author: GRAVES, Justice, RANDOLPH, Justice,

text:
    Oliver JOHNS, Jr. v. STATE of Mississippi.
    No. 2003-CT-00716-SCT.
    Supreme Court of Mississippi.
    April 6, 2006.

      Oliver Johns, Jr., appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, Dee Bates, attorneys for appellee.
   ON WRIT OF CERTIORARI

GRAVES, Justice,

for the Court.

¶ 1. In November, 1996, Oliver Johns was convicted of aggravated assault in the Circuit Court of Pike County and was sentenced to twenty years in prison. Johns appealed the conviction, and the Court of Appeals affirmed the trial court. This Court denied the petition for writ of certiorari filed in Johns’s direct appeal.

¶ 2. Following the denial of his direct appeal, Johns filed a petition for post-conviction relief. We granted Johns’s petition for post-conviction relief. After an evidentiary hearing was held in the trial court, Johns’s motion for post-conviction relief was denied. Johns appealed the denial of his motion. The Court of Appeals affirmed the judgment of the trial court and denied rehearing on July 26, 2005. We granted Johns’s petition for writ of certiorari. We find that Johns did not receive constitutionally effective assistance of counsel. We reverse the judgments of the Court of Appeals and the Pike County Circuit Court, and we remand this case for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 3. On September 20, 1996, Oliver Johns was indicted by the Grand Jury of Pike County for the offenses of aggravated assault and shooting into a vehicle. The record reveals that the victim of the assault was shot in the finger and required stitches. Less than two months after he was indicted, Johns’s trial was held, and he was convicted of the aggravated assault. Johns was sentenced to serve twenty years in prison.

¶4. The aggravated assault for which Johns was convicted happened some time between 8:00 p.m. and 8:19 p.m. on March 28, 1996, according to the victim, Kendall Jefferson. At 8:19 that evening, the police received a call that there had been a shooting. Jefferson testified that Johns passed him at a park and then turned around and followed his car. When he and his passenger, Vincent Holloway, got to a stop sign, Jefferson noticed that the car was still behind him, and shots were fired. Jefferson testified that he did not see who was shooting, but he was certain the shots were fired from the vehicle behind him that was allegedly driven by Johns. Other witnesses to the shooting were Rushard Haynes, Jefferson’s cousin, who was driving the car that was immediately in front of Jefferson and who left the scene as soon as he realized that shots were being fired. The passenger, Vincent Holloway, has never been found.

¶ 5. As a result of the shooting, Jefferson’s finger was injured. He drove to the hospital immediately following the shooting. When officers arrived at the hospital, Jefferson would not cooperate with them by providing details about the shooting. When he decided to cooperate, he told them Johns was the shooter and proceeded to describe Johns’s car. An officer then went to Johns’s home, and Johns identified the car as his vehicle. The officer testified that when they examined Johns’s car, they found no gunshot residue, no bullets, no casings, no guns, no fingerprints, and no other evidence that a gun was even shot from the vehicle. There was only Jefferson’s testimony that the shots were fired from Johns’s vehicle. Johns testified he was at home with his young daughter at the time of the shooting.

¶ 6. The jury deliberated at length before they returned a verdict of guilty on the charge of aggravated assault. Interestingly, Johns was acquitted on the charge of shooting into a motor vehicle. Oliver Johns began serving his 20 year sentence in 1996.

¶ 7. Johns filed a direct appeal from the conviction of the trial court. The Mississippi Court of Appeals affirmed the conviction, and this Court denied certiorari. Johns v. State, 746 So.2d 947 (Miss.App.1999). Johns then filed an Application for PosWConviction Relief, and' we granted Johns’s application for the purpose of conducting an evidentiary hearing on the issue of whether he was denied effective assistance of counsel.

¶ 8. On February 18, 2003, an eviden-tiary hearing was held in the Circuit Court of Pike County. At the evidentiary hearing, three witnesses came forward to testify that they saw Johns with his one-year old daughter around the time of the shooting and that the two of them had walked to and from a nearby store during that time. These witnesses provided affidavits and testimony which verified that they were willing and available to testify at Johns’s trial, but were not contacted by Johns’s attorney regarding their testimony. John Jackson (Jackson) was Oliver Johns’s attorney. He testified at the evidentiary hearing strictly from his recollection. When asked if he made a search to try to find his file in Johns’s case when he became aware that the district attorney’s office wanted him to testify, his response was unequivocally “No.”

¶ 9. Jackson repeatedly stated he did not remember specific details regarding his representation of Johns. He did, however, remember (1) going to the scene of the shooting, and (2) talking to two people who may have been witnesses, but he did not remember who they were.

¶ 10. The trial court judge denied Johns’s motion for post-conviction relief, finding Jackson’s assistance was effective. In making this finding, the trial court judge relied on his personal knowledge of Jackson, stating “the trials that he’s tried in my court, there’s absolutely no doubt about John Jackson’s truth and veracity. I have yet to find John (Jackson) tell me anything that did not add up or ... wasn’t so.” Four months later, Jackson was indicted for the sale of marijuana within a correctional facility and was later convicted and sentenced to serve a term of three years in the custody of the Mississippi Department of Corrections. He is presently suspended from the practice of law, pending the appeal of his conviction. If his conviction is not overturned he -will be disbarred. Mississippi Bar v. Jackson, 904 So.2d 109 (Miss.2004).

¶ 11. Oliver Johns appealed the denial of his motion for post-conviction relief. The Court of Appeals affirmed the trial court. Johns filed a petition for writ of certiorari with this Court. We granted certiorari to finally determine the issue of whether Johns’s counsel was, indeed, ineffective. We turn now to a discussion of Jackson’s performance.

¶ 12. According to Johns, he retained the services of Jackson a few days after he was arrested. Johns approached Jackson at a retail store when he overheard him talking about a legal matter. Jackson did not have a law office, so all of the meetings with his client regarding his representation took place at either the courthouse or at McDonald’s. Vanessa Williams, Oliver Johns’s mother, provided testimony that she met Jackson once and asked him if he had an office. Jackson said he did not. She asked him for a business card, and Jackson said he did not have one. Williams then asked him how he could be reached, and Jackson told her he could not give her a number.

