author: GRIFFIS, J., ROBERTS, J.,

text:
    Douvell Lamon DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00918-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.
    Rehearing Denied July 31, 2007.

      William R. Labarre, Virginia L. Watkins, attorneys for appellant.
    Office of the Attorney General, by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., GRIFFIS, and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Douvell Lamon Davis was convicted in the Hinds County Circuit Court of murder. He was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. Davis appeals and argues that the trial court erred (1) when it failed to require race and gender neutral reasons for the State’s peremptory challenges; (2) when it denied a mistrial due to prosecutorial misconduct; (3) when it denied Davis the right to cross-examine a witness about bias; (4) when it denied Davis the right to question a police detective about prior inconsistent statements received from State witnesses; (5) when it permitted a witness to testify to facts not disclosed in discovery; and (6) when it refused a jury instruction on reasonable doubt. We find error and reverse and remand.

FACTS

¶ 2. On May 18, 2001, at or around midnight, in the backyard of 187 Treehaven Street, Jackson, Kenny Williams was shot in the face. With the exception of Davis, those who were present fled on foot. Davis placed Williams in Williams’s car and then left.

¶ 3. A few hours later, Williams’s car was found abandoned at a Hastee Tastee in Flora. Davis walked and hitchhiked to a Junior Food Mart. From there he walked to his grandmother’s house in Greenville. Three days later, he turned himself in to the Greenville police. A nine millimeter gun was found under a dumpster at the Junior Food Mart in Yazoo City. Williams’s body was discovered in early July, in woods off of Presto Lane, near Interstate 55 in Jackson.

¶ 4. Davis gave a statement to the police. He said on the night of Williams’s murder, Davis was coming around the left side of the house “and I noticed some people talking.” He heard one gunshot in the backyard and two in the front. “The people started going around the front on the right side of the house.” Williams was lying shot on the ground. He was not dead, but he could not move. Davis put Williams in the front passenger seat of Williams’s car. Davis saw people run after them, and he became afraid. He ran out of gas near Ellis Avenue. He walked to get gas, and when he returned, Williams was no longer in the car. He drove to Flora until he ran out of gas again. He then walked and hitchhiked his way to Greenville.

¶ 5. At trial, Anthony Barber testified that he saw Davis shoot Williams. Antonio Ratliff testified that Davis reached under his shirt for something and then a few seconds later, Ratliff heard a gunshot. Both witnesses’ testimonies conflicted with prior statements given to police.

ANALYSIS

I. Was Davis entitled to cross-examine Antonio Ratliff about his motivation for testifying?

¶ 6. Davis complains that he was prevented from questioning Ratliff about possible bias. In particular, he wanted to ask what were Ratliffs perceptions about the district attorney’s power to reduce or dismiss pending drug charges. The trial court held that the questions were too speculative to come in to evidence.

¶ 7. “For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.” M.R.E. 616. Wide-open cross-examination of any matter bearing upon the credibility of the witness is allowed, including the possible interest, bias or prejudice of the witness. Meeks v. State, 604 So.2d 748, 755 (Miss.1992). This includes interrogation about the witness’s belief or perception as to whether the State could extend leniency for pending charges. Foster v. State, 508 So.2d 1111, 1114-15 (Miss.1987) (overruled on other grounds); Hall v. State, 476 So.2d 26, 28 (Miss.1985). “Not only is this right secured by our rules of evidence ... it is a function of the confrontation clauses of federal and state constitutions.” Caston v. State, 823 So.2d 473, 491(¶ 50) (Miss.2002). “This right, which is the cornerstone of American justice, was designed ‘not merely to insure punishment to the guilty, but to insure protection to the innocent, [for without it] every one would hold his liberty at the mercy of the government.’” Foster, 508 So.2d at 1114 (quoting Beckwith v. Bean, 98 U.S. 266, 297, 25 L.Ed. 124 (1879)). To deny a defendant the right to fully cross-examine a witness on the issue of credibility is to deny the defendant his federal and state constitutional rights of confrontation. Young v. State, 731 So.2d 1145, 1151(¶ 40) (Miss.1999). It is therefore reversible error. Hall, 476 So.2d at 28.

¶8. At trial, Ratliff testified for the State. In direct examination, he testified that he was in federal prison on drug charges and had a pending state charge in Hinds County for possession of cocaine. In a series of leading questions, the prosecutor asked Ratliff whether she offered him a deal on his state charges in exchange for his testimony. He said no. She then asked whether she told him that she was not there to offer him a deal and just wanted him to tell the truth. He said yes. Ratliff then gave an account which completely contradicted the statement he had given police. He told police he was not an eyewitness, and he told the jury he was. The examination ended as follows:

Q. Okay. After you testify today are you going back to [federal prison in] Yazoo City?
A. Yes, ma’am.
Q. You’re hoping to; right?
A. Yes, ma’am.
Q. You don’t really like the Hinds County Detention Center, do you?
A. No ma’am. I’m ready to go right now.
Q. The federal prison is a little bit better, isn’t it?
A. Yes, ma’am.

¶ 9. On cross-examination, Davis’s attorney asked if Ratliff would prefer federal time to state time. He said, “[T]hat’s what it looks like.” Then counsel for Davis asked, “And these people sitting over here, they’ve got the power to keep you from having to do state time, don’t they[?]” The prosecutor objected and argued that there was no proof that she offered Ratliff leniency for his testimony. She adamantly maintained that Davis was not allowed to ask what any other prosecutor but herself was going to do about Ratliffs charges. She objected to any such “insinuation.” The jury was excused. Defense counsel and the prosecutor argued over whether she hid Ratliffs pending charges from Davis in the first place. Davis maintained that he had a right to ask any question about bias and that the State had opened the door to the issue. The judge sustained the objection and reasoned, ‘You’re asking the jury to speculate. Nothing may ever happen.... Either a deal has been made with him, or a promise of some type, and there’s no proof of that at this point.” The trial court further limited the cross-examination to only what the prosecutor Rebecca Wooten Mansell insinuated about leniency and reasoned that it was “extremely unfair to the prosecution to inject that into the ease.” When the jury returned, the judge instructed them to disregard defense counsel’s question.

¶ 10. Before the jury returned, Davis had made the following offer of proof:

Q. Mr. Ratliff, do you have a present pending felony charge here in Hinds County?
A. Yes, sir.
Q. Are you hoping at least to avoid having to serve state time on that charge?
A. I got a lawyer on that charge.
Q. I understand that you have a lawyer, but are you hoping to avoid serving time in the state penitentiary system on that charge?
A. Am I what now?
Q. Are you hoping not to have to serve time on that charge?
A. Well, the charges, my lawyer is trying to get it ran concurrent.
Q. I understand. Are you hoping not to serve that time in the state system? Is that what you hope works out, that you don’t have to serve a lot of more time on that case?
A. Yes.
Q. And is the District Attorney for Hinds County, that office,- the office that is prosecuting you in that case?
A. Yes, sir.
Q. Okay. And are they the office that has the power to make that time or offer you a concurrent sentence?
A. Yes.
Q. And are they actually the office who could even have the power not to prosecute on that case?
A. Yes.

¶ 11. The proffer shows that not only did Ratliff believe that the prosecutor’s office had the power to offer him leniency, but in fact his lawyer was working on it. This was permissible evidence of bias and interest, which Davis was entitled to show. Davis brought up the fact that Ratliffs testimony at trial differed from his statement to police. Ratliff testified that it was because the police’s questions were not specific enough. Without testimony about his beliefs of leniency, the jury was unable to consider if the change was because he hoped to ingratiate himself to the Hinds County District Attorney’s Office. All the jury had was a false impression that Ratliff knew he was not going to get leniency from the State. The prosecutor further capitalized on this handicap, telling the jury during closing that Ratliff was Davis’s friend and would have no reason to lie against Davis. We find that the judge erred in excluding this line of questioning. Davis was denied his constitutional right to confront a key eyewitness against him.

' ¶ 12. The State responds only that speculative and irrelevant testimony may not come in. The State offers no legal authority that this line of questioning was in fact too speculative or may be excluded. Indeed, the authority is to the contrary, and it requires that Davis be given the right to confront an adverse witness about any hopes of leniency he may have.

¶ 13. Accordingly, we reverse and remand for a new trial consistent with this opinion. We now address the remaining issues that are also reversible or that are likely to appear again on remand.

II. Does a State discovery violation warrant a new trial?

¶ 14. Because we reverse and remand this case for a new trial, we do not reach this issue. Any concern about evidence introduced, which was not disclosed in discovery, will not appear again on remand.

III. Did prosecutorial misconduct warrant a mistrial?

¶ 15. Because this is the third case at this Court in less than a year alleging prosecutorial misconduct against the same district attorney’s office, we will address this issue. Davis sets out several claims of prosecutorial misconduct and argues he was entitled to a mistrial due to these errors. The State.says there was no misconduct, but if there was, there was no prejudice. Since we have already reversed the case and remanded for new trial, it is not necessary that we determine whether the misconduct prejudiced the defendant. Our analysis is provided to assist the trial court on retrial.

