRED WHEN IT PERMITTED DETECTIVE SHARESA SPARKMAN TO TESTIFY AS TO HER OPINION.

DISCUSSION

I. THE TRIAL COURT ERRED WHEN IT DENIED GARRETT’S MOTION FOR A MISTRIAL AFTER ADMITTING TESTIMONY FROM ROBERT SMITH WHICH WAS HEARSAY SUBJECT TO NO EXCEPTION AND WAS INADMISSIBLE UNDER MISSISSIPPI RULE OF EVIDENCE 404.

¶ 7. “Whether to declare a mistrial is committed to the sound discretion of the trial court.” Brent v. State, 632 So.2d 936, 941 (Miss.1994). We will not overturn a trial judge’s decision to overrule a motion for mistrial unless the trial judge committed an abuse of discretion. Bass v. State, 597 So.2d 182, 191 (Miss.1992).

¶ 8. Garrett argues that the trial court should have granted his motion for a mistrial because of hearsay testimony by Smith that Winham told him she awakened one night and Garrett was beating her. Garrett contends that this testimony prejudiced the jury against him as evidenced by the acquittal on the charge of assault upon Smith.

¶ 9. The testimony of Smith, with regard to Garrett beating Winham, was given by Smith when describing his conversation with Winham about her reasons for breaking up with Garrett. Garrett had requested that Smith talk to Winham about the breakup and see if there was the possibility of them getting back together. The testimony of Smith was the reason Win-ham had broken up with Garrett and was not given as character evidence against Garrett.

¶ 10. The supreme court has stated that:

This state has long adhered to the rule that the issue on a criminal trial should be single and that the evidence should be limited to what is relevant to the single issue. Evidence of a prior criminal activity on the part of one criminally accused is inadmissible where the prior offense has not resulted in a conviction. We have held, however, that the State has a “legitimate interest” in telling a rational and coherent story of what happened. Where substantially necessary to present to the jury “the complete story of the crime,” evidence or testimony may be given though it may reveal or suggest other crimes.

Brown v. State, 483 So.2d 328, 330 (Miss.1986). In the case sub judice the testimony of Smith is offered to tell the “rational and coherent story” of the attack. Smith’s testimony was not offered to prove that Garret was beating Winham, but rather to explain the series of events that lead to Smith being at the home of Winham when Garrett attacked them. This is not evidence given as character evidence in violation of the Mississippi Rule of Evidence 404(b).

¶ 11. The testimony of the beatings was part of the complete story. This issue is without merit.

II.BLATANT AND REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT REQUIRE REVERSAL.

¶ 12. Garrett cites five instances of what he characterizes as prosecutorial misconduct. He argues that the assistant district attorney testified during her cross-examination of Garrett. He argues the court erred by denying his request for a mistrial during closing argument claiming the prosecutor argued defense counsel did not believe in his client. Garrett claims it was error to deny his motion for a mistrial based upon the prosecutor arguing the legal basis for the court refusing to instruct the jury on self-defense in count two. Garrett claims it was error to overrule his objection in closing when the assistant district attorney was arguing about the burden of proof. Finally, Garrett claims it was error to overrule his objection to the prosecutor arguing that Garrett agreed that the two by four was a deadly weapon.

¶ 13. We review the trial court’s decision to grant, or deny, a mistrial under an abuse of discretion standard. Horne v. State, 487 So.2d 213, 214 (Miss.1986). A party has broad latitude in closing argument. Wells v. State, 698 So.2d 497, 506 (Miss.1997). A trial judge possesses the authority to declare a mistrial where pros-ecutorial conduct substantially deflects the attention of the jury from the issues that it has been called upon to decide or appeals to bias, passion, or prejudice, and, therefore, significantly impairs a defendant’s right to a fair trial. Hickson v. State, 472 So.2d 379, 384 (Miss.1985). 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 Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990)).

¶ 14. In light of the overwhelming evidence against Garrett, the jury’s verdict likely was not influenced by any prejudice that might have resulted from the assistant district attorney’s isolated comments. As the trial judge was in the best position to determine the level of prejudice, if any, that resulted from this comment, this Court will defer to his finding. Therefore, this issue is without merit.

III. THE TRIAL COURT ERRED WHEN IT REFUSED GARRETT’S INSTRUCTION D-3 ON SELF-DEFENSE, AS AN EVI-DENTIARY BASIS CLEARLY EXISTED AND THE COURT THEREBY DENIED GARRETT HIS RIGHT TO PRESENT HIS THEORY OF THE CASE.

IV. THE TRIAL COURT ERRED WHEN IT GRANTED INSTRUCTION S-2A AS THE INSTRUCTION OMITTED AN ESSENTIAL ELEMENT REGARDING THE BURDEN OF THE PROOF TO WHICH THE STATE IS HELD.

V. THE TRIAL COURT ERRED WHEN IT REJECTED INSTRUCTION D-2 PERMITTING THE JURY TO CONSIDER THE LESSER OFFENSE OF SIMPLE ASSAULT WHEN THE RECORD CLEARLY SUPPORTED CONSIDERATION OF A LESSER OFFENSE.

¶ 15. As his next three issues on appeal, Garrett argues that the court erred in denying two of his proposed jury instructions and granting one of the State’s motions. Garrett contends that the refusals prevented him from presenting his theory of the case. He also contends that the State’s instruction does not provide for the proper burden of proof that must be met by the State. We do not agree.

