author: BRIDGES, J.,

text:
    Oscar Rayfield JONES a/k/a Ray-Ray, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00958-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2005.
    Rehearing Denied June 6, 2006.

      Dan W. Duggan, Brandon, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   BRIDGES, J.,

for the Court.

¶ 1. A Hinds County jury convicted Oscar Rayfield Jones of selling cocaine on November 17, 2003. The circuit court sentenced Jones to twenty years in confinement. Jones appeals this decision arguing that (1) the trial court erred in allowing the jury to hear that the detective identified Jones from a photograph, (2) that the court failed to establish a chain of custody for the cocaine, and (3) that the verdict was against the weight of the evidence.

STATEMENT OF FACTS

¶ 2. The police had a tip that someone going by the name of “Ray-Ray” sold cocaine out of a certain house in Jackson. Officer Johnny Taylor investigated the case and arranged for Undercover Officer Altrich Harvey to go to the home to purchase sixty dollars worth of crack cocaine on June 1, 2001. Officer Taylor wired Officer Harvey and listened to him as he made the buy from a nearby location. However, Officer Taylor could not see inside the house to witness the purchase.

¶ 3. Harvey went to the house and a woman opened the door. Officer Harvey asked to speak to Ray-Ray. Someone came from the back of the house and Officer Harvey asked to purchase the cocaine. This individual then spit out four rocks of cocaine from his mouth and sold them to Officer Harvey. Officer Harvey testified that he placed the rocks of crack cocaine in a matchbox to store them and then later gave the matchbox to Officer Taylor who bagged and identified the evidence. Officer Taylor failed to include any details about a matchbox at trial. Patricia Barnes testified that she tested the evidence and that it was .41 grams of cocaine.

¶4. Officer Harvey identified Jones at trial as the person he purchased the sixty dollars of crack cocaine from. He also testified that he recognized Jones during the sale from a picture he saw of Jones prior to entering the house.

¶ 5. In order to use Officer Harvey in further undercover activity in the area the police did not make an arrest at the time of the purchase. On June 12, the police arrested Oscar Rayfield Jones at the house where the sale occurred and charged Jones with this sale. Jones testified that he spent June 1, 2001, with his children’s mother paying bills and at her home. Barbara Dukes also testified that she spent the day with Jones and that no one calls him Ray-Ray but that close friends call him Ray.

ANALYSIS

¶ 6. “The trial court’s discretion must be exercised within the guidelines of the Mississippi Rules of Evidence and this Court will reverse only when an abuse of discretion resulting in prejudice to the accused occurs.” Morris v. State, 887 So.2d 804, 806(¶ 8) (Miss.Ct.App.2004) (citing Wash v. State, 790 So.2d 856, 858(¶ 5) (Miss.Ct.App.2001)).

I.

¶ 7. Jones contends that allowing Officer Harvey to testify that he saw a picture of Jones before the purchase created an inference for the jury that he had a prior criminal record. He argues that the jury would assume that the picture was a mug shot and that then- he must have a prior record and commits crimes of this sort. Jones cites to Sloane v. State, 437 So.2d 16 (Miss.1983)' which found admission of a mug shot into evidence as reversible error. The court did add that with appropriate need the court could allow mug shots into evidence but they must not draw attention to the source of the photographs.

¶ 8. This case differs from Sloane since the prosecution did not admit the picture into evidence. The prosecution merely asked officer Harvey, “Were you given an opportunity to look at a picture of a man known as Ray-Ray Jones prior to this?” Officer Harvey responded affirmatively and, aside from the defendant’s objection, nothing further was said concerning a photograph of the defendant. This case follows more along the facts of Brooks v. State, 788 So.2d 794 (Miss.Ct.App.2001). In Brooks, the prosecution mentioned a photograph one time to show that the correct person was arrested. Similarly, the prosecution did not admit the picture into evidence. The Court found that the judge did not err in that case in allowing the witness to testify to recognizing the defendant from a picture beforehand since, “prejudicial impact caused by mentioning the jail photo did not outweigh the value of ascertaining that Brooks was indeed the person who sold cocaine.” Brooks, 788 So.2d at 798(¶ 18).

¶ 9. This case differs from Brooks since in that case the witness identified the picture as a “jail photo.” In this case the witness did not label the picture in any way requiring the jury to make inferences on their own. Thus, the value of insuring that Officer Harvey correctly identified Jones greatly outweighs the very little, if any, prejudicial impact of this testimony.

¶ 10. Jones also contends that as evidence of a prior crime the trial court must do a Rule 403 balancing test. The trial judge did not balance the issue on the record. Instead he noted that the prosecution failed to make any reference to the source of the picture at all. He also warned the prosecution saying, “You are walking a tight rope.” “While a trial court must certainly balance probative value and prejudice when evaluating evidence under a trial court’s failure to articulate the balancing on the record does not require reversal.” Brink v. State, 888 So.2d 437, 451(¶ 42)(Miss.Ct.App.2004)

¶ 11. Jones also argues that if the judge decided to allow mention of the picture than it required a limiting instruction. Jones failed to ask the trial judge for a limiting instruction. In Brooks, the Court offered to give a limiting instruction to the jury but suggested that, “that instructions in this regard would probably draw more attention to the testimony.” Brooks, 788 So.2d at 798(¶ 17).

¶ 12. In Clay v. State, 881 So.2d 323, 326(¶ 9-10) (Miss.Ct.App.2004) the trial court allowed testimony that a witness identified the defendant from a photo lineup which led to developing the defendant as a suspect. The court noted that this did not present evidence of his prior crimes or convictions and did not create a situation for a Rule 403 limitation. Similarly, Officer Harvey’s mention of the photo did not require a limiting instruction.

II.

¶ 13. Jones also argues that the trial court erred in allowing the cocaine into evidence since the chain of custody was not maintained. Jones bases part of this argument on the matchbox not appearing in Officer Taylor’s testimony. Jones further objected to the evidence because the forensic expert did not say which officer gave her the cocaine and which officer she returned it to. Officer Taylor testified to marking the evidence with his case number in an evidence bag. The forensic expert also testified to initialing, writing the case number and date on the bag as well.

¶ 14. In Gilley v. State, 748 So.2d 123 (Miss.1999) the defendant also challenged the chain of custody of the evidence since the officer who transported the cocaine to the State Crime Laboratory or the person who accepted the evidence at the Lab. “The test for the continuous possession of evidence is Vhether or not there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.’” Gilley v. State 748 So.2d 123, 127(¶ 11)(Miss.1999), quoting (Doby v. State, 532 So.2d 584, 588 (Miss.1988)). The burden of showing tampering lies with the defendant and the determination of proper chain of custody rest with the trial court. Gilley, 748 So.2d at 127(¶ 11)

¶ 15. In Gilley the court noted that the defendant did not allege that anyone tampered with the evidence. Jones does not allege that anyone tampered with the evidence but that someone might have confused it with another case. The Gilley court also looked at the testimony of the officer who received the evidence as well as the person who tested it. They both testified that they tagged and initialed the evidence similar to the testimony in this case. “Their testimony also revealed that proper procedures and safeguards were followed in transporting and receiving the evidence, and that testimony was subject to cross-examination. The trial judge was soundly within his discretion in admitting [the evidence].” Gilley, 748 So.2d at 127(1112) Accordingly, the trial court did not abuse its discretion by allowing the presentation of the evidence by placing weight on the testimony of the forensic expert along with the officers who collected the evidence.

III.

¶ 16. Jones also argues that the verdict was against the weight of the evidence and the court should have issued a directed verdict or granted a motion for a new trial. The Court views a motion for a directed verdict and a judgment notwithstanding the verdict the same. Shelton v. State, 853 So.2d 1171, 1186(¶ 48)(Miss.2004). “Under that standard, this Court considers all of the evidence in the light most favorable to the State and gives the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a guilty verdict, this Court is required to reverse and render. On the other hand, if there is substantial evidence in support of the verdict of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, this Court is required to affirm.” Seeling v. State, 844 So.2d 439, 443(¶ 8)(Miss.2003).

¶ 17. Jones points to the detail that Officer Harvey testified that he placed the cocaine in a matchbox and Officer Taylor failed to describe a matchbox. Jones also looks into his chain of custody arguments and his alibi witness for reasons that the evidence pointed against conviction. However, the jury had plenty of substantial evidence to support the conviction in the testimony of the two officers. Based on this evidence, a reasonable jury could find Jones guilty.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF SALE OF COCAINE 41-29-139/142 AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Joseph DAVIS, Jr., Appellant v. BILOXI PUBLIC SCHOOL DISTRICT, Biloxi Public School Board, Board of Trustees, and Dr. Robert W. Bowles, Individually, Appellees.
    No. 2004-CP-00900-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2005.
    Rehearing Denied May 2, 2006.