¶ 16. The standard of review for denial of a motion for mistrial is abuse of discretion. Caston v. State, 823 So.2d 473, 492(¶ 54) (Miss.2002). “A mistrial is reserved for those instances where the trial court cannot take any action which would correct improper occurrences....” Easter v. State, 878 So.2d 10, 21(¶ 34) (Miss.2004). “[W]here appellant cites numerous instances of improper and prejudicial conduct by the prosecutor, this Court has not been constrained from considering the merits of the alleged prejudice by the fact that objections were made and sustained, or that no objections were made.” Smith v. State, 457 So.2d 327, 333-34 (Miss.1984).

A. Improper opening and closing arguments

¶ 17. Davis first complains of thirteen instances of improper comments made in opening and closing arguments. Two comments in the opening statement were arguing incompetent evidence that would not be allowed. One comment was about the absence of a witness equally available to both sides. The final comment in opening discussed Davis’s right to remain silent. In the closing argument, there were six objections. Davis claims that it was improper when the prosecutor told the jury if they voted not guilty that would be letting the defendant go free. Several comments in closing discussed Davis’s right to remain silent or were attempts to shift the burden of proof onto Davis. Two comments were personal attacks on defense counsel, suggesting that he was hiding evidence. Another comment compared Davis’s case to other criminal cases. Finally, the prosecutor stated that the jury could only vote not guilty if it believed Davis and disbelieved every other piece of evidence.

¶ 18. Davis contends that the comments on his right to remain silent and the personal attacks on the integrity of defense counsel were enough each by themselves to warrant a mistrial. As for the remaining comments, Davis maintains that the cumulative effect of these errors was prejudicial and warrants a mistrial.

¶ 19. The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by that prejudice. Caston, 823 So.2d at 495(¶ 71). During closing, a lawyer is entitled to argue her case, drawing all rational inferences which come from the evidence presented in the courtroom. Id. at 495-96(¶ 72). Attorneys are allowed wide latitude in arguing cases to the jury; however, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. Sheppard v. State, 777 So.2d 659, 661(¶ 7) (Miss.2000). Furthermore, in closing, counsel “cannot ... state facts which are not in evidence, and which the court does not judicially know, in aid of his evidence. Neither can he appeal to the prejudice of men by injecting prejudices not contained in some source of the evidence.” Id.

1. Comments on Davis’s right to remain silent

¶ 20. First, we deal with the comments on Davis’s exercise of his right to remain silent. The right not to testify against one’s self is secured by the Fifth Amendment to the United States Constitution as well as in Article 3, section 26 of the Mississippi Constitution. This includes the right not to have the State comment on the exercise of this right. Whigham v. State, 611 So.2d 988, 995 (Miss.1992). “The right would be eviscerated if the government were free to make invidious reference when an accused chose not to testify.” Id. The prosecutor is prohibited from making both direct comments and those “which could be reasonably construed by a jury as a comment on the defendant’s failure to testify.” Griffin v. State, 557 So.2d 542, 556 (Miss.1990). “[Ojnce such improper comments are made the defendant is entitled to a mistrial. The error is incurable.” Livingston v. State, 525 So.2d 1300, 1307 (Miss.1988). This is regardless of the overwhelming weight of the evidence. Id. at 1306.

¶ 21. For example, in Whigham, it was reversible error for the prosecutor to comment that the State’s witnesses were unre-butted and unopposed, where the only one who could have rebutted the witnesses was the defendant. Whigham, 611 So.2d at 996. Such comments were the equivalent of telling the jury, “Look, if [the State’s eyewitnesses] were not telling you the truth, [the defendant] would have taken this witness stand and denied it.” Id.

¶ 22. In Griffin, it was reversible error for the prosecutor to state, “There is one person who can tell you what happened and we have ... a statement from him. We have a confession, an oral confession, a written confession, yes we do.” Griffin, 557 So.2d at 552. The court construed this as a comment on the defendant’s failure to take the stand and refute his previous confession. Id.

¶ 23. During opening statements in the case sub judice, the prosecutor stated, “[t]he interesting thing is once Douvell, he finally turns himself in to his grandmother, and he gives a big picture of where all he’s been. And then the thing that he forgets to tell you is he gets himself on I-55-.” Davis objected, and the trial court sustained the objection. Arguing about what Davis “forgot” to say was an impermissible comment on his right to remain silent. It could reasonably be construed by a jury as a comment on Davis’s exercise of his right not to testify.

¶24. During closing, the prosecutor stated:

Now Mr. Fortner [Davis’s attorney] told you in opening that he was going to be able to show you, the evidence is going to show you that Douvell Davis was trying to help his friend, Kenny Williams, and take him to the hospital.
Well, I’m going to ask you. I want you to read the statement of Douvell Davis. You’re going to have this back there. Where does it say anywhere that he was going to the hospital[?] What evidence have you heard any person say that Douvell Davis was taking Kenny Williams to the hospital[?] It’s not there. That’s not evidence.
You have received absolutely no evidence that Kenny Williams was doing nothing—
[Davis objected and moved for mistrial. The court overruled the objection and denied mistrial].
BY MS. MANSELL: Look at the statement. There has been absolutely no evidence presented in this case, no person ever has stated that Douvell Davis, nor did Douvell Davis state in his statement—
[Davis again objected and moved for mistrial. The court overruled the objection and denied the motion.]
BY MS. MANSELL': I’m going to keep going. I want you to know what the evidence is. You sat here and heard it. No person ever, and Douvell Davis never says he is going to the hospital. It does not say that.
[Davis objects for a third time and moves for mistrial. The court overrules and denies same.]
BY MS. MANSELL: And what’s interesting, what’s consistent with Antonio Ratliff and Anthony Butler [sic] is that I asked them specifically, was there anybody else around Douvell and Kenny Williams. Was there anybody else around[?]And why that’s important is because Douvell talked about some unknown men that were there.
[Davis objects and moves for mistrial. Trial court denies and overrules same.]
BY MS. MANSELL: Douvell Davis talks about some men being there. Do you know who they were[?] Doesn’t give any names. But some men being there. And that’s why I asked Antonio Ratliff and Anthony Butler [sic], who was beside Douvell and Kenny when the shooting occurred. Nobody.

¶ 25. When the evidence includes a statement made by the accused to law enforcement but the accused does not testify in his own defense at trial, the prosecution and the defense counsel must walk a tight rope. The earlier statement is evidence, but the accused retains his right to remain silent. We will look at these comments separately.

¶ 26. The comments on the unknown men were a direct comment on Davis’s exercise of his right to remain silent. The prosecutor said that Davis failed to respond to a question about who the men were. There was absolutely no evidence that Davis was ever asked such a question in the first place, much less that he refused to answer it. This comment was error.

¶ 27. The argument about the hospital was also a comment on Davis’s right not to testify. Once again, the prosecutor complains about what Davis does not say. The implication is clear: “If Davis really was innocent, why did he not take the stand and say so? If he had no ill motive in moving Williams’s body, he would have explained it.” The issue was whether Davis intended to help Williams or intended to hide him. The only one who could possibly testify to that is Davis. Therefore, just as in Whigham, we have a situation where the prosecutor commented on the lack of evidence on an issue where the only one who could have established that issue was the defendant. Whigham, 611 So.2d at 996. This was an impermissible comment on his failure to take the stand and testify to elaborate on his intent to help Williams. This can be the only reasonable assessment of this statement, because whether or not Davis ever took Williams to a hospital was never an issue.

¶ 28. The State maintains that Davis opened the door to the hospital comments. Our supreme court has declined to extend the invited error doctrine to comments on the accused’s right not to testify. Livingston, 525 So.2d at 1306; West v. State, 485 So.2d 681, 688 (Miss.1985).

¶29. However, the United States Supreme Court held that a defendant invites a “fair response” from the prosecutor on the exercise of the defendant’s right to remain silent where defense counsel complains that his client was not allowed to tell his side of the story. United States v. Robinson, 485 U.S. 25, 34, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988).

¶30. During opening statement, defense counsel stated, “[Davis] ... drives [Williams] away trying to help. That’s his idea.He’s panicked. Smart or not, stupid or not, immature or not, he drives away, doesn’t go to a hospital_” Certainly, defense counsel should be vigilant to protect his client’s Fifth Amendment right. However, even if we were to extend the invited error doctrine to this type of misconduct, this statement did not invite the prosecutor’s remarks. This was not a complaint that Davis has not been allowed to tell his side of the story. This is not even a passing reference to Davis’s silence. It was a claim that Davis was trying to help Williams. The only type of response it could legitimately be said to invite would be reference to competent evidence that negates any such intent. For example, the prosecutor could have pointed to the undisputed facts that Davis did not take Williams to a hospital, and Davis and Williams were near one hospital. She also could have argued, according to the State’s version, that Davis and Williams passed several hospitals that night' without stopping. The prosecutor chose instead to continue her theme of commenting on Davis’s failure to testify.

¶ 31. We hold that it was error to allow the prosecutor to comment on Davis’s privilege against self-incrimination.