¶ 13. The day after meeting him at the retail store, Oliver Johns, Jr. met with Jackson at the local McDonald’s and employed Jackson by paying him $500.00. Johns recalled that this meeting with Jackson lasted less than forty-five minutes. The $500 attorney fee was paid by Johns for representation at a preliminary hearing; however, Jackson later called Johns and told him that the preliminary hearing was not important, so they would not have it. Oliver Johns provided testimony that he hired Jackson after he (Johns) had been indicted, arrested, and had bonded out of jail. That he charged him for a preliminary hearing means either that he did not even take the time to determine Johns’ had already been indicted, or he simply wanted cash. It is elementary that there is no necessity for a preliminary hearing after an indictment.

¶ 14. On October 1, 1996, ten days after Johns’s indictment, an order was entered that waived John’s preliminary hearing and set an omnibus hearing for October 10, 1996, nine days later. This October 1 order gave Jackson nine days to file any pre-trial motions on behalf of his client. In effect, Jackson was expected to properly investigate this case and uncover any evidence relating to Johns’s charges in only nine days.

¶ 15. Jackson did not take any action to delay the proceedings. After being hired to represent Johns, he had approximately fifteen days to obtain discovery from the prosecution, establish what the evidence was, investigate the case, and file pre-trial motions. Jackson testified regarding pretrial preparation:

Do you have a memory as you sit here today of discussing the discovery material that you got in this case with Mr. Johns?

A. I remember discussing the case in depth with him. But like I told you, I’ve tried over 100 cases since then and I don’t remember this particular day that I discussed this Mr. Johns, no, I do not.
Q. The physical evidence in this case, the photographs, the shell casings, when was the first time you ever showed those items to Mr. Johns?
A. I don’t remember.
Q. Did you ever take him to the crime lab to see.
A. No.
Q. Did you ever take him to the D.A.’s office?
A. No.
Q. Did you ever get prints made of the photographs that were in the D.A.’s possession?
A. Now that, I don’t remember.

¶ 16. A couple of days after the first meeting, Johns and his father, Oliver Johns, Sr. (Johns, Sr.) met with Jackson at McDonald’s. This meeting took place before the October 10 hearing. Johns, Sr. recalled that when he asked Jackson about the case, Jackson said that everything was going good. Jackson did not show them any documents related to the case, nor did he show them any evidence related to the case. In fact, Jackson informed them that the State had no evidence against Oliver Johns, Jr. At this meeting, Jackson asked for more money. Johns, Sr. paid Jackson another $1000.00.

¶ 17. Jackson next met with the Johns’ at the Courthouse on October 10, 1996, the day of the omnibus hearing. Johns, Sr. remembered Jackson telling him basically the same thing about the case — that it was going okay. He testified that at the time of the omnibus hearing he had already told Jackson that the alibi witnesses had information that would help them and that he and Oliver Johns had provided him with the witnesses addresses. Oliver Johns remembers that Jackson told him that the witnesses were not important. As was customary, Jackson requested even more money from the Johns’ and, this time, was paid $500.00.

¶ 18. Oliver Johns’s mother, Vanessa Williams, provided testimony that she met Jackson once because Oliver Johns had to pay more legal fees. She asked Jackson if he had spoken with the witnesses. Jackson told her he did not have any transportation at that time so he could not get around. He told her he was planning to borrow his girlfriend’s car and he would go see the witnesses then.

¶ 19. At the omnibus hearing on October 10, the matter was set for trial on November 8, 1996, less than a month later. Johns’s case moved from indictment to verdict in less than forty-nine days, and there is no evidence Jackson tried to contact Johns during that time. Vanessa Williams, however, tried to contact Jackson and was unable to locate him. Williams was able to obtain a contact number for Jackson from her son’s bail bondsman, so she called and left a message at the number. Williams testified that Jackson called her back that evening and was upset that she had called him at his girlfriend’s house. Jackson told her he would call her when he needed to talk to her.

¶ 20. On the eve of trial, November 7, 1996, Jackson called Johns. Jackson called Johns, Sr. at 9:00 p.m. and told them to meet him at McDonald’s because the trial was the next day. The Johns’ say that was the first time they knew there was a trial scheduled. Jackson, Johns, Sr., and Oliver Johns met at McDonald’s at about 10:00 p.m. At this meeting, the night before trial, John Jackson had no file and no documents and met with the Johns’ for about forty minutes. Both the Johns’ provided sworn testimony that Jackson never discussed anything about Oliver testifying in his defense, except to say that he could testify in his own behalf if he wanted to testify. He never showed Oliver Johns any discovery provided by the state, nor did he show him any evidence. In fact, Johns, Sr, said that Jackson never had any paperwork or documents either of the times they met with him.

¶ 21. Again, at McDonald’s, Jackson solicited even more money from the Johns’ and was paid another $500.00. Johns, Sr. testified that Jackson never had any paperwork, and that when he paid Jackson $500 that night, Jackson wrote him a receipt on a McDonald’s napkin.

¶ 22. Most importantly, at the last-minute meeting before trial, the Johns’ asked what progress Jackson had made in speaking with their alibi witnesses. Oliver Johns testified that Jackson assured them he would speak to the witnesses that night. Johns, Sr. recalled that Jackson said he had not gotten around to talking to any of the witnesses, but he would see what he could do before trial the next day. Jackson has a different version of these events. He says he had already talked to the witnesses that Johns asked him to talk to, so talking to anyone on the night before trial would have been defeating his purpose.

¶ 23. Jackson claims that during his investigation, he went to the scene of the crime and just walked around asking people if they knew what “went down” and what they knew about it. He stated that he did not necessarily know the names of the people, he just started asking. He also claimed to have asked some people from outside the area whom he thought might have been there or know something about it. Johns never claimed to have been at the scene of the crime; he claims to have been at home. If Jackson had done any independent investigation, then certainly one place to investigate would have been the place' where his client claimed to be — his neighborhood.

¶ 24. Next, Jackson claims he talked to two other people, but he doesn’t know who they were. His testimony was that he refused to rely on these witnesses because he did not believe they would provide truthful testimony. The three witnesses who testified at the evidentiary hearing say Jackson never talked to them. Therefore, no one, including Jackson, is certain of the identity of these two mystery people to whom Jackson allegedly spoke.

¶25. Johns claimed all along that he was home alone with his young daughter. At this time, Johns’s daughter was around 1 year old. At a minimum, the child’s mother should have been contacted. Jackson did not even do that.

¶26. The morning of trial, the Johns’ asked where the witnesses were. Jackson claimed that he spoke to one of the witnesses, and they could not help. The morning of the trial was the first time that Johns knew that no witnesses were going to be called on his behalf.