      Joseph Davis, Jr., Appellant, pro se.
    Edward F. Donovan, Biloxi, attorney for appellees.
    Before KING, C.J., CHANDLER, and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Joseph Davis, Jr. was terminated from his job as a teacher’s aide. The Biloxi Public School District held a hearing and upheld the termination. Davis appealed to the Harrison County Circuit Court, which dismissed the appeal. Davis now appeals to this Court, raising the following issues that we quote verbatim from his brief:

I.WAS THERE SUBSTANTIAL CREDITABLE EVIDENCE TO SUSTAIN THE UNLAWFUL SUSPENSION(S) AND TERMINATION OF EMPLOYMENT BY THE BILOXI PUBLIC SCHOOL. DISTRICT, BILOXI PUBLIC SCHOOL BOARD, BOARD OF TRUSTEES, AND BILOXI PUBLIC SCHOOL ADMINISTRATORS UNDER § 37-9-1, § 37-9-59 AND § 37-9-113?
II. WAS THE BILOXI PUBLIC SCHOOL DISTRICT, BILOXI PUBLIC SCHOOL BOARD, BOARD OF TRUSTEES, AND BILOXI PUBLIC SCHOOL ADMINISTRATORS’ ACTIONS ARBITRARY AND CAPRICIOUS IN THE TERMINATION OF EMPLOYMENT UNDER § 37-9-113?
III. DID THE APPELLANT’S REPORTING OF THE FINANCIAL MISMANAGEMENT BY THE BILOXI PUBLIC SCHOOL COMPTROLLER AND ADMINISTRATORS TO THE -STATE AUDITOR GENERALS OFFICE HAVE AN INFLUENCE ON THE ACTIONS OF THE BILOXI PUBLIC SCHOOL DISTRICT, BILOXI PUBLIC SCHOOL BOARD, BOARD OF TRUSTEES, AND BILOXI PUBLIC SCHOOL ADMINISTRATORS REGARDING THEIR ARBITRARY AND CAPRICIOUS TERMINATION OF EMPLOYMENT?
IV. WHY HAS THE RELEVANT EVIDENCE UNDER M.R.C.P. RULE 401 AND CREDITABLE EVIDENCE UNDER M.R.C.P. RULE 803(14) AND (15) FROM THE COURT AND FROM THE CLOSED SCHOOL BOARD HEARING BEEN SUPPRESSED DURING THE JUDICIAL PROCESS IN THIS CASE BY THE COURT AND THE BILOXI PUBLIC SCHOOL DISTRICT, BILOXI PUBLIC SCHOOL BOARD, BOARD OF TRUSTEES AND BILOXI PUBLIC SCHOOL ADMINISTRATORS?
¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Joseph Davis, Jr. worked as a teacher’s aide at Popps Ferry School in Biloxi. On August 29, 2003, the school’s principal suspended Davis for five days for repeated acts of unprofessional and disrespectful conduct. When Davis returned to the school on September 5, he received a letter from Robert Bowles, Deputy Superintendent of the Biloxi Public School District, informing him that he was terminated effective immediately.

¶ 4. Davis received a hearing before the Biloxi Public School Board of Trustees, where the board upheld the termination. Davis claims the hearing was unfair because it was closed to the public, lasted for only fifteen minutes, and his termination was not upheld by a unanimous vote. Davis appealed to the Harrison County Circuit Court. The circuit court judge dismissed the appeal, finding that Davis was not entitled to judicial review because he was an at-will employee.

ANALYSIS

¶ 5. Public school employees who are required to have a valid license issued by the State Department of Education are vested with tenure protections crafted into the Mississippi Education Employment Procedures Law. Miss.Code Ann. §§ 37-9-101-113 (Rev.2001). A public school employee is defined as: “Any teacher, principal, superintendent or other professional personnel employed by the local school district for a continuous period of two (2) years with that district and required to have a valid license issued by the State Department of Education as a prerequisite of employment.” Miss.Code Ann. § 37-9-103 (Rev.2001). As a teacher’s aide, Davis is a non-certified employee and not required to have a license issued by the State Department of Education as a prerequisite of employment.

¶ 6. In Harrison County School Bd. v. Morreale, 538 So.2d 1196 (Miss.1989), the Harrison County Chancery Court reversed the Harrison County School Board’s decision to terminate Morreale on the rationale that she had been denied due process. Like Davis, Morreale was a teacher’s aide whose employment was terminated by her school district. Like Davis, Morreale contended that the hearing afforded to her by the Harrison County School District lacked adequate due process protections.

¶ 7. The Mississippi Supreme Court found that Morreale’s employment did not fall within the protections of the Mississippi Education Employment Procedures Law because she was a teacher’s aide and not required by law to have a teacher’s certificate as a prerequisite to her employment. Id. at 1200. The court went on to evaluate whether Morreale was entitled to a hearing and found that she was entitled to a hearing only if her job constituted a property interest. Id. (citing Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). “A property interest in one’s continued employment exists only when the employee has ‘a legitimate claim of entitlement to it.’ ” Id. (quoting Roth, 408 U.S. at 576, 92 S.Ct. 2701). “[T]he sufficiency of the claim of entitlement must be decided by reference to state law.” Id. (quoting Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)). Mississippi follows the common law rule that an employee hired for an indefinite term may be discharged for any reason at the will of his employer. Id. (citing Perry v. Sears, Roebuck & Co., 508 So.2d 1086 (Miss.1987); Shaw v. Burchfield, 481 So.2d 247 (Miss.1985)). The court concluded that Morreale was not entitled to a hearing because she had no valid claim of entitlement to continued employment as a teacher’s aide, and her termination deprived her of no property interest that would invoke the due process provisions of the United States Constitution. Id.

¶ 8. This Court finds the holding of Morreale to be instructive to the disposition of the present case. Davis was not a licensed teacher, he had no contract for his employment, and he enjoyed no statutory protections. Davis was an at-will employee, and the Biloxi Public School District had the discretion to terminate him for any reason.

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

KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING J., CONCURS IN RESULT ONLY.

      . The appeal from a final decision of the school board must be taken in the chancery court. Miss.Code Ann. § 37-9-113 (Rev. 2001). Thus, the circuit court would lack jurisdiction even if Davis' claims fall within the protections of the Mississippi Education Employment Procedures Law.


author: BARNES, J.,

text:
    Henry C. PAYTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00566-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2006.
    Rehearing Denied June 6, 2006.

      Imhotep Alkebu-Lan, Chokwe Lumum-ba, Jackson, attorneys for appellant.
    Office of the Attorney General by Scott Stuart.
    Before KING, C.J., IRVING and. BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Henry C. Payton, on retrial, was convicted of armed robbery and arson on September 7, 2001. The Mississippi Supreme Court affirmed both convictions and the sentence as to.arson, but reversed the sentence as to armed robbery and remanded the case for resentencing as to that count. From this resentencing, Payton appeals, arguing that the judge who resen-tenced him should have remained recused for all purposes in the case. We agree and remand to the Circuit Court of. Leake County for resentencing by a special judge appointed by the supreme court.,

STATEMENT OF FACTS

¶ 2. The events giving rise to this case occurred on September 29, 1995, when a group of men, including Payton, robbed a bank, burned a nearby commercial building to divert attention from the bank, and allegedly kidnapped the president of the bank. The specific facts of the incident are of no relevance here, and can be found in detail at Payton v. State, 897 So.2d 921, 929-31 (¶¶ 2-4) (Miss.2003).

¶ 3. Payton was arrested and found guilty on the charges of armed robbery, kidnapping, and second-degree arson. The court imposed two life sentences to run consecutively for the charges of armed robbery and kidnapping, and a five-year sentence on the arson charge. Payton appealed his conviction, which was upheld by this Court, but overturned by the Mississippi Supreme Court. The supreme court ruled that the trial court erred in refusing to sever Payton’s trial from that of a co-defendant, and that the prosecutor used an improper “send a message” closing argument. See Payton v. State, 785 So.2d 267 (Miss.1999).

¶ 4. Payton was retried and found guilty of armed robbery and arson on September 7, 2001. Following the denial of Payton’s motion for a new trial, Chokwe Lumumba, counsel for Payton, improvidently engaged in an unprofessional confrontation with the trial court judge, the Honorable Marcus Gordon. As a result, Lumumba was cited for two counts of contempt and was later disciplined by the Mississippi Supreme Court. Following the unfortunate exchange, circuit judges Marcus Gordon and Vernon Cotten entered an order of recusal, dated February 13, 2002. The order requested that the supreme court appoint a special judge to hear all motions related to the case. On February 22, 2002, the supreme court issued an order pursuant to Mississippi Code Annotated section 9-1-105 appointing the Honorable Elzy Smith as special judge “to preside and conduct proceedings” in Payton’s case.

¶ 5. In Payton v. State, 897 So.2d 921 (Miss.2003), the supreme court affirmed Payton’s convictions for arson and armed robbery, and sentence for arson, but remanded for resentencing on the armed robbery conviction. The supreme court found that the trial court judge had improperly sentenced Payton to thirty-eight years for armed robbery because the judge had used the incorrect life expectancy in sentencing Payton. Upon receiving notice of the supreme court’s decision, Judge Gordon issued an order on December 11, 2003, setting Payton’s resentencing for January 13, 2004. Payton responded by filing a motion requesting that Judge Gordon recuse himself from the resentenc-ing. Judge Gordon denied the motion, presided over the resentencing, and sentenced Payton to twenty-five years on the armed robbery conviction. Payton appealed.

STANDARD OF REVIEW

¶ 6. “When a judge is not disqualified under the constitutional or statutory provisions, the decision is left up to each individual judge and is subject to review only in a case of manifest abuse of discretion.” Payton, 897 So.2d at 943(¶ 73) (citing Taylor v. State, 789 So.2d 787, 797(¶ 43) (Miss.2001); Buchanan v. Buchanan, 587 So.2d 892, 895 (Miss.1991)).

ISSUE AND ANALYSIS

¶ 7. Payton argues on appeal that the trial judge committed manifest error by denying Payton’s motion to recuse and by presiding over his resentencing, when the judge had previously entered an order of recusal, and the supreme court had issued an order appointing a special judge to preside and conduct proceedings in Pay-ton’s ease. The State counters that, because the supreme court found in Payton v. State, 897 So.2d 921 (Miss.2003), that Judge Gordon’s personal feelings toward Payton’s counsel had not improperly influenced his trial decisions, it was proper for Judge Gordon to deny Payton’s motion and preside over Payton’s resentencing. Under the facts of this case, we find that Judge Gordon had no authority to resen-tence Payton.