2. Personal attacks on defense counsel

¶32. We next examine the personal comments on defense counsel. The prosecutor made two comments during closing, suggesting that defense counsel was hiding evidence. The first comment was, “And you know, as much as Mr. Fortner didn’t want to put his client in Yazoo City.” Davis objected, and the trial court sustained. Davis moved for a mistrial, and the court denied it but told the jury to disregard the statement. The second comment was, “[t]he truth is that when Tonia Williams went back to talk to Dou-vell Davis, what did she tell you[?] This is the question that Mr. Fortner asked. He answered all your questions, didn’t he[?] All of them but one. Mr. Fortner didn’t ask her what that question was.” Davis objected and moved for a mistrial. The court sustained the objection as a personal attack, denied the mistrial, and told the jury to disregard the statement.

¶ 33. Rule 3.02 of the Uniform Rules of Circuit and County Court provides, in part:

Attorneys should manifest an attitude of professional respect toward ... the opposing attorney.... In the courtroom, attorneys should not engage in behavior or tactics purposely calculated to irritate or annoy the opposing attorney.... In opening statements, and in closing arguments, the attorneys may not attack the opposing attorney.... It is the duty of the court to enforce this rule of its own motion and without objection being made, but the court’s failure to do so, where there is no objection made, will not constitute a ground for exception.

“Any person embraced within these rules who violates the provisions hereof may be subjected to sanctions, contempt proceedings or other disciplinary actions imposed or initiated by the court.” URCCC 1.03.

¶ 34. The court has held it is reversible error to make unwarranted personal comments on defense counsel in closing argument as to his veracity and believability. Edwards v. State, 737 So.2d 275, 300-01(¶ 56) (Miss.1999). In Edwards, the comments at issue were:

“But, instead, ladies and gentlemen, he made an argument that quite honestly, I don’t have any sympathy as I thought I would for him, because I can’t believe that anybody could get up here with a straight face and argue to you the things that he has just argued....
Quite honestly, ladies and gentlemen, it boggles my mind as to how anybody could argue such a ridiculous proposition, other than the fact I realize they have a job to do and they have to come up with something. But it is still mind boggling how anybody can stand here with a straight face in front of you and say we haven’t proven that....
Now, that does tee me off, ladies and gentlemen, for the defense lawyer, the man who is representing the man who made those maggots infest that man’s head, that man over there is defending the dignity of [the victim] by telling you that the photographs that show the bullet holes in his head don’t show something important in this case?”

Id. at 300(¶ 54).

¶ 35. Here, Davis argues on appeal that Prosecutor Mansell’s comments also attacked defense counsel’s veracity and went further, suggesting that he was deceiving the jury. Davis complains that her first comment suggested that the defense attorney knew Davis was in Yazoo City and was trying to hide that. Next, he contends that her second comment, read in context with the rest of the trial, suggested that defense counsel was trying to hide Davis’s silence and tears from the jury. We do not read these comments to attack the personal character or integrity of defense counsel. We do not find these to rise to the level of the prohibited comments in Edwards. However, if the State wants the jury to conclude that Davis was in Yazoo City, then the State should argue the evidence that indicates Davis was in Yazoo City. If the State wants to discuss Detective Williams’s testimony, it should stick to the evidence. What counsel opposite asks or does not ask is not evidence.

3. Cumulative error

¶ 36. Because we find reversible error elsewhere in the prosecutor’s opening and closing arguments, we do not reach the issue of cumulative error.

B. Question based on facts not in evidence

¶ 37. Finally, Davis argues that the prosecutor engaged in misconduct by implying the existence of facts not in evidence. Particularly, she asked Yazoo City Police Chief Michael Wallace if he found the gun at the Junior Food Mart, where Davis had been dropped off. One of the issues in the trial was whether Davis had been to the Junior Food Mart in Yazoo City, where the gun was found. Davis only admitted being at a Junior Food Mart.

¶ 38. The State maintains that Davis did not move for a mistrial on this point. The State further claims that there was other evidence which linked the gun to Davis.

¶ 39. Wallace testified that the gun had been found underneath a dumpster at the Junior Food Mart in Yazoo City. The State asked:

Q. Now, once you learned that a weapon had been recovered at the same [sic] where Douvell Davis had been dropped off, what did you do with that information?
BY MR. FORTNER: We’re going to have to object, Your Honor, and ask to approach the bench at this time, please.
BY MS. MANSELL: Your Honor, it wasn’t an improper question.
BY MR. FORTNER: We’d like to approach the bench, Judge.
BY THE COURT: All right.
BY MR. FORTNER: Thank you.
(BENCH CONFERENCE)
BY THE COURT: All right. The objection of the defendant is sustained, and the jury will disregard the last question.

A motion for mistrial was made outside the presence of the jury on this basis of this question. The court denied the mistrial.

¶ 40. It is error for the prosecutor to ask questions with no evidentiary basis. Lester v. State, 692 So.2d 755, 781 (Miss.1997) (overruled on other grounds); Hosford v. State, 525 So.2d 789, 792 (Miss.1988). Either the State could or could not prove that Davis was at the same Junior Food Mart. Asking the question in such a way to insinuate the fact was in evidence was not the alternative. The trial judge properly handled this issue. We caution the State on remand not to repeat this defect.

C. Display of Davis’s statement be-forejury

¶ 41. Because we send this case back for a new trial, we decline to address this issue.

IV. Was Davis entitled to prove the existence of Ratliff and Barber’s prior inconsistent statements through Detective Williams?

¶ 42. Davis complains of another limitation of his right to cross-examine adverse witnesses. He maintains.it was error for the trial court to deny him the right to introduce, through Detective Williams, extrinsic evidence of Barber and Ratliffs prior inconsistent statements. The State responds that the issue was waived for lack of proffer, is harmless error, and it is unfair to offer extrinsic evidence of a prior inconsistent statement after that witness has already testified.

¶ 43. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss.2002). Unsworn prior inconsistent statements may be used to impeach a witness’s credibility. M.R.E. 613(b). Rule of Evidence 613(b) provides:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

¶ 44. Here, Barber and Ratliff were key eyewitnesses for the State. Davis wanted to introduce evidence that their testimonies differed in important respects from their statements given to police. For example, Ratliff testified on the stand that he saw Davis reach under his shirt for something and then seconds later, Ratliff heard a shot. He also testified that Davis and Williams were arguing just before the shooting. In his statement to police, however, Ratliff said he had already left the scene before the gunshot and did not know who shot whom. He also stated to police that there was no argument between Davis and Williams. Barber testified that Davis was angry over a gun that Williams stole from him earlier that day and said, “That man thinks he stole something from me. Ain’t nobody steal from Douvell. I’m going to get me another gun.” This, Barber interpreted as a threat, which he relayed to Williams. In Barber’s statement to police, he denied there was any argument between Davis and Williams and said Davis had no reason to be angry with Williams.

¶ 45. During cross-examination, Davis confronted both witnesses with these inconsistencies. Ratliff acknowledged the inconsistencies and explained the reason he left the details out of his police statement was because he was not asked specific enough questions, and he did not really want to be involved. Barber, too, acknowledged the inconsistencies. He explained he still did not consider that there was any argument between Davis and Williams, because no angry words were exchanged between the two. Rather, they were relayed solely to Barber.

¶ 46. Davis then attempted to introduce the prior inconsistent police statements through Detective Williams, who took down the statements. The State objected, because she had never heard of allowing one witness to testify to another’s inconsistent statement. We direct the State’s attention to Hall v. State, 691 So.2d 415, 420 (Miss.1997) (holding mother of victim could testify to victim’s prior inconsistent statement). The judge sustained the objection, because Barber and Ratliff were not given the opportunity to explain or deny the statements. As set out previously, Davis gave both witnesses this opportunity. The State argues on appeal that Davis failed to make a proffer on this point. Again, the record is to the contrary. Davis proffered both statements into the record and had them marked for identification as Exhibit 45.

¶ 47. Nevertheless, Davis’s claim fails, because both Barber and Ratliff admitted making the prior inconsistent statements. Once a witness explains a prior inconsistent statement by admitting it, extrinsic evidence of the statement cannot be admitted into evidence. Shelton v. State, 728 So.2d 105, 115(¶ 47) (Miss.Ct.App.1998). This issue has no merit.

V. Should the trial court have allowed Instruction D-5?

¶ 48. Davis claims that the court erred in refusing Instruction D-5 on reasonable doubt. The court refused this jury instruction as an impermissible attempt to define “reasonable doubt,” and because there were already two other reasonable doubt instructions.

¶ 49. In reviewing the granting or refusal of a jury instruction, we read all the jury instructions actually given as a whole. Whitten v. Cox, 799 So.2d 1, 16(¶ 39) (Miss.2000). If they fairly announce the law and create no injustice, no reversible error will be found. Id.

¶ 50. We find that reasonable doubt was covered elsewhere by Instructions C-8, S-l, and D-4. This issue has no merit.

VI. Was the State required to provide race and gender neutral reasons for its peremptory strikes?

¶ 51. Because we reverse and remand this case for a new trial, we do not reach this issue.

¶ 52. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, AND ISHEE, JJ., CONCUR. SOUTHWICKAND CHANDLER, JJ., CONCUR IN RESULT ONLY. ROBERTS, J., CONCURS IN PART AND SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J. AND SOUTHWICK, J.

