text:
    Joey Montrell CHANDLER v. STATE of Mississippi.
    No. 2005-KA-01321-SCT.
    Supreme Court of Mississippi.
    Dec. 7, 2006.
    Rehearing Denied Jan. 25, 2007.

      Robert B. McDuff, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Joey Montrell Chandler (Chandler) was indicted for the murder of his cousin Emmitt Chandler (Emmitt) pursuant to Miss.Code Ann. § 97-3-19. Chandler was tried for the crime of murder by a jury in the Circuit Court of Clay County, Mississippi, the Honorable James T. Kitchens, Jr., presiding. Chandler was convicted of murder by the jury and sentenced by the trial court to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections. The trial court denied all of Chandler’s post-trial motions. Chandler now appeals his conviction and sentence to this Court.

FACTS

¶ 2. Ben McCurry rode with Chandler to the store on August 17, 2003. During their ride, Chandler told McCurry that he had been “hit,” meaning that some of Chandler’s possessions had been stolen from him. According to McCurry, Chandler stated that Emmitt stole a pound of marijuana from him that was wrapped in his T-shirt and $400. Chandler suspected that Emmitt stole the items because Em-mitt was the only person around Chandler’s car when Chandler went inside the store to buy a drink.

¶ 3. When Chandler returned to his car, he saw that “his stuff had been fumbled with” and the white T-shirt was on the ground. Chandler told McCurry that he had to have the marijuana by Tuesday or else somebody was going to kill Chandler or his family. He also told McCurry that he had to “take care of business.” McCur-ry explained that taking care of business meant that Chandler “had to get the money back or get the drugs back or do whatever.” Within one and a half to two hours after leaving Chandler, McCurry heard that Emmitt had been shot and killed. McCurry stated that Chandler was scared when he talked to McCurry that day.

¶ 4. Robert Carouthers, Antoine Belt, Dana Gustavis, and Brandon Ewing were present when Emmitt was shot. Carouth-ers, Belt, and Gustavis testified at trial. Carouthers and Gustavis were scared by the shooting and initially told police that they did not witness the crime. None of these witnesses’s testimony corroborated Chandler’s version of event. The individual testimony of Carouthers, Belt, and Gus-tavis are addressed under each issue.

¶ 5. Chandler testified that on August 16, 2003, he had a quarter pound of marijuana in his car wrapped in a blue shirt. Chandler planned to sell the drugs to make some extra money since his girlfriend was pregnant. However, the marijuana was taken from his car at Club Hollywood on the night of August 16. As Chandler walked out of the club, he saw Emmitt exiting his' car with the marijuana wrapped in the blue shirt. Emmitt then told Chandler that he heard that Chandler “got hit.”

¶ 6. The next day, Chandler stopped by his Uncle Troy’s house and borrowed a gun. Chandler tucked the gun into his pants to protect himself because of “all the rumors that were surfing around.”

¶ 7. Later, Chandler met Emmitt at a store. According to Chandler, Emmitt wanted to show Chandler something that belonged to him in the Pheba community, however, Chandler was afraid to follow Emmitt. Nevertheless, Chandler followed Emmitt to Pheba.

¶ 8. When they arrived in Pheba, Em-mitt spoke to everyone about marijuana. Chandler testified that Emmitt asked him to go into the woods with him. Emmitt and Chandler walked into the woods. Ca-routhers, Belt, Gustavis, and Ewing followed them into the woods.

¶ 9. Chandler said that he and Emmit were surrounded by the other people that were present. Emmitt was brushing up next to Chandler and told Chandler “you’re a punk.” However, Chandler testified that Emmitt grabbed his gun from his pants. Chandler stated that he was scared, so he grabbed for the gun. At this point, Chandler and Emmitt began to struggle for the gun Chandler described the struggle as follows:

The gun went off during the struggle, and during the struggle, Emmitt held the gun and he was trying to turn the gun and it kept going off. I noticed at one point in time he was hit, and as he was hit, he held on to the gun and pulled me to the ground with him and the gun steadily went off.

¶ 10. Chandler, initially, fled the scene in his ear, however, he returned to Em-mitt, asked him if he was “okay,” and, told Emmitt that he would get him some help. Chandler later had a family member drive him to the sheriffs office that night.

¶ 11. On cross-examination, Chandler gave his two versions of the shooting. Chandler admitted that on the night of the shooting he spoke to Joe Huffman, the investigator for violent crimes for the Clay County Sheriffs Department. Chandler told Huffman that he pulled out the gun, aimed it, and pulled the trigger. However, Chandler, also, denied intentionally firing the gun. Instead, he implied that the gun may have accidently misfired during his struggle with Emmitt.

¶ 12. Troy Chandler, Chandler’s uncle, testified that he never gave Chandler permission to “borrow” his .857 Magnum pistol. After a police search on a pond near his property, Troy identified a recovered pistol as his .357 Magnum pistol.

¶ 13. Dr. Steven Hayne, forensic pathologist for the State of Mississippi, performed the autopsy on Emmitt’s body. Dr. Hayne identified two gunshot wounds. One of the wounds was a gunshot to Em-mitt’s right arm below his shoulder. This gunshot exited the arm and re-entered the body on the right side of Emmitt’s chest. A second gunshot struck Emmitt in the right chest wall. Dr. Hayne determined that these two gunshot wounds penetrated the body cavity, causing lethal wounds. Other than an abrasion to Emmitt’s ankle, there was no evidence of defensive or offensive injuries.

¶ 14. Based on his observations, Dr. Hayne concluded that the gunshots wounds that Emmitt received were not from a contact wound, but from a near contact or distant gunshot wound. Dr. Hayne testified that either of the gunshot wounds would have resulted in Emmitt’s death. In Dr. Haynes’s opinion, Emmitt’s death was a homicide caused by acute internal ensanguination or blood loss.

ISSUES

I. Whether the trial court erred by denying a jury instruction for culpable negligence manslaughter.

II. Whether the trial court erred by denying a jury instruction for reasonable self-defense.

III. Whether the trial court erred by excluding evidence supporting a claim of self-defense.

ANALYSIS

I. Culpable negligence instruction

¶ 15. Chandler argues that the trial court erred by,denying his requested instruction on culpable negligence manslaughter. The indictment against Chandler stated the following:

JOEY CHANDLER
late of the County aforesaid, did on or about the 17th day of August, 2003, in the County aforesaid, unlawfully, wil-fully, and feloniously, with the deliberate design to effect death, kill and murder a human being, Emmitt Chandler, without authority of law and not in necessary self defense, in violation of MCA § 97-3-19; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi;

(emphasis added). The trial court granted jury instructions for deliberate design murder, S — 3; depraved heart murder, S — 3; imperfect or unreasonable self-defense, S-4; and accident and misfortune, D-8. The trial court refused to give culpable negligence manslaughter instructions, D-ll and D-14, and reasonable self-defense instructions, D-12 and D-15.

¶ 16. Chandler contends that the trial court erred by denying an intermediate unintentional death instruction for culpable negligence manslaughter since it is a lesser included offence of depraved heart murder. To demonstrate .that culpable negligence is a lesser included offense of depraved heart murder, Chandler relies upon Windham v. State, 602 So.2d 798, 801 (Miss.1992), for the proposition that depraved heart murder and culpable negligence manslaughter are distinguished only “by the degree of the mental state of culpability.”

¶ 17. Chandler also cites to new legislation added in 2004. In 2004, the Legislature added subsection (2) to Miss.Code Ann. § 99-7-37 which provides:

An indictment for murder or capital murder shall be sufficient to also charge the lesser offense of manslaughter without a specific allegation of such lesser crime and without any necessity for an additional count charging such lesser crime.

Miss.Code Ann. § 97-7-37(2). The Legislature also added subsection (3) to Miss. Code Ann. § 97-3-19:

An indictment for murder or capital murder shall serve as notice to the defendant that the indictment may include and all lesser included offenses thereof, including, but not limited to manslaughter.

Miss.Code Ann. § 97-3-19(3).

¶ 18. The trial court allowed jury instruction S-4, a manslaughter instruction for unreasonable self-defense, which allowed the jury to find Chandler guilty of manslaughter if the State failed to prove all the elements of murder.

¶ 19. The trial court considered counsels’ arguments for proposed instruction D-14, a culpable negligence manslaughter instruction, as follows:

By the Court: What says the State to D-14?
[State]: I would object to D-14 on two bases, your Honor. The first one is that there is no evidence whatsoever again, and I keep coming back to it, before the jury that this was an intentional killing committed through a negligent act. This was one of two things. It was either a gun was pointed, aimed, and shot, or it was a gun that just went off during a struggle. There’s no basis in the evidence for a culpable negligence instruction. My second objection to it is it is not a complete definition of culpable negligence. If the Court is inclined to give a culpable negligence instruction, I have one that I would like to submit in its place.
By the Court: Let me hear Mr. Cliett on this. How is it culpable negligence manslaughter?
[Defense]: Well, your Honor, first of all, the reason that we prepared this instruction and submitted it is because the State’s elements instruction had an either/or there and-we prepared this. Now, your Honor, I think there was some testimony from two eyewitnesses that they saw my client pull out a gun and they turned and were walking away.
By the Court: Right.
[Defense]: Well, you Honor, if he was pulling a gun out or he was spinning it around, then the jury may find that that was negligent and it went off for whatever reason or however, and that’s why we submitted this instruction.
By the Court: All right. D-14 will be . refused.

¶20. The following exchange occurred for the proposed manslaughter jury instruction D-ll.

By the Court: What says the State to D-ll?
[State]: Your Honor, I would object to D-ll. There is simply no basis in the evidence for this instruction. There is no bases whatsoever that this was an intentional killing without malice. The evidence is that it was either a) ■ an intentional, willful firing of the gun by the defendant; or b) it was the gun just went off. There is no basis in the evidence whatsoever for this instruction, and I would object.
[Defense]: Your Honor, this is verbatim 97-3-35 elements of ■ manslaughter, homicide, killing without malice— maybe it’s not. Wait a minute. That’s the heat of passion, your Hon- or. I’m sorry.
By the Court: The problem is the Supreme Court has still said the use of a deadly weapon does support the jury’s finding of malice, and I know there’s this statute. My inclination is to look more, quite frankly, towards the imperfect self-defense instructions rather than this D-ll. I’m going to refuse D-ll.