¶ 27. Before the jury was selected, Oliver Johns was advised that the prosecution would recommend a sentence of five to six years if he plead guilty. Jackson told him that the State had no evidence against him and that they would be able to win the case. Oliver Johns relied on this advice and went forward without accepting the plea.

¶ 28. Jackson’s performance at trial was less than stellar, so much so that Johns, Sr., left during his son’s trial to find another attorney. At another break, Jackson approached Johns, Sr. and asked him if he had any more money; Johns, Sr. went to the bank and got $500 for Jackson. After he returned and paid Jackson, his son was found guilty. The Johns’ then hired another attorney for further representation. The grand total paid to Jackson for his assistance was $3000.00.

DISCUSSION

¶ 29. On appeal, the appropriate standard of review for denial of post-conviction relief after an evidentiary hearing is the clearly erroneous standard. Reynolds v. State, 521 So.2d 914, 918 (Miss.1988). A finding of fact is “clearly erroneous” when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made. Bryan v. Holzer, 589 So.2d 648, 659 (Miss.1991) (citing UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 754 (Miss.1987)). “This Court must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact.” Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987) (citing Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983)). And, finally, the trial judge, sitting in a bench trial as the trier of fact, has sole authority for determining credibility of the witnesses. Mullins v. Ratcliff, 515 So.2d at 1189 (citing Hall v. State ex rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963)). This Court must examine assignments of error presented in light of the aforementioned principles.

¶ 30. A presumption exists that an attorney’s representation was competent, with a strong presumption that the conduct fell within the wide range of professional assistance. Hiter v. State, 660 So.2d 961 (Miss.1995)(citing Carney v. State, 525 So.2d 776, 780 (Miss.1988)). Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must first show that counsel’s performance was deficient, which requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The deficiencies of Attorney John Jackson must be measured within the totality of the circumstances. Hiter, 660 So.2d, at 965.

¶ 31. To overcome the presumption that counsel is competent, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Schmitt v. State, 560 So.2d 148, 154 (Miss.1990) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Similarly, according to Strickland, the defendant must show the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687, 104 S.Ct. 2052.

Deficient Performance

¶32. Johns asserts various errors that call into question the competence of his attorney. The burden of proving of these errors rests with Johns. Oliver Johns asserted many errors in his ineffective assistance claim. However, because the law requires that we measure performance within a totality of the circumstances, we will point out the deficiencies of Jackson’s performance in their entirety.

¶ 33. As the facts have shown, Jackson did not do much in the very short time he had to prepare for this trial. The record reveals that he met with Johns four times, and two of those meetings lasted less than forty-five minutes. It is abundantly clear to this Court that the primary purpose of the meetings with his client was not to conduct any pre-trial investigation or preparation, but to obtain cash from the defendant- and his family. All but one of these meetings occurred at McDonald’s, a public restaurant, without the privacy required to discuss with a client a case of this magnitude, let alone to maintain the integrity of the attorney-client privilege.

¶ 34. There is absolutely no documentary evidence that Jackson even undertook the minimal task of creating and maintaining a file on Oliver Johns. He admits that he got discovery from the state, but he never brought it to McDonald’s, nor did he ever bring any other sort of paper. Jackson never showed his client any documents or evidence related to his defense. Jackson cannot affirmatively state that he showed Johns any documents or even took time to prepare him for the trial. However, both Johns and his father remember that he did not. The only documents Jackson ever had were those other people had given him, discovery from the state and a list of witnesses from Johns. Jackson even admitted, and the record supports, that he did not file a single pre-trial pleading.

¶ 35. The Court of Appeals reasoned that John Jackson’s testimony at the evi-dentiary hearing contradicted many of the assignments of error that Johns alleged; particularly that Jackson only met with Johns a few times, that Johns never had the opportunity to review the discovery materials, that Jackson never discussed with Johns whether Johns would testify at trial, that Johns did not know when the trial would be held until the evening of the trial, and that Jackson failed to discuss trial strategy with Johns. Johns v. State, 925 So.2d 848 (Miss.App.2005). The Court of Appeals reasoned that Jackson “refuted each of these allegations, although he was unable to remember many of the details concerning his representation of Johns. The circuit court judge’s decision to hold Johns’s counsel to be effective was based largely on credibility.” Id. at 848.

¶ 36. We recognize that the trial judge, sitting in a bench trial as the trier of fact, has sole authority for determining credibility of the witnesses. Mullins, 515 So.2d at 1189. Jackson’s testimony was not reliable. The only fact of which Jackson was certain was that he did not remember. Jackson could provide testimony on his “standard procedure” when preparing for trial, but could hardly provide any specifics as to what he did when preparing for Johns’s trial. He testified strictly from his recollection, without the aid of any documents, and stated numerous times that he only vaguely remembered things or that he did not remember things at all. A finding of fact is “clearly erroneous” when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made. Bryan, 589 So.2d at 659 (citing UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 754 (Miss.1987)). We have a definite and firm conviction that a mistake has been made and find that the trial court judge’s reliance on Jackson’s testimony as credible is clearly erroneous.

¶ 37. The Johns family remembered things very well. Among the list of things they remembered were: each meeting they had with Jackson, giving Jackson the list of alibi witnesses, repeatedly asking Jackson whether he had spoken to the alibi witnesses, statements Jackson made regarding interviewing the witnesses, statements Jackson made regarding evidence that the State had, and when and how much Jackson was paid. The Johns’ had much invested in this trial. Oliver Johns, Jr. stood to lose his freedom, and his parents invested time, support and money into this trial. In light of these factors, it is clear they were extremely involved in their son’s defense and that their recollection of events was certainly sharper than Jackson’s.

¶ 38. Johns’s primary argument was that Jackson failed to interview the alibi witnesses that he provided Jackson before trial, which was, in effect, a claim that Jackson failed to perform the proper pre-trial investigation. “[A]t a minimum, counsel has a duty to interview potential witnesses and to make independent investigation of the facts and circumstances of the case.” Payton v. State, 708 So.2d 559 (Miss.1998)(citing Ferguson v. State, 507 So.2d 94, 96 (1987) (emphasis in original)). The decision not to interview witnesses, particularly your own, cannot be considered an effective strategic choice. When counsel makes choices of which witnesses to use or not to use, those choices must be based on counsel’s proper investigation. Counsel’s minimum duty is to interview potential witnesses and make an independent investigation of the facts and circumstances of the case. State v. Tokman, 564 So.2d 1339, 1342; Ferguson, 507 So.2d at 96.