¶ 8. This case presents an unusual issue, that is, whether a judge who has previously recused himself from all motions on a case may later preside over resentencing the defendant on remand. The standard test for recusal is that the judge must recuse himself “if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” McGee v. State, 820 So.2d 700, 711(¶ 33) (Miss.Ct.App.2000) (quoting Mississippi Code of Judicial Conduct Canon 3 (1995)). A presumption exists that the judge is qualified and unbiased; in order to overcome this presumption, tbe evidence must produce a reasonable doubt about the validity of the presumption. Green v. State, 631 So.2d 167, 177 (Miss.1994).

¶ 9. While the supreme court in Payton v. State, 897 So.2d 921 (Miss.2003), found that the personal feelings of Judge Gordon did not improperly influence his trial decisions, we note that the disruptive conduct of Payton’s counsel did not occur until the trial had been concluded and Payton’s motion for a new trial had been denied. Thus, the supreme court was not called upon to decide whether Judge Gordon’s feelings had influenced his decisions on matters which arose in Payton’s case after the exchange occurred. We And in this case that the fact that Judge Gordon has previously recused himself requires that he remain recused from all proceedings in the instant case.

¶ 10. Mississippi case law has yet to address the issue of whether a recused judge may continue to act in the case from which he has been recused. However, the federal rule is well-settled: “[A] trial judge who has recused himself should take no other action in the case except the necessary ministerial acts to have the case transferred to another judge.” Doddy v. Oxy USA, Inc., 101 F.3d 448, 457 (5th Cir.1996); El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136, 141 (1st Cir. 1994) (quoting 13A ChaRles A. Weight & ARTHUR R. Miller, Federal PRACTICE & Procedure § 3550 (2d ed.1984)). The decisions of state courts mirror the federal rule. See, e.g., Bolt v. Smith, 594 So.2d 864, 864 (Fla.Ct.App.1992) (“Florida case law is well settled that once a trial judge has recused himself, further orders of the recused judge are void and have no effect”); State v. Evans, 187 Ga.App. 649, 371 S.E.2d 432, 433 (1988) (“A disqualified judge can take no judicial action in the case and any attempt at such action is a mere nullity”), overruled on other grounds by State v. Smith, 268 Ga. 75, 485 S.E.2d 491 (1997); Ferguson v. Pony Express Courier Corp., 898 S.W.2d 128, 130 (Mo.Ct. App.1995) (“It is true that a judge who disqualifies himself or who has been disqualified by one of the parties has no further right to hear a case”); Pueblo of Laguna v. Cillessen & Son, Inc., 101 N.M. 341, 682 P.2d 197, 199 (1984) (“Since the district court was properly disqualified, it had power only to perform mere formal acts subsequent to the disqualification. After the affidavit of disqualification was filed, the judge had no jurisdiction to act in matters involving the exercise of his discretion. Its subsequent consolidation order was therefore without legal effect”); State v. Nossaman, 63 Or.App. 789, 666 P.2d 1351, 1355 (1983) (“A judgment entered by a judge who has been disqualified in the manner prescribed in the statute is void”), abrogated on other grounds by Matter of Marriage of Benson, 141 Or. App. 458, 919 P.2d 496 (1996); McElwee v. McElwee, 911 S.W.2d 182, 186 (Tex.Ct.App.1995) (“If a judge is disqualified under the Texas Constitution, he is without jurisdiction to hear the case, and therefore, any judgment he renders is void and a nullity”). The State has cited to us no authority which contradicts the proposition that, once recused, a judge should take no further action in the case.

¶ 11. In addition to the above-cited cases, secondary authority supports our position that it was an abuse of discretion for Judge Gordon to re-insert himself into Payton’s case:

A judge who has disqualified himself or herself from a case may not reinstate himself or herself to the case without first setting aside or otherwise revoking the prior order of disqualification. If a judge attempts to rescind his action disqualifying himself or herself, it must affirmatively appear that there are valid grounds, such as error or mistake, for such reinstatement. In the absence of such an affirmative showing of valid grounds, the judge may not on his or her own motion revoke or set aside the disqualification.... Furthermore, because a presumption arises, by reason of the judge’s prior order of disqualification, of the existence of the factual reason for such disqualification ... it is not sufficient for the judge to enter an order merely saying that he or she is not disqualified; the record should clearly reveal the facts upon which the revocation is made.

46 AM.JuR.2d Judges § 234 (1994). It is thus evident that while there is a general presumption that a judge is qualified and unbiased, once a judge recuses himself from a case, the burden shifts to the judge to show affirmatively a valid reason to set aside the disqualification.

¶ 12. Based on these authorities, we hold that, because Judge Gordon previously recused himself from this case, he was without power to resentence Payton. A presumption arose by virtue of the order of recusal that sufficient facts existed for the disqualification. Judge Gordon, by re-cusing himself, implicitly recognized that “a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” See Taylor, 789 So.2d at 797. None of the facts recited in the order of recusal have changed. Judge Gordon’s order of recusal has not been rescinded and is still in effect. Even had Judge Gordon rescinded his order of recusal, he has not met his burden of showing adequate grounds justifying reinstatement.

¶ 13. While the supreme court stated in Lumumba that it had “reversed and remanded Payton’s case to the trial court and Judge Gordon,” Lumumba, 912 So .2d at 882(¶ 23), this is not completely accurate. With all respect to the supreme court, the remand in Payton was to the Leake County Circuit Court, not specifically to Judge Gordon. There is no indication that, in stating that the case had been remanded to Judge Gordon, the supreme court took into consideration the fact that Judge Gordon had recused himself in Pay-ton’s case. Thus, it appears upon remand that the case should have been assigned to a special judge appointed for resentencing.

¶ 14. For these reasons, the judgment entered by Judge Gordon sentencing Pay-ton to twenty-five years in the custody of the Mississippi Department of Corrections is void. We reverse and remand for re-sentencing by a special judge to be appointed by the Mississippi Supreme Court.

¶ 15. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR RESENTENCING AS TO COUNT I CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS AND ISHEE, JJ., CONCUR. MYERS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., NOT PARTICIPATING.

      . See The Mississippi Bar v. Lumumba, 912 So.2d 871 (Miss.2005).

      . The order of recusal stated:
      It appearing that Judges Marcus Gordon and Vernon Cotten have had unpleasant experiences with Attorney Chokwe Lumum-ba and have adjudicated his conduct to be contemptuous, disrespectful, and disorderly, and, as a result of such conduct, have adjudicated the attorney to be in contempt of Court, and, it now appearing there are motions that have been filed in the captioned cause and that both Judges should recuse themselves from hearing said motions ....

      . Miss.Code Ann. section 9-1-105 provides that ''[w]henever any judicial officer is unwilling or unable to hear a case ... the Chief Justice of the Mississippi Supreme Court, with the advice and consent of a majority of the justices of the Mississippi Supreme Court, may appoint a person as a special judge to hear the case....”

      . The trial judge had determined Payton's life expectancy to be 39.6 years, however, on appeal, the State conceded that "the life expectancy for a forty-three year old black male is 30.6 years.” Payton, 897 So.2d at 951 (¶ 115).


author: SOUTHWICK, J.,

text:
    In re CONSERVATORSHIP OF Virginia B. COOK. Camille C. Robinson, Appellant v. John B. Cook, Jr., as the Personal Representative of John B. Cook, Sr., Deceased, and Virginia B. Cook, Appellees. In re Conservatorship of Virginia B. Cook. Camille C. Robinson, Appellant v. John B. Cook, Jr., as the Personal Representative of John B. Cook, Sr., Deceased, and Virginia B. Cook, Appellees.
    Nos. 2004-CA-02303-COA, 2005-CA-00395-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.

      Robert Lewis Spell, attorney for appellant.
    Mark W. Prewitt, Vicksburg, attorney for appellees.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. This is a suit between a brother and sister whose 92-year old mother granted significant financial benefits to the brother. After a trial, the chancellor upheld the gifts. On appeal, the sister alleges that the evidence does not support the chancellor. We disagree and affirm.

FACTS

¶ 2. Mrs. Virginia Cook, born in 1910, is a life-long resident of Warren County, Mississippi. She has been a widow since 1953. Mrs. Cook has three children— John, Camille, and Theodore. Camille Robinson, a resident of the Commonwealth of Virginia, brought suit against John, while Theodore has apparently had no desire to participate in this litigation and has never been a party. John died prior to the conclusion of this case. His son, John, Jr., has been substituted.

¶ 8. In the early 1960’s, Mrs. Cook inherited $50,000 and 360 acres of land from her father. She wanted to live the remainder of her life on the Warren County property. John assisted his mother with investments and business operations to ensure this was possible. At the time of the judgment in this case, Mrs. Cooks’ assets amounted to about $842,000. We will discuss the facts of the challenged transactions between Mrs. Cook and her son John as we review the relevant legal principles. For now, we note that both cash and real property were transferred from mother to son. The chancellor’s refusal to set those transfers aside is the subject of one of the appeals before us.

¶ 4. The siblings, John and Camille, agreed that a conservator should be appointed for their mother. Each sought that position. John Cook initially was named, and after his death, Camille Robinson was appointed. Camille, after being appointed as conservator of Mrs. Cook, filed a petition that would allow her mother to be moved to Virginia. The chancellor denied the request. One of the consolidated appeals is from that decision. Camille Robinson has resigned as conservator because remaining in Mississippi to care for her mother was too burdensome. The parties agree that .the appeal in Cause Number 2005-CA-395-COA from the decision refusing to allow Mrs. Cook to be moved is moot. There is no motion to dismiss, and so we simply affirm that judgment.