¶ 21. This Court set forth the standard of review for the grant or denial of jury instructions in Ladnier v. State, 878 So.2d 926, 931 (Miss.2004):

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. 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 covered fairly elsewhere in the instructions, or is without foundation in the evidence. •

Ladnier, 878 So.2d at 931. See also Wilson v. State, 904 So.2d 987, 992 (Miss. 2004); Fairley v. State, 871 So.2d 1282, 1285 (Miss.2003). In Sanders v. State, 781 So.2d 114, 119 (Miss.2001), this Court affirmed a trial court’s refusal to grant a culpable negligence instruction based on a lack of evidence to support the instruction. This Court held:

Lesser included offense instructions should be given if there is an evidentiary basis in the record that would permit a jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater offense. Welch v. State, 566 So.2d 680, 684 (Miss.1990). In reviewing the propriety of such an instruction, we have stated:
A lesser-included offense instruction should be granted unless the trial judge and ultimately this Court can say, taking the evidence in the light most favorable to the accused and considering all the reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser-included offense (conversely, not guilty of at least one element of the principal charge).
McGowan v. State, 541 So.2d 1027, 1028 (Miss.1989). However, this Court has repeatedly held that a lesser-included offense instruction should not be indiscriminately granted, but rather should be submitted to the jury only where there is an evidentiary basis in the record. Lee v. State, 469 So.2d 1225, 1230 (Miss.1985).

Sanders, 781 So.2d at 119 (emphasis added); see also Fairley, 871 So.2dat 1285.

¶22. Miss.Code Ann. § 97-3-47 concerns culpable negligence and provides:

Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.

“Thus, culpable negligence is defined as ‘the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the wilful creation of an unreasonable risk thereof.’ ” Evans v. State, 562 So.2d 91, 94 (Miss. 1990) (citing Smith v. State, 197 Miss. 802, 20 So.2d 701, 701 (1945)). This Court more recently defined manslaughter by culpable negligence as “such gross negligence ... as to evince a wanton or reckless disregard for the safety of human life, or such an indifference to the consequences of an act under the surrounding circumstances as to render such conduct tantamount to willfulness.” Shumpert v. State, 935 So.2d 962, 967 (Miss.2006) (citing Evans v. State, 562 So.2d 91, 95 (Miss. 1990)). See also Fairley, 871 So.2d at 1285 (culpable negligence manslaughter instruction denied where evidence showed that defendant argued, pointed a gun at the victim and shot her, and then pushed her onto the road where she was hit by a passing vehicle); Sanders, 781 So.2d at 119 (culpable negligence manslaughter instruction denied where evidence showed that defendant intentionally hit victim in the head with a hammer); Clark v. State, 693 So.2d 927, 932 (Miss.1997) (culpable negligence manslaughter instruction denied where evidence showed that defendant intentionally went to his truck to get his shotgun, then entered the building, shot the door and loaded and fired three more shots through the door); Hums v. State, 616 So.2d 313, 315 (Miss.1993) (culpable negligence • manslaughter instruction denied where evidence showed that defendant hit victim with multiple blows to the head with blunt object over short period of time); Goff v. State, 778 So.2d 779 (Miss. Ct.App.2000) (culpable negligence manslaughter instruction denied where evidence showed that defendant intentionally hit and kicked victim two times).

¶ 23. After examining the record on appeal and jury instructions D-14 and D-ll, we conclude that these instructions were not supported by the evidence and were, therefore, improper. See Ladnier, 878 So.2d at 931 (“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 ... is without foundation in the evidence”).

¶ 24. We find that the facts and testimony presented do not support the grant of a culpable negligence manslaughter instruction. Chandler admitted that on the night of the Emmitt’s death, he told Huffman, an investigator for the Clay County Sheriffs Department, that “I pulled the gun out and aimed it and shot. Pulled the trigger.”

¶ 25. At trial, Chandler testified to a different version of events. Chandler refused to admit that he pulled the trigger of the gun and stated that during a struggle between Emmitt and himself, the gun “started to go off.” In addition, Chandler stated that he needed to protect himself the day Emmitt was killed because of “all the rumors that were surfing around.” He, therefore, “borrowed” a .357 Magnum gun from his uncle’s car. Chandler carried the gun in his pants. Despite being afraid of Emmitt, Chandler nonetheless agreed to follow Emmitt in his own separate car to the Pheba community. Chandler voluntarily followed Emmitt into the woods. Once in the woods, Chandler stated that Emmitt threatened to kill him. However, Chandler never saw Emmitt with any weapon. Chandler claimed that Emmitt pulled the gun from his pants and a struggle ensued between them. Chandler stated that Emmitt tried to turn the gun on him and the gun fired during the struggle.

¶ 26. Three of the four witnesses present in the woods at the time Emmitt was shot testified at trial. None of these witnesses confirmed Chandler’s testimony. Specifically, none of the witnesses stated that there were any arguments or that Chandler and Emmit struggled. In fact, all witnesses stated that Chandler and Emmitt were facing each other in the woods. Carouthers and Belt stated that Chandler and Emmitt were having a conversation. Belt stated that the conversation was normal with no arguing or loud talking. Carouther saw Chandler pull a gun out and point it toward Emmitt. Belt saw Chandler pull a gun out, and Chandler rubbed the side of Chandler’s head with it. Belt turned to follow Carouthers out of the woods. As they were turning to leave both Carouthers and Belt testified that they heard gunshots and fled the woods. Belt stated that he heard three gunshots.

¶ 27. Gustavis stated that while in the woods, he saw Chandler pull out a gun and rub the side of Chandler’s head. As he and Ewing were turning to leave the woods, Chandler told them to “come back.” When Gustavis turned around he saw Chandler cock the gun and shoot it. Gus-tavis then ran from the woods.

¶28. Chandler deliberately carried a gun in his pants on the day of Emmitt’s death. Chandler followed Emmitt to Phe-ba in his- own car despite being allegedly scared of “rumors.” Chandler deliberately brought the gun into the woods. The gun was fired three times. Since the gun was a revolver, the gun’s trigger actually had to be pulled three times. Two of the shots hit Emmitt causing his death. The facts do not support a culpable negligence manslaughter instruction.

¶ 29. In addition, the trial court was more than fair in the instructions given to the jury. Jury instruction S-4 was an imperfect self-defense manslaughter instruction given to the jury. This instruction adequately informed the jury of the lesser included offense of manslaughter. Jury instruction S-4 provided:

The Court instructs the Jury that if you unanimously find that the State has failed to prove all the elements of the crime of Murder, you may then proceed in your deliberations to consider the lesser charge of Manslaughter. However, it is your duty to accept the law given to you by the Court; and if the facts and the law warrant a conviction of the crime of Murder, then it is your duty to make such finding, and not be influenced by your power to find a lesser offense. This provision is not designed to relieve your from the performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge but does justify a verdict for the lesser crime.
The Court instructs the Jury that if a person kills another under the actual bona fide, belief that such a killing is necessary in order to protect himself from great bodily harm or death, but that such belief is not reasonable under the circumstances, then there is no malice aforethought and the killing is not murder, but at most is the crime of manslaughter.
Therefore, if you find from the evidence in this case that on August 17, 2003, the Defendant, Joey Chandler, did shoot and take the life of Emmett Chandler, acting on his actual and bona fide belief that such was necessary to protect himself from great bodily harm or death at the hands of Emmett Chandler, but that such belief by the Defendant was not a reasonable belief under the circumstance, then you may find the Defendant guilty of the lesser included offense of manslaughter.

Accordingly, we find that this issue is without merit.

II. Reasonable self-defense instruction

¶30. Chandler argues that the trial court erred by refusing jury instructions D-12 and D-15, concerning reasonable self-defense. Chandler argues that his reasonable self-defense instruction would have allowed for an acquittal. Chandler contends that the trial court effectively granted a directed verdict again him by denying the reasonable self-defense instruction. Chandler maintains that the jury could have concluded that any self-defense was reasonable because he was in fear and was attacked by Emmitt.

¶ 31. In Johnson v. State, 908 So.2d 758 (Miss.2005), this Court set forth the standard of review for jury instructions. This Court held:

In reviewing a challenge to jury instructions, the instructions actually given must be read as a whole. Williams v. State, 863 So.2d 63, 65 (Miss.App.2004). When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Id.

Johnson, 908 So.2d at 764; see also Ladnier, 878 So.2d at 931.

¶ 32. However, this Court has held that “fi]f a person provokes a difficulty, arming himself in advance, and intending, if necessary, to use his weapon and overcome his adversary, he becomes the aggressor, and deprives himself of the right of self-defense.” Parker v. State, 401 So.2d 1282, 1286 (Miss.1981).

¶ 33. We find that the evidence did not support a reasonable self-defense instruction. First and foremost, Chandler never testified that his actions were in self-defense. The facts show that Chandler deliberately armed himself on the day of the shooting. Chandler put a .357 Magnum gun in his pants on the day of Em-mitt’s death. Therefore, Chandler was the aggressor in this case.

¶ 34. Chandler first told a sheriffs’ investigator that he pulled out a gun, pulled the trigger and shot Emmitt. Later at trial, Chandler changed his version of events and testified that the gun “went off’ but refused to admit that he ever pulled the trigger. Three witnesses, Ca-routhers, Belt, and Gustavis, testified that Emmitt and Chandler were facing one another, and Chandler pulled out a gun. Two witnesses turned away and within seconds heard gunshots.

¶ 35. One witness stated that he saw Chandler point and shoot the gun at Em-mitt. None of the witnesses testified to any argument between Chandler and Em-mitt. None of the witnesses saw Emmitt with a gun. None of the witnesses stated that Chandler or Emmitt were arguing. All of the witnesses stated that Chandler and Emmitt were standing facing each other. None of the witnesses saw Emmitt acting in an aggressive way or making threats to Chandler. No witness saw Em-mitt and Chandler struggle over the gun. Carouthers and Belt described the gunshots as being fired very close together.