¶ 16. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002) (quoting Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982)). Defendants do not have an absolute right to have their jury instructions granted. “A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence.” Heidel v. State, 587 So.2d 835, 842 (Miss.1991).

¶ 17. Garrett argues that the court’s refusal to grant his jury instruction D-3 was error. The trial court refused to grant instruction D-3 on the basis that it was not supported by the evidence presented at trial. However, the trial court did provide the defense with the opportunity to revise the instruction. Following a short recess, the court returned to the issue of the instruction D-3 at which time the defense withdrew the instruction and did not enter a revised instruction. Finding that this instruction was no longer before the court, this error is without merit.

¶ 18. With respect to instruction S-2A, Garrett argues that the instruction does not address the State’s burden of proving that he did not act in self-defense. Instruction S-2A states:

The Court instructs the jury that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Louie Christopher Garrett,
(1) on or about July 23, 2003, in the First Judicial District of Hinds County, Mississippi,
(2) did purposely or knowingly and unlawfully, cause bodily injury to Carol Roxanne Winham, a human being,
(3)with a certain deadly weapon, to wit: 2x4 piece of wood,
(4) by then and there striking the said Carol Roxanne Winham with said 2x4 piece of wood, then and in that event, Louie Christopher Garrett is guilty of aggravated assault to Count two and it is your sworn duty to so find.

The evidence at trial did not support the giving of an instruction that the assault on Winham was done in self-defense. Garrett testified at trial that he was swinging the two by four wildly and that Winham did not possess any weapon. This point of error is without merit.

¶ 19. As his final issue regarding jury instructions, Garrett argues that the evidence at trial supported his proposed instruction on simple assault, D-2. This instruction is one of self-defense and not an instruction on simple assault. Instruction D-2 states:

The Court instructs the Jury that to make an assault justifiable on the grounds of self-defense, the danger to the Louie Garrett must have been either actual, present and urgent or the [sic] he must have had reasonable grounds to apprehend a design on the part of Robert Terry Smith and Carol Roxanne Winham to do him some bodily harm. In addition there must have been imminent danger of such design being accomplished.
It is for you, the Jury, to determine the reasonableness of the grounds upon which Louie Garrett acted. If the state has failed to convince you that Louie Garrett was not acting in self defense when he injured Robert Terry Smith or Carol Roxanne Winham, then you shall find him Not Guilty.

The trial court ruled that the applicable law and the evidence of the case did not support the giving of the jury instruction on simple assault. We agree with the trial court.

YI. THE TRIAL COURT ERRED IN SENTENCING GARRETT TO LIFE WITHOUT POSSIBILITY OF PAROLE UNDER MISSISSIPPI CODE ANNOTATED § 99-19-83 (REV.2000) AS THE PROSECUTION FAILED TO PROVE GARRETT SERVED THE REQUISITE ONE YEAR FOR EACH OF TWO PREVIOUS FELONY CONVICTIONS.

¶ 20. Garrett argues that his sentence of life in prison without the possibility of parole is so egregious that it demands reversal. He contends that he did not serve the required one year sentence on his first felony charge in 1990 to meet the requirements of Mississippi Code Annotated § 99-19-83 (Rev.2000). Garrett argues that the one year, one month and twenty-three days he spent in pretrial detention should not count toward the one year sentence. We do not agree.

¶ 21. Garrett acknowledges and the record reflects that he served more than one year for a felony conviction of arson in 1999, for which he spent 1,491 days in custody of the Mississippi Department of Corrections. Garrett contests the amount of time served on his 1990 conviction for sexual battery. Garrett was in pretrial detention for one year, one month and twenty-three days prior to his conviction, where upon he then served six months in the custody of the Mississippi Department of Corrections prior to his release under “shock probation” (R.I.D., Regimented Inmate Discipline). Miss.Code Ann. § 47-7-47 (Rev.2004).

¶ 22. This specific issue was addressed by the supreme court in Feazell v. State, 761 So.2d 140 (Miss.2000). The court held that time served includes pre-trial incarceration in the county jail plus time served after sentencing. Id. at 142 (¶¶ 10-11). Following this case, this issue is without merit.

VII. THE TRIAL COURT ERRED IN SENTENCING GARRETT AS A HABITUAL OFFENDER AS NO PROOF WAS ADDUCED TO DEMONSTRATE GARRETT WAS THE SAME INDIVIDUAL CHARGED IN THE PREVIOUS TWO FELONIES.

¶ 23. As his seventh issue on appeal, Garrett argues that the State has not met the burden of proving that he is the same Louie Christopher Garrett who was convicted on two prior occasions. We do not agree.

¶ 24. At trial Sherry Robinson, Director of Records for the Mississippi Department of Corrections, testified to the identity of Garrett in the previous convictions and the case sub judice. Robinson testified that the files of the Department of Corrections contained a picture of Garrett, his date of birth and his Social Security Number. In her testimony, Robinson stated that all the information in the file matched the Garrett that was currently on trial.

¶25. This testimony was sufficient to support the identification of Garrett as the person convicted on two prior occasions. This issue is without merit.

VIII. THE TRIAL COURT ERRED WHEN IT PERMITTED DETECTIVE SHARESA SPARK-MAN TO TESTIFY AS TO HER OPINION.

¶ 26. As his eighth and final issue on appeal, Garrett contends that Spark-man gave hearsay testimony concerning the medical records supporting a finding that Winham had a broken arm and Smith a fractured skull. Garrett also complains that it was error to allow Sparkman to testify that the broken arm and fractured skull were serious bodily injuries and that a two by four could be a deadly weapon. We do not agree.