ROBERTS, J.,

Specially Concurring:

¶ 53. I concur in the majority’s decision to reverse Davis’s conviction due to an impermissible restraint on Davis’s right to a full cross-examination of Ratcliff to explore any possible motive Ratcliff may have had to testify favorably for the State and inconsistent with his own prior statement. I write separately to express my opinion on the majority’s analysis of the prosecutor’s opening and closing argument as it relates to prohibited comments on Davis’s failure to testify. The majority concludes the comments gave rise to reversible error. With utmost respect, I see the issue through a different lens.

¶ 54. This case clearly illustrates what the majority recognizes as a fine line or “walking a tight rope” on what is and what is not a prejudicial comment on Davis’s right to refrain from testifying. This delicate situation exists for two reasons: (a) Davis did not testify live at trial and (b) Davis gave a statement that can be considered both incriminating in part and exculpatory in part. What Davis said and, conversely, what Davis did not say in that statement is evidence before the jury subject to fair comment by the prosecution.

¶ 55. During opening statements, Davis’s attorney claimed that Davis was walking towards his house when he heard gunshots and saw “people running away.” Davis’s attorney went on to state that Davis found Williams laying on the ground bleeding from a gunshot wound to the head, that Davis put Williams in Williams’s Cadillac, and that Davis drove Williams “trying to get help.” Davis’s attorney even mentioned that Davis did not go to a hospital. As the majority notes, Davis claimed that he was trying to get help for Williams. That is, Davis presented a defense based on the concept that he had only the best intentions in driving Williams. Davis argued that he did not shoot Williams. Davis claimed that he put Williams’s injured body in his car to get “help” for Williams. Naturally, one way for Davis to have helped Williams would have been to get Williams to a hospital for medical attention.

¶ 56. Without question, the prosecution’s comments were not direct references to Davis’s failure to testify. The prosecution did not specifically say something along the lines of, “Davis did not take the witness stand and defend himself against these allegations.” Where the comment is not a direct reference to a defendant’s decision to refrain from testifying, we must examine the comment on a case by case basis. Jones v. State, 669 So.2d 1383, 1390 (Miss.1995).

¶ 57. “[A]ttorneys are to be given wide latitude in making their closing arguments.” Jimpson v. State, 532 So.2d 985, 991 (Miss.1988). Many comments by prosecutors have been examined as potential comments on a defendant’s failure to testify and have been found to be permissible — usually based on the concept that the prosecution may comment on a defendant’s failure to set forth a successful defense. Jimpson, 532 So.2d at 991. Such a comment is not a reference to a defendant’s failure to testify by “innuendo and insinuation.” Alexander v. State, 610 So.2d 320, 340 (Miss.1992).

¶ 58. In its purest form, this contingent of permissible comments shows that the prosecution may comment to show a lack of evidence in the record to support the argument of the defendant’s attorney. Dowbak v. State, 666 So.2d 1377, 1387 (Miss.1996). Accordingly, the prosecution may question a defendant’s inability to explain his presence in the vicinity of a crime. Jimpson, 532 So.2d at 991. The prosecution may comment on a defendant’s actions on the night of a crime, including comments as to what a defendant did or did not say to a highway patrolman. Jones, 669 So.2d at 1390 (emphasis added). The prosecution may turn the jury’s attention to a defendant’s statement to authorities and the defendant’s confession within that statement. Foster v. State, 639 So.2d 1263, 1290 (Miss.1994). Similarly, the prosecution may comment on a defendant’s failure to successfully back up his claim of mistaken identity. Heatherly v. State, 757 So.2d 357(¶ 8) (Miss.Ct.App.2000). Aong the same lines, I would hold that, so long as it does so within the confínes of the evidence, the prosecution may question a defendant’s inability to explain his behavior where it is inconsistent with his defense. In other words, the prosecution is allowed to properly evaluate the weight and worth of the evidence. Taylor v. State, 672 So.2d 1246, 1266 (Miss.1996).

¶ 59. Viewing the comments in context, I am convinced that the prosecutor’s statements were not impermissible comments on Davis’s failure to testify. I see the prosecutor’s comments as evaluations of the weight and worth of the evidence and references to Davis’s failure to put forth a rational and believable defense. Davis claimed he was not guilty of murder. By his statement, submitted into evidence, Davis also attempted to explain William’s presence in the car. In essence, Davis submitted that he had Williams’s best interests in mind when Davis tried “to help” Williams by driving him somewhere. The prosecution’s comments showed that, had Davis really intended “to help” Williams, Davis could certainly have done so by taking Williams to one of many nearby hospitals. I would find that the prosecution’s comments related to the evidence and they were permissible comments in response to Davis’s arguments. McGilberry v. State, 741 So.2d 894(¶ 35) (Miss.1999).

¶ 60. The majority presents a sound and thorough analysis. However, with all due respect, I eollegially disagree with the conclusion that the prosecutor committed error in her arguments. I would find that the prosecution’s comments were permissible comments on the inferences and conclusions that the jury was free to draw from the evidence before it, including Davis’s statement to the police.

LEE, P.J., AND SOUTHWICK, J., JOIN THIS OPINION.

      . The trial court repeatedly admonished the prosecutor to refrain from leading her own witnesses.

      . Bailey v. State, 956 So.2d 1016 (Miss.Ct.App.2007); Bailey v. State, 952 So.2d 225 (Miss.Ct.App.2006).


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Chico CRAFT, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02187-COA.
    Court of Appeals of Mississippi.
    July 24, 2007.
    Rehearing Denied Nov. 20, 2007.

      William R. Labarre, Virginia Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Chico Craft was convicted of murder and was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. On appeal, Craft argues that: (1) the jury was improperly instructed on the element of deliberate design, (2) there was insufficient evidence of deliberate design, and (3) a spectator’s emotional outburst warranted a mistrial. We find no error and affirm.

FACTS

¶ 2. Taiwaneshia McElroy and Craft were romantically involved and had been living together for two years. They had plans to marry and raise a family. On the night of July 10, 2004, they entertained another couple with dinner and cards. After the couple left, McElroy and Craft argued over the card game. The argument ended without incident, and they both went to sleep.

¶ 3. The next morning, July 11, 2004, McElroy went to work. She returned at about .11:00 a.m., woke up Craft, and went into the dining room. Craft followed McElroy and tried to talk to her, but she was silent. She walked toward the couch in the living room and Craft followed. Another argument ensued. McElroy told Craft she did not love him anymore. She demanded that Craft return the key he had to her apartment. McElroy told Craft that she wanted him to move out of the apartment by the time she returned. Craft told her that he loved her and wanted to be with her. He refused to give her the key. Finally, Craft told McElroy that he would need time to get his stuff out.

¶ 4. During this argument, a physical altercation occurred. McElroy began hitting and pushing Craft in an effort to get the key. He held her and tried to calm her down. The two wrestled. She pushed him against the dining room window, and it broke. He pushed her down on the couch and began hitting her. He grabbed a kitchen knife, left over from dinner the previous night, from the nearby table. Craft began stabbing McElroy. She made her way to the sliding glass window, where Craft slit her throat. He tried to help her back on the couch but left her lying next to it. The fight occurred in several rooms, ranging from the kitchen, dining room, to the living room.

¶ 5. Craft put his shoes on and left for his sister’s home. He threw the knife out of the car on State Street, but it was never recovered. He picked up his niece and nephew and took them to his mother’s house. He returned to his sister’s home and went to sleep. At 3:30 a.m., Craft returned to McElroy’s apartment to check on her. He then went back to his sister’s house. At about 6:00 a.m., he told his sister what happened and called the police.

¶ 6. Craft cooperated with the police and exhibited a sense of shock and remorse for the killing. He consistently' maintained that his actions were a result of his rage at the time. At trial, the only issue in dispute was Craft’s state of mind prior to the killing. Forensic pathologist Dr. Stephen Hayne testified that McElroy’s injuries were:

scrapes and scratches of the skin at multiple sites of the body, including the forehead, the left cheek, the left chin, also the upper chest, the left inguinal area and the groin area on the left side of the body and also extensively over the right and left upper extremities, including the right forearm as well as the back of the right arm and forearm, also over the left elbow and also over the front of the left arm and forearm. In addition to that, there was a cut located over the forehead that measured approximately one-and-a-half inches. There was a small cut located over the left chin, a smaller size. In addition to those, there were a total of six stab wounds: [o]ne stab wound located over the left cheek that measured approximately seven-eighths of an inch on the skin surface. It was nonlethal. It went into a depth of approximately one inch....
There were also two stab wounds located to the front surface of the right ... arm [and] right forearm. Again, they were superficial extending to a depth of approximately an inch and were nonlethal.
There were three stab wounds located on the back of the right arm .... parallel to each other. They measured up to approximately an inch-and-a-half on the skin surface, went to a depth of approximately one inch into the arm, and those, again, were-nonlethal.
There was one lethal injury ... and that was a slash wound ... located going across the neck for a distance of seven-and-one-half inches. It went to a depth of approximately three inches. [This severed her] right common carotid artery ... right jugular vein_[and] trachea.... Those were the lethal injuries ....

¶ 7. The jury convicted Craft of murder.

ANALYSIS

I. Was the jury properly instructed on the dement of deliberate design ?

¶ 8. Craft argues that two jury instructions on deliberate design were in hopeless conflict. Craft claims that the instructions allowed the jury to find murder without intent. The State responds that Craft waived the issue. In the alternative, the State asserts the two instructions are in agreement.