¶36. Chandler testified that he borrowed a gun from his uncle on August 17, 2003. The gun was placed in the front of his pants. Despite being allegedly frightened of Emmitt, Chandler walked into the woods with Emmitt. According to Chandler, Emmitt grabbed his gun. However, during the struggle, Chandler had the handle of the gun and Emmitt had the barrel. As Emmitt tried to turn the gun, the gun fired. Chandler stated the gun fired three times. He also stated that the bullets were fired “immediately after each other.” However, the revolver’s trigger had to have been pulled three times. Further, according to Dr. Hayne, Emmitt was shot twice in the chest from a distance.

¶ 37. Clearly, Chandler’s actions were not reasonable. Chandler armed himself before he met with his cousin, Emmitt. Chandler, who was allegedly in fear of Emmitt, agreed to follow Emmitt to Pheba and then voluntarily followed Emmitt into the woods, carrying a gun. Some of the witnesses testified that Chandler loaded the gun in front of them. Initially, Chandler told a Clay County investigator that he pulled the trigger and shot Emmitt. Chandler’s version of events changed at trial where he implied that the gun may have accidentally misfired, but Chandler never testified that he acted in self-defense.

¶ 38. What is more, the jury received an imperfect self-defense jury instruction, S-4, which is quoted in its entirety in Issue I and will not be reiterated here. In addition, the jury received an accident or misfortune instruction, D-8. Jury instruction D-8 provided:

The Court instructs the jury that if you find from the evidence that Joey Chandler killed Emmitt Chandler by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation then you shall find the Defendant Not Guilty.

We find, again, the trial court more than adequately instructed the jury. This issue is without merit.

III. Exclusion of evidence supporting a claim of self-defense

¶ 39. Chandler argues that the trial court erred by excluding certain statements as hearsay. Chandler testified that he was afraid on August 17, 2003, because of rumors that he had heard. However, the trial court refused to allow Chandler to state exactly what he had been told that made him fearful. This occurred on two occasions. On the first occasion, Chandler was not allowed to testify that on August 17, 2003, McCurry told Chandler that Em-mitt was out to get him. In addition, Chandler was not allowed to testify that on the same day Ewing told Chandler a specific rumor.

¶ 40. M.R.E. 801(c) provides:

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

¶ 41. In Shaw v. State, 915 So.2d 442, 445 (Miss.2005), this Court set forth the standard of review for admissibility of evidence as follows:

Our standard of review for the admission or exclusion of evidence is very familiar. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Jefferson v. State, 818 So.2d 1099, 1104 (Miss. 2002) (quoting Fisher v. State, 690 So.2d 268, 274 (Miss.1996)). See also Hill v. State, 774 So.2d 441, 444 (Miss.2000); Crawford v. State, 754 So.2d 1211, 1215 (Miss.2000); Gilley v. State, 748 So.2d 123, 126 (Miss.1999); Hughes v. State, 735 So.2d 238, 269 (Miss.1999).

¶ 42. Chandler testified that after church on August 17, 2003, he borrowed his uncle’s gun from his car. He felt that he needed to protect himself because of “all the rumors that were surfing around.” Later that day, when Emmitt told Chandler to follow him to Pheba so that Chandler could get something that belonged to him, Chandler testified that he was afraid to follow Emmitt because he heard a lot of rumors that day. On the drive to Pheba, Emmitt pulled off the road and took something out of a ditch. Chandler again stated that he did not feel safe because of all the rumors, therefore, Chandler refused Emmitt’s request to drive in front of Em-mitt.

¶ 43. When they arrived in Pheba, Em-mitt and Chandler went into the woods to allegedly retrieve some stolen car parts belonging to Chandler. Ewing, Gustará, Carouthers and Belt followed Emmitt and Chandler into the woods. According to Chandler, when everyone arrived in a clearing in the woods, they began to argue about the location of the drugs. Chandler stated that Emmitt said that everyone else present were “going to get” Chandler, whereas all the other witnesses present said that Emmitt wanted to get Chandler.

¶ 44. Chandler testified that he felt frightened when he and Emmit were surrounded by the other people. Emmitt was brushing up next to Chandler and told Chandler “you’re a punk and my shotgun — anybody come near you, I will kill them, and my shot gun do this and that.” Chandler never saw a shot gun, however, Emmitt grabbed Chandler’s gun from his pants. Chandler stated that he was scared, he did not know what Emmitt was thinking, and he did not want anyone to get hurt, so he grabbed for the gun too. Chandler thought that Emmitt’s words were frightening, and he thought that Em-mitt was trying to turn the gun on him and kill him. At this point, Chandler and Em-mitt began to struggle for the gun. Chandler had the handle of the gun, and Emmit tried to turn the end of the gun when the gun fired. Chandler stated that-at one point Emmitt tried to turn the gun toward Chandler. Chandler then fled the scene in his car. Chandler later told Investigator Huffman that he was scared because Em-mitt kept talking about his shotgun and that Emmitt was going to go home to get his shotgun.

¶ 45. Clearly, Chandler testified on numerous occasions that he had heard “rumors.” That because of the “rumors” he did not feel safe, and therefore, he borrowed his uncle’s gun to protect himself. He also testified that at numerous times during the day he was afraid of Emmitt and afraid of what Emmitt might do. Chandler also stated that he was afraid of the other men present in the woods. He also stated that Emmitt stated that the other men were out to get Chandler, whereas the other men stated that Emmitt was out to get Chandler. Therefore, Chandler was able to get this information before the jury.

¶ 46. Even though this Court finds that Chandler had the opportunity to place his facts before' the jury, the two statements by McCurry and Ewing will be analyzed.

A. McCurry Statement

¶ 47. Chandler testified on direct examination that when he went to Club Hollywood to look for his shirt, he saw McCurry on August 17, 2003. McCurry told Chandler that he wanted to talk to him. Chandler stated “Well, at that point [McCurry] walked over to me. He spoke with me. He told me that he heard I had — [.]” The prosecution objected on the basis of hearsay. The trial judge sustained the objection.

¶ 48. Chandler argues that the statement was not hearsay because the statement was not being offered for the truth of the matter asserted, that being “that Em-mitt was going to get [Chandler].” Instead, Chandler claims that McCurry’s statement was being offered “to show the jury that Chandler had reason to believe that Emmitt was out to hurt or kill him.” We find that Chandler’s reason to admit that Emmitt was going to get him, as stated in his brief, was in fact being offered for the truth of the matter asserted. Therefore, the statement was hearsay and properly excluded.

¶ 49. Accordingly, we find that the trial court did not err by excluding the testimony based on hearsay. Alternatively, assuming arguendo that any error occurred, the error is clearly harmless as Chandler placed before the jury that he was afraid for his life based on “rumors” he had heard. The jury also was made aware that Chandler believed Emmitt had stolen his marijuana.

B. Ewing statement

¶ 50. Chandler also argues that the trial court erred by prohibiting Chandler from testifying about a statement made by Ewing to him. The trial court denied the statement on the basis of hearsay. Chandler argues that the trial court sustained the prosecution’s objection on the basis of hearsay without any determination of whether the statement was offered for the truth of .the matter asserted. Further, Chandler asserts that the statement was not hearsay because the statement concerned why he had reason to be afraid and why he went to get a gun.

¶ 51. The record reflects the following exchange:

[Defense:] At your Uncle Troy’s house, what did you do?
A. Uh, we will have to go back. At the church, Brandon Ewing had told me that somebody was going to—
[Defense:] — Without saying what—
[State:] — -Objection to hearsay, your Honor.
By the Court: Sustained.
[Defense:] Without saying what anybody said, what did you do when you went to your Uncle Troy’s house?
A. I borrowed his gun out of his car.
[Defense:] Why?
A. Because I felt like I needed to protect myself with all rumors [sic] that were surfing around.

1152. We find that Chandler did not preserve this issue for appeal. Chandler made no argument before the trial court, and thus, he is proeedurally barred on appeal. This Court has held that “[i]f no contemporaneous objection is made, the error, if any, is waived.” Walker v. State, 671 So.2d 581, 597 (Miss.1995) (citing Foster v. State, 639 So.2d 1263, 1270 (Miss. 1994)).

¶ 53. Regardless of the trial court’s ruling on the inadmissibility of Ewing’s alleged statements, the jury heard Chandler testify that he heard “rumors.” Because of the rumors, he felt scared and borrowed his uncle’s gun to protect himself. Chandler testified that he was afraid of Emmitt. Again, while this testimony may not have been heard exactly to Chandler’s liking, the testimony was nonetheless presented to the jury. We find that Chandler did not preserve the issue of Ewing’s statements for appeal purposes and is proeedurally barred.

CONCLUSION

¶ 54. For the foregoing reasons, this Court affirms the judgment of the Clay County Circuit Court.

¶ 55. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . In the record Emmitt Chandler’s name is spelled as both Emmitt and Emmet. This opinion will spell his name as Emmitt, unless it is spelled differently in a quoted passage.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Clifton D. MAJORS a/k/a Cliff, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CA-00692-COA.
    Court of Appeals of Mississippi.
    March 28, 2006.
    Rehearing Denied Aug. 29, 2006.
    Certiorari Denied Jan. 4, 2007.

      Julie Ann Epps, Jackson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Clifton Majors appeals from a judgment of the Circuit Court of Marion County, summarily dismissing his motion for post-conviction relief. He argues that the court erred in dismissing his motion, because it applied an incorrect legal standard, i.e., the court based the dismissal “solely on the fact that [he] had signed a guilty plea petition and stated at the time of the plea that his attorney was ineffective.”

¶ 2. We find no merit in Majors’s argument; therefore, we affirm the decision of the trial court.

FACTS

¶ 3. On March 13, 2001, Clifton Majors executed a sworn “Petition to Enter Guilty Plea” wherein he stated that he wished to plead guilty to the crime of robbery. The petition also contained the following statement: “I plead guilty and request the court to accept my plea of guilty and I have entered my plea of guilty on the basis of my following involvement in the crime: I was with some others to rob a store and I participated.”