¶ 5. We now proceed to review only the appeal from the refusal to set aside the transactions between Mrs. Cook and her son John.

DISCUSSION

¶ 6. The central focus on appeal is whether the evidence supports the findings of the chancellor. Such findings will be upheld if supported by substantial evidence unless they are manifestly wrong, clearly erroneous, or an erroneous legal standard is applied. Hamilton v. Hopkins, 834 So.2d 695, 699 (Miss.2003). We will examine each of the issues raised in light of that standard.

ISSUE 1: Mrs. Cook’s mental competence

¶ 7. On July 25, 1975, Mrs. Cook conveyed to her son John an undivided one-half interest in the 360 acres she had inherited. In 1990, upon Mrs. Cook’s request, John conveyed a life estate in the house back to his mother. Camille Robinson received a power of attorney from her mother in 2001 while visiting her. In February 2003, apparently having concerns raised during a visit with her mother, Mrs. Robinson used the power of attorney to obtain records from her mother and brother’s joint account. Mrs. Cook learned about her daughter’s inquiries when she saw a charge on her account for fees involved in the bank’s research. Mrs. Cook instructed John to contact an attorney for her. There is evidence that John Cook provided a list of attorneys, and that his mother chose Travis Vance from the list. An appointment was made for Vance to go to the Cook home.

¶ 8. Vance met with Mrs. Cook for over an hour one morning. During this meeting, John was instructed to leave the house. He did so. Mrs. Cook informed Vance of her intentions. Vance prepared a deed, power of attorney, durable power of attorney for health care, and a living will, all in favor of John Cook. Vance had been an attorney for nearly four decades and later testified that he satisfied himself that Mrs. Cook had the mental capacity to execute such documents. Vance testified that Mrs. Cook wanted to execute these instruments in favor of her son because John had taken care of her. Conversely, her daughter Camille lived in Virginia with her family, and her final child, Theodore, had no relationship with her.

¶ 9. Vance consulted with Mrs. Cook on three separate occasions prior to executing these instruments. He testified that each time he was satisfied that these choices were of her own free will, without outside influence, and that she understood the consequences of her actions. Vance once was accompanied by his notary so that the documents could be executed. The notary also was satisfied that Mrs. Cook was mentally competent to execute the instruments.

¶ 10. Mrs. Cook suffered from mild dementia and was under the care of a physician, a registered nurse, and a nurse practitioner. Evidence was obtained from the physician that Mrs. Cook suffered from dementia and did not always possess the mental capacity to execute legal documents. Mrs. Cook’s physician also testified that her condition varied and the people in her presence on any given day were better situated to determine Mrs. Cook’s mental capacity on that day.

¶ 11. At trial, no medical documentation of an earlier diagnosis of dementia was introduced. None of Mrs. Cook’s medical advisors observed her on the day of execution of the relevant documents and could not testify to her mental state on that day. The day of execution of the documents was February 28, 2003. Mrs. Cook was examined by a psychiatrist on May 7, 2003 to obtain an evaluation of competency. The psychiatrist testified that Mrs. Cook stated that she knew she signed the deed conveying her land to John and this was because John and his family had made it possible for her to remain comfortably at home. The psychiatrist concluded that Mrs. Cook was not dominated by John and that she could recall the reasons for signing the deed.

¶ 12. Mississippi law requires that the party seeking to set aside a deed prove that the grantor lacked mental capacity at the time of execution. Whitworth v. Kines, 604 So.2d 225, 235 (Miss.1992). This evidence of mental incapacity must be clear and convincing and not simply that the grantor was suffering from general weakness. Id. The attorney Vance testified about his meetings with Mrs. Cook over a three-day period and concluded that she had been competent to execute the documents at that time. The chancellor went through a comprehensive analysis of case law in a written opinion and concluded that clear and convincing evidence of a lack of mental capacity had not been shown. We find no basis on which to disturb that factual conclusion.

¶ 13. Even if Mrs. Cook was mentally capable to execute legal documents, there is a presumption of undue influence if the beneficiary of the transactions had obtained a confidential relationship with the grantor. Wright v. Roberts, 797 So.2d 992, 998-99 (Miss.2001). The chancellor found that there was a confidential relationship. That finding is not contested. The burden was then on the beneficiary, John Cook, to prove that no undue influence was exerted. We now look at that issue.

ISSUE 2: Confidential Relationship and Presumption of Undue Influence

¶ 14. We start our examination of this issue by looking more closely at some of the transactions that are challenged by Camille Robinson. John Cook and his mother were partners in an endeavor to subdivide forty of the three hundred sixty acres into residential lots. None of the lots was ever sold. There was a written agreement between the two that Mrs. Cook would invest $7,500 and John Cook would invest approximately $49,000. The agreement, dated March 1, 1993, authorized John to recover the difference in their respective investments through the sale or lease of the lots on a pro rata basis. Instead of selling the lots, the land was leased to prospective casino developers. Mrs. Cook and John were paid $172,000 for this lease and the money was held in their joint account. The chancellor found that between July 2002 and January 2003, John was paid the sum of $37,346.87 by his mother. This sum included six percent interest over the ten years the debt was owed. A total of $74,693.75. was withdrawn from this joint account, half of which already belonged to John. The chancellor found that these transactions were done with Mrs. Cook’s knowledge and consent at a time when, her mental status was not in question. This joint account was closed by Camille Robinson using the power of attorney that she held at that time. Mrs. Robinson retained the remaining $1,030 that had been in the account when it was closed.

¶ 15. Other contested transactions are the following. John Cook transferred his mother’s money from one account to a new account with a higher interest rate. The new account subjected the income to taxes and also removed Camille Robinson as a beneficiary. John Cook purchased a vehicle for approximately $10,000. There was evidence that the title was placed in John’s name because Mrs. Cook did not have a driver’s license and for insurance purposes. The alleged purpose of the vehicle was for John to drive his mother, since Mrs. Cook had difficulty getting in and out of John’s previous vehicle. Finally, John Cook used money from his mother’s account to pay fees associated with this litigation. John testified that Mrs. Cook authorized this after Camille stated that she would fight John in any way she could.

¶ 16. After finding that there was a presumption of undue influence due to the confidential relationship between Mrs. Cook and John, the chancellor correctly held that the beneficiary could rebut this presumption by clear and convincing evidence. Wright, 797 So.2d at 998. These factors have been identified as necessary for consideration: (1) the good faith of the beneficiary, (2) the grantor’s full knowledge and deliberation of the consequences of her actions, and (3) evidence of independent consent and action by the grantor. Id. at 1000. We will look at each of these three considerations.

(1) Good faith on part of beneficiary

¶ 17. The intentions of the beneficiary are an important starting point for determining whether there was undue influence in fact, and not just a presumption. The Supreme Court set out these questions as a means to answer whether good faith existed:

(a) the determination of the identity of the initiating party in seeking preparation of the instrument, (b) the place of the execution of the instrument and in whose presence, (c) what consideration and fee were paid, if any, and (d) by whom paid, and (e) the secrecy or openness given the execution of an instrument.

Id. (quoting Murray v. Laird, 446 So.2d 575, 578-79 (Miss.1984)).

¶ 18. John Cook had a history of complying with the requests of his mother. Upon her request, he had voluntarily conveyed back to his mother a portion of the land she had previously conveyed to him. John Cook testified that his mother initiated the deed transaction. The attorney’s testimony supports that Mrs. Cook initiated the execution of the deed and-other documents. .

¶ 19. The place of execution was at Mrs. Cook’s home. Because of her physical limitations, that was about the only location. Though John Cook resided at this residence as his mother’s primary caretaker, it was also the place presumably where the elderly mother would feel the most comfortable in discussing important matters such as these. John Cook was not inside the house during the time when Mrs. Cook and her attorney initially discussed the instruments. Evidence was presented that John Cook was inside the house when the instruments were signed but was not in the same room, as the attorney asked him to leave. Mrs. Cook communicated on more than one occasion that she wanted to execute these documents in favor of her son due to his taking ckre of her for many years. The instruments were executed with the aid of an experienced attorney with his notary and were promptly recorded in the public record.

¶20. None of these considerations on good faith suggest that the chancellor erréd.

(2) Full knowledge and deliberation of actions and their consequences

¶21. The Mississippi Supreme Court has also presented several considerations on this factor of whether a presumption of undue influence has been rebutted,

(a) [The grantor’s] awareness of his total assets and their general value, (b) an understanding by him of the persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would legally affect that prior will or natural distribution, (c) whether non-relative beneficiaries would be excluded or included and, (d) knowledge of who controls his finances and business and by what method, and if controlled by another, how dependent is the grantor/testator on him and how susceptible to his influence.

Id. at 1001 (quoting Murray, 446 So.2d at 578).

¶ 22. The attorney Vance testified that he had a -private and lengthy discussion with Mrs. Cook about her intentions. John Cook was not present. Mrs. Cook demonstrated that she knew the quantity of land she owned, that she was paid money in the past for an option to purchase the land, that there was no longer an option, and that she had previously conveyed half of her property to John. Mrs. Cook knew that the bank statement indicated that her daughter Camille has caused a charge to be made on the account to respond to Camille’s inquiry with the bank.

¶ 23. Mrs. Cook told Vance about all three of her children and particularly the nature of the relationship she had with each of them. , Mrs. Cook knew that John would benefit from this legal action and that he would own all of the property. Vance also explained other alternatives such as granting a life estate. Mrs. Cook knew that Camille had access to her bank funds and that John handled her other financial matters. Vance verified that Mrs. Cook wanted to give complete control of her assets to John by revoking Camille’s power of attorney and giving John a power of attorney, a durable power of attorney for health care, a living will, and a deed to the entire property.