¶ 39. Jackson did not meet the minimum duty required of him. Both Johns and his father agree Jackson was given the names and addresses of the alibi witnesses and was asked to contact those witnesses. In fact, they made several attempts to press him to do so. Johns testified Jackson told him the witnesses were not important, even though they remembered seeing Johns and his young daughter very close to the time the crime was committed. The Court of Appeals reasoned that “Johns’s attorney indicated that he had a very good reason for declining to interview these particular witnesses .... he believed the witnesses testimony was perjured testimony, based on the information Johns gave his attorney.” Johns, 925 So.2d at 846. There is a question as to how Jackson could have believed the witnesses testimony was perjured when he never talked to them, and the only information Johns gave him was the names and addresses.

¶ 40. Jackson claims he talked to two people that Johns brought to him, but he could not remember who they were. Neither of the Johns’ ever says that they brought any witnesses to Jackson, only that they provided him with the names and addresses. Jackson testified he believed those two people were of no help and were going to provide perjured testimony. Based on that, he did not speak to any more witnesses. Those two witnesses had absolutely nothing to do with the three alibi witnesses. In fact, Jackson was unable to identify those alleged witnesses.

¶ 41. This case closely resembles Payton v. State, 708 So.2d 559 (Miss.1998) In Payton, a private investigator was hired to investigate the background of a rape victim, but the attorney himself never talked to her (the victim). Id. at 562. He went to the scene of the crime, but did not take any photos. Id. He did not do any other investigation because he did not feel it necessary after the investigators had completed their jobs. Id. Payton, in his motion for post-conviction relief, asserted that the attorney should have tried to interview people at the scene and people who worked with the victim at her workplace who also had important information. We recognized there was no attempt to take statements from the homeowners at the scene of the incident or from the victim’s roommate. This Court reasoned that “such attempt had been made, these people could have been called to testify.... Even after two years of delay between the time of arrest and trial, Payton’s attorney failed to conduct a scintilla of discovery other than go to the crime scene one time and request the state to turn over it’s discovery.” Id.

¶ 42. Jackson failed to conduct any discovery other than his alleged visit to the crime scene and his request that the state turn over discovery. Assuming Jackson went to the scene, he went on a blind mission, looking for people who looked like they might have known something or seen something. There were homeowners on the street where the shooting occurred. As a matter of fact, some evidence was found in their yards. Jackson did not even talk to them about what they saw. Jackson knew that Johns was going to testify that he was at home with his daughter. That was Johns’s sole defense. However, Jackson never did an independent investigation of any area or individuals in relation to the alibi defense. The decision not to use the alibi witnesses was not based on proper investigation; it was not based on any investigation whatsoever. Jackson’s minimum duty was to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. He did neither.

¶ 43. “There is no question that the defendant is entitled to a basic defense.” Hill v. State, 850 So.2d 223, 226 (Miss.App.2003) (citing Triplett v. State, 666 So.2d 1356 (Miss.1995)). As to what a basic defense may entail, the language from the Triplett Court is instructive:

Basic defense in this case required complete investigation to ascertain every material fact about this case, favorable and unfavorable. It required familiarity with the scene, and the setting. It required through his own resources and process of the court learning the names of, and interviewing every possible eyewitness, and getting statements from each. It required prior to trial learning all information held by the state available to the defense through pre-trial discovery motions.

Triplett, 666 So.2d at 1361. The facts of this case clearly show this basic defense was not provided to Johns.

¶ 44. According to the dissent, we have failed to address the critical point that the jury did not convict Johns of shooting into a motor vehicle, and he was acquitted on that count. The dissent suggests that because Jackson assisted Johns in an acquittal, he could not have been ineffective. It certainly seems inconsistent that Johns could have been convicted for assault and yet acquitted on the charge of shooting into the vehicle. That would seem to suggest the victim was injured by some means other than a shot being fired into the vehicle. At the trial of this matter, no one testified that Oliver Johns fired any shots. The testimony from each witness was that they did not know nor could they determine who fired the shots. In fact, the police could not even determine that shots were fired from Johns vehicle at all. Jackson could literally have been asleep and still established this point. An equally plausible theory as to why he was convicted is that the evidence was insufficient to support a conviction on either of the two charges, and the jury compromised and convicted him on one of the charges.

¶ 45. Johns has met the first requirement of Strickland, as he has shown his counsel’s performance was deficient and that Jackson was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

Prejudice to the Defense

¶46. To overcome the presumption that counsel is competent, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Schmitt, 560 So.2d at 154 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). To show reasonable probability, the mover must merely show “a probability sufficient to undermine confidence in the outcome.” Davis v. State, 743 So.2d 326, 334 (Miss.1999)(quoting Mohr v. State, 584 So.2d 426, 430 (Miss.1991)). If Jackson had simply been prepared for the trial; if he had asked for more time to prepare instead of going forward in less than two months; if he had questioned the alibi witnesses that he should have questioned; if he had talked to the mother of Johns’s daughter; if he had taken time to prepare his client to testify; if he had done anything to help Oliver Johns there is certainly a reasonable probability that the outcome of the proceeding would have been different.

¶ 47. Having overcome the presumption of competent counsel, the defendant must now show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

¶ 48. Failing to find that Jackson’s performance was deficient, the court of appeals did not address Strickland’s necessary element that the defendant show that Jackson’s errors were so serious as to deprive him of a fair trial.

¶ 49. The testimony at trial showed that the aggravated assault for which Johns was convicted happened some time between 8:00 and 8:30. Reginald Nunnery, one of Johns’s neighbors, testified that he saw Johns with his daughter and invited them to a cookout. He asked Johns to go to the convenience store and purchase something for him. Johns walked to the convenience store and returned fifteen to twenty minutes later. Nunnery was sure he saw Johns after 8:00. Reginald Nunnery’s wife, Patricia, also testified that she saw Johns between 8:15 and 8:30 p.m. because she noted the time on her watch. Patricia Nunnery saw Johns after he arrived back at her house from the convenience store. Katie Magee, another neighbor, said she saw Johns coming from the direction of the convenience store shortly after 8:00 p.m. She remembered this because they were getting ready to celebrate a friend’s birthday that evening. Katie Magee had a conversation that lasted about three or four minutes with Johns, and she did not notice anything unusual about his demeanor or his behavior.