¶ 27. The testimony by Sparkman was based on her investigation of the incident. The testimony of Winham and Smith already had presented the injuries they sustained in Garrett’s attack. The testimony of Sparkman was not offered to prove broken bones, but to support her determination that aggravated assault charges were proper against Garrett. M.R.E. 801.

¶ 28. Sparkman testified that she was a detective with the robbery and homicide division of the Jackson Police Department. She testified to a list of items that could be considered as deadly weapons, of which a two by four was included. Sparkman was not qualified by the court as an expert. She could only submit opinion testimony under Mississippi Rule of Evidence 701. Rule 701 provides for limited admissibility of lay opinion testimony. Such evidence is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to the clear understanding of her testimony or the determination of a fact in issue. M.R.E. 701. Rule 701 does not open the door to any and all opinion testimony. Jackson v. State, 551 So.2d 132, 144 (Miss.1989). A lay witness may not express an opinion on an ultimate issue. Id. A lay witness can only give an opinion that is based upon her personal perceptions, and that will help the jury fairly resolve a controverted, material fact. Id. (citing Dale v. Bridges, 507 So.2d 375, 378 (Miss.1987)).

¶ 29. Sparkman’s testimony that a two by four was a deadly weapon was based on her personal perceptions of what constituted a deadly weapon. The testimony was offered concerning the deadly weapon for the purpose of determining why Sparkman chose to charge Garrett with aggravated assault, not to prove that the two by four was a deadly weapon. The same is true for her testimony about the injuries sustained by Winham and Smith as whether they were serious bodily injuries or not. We find this error without merit.

CONCLUSION

¶ 30. Finding that all issues presented on appeal are without merit, we affirm the ruling by the Circuit Court of Hinds County.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER AND SENTENCE TO BE SERVED CONSECUTIVE TO ALL SENTENCES PRESENTLY SERVING INCLUDING FEDERAL CHARGES AND RANKIN COUNTY CIRCUIT COURT SENTENCE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: BARNES, J.,

text:
    Jimmy Wallace SPEAGLE, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00493-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.
    Rehearing Denied March 20, 2007.

      Earl Lindsay Carter, Jr., attorney for appellant.

      Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Jimmy Wallace Speagle was convicted by a jury of his peers in the Circuit Court of Perry County of the crimes of manslaughter and possession of a firearm by a convicted felon. Aggrieved, Speagle perfected his appeal to this Court. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 6:00 p.m. on June 4, 2004, Chief Wayne Penton of the Beaumont, Mississippi Police Department received a telephone call from Jimmy Spea-gle, in which Speagle stated, “You’re going to have to come and pick me up and send somebody to get Taylor [Walker] because I just killed him in my front yard.” Pen-ton notified Officer William Pipkins of the call, and Penton and Pipkins both headed to the Tree Top Manor apartment complex, at which Speagle was a resident. Pipkins arrived on the scene first, with Penton arriving shortly thereafter.

¶ 3. Penton testified that when he arrived, Speagle was on his front porch, and Taylor Walker was lying dead on the sidewalk in front of Speagle’s apartment. Pip-kins testified that when he arrived at the apartment complex, Speagle told him, “I just shot [Walker].” When Pipkins asked where the gun was, Speagle informed him that it was on the seat of his wheelchair, and that he was sitting on it. Pipkins secured the gun, which he described as a German-made .22 revolver; three rounds had been fired, and two were unfired. Speagle informed Pipkins that, prior to the shooting, he and Walker had been arguing and cursing each other; that Walker “slapped tobacco out of [Speagle’s] lap” and walked away; that they continued to curse each other; and that Speagle then finally shot Walker. Speagle also volunteered to Pipkins, “I’ve been in the service; I knew exactly how to stop [Walker].”

¶ 4. Deputy Jimmy Dale Smith of the Perry County Sheriffs Department testified that, shortly after the shooting occurred, he was dispatched to the scene. He stated that when he arrived, he observed Walker lying dead on the sidewalk in front of Speagle’s apartment; Smith later determined the body to be seventeen feet from the front door of the apartment. Additionally, Smith testified that he found neither blood spatters nor scuff marks between Walker’s body and the front porch of the apartment. Smith further testified that after the shooting, he took Speagle to the station for questioning. He testified that Speagle waived his right to counsel and made an oral statement, which was recorded onto a microcassette.

5. In Speagle’s statement — introduced by the State during its case-in-chief-Spea-gle claimed that on the afternoon of June 4, he was sitting on his front porch when Walker threatened him and approached him, brandishing a yellow-handled screwdriver. Speagle stated that Walker then came onto the front porch, knocked a can of tobacco from his hand, and then began to choke him. Speagle stated that it was at this point that he shot Walker. At trial, Speagle testified in his own defense, stating that on the morning of the shooting, Walker had slapped him; that later that afternoon, Walker approached him, “jabbing” with a screwdriver; that Speagle then pulled the gun and pointed it at Walker, warning Walker that he would shoot if he came any closer; that he then fired a warning shot; that Walker began choking him; that Speagle fired one shot; that Walker began to choke him more forcefully; and that he then fired the fatal shot, causing Walker to fall backward onto the sidewalk. Speagle claimed that he shot Walker, who outweighed him by more than 125 pounds, because he was afraid for his life.