¶ 24. There was no error in the chancellor’s finding that Mrs. Cook, though dependent on others for her care, made her own intentions and pursued having those intentions fulfilled.

(3) Independent consent and action

¶25. This consideration has changed somewhat as the caselaw has developed, such that the factors that had initially been outlined for “independent advice” are no longer to be applied in determining whether a presumption of undue influence has been rebutted. The only analysis required is whether the grantor, Mrs. Cook, exhibited independent consent and action. Wright, 797 So.2d at 1002. The chancellor actually found more than was required when she determined that independent advice had been obtained. The attorney Vance testified that he took precautions to ensure John Cook was not near his mother when discussions were taking place about what legal action Mrs. Cook wanted Vance to accomplish on her behalf. Vance testified that he and Mrs. Cook spoke of her past and carried on a normal conversation while discussing her intentions. He questioned Mrs. Cook extensively about what she wanted to do, why she wanted to do it, and if John Cook had influenced her in anyway in making these decisions.

¶26. Vance, an experienced attorney, was fully satisfied that Mrs. Cook was acting on her own free will. Vance testified that at all times his only interest was in helping Mrs. Cook perform the legal work she wanted to accomplish. Vance testified that he went over each document line by line and asked Mrs. Cook if she heard anything she did not like or if she wanted to change anything.

¶27. Camille Robinson presented evidence that Vance had performed legal work for John Cook’s daughters at some point and that Vance and John went to the same church in the 1970’s. Vance testified that he had not realized these were John’s daughters due to their different last names. Vance also testified that the relationship he had with John Cook was exemplified by nothing more than casual greetings while in church thirty years earlier. John Cook testified that he named at least four attorneys, all of whom had performed legal work for Mrs. Cook or John in the past, and that Mrs. Cook selected Vance.

¶ 28. In addition, a guardian ad litem was appointed for Mrs. Cook. The guardian visited with her on September 24, 2003. The guardian reported that Mrs. Cook wanted to stay where she currently lived and also described her three children. The guardian explained the alleged improper transfers of money. Mrs. Cook responded that “it was alright that John transferred the money to his account as he needs something to take care of me.” Mrs. Cook recalled something about a deed or “paper” that divided her property but she could not remember when that had been executed. Mrs. Cook knew that John took care of her and that a medical person would come each morning to bathe her.

¶29. The record reflects that Mrs. Cook relied upon her son John for her daily care. Mrs. Cook revealed her high level of trust in John by allowing him to make business decisions and ensure that she would be able to live out her days in this home. John has demonstrated his commitment to his mother by looking after her for many years. The medical personnel that assisted Mrs. Cook and Mrs. Cook’s attorney thought she was well treated and that her condition of care was adequate.

¶ 30. This would appear to be a suit in which siblings in good faith, but also with some intensity, disagreed over what was best for their mother and about each other’s motives. A court of equity was called upon to examine the evidence that each wished to present on the issues and determine which view was correct. There was substantial evidence to support the court’s findings. We affirm.

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

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


text:
    Antonio HARRIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02328-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.

      Whitman D. Mounger, Greenwood, attorney for appellant.
    Office of the Attorney General, by W. Daniel Hinchcliff, attorney for appellee.
    Before MYERS, P.J., IRVING, CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Antonio Harris was found guilty of manslaughter after a trial in the Circuit Court of Leflore County and sentenced to twenty years in the custody of the Mississippi Department of Corrections. Harris appeals, arguing that (1) the trial court abused its discretion in allowing the testimony of Ashley Smith; (2) the trial court erroneously denied his motion for a JNOV; and (3) the trial court erroneously denied his motion for a new trial.

FACTS

¶ 2. Harris was romantically involved with Julisa Smith, with whom he had several children. Harris was aware that Smith had another paramour, Ronald Dates. On the evening of April 23, 2003, Harris shot and killed Dates during an encounter at Smith’s apartment in Greenwood, Mississippi. At his murder trial on July 13-15, 2004, Harris asserted that he had killed Dates in self-defense. However, testimony from Smith and her daughter contradicted Harris’s assertion.

¶ 3. Smith testified that she witnessed part of the fatal encounter. Smith related that, on the evening of April 23, 2003, she put her children to bed at her second-floor apartment. Dates called and said he was coming over. Smith heard a knock at the door and unlocked it, believing that the visitor was Dates. However, Harris entered. In the living room, Harris began berating Smith about not returning his phone calls. After several minutes, Dates entered, carrying a package of food. Without speaking to Harris, Dates walked through the living room, into the kitchen, and placed the package on the counter near the microwave. While Harris and Smith were talking, Dates briefly walked into the living room and back into the kitchen. Then, Harris pulled a gun from underneath his shirt and walked over to Dates. Harris’s back was facing Smith, and Smith heard three gunshots. In the midst of the shots, she observed Harris and Dates struggling with their hands on each other’s arms. In the struggle, Dates was trying to take the gun. Smith saw Dates begin to fall. Then, Dates told Smith to run. Smith left the apartment and ran down the staircase outside. She heard two or three more shots and yelled to her neighbors to call the police. Smith testified that, before Harris shot Dates, Dates had not spoken to Harris or done anything else to provoke Harris’s ire.

¶4. Smith’s eleven-year-old daughter, Ashley Smith, testified that she also witnessed the shooting. According to Ashley, after her mother put her to bed, she crept out to the hallway and lay down on the floor. Ashley stated that, from her vantage point, she could see parts of the living room and the kitchen. She saw Harris arrive and begin talking to Smith about not returning his calls. Then, Ashley saw Dates come in and place his food next to the microwave. Ashley saw Harris walk up behind Dates, pull out a gun, and shoot him. After the first shot, Dates yelled for Smith to leave and tried to take the gun from Harris, but Harris shot him again. Then, Dates dragged himself to the hallway. He saw Ashley. Harris grabbed Dates’s feet and dragged him outside. Ashley hid inside a hall closet. While in the closet, Ashley heard the thumping sound of Harris dragging Dates down the stairs. Then, Ashley closed the front door and called the police. She heard a noise, looked out the window, and saw Dates dragging himself up the stairs to the neighbors’ door and begin knocking on the door. Ashley opened her front door and Dates told her to go back inside. Ashley stated that she heard over seven gunshots in all. She admitted that she had told the police that Harris shot Dates again at the bottom of the stairs. Both Smith and Harris testified that they did not see Ashley in the hallway.

¶ 5. Shanina Johnson testified that she lived on the second floor across from Smith’s apartment. Johnson stated that, on April 23, 2003, she heard gunshots. When the shooting stopped she looked out of the window and saw Smith running around on the first floor yelling “call the police.” She heard someone knocking on the door, opened it, and saw Dates lying on the doorstep. She saw Ashley come outside and then go back into the apartment.

¶ 6. When the police arrived, Dates was alive and was lying at the top of the staircase outside Smith’s apartment. Dates died shortly after being taken to the hospital. An autopsy confirmed that he received seven .380 gunshot wounds, including three fatal wounds to the chest. The state pathologist, Dr. Stephen Hayne, testified that the wounds were inflicted in a close-range conflict and demonstrated differing bullet trajectories, indicative of a struggle between Dates and the shooter. Dr. Hayne testified that the three fatal wounds caused massive internal bleeding. Dr. Hayne also testified that Dates has abrasions on his knees and back that could have been from being dragged down the stairs or from traveling up the stairs. The police found no evidence that Dates had been shot at the bottom of the stairs; the .380 pistol held seven rounds and all seven hulls were found inside the apartment.

¶ 7. Harris testified. He admitted to having shot Dates, but stated that he did so while in fear for his life. Harris related several prior encounters with Dates that contributed to his fear. When Harris visited Smith’s apartment one night in October 2002, Dates charged out of a bedroom, placed Harris in a choke hold, and threw him down. Dates held Harris in the choke hold until the police arrived. Harris testified that while in the choke hold his vision was going in and out, he urinated and defecated on himself, spit up blood, and thought he was going to die. Harris stated that the animus between himself and Dates had existed since 1991, when Dates swerved his car at Harris as Harris walked down the street. In 1992, Dates spoke threateningly to Harris at a club. In 1995, Harris was talking to people at a club when Dates approached him from behind, knocked him down, and attempted to beat him up but was stopped by other patrons. In 1998, Harris came out of a club and Dates was waiting beside his car; Harris felt threatened and walked in the other direction. Harris stated that Dates was stronger than he. Harris was approximately five feet, eight inches tall and Dates was approximately six feet tall. Several witnesses testified that Dates had a reputation in the community as a violent, intimidating person.

¶ 8. Harris testified that, after the October 2002 choking incident, he brought his .380 pistol for protection from Dates every time he visited Smith. Harris testified that, on April 23, 2003, he visited Smith to find out why he had not been able to reach her by phone for the past few days. Harris stated that he was worried about his children and thought Ashley had called him from school that day. Harris stated that Dates arrived and placed his food in the kitchen while Harris and Smith talked. While Harris’s back was facing Dates, Harris saw Smith’s eyes widen. He turned around and Dates was coming at him. Dates tried to grab Harris’s head, but Harris ducked and they began tussling in the kitchen area. Harris, thinking Dates was trying to put him in a deadly choke hold, grabbed his gun and started firing. Dates fell to the floor. Harris tried to leave, but Dates “popped up on one knee” and renewed the attack. Harris fired the remaining rounds, thinking the shots had missed Dates because Dates kept fighting. Harris stated that his intent was not to kill Dates, but to repel him. Then, Harris backed out of the apartment with the gun pointed at Dates. Dates followed him. Harris backed down the stairs and Dates lunged at him; Harris fired the gun again but was out of bullets. Dates fell down on the stairs and grabbed Harris’s leg. Harris hit Dates on the head twice with the gun and Dates released Harris’s leg. Harris departed and saw Dates walk back up the stairs, cursing.