¶ 4. On the same day that Majors executed his guilty plea petition, the trial court held a plea qualification hearing. At the beginning of the hearing, the following exchanged occurred between the court, Majors, and Timothy:

Q. All right. And, Clifton, in the petition you signed, did you read it? A. (CLIFTON MAJORS) Yes, sir.
Q. You understand it?
A. (CLIFTON MAJORS) Yes, sir.
Q. And you swore before Mr. Leslie Wilson, the Circuit Clerk here in Lamar County, that you did understand what was in the petition and whatever information you put in it was true and correct; is that right?
A. (CLIFTON MAJORS) Yes, sir.

¶ 5. Later in the hearing, Majors denied that he was at the scene of the robbery. The court then asked why he wanted to plead guilty if he was not at the scene of the robbery. Majors answered, “I am stuck between a rock and a hard place.” He later explained that his role was helping “Scotty [his brother] when he came to me and wanted it.”

¶ 6. Before accepting Majors’ plea, the court asked the State for a factual predicate, and the State responded:

MS. SONES (THE PROSECUTOR): The original statement that was given by Timothy Scott Majors was that he and his brother had gone to — had robbed Crossroads Grocery. And after giving the initial statement then Timothy Majors decided to change his mind and he came up with two other names, Tory Longino and a black male named Smurf. It would be the testimony of Paul Deen having already been questioned about this under oath that the three of them, Clifton Majors, Paul Deen and Timothy Scott Majors, all went to the Crossroads Grocery. They had talked about it ahead of time. The two who went into the store would have been Timothy Majors, Clifton was the driver of the vehicle who operated as the look out for the robbery. The two of them went in with the masks on and then Timothy Scott Majors was shot by Mr. Herrington in the back. Once they left the Crossroads Grocery, they drove, Cliff Majors was still the driver. And then Mr. Herrington came out after them. They left and went to some other individuals homes, who attempted to get the bullet out. One of those — Judge, give me just a minute. There are a bunch of different crimes all in the same file and I’m trying to just sort out this part.
MS. SONES: I did want to add one thing. There’s a statement in our file from Misty Nobles, who stated that they had all been together earlier.
THE COURT: Wait a minute. Who is Mr. Nobles?
MS. SONES: Misty Nobles. She said she, Cory Longino, Clifton Majors, Scotty Majors and Paul Deen and her two children checked into the Budget Inn in Hattiesburg about eleven o’clock a.m. The next day Scotty, Clifton and Paul left in a new Escort which matches the description of the vehicle involved in the robbery, about 8:00 p.m. They came back, Scotty had been shot. [She] asked them what happened.
THE COURT: Wait. Is her statement that Timothy and Clifton left?
MS. SONES: Yes. All three of them left and when they came back that Timothy had been shot. [She] asked them what happened, they told her not to worry. And then she cleaned up the wound. So during the period of time that they left and the time they came back, he had been shot, the three of them left together and came back together.

¶ 7. Prior to the State’s informing the court about Nobles’s testimony, Majors said to the court, “Your Honor, I had part in, they said they were going to the store.” Following this admission by Majors (and before the prosecutor informed the court about Nobles’s testimony), the following exchange occurred:

BY THE COURT:
Q. But you deny you were driving the car as Paul Deen said?
A. (CLIFTON MAJORS) I have to tell you truth. I tell, you know.
Q. All right [sic]. Well, let me ask you this: I’m sure Mr. Agnew, you know, Paul Deen, probably seen his statement. You knew him, do you not [sic]?
A. (CLIFTON MAJORS) Yes, sir.
Q. Now, what’s best of your knowledge before would be what, they came to you and told they were going to go rob the store, Clifton?
A. (CLIFTON MAJORS) Yes, sir.
Q. And did they get anything from you like masks, guns or anything?
A. (CLIFTON MAJORS) No, sir.
Q. All right. And once they told you that, your testimony to the jury would be that you didn’t go with them?
A. (CLIFTON MAJORS) Yes, sir.
Q. But then immediately when they came back and your brother was shot, you did help him at that point?
A. (CLIFTON MAJORS) Yes, sir.
Q'. Now, then Paul Deen gets on the stand and says that’s not exactly true, he went with us, drove the car, so forth and so on, you understand what the jury believes?
A. (CLIFTON MAJORS) Yes, sir.
Q. And if the jury chose to believe him they would have the proof sufficient to convict you. Do you agree with that?
A. (CLIFTON MAJORS) Yes, sir.
Q. And, Timothy, you know, whether you testified or not, again, would be your right. Do you understand your right not to and your right to?
A. (TIMOTHY MAJORS) Yes, sir.
Q. But would your testimony be more in line with Paul Deen’s or—
A. (TIMOTHY MAJORS) No, sir.
Q. So the jury would have two of y’all to decide whether they believed y’all. I guess this Smurf person hasn’t been found. Nobody knows who he is. So I guess when we went to trial as far as the people who were suppose [sic] to be there would be the two of y’all and Paul Deen?
A. (TIMOTHY MAJORS) Yes, sir.
Q. I don’t know who the jury would believe.
A. (CLIFTON MAJORS) I don’t know either, sir. I think it would be in my best interest just to enter a plea.

¶ 8. Following the above exchange, the court inquired of Majors: “Is that your desire, Clifton, what you’ve done to enter a plea of guilty in your own best interest and you — if the jury was to believe Paul Deen and whatever facts the State could prove in this matter they would have enough evidence to prove this case beyond a reasonable doubt, Clifton?” Majors answered, “I do.”

STANDARD OF REVIEW

¶ 9. Our standard of review of a trial court’s denial of post-conviction relief is clear. ‘When reviewing a lower court’s decision to deny a petition for post-conviction relief, we will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999) (citing Bank of Miss. v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. Majors argues that the circuit court erred in summarily dismissing his motion for post-conviction relief pursuant to Mississippi Code Annotated section 99-39 — 11(2). Majors contends that his guilty plea was not knowingly and voluntarily entered because of his trial counsel’s ineffective representation. More specifically, Majors contends that he was never allowed to review any of the discovery in the cáse, and was falsely told that his brother had signed a confession which would have aided in his conviction. According to Majors, his counsel was deficient in failing to discover that his brother’s signature on the confession was forged. Majors further alleges that his counsel was deficient in failing to discover a witness who had information that was of an exculpatory nature. Therefore, Majors concludes that he should have been afforded an evidentiary hearing to further demonstrate how he was prejudiced by his counsel’s ineffective representation.

¶ 11. We first address Majors’s claim that if he had known that the confession obtained by the police was “bogus,” and that there was an eyewitness who could have supported his assertion that he was not a participant in the crime, he would not have pleaded guilty and would have insisted on going to trial. Although not stated as such in his brief, we assume that Majors is alleging that these discoveries would qualify as newly discovered evidence.

¶ 12. Newly discovered evidence is relevant only in situations where a defendant goes to trial and is convicted. “To succeed on a motion for a new trial based on newly discovered evidence, the petitioner must prove that new evidence has been discovered since the close of trial and that it could not have been discovered through due diligence before the trial began.” Crawford v. State, 867 So.2d 196, 203-04(¶ 9) (Miss.2003) (citing Meeks v. State, 781 So.2d 109, 112(¶ 8) (Miss.2001)). Additionally, “the petitioner must show that the newly discovered evidence will produce a different result or induce a different verdict, if a new trial is granted.” Id. Here, Majors did not stand trial because he admitted that he had committed the offense by pleading guilty. Therefore, Majors cannot now claim that he has newly discovered evidence which would have “produced a different result” because his guilty plea essentially nullifies any argument that there is some undiscovered evidence which could prove his innocence.

¶ 13. Accordingly, we limit any further discussion to Majors’s contention that his guilty plea was unknowing, involuntary, and brought about by ineffective assistance of counsel. In resolving this issue, we separately address the voluntariness of Majors’s guilty plea and his claim of ineffective assistance of counsel.

¶ 14. In order to establish a claim of ineffective assistance of counsel, Majors must meet the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476 (Miss.1984). According to the test, Majors must show (1) that his counsel’s performance was deficient and (2) that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Majors has the burden of proving both prongs of the Strickland test. Id.

¶ 15. Our review of the record reveals that Majors has failed to establish either element of the Strickland test. However, even if his attorney’s performance could be considered deficient for failure to do what Majors alleges, we find that Majors still has not demonstrated the requisite showing of prejudice to support his ineffective assistance of counsel claim. The second prong of the Strickland test requires Majors to show that but for the errors of his counsel the result of the case would have been different. The record is simply void of any evidence to support such a contention. In fact, the record reflects that Majors was ably assisted by his counsel. While Majors ultimately received a sentence of twenty years, with ten years suspended and five years of probation, for the charge to which he pleaded, he could have received a life sentence, without the possibility of parole or a reduction in sentence, if he had gone to trial and was found guilty. In addition, his counsel was able to get other pending felony charges passed to the files in exchange for his guilty plea. Clearly, it was because of his counsel’s successful negotiations that Majors was able to escape a possible life sentence. “Assertions of error without prejudice do not trigger reversal.” Nicholson ex rel. Gollott v. State, 672 So.2d 744, 751 (Miss.1996) (citing Hatcher v. Fleeman, 617 So.2d 634, 639 (Miss.1993) (overruled on other grounds)).

¶ 16. Moreover, the primary thrust of Majors’s arguments on this point of error is that his counsel was ineffective because he failed to discover a potential defense. Specifically he argues that “[a]n un-con-flicted, reasonably competent attorney would have investigated and discovered that Scott’s confession, the principal evidence against Majors, was forged.” Majors further argues that he would not have entered a guilty plea if he had realized that he had a viable defense to his brother’s so-called confession. However, no matter whether the confession was forged or not, we fail to see how the alleged failures of his counsel caused him to plead guilty. It is uncontroverted that Majors knew, before he finally pleaded guilty, that his brother had recanted his alleged confession that Majors was involved in the crime. The passages quoted above from the plea qualification hearing are irrefutable evidence that when Majors entered his plea, he knew his brother would testify that Majors was not involved in the robbery and was not driving the getaway car.