¶ 9. Instruction 7 (also identified as D-6A) read:

The Court instructs the Jury that the term “deliberate design,” as used in these instructions, means intent to kill, formed before the moment of the act of killing took place, without authority of law and not legally justifiable, excusable, or under any circumstances that would reduce the act to a lesser crime. Deliberate design under this definition cannot be formed at the time of the act that produces the death of another.
The word “deliberate” always indicates a full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. “Design” means to calculate, plan, contemplate.
Therefore, if you find from the evidence and testimony presented that Chico Craft did not have a deliberate design or intent to kill Taiwaneshia McElroy at some time before the act of killing took place, then it is your sworn duty to find Chico Craft “Not Guilty” of murder,

(emphasis added). Instruction 8 (also identified as S-3) read:

The Court instructs the jury that the “deliberate design to effect death” referenced elsewhere in these instructions does not have to exist in the mind of the slayer for any given length of time; and that such element of the crime of murder is satisfied if you find beyond a reasonable doubt that the defendant formed such design at any time before the commission of the act which caused the death of the decedent and continued to have such design at the time of the commission of such act, if any.

(emphasis added).

¶ 10. We begin our review by noting that Craft did not object to Instructions 7 or 8 at trial. In fact, Craft submitted Instruction 7 to the trial court, “Appellant has no standing to seek redress from an alleged error of his own creation.” Evans v. State, 547 So.2d 38, 40 (Miss.1989). Craft, by offering Instruction 7, got exactly what he asked for and he “cannot now complain that his request was granted.” Smith v. State, 877 So.2d 369, 390(¶ 62) (Miss.2004); Blackwell v. State, 915 So.2d 453, 455(¶ 7) (Miss.Ct.App.2005).

¶ 11. Procedural bar notwithstanding, we conclude that the jury instructions were not in conflict and did not preclude a finding of manslaughter. In reviewing the grant or refusal of a jury instruction, we read all the jury instructions actually given as a whole. Fears v. State, 779 So.2d 1125, 1127(¶9) (Miss.2000). If the instructions as a whole fairly announce the law and create no injustice, no reversible error will be found. Id.

¶ 12. In Windham v. State, 520 So.2d 123, 126 (Miss.1987), the Mississippi Supreme Court found that an instruction that deliberate design can exist “at the moment of’ the killing negates a finding of heat of passion manslaughter. The jury, in Windham, was instructed on both deliberate design murder and heat of passion manslaughter. Id. at 125. The murder instruction charged that even if deliberate design did not arise until “at the very moment of the fatal beating,” this was sufficient for a finding of murder. Id. The court reversed the trial court and held that:

“deliberate” always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. “Design” means to calculate, plan, contemplate .... While it is no doubt true that a deliberate design to kill ... may be formed very quickly, and perhaps only moments before the act of consummating the intent, it is a contradiction in terms to state that a “deliberate design” can be formed at the very moment of the fatal act.

Id. at 126. If the killing occurs during a heat of passion, the crime is manslaughter. Id. at 127. Therefore, the court found that the murder instruction “ruled out” the instruction on manslaughter. Id. at 126.

¶ 13. In Theodore v. State, 798 So.2d 465, 470(¶ 21) (Miss.2001), the supreme court distinguished Windham. In Theodore, the murder instruction read, “[a] deliberate design cannot be formed at the very moment of the fatal act, however, the deliberate design need not exist ... for any definite time ... but if .. . it exists ... but for -an instant before the fatal act, this is sufficient deliberate design to constitute the offense of Murder.” Id. Because the instruction specifically stated that deliberate design “cannot be formed at the very moment of the fatal act,” there was no confusion. Id. at (¶ 22).

¶ 14. Craft argues that the language “at any time before” in Instruction 8 leaves room for the jury to conclude that deliberate design could occur at the time of the fatal act. We disagree. Instruction 7 properly tracts the language in Windham and defines the element of deliberate design. The jury was also specifically told that deliberate design could not be formed at the same time as the fatal act. The jury instructions were properly submitted to the jury. Therefore, we find that this issue has no merit.

II. Was the verdict supported by sufficient evidence of intent?

¶ 15. Craft argues there was insufficient evidence to support his murder conviction. Specifically, he challenges the lack of evidence of deliberate design. The State responds that the use of a deadly weapon was sufficient evidence upon which to infer deliberate design to kill McElroy.

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

¶ 17. Deliberate design murder consists of “[t]he killing of a human being without the authority of law by any means or in any manner ... when done with deliberate design to effect the death of the person killed, or of any human being.” Miss.Code. Ann. § 97-3—19(1)(a) (Rev.2006). As previously discussed, “ ‘deliberate’ always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. ‘Design’ means to calculate, plan, contemplate.” Windham, 520 So.2d at 126. Deliberate design “connotes a prior design to kill. Although our law has never prescribed any particular ex ante time requirement, the essence of the required intent is that the accused must have had some appreciable time for reflection and consideration before [committing the fatal act].” Blanks v. State, 542 So.2d 222, 226-27 (Miss.1989). Deliberate design may be inferred from the circumstances, such as the use of a deadly weapon. Coffield v. State, 749 So.2d 215, 217-18(¶ 10) (Miss.Ct.App.1999).

¶ 18. The fatal act in this case was Craft slashing McElroy’s throat with a knife. Did Craft have the deliberate, premeditated intent to kill McElroy before he slashed her throat? The jury found that he did. We conclude that this point presents a classic jury question between deliberate design and heat of passion.

¶ 19. There was certainly evidence to support a finding of heat of passion manslaughter. Craft and McElroy were engaged in an impromptu, emotional fight. It was violent, as evinced when McElroy shoved Craft so hard into the window, it burst. Craft’s shirt was torn, and he had a scratch on his face. McElroy’s various wounds appeared to be random, rather than calculated. Craft exhibited both shock and remorse. Craft testified he grabbed the knife out of a fit of anger and “cut her.” He described the fight up to the point of grabbing the knife, while she was on the couch. The next thing he consistently described is cutting her by the window. He never described the actual stabbing and slashing.

¶ 20. There was likewise sufficient evidence to support a finding of deliberate design. After he knocked her on the couch, Craft went to the nearby table to retrieve the knife. He returned to the couch and stabbed her. Besides a total of six stab wounds, McElroy sustained many other cuts and abrasions, indicating that they struggled at some point while he had the knife. The jury could have concluded that McElroy tried to get away at least twice, after he started stabbing her. There was a bloody handprint and swipe on the floor by the front door in the living room. Craft finally slashed her throat after she moved to the sliding glass window on the other side of the living room. He left her in the apartment for approximately fifteen hours, before he returned to the scene. He waited an additional two and a half hours before calling police.

¶ 21. We find that there was sufficient evidence for the jury to find that, before Craft slashed McElroy’s throat, he had appreciable time to plan, and did in fact plan, to kill her. We find no error on this issue.

III. Was Craft entitled to a mistrial after a spectator’s emotional outburst at trial?

¶ 22. Craft argues the trial court should have granted a mistrial after a spectator’s emotional outburst disrupted trial. The State responds that the issue was waived. In the alternative, the State claims there was no prejudice.

¶23. An emotional outburst occurred during the playing of the 911 tape. While the transcript did not record the outburst, it was enough for the trial court sua sponte to order:

THE COURT: All right. Let’s turn it off.
MS. PETERSON [District Attorney]: May we take a brief recess, your Hon- or[?]
THE COURT: Members of the jury, I need you to step into the jury room, please.
(Jury excused from the courtroom.)
THE COURT: [911 operator witness] may step down.
(Recess. The jury remained outside the courtroom during the following proceedings:)
MS. WALL [Defense Counsel]: Your Honor, at this point we would ask the Court for a mistrial because of the outburst. We feel that it was prejudicial to my client and the jury is affected by that and we move for a mistrial.
THE COURT: All right. Be overruled. In the Court’s opinion there was no outburst at all. The Court observed a spectator during the portion of the tape being played put his hands to his ears for about one minute and then when the Court ascertained or heard audible moaning, that’s when I immediately sent the jury out and declared a recess. So it will be overruled at this point.
Ms. Peterson, you need to make sure that although we have a public courtroom there are certain rules of decorum that are going to be observed.
MS. PETERSON: Yes, your Honor. We have done so.

Trial resumed, and the 911 tape continued to play. No special instructions were requested or given to the jury.

¶24. The standard of review for a denial of a motion for mistrial is abuse of discretion. Caston v. State, 823 So.2d 473, 492(¶ 54) (Miss.2002). “Upon motion of a party or its own motion, the court may declare a mistrial if [ ] the trial cannot proceed in conformity with law.” URCCC 3.12. The most fundamental and sacred rights secured for the criminal defendant is his right to a trial before a fair and impartial jury. Johnson v. State, 476 So.2d 1195, 1209 (Miss.1985). “Because of this, once the jury is empaneled, all cautionary measures possible should be taken to prevent extraneous or outside influence from reaching the jury in an effort to ensure impartiality and to ensure that the accused receives a fair trial.” Williamson v. State, 512 So.2d 868, 882 (Miss.1987) (overruled on other grounds). Outside influences must be eliminated if possible and minimized otherwise or the verdict rendered is questionable and a mistrial is appropriate. Fuselier v. State, 468 So.2d 45, 53 (Miss.1985).