¶ 50. The trial court found the testimony of these witnesses suspicious based on the amount of time it should have taken the chicken to cook. Further, the trial court reasoned that because the alibi witnesses could not remember specific dates and times of events which occurred after the night they saw Johns, they must have faulty memories. The question is not whether they could remember when they signed affidavits or when they spoke to attorneys, the question is whether they could remember events that occurred at or about the time of the shooting. . Each could remember the date and the times they saw Johns. Each of these witnesses put Oliver Johns in his neighborhood with his young daughter during the time the crime was committed.

¶ 51. Had the witnesses been asked in October of 1996 if they remembered what happened in March of 1996, then certainly their recollection would have been fresher at that time. The determination to be made is whether these witnesses could have offered reliable testimony at the time they should have been asked.

¶ 52. The testimony of the alibi witnesses was not rebutted by the prosecution. The prosecution was successful in proving that the memory of the witnesses was faulty when remembering months and years that they spoke to attorneys regarding this incident and in remembering when they signed affidavits. However, at no time did the content of the affidavits come into question; at no time did the veracity of the witnesses come into question; at no time was it established that any of them had motive to do anything other than state the truth. Johns’s alibi defense raises an issue of fact to be resolved by the jury. Hughes v. State, 724 So.2d 893 (Miss.1998).

¶ 53. The dissent spends an inordinate amount of time pointing out flaws in the testimony of the alibi witnesses. The problem is not with what the witnesses said or did not say. The problem is that Jackson never talked to them. Johns was entitled to an alibi defense. The jury should have been given an opportunity to hear, assess, and evaluate the testimony of these alibi witnesses. That did not happen because Johns’s attorney was ineffective. Again, Johns’s alibi defense raises an issue of fact to be resolved by the jury. Id.

¶ 54. The failure to investigate this case by Jackson prejudiced Oliver Johns. The testimony of the alibi witnesses, coupled with the fact that there was absolutely no physical evidence to convict Johns, could very well have changed the outcome of the trial. Johns has surpassed his obligation under Strickland to prove that Jackson’s performance, or in this case, Jackson’s non-performance prejudiced his defense.

Conclusion

¶ 55. We find the trial court clearly erred in finding that Jackson provided effective assistance to Oliver Johns. There are ample facts to support our conclusion that counsel’s performance was deficient and that there is a reasonable probability the outcome of the trial would have been different if some type of pre-trial investigation and preparation had been done. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052. Therefore, we reverse the judgments of the Court of Appeals and the Pike County Circuit Court, and we remand for a new trial.

¶ 56. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ., CONCUR. RANDOLPH, J„ DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ AND EASLEY, JJ., NOT PARTICIPATING.

RANDOLPH, Justice,

dissenting.

I. This Writ of Certiorari has been improvidently granted

¶ 57. The decision to review vel non, a decision of the Court of Appeals is controlled by Mississippi Rule of Appellate Procedure 17. M.R.A.P. 17(a) unequivocally declares, “[sjuccessive review of a decision of the Court of Appeals by the Supreme Court will ordinarily be granted only for the purpose of resolving substantial questions of law for general significance.” Review will ordinarily be limited to:

1) eases in which it appears that the Court of Appeals has rendered a decision which is in conflict with a prior decision of the Court of Appeals or published Supreme Court decision;
2) cases in which it appears that the Court of Appeals has not considered a controlling constitutional provision;
3) cases which should have been decided by the Supreme Court because:
i) the statute or these rules require decision by the Supreme Court, or
ii) they involve fundamental issues of broad public importance requiring determination by the Supreme Court.

M.R.A.P 17(a)(l)(2)(3).

¶ 58. Accordingly, the Court of Appeals decision should be final and non-reviewable. The record before this Court clearly reveals this case fails to meet any of the aforementioned prerequisites, and therefore, this petition fails to satisfy the standard of review required under Mississippi Rule of Appellate Procedure 17(a). Johns was charged with aggravated assault (Count I) and shooting into a motor vehicle (Count II). The jury was unable to reach a verdict on Count II of the indictment, and convicted Johns of Count I only. The verdict of the Pike County Circuit Court was unanimously affirmed on direct appeal by the Court of Appeals. The denial by the trial court of Johns’s motion for post-conviction relief was also affirmed by the Court of Appeals without dissent.

¶ 59. The majority fails to address this fatal flaw. The petitioner never sought to establish, and the majority fails to reveal, good cause to suspend the requirements or procedures of these rules. See M.R.A.P. 2(c). We are bound to follow our rules, notwithstanding we may disagree with a lower court in the result. This Court should find the Writ of Certiorari was improvidently granted, as the requirement for a review under M.R.A.P 17(a)(1) is nonexistent, and alone should be disposi-tive.

II. Johns’s claim is illusory

¶ 60. Johns asserts his case is analogous to Payton v. State, 708 So.2d 559 (1998). However, this case is clearly distinguishable from Payton. As such, the Court of Appeals’ decision is not in conflict with Payton. Payton satisfied the appellate court he was prejudiced due to the lack of any pre-trial investigation, based on uncontroverted testimony that no pretrial investigation was conducted. Id. at 561. In this case, the testimony is in conflict. Johns alleges prior to trial he presented to his attorney, Jackson, the names of three witnesses. At the post-conviction relief hearing, Jackson testified that he determined the witnesses were not credible and that if he called the witnesses, their testimony could well be perjurous.

III. History of the Proceeding

¶ 61. The victim of an aggravated assault, Kendall Jefferson, testified that in the weeks prior to the shooting, his life had been threatened by Johns. Jefferson further testified after this incident, he and Johns were involved in a fight. Johns countered that he had been threatened by Jefferson.

¶ 62. According to Jefferson, prior to the shooting incident, he went to Johns’s place of employment to speak to Johns to work out their differences. Jefferson stated that Johns told him, “[w]e ain’t leaving nothing alone and tell your grandma she ain’t got to worry about keeping you out after you dead. Just tell her you’re already dead.”

¶ 63. On March 28th, the date of the shooting, Jefferson and Johns had encountered each other on two separate occasions, at local convenience stores. One of these convenience stores was B.J.’s, where Jefferson testified he was again threatened by Johns. Johns’s alleged witnesses testified at the PCR hearing that Johns went to B.J.’s on the evening of March 28th.