¶ 9. After the shooting, Harris fled to Jackson, Mississippi. The next day, his sister picked him up and he turned himself in to the authorities. Harris left the .380 pistol in his sister’s car and she turned it over to the police. It was stipulated that the pistol was the one used in the shooting.

¶ 10. The jury found Harris guilty of manslaughter.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRONEOUSLY ALLOWED THE TESTIMONY OF ASHLEY SMITH OYER HARRIS’S OBJECTION.

¶ 11. Harris argues that the trial court abused its discretion in failing to exclude Ashley’s testimony due to a violation Mississippi Rule of Evidence 615, the witness sequestration rule. Mississippi Rule of Evidence 615 provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose •presence is shown by a party to be essential to the presentation of his cause.

Rule 615 is frequently termed “the Rule.” Brown v. State, 682 So.2d 340, 347 (Miss.1996).

¶ 12. The Rule 615 problem came to light during a break in the testimony of Ashley’s mother, Julisa Smith. Smith was under oath and the Rule had been invoked. Ashley was yet to testify. Defense counsel advised the court that, during the break, he had observed Smith and Ashley speaking together in a conference room outside the courtroom. The prosecutor also saw Smith and Ashley together. The court took an overnight recess and instructed Smith that she could talk to her daughter, but not about the case. Smith’s testimony resumed the following day. Before Ashley’s testimony, the court conducted witness voir dire of Ashley.

¶ 13. Upon questioning by the court, Ashley indicated that she knew the difference between the truth and a lie. But during subsequent questioning by both the court and defense counsel, Ashley denied that her mother was in the conference room with her the previous day. She further denied having talked to Smith about Smith’s testimony. Then, the prosecutor questioned Ashley and the following colloquy occurred:

Q. Ashley, do you remember yesterday when you were down there in the room?
A. Yes.
Q. And remember when I came down there?
A. Yes.
Q. Was another person in the room when I came down there?
A. Yeah.
Q. Who was that?
A. My mama.
Q. And what was she doing when she was out there?
A. Nothing, but looking out the window.
Q. Okay. And did she do something else while she was down there? Because you reached for it to take something out of her hand. What did you take out of her hand?
A. Her purse.
Q. Okay. And why were you trying to take her purse out of her hand?
A. Playing with stuff she got in her purse.
Q. And I asked her for some gum. Do you remember that?
A. Yes.
Q. Okay. And she had something in her hand. Do you remember what she had in her hand?
A. ■ Yeah.
Q. What?
A. A card.
Q. Okay. And what else did she have?
A. That’s it.
Q. Does your mother smoke?
A. Yeah.
Q, Did she smoke that day?
A. No.
Q. Okay. And during the time that you were down there with her, did you talk to her at all while you were down there?
A. Yeah.
Q. And when y’all were down there talking, did y’all talk at all about what had happened on the night that Ronald was killed?
A. No.
Q. And did you know whether your mother had testified at that point? Did you know if your mother had come in the courtroom?
A. Yeah.
Q. She had come in the courtroom?
A. Uh-huh.
Q. And did she say anything to you about what she had said in the courtroom?
A. No.
Q. Okay. Did you ask her what happened when she was in the courtroom?
A. No.
Q. Do you know when your mother was in the courtroom, did anybody ask her any questions or anything?
A. Yeah.
Q. And how do you know that?
A. Because that’s what lawyers do.
Q. Okay. Did she tell you what questions people asked her?
A. No.

¶ 14. After the voir dire, defense counsel moved to exclude Ashley’s testimony. Defense counsel argued that he could not meaningfully cross-examine Ashley since she had lied to the court and to defense counsel about having been in the room with her mother. Then, the following occurred:

BY THE COURT: I think, counsel, I don’t know if it’s because she’s the prosecutor, or she’s a woman, or what it may be, but there may be another reason just other than what you think.
BY MR. ROYALS, Well, whatever the reason is, though, it’s obvious that she’s not going to even admit anything, or answer truthfully in any way, to what we ask her whether I’m a man — because I’m a man or not, a defense attorney, or whatever, and that means that we are going to put a witness on the stand who has demonstrated to the court and to all counsel that she will not answer truthfully.
BY THE COURT: Counsel.
BY MR. ROYALS: Yes, sir.
BY THE COURT: We’ve already been over that she’s afraid to be here.
BY MR. ROYALS: Yes, sir.
BY THE COURT: We had to put a screen up for her to be here. She is 11 years old.
BY MR. ROYALS: Yes, sir.
BY THE COURT: She’s in the middle of a courtroom full of people that she’s never seen before. She’s around adults she’s never seen before.
BY MR. ROYALS: Yes, sir.
BY THE COURT: I would imagine, I would imagine, she’s apprehensive.
BY MR. ROYALS: I would, too.
BY THE COURT: So here’s what we’re going to do.
BY MR. ROYALS: Yes, sir.
BY THE COURT: I’m going to find that there has not been any prejudice under 615. I’m going to let her testify. We’re going to see how it goes, and I’m going to allow you as much as you can on cross-examination. We may have to get into any other statement she may have made. I don’t know. I don’t know if she’s made any other statements. I have no idea.

¶ 15. On appeal, Harris argues that trial court erred in failing to exclude Ashley’s testimony. In the seminal case applying Rule 615, Douglas v. State, 525 So.2d 1312 (Miss.1988), the court observed that witness sequestration is a matter of right except for the three categories of witnesses listed in the Rule. Rule 615 has a twofold purpose; it “exercises a restraint on witnesses ‘tailoring’ their testimony to that of earlier witnesses and it aids in detecting testimony that is less than candid.” Id. at 1316. In Douglas, the court held that, where the Rule had been invoked at the beginning of the trial, it was error under Rule 615 for a sheriff to remain in the courtroom during a trial and to then testify in rebuttal. Id.

¶ 16. The court discussed remedies for violations of the Rule. A witness’s failure to comply with a sequestration order does not automatically render -the witness’s testimony inadmissible. Rather, the decision to exclude the witness’s testimony rests within the trial court’s sound discretion. Id. at 1317. Exclusion of the testimony is a “serious sanction,” and appropriate only where probable prejudice would result to the other party. Id. The more appropriate sanction is to allow the other party “full bore” cross-examination of the witness on the facts of the Rule violation. Id. If prejudice is only a possibility, the trial court may instruct the jury that it should consider the Rule violation in evaluating the credibility of the witness. Id. On appeal, the failure of the trial judge to order a mistrial or to exclude testimony “will not justify reversal ... absent a showing of prejudice sufficient to constitute abuse of discretion.” Id. at 1318.

¶ 17. In Douglas, one Rule 615 violation at issue involved the courtroom presence of a rebuttal witness after the invocation of the Rule. Douglas also discussed a situation akin to the one we face today, in which prospective witness Ashley was not in the courtroom during other witness testimony, but in which Smith and Ashley were closeted together during a break in Smith’s testimony. In Douglas, three rebuttal witnesses were not in the courtroom, but Douglas argued that the district attorney had gone into the witness room and related trial testimony to the three witnesses. Id. On cross-examination, all three witnesses testified that the district attorney had told them what Douglas and his witnesses had testified about. Id. Upon Douglas’s objection, the State contended that it had merely prepped the witnesses and had not told them what to say. Id.

¶ 18. The court stated that the purpose of the Rule is to ensure that witness testimony will not be affected by that of other witnesses, and that the Rule is indirectly circumvented when someone relates trial testimony to witnesses outside of the courtroom. Id. at 1319. On the other hand, the court observed, attorneys need to consult with their witnesses in preparation. for their testimony. Id. The court stated that, when the Rule has been indirectly circumvented, the trial court should undertake the same determinations and considerations as it does for a direct violation of the Rule. Id. Further, the court warned, while prepping witnesses, attorneys must be careful not to indicate specifically what other witnesses have testified about. Id. Notably, the court held that, because Douglas’s attorney cross-examined each witness. as to the facts of the violation of the Rule, the issue of the credibility of the witnesses as to their rebuttal testimony was before the jury and there was insufficient prejudice to Douglas to mandate reversal. Id.

¶ 19. In this case, the purported Rule violation was not that an attorney had informed Ashley about Smith’s testimony, but that Smith might have informed Ashley about it when she was closeted with Ashley during a break in the testimony. We find that the trial judge did not abuse his discretion in deciding not to exclude Ashley’s testimony, but instead to allow Harris to conduct full-bore cross-examination of Ashley. There was no showing that Smith had actually told Ashley anything about her testimony. Harris argues that Ashley’s untruthfulness on questioning by defense counsel rendered effective cross-examination by defense counsel an impossibility. However, during cross-examination, Harris questioned Ashley about the meeting with Smith and Ashley’s untruthfulness about the meeting during the witness voir dire. Thus, the jury was squarely faced with both the issue of Ashley’s truthfulness about not having discussed Smith’s testimony in the conference room and the issue of Ashley’s having lied to the court and defense counsel about having met Smith in the conference room. As in Douglas, this information equipped the jury to effectively evaluate Ashley’s credibility. Id.