¶ 17. In addition, Majors’s ineffective assistance of counsel claim is belied by the record. During the-, plea qualification hearing, Majors was asked by the court if he was completely satisfied with the services his attorney had rendered to him, to which he answered, ‘Yes, sir.” The court also asked Majors if his attorney had done anything that Majors felt his attorney should not have done; he responded by saying, “No, sir.” The court went on to ask Majors if his attorney had failed to do anything that he believed his attorney should have done. His response to the court indicated that Majors believed that his attorney had not failed him in any way. Therefore, this issue is without merit.

¶ 18. Although we have found that Majors’s counsel was not ineffective, we briefly address the voluntariness of Majors’s guilty plea. When reviewing the voluntariness of a guilty plea, we will not reverse unless the findings of the trial court are clearly erroneous. House v. State, 754 So.2d 1147, 1152(¶ 24) (Miss. 1999) (citing Schmitt v. State, 560 So.2d 148, 151 (Miss.1990)). The burden is on Majors to prove that his guilty plea was involuntary. Miss.Code Ann. § 99-39-23(7) (Rev.2000). Therefore, if Majors is able to prove that his plea was involuntary, then we must find that his guilty plea is not binding on him.

¶ 19. A plea is voluntary when “the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992) (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)). Mississippi law also provides that in order for a plea to be voluntary, the accused must understand the nature and consequences of the plea, and the maximum and minimum penalties provided by law. URCCC 8.04(A)(4)(b). The trial court is also required to determine whether “the accused is competent to understand the nature of the charge.” Id. at 8.04(A)(4)(a). Additionally, the defendant must be apprised of several constitutional rights, which the defendant must knowingly waive: “the defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protect against self-incrimination.” Alexander, 605 So.2d at 1172 (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)).

¶ 20. After reviewing the transcript of the plea hearing, we find that the trial judge was correct in finding that Majors’s guilty plea was voluntarily and knowingly made. The trial court clearly informed Majors that he had the right to a trial by jury, had the right to cross-examine witnesses against him, and had the right against self-incrimination. The court made sure that Majors knew that he was waiving those and other constitutional rights by deciding to enter a guilty plea. The court also informed Majors of the minimum and maximum sentences for the charge he was pleading to. Majors stated that he understood those sentences. The court also conducted an examination into Majors’s competence, inquiring about his level of education, ability to read and write, lack of intoxication, and understanding of the charges against him. Majors specifically told the court that it would be in his best interest to enter a guilty plea, and that he was entering his plea voluntarily, free from any threats, coercion, or intimidation.

¶ 21. For the reasons discussed, we find that the trial judge did not err in summarily dismissing Majors’s motion for post-conviction relief.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY DENYING MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Two other individuals, Timothy Scott Majors (Clifton Majors's brother) and Paul Deen, were also charged with robbing Crossroads Grocery in Marion County. Timothy pleaded guilty at the same time as his brother, and Deen pleaded guilty later.

      . Herrington was the owner of Crossroads Grocery.

      . Mississippi Code Annotated section 99-39-11(2) (Rev.2000) states: "If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.”

      . In support of his motion for post-conviction relief, Majors attached a report from a forensic document examiner who stated that the signature on the confession could not be asso-dated with that of his brother. According to Majors, this was sufficient proof that the confession was "bogus.” Additionally, Majors points to a letter from an eyewitness to the crime as proof that he was not involved in the crime. The eyewitness wrote that he noticed that the driver of the getaway car was black. This piece of information was important because Majors, a white male, was said to be the driver of the get away car during the robbery.


author: CHANDLER, J.,

text:
    Kirby TATE a/k/a Kirby Glenn Tate, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00789-COA.
    Court of Appeals of Mississippi.
    April 4, 2006.
    Rehearing Denied Sept. 26, 2006.
    Certiorari Denied Jan. 11, 2007.

      J. Niles McNeel, Louisville, attorney for appellant.
    Office of The Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Kirby Tate was convicted of Count I, possession of more than one ounce but less than one kilogram of marijuana with intent to sell, barter, transfer, distribute or dispense and of Count II, possession of three dosage units of Oxycodone, a schedule II controlled substance. Both counts were with enhanced sentencing because of Tate’s habitual offender status and the fact of his prior convictions under the Mississippi Uniform Controlled Substances Act. On Count I, Tate received a sixty year sentence and a $5,000 fíne. On Count II, he received a sixteen year sentence and a $5,000 fine. The sentences were to run concurrently with each other and with Tate’s prior sixty-year sentence for his conviction of possession and delivery of marijuana in the Lauderdale County Circuit Court. See Tate v. State, 912 So.2d 919 (Miss.2005). Both sentences were without the possibility of parole or early release.

¶ 2. On appeal, Tate raises the following issues:

I. THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION TO SUPPRESS EVIDENCE.
II. THE COURT ERRED IN ALLOWING INTO EVIDENCE PRIOR FELONY CONVICTIONS OF THE DEFENDANT.
III. THE PROSECUTOR COMMITTED ERROR IN MAKING THE “SEND THE MESSAGE” ARGUMENT.
IV. THE SENTENCE OF SIXTY YEARS WITHOUT PAROLE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT VIO-LATIVE OF THE UNITED STATES CONSTITUTION AND THE CONSTITUTION OF THE STATE OF MISSISSIPPI.

¶ 3. We find no error and affirm the judgment of the circuit court.

FACTS

¶ 4. At approximately 2.T4 p.m. on June 20, 2003, Officer James Ramsey, a City of Meridian police officer, used his radar gun to clock Tate driving forty-five miles per hour in a thirty mile per hour zone on 65th Avenue in Meridian. Tate was driving a small pickup truck with a built-in refrigeration unit on the back. Officer Ramsey began following Tate and signaled for him to pull over. Tate parked in a restaurant parking lot at the intersection of 65th Avenue and 8th Street. Officer Ramsey stopped his patrol car behind Tate’s truck. Officer Ramsey noticed that the truck had a broken brake light and that Tate had not been wearing his seat belt. Officer Ramsey called dispatch, communicated that he was conducting a traffic stop, and gave them the truck’s tag number.

¶ 5. Tate exited the truck and approached the driver’s side of the patrol car. He was wearing shorts and an un-tucked T-shirt. Officer Ramsey exited the patrol car and informed Tate that he had been driving forty-five miles per hour in a thirty mile per hour zone and that he had a brake light out. He requested Tate’s driver’s license and proof of insurance. Tate returned to his truck and produced a proof of insurance card, which Officer Ramsey examined. Officer Ramsey discovered that the proof of insurance was expired. Tate explained that the truck was insured, but that the proof of insurance was in another vehicle. At approximately 2:19 p.m., Tate offered to look further in the truck for proof of insurance. Tate got back inside his truck and sat in the driver’s seat. . Officer Ramsey returned to the patrol car to await Tate’s proof of insurance and to write the traffic citations.

¶ 6. The dispatcher requested that Officer Ramsey call in, and Officer Ramsey did so at approximately 2:21 p.m. The dispatcher told Officer Ramsey that Tate was a semi-pro boxer and to be careful because Tate was “bad about sucker punching.” Officer Ramsey requested that Officer Ron Payton come to the scene for backup. At some point, the dispatcher stated that the East Mississippi Drug Task Force was on their way to the scene. At approximately 2:24 p.m., Officer Ramsey returned to Tate’s truck and asked Tate for his vehicle registration. Then, Officer Payton arrived, followed by Officer Artis Johnson. Officer Ramsey stated, “Something ain’t quite right here. He may be 1055-other. Task Force just called and he has hidden compartments and is a known transporter. They are on their way right now.”

¶ 7. At the suppression hearing, Officer Ramsey testified that “1055-other” means that a suspect is intoxicated with a substance other than alcohol. Officer Ramsey testified at the suppression hearing that he had not smelled alcohol on Tate, but Tate seemed very jumpy and nervous, spoke rapidly, and was sweating profusely. This led Ramsey to suspect that Tate was under the influence of some type of drug. Officer Ramsey testified at the suppression hearing that, from his experience, Tate exhibited an abnormally high level of nervousness for someone stopped for a traffic violation.

¶ 8. Agent Greg Lea with the East Mississippi Drug Task Force testified at the suppression hearing that he and Agent Anthony Ball heard over the radio dispatch that Tate had been stopped for traffic violations. Agent Lea stated that the Task Force decided to respond to the stop to investigate because Lea had intelligence from confidential informants that Tate was presently using the truck to deliver marijuana. Agent Lea had a pending case against Tate for possession and delivery of a large amount of marijuana that had been hidden in the truck. And, Agent Lea knew that Tate recently had been caught with marijuana hidden on his person. Agent Ball radioed dispatch to advise the officer to look for signs of narcotics.

¶ 9. Task Force Agents Lea and Ball arrived at 2:27 p.m. At that time, Officer Ramsey was filling out Tate’s tickets for the traffic violations while Tate sat inside his truck. Officer Ramsey informed the agents that he thought Tate was 1055-other, that something was not right, and that he had called Officer Payton since Tate appeared to be jumpy and nervous. The agents told Ramsey that Tate was known to traffic in drugs hidden inside compartments in the truck. At approximately 2:31 p.m., the police officers and Task Force agents approached the driver’s side of the truck where Tate was sitting. Tate was positioned with his legs open, and Agent Lea observed an unusually large bulge in Tate’s crotch area. Agent Lea noticed that Tate appeared nervous and that his hands were shaky.

¶ 10. Tate exited the truck. The officers asked if they could search the truck, but Tate did not consent to a search. The officers noticed Tate had a pocket knife on his belt and requested that he hand it over. Tate complied. Agent Lea asked Tate to turn around so that Officer Ramsey could search him for other weapons. Officer Ramsey told Tate that he was “not under arrest right now, I just want to make sure you don’t have any weapons on you.” Tate turned around with his back to Officer Ramsey.

¶ 11. Officer Ramsey was about to conduct a pat down search when Tate turned back around and “squared off at him” in a defensive manner as if he was not going to submit to the search. Then, Tate turned around again. Officer Ramsey placed Tate in a thumb-lock and began patting down Tate for weapons. Agent Lea watched the pat down. During the pat-down, Officer Ramsey raised Tate’s T-shirt above his waistband and felt around his waist. Officer Ramsey was in the midst of this when Agent Lea, standing in front of Tate, again observed the unusually large bulge in the area of Tate’s crotch. Agent Lea stated, “what’s that right there.” Agent Lea testified that, due to Tate’s nervous behavior and Tate’s defensive stance before the search, he Was afraid that the bulge was a weapon. Lea asked Ramsey to handcuff Tate, stating that they had experienced problems with Tate in the past. Lea testified that he had wanted Tate handcuffed out of concern for the officers’ safety.