¶ 64. Accompanying Jefferson to B.J.’s and witnessing the conversation between Jefferson and Johns was Rushard Haynes. Haynes’s testimony conformed with Jefferson’s testimony that at approximately 8:00 p.m., March 28th, Johns, in his vehicle, followed Jefferson’s car from BJ.’s and that multiple gun shots were fired from Johns’s vehicle at and into Jefferson’s vehicle. The victim, Jefferson, and the eyewitness, Haynes, testified conclusively they were certain Johns was the driver of the following vehicle. However, neither Jefferson nor Haynes testified they could be certain Johns fired the shots. A passenger in Jefferson’s vehicle was wounded, but he disappeared after the incident and was never found. No weapon was found. The trial court found the state put on a prima facie case Johns’s vehicle was the source of the shots.

¶ 65. At trial, Johns denied he followed Jefferson and further denied anyone from his car fired a shot. Johns testified he was home with his daughter at the time of the shooting. This conflicting evidence was presented to a Pike County Circuit Court jury, which convicted Johns of aggravated assault, but did not convict Johns of shooting into a motor vehicle. Johns fails to highlight this outcome and the dichotomy it presents when claiming the ineffectiveness of his counsel, who evidently succeeded in convincing a jury Johns was not responsible for firing the actual shots.

¶ 66. Johns asserted in his PCR his conviction was the result of ineffective assistance of counsel at trial. The burden of proof rests upon Johns. The actions of Johns’s attorney must be measured within the totality of the circumstances. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 67. Johns asserted Jackson was ineffective because he failed to interview his alibi witnesses. Jackson testified he never received an actual list, but that Johns furnished him names of putative alibi witnesses. Jackson further testified he interviewed these people prior to trial. At the PCR hearing, approximately seven years after the trial, he was unable to recall their names. When Jackson interviewed the first witness, prior to trial, Jackson stated this witness told him, “I’m gonna say what you want me to say.” When presented with inconsistencies and the offer to manufacture testimony, Jackson was faced with the decision of whether or not to use these witnesses in Johns’s trial. Jackson testified after meeting with these people, he determined their testimony “would have essentially been useless.” A review of the original trial record, the affidavits of these putative witnesses and their conflicting testimony at the PCR hearing, satisfies this Justice the decision of Jackson was clearly sound trial strategy.

¶ 68. Johns’s ineffective assistance claim is totally reliant on Jackson’s failure to present evidence of an alibi through these putative witnesses. At trial, Johns testified he was at home with his daughter at the time of the shooting; however, his alleged eyewitnesses offer a different and varying version of the events of that evening. Prior to the PCR hearing, Johns’s alibi witnesses offered affidavits Johns was not at home with his daughter as he asserted, but rather he was walking around the neighborhood. At the PCR hearing, these putative witnesses testified to the same, which conflicts with Johns’s testimony.

¶ 69. The testimony of the putative witnesses also conflicts with the testimony of Jackson. These putative witnesses claimed they were not contacted by Jackson. Contrastingly, Jackson testified at the PCR hearing that these putative witnesses were going to offer perjured testimony, and that as an officer of the court, he determined they should not called.

¶ 70. The majority opinion that Jackson was deficient in not calling these witnesses rests upon a conflict in testimony. The circuit court judge in this matter is in the best position to resolve these conflicts, and it is our duty to afford him deference. This Court has held, “a circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Chantey Music Pub., Inc. v. Mataco, Inc., 915 So.2d 1052, 1055 (Miss.2005) (citations omitted). Assuming the truthfulness of Jackson’s testimony, which the trial court and Court of Appeals did, the Rules of Professional Conduct require the action taken by Jackson. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. See False Evidence Comment to M.R.P.C. 3.3(c).

¶ 71. Even if this Court were to ignore this prohibited conduct, and further consider the Strickland test, Johns fails the second prong of the test. Under Strickland, in order to show ineffective assistance of counsel, one must also show “that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S at 694, 104 S.Ct. 2052.

¶ 72. Applying Strickland to the ease before us, the question becomes: would the result of Johns’s trial have been different if Jackson put on the putative alibi witnesses with their varying testimony? Reviewing each putative alibi witness’ testimony at the PCR hearing, then comparing the testimony to their affidavits, and finally considering the contrasting trial testimony of the defendant, Johns, leads me to conclude the result of this proceeding would not have been different. In support of this conclusion, pertinent portions of the testimony and affidavit statements of each of the three alleged witnesses is discussed infra.

A.Reginald Nunnery

¶ 73. Reginald Nunnery stated he is a “friend” and “used to do work for” Johns. Nunnery did not tell anyone he had information regarding Johns’s whereabouts until after Johns had been charged with the crime. Johns’s mother allegedly informed Nunnery not only that he was charged with the crime, but also when and where the crime occurred. Upon learning this information, Nunnery did not offer to share the “knowledge” with the police or district attorney that he had seen Johns at the time the crime occurred at a place other than the crime scene.

¶ 74. In his affidavit, attached to the PCR, Nunnery claimed he saw Johns in the early evening hours of March 28th, when he told Johns he would be cooking out and invited Johns to dinner. Nunnery claimed Johns arrived at his home “a little bit after eight, about 8:12, 8:15.” Nunnery then sent Johns to B.J.’s store to purchase beer, and Johns was gone fifteen to twenty minutes. Portions of this testimony comport with that of the victim, Jefferson, and the eyewitness, Haynes, who both testified they saw Johns at B.J.’s on March 28th. Nunnery stated at the PCR hearing he “always starts his fire [for grilling] at 8:00,” which he repeated a second time, “always at 8:00.” Earlier, Nunnery stated that around 8:15 p.m., he was “busy with my fire, getting it started for my grill.” Nunnery swore in his affidavit, that the food would be ready at 9:30 p.m. at the latest.

B. Patricia Nunnery

¶ 75. Patricia Nunnery, Ronald Nunnery’s wife, asserted that Johns walked into her backyard at 8:15 p.m. and that the purpose of Johns’s visit was to ask her husband to do some work on Johns’s wife’s car. Patricia stated that Johns’s visit took place between 8:15 and 8:30 p.m., “the time when we just got through, about to get through with the food on the grill.” She also stated Johns went to B.J.’s, but he “wasn’t even gone ten, fifteen minutes.”