¶ 25. For example, in Fuselier it was reversible error when the victim’s daughter sat inside the rail near the prosecutor’s table and “exhibited emotion” while acting as both a spectator and a witness. Id. The trial court overruled Fuselier’s objections. Id. at 52-53. The victim’s daughter’s actions gave the false impression of the prosecution acting on behalf of the victim. Id. “Because such an erroneous view can all too easily lead to a verdict based on venge[a]nce and sympathy as opposed to reasoned application of rules of law to the facts” this was error. Id.

¶ 26. The supreme court revisited the issue of emotional outbursts in Jones v. State, 841 So.2d 115 (Miss.2003). Jones was on trial for the stabbing death of Michael Wilkerson. Id. at 121(¶ 4). During Dr. Hayne’s testimony, several of Wilkerson’s family left the courtroom crying loudly. Id. at 140(¶ 84). The judge sent the jury out and admonished the spectators to be quiet. Id. He did not give a curative instruction, as none was requested. Id. He banned the disruptive spectators from the remainder of the trial. Id. The supreme court noted that “the trial judge is in a better position to assess the effect of such an incident than is this Court ... and this Court will not reverse ... unless a trial judge abused his discretion.” Id. at (¶ 85) (quoting Chase v. State, 645 So.2d 829, 848-49 (Miss.1994)). “It is only when it is evident that such authority should be exercised and is not, that this Court will interfere.” Id. (quoting Floyd v. State, 166 Miss. 15, 40, 148 So. 226, 232 (1933)). Because the trial court immediately restored order and no other outburst occurred, the supreme court affirmed the denial of a mistrial. Id. at (¶ 86).

¶ 27. Likewise, in Bell v. State, 631 So.2d 817 (Miss.1994), the supreme court affirmed denial of a mistrial. Bell was on trial for murder. During eyewitness testimony, the victim’s mother jumped up in the front row and “blurted out” several times, “Cold blooded killed my child. He cold-blooded killed my child.” Id. at 819. She had to be restrained and forcibly removed from the courtroom. Id. at 820. The trial court immediately sent out the jury. Id. at 819. He then polled the jury members to determine whether they could set aside the “emotional outbreak” and render a verdict solely on the evidence from the witness stand. Id. at 820. All jurors indicated they could. Id. He instructed them they were not to consider the outburst as evidence in any way and were not to let it have any bearing on their decision. Id. The Bell court distinguished Fuselier in that the victim’s mother was not at counsel’s table and the trial judge proficiently handled the matter. Id.

¶28. As in Bell and Jones, here, the trial court immediately sent the jury out and restored order to the courtroom. There was no further outburst. The trial court obviously did not think that the spectator’s moaning was yet prejudicial. It appears the trial court took prompt preventative action. In this regard, this case may be distinguished from Fuselier, where the trial court took no preventative or curative action whatsoever. Further, we note that Craft did not feel the need to request a curative instruction after denial of the mistrial.

¶ 29. Besides the emotional impact on the jury, one concern may be whether or not the spectator’s actions interfered with the jury’s ability to hear the 911 tape. It was a key piece of evidence on Craft’s state of mind, and Craft’s voice on the tape is very soft with intermittent crying. However, there is no indication from the record that the jury could not hear the tape. The only concern from the trial court and the attorneys was the emotional nature of the outburst.

¶ 30. The trial court was in the better position to assess the impact of the moaning and found a recess was all that was warranted. On this record, we find no error.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF MURDER AND SENTENCE TO SERVE A TERM OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: ISHEE, J.,

text:
    2004 CHEVROLET PICKUP, Appellant v. STATE of Mississippi and North Mississippi Narcotics Unit, Appellees.
    No. 2006-CA-01104-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.
    Rehearing Denied Dec. 4, 2007.

      Thomas M. Brahan, attorney for appellant.
    J. Trent Kelly, Tupelo, attorney for ap-pellees.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On May 22, 2006, the Chickasaw County Circuit Court found that the State of Mississippi and the North Mississippi Narcotics Unit (NMNU) proved by a preponderance of the evidence that (1) Walter Hampton was a seller of illegal drugs, (2) a 2004 Chevrolet Avalanche was owned by Hampton, Antonio Eddie being but a straw man, and (3) the vehicle was purchased with funds from the proceeds of drug transactions. The court then ordered the vehicle forfeited to the NMNU. Aggrieved, Antonio Eddie appeals. He claims the State and the NMNU failed to prove the following by a preponderance of the evidence:

I. That Antonio Eddie was not the true owner of the 2004 Chevrolet Avalanche
II. That the 2004 Chevrolet Avalanche was purchased with proceeds of drug sales
III. That the 2004 Chevrolet Avalanche was used or intended to be used to transport or otherwise facilitate an illegal drug transaction with the knowledge or consent of the true owner, Antonio Eddie

Finding no error, we affirm.

FACTS

¶ 2. According to testimony put on by the State, the Bureau of Narcotics had been investigating Walter Hampton since 2001. On November 20, 2003, police stopped Walter Hampton and Dewayne Robinson driving the 2004 Chevrolet Avalanche that is the subject of this litigation. Upon searching the truck, agents Brian Ely and Brand Huffman, of the NMNU, discovered marijuana and cocaine residue in the pocket of the door. Based upon this search, NMNU agents obtained a search warrant for the trailer in which Hampton lived. During the execution of that warrant, they found marijuana, some scales, and an IOU list.

¶ 3. The following year, authorities stopped Frederick Randle as he was leaving Hampton’s residence. They found marijuana in Randle’s truck, and this led to a second search of Hampton’s trailer. During that search, they found marijuana that had been thrown into the yard and marijuana residue on a counter where it appeared people had been cutting the drugs. It was after this search that authorities seized the Avalanche.

¶ 4. Antonio Eddie testified that he first observed the truck during a late night delivery for Wal-Mart, for whom he worked as a truck driver at the time of the trial. He then alleged that he contacted Hampton and asked him to look at the truck for him and see what trade-in value the dealership would give him for a Chevrolet Yukon. Conveniently, Hampton was going to the dealership the next day to look at a Chevrolet TrailBlazer, but his girlfriend was turned down for credit. There was conflicting testimony from the salesman, Reginald Henry, who first stated that Hampton paid the initial cash deposit at the dealership and that Eddie did not ask any questions and had nothing to do with the purchase of the truck until he signed the papers later that day. However, he later said that Eddie paid the money at a meeting at Hampton’s grandmother’s. There was also a check written on Eddie’s account, but it was never cashed. The balance of the purchase price for the Avalanche, after deducting the Yukon trade-in and the initial deposit, was paid in cash over the next few weeks.

¶ 5. The truck was customized with Gucci leather seats, custom rims and tires, an upgraded stereo system, and a custom grill and tag for the front. Eddie testified that he payed for all of this and that he never received any money from Hampton for the customization of the truck. The individuals who performed the customization, however, testified that they never dealt with Eddie. It was either Hampton or Marcus Thompson who came to them to arrange for the customization or to check on the vehicle.

¶ 6. Winford Terry, Jr., owner of Terry’s Custom Upholstery, testified that he installed the Gucci leather interior in the Avalanche. He testified that Hampton brought the Avalanche to his shop and paid him in cash for the upholstery. While he said Hampton came to his shop a number of times, he never saw Eddie until after police had seized the truck.

¶ 7. Brad Herndon, owner of DeCa Auto Sound, testified he installed a stereo system in the Avalanche for Walter Hampton. He estimated that Hampton paid between one and two thousand dollars and that he also brought in some additional equipment to install that was not purchased at Hern-don’s business. During cross-examination, he stated that it would not be unusual for a third party to bring in a vehicle, but he never received any money, from anyone other than Hampton and never had any indication that it was not Hampton’s truck.

¶ 8. Lastly, Adam Bates, part owner of Bates Tire Center, testified that the man who came to purchase the rims wanted the best spinning wheels. These were $8,000 rims, of which Bates had only sold one other set to a professional basketball player. Marcus Thompson testified that he took the truck to the shop to get new rims for Eddie. He said Eddie contacted him and showed him some rims that he had found on the Internet. When the work was done, however, Marcus said he took the truck to Hampton. He said he did that because Eddie told him to.

¶ 9. The State also presented the testimony of Officer Jamal Thompson, of the Aberdeen Police . Department. Officer Thompson testified that Marcus Thompson had indeed been charged with a felony even though he had denied it during direct examination. On October 30, 2005, Marcus was arrested and charged with possession of crack cocaine with intent. This was at the same time that Theron Hampton, the brother of Walter, gave a statement to Officer Thompson concerning Eddie. Theron made a signed statement that he was the actual owner of a brown Crown Victoria titled in Eddie’s name. According to the statement, Theron’s bad credit prevented him from purchasing the car, so he got Eddie to title the car in his name.

¶ 10. On cross-examination, Eddie testified that, in addition to the Avalanche, he also bought a 2003 Yukon in March 2003. He said he would use this vehicle to travel to see his brother play football. When he was questioned as to why Hampton’s address was on the paperwork for the Avalanche, he could not explain it.