¶ 12. With Tate handcuffed, Lea touched the bulge. Lea stated that, from palpating the bulge, he could feel stems and seeds and concluded from his experience that the bulge was a bag of marijuana. Tate stated that the bulge was his genitals. Lea stated, “I’m going to reach in here and get this bag of weed that you got. I just don’t believe your [genitals are] that big, you understand?” Then, Lea reached into Tate’s shorts and extracted a bag containing a substance that was determined to be 133.7 grams of marijuana.

¶ 13. The officers arrested Tate, searched him, and towed his truck to the Lauderdale County Detention Facility. At the facility, Tate was taken to be booked on the drug charge and given citations for speeding, no seat belt, and no liability insurance. The agents had a drug-sniffing dog walk around the outside of Tate’s truck. The dog strongly alerted to the truck’s cab, and the agents opened the cab. The agents found more marijuana under the seat of the truck and three Oxycodone tablets in the glove compartment.

I. THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION TO SUPPRESS EVIDENCE.

¶ 14. Alleging an illegal search, Tate moved to suppress the evidence of the marijuana taken from his person and to suppress the drugs taken from his truck as the “fruit of the poisonous tree.” Tate argued that his detention by Officer Ramsey exceeded the scope allowed under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Essentially, Tate contended that, at the time of the search, Officer Ramsey had improperly detained him beyond the scope of the original traffic stop in order to allow the Task Force agents to arrive. At the suppression hearing, the court heard testimony from Officer Ramsey and Agent Lea, and viewed a videotape from Officer Ramsey’s patrol car showing the events before, during, and after Tate’s arrest.

¶ 15. After the hearing, the trial court overruled the motion, finding that the detention of Tate was lawful. The court found that Tate had been detained by Officer Ramsey for sixteen minutes prior to the discovery of the marijuana during the pat down search. The court concluded that Tate’s detention did not go beyond that reasonably necessary to determine whether Tate’s driver’s license was valid, whether there were any warrants for his arrest, and whether Tate was driving under the influence of narcotics. The court further found that Tate’s behavior, his reaction to the stop, his possession of a pocket knife, and the suspicion that Tate was under the influence all reasonably warranted the search of Tate’s person for weapons. The court found that, because the initial search of Tate’s person was proper, the additional drugs from the truck could not be excluded as the fruit of the poisonous tree. Citing U.S. v. Dortch, 199 F.3d 193 (5th Cir.1999), the court further observed that the alert by a. certified and trained narcotics dog established probable cause for the search of Tate’s truck.

¶ 16. On appeal, Tate argues that the search of his person exceeded the scope of the weapons pat down allowed by Terry. He further argues that the evidence before the trial court showed that the incriminating nature of the object in Ms shorts had not been readily apparent to Agent Lea through “plain feel.” In reviewing the denial of a motion to suppress evidence, this Court will not disturb the lower court’s findings unless the “ ‘trial judge applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence.’ ” Taylor v. State, 733 So.2d 251, 255(¶ 18) (Miss.1999) (quoting Crawford v. State, 716 So.2d 1028, 1037(¶ 31) (Miss.1998)) (overruled on other grounds).

¶ 17. The Fourth Amendment protects individuals from unreasonable searches and seizures. U.S. v. Grant, 349 F.3d 192, 196 (5th Cir.2003). Traffic stops are considered to be seizures within the meaning of the Fourth Amendment. Id. Because a traffic stop more closely resembles an investigative detention than a formal arrest, this Court analyzes a traffic stop for Fourth Amendment purposes under the standard articulated in Terry. Couldery v. State, 890 So.2d 959, 962(¶ 8) (Miss.Ct.App.2004). Under Terry, a detention is lawful if the officer “can ‘point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the search and seizure].’ ” U.S. v. Santiago, 310 F.3d 336, 340 (5th Cir.2002). Terry requires “a two-tiered reasonable suspicion inquiry: 1) whether the officer’s action was justified at its inception, and 2) whether the search or seizure was reasonably related in scope to the circumstances that justified the stop in the first place.” Grant, 349 F.3d at 196. In determining the existence of “ ‘reasonable suspicion, grounded in specific and articulable facts,’ the court must consider whether, taking into account the totality of the circumstances, the detaining officers had a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” Adams v. City of Booneville, 910 So.2d 720, 722(¶ 8) (Miss.Ct.App.2005) (quoting U.S. v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). During a lawful detention, an officer may legally frisk the suspect for weapons for the officer’s protection, if the officer “has reason to believe that he is dealing with an armed and dangerous individual.” Terry, 392 U.S. at 27, 88 S.Ct. 1868. The test for whether an officer acted legally in frisking a suspect is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id.

¶ 18. An officer proceeding upon reasonable suspicion may detain a suspect until such time at which reasonable suspicion has been verified or dispelled, at which point the detention must end. Grant, 349 F.3d at 196. If, during a proper investigative stop, the officer develops reasonable, articulable suspicion of some criminal activity in addition to than that initially suspected, the permissible scope of the stop expands to include the officer’s investigation of the newly suspected criminal activity. U.S. v. Kye Soo Lee, 898 F.2d 1034, 1040 (5th Cir.1990). Thus, in Kye Soo Lee, an officer who legally stopped individuals for traffic violations was justified in further detaining the individuals when, within the legal scope of the traffic stop, the officer observed circumstances that created a reasonable suspicion of additional criminal activity. Id.

¶ 19. Tate does not contest the trial court’s finding that the length of Tate’s detention before the pat down search was within the scope allowed under Terry. Nonetheless, we briefly address that issue. Tate concedes that his initial stop for traffic violations was justified because he was speeding. Before the trial court, he argued that the justification for the stop ended prior to the pat down search of his person and that the prolonged stop violated the Fourth Amendment.

¶ 20. We find that the trial court correctly concluded that the detention was legal. Officer Ramsey testified that, though he initially stopped Tate for speeding, his observance of Tate led him to suspect that Tate had been driving under the influence of a drug. Officer Ramsey was able to articulate specific facts about Tate’s behavior that led him to suspect Tate had been driving under the influence of a drug, He had a reasonable suspicion Tate was intoxicated. Officer Ramsey was unwilling to further investigate Tate’s suspicious behavior without backup due to the dispatcher’s warning that Tate might sucker punch him. During the time before the arrival of the Task Force, Officer Ramsey filled out Tate’s three traffic tickets while waiting upon Tate to produce valid proof of insurance and upon other officers to arrive to enable him to safely further investigate Tate’s suspicious behavior. Officer Ramsey did not complete the tickets until after the pat down search, and he testified that fifteen minutes was not an inordinate amount of time for filling out three tickets. Thus, prior to the pat down search, Officer Ramsey had not completed his activities incident to the traffic stop nor allayed his reasonable suspicion that Tate had been driving under the influence of a drug.

¶21. Thus, when the Task Force arrived, Tate was being legally detained by Officer Ramsey. The evidence before the trial court was undisputed that Officer Ramsey did not call the Task Force to assist his investigation of the suspicious circumstances that he witnessed. Rather, the Task Force responded to the scene based on the suspicion of Agents Lea and Ball that Tate was using the refrigerated truck to deliver marijuana. Agent Lea articulated specific facts that undergirded this suspicion, namely, that they had -intelligence from confidential informants that Tate was presently using the truck for marijuana deliveries and that Tate recently had been apprehended by the Task Force with marijuana hidden in the truck. We need not reach the question of whether this suspicion was reasonable under Terry such that the task force could have detained Tate independently of Officer Ramsey. This is because, prior to the pat down, Officer Ramsey had reasonable suspicion that Tate was under the influence of drugs and had not finished writing the traffic tickets at the time that the pat down search was conducted. Therefore, Tate was being legally detained at the time of the pat down search.

¶ 22. We proceed to Tate’s argument that the search of his person exceeded the permissible scope of a weapons pat down. The purpose of the limited search for weapons allowed under Terry, “is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). This protective search must be strictly “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Id. (quoting Terry, 392 U.S. at 26, 88 S.Ct. 1868.) If a protective search exceeds what is necessary to ascertain whether the suspect is armed, the search is invalid and its fruits must be suppressed. Id.

¶23. Tate contends that, at the time the marijuana was discovered, Officer Ramsey and Agent Lea had exceeded the scope of a protective search for weapons and were undertaking an exploratory search of his body for contraband. We find that the trial court correctly held that the search of Tate did not exceed the limits of a protective search. Officer Ramsey testified that he had not completed his weapons pat down but was in the midst of it at the time that Agent Lea noticed the bulge in Tate’s shorts. This testimony was supported by the videotape of Tate’s detention. Agent Lea testified that the bulge was unusually large and that, given Tate’s erratic behavior, defensive posturing, and possession of a pocket knife, he believed that the bulge could be a weapon. Therefore, at the time Agent Lea proceeded to pat the bulge, the officers had not extended their search of Tate beyond what was necessary to determine whether he was armed and dangerous.

¶ 24. Tate further argues that the evidence before the trial court showed that the incriminating nature of the object in his shorts had not been readily apparent to Agent Lea through “plain feel.” This Court discussed the “plain feel” exception to the warrant requirement in Edwards v. State, 795 So.2d 554, 561-62 (¶¶ 29-30) (Miss.Ct.App.2001). The Court quoted from the supreme court’s holding in Dickerson that, when an officer, during a lawful pat down search, “feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.” Id. (quoting Dickerson, 508 U.S. at 375-76, 113 S.Ct. 2130). Accordingly, “if the object is contraband, its war-rantless seizure would be justified.” Id. While an officer may extract a weapon during a pat down search based on reasonable suspicion, the “plain feel” exception to the warrant requirement for the discovery of contraband during a pat down search requires that the officer have probable cause to believe that the object is contraband. Id. at 562(¶ 30). “Probable cause exists where the facts and circumstances within the arresting officer’s knowledge and of which [he] had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Walker v. State, 881 So.2d 820, 827(¶ 15) (Miss.2004).