¶ 20. Harris also argues that he suffered probable prejudice because it was manifest from Ashley’s initial untruthfulness about the meeting with Smith that Ashley also lied when she denied that Smith told her about Smith’s testimony. We find that the trial court, having observed Ashley’s demeanor on the witness stand, was better placed to assess the import of Ashley’s untruthfulness during voir dire. As illustrated by the trial transcript, the court reasoned that a motivation such as fear of the courtroom setting might initially have induced the eleven-year-old Ashley to lie. Ashley subsequently admitted having met with her mother when questioned by the State. These facts evince no more than a possibility of prejudice that was met by Harris’s full-bore cross-examination of Ashley. We find that Harris has not shown prejudice sufficient to render the trial court’s ruling an abuse of discretion.

II. WHETHER THE TRIAL COURT ERRED IN DENYING HARRIS’S MOTION FOR A DIRECTED VERDICT, REFUSING TO GRANT HARRIS’S REQUEST FOR A PEREMPTORY INSTRUCTION, AND DENYING HARRIS’S MOTION FOR A JNOV.

¶ 21. A motion for a directed verdict or a JNOV or a request for a peremptory instruction attacks the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). Each of these challenges requires the appellate court to consider the propriety of the trial court’s ruling based upon the evidence before the court when made. Id. Thus, we “properly review[ ] the ruling on the last occasion the challenge was made in the trial court.” Id. Harris last challenged the sufficiency of the evidence with his motion for a JNOV.

¶22. In reviewing the denial of motion for a JNOV, this Court views the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 843(1116) (Miss.2005). We will affirm if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. “Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.” Harveston v. State, 493 So.2d 365, 370 (Miss.1986).

¶ 23. The jury found that Harris’s conduct met the elements of heat of passion manslaughter. Mississippi Code Annotated section 97-3-35 (Rev.2000) provides, “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.” The jury was also instructed on the elements of self-defense. Mississippi Code Annotated section 97-3-15(l)(f) (Rev.2000) states that the killing of a human being is justifiable “[wjhen committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.” When self-defense is raised, the State bears the burden of proving beyond a reasonable doubt that the defendant was not acting in necessary self-defense. Heidel v. State, 587 So.2d 835, 843 (Miss.1991).

¶ 24. Harris argues that there was insufficient evidence adduced at the trial to permit a reasonable jury to find that his slaying of Dates was “not in necessary self-defense” as required by section 97-3-35. In furtherance of this argument, Harris discusses the evidence supporting a finding of self-defense. Harris points to his own testimony that Dates was the aggressor, that Dates tried to put Harris in a choke hold, and that he shot Dates while in fear for his life. Harris argues his fear was reasonable based upon his past encounter with Dates when Dates placed Harris in a choke hold, causing Harris to spit up blood, to lose bowel and bladder control, and to think he was going to die.

¶25. Harris further argues that the physical evidence supported his version of the encounter. It was established that seven hulls from Harris’s .380 pistol came to rest on the floor in a pattern largely consistent with Harris’s description of his scuffle with Dates, and that any inconsistencies could have been explained by the hulls having been kicked across the floor during the scuffle. Dr. Hayne testified that, after the gunshot wounds were inflicted, Dates would have been able to carry on “purposeful activity” like walking and running and could have survived for ten to twenty minutes. This evidence supported Harris’s testimony that Dates continued attacking him after having been shot and that Harris therefore thought his gunshots -had missed Dates. Finally, Harris argues that Smith was an incredible witness due to her several convictions for credit card fraud and that Ashley was incredible due to her lies during the witness voir dire. Harris also established that Ashley had made prior inconsistent statements to the police and during an interview with defense counsel.

¶ 26. Viewing the evidence in the light most favorable to the verdict, we find that the evidence was sufficient to enable a reasonable jury to reject Harris’s self-defense theory and to find Harris guilty of manslaughter. Smith and Ashley both related that they saw Harris approach Dates, draw his gun, and begin shooting Dates. Smith and Ashley testified that Harris, not Dates, was the aggressor. While the physical evidence was somewhat consistent with Harris’s version of events, it was also consistent with the testimony of Smith and Ashley, creating a fact question for the jury. And, the credibility of Smith and Ashley was thoroughly explored by both Harris and the State. The weight to assign their testimony was a matter properly resolved by the jury. Harveston, 493 So.2d at 370. The jury was entitled to accept the testimony of Smith and Ashley and to reject that of Harris.

¶ 27. We further observe that, from the fact that Harris shot Dates seven times, a reasonable jury could have found that Harris initially shot Dates in self-defense but at some point his continued shooting became unnecessary. See Carter v. State, 858 So.2d 212, 215(¶ 7) (Miss.Ct.App.2003) (This Court stated that the reasonableness of a defendant’s actions is usually for the fact-finder “because the assessments of the level and imminence of the threat to the defendant’s physical well-being and the appropriateness of the defendant’s level of response to the perceived danger require interpretation and analysis of the peculiar set of facts presented in a particular case.... ”). There was sufficient evidence to support the verdict.

III. WHETHER THE TRIAL COURT ERRED IN DENYING HARRIS’S MOTION FOR A NEW TRIAL.

¶ 28. The weight of the evidence is challenged by a motion for a new trial. In reviewing the denial of a motion for a new trial, we “must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Collins v. State, 757 So.2d 335, 337(¶ 5) (Miss.Ct.App.2000). We give the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. We will reverse only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Id.

¶ 29. Harris makes essentially the same arguments to support this assignment of error as those supporting his assertion that the evidence was insufficient to support the verdict. Considering the evidence discussed above and.giving the State the benefit of all reasonable inferences to be drawn from the evidence, we find that the jury’s returning a manslaughter verdict was a reasonable conclusion. We find that the verdict was not against the overwhelming weight of the evidence and that Harris was not entitled to a new trial.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

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


text:
    Robert Earl ANDREWS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00899-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.

      Robert Earl Andrews, pro se.
    Office of the Attorney General by Deirdre McCrory, J.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Robert Earl Andrews, pro se, appeals the Circuit Court of Marion County’s dismissal of his motion for post-conviction relief. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2003, Robert Andrews pleaded guilty to one charge of sale or transfer of a controlled substance and was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections, with twelve years to serve, eight years suspended, and five years of post-release supervision. In March of 2005, Andrews filed a motion for post-conviction relief in which he asserted (1) that his guilty plea had not been made knowingly and voluntarily; (2) that he had received ineffective assistance of counsel; (3) that his indictment was fatally defective; (4) that his sentence was excessive and disproportionate; and (5) that section 47-7-34 of the Mississippi Code (Rev. 2004), which authorizes trial courts to impose upon convicted felons a term of post-release supervision, is unconstitutional. On March 31, 2005, the Circuit Court of Marion County dismissed Andrews’s motion for post-conviction relief; Andrews subsequently perfected his appeal to this Court.

STANDARD OF REVIEW

¶ 3. We will reverse a trial court’s denial of post-conviction relief only upon a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (113) (Miss.Ct.App.2002).

ISSUES AND ANALYSIS

I. WHETHER ANDREWS’S GUILTY PLEA WAS ENTERED KNOWINGLY AND VOLUNTARILY

¶ 4. Andrews claims that his guilty plea was involuntary because he was misled and coerced by his attorney into making his plea. Specifically, he claims that his attorney made a “firm representation” that he would receive a sentence of only five years upon entering a guilty plea. Furthermore, Andrews asserts that he was told by defense counsel to lie at the plea hearing, i.e., to represent that he had been promised nothing when he had in fact been promised a lenient sentence. Andrews does not claim that his plea was defective for any other reason. We find that the record proves these contentions to be without merit.

¶ 5. While Andrews now claims that he was misled by his attorney and coerced into making a guilty plea, he made it clear to the trial court that the decision to plead guilty was his own:

COURT: So now has anyone told [you] that if you will get up here and plead guilty I’m going to give you a particular sentence, length of sentence, kind of sentence or anything like that ... Robert, have they told you?
ANDREWS: No.
COURT: Anybody at all done anything by way of mistreatment, abuse, coercion, intimidation, threats, promises, pressure or telling you something we haven’t been over today or just anything that’s caused you to enter your pleas of guilty?
ANDREWS: No, sir.
COURT: So /all have had an opportunity to talk about the case with whoever you wanted to. But is anybody including /all’s attorneys putting any pressure on you or trying to talk you into entering any plea?
ANDREWS: No.
COURT: Now, when ... you are arraigned and enter whatever plea that you want to enter, are you telling me under oath that that plea will be by your own decision?
ANDREWS: Yes, sir.
COURT: And will it be entered by ... you freely and voluntarily?
ANDREWS: Yes, sir.

¶ 6. Furthermore, the trial court very clearly explained to Andrews that, upon his entry of a guilty plea, he could be sentenced from zero to thirty years in the custody of the Mississippi Department of Corrections and fined between $5,000 and $1,000,000. See Miss.Code Ann. § 41-29-139(b)(1) (Rev.2005). Andrews acknowledged this not only in open court, but also in his sworn petition to plead guilty. Though Andrews claims he was given a “firm representation” that he would receive a sentence of only five years, the record shows he was informed that he could be subject to a significantly greater sentence.

¶ 7. This Court gives great weight to statements made by a defendant under oath and in open court. See, e.g., Vandergriff v. State, 920 So.2d 486, 490 (¶ 7) (Miss.Ct.App.2006). The trial court time and again asked Andrews if his plea was entered voluntarily, whether he had been made any promises of leniency, and whether he had been coerced in any way. Given more than ample opportunity to inform the court of any coercion or promises of leniency, Andrews repeatedly claimed that he made his plea voluntarily. Nothing in the record demonstrates that Andrews’s plea was anything but voluntary; therefore, we find this issue to be without merit.