¶ 11. Ultimately, the judge found that Hampton was the true owner of the Avalanche and that Eddie acted only a straw man. He also found that the truck had been purchased with the proceeds of drug sales, and he ordered it forfeited to the NMNU.

STANDARD OF REVIEW

¶ 12. “Findings of fact are given deferential treatment and are subject to the manifest error/substantial evidence standard.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 15) (Miss.2002).

ISSUES AND ANALYSIS

I. Whether Antonio Eddie was the true owner of the Avalanche

II. Whether the Avalanche was purchased from the proceeds of drug sales

¶ 13. We will discuss these issues together as they are interrelated.

¶ 14. Any property used, or intended to be used, to transport or facilitate the transportation of controlled substances and any proceeds from the exchange of controlled substances are subject to forfeiture. Miss.Code Ann. § 41—29—153(a)(4), (7) (Rev.2005). A property owner has a right to file an answer to a petition for forfeiture, and, if he does so, it is then the burden of the petitioner to prove by a preponderance of the evidence that the property is subject to forfeiture. Miss.Code Ann. § 41-29-179(2) (Rev.2005). The penal nature of forfeiture statutes requires that they be strictly construed. SS5 W. Ash St. v. City of Jackson, 664 So.2d 194, 199 (Miss.1995). On the other hand, “failure to look beyond bare legal title would foster manipulation of nominal ownership to frustrate [the intent of the forfeiture statutes].” One Ford Mustang Convertible v. State ex rel. Clay County Sheriffs Dep’t, 676 So.2d 905, 907 (Miss.1996) (quoting United States v. 526 Liscum Drive, 866 F.2d 213, 217 (6th Cir.1989)).

¶ 15. Eddie claims that he is the true owner of the Avalanche, but the NMNU contends that Eddie was merely a straw man and that Hampton was the true owner. Since the trial court found by a preponderance of the evidence that Eddie was a straw man and that the vehicle was purchased with proceeds from drug sales by its true owner, Hampton, we must give deference to the court and ask only whether its findings of fact were manifestly in error. Russell, 826 So.2d at 721(¶ 15).

¶ 16. A number of facts support the court’s finding that the NMNU proved by a preponderance of the evidence that Hampton was the true owner and that the Avalanche was purchased from the proceeds of drug sales. Hampton went to the dealership to check out the truck and paid the initial cash for it. He paid for the vehicle and its extensive customization in cash. A number of witnesses testified that they saw Hampton driving the Avalanche all the time and that it was usually parked at his residence. In the glove compartment, the police found a number of receipts that indicated that Hampton had been paying for the maintenance on the truck. The signed statement by Walter Hampton’s brother, Theron, also supports the NMNU’s position. The statement indicates that Eddie also put his name on the title of Theron’s car because Theron had bad credit.

¶ 17. Concerning whether the Avalanche was the proceeds of drug sales, the NMNU had been investigating Hampton for drug trafficking since 2001. In 2003, the police arrested him following a traffic stop, during which marijuana and cocaine residue were discovered in the door of the Avalanche. After the stop, the police searched Hampton’s residence and discovered marijuana, scales, and an IOU list. During a second search of Hampton’s home, conducted after authorities stopped an individual leaving with marijuana, the police found more drugs and seized the truck and other property. At the time of trial, Hampton had pled guilty to a charge of possession of a controlled substance with intent to distribute and had another such charge pending against him. All of this must also be considered along with the fact that the truck and all of its accessories were paid for with cash.

¶ 18. Based on the evidence presented, we find that the trial court did not commit manifest error in finding that Hampton was the true owner of the Avalanche, that Eddie was merely a straw man, and that the truck was purchased with the proceeds of drug sales. Therefore, it was not error to order the Avalanche to be forfeited to the NMNU. These issues are without merit.

III. Whether the Avalanche was used or intended to be used to facilitate drug transactions with the knowledge or consent of Antonio Eddie

¶ 19. The trial court found that Hampton purchased the Avalanche from the proceeds of drug sales, not that it was used to facilitate drug transactions. Since we find that ruling was not manifest error, we do not need to address this assignment of error. This issue is moot.

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

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


author: BARNES, J.,

text:
    Curtis GORE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01063-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2007.
    Rehearing Denied Dec. 4, 2007.

      Curtis Gore, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court.

111. Curtis Gore’s motion for post-conviction relief was denied by the Circuit Court of Lowndes County as time-barred by statute. He had previously pled guilty to one count of sale of cocaine and was sentenced to twelve years’ imprisonment.

¶ 2. On appeal, Gore assigns the following errors which we quote verbatim:

I. Whether Gore’s plea of guilty was voluntarily entered or the result of blackmail, coercion, and threats violating his Fourth and Fifth U.S. Constitutional Amendments.
II. Whether the Court erred in accepting Gore’s plea of guilty to the charge of sale of cocaine because Gore was entrapped into a criminal act due to “outrageous conduct” by Lowndes County Narcotics Agents and their 2 habitual criminal informants.
III. Whether Gore was deprived of effective assistance of counsel.

¶ 3. We find that the circuit court correctly denied the motion for post-conviction relief as time barred and affirm the judgment.

SUMMARY OF FACTS

¶ 4. Gore was indicted in May 2001, for sale of cocaine and possession of cocaine. On February 21, 2002, Gore executed a petition to plead guilty to the sale of cocaine charge. The circuit court considered the petition and found that the guilty plea was knowingly and voluntarily entered into and accepted the guilty plea to sale of cocaine. The charge of possession of cocaine was retired to the files. On November 14, 2002, Gore was sentenced to twelve years in the custody of the Mississippi Department of Corrections.

¶ 5. On March 7, 2006, Gore filed his motion for post-conviction relief, alleging that the State had violated his First Amendment rights by confiscating his “personal, private, nude, tapes and movies of Gore and his fiancé.” He also alleged entrapment and coercion by threats to show his private movies if he refused to sign the guilty plea, and ineffective assistance of counsel.

¶ 6. In its order the court found that Gore’s motion was filed past the statute of limitations of three years after entering a guilty plea. The court, finding that none of the exceptions of Mississippi Code Annotated section 99-39-5 were applicable, denied the motion as time-barred.

¶ 7. In his appeal to this Court, Gore does not address the denial of his motion as time-barred. Instead, Gore focuses on the merits of his arguments. He does not deny that he sold the cocaine to the agents, only that he did so after the agents continued to pressure him into making the sale. He considers this to be entrapment. Gore also contends that he was “blackmailed” into entering a guilty plea after the agents gained possession of private films of him and his fiancee and used these films as leverage to make him enter a guilty plea rather than making the films public.

DISCUSSION

¶ 8. A trial court’s denial of post-conviction relief will be disturbed on appeal only when the court’s decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567 (¶ 8) (Miss.1999) (citing State v. Tokman, 564 So.2d 1339, 1341 (Miss.1990)). The appropriate standard for questions of law, however, is de novo. Rice v. State, 910 So.2d 1163, 1164(¶4). (Miss.Ct.App.2005) (citing Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)).

¶ 9. Mississippi Code Annotated section 99-39-5(2) (Rev.2000) provides:

A motion for relief under this chapter shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in the case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in the case of a guilty plea, within three (3) years after the entry of conviction.

¶ 10. The statute provides for exceptions where the prisoner can demonstrate that there has been an intervening decision by the Supreme Court (Mississippi or United States) “which would have actually adversely affected the outcome of his conviction or sentence.... ” Miss.Code Ann. § 99-39-27 (9). Another exception is for newly discovered evidence or a case in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Id. As previously mentioned, Gore does not argue that his assignments of error come within any of these exceptions to the statute.

¶ 11. The circuit court specifically found that the statute was applicable and that “none of the exceptions” were applicable “since no new evidence has appeared which was not available when the case could have gone to trial, no intervening higher court decision has passed, nor is the Petitioner being detained on an expired sentence.”

¶ 12. Even if the Court were not precluded by statute from reviewing the merits of Gore’s appeal, he has provided the Court with little to go on. Apart from Gore’s argument in his briefs, there is no support for any of his arguments, either in the circuit court or this Court. Gore has not provided any affidavits or other support for his contentions. If this Court was not precluded by statute from reviewing the merits of his arguments, the Court would have no alternative but to find his assignments of error without merit.

CONCLUSION

1113. Gore’s motion for post-conviction relief is barred by the three-year statute of limitation found in Mississippi Code Annotated section 99-39-5(2), and the circuit court correctly denied Gore’s motion. We affirm that judgment.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


author: CHANDLER, J.,

text:
    Rickey W. ELLZEY, Appellant v. Sherry L. JAMES, Formerly Sherry L. Waller, Appellee.
    No. 2006-CA-00758-COA.
    Court of Appeals of Mississippi.
    Nov. 20, 2007.
    Pamela Lynn Huddleston, attorney for appellant.
    Henry S. Davis, Jr., John L. Jeffries, Laurel, attorneys for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Rickey W. Ellzey filed a complaint in the Chancery Court of Jones County praying for the return of mineral interests which Ellzey had transferred to Sherry L. James in an effort to conceal his assets from Medicaid. The chancellor determined James to be the sole owner of the mineral interests, and Ellzey has appealed.