¶ 25. From the testimony before the trial court, we find that the court properly found that Agent Lea obtained a plain enough feel to establish probable cause to believe that the bulge in Tate’s shorts was marijuana. Agent Lea stated that, when he touched the bulge, he could feel stems and seeds through the fabric of Tate’s shorts that he thought was marijuana. Agent Lea stated that the stems and seeds felt like marijuana to him based upon his six years of experience as a narcotics agent. The testimony established that it was immediately apparent to Agent Lea that the bulge was, in fact, marijuana. Therefore, Agent Lea had the requisite probable cause to enable him to reach into Tate’s shorts and remove the bag. We affirm the trial court’s denial of Tate’s motion to suppress the marijuana found in his shorts and the evidence collected thereafter.

II. THE COURT ERRED IN ALLOWING INTO EVIDENCE PRIOR FELONY CONVICTIONS OF THE DEFENDANT.

¶ 26. Tate had at least four prior convictions. Two of these convictions were for felony sale of marijuana, less than one ounce, and were from January 28, 1991, in Lauderdale County Circuit Court. Two other convictions were for delivery of marijuana and possession of marijuana with intent to distribute and were from November 7, 2003, also in Lauderdale County Circuit Court. Tate objected to the introduction of these convictions.

¶ 27. The trial court, after conducting a balancing analysis pursuant to Mississippi Rule of Evidence 403, allowed some of the convictions into evidence under M.R.E. 404(b) for the purpose of showing intent. The court also announced that it would give a limiting instruction on the purpose of the admission of the prior convictions. Tate contends that it was error for the trial court to allow the admission of some of his prior convictions.

¶ 28. This Court reviews the trial court’s decision admitting or excluding evidence for abuse of discretion. McGowen v. State, 859 So.2d 320, 328(¶ 26) (Miss. 2003). Collins v. State, 734 So.2d 247, 250 (Miss.Ct.App.1999), recognized that “M.R.E. 404 provides that evidence of a prior conviction or other bad act may be probative of knowledge or intent, even though a prior conviction is not admissible to show a person committed the offense again.” Exhibit # 11, which was admitted into evidence, only included the sentencing orders from 2003. There is no indication that the 1991 convictions were admitted into evidence. There is no indication that the jury was made aware of the earlier convictions other than a brief reference in closing argument that “from 1990, Kirby Tate has demonstrated that he sells marijuana.”

¶29. Tate argues that under M.R.E. 609(b), the convictions in January 1991 were too remote and should have been excluded. Rule 609(b) excludes evidence of a conviction “if a period of more than ten years has elapsed since the date of the conviction.... ” However, Tate’s convictions were not admitted pursuant to M.R.E. 609. Tate admits that there is no time limit barring evidence from being admitted pursuant to M.R.E. 404(b). Thus, even if the 1991 convictions had been admitted, the admission was not an abuse of discretion. This issue is without merit.

III. THE PROSECUTOR COMMITTED ERROR IN MAKING THE “SEND THE, MESSAGE” ARGUMENT.

¶ 30. Tate argues that the trial court erred in allowing the following language in the prosecution’s closing argument:

Now, what mt^sage do you send, ladies and gentlemen, to law enforcement officers if you say, Now, when you’re— when you’re out there being paid to enforce the narcotics law and you get a call or you hear a call where a known drug violator, a known dealer who is currently out on bond for dealing drugs is coming through and has been stopped, and you’s got intelligence — you know that — informants have told you that he’s still transporting drugs while he is out on bond on the other charge, and know he’s got prior convictions for dealing— there you are. You hear that information, and what do you do? You sit and continue surveillance like these two lawyers want them to? They want them to sit wherever it was they were on the off chance that maybe somebody will walk by smoking a joint? No, if you were their supervisor, you’d say, Hit the door. You don’t work here because you’re not doing your job. What you want that officer to do is to go there. You want those officers to try to actively enforce the drug laws. They didn’t do anything wrong. Now, according to the Defense Lawyers, they did; but remember Lisa told you, their loyalty is to that man (indicating). They’ll do anything they can to try to get you to let him go.

¶ 31. Tate made no contemporaneous objection to this language in the closing argument even though Tate was represented by two defense attorneys at his trial. “It is well settled that to preserve an objection to alleged improper remarks by counsel during closing argument, the complaining party must not only make a contemporaneous and specific objection to the remarks, but must also obtain a definitive ruling from the trial court on his objection and must request corrective action.” Rials v. Duckworth, 822 So.2d 283, 287(¶ 22) (Miss.2002). Because Tate failed to make a timely objection, the issue is procedurally barred. Payton v. State, 785 So.2d 267, 270(¶ 10) (Miss.1999).

IV. THE COURT SENTENCE OF SIXTY YEARS WITHOUT PAROLE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT VIOLA-TIVE OF THE UNITED STATES CONSTITUTION AND CONSTITUTION OF THE STATE OF MISSISSIPPI.

¶ 32. At sentencing, Tate raised a constitutional objection to the length of his sentence. The trial court stated that it was sentencing Tate as a prior felony controlled substance violator under Mississippi Code Annotated section 41-29-147 (Rev. 2005), which provides for a sentence of double the maximum time. The trial court also stated that Mississippi Code Annotated section 99-19-81 (Rev.2000) required that Tate be sentenced as a habitual offender. Tate acknowledges that his sentence was within the limits prescribed by statute, but argues that his sentences violates the United States and Mississippi Constitutions’ prohibitions against cruel and unusual punishment. Tate argues that his sentence of sixty years is grossly disproportionate to his crime and that the trial court erred by failing to evaluate his sentence under the proportionality analysis articulated in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

¶ 33. As a general rule, a sentence that does not exceed the statutory maximum for the crime will not be disturbed on appeal. Nichols v. State, 826 So.2d 1288, 1290(1110) (Miss.2002). But, when a threshold comparison of the crime to the sentence leads to an inference of “gross disproportionality,” the reviewing court will conduct a proportionality analysis using three factors from Solem. Hoops v. State, 681 So.2d 521, 538 (Miss.1996). These factors include: (1) the gravity of the offense and the harshness of the penalty; (2) a comparison with the sentences imposed on other criminals in the same jurisdiction; and (3) a comparison with the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 291-92.

¶ 34. Tate contends that a threshold comparison of his crime with his sentence should have triggered an inference of gross disproportionality, mandating the application of the Solem factors to his sentencing. We observe that the Mississippi Supreme Court has recently affirmed Tate’s sixty-year sentence as a prior felony controlled substance violator and habitual offender for possession and delivery of marijuana. Tate, 912 So.2d at (¶ 53). In so doing, the court found that Tate’s sentence was not grossly disproportionate to his crime. The court relied upon the case of Williams v. State, 794 So.2d 181 (Miss. 2001). In Williams, the defendant received a 120 year sentence without the possibility of parole or early release for sale of cocaine. Williams, 794 So.2d at 189(¶ 36). This sentence was the result of the application of enhanced sentencing to Williams’s offense. Williams was sentenced to thirty years under section 49-29-132, but had sold the cocaine near a school, resulting in the doubling of his sentence to sixty years. Id. Since Williams was a second and- subsequent offender under section 41-29-147, his sentence was again doubled to 120 years. Id. Williams was further sentenced without the possibility of parole or early release as a habitual offender pursuant to section 99-19-81. Id. The court held that this sentence was not grossly disproportionate to the crime. Id. at 190(¶ 39). While Tate’s sixty-year sentence for possession of marijuana is certainly harsh, in light of the holdings of Tate and Williams, we find that his sentence was not grossly disproportionate to his crime.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF COUNT I, POSSESSION OF MARIJUANA OF APPROXIMATELY 289.8 GRAMS AND SENTENCE OF SIXTY YEARS AND FINE OF $5,000, AND CONVICTION OF COUNT II, POSSESSION OF OXYCODONE AND SENTENCE OF SIXTEEN YEARS AND FINE OF $5,000, EACH SENTENCE WITHOUT PROBATION, PAROLE OR EARLY RELEASE OR GOOD TIME, THE SENTENCES TO RUN CONCURRENTLY TO EACH OTHER AND CONCURRENTLY TO TIME IN CAUSE #298-03 ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MYERS, P.J., GRIFFIS, J.,

text:
    Janice G. BUTLER, Willie Butler and Mississippi School Board Workers Compensation Trust, Appellants v. UPCHURCH TELECOMMUNICATIONS & ALARMS, INC., Telex Communications, Inc., Bogen Communications, Inc. and J.W. Davis & Co., Inc., Appellees.
    No. 2004-CA-02025-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Rehearing Denied Oct. 3, 2006.
    Certiorari Denied Jan. 11, 2007.

      Bobby T. Vance, Batesville, attorney for appellants.
    Alton Lamar Watts, Jackson, Thomas H. Cassel, Tupelo, James N. Bullock, Jackson, Mary Ann Sawyer Peterson, B. Wayne Williams, Tupelo, Robert Joseph Mims, Jackson, attorneys for appellees.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Janice and Willie Butler filed suit against the appellees, following an electrocution Janice received while working at the South Panola High School in Batesville. After two years the appellees filed a motion for summary judgment in the Panola County Circuit Court, Second Judicial District. After a hearing on the motion, the circuit court granted the appellees’ motion for summary judgment. The Butlers filed this appeal. We reverse and remand in part and affirm in part.

FACTS

¶ 2. Janice Butler worked as a receptionist with the South Panola High School. As part of her daily responsibilities, Butler made announcements over the public address (PA) system to the entire school. The PA system consisted of an amplifier manufactured by Bogen Communications, Inc., a booster amplifier manufactured by J. W Davis & Co. Inc., and a microphone manufactured by Telex Communications, Inc. The PA system was maintained and repaired by Upchurch Telecommunications & Alarm, Inc.

¶ 3. On March 26, 1999, Butler suffered an electrical shock that she alleged happened when she simultaneously placed one hand on the Bogen “all call” button and the other on the Telex microphone while making announcements. Butler alleged that this electrical shock resulted in damage to her teeth, tongue and brain resulting in drooling, speech impediment, partial loss of use of her right arm and leg, and mental and emotional problems.