¶ 6. Mary Ann Tingle stated that three days prior to the shooting she visited the Tree Top Manor apartment complex to visit her brother and to pay a visit to Walker. She testified that while she was standing on Walker’s front porch, Speagle came out of his apartment and told her, “Tell [Walker] to come on out. I’ve got something for him,” and that Speagle then “picked up a little pistol up out of his wheelchair and then put it back down.” Further, Stephen Mills, a resident of the apartment complex, testified that he saw Speagle and Walker arguing before the shooting took place, and that he heard a shot followed by Walker stating, “You shot me.” Mills testified that Speagle then said to Walker, “No, I ain’t [shot] you, but I’m going to shoot you if you keep messing with me.” Mills stated that he heard another shot and looked around to see Walker take “one or two steps” before hitting the ground. Mills testified that Speagle had been sitting on his porch at the time of the shooting.

¶ 7. Dr. Stephen Hayne, admitted by the court as an expert in the field of forensic pathology, testified that he had performed the autopsy on Walker’s body. Dr. Hayne found that Walker had sustained “an entrance gunshot wound located on the left side of the neck, and ... an exit gunshot wound on the right side of the neck.” Hayne further testified that the lack of gunpowder residue in or around the gunshot wound, in addition to the lack of flame injury to the wound area, led him to the conclusion that the shot that killed Walker had to have been fired from a distance of over two and one-half feet. Hayne also stated his opinion that it would have been impossible for Walker to have traveled seventeen feet without expelling blood; Hayne concluded that the absence of blood between the porch and the place where Walker’s body came to rest meant that Walker had fallen where he was standing when shot.

¶ 8. Speagle was ultimately convicted of the crimes of manslaughter and possession of a firearm by a convicted felon. On appeal, Speagle raises a number of issues, which we address below.

ISSUES AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING SPEAGLE’S MOTION FOR A SPECIAL VENIRE.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO SEQUESTER THE JURY.

III. WHETHER THE TRIAL COURT ERRED IN DENYING SPEAGLE’S MOTION FOR INDIVIDUAL VOIR DIRE OF PROSPECTIVE JURORS.

¶ 9. Speagle claims that the trial court abused its discretion in three respects regarding jury selection and sequestration. We address each separately.

A. Whether the trial court erred in denying Speagle’s motion for a special ve-nire.

¶ 10. Section 13-5-77 of the Mississippi Code provides that, when a person has been charged with a capital crime or with the crime of manslaughter, the accused or the district attorney, upon demand, has the right to a special venire. Miss.Code Ann. § 13-5-77 (Rev.2002); see also Davis v. State, 767 So.2d 986, 1000(¶47) (Miss.2000). If such a venire has been granted, “it is the duty of the trial judge, in open court, to draw from the jury box as many names as he desires in his discretion, not less than 40, for each special venire that is demanded.” Davis, 767 So.2d at 986(¶47). The clerk of the court has the duty to issue a special venire facias directing the sheriff to summon the persons so drawn to appear in court on a particular day. Id. Furthermore, no juror summoned as a special venireman shall be impaneled or serve on more than one jury. Id. Speagle claims that he was prejudiced because the trial court failed to comply with the directives of section 13-5-77 upon his request for a special venire.

¶ 11. Though the trial court denied Speagle’s motion for special venire in' fact, the motion was granted in effect. In ruling upon Speagle’s motion, the trial court stated the following:

The problem this Court sees is that [Speagle] is in jail unable to make bond, that if we continued it, it could not go in the February term because there is a two-week asbestos case set for that term. That would push this all the way to June — the June term at the very earliest. This case is the first case set, so this would be a fresh panel — jury panel. There won’t be a grand jury drawn out of this jury panel, so for all intents and purposes, it will be a special venire for this case. I’m going to instruct the clerk that this jury coming in in December is to be treated as a special venire. Nobody is to be excused unless the parties agree to it .... find that this motion is not timely in that with the [Thanksgiving] holidays, we would not be able to get a special venire served in order to try this matter on December 6, so I am going to deny the motion; however, I have instructed the clerk that the jury that has been summoned is to be treated as a special venire, and this matter will go forward on December 6.

(Emphasis added). This Court will not overrule a trial court’s denial of a motion for special venire except upon an abuse of discretion. Davis v. State, 684 So.2d 643, 650 (Miss.1996). Furthermore, we will not find an abuse of discretion unless the method of selecting jurors used “was fraudulent or such a radical departure from the method prescribed by the statute as to be unfair to the defendant or to prevent due process of law.” Armstrong v. State, 214 So.2d 589, 594 (Miss.1968). It is clear from the record that the trial court took sufficient steps to ensure that Speagle received the benefit of a special venire. We note that the motion was brought to the trial court’s attention on November 23, 2004 — two days before Thanksgiving — and that, had the trial court granted Speagle’s motion, his trial would have been delayed by six months at the very least. Considering the timing of the motion and the trial court’s efforts to accommodate Speagle, we find that the trial court did not abuse its discretion in denying Speagle’s motion. This issue is without merit.