¶2. We find that the chancellor acted within his discretion in determining that Ellzey was not entitled to any relief because he came into court with unclean hands. Therefore, we affirm.

FACTS

¶3. Ellzey and James began living together in Jones County in 1979. Subsequently, Ellzey’s father died and he inherited certain real property in Jones County. In 1994, Ellzey had a heart transplant procedure that necessitated subsequent treatment and medication. Due to his sporadic work history, Ellzey did not qualify for Social Security disability benefits. However, he did qualify for Medicaid assistance.

¶ 4. While receiving assistance from Medicaid, Ellzey learned that an oil well on his inherited property had begun producing and that he would soon receive royalty checks. As Ellzey states in his brief, he feared these royalty checks might “have a detrimental effect on his overall health” by affecting his Medicaid eligibility. Ellzey resolved to combat this detrimental effect by conveying the mineral interests to James. On December 6, 1999, Ellzey executed a deed conveying all his mineral interests in the property to James. F.L. Sam Ellzey, a notary and Ellzey’s uncle, acknowledged the deed, and it was recorded in the land records of Jones County. Ellzey and James both testified that the purpose of this transfer was to conceal Ellzey’s royalty income from Medicaid.

¶ 5. F.L. Sam Ellzey testified that, on December 6 or 7, 1999, James executed a deed reconveying the property to Ellzey. F.L. Sam Ellzey stated that he notarized this deed as well. A copy of the purported reconveyance deed was admitted into evidence. However, the copy was not dated, did not bear a notary’s seal, did not include an acknowledgment, and did not show it had been recorded. Ellzey stated that he thought the original deed had been stolen. He testified that he had anticipated his medical expenses would decrease after fourteen months and intended to have James convey the mineral interests back to him at that time. Ellzey related that, after the fourteen months expired, James refused to reconvey the mineral interests.

¶ 6. Thereafter, the parties separated and Ellzey filed the complaint requesting the return of the mineral interests. James filed a cross-complaint to recover certain personal property, which is not at issue in this appeal. The court adjudicated the matter of the personal property and continued the case to join the Mississippi Medicaid Commission as a party. However, the Medicaid Commission was dismissed from the case after declining to participate and seek recovery of any funds paid to Ellzey.

¶ 7. At the hearing, Ellzey argued that he was entitled to a return of the mineral interests because the reconveyance deed, though unrecorded and defectively acknowledged, was effective between himself and James. Ellzey advanced the alternative argument that his transfer to James created a trust in which the minerals were being held for his benefit. The chancellor found that it was undisputed that the original deed from James to Ellzey was lost or destroyed, and that the only evidence of the deed was a photocopy without an acknowledgment. The chancellor found that the copy was not a reproduction of the whole original deed and, therefore, was not an accurate copy or representation of the original. The chancellor observed that, normally, the court could exercise its equitable powers to determine that the partial copy of the deed could be substituted for the original and recorded in the land records. However, the chancellor declined to employ this remedy because Ellzey was before the court with unclean hands and “the Law does not allow a Court of Equity to help him recover what he lost by defrauding the State of Mississippi.” The court found the mineral rights and royalties to be the sole property of James.

LAW AND ANALYSIS

I. WHETHER THE COURT ERRED IN DECLINING TO AWARD THE DISPUTED MINERAL INTERESTS TO ELLZEY DESPITE A VALID DEED.

¶ 8. Ellzey argues that the chancellor erred by finding James to be the sole owner of the mineral interests. Ellzey points out that the copy of the reconveyance deed in evidence showed James’s signature and that James admitted it was her signature at the hearing. He further avers that F.L. Sam Ellzey' witnessed the execution of the original reconveyance deed and notarized it. For these reasons, Ellzey contends, the reconveyance deed was valid between Ellzey and James.

¶ 9. Mississippi Rule of Evidence 1002 states that, to prove the contents of a writing, the original is required, unless otherwise provided by law. Under Rule 1003, “[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of . the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” The chancellor found that the copy of the re-conveyance deed did not accurately represent the original because it was a partial copy. While “[i]t is settled law in this state that a deed defectively acknowledged may still be good between the parties to it,” Cotton v. McConnell, 435 So.2d 683, 687 (Miss.1983), any validation of the conveyance from James to Ellzey would have required the intervention of the chancellor in determining from all of the facts that the partial copy of the deed could be substituted for the original deed. The chancellor refused to aid Ellzey in this manner because Ellzey sought assistance from the court to cure a problem which Ellzey had himself created with his scheme to defraud the Medicaid Commission.

¶ 10. In determining that Ellzey was not entitled to any relief, the chancellor applied the maxim that “he who doeth fraud, may not borrow the hands of the chancellor to draw equity from a source his own hands hath polluted.” Collins v. Collins, 625 So.2d 786, 789 (Miss.1993) (quoting Thigpen v. Kennedy, 238 So.2d 744, 746-47 (Miss.1970)). This maxim has been applied in cases in which a claimant sought the court’s aid in returning property which the claimant had transferred to another with the purpose of defrauding a third party. In Thigpen, the plaintiff conveyed property to his girlfriend in order to conceal it from his wife in a pending divorce suit. Thigpen, 238 So.2d at 746. He later sued the girlfriend to recover the property or for the establishment of a resulting trust. Id. at 745-46. The court found that the transfer was in violation of the statute of frauds and contrary to public policy and, therefore, the plaintiff was not entitled to any relief. The court summarized the law as follows:

In Crabb v. Comer, 190 Miss. 289, 200 So. 133, 135, this Court said: “It is one of the oldest maxims of the law that no man shall, in a court of justice, take an advantage which has his own wrong as a foundation for that advantage.” Moreover, one of the maxims of equity is, “He who comes into equity must come with clean hands.” In other words, “It says that whenever a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy.” Vol. 1 Pomeroy’s Equity Jurisprudence, 4th Ed., Section 397, page 738.

Id. at 746 (quoting Patterson v. Koerner, 220 Miss. 590, 594-95, 71 So.2d 464, 466 (1954)). The court continued:

The maxim is often stated in the following language, “he who doeth fraud, may not borrow the hands of the chancellor to draw equity from a source his own hands hath polluted.” The maxim is not to be lightly considered and brushed aside. It is the duty of the Court to apply it of its own motion when it becomes evident that the facts are such that they call for the application of the maxim. Griffith, Miss. Chancery Practice, § 42 (1950).

Id. at 746-47.

¶ 11. The court applied these principles in Willenbrock v. Brown, 239 So.2d 922, 923 (1970), in which the plaintiff opened a bank account in the name of Willenbrock in order to conceal funds from his estranged wife. At the wife’s insistence, a receiver had been appointed to take possession of the husband’s assets. Id. A creditor, Brown, recovered a default judgment against Willenbrock and a writ of garnishment was issued against the bank. Id. The plaintiff claimed that the funds were his. Id. The court found the plaintiff was not entitled to the funds, having “placed himself in this unfortunate position by an act, not in the usual course of business, but in furtherance of a plan to place his assets beyond the reach of his wife in pending litigation.” Id. at 925. Because the plaintiffs own wrong was the foundation of the advantage he sought from the court, the court did not interfere on his behalf. Id.

¶ 12. In Walters v. Patterson, 531 So.2d 581, 584 (Miss.1988), Walters sought the return of property he had transferred to Patterson with the purpose of concealing it from the United States Internal Revenue Service. Walters asserted that he and Patterson had reached an oral agreement that Walters would be permitted to redeem the property in the future. Id. at 582. The supreme court observed that the transfer for the purpose of tax evasion was contrary to public policy and violated the statute of frauds. Id. at 584. The court found the case was appropriate for the application of the maxim that “he who doeth fraud, may not borrow the hands of the chancellor to draw equity from a source his own hands hath polluted,” and affirmed the dismissal of Walters’s petition. Id. at 585.

¶ 13. In Collins, a husband, convicted of drug crimes, conveyed property to his wife to avoid fines levied by the State. Collins, 625 So.2d at 787-88. After securing a reversal of his conviction, the husband sued the wife for return of the property, asserting that the two had agreed she would execute a deed back to him upon his acquittal. Id. at 788. The court found that the husband was before the court with unclean hands because the evidence clearly showed he deeded the property to his wife intending to defraud the State of Mississippi. Id. at 789. The court found that the husband could not gain assistance from the courts in securing the property’s return because “he who doeth fraud, may not borrow the hands of the chancellor to draw equity from a source his own hands hath polluted.” Id. The court observed that, for application of the maxim, the conduct need not be criminal in nature or sufficient to justify legal proceedings, but there must be a “wilful act concerning the cause of action which can be said to transgress equitable standards of conduct.” Id.

¶ 14. In this case, Ellzey transferred the mineral interests to James in order to conceal his assets from Medicaid. As in each of the aforementioned cases, Ellzey invoked the aid of the chancery court to remedy a problem created by his own fraudulent act. The chancellor appropriately held that Ellzey was not entitled to relief because he sought to use “the chancellor’s hands to draw equity from a source his own hands ha[d] polluted.” Therefore, we affirm the decision of the chancery court.

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

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