¶ 4. Immediately following Butler receiving the electrical shock, the PA system was inspected by Mike Williams, South Panola Director of Buildings and Operations. Williams testified that he did not find anything wrong with the PA system and found no reason to believe that the system caused the electrical shock. Williams did testify that during his inspection he found a frayed electrical cord running from the PA system cabinet to an oscillating fan on Butler’s desk. The following school day, the PA system was inspected by Upchurch and found to be in working order.

¶ 5. Janice and Willie Butler filed their complaint against the appellees on March 15, 2002. All appellees filed timely answers and propounded discovery requests to the Butlers. The Butlers replied to all requests for discovery, but did not make discovery requests of their own. After nearly two years of discovery requests by all the appellees and responses by the Butlers, the appellees filed their motions for summary judgment beginning on March 9, 2004, and noticed their motion for hearing on May 21, 2004.

¶ 6. On April 12, 2004, the Butlers finally noticed service of discovery to each of the appellees. On May 11, 2004, the Butlers filed a motion for continuance and noticed the motion for hearing on May 21, 2004.

¶ 7. After the filing of responses to the Butlers’ discovery requests and motion for continuance by the appellees and numerous other motions and responses, the hearing on all motions was held on June 30, 2004. Following this hearing, the Circuit Court of Panola County, Second Judicial District, granted all the appellees’ motions for summary judgment and denied the Butlers’ motion for continuance. From this ruling the Butlers appeal raising the following issues for our consideration:

I. IT WAS REVERSIBLE ERROR TO GRANT SUMMARY JUDGMENT BECAUSE MATERIAL ISSUES OF FACT WERE ESTABLISHED AND THE DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW.
II. IT WAS REVERSIBLE ERROR TO GRANT SUMMARY JUDGMENT AS TO PLAINTIFFS’ CAUSE OF ACTION IN NEGLIGENCE.
III. IT WAS REVERSIBLE ERROR TO GRANT SUMMARY JUDGMENT AS TO PLAINTIFFS’ CAUSE OF ACTION IN RES IPSA LOQUITER.
IV. IT WAS REVERSIBLE ERROR TO GRANT SUMMARY JUDGMENT AS TO PLAINTIFFS’ CAUSES OF ACTION IN STRICT LIABILITY.
V. IT WAS REVERSIBLE ERROR TO DENY PLAINTIFFS’ MOTION TO COMPEL ANSWERS TO DISCOVERY AND TO GRANT SUMMARY JUDGMENT WITHOUT ALLOWING PLAINTIFFS MEANINGFUL DISCOVERY.

STANDARD OF REVIEW

¶ 8. Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it: admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt. Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (¶ 10) (Miss.2001) (quoting Heigle v. Heigle, 771 So.2d 341, 345 (¶ 8) (Miss.2000)). We have also held that the non-moving party must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Dailey v. Methodist Medical Center, 790 So.2d 903, 915-16 (¶ 15) (Miss.Ct.App. 2001).

I. IT WAS REVERSIBLE ERROR TO GRANT SUMMARY JUDGMENT BECAUSE MATERIAL ISSUES OF FACT WERE ESTABLISHED AND THE DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW.

II. IT WAS REVERSIBLE ERROR TO GRANT SUMMARY JUDGMENT AS TO PLAINTIFFS’ CAUSE OF ACTION IN NEGLIGENCE.

III. IT WAS REVERSIBLE ERROR TO GRANT SUMMARY JUDGMENT AS TO PLAINTIFFS’ CAUSE OF ACTION IN RES IPSA LOQUITER.

IV. IT WAS REVERSIBLE ERROR TO GRANT SUMMARY JUDGMENT AS TO PLAINTIFFS’ CAUSES OF ACTION IN STRICT LIABILITY.

DISCUSSION

¶ 9. The first four issues on appeal will be addressed together as they deal with the granting of summary judgment in favor of all appellees.

¶ 10. The Butlers argue that it' was reversible error for the Circuit Court of Panola County to grant all appellees’ motions for summary judgment due to there being genuine issues of material fact in dispute. We agree.

¶ 11. When reviewing all the evidence before the trial court, the Butlers have produced a material issue of fact. The Butlers contend that Janice was electrocuted by the PA system while all appellees attempt to lay the source of the electrical current on a frayed fan cord near the PA system. This dispute is an issue for a jury to decide.

¶ 12. The Butlers have produced an affidavit of an expert in electrical engineering, Johnny F. Cmaidalka, who stated to a reasonable degree of electrical probability that, “[t]he public address system in use by South Panola High School District did constitute an electrical shock hazard to users and it did subject Janice Butler to an electrical shock resulting in injuries.” Affidavits by appellees’ expert witnesses point to the frayed fan cord or some other source for the electrical shock. There is no agreement among the appellees’ experts as to the source of the shock.

¶ 13. The Butlers have produced an affidavit of an eyewitness to the accident, Mesha Madison. In her affidavit Madison states that Janice was making announcements to the school when she saw Janice knocked backward.

¶ 14. Through a review of the evidence produced in the lower court, it can be proven that Upchurch repaired the PA system and was responsible for its maintenance; Telex was the manufacturer of the microphone; Bogen was the manufacturer of the amplifier and J.W. Davis was the manufacturer of the auxiliary amplifier.

¶ 15. When this evidence is viewed with all favorable inferences toward the Butlers, the appellees have not met the burden necessary to be granted their motion for summary judgment. There are issues of fact that should be decided by a jury and not determined by a judge through summary judgment.

Y. IT WAS REVERSIBLE ERROR TO DENY PLAINTIFFS’ MOTION TO COMPEL ANSWERS TO DISCOVERY AND TO GRANT SUMMARY JUDGMENT WITHOUT ALLOWING PLAINTIFFS MEANINGFUL DISCOVERY.

DISCUSSION

¶ 16. This case had been on the lower court’s docket for nearly two years when the motions for summary judgment were filed. The appellees had been engaged in discovery from the Butlers for nearly the entire time. The appellees propounded discovery requests and took depositions in a timely manner. The Butlers did not make any discovery request from the appellees until the motions for summary judgment were filed with the court. Following the requests submitted to them, the appellees timely filed their responses. The Butlers had over two years to develop their case and by reviewing the record had enough evidence to proceed without further discovery. There was no error committed by the trial court in failing to grant the Butlers’ motion to compel or motion for additional time to conduct discovery. This issue is without merit.

CONCLUSION

¶ 17. This Court reviews motions for summary judgment de novo. Having reviewed the record in this case we find that the Butlers met their burden to survive the motion for summary judgment and should have been allowed to present their case to a jury. The Butlers, however, did have enough time and evidence to proceed and are not entitled to additional time for discovery in this case.

¶ 18. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT IS REVERSED AND REMANDED IN PART, GRANTING SUMMARY JUDGMENT AND AFFIRMED IN PART, DENYING ADDITIONAL TIME FOR DISCOVERY. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, ISHEE AND ROBERTS, JJ., CONCUR. GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, J.

GRIFFIS, J.,

Concurring in Part, Dissenting in Part:

¶ 19. With much respect for the majority, I concur in part and dissent in part. I concur in the resolution of Issue V. I dissent as to Issues I-IV.

¶20. Mrs. Butler argues that the following testimony from the affidavit of Johnny F. Cmaidalka supports her claims. The “opinions” presented in Cmaidalka’s affidavit state:

(a) The public address system in use by the South Panola School District did constitute an electrical shock hazard to users and it did subject Janice Butler to an electrical shock resulting in injuries;
(b) It is impossible to say to any reasonable degree of electrical engineering probability that the public address system configured as it was on March 26, 1999 could not have caused an electrical shock to Janice Butler;
(c) The electrical shock hazard resulted from an equipment malfunction in the internal failure of a component or components within the public address system configuration subjecting all metal enclosures of the equipment as bonded together and to dangerous, abnormally high voltages not present when the equipment and components are operating properly;
(d) The fact that grounding between the components appeared to be present is not dispositive of whether the components were, or any of them, connected to ground in such a manner as to constitute an effective ground paths which will reduce the hazards of electrical shock;
(e) The resistances of ground circuits were not checked. Loose, corroded, oxidized, missing, high resistance, or otherwise compromised ground connection within the source electrical wiring to the public address system will result in ineffective ground path and will not reduce a voltage impressed on the equipment to be safe levels and would nullify the effectiveness of a ground circuit while it might appear to untrained observer to be intact;
(f) Circuit breakers that may have been in place at the time of the accident were not designed to, intended to, and did not protect Janice Butler from electrical shock. Circuit breakers are installed to provide a safe means to de-energize a circuit and to protect the circuit wiring and equipment from overload conditions to prevent wiring and equipment from overheating to minimize the risk of fire. The only device designed to protect a person from electrical shock is a GFCI. Circuit breakers do not provide this level of protection;
(g) The reports of examinations of the configured systems do not reflect that ground circuits were checked for resistance or impedance. The [illegible word] resistance of a ground path must be sufficiently low for the equipment ground path to be effective and reduce the potential of electrical shock.

¶ 21. My concern with this affidavit is that it does not state with specificity any facts that would subject the defendants to liability. The “opinions” referenced above merely state that Mrs. Butler was shocked when she used the system.

¶ 22. Cmaidalka’s affidavit does not provide expert testimony that would support the Butlers’ claims. It does not establish that any of the defendants’ products, either separately or as component parts, were defectively designed or manufactured. It does not support her claims of negligence, breach of warranty, or res ipsa loquiter. The affidavit does not even provide evidence of what or where was the source of the electrical shock and subsequent injury.

¶ 23. Indeed, the majority recognizes this failure in the Butlers’ case when it states that “there is no agreement between the defendants’ experts as to the source of the shock.” It is not the defendants’ burden to prove the source of the shock. It is the Butlers’ burden to prove a defectively designed or manufactured product, negligent installation or maintenance, breach of warranty or that the theory of res ipsa loquitur applies. They did not.

¶ 24. Accordingly, I find that the summary judgment should be affirmed.

BARNES, J., JOINS THIS OPINION.