B. Whether the trial court erred in refusing to sequester the jury.

¶ 12. Speagle claims that the trial court erred by failing to sequester the jury in his case. However, the record shows that Speagle’s counsel never pursued a ruling on the motion to sequester. The Mississippi Supreme Court has repeatedly held that it is the movant’s responsibility to obtain a ruling from the court on motions, and that failure to do so constitutes a waiver. See, e.g., Byrom v. State, 863 So.2d 836, 851(¶ 27) (Miss.2003); see also URCCC 2.04 (“It is the duty of the movant ... to pursue said motion to hearing and decision by the court. Failure to pursue a pretrial motion to hearing and decision before trial-is deemed an abandonment of that motion.... ”). Because Speagle never sought a ruling on the motion to sequester, there is no ruling which he can appeal. This issue is without merit.

C. Whether the trial court erred in denying Speagle’s motion for individual voir dire of prospective jurors.

¶ 13. Uniform Circuit and County Court Rule 3.05 allows a circuit court, in its discretion, to utilize individualized sequestered voir dire. URCCC 3.05; see also Le v. State, 913 So.2d 913, 922-23(¶ 12) (Miss.2005). Speagle claims that the trial court’s refusal to allow individualized sequestered voir dire of the jury pool in his case constitutes reversible error, as it was necessary due to the amount of publicity surrounding his case.

¶ 14. “[T]he decision of whether to allow individual sequestered jury voir dire should be left to the sound discretion of the trial court.” Le, 913 So.2d at 923(¶ 14). This Court requires a showing of actual harm or prejudice before we will reverse a trial court’s limitation on voir dire. Id. (citing Morris v. State, 843 So.2d 676, 678(¶ 3) (Miss.2003)). Both at trial and in his appellate brief, Speagle has made general assertions that residents of the Beaumont community were aware of the circumstances surrounding his case; however, the record is absent of any indication that this prejudiced him in any way. Furthermore, the few jurors who stated during voir dire that they had heard about the case claimed that they would be able to set aside what little knowledge they had, and render a fair and impartial decision. This Court gives great deference to such statements of impartiality. Id. (citing Morris, 843 So.2d at 678(¶ 9)). Nothing in the record supports Speagle’s argument that the trial court erred in denying his motion for individual sequestered voir dire. Therefore, we find this issue to be without merit.

IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO AMEND SPEAGLE’S INDICTMENT.

¶ 15. Speagle also claims that the trial court erred in allowing the State to amend his indictment. The prosecution was granted leave to amend the indictment in order to correct a slight misnaming of the victim; to correct the recitation of venue; and, in the portion of the indictment charging Speagle with possession of a firearm by a felon, to list manslaughter instead of murder as the felony with which Speagle had been formerly convicted. Speagle concedes that each of these amendments, taken alone, would be permissible; however, he argues that, taken together, the amendments rendered the indictment fatally defective. We find Speagle’s argument unpersuasive.

¶ 16. “Amendments to indictments are allowed when they are of form and not substance.” Burson v. State, 756 So.2d 830, 834(¶ 14) (Miss.Ct.App.2000) (citing Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994)). The test for whether a change is one of form or substance is “whether the defense as it originally stood would be equally available after the amendment is made.” Id. (quoting Eakes v. State, 665 So.2d 852, 859-60 (Miss.1995)). It is clear that the amendments made to Speagle’s indictment were of form only, not of substance, and in no way affected his defense.

¶ 17. The first amendment allowed by the trial court was a slight change to the name of the victim, from “Taylor Walker, II,” to “Taylor C. Walker, II” (emphasis added). It is well-established that such a change is merely of form, and not of substance. See, e.g., Burson, 756 So.2d at 883-34 (¶¶ 11-15). Secondly, the State was allowed to amend Speagle’s indictment to correct an error in the recitation of venue to Perry County, instead of Forrest County. This Court has held that “[t]he failure to properly charge venue is a procedural defect that may be amended upon order of the trial court without the necessity of grand jury action.” Garner v. State, 856 So.2d 729, 734(¶ 16) (Miss.Ct.App.2003). Thus, this amendment was proper as well.

¶ 18. Lastly, the portion of Spea-gle’s indictment charging him with possession of a firearm by a convicted felon initially stated that Speagle had formerly been convicted of murder. The State sought to correct the indictment to reflect the fact that Speagle had instead formerly been convicted of manslaughter. It is clear from reading the relevant statute that it mattered not tvhich felony Speagle had been convicted of previously: under section 97-37-5 of the Mississippi Code, a person convicted of any felony is prohibited from possessing a deadly weapon. Section 97-37-5 reads, in pertinent part:

It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability ... or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

Miss. Code Ann. § 97-37-5(1) (Rev.2000). The amendment in no way affected Spea-gle’s defense, as his defense would be the same no matter which felony was listed as the underlying felony. Thus, it is clear that this amendment was one of form and not of substance.

¶ 19. We find that, as the three amendments to Speagle’s indictment were of form and not of substance, the trial court did not err in allowing these changes. Further, we note that Speagle has cited no authority suggesting that an indictment may be rendered defective by multiple lawful amendments. This issue is without merit.

V. WHETHER THE VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE.

¶20. Speagle asserts that there was insufficient evidence presented at trial to support his conviction for manslaughter. Specifically, Speagle argues that the trial court erred in failing to invoke the Weath-ersby rule and grant him a peremptory instruction.

¶ 21. In Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933), the Mississippi Supreme Court stated that “where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.” This holding has since become known as the Weathersby rule. “[A] Weathersby challenge is, essentially, a test of the sufficiency of the evidence.” Davis v. State, 891 So.2d 256, 258(¶ 5) (Miss.Ct.App.2004) (citing Green v. State, 614 So.2d 926, 931 (Miss.1992)).