¶ 76. Contrary to her husband, Patricia stated twice during testimony she was certain the food was through cooking around 8:15 p.m., because she specifically looked at her watch. Patricia should have been aware her husband always started his grill at 8:00 p.m. She also stated her husband slow cooked the food, which takes “about an hour, hour and a half,” and the food had been on the grill at least an hour before she spoke with Johns, as the food was finished cooking when Johns came to their house.

C. Katie Magee

¶ 77. Katie Magee stated she and Johns’s father were raised together and she has known him all her life. In her affidavit, Magee stated she grew up in the same neighborhood as Johns and they were friendly. Magee stated no one contacted her during the course of Johns’s trial. Magee claimed the first time she was aware that she had information which was helpful to Johns was when she was discussing Johns’s conviction with his father. Magee did not come forward with this story until after she was contacted by Johns’s appeal attorney, but she could not recall when she met this attorney.

¶ 78. At the PCR hearing, Magee stated she saw Johns walk by her backyard with his daughter “a little after eight” and that she talked to him for “3 or 4 minutes,” and she was “sure” about this time. However, in her affidavit, Magee asserted she first saw Johns “around 8:30 p.m.” and spoke with him for “several minutes.” Contrary to the testimony she had given moments before, and contrary to her affidavit, Magee then stated that when she heard from Johns’s father about the time the crime took place, she saw Johns hanging around the Nunnery’s “all that evening and toward the night.”

¶ 79. The majority opinion relies on Magee being able to remember the exact date and time, as she was celebrating the birthday of a friend in her backyard. The crime took place on March 28th. At the PCR hearing, Magee stated her friend’s birthday was on March 27th. Realizing the contradiction from her own testimony moments before, she then recanted and said there was no birthday party. She then stated she remembered, from approximately seven years before, that on the 28th of March, she just had people over to “hang out.” Magee admitted she had been drinking the day of March 28th.

¶ 80. The witnesses presented inconsistent statements regarding the time they saw Johns. Each witness’s testimony at the evidentiary hearing conflicts not only with their personal affidavits, but with the testimony of each other and most importantly, with Johns’s testimony. Each witness stated Johns was at their home the night of March 28th, at the time of the shooting. Johns told the jury he was home with his daughter the entire evening.

¶ 81. According to Strickland, “a convicted defendant ... must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. Jackson made the professional determination these witnesses would not be credible; therefore, Jackson did not call them as alibi witnesses. Johns states that under Strickland, counsel has a duty to make reasonable investigation. Jackson testified at the evidentiary hearing he made the determination prior to trial these witnesses may offer perjured testimony. Under Strickland, counsel has the right to make decisions regarding trial strategy. Id. at 688-89, 104 S.Ct. 2052. Jackson’s choice not to call witnesses lacking credibility and offering testimony inconsistent with the accused’s testimony can clearly be considered trial strategy. Assuming ar-guendo Jackson called the witnesses with their inconsistent testimony, due to the overwhelming weight of other evidence presented against Johns, a reasonable juror could have reached a guilty verdict. There has been no showing the outcome of Johns’s case would have been different had these witnesses testified.

¶ 82. This case was decided by a jury, and this Court gives jury verdicts great deference. Venton v. Beckham, 845 So.2d 676, 686 (Miss.2003) (citing Ducker v. Moore, 680 So.2d 808, 811 (Miss.1996)). This case was subsequently affirmed by a unanimous Court of Appeals. Johns’s motion for post-conviction relief was denied by the trial court after a full hearing. This decision was affirmed by the Court of Appeals without dissent. It is the duty of this Court to give deference to these decisions, and this conviction should not be disturbed.

¶83. Johns has clearly not proved an ineffective assistance of counsel claim under Strickland. Jackson testified in an evidentiary hearing that in his professional judgment, he believed Johns’s alibi witnesses were going to offer false statements. Jackson took into account the surrounding circumstances and made a tactical decision not to call these witnesses.

¶ 84. Johns further failed to prove Jackson’s defense prejudiced the outcome of his case. The overwhelming weight of evidence presented against Johns would allow a jury to reasonably conclude that Johns was guilty of the crime committed. Even if these alleged alibi witnesses had testified, a different result would not have occurred.

¶ 85. For these reasons, I respectfully dissent.

      . This Court is not attempting to label Jackson ineffective for not showing evidence, as it was obvious the state had none.

      . Jackson testified when asked if he met with Johns when his father wasn’t with him that he believes he “met him one time somewhere ... I know we met at McDonald's a number of times ... But we met somewhere else, I just can’t remember where.”

      . Questioning at the evidentiary hearing regarding whether Jackson prepared Johns to testify:
      Q. ... Based on that, wouldn’t you agree that it would be prudent and effective use of your time to always prepare your client to testify....
      A. If you’re making the assumption that I did not testify [sic] my client, that might be so, but I always prepare my client to testify....
      After stating it might be so that he did not prepare Johns to testify, he stated that he did recall specifically preparing Oliver Johns to testify, but he did not remember when or where. After that, he stated the following: “One of his parents might have been there, I just don’t know. I just don’t know. But I always do that.”

      . The dissent reasons that Johns talked to two of the three alibi witnesses and refused to offer them because he believed they would offer perjured testimony. In the dissent, it is said that “Jackson further testified that he interviewed these people [alibi witnesses] pri- or to trial.” Jackson never said that he remembered interviewing either of the alibi witnesses. Even as Jackson sat in the eviden-tiary hearing, listened to them testify, and looked them in the eye, Jackson still could not testify that he ever spoke to either of those witnesses. He did say that Reginald Nunnery looked familiar to him, but when Johns's counsel pointed out that Nunnery was very good friends with Jackson's brother, Jackson admitted that that may be why Nunnery looked familiar.

      . The shots were fired from an AK-47 assault rifle.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Ronald COLEMAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-00393-COA.
    Supreme Court of Mississippi.
    April 11, 2006.

      Mark G. Williamson, Starkville, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Ronald Coleman was convicted of burglary of a dwelling in the Circuit Court of Oktibbeha County, Mississippi. He was sentenced to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), and to pay a fine in the amount of $10,000. The circuit court denied Coleman’s motion for a new trial or, in the alternative, judgment notwithstanding of the verdict. Aggrieved, Coleman now appeals. He presents the following issue for this Court’s review: whether his conviction should be reversed because the verdict of'the jury is against the overwhelming weight of the evidence and is not sufficient to sustain the conviction. Finding no error, we affirm.