II. WHETHER ANDREWS WAS AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL

¶ 8. Andrews also claims that his counsel was deficient in that he instructed Andrews to lie during the plea proceedings, informed him that a plea agreement had been reached wherein Andrews would receive a mere five years in prison, and failed to make a reasonable investigation into the facts of the case.

¶ 9. The test for ineffective assistance of counsel is stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant bears the burden of establishing ineffective assistance of counsel, and he must show that (1) defense counsel’s performance was deficient when measured by the objective standard of reasonable professional competence, and (2) that the defendant was prejudiced by counsel’s failure to meet that standard. Pleas v. State, 766 So.2d 41, 42 (¶ 3) (Miss.Ct.App.2000) (citing Wiley v. State, 750 So.2d 1193, 1198 (¶ 11) (Miss.1999)). When, as here, the defendant entered a guilty plea, the question is whether “there is a reasonable probability that had counsel’s assistance been effective, he would not have pled guilty, but would have insisted on going to trial.” Id. at 43 (¶ 7) (citing Bell v. State, 751 So.2d 1035, 1038 (¶ 14) (Miss.1999)). “He must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different.” Ford v. State, 708 So.2d 73, 75 (¶ 8) (Miss.1998).

¶ 10. As stated above, it is clear from the record that Andrews made his plea knowingly, voluntarily, and intelligently, and on more than one occasion testified that he had not been induced or coerced into pleading guilty. Additionally, it is clear that Andrews knew he could be subject to a sentence of up to thirty years, along with a substantial fine. Therefore, we find that Andrews’s first two assertions of ineffective assistance of counsel are clearly without merit.

¶ 11. While Andrews claims that his attorney failed to conduct an adequate investigation, nowhere in his motion or appellate brief has he stated how additional investigation by his counsel would have changed his decision to plead guilty. Furthermore, during the plea hearing, Andrews never asserted his innocence, and in fact testified that he sold cocaine to a confidential informant on April 19, 2000. This being the case, we find that Andrews has not carried his burden of proving that ineffective assistance of his counsel led him to plead guilty when he otherwise would have asserted his innocence.

III. WHETHER ANDREWS’S INDICTMENT WAS FATALLY DEFECTIVE

¶ 12. Andrews claims that the indictment charging him with the sale of cocaine was fatally defective because, while the indictment alleged that Andrews sold 0.3 grams of cocaine, he pled guilty to the sale of 0.6 grams of cocaine. Andrews’s claim is frivolous, as it is clear that an indictment charging the sale of cocaine pursuant to section 41-29-139 need not state the amount of cocaine allegedly sold. Waites v. State, 872 So.2d 758, 759 (¶ 7) (Miss.Ct.App.2004). Regardless, Andrews waived appeal of this issue via the entry of his guilty plea. See Brooks v. State, 573 So.2d 1350, 1355 (Miss.1990) (holding all non-jurisdictional defects waived by knowing and voluntary guilty plea); Ramage v. State, 914 So.2d 274, 278 (¶ 10) (Miss.Ct.App.2005). This issue is without merit.

CONCLUSION

¶ 13. Finding all of Andrews’s claims to be without merit, we affirm the judgment of the Circuit Court of Marion County dismissing Andrews’s motion for post-conviction relief.

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

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

      . Andrews failed to present this issue to the circuit court in his motion for post-conviction relief; accordingly, he may not raise this issue for the first time on appeal. See Black v. State, 919 So.2d 1017, 1019 (¶ 6) (Miss.Ct.App.2005).

      . As Andrews concedes in his appellate brief that section 47-7-34 is in fact constitutional, we will not address this issue on appeal.


author: LEE, P.J.,

text:
    George E. STEWART, Appellant v. Teresa A. STEWART, Appellee.
    No. 2005-CA-00653-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.

      Carrie A. Jourdan, attorney for appellant.
    Mose Lee Sudduth, Columbus, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Teresa and George Stewart were married on August 25, 1997. Their only child, a daughter named Cassidy, was born June 1, 2001. George filed for divorce in April 2004 in the Clay County Chancery Court, alleging habitual drug use and habitual cruel and inhuman treatment. Shortly thereafter, Teresa filed an answer and counterclaim alleging habitual drunkenness and habitual cruelty. Both parties also alleged, in the alternative, irreconcilable differences. On April 28, 2004, the chancellor entered a temporary order splitting the custody between both parents, with Teresa having custody of Cassi-dy the first half of each month and George having custody the other half.

¶2. During the trial on September 22, 2004, both parties agreed to an irreconcilable differences divorce. In her opinion, entered December 10, 2004, and final judgment, entered on March 4, 2005, the chancellor awarded Teresa primary physical custody of Cassidy. The chancellor also awarded Teresa child support, awarded Teresa transitional alimony, and divided the assets. Aggrieved, George appeals to this Court asserting one issue, namely that the chancellor erred in awarding custody to Teresa.

STANDARD OF REVIEW

¶ 8. The standard of review in child custody cases is similar to the standard in most all domestic relations cases. A reversal is proper if the chancellor is manifestly in error or has applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). Appellate courts need only determine if the chancellor’s decision was supported by credible evidence or that the proper legal standard was applied. Lee v. Lee, 798 So.2d 1284, 1290(¶ 22) (Miss.2001).

DISCUSSION

I. DID THE CHANCELLOR ERR IN AWARDING CUSTODY TO THE MOTHER?

¶ 4. In his only issue on appeal, George argues that the chancellor erred in awarding custody of Cassidy to Teresa. Specifically, George claims that the chancellor made erroneous findings of fact and failed to properly apply the Albright factors. It is well settled that in child custody cases, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The factors used to determine what is in the “best interest” of a child with regard to custody are: (1) age, health and sex of the child; (2) determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parents and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id.

¶ 5. An appellate court must find a chancellor in error where the chancellor improperly considers and applies the Al-bright factors. Hollon v. Hollon, 784 So.2d 943, 946(¶ 11) (Miss.2001). In determining whether the chancellor abused his discretion in applying the Albright factors, the appellate court “reviews the evidence and testimony presented at trial under each factor to ensure [the chancellor’s] ruling was supported by record.” Id. at 947(¶ 13).

¶ 6. We must now review the evidence and testimony presented at trial under each Albright factor to determine whether the ruling by the chancellor was supported by the record.

Age, sex and health of the child

¶ 7. Cassidy was three years old at the time of the chancellor’s custody determination. The chancellor found that the sex and age of Cassidy favored Teresa. The only discussion as to Cassidy’s health was that she was underweight at birth. There was no testimony that she was unhealthy or had medical problems. The record supports the chancellor’s decision that this factor favored Teresa.

Continuity of care 'prior to the separation

¶8. Immediately after Cassidy’s birth, Teresa did not work, so she primarily cared for Cassidy. Teresa did return to work in order to ease financial burdens but still cared for Cassidy. George was involved in Cassidy’s care, but the chancellor found that this factor slightly favored Teresa. We find that this determination was supported by the record.

Parenting skills

¶ 9. Both parties appeared to be capable parents. George testified that Teresa was a capable parent. However, there was testimony that George spanked Cassidy on some occasions and would shut her in her room with pillows stuffed under the door to keep from hearing her cry. Also, there was testimony that George drove Cassidy on a three-wheeler as well as a riding lawnmower. During these rides, Cassidy did not wear any type of protection, and George had been drinking immediately pri- or. The chancellor found this factor to favor Teresa, and we find the record supports this decision.

Employment of the parent and responsibilities of that employment

¶ 10. George has had a steady job as a mechanic for the city of West Point for the past four years while Teresa has had numerous jobs since the birth of Cassidy. Although Teresa did have numerous jobs, she had been employed at the time of the trial for approximately six months. Both Teresa and George worked long hours but were able to adequately care for Cassidy. The chancellor weighed this factor in favor of both parents. We find evidence to support this determination.

Physical and mental health and age of the parents

¶ 11. At the time of the divorce, both parties were in their late thirties. There was no testimony that either parent suffered from medical or emotional problems. Although there were insinuations that George had a bad temper, the chancellor found this factor to favor both parents, and we agree.

Emotional ties of the parent and child

¶ 12. It is clear from the record that both parties love Cassidy and have a good relationship with her. The chancellor found this factor favored both parties, and we agree.

Moral fitness of the parents

¶ 13. Both Teresa and George admitted to past drug use and drinking. There was testimony that they decided to stop abusing drugs and alcohol once Cassidy was born, but they both occasionally lapsed back into their bad habits. However, both denied that they had been using illegal drugs after the separation. There was testimony that George was turning his life around and attending church, but this occurred after the parties separated. Both parties admitted to drinking alcohol socially. The chancellor found this factor to favor both parents, and we find this determination supported by the record.

Home, school and community record of the child

¶ 14. The chancellor found that there was no testimony in regards to this factor as the child was only three years old at the time of the divorce.

The preference of the child at the age sufficient to express a preference by law

¶ 15. As the child was only three years old at the time of the divorce, this factor does not apply.

Stability of the home environment

¶ 16. Since the temporary order, Teresa and George have been alternating weeks at the parties’ home. Teresa was living with relatives and George was living in an apartment at the workshop he owns. George owns the marital home, a mobile home located near his family members. The chancellor found this factor to favor George. We find sufficient evidence to support this decision.

Other factors

¶ 17. The chancellor found no other relevant factors.

¶ 18. The chancellor, in considering the Albright factors, awarded custody to Teresa. The chancellor made a comprehensive on-the-record finding, and we find this decision to be supported by the evidence. Thus, we affirm the award of custody to Teresa.

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

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