¶ 22. Speagle claims that his account of the shooting is absolutely uncontradicted by any of the physical or testimonial evidence, and that therefore he should have been granted a peremptory instruction. However, we find otherwise. Dr. Stephen Hayne testified that Walker was killed by a shot that had to have been fired from a distance of at least two and one-half feet. Furthermore, Hayne concluded that the absence of blood between the porch and the place where Walker’s body came to rest meant that Walker had fallen where he was standing when he was shot. Looking at this evidence in the light most favorable to the State, see id. (citing Burge v. State, 472 So.2d 392, 396 (Miss.1985)), we find that it contradicts Speagle’s testimony that he shot Walker from close range.

¶ 23. Because Speagle’s testimony was contradicted by physical and testimonial evidence, we hold that the trial court did not err in denying Speagle the benefit of the Weathersby rule. This issue is without merit.

VI. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 24. Speagle also claims that the verdict was against the overwhelming weight of the evidence. Once again, we find his arguments unpersuasive.

¶ 25. When reviewing the denial of a motion for new trial based on an objection to the weight of the evidence, this Court will only reverse 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). In making our determination, this Court is required to view the evidence in the light most favorable to the verdict; we will grant a new trial “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id.

¶ 26. It is clear that the present case is not one of those “exceptional cases in which the evidence preponderates heavily against the verdict.” In fact, the evidence suggests very strongly that Speagle shot Walker from some distance and not in reasonable self-defense. We find this issue to be without merit.

CONCLUSION

¶ 27. Finding all of Speagle’s claims to be without merit, we affirm the judgment of the Circuit Court of Perry County.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF PERRY COUNTY OF CONVICTION OF COUNT I MANSLAUGHTER AND COUNT II POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PERRY COUNTY.

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

      . Speagle has not appealed his conviction of the crime of possession of a firearm by a convicted felon.


author: ISHEE, J.,

text:
    Heidi Davis Elmore DUKE, Appellant v. Robert E. ELMORE, Jr., Appellee.
    No. 2005-CA-00328-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.
    Rehearing Denied Feb. 13, 2007.

      Jak McGee Smith, Tupelo, attorney for appellant.
    David Lee Brewer Christopher Hederi Neyland, Ridgeland, attorneys for appel-lee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Robert E. Elmore, Jr. (“Robert”) moved for modification of custody of his and Heidi Elmore Duke’s (“Heidi”) minor child. The chancellor granted modification of custody, awarding physical custody, as well as $106.40 per month in child support, to Robert. Aggrieved, Heidi appeals. Finding no error, we affirm.

FACTS

¶ 2. Robert and Heidi entered an agreement entitled “Child Custody, Support and Property Settlement Agreement” in 2001, which was eventually incorporated into the final judgment of divorce on May 31, 2001. In the agreement, Heidi and Robert agreed to give primary physical custody of their minor child, Matthew Swedlund El-more (“Matthew”) to Heidi.

¶ 3. On April 11, 2003, Robert filed a motion for modification of final judgment of divorce and child custody in the Chancery Court of Monroe County. The motion alleged that a material change in circumstances adversely affecting the welfare of Matthew warranted a change of physical custody, in the best interest of the child. The material change in circumstances alleged by Robert consisted of allegations that: (a) Heidi was using Matthew’s welfare in an attempt to extort money from Robert; (b) Heidi refused to divulge her place of employment and the responsibilities pertaining to such employment; and (c) Heidi was moving Matthew from residence to residence too frequently.

¶ 4. Heidi filed a motion denying the allegations on June 23, 2003. A trial was held on the matter on August 12, 2003, and the chancellor rendered an opinion on the same day. The chancellor found that there had been a material change in circumstances since the entry of the final judgment of divorce, and that, after considering the Albright factors, it was in the best interest of Matthew to modify primary physical custody in favor of Robert. The parties maintained joint legal custody, allowing Heidi visitation, and Robert was awarded $106.40 per month in child support.

¶ 5. On September 8, 2008, Heidi filed a motion for a new trial or judgment notwithstanding the verdict, which, after a hearing on December 20, 2004, was overruled by court order on February 3, 2005. Heidi filed a timely notice of appeal on February 11, 2005. Heidi asserts that the chancellor erred in modifying the final divorce decree by transferring custody of Matthew to Robert for the following reasons: (1) no material and substantial change in circumstances had occurred since entry of the original divorce decree granting custody to Heidi; (2) the chancellor used an incorrect standard in modifying custody when there existed no adverse effect on the minor child from any actions of Heidi since entry of the original divorce decree; (3) the chancellor used an incorrect legal standard by his application of the Albright factors as a substitute for the required finding of substantial and material circumstances adversely affecting the minor child of the parties; (4) the chancellor used an incorrect legal standard by his misapplication of “totality of circumstances” where there was no home environment that was detrimental to the safety of the minor child; and (5) the chancellor committed manifest error in his analysis of the facts that he considered in applying the Albright factors in his overemphasis of the “moral” factor where there was no showing that it had adversely affected the minor child.

STANDARD OF REVIEW

¶ 6. This Court will not reverse a chancellor’s findings concerning modification of custody unless the chancellor was “manifestly wrong, clearly erroneous, or the proper legal standard was not applied.” In re E.C.P., 918 So.2d 809, 822(¶ 58) (Miss.Ct.App.2005) (citing Hensarling v. Hensarling, 824 So.2d 583, 587(¶ 8) (Miss.2002)). The movant has the burden to prove by the preponderance of the evidence that a material change in circumstances has occurred. In re E.C.P., 918 So.2d at 822-23(¶ 58) (citing Riley v. Doemer, 677 So.2d 740, 743 (Miss.1996)). “In the ordinary modification proceeding, the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” In re E.C.P., 918 So.2d at 823(¶ 58) (citing Bubac v. Boston, 600 So.2d 951, 955 (Miss.1992)).

ISSUES AND ANALYSIS

I. Whether the chancellor erred by finding that a material change in circumstances had occurred since the original divorce decree.

¶7. The totality of the circumstances should be considered when considering whether a material change in circumstances has occurred. In re E.C.P., 918 So.2d at 823(¶ 58) (citing Spain v. Holland, 483 So.2d 318, 320 (Miss.1986)). If, after examining the totality of the circumstances, a material change in circumstances is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the children.” Id. (citation omitted). The polestar consideration is, of course, the best interest of the child. Id. at 823(¶58) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)).

¶ 8. In the case sub judice, the chancellor began his bench opinion by citing several cases enunciating the above legal framework. He then continued by noting that the polestar consideration, the best interest of the child, is analyzed through the Albright factors, whether dealing with an initial custody decision or a custody modification. The chancellor proceeded to apply the Albright factors to the facts as established through testimony. In doing so, the chancellor noted several times that Heidi had moved four times within the two years since the divorce, maintained sporadic employment, and ended up moving into a two-bedroom home with a convicted felon. Heidi testified that she was not sure whether the man was divorced yet at the time, though he subsequently testified that he was, indeed, divorced at the time. Heidi shared a bedroom with the man while her mother shared the second bedroom with Matthew. This went on for approximately ten months until she married the man. In conclusion, the chancellor found that the Albright factors came out in favor of the father.

¶ 9. After discussing the Albright factors, the chancellor discussed whether there had been a material change in circumstances since the original custody decree, and whether, if such a change had occurred, it was adverse to the best interests of the child. The chancellor stated, after noting that he had considered the totality of the circumstances, the following:

Now, the question is, is there a substantial and material change in circumstances here? This child has been exposed to everything from a barn to a felon. I’m not low rating horses. But I’m saying it’s not the best place in the world to raise a little boy. It’s not the best place in the world to have a stepfather who is a convicted felon. And I know you don’t hold this against people for life. At the same time, there is a little child that doesn’t even know he is one, by the admission of his own grandmother and his mother that they probably should not tell him that.
Now, I’m going to be frank with you. I was not impressed with the testimony of Mr. Duke. I couldn’t find him looking me in the eye. My grandfather used to tell me when a man looks you in the eye, you can tell whether or not what he is. Maybe that’s not the sole criteria on the custody of children, but it’s one of the measuring sticks that I use as a judge. I didn’t like his countenance. I don’t think it’s in the best interests of a child for him to grow up under his leadership as a dad. I find that as one of the circumstances that makes this a substantial change in circumstances relative to this child. I, secondly, find that his mother, in living with this kind of man for ten months in the presence of this child before she ever married him is likewise a substantial and material change in circumstances. I find that her constant lack of employment, all of those are factors as well as those I have already enumerated in this opinion that give rise to the fact that I contend and so find that there has been a substantial and material change in circumstances.

¶ 10. Heidi argues that the points emphasized by the chancellor as lending to a substantial and material change in circumstances were not supported by the evidence. She addresses, in her brief, several of the points individually. She argues that the “barn” was actually a nice apartment; that Mark Duke (“Duke”), the convicted felon with whom she lived and shared a bedroom for ten months before marrying, never did drugs and did not have a violent nature; that she had no duty to inform her child of Duke’s status as convicted felon; that Duke’s failure to look the chancellor in the eye did not indicate that Duke was not telling the truth when he testified; that her cohabitation alone was not sufficient to warrant a change in custody; that, citing Cheek v. Ricker, 431 So.2d 1139, 1144 (Miss.1983), a change of residence was not a material change in circumstances justifying a reconsideration of custody; and that she was not “constantly unemployed,” but only unemployed for the first three months after the divorce, after which she had a job for eight months until moving to Olive Branch, Mississippi in June of 2002, when she began going to school full-time.

¶ 11. Viewing the totality of the circumstances, and giving the findings of the chancellor due deference, we cannot say that he erred by finding that a substantial and material change in circumstances had occurred since the time of the original custody decree. We therefore affirm as to this issue.

II. Whether the chancellor erred by using an incorrect standard in modifying custody when there existed no adverse effect on the minor child from any actions of Heidi since entry of the original divorce decree.

¶ 12. After finding that, viewing the totality of the circumstances, there was a substantial and material change in circumstances, the chancellor continued by analyzing whether such change adversely affected Matthew’s welfare, followed by reiteration of his findings concerning Matthew’s best interests. He stated:

We can’t tell how that does here. I can’t read into a crystal ball and say whether it does or not. We don’t have that little boy here before us today. He’s too young to testify. But what I’m saying is here, when you take the totality of the circumstances ... that I’ve looked at here today and analyzed before you, I find that there has been a change that does affect the child’s welfare. I find that the environment is not suitable for him to remain in it under the circumstances.
And thirdly, the most important part is that the child’s best interests mandate a change of custody.... The Court finds that it would be in the best interests of this child that the custody be changed from the mother to the father, and the Court so holds.... [T]he case of Riley v. Doerner, 677 So.2d 740 ... states this, that when the environment provided by the custodial parent is found to be adverse to the child’s best interest and that the circumstances of the non-custodial parent have changed such that he or she is able to provide an environment more suitable than that of the custodial parent, the chancellor may modify custody accordingly.

¶ 13. Heidi argues that “[although the Chancellor stated that he found that there had been a change that does affect this child’s welfare, the Court failed to cite one fact to show how the custodial parent’s conduct had adversely affected the child.”

¶ 14. In Riley, our supreme court stated that “we further hold that when the environment provided by the custodial parent is found to be adverse to the child’s best interest, and that the circumstances of the non-custodial parent have changed such that he or she is able to provide an environment more suitable than that of the custodial parent, the chancellor may modify custody accordingly.” Riley, 677 So.2d at 744. The court went on to state:

We further hold that where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. Evidence that the home of the custodial parent is the site of dangerous and illegal behavior, such as drug use, may be sufficient to justify a modification of custody, even without a specific finding that such environment has adversely affected the child’s welfare. A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.

¶ 15. The chancellor clearly found that, considering the totality of the circumstances, Matthew’s welfare was adversely affected. While there was no evidence of dangerous or illegal behavior, as there was in Riley, the chancellor nevertheless found that, considering the totality of the circumstances, Heidi’s cohabitation with a convicted felon, when combined with her sporadic employment and frequent moves, constituted an environment adverse to Matthew’s welfare. We cannot find that the chancellor was manifestly wrong, in clear error, or that he applied an improper legal standard with regard to this issue. Accordingly, it is without merit.

III. Whether the chancellor used an incorrect legal standard by his application of the Albright factors as a substitute for the required finding of substantial and material circumstances adversely affecting the minor child of the parties.

¶ 16. Citing Sturgis v. Sturgis, 792 So.2d 1020, 1026(¶ 28) (Miss.Ct.App.2001), Heidi asserts that the chancellor erred because with no identification of the material change in circumstance nor statement of what conduct on the part of Heidi adversely affected the child, the lower court jumped into a weighing of the Albright factors. As discussed above, however, the chancellor did consider the totality of the circumstances and find that a substantial and material change in circumstances had occurred. It is obvious from the chancellor’s bench opinion that he discussed the Albright factors first merely as a means of outlining the totality of the circumstances surrounding the parties. Accordingly, this issue is without merit.

IV. Whether the chancellor used an incorrect legal standard by his misapplication of “totality of circumstances” where there was no home environment that was detrimental to the safety of the minor child.

¶ 17. Heidi argues, citing Riley, 677 So.2d at 744, that there must be evidence that the home of the custodial parent is the site of dangerous and illegal behavior, such as drug use, in order to find that the custody can be changed. She argues that, as there was no evidence that any dangerous or illegal behavior was occurring at her home, the chancellor erred in finding that the environment adversely affected Matthew.

¶ 18. We disagree. Riley does not mandate that dangerous or illegal behavior be present in the home in order to allow a chancellor to find that the environment is adverse to the best interests of the child. Riley simply stated that such evidence may be sufficient to justify a modification of custody. Riley, 677 So.2d at 744. The court in Riley simply made mention of that factual scenario because those were the circumstances in that case. The actual holding of Riley was that “where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment ... even without a specific finding that such environment has adversely affected the child’s welfare.” Id. A chancellor does not have to wait until a child’s safety is in question before removing him from an obviously detrimental environment. Heidi’s argument with regard to this issue is clearly without merit.

Y. Whether the chancellor committed manifest error in his analysis of the facts that he considered in applying the Albright factors in his overemphasis of the “moral” factor where there was no showing that it had adversely affected the minor child.

¶ 19. Heidi argues that the chancellor erred by overemphasizing the moral issues of Duke’s felony conviction and of Heidi and Duke cohabitating for ten months pri- or to their marriage. We disagree. As clearly shown from the discussion above, a number of factors contributed to the chancellor’s decision. While the ten-month cohabitation and Duke’s status as a convicted felon certainly contributed to the chancellor’s decision, the chancellor also emphasized Heidi’s lack of steady employment and irequent moves, which starkly contrasted from Robert’s consistent employment and residency. The chancellor was not, therefore, manifestly wrong or in clear error, nor did he apply an improper legal standard. Accordingly, we will not substitute our judgment for that of the chancellor, and we affirm as to this issue.

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

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The factors with which we analyze the best interests of the child, as established by Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), are: (1) health and sex of the child; (2) which parent had continuity of care prior to the separation; (3) which parent has the best parenting skills, as well as the willingness and capacity to provide primary child care; (4) employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties between parent and child; (7) moral fitness of the parents; (8) home, school and community record of the child; (9) preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship.

      . The chancellor’s reference to a barn stemmed from testimony that Heidi and Matthew had lived in a 2500 square-foot apartment in a barn of one of her employers (in Germantown, Tennessee), though testimony also revealed that the apartment was located in a good community and was "very nice.”

      . When Heidi and Duke married on April 2, 2003, she began working as a professional horse rider and trainer in Olive Branch, Mississippi.