FACTS

¶ 2. On February 7, 2003, at about noon, Foronzo Harris was sleeping in his bed, when he heard a loud “boom” coming from the side-door of his house. The loud noise came from an intruder, who had kicked in, and actually broken in half, the side-door of Harris’s house. Harris sprang from his bed and came face-to-face with the intruder in his living room. Shocked, the intruder fled immediately. Harris grabbed his cell phone, followed the man outside, and called 911. Harris observed the man as he backed his car out of the driveway.

¶ 3. The deputies from the Oktibbeha County Sheriffs Department arrived shortly thereafter. Harris described the intruder as a tall, slender, black male, with a medium to light complexion. Harris further informed the deputies that the intruder was wearing a maroon jacket with a black skullcap, and that he was driving a “Celebrity ... or older model car” that was “like a bluish, like grayish-bluish ... with like a rack on the back.” Finally, Harris described the intruder as about thirty-nine to forty-one years old.

¶ 4. On February 8, 2008, Deputies Shannon Williams and Sam Gitchell were patrolling when they noticed Coleman washing a car that fit the description given by Harris. The deputies stopped to speak with Coleman, as the video camera inside the patrol car recorded the encounter, including footage of Coleman’s car. After the encounter with Coleman, Deputy Williams placed Coleman’s picture in a photo line-up (a series of Polaroids) that she presented to Harris. Harris identified Coleman as the man that broke into his house. After viewing the video, Harris insisted that, without a doubt, Coleman broke into his home. Consequently, a search warrant and an arrest warrant were issued for Coleman.

¶ 5. A search of Coleman’s house revealed a maroon jacket, and a pair of boots with the same identifying marks as a footprint found on the floor of Harris’s house. Coleman was indicted on July 10, 2003, for burglary of a dwelling.

¶ 6. During trial, Harris testified that he observed the intruder for about “three to four to five seconds” in a brightly lit area of his house. Harris identified Coleman as the man that broke into his house, and testified that he was certain of this fact. Deputy Williams also testified for the State. She stated that she and Deputy Gitchell stopped to interview Coleman because Coleman’s car resembled the car that Harris described to the deputies.

117. At the close of the State’s case-in-chief, Coleman’s motion for a directed verdict was denied. Coleman’s defense consisted of the testimony of one witness, Deputy Archer Sallis, the first deputy to arrive at Harris’s house after the burglary. Deputy Sallis testified that Harris described the intruder as having a medium to light complexion. Deputy Sallis further testified that he wrote in his report that the intruder was light complected. At the conclusion of Deputy Sallis’s testimony, the defense rested.

¶ 8. On November 4, 2004, the jury returned a verdict of guilty. The trial court sentenced Coleman to serve a term of twenty-five years in the MDOC, and to pay a fine in the amount of $10,000. Coleman’s motion for a new trial or, in the alternative, judgment notwithstanding of the verdict was denied. Aggrieved, he now appeals.

ANALYSIS

I. Whether Coleman’s conviction should be reversed because the verdict of the jury is against the overwhelming weight of the evidence and is not sufficient to sustain the conviction.

¶ 9. Under this heading, Coleman raises two separate issues for this Court’s review. Asserting that the verdict was against the overwhelming weight of the evidence and that it was not sufficient to sustain the conviction, Coleman requests that his conviction be reversed and that he be discharged. In the alternative, Coleman requests this Court to reverse and remand for a new trial. Therefore, we must distinguish between our review for challenges to the legal sufficiency of the evidence and our standard of review for challenges to the weight of the evidence.

(a) Sufficiency of the Evidence

¶ 10. A motion for a directed verdict and JNOV, as well as a request for a peremptory instruction, challenge the legal sufficiency of the evidence, “since each requires consideration of the evidence before the court when made.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). “The standard of review for a denial of a directed verdict, peremptory instruction, and a JNOV are identical.” Purnell v. State, 878 So.2d 124, 128(¶ 14) (Miss.Ct.App.2004) (quoting Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003)). Reversal on the issue of legal sufficiency can only occur when evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Purnell, 878 So.2d at 129(¶ 14) (citing Hawthorne, 835 So.2d at 21(¶ 31)). However, where substantial evidence of such quality and weight exists to support the verdict, and where reasonable and fair-minded jurors may have found the appellant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47(¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81(¶ 13) (Miss.1995)).

¶ 11. Coleman contends the trial court erred in denying his motion for a directed verdict, and he asks this Court to reverse his conviction. Thus, he challenges the sufficiency of the evidence. In support of this challenge, Coleman argues that the description of the man inside Harris’s house was the description of another man, because he is a very dark-complected black male, rather than a medium to light-skinned black male. Coleman further argues that the description of the intruder’s car was the description of another man’s car. He asserts that his car was gray, not blue.

¶ 12. The State’s evidence included pictures of Coleman’s car, a bluish-gray, older model Celebrity, with a luggage rack on the back. Thus, the pictures of Coleman’s car were consistent with the description given by Harris to the deputies. Moreover, Deputies Williams and Gitchell testified that their reason for interviewing Coleman was that his car resembled the ear described by Harris. The State also put on evidence that Harris identified Coleman as the intruder in a photo line-up, and that after viewing a video of Coleman with his car, Harris told Deputy Williams that Coleman was definitely the man who broke into his home. Other evidence presented by the State further supports the verdict of guilty. Investigators found boots belonging to Coleman at his home that matched a print at the crime, scene. Moreover, a search of Coleman’s home also revealed a maroon jacket, matching the description provided by Harris of the intruder’s clothes.

¶ 13. Coleman’s assertion that the discrepancy between his dark complexion and the description given by Harris is sufficiently overwhelming to justify reversal is without merit. Given the State’s evidence, reasonable and fair-minded jurors could have concluded that Coleman was guilty of burglary of a dwelling. Therefore, the trial court did not err in denying Coleman’s motion for a directed verdict and his motion for JNOV. This issue is without merit.

(b) Weight of the Evidence

¶ 14. “As ■ distinguished from a motion for a directed verdict or a JNOV, a motion for a new trial asks to vacate the judgment on the grounds related to the weight of the evidence, not sufficiency of the evidence.” Purnell, 878 So.2d at 129(¶ 18) (citing Smith v. State, 802 So.2d 82, 85-86(¶ 11) (Miss.2001)). It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Washington v. State, 800 So.2d 1140, 1144(¶ 10) (Miss.2001) (citing Manning v. State, 735 So.2d 323, 333(¶ 10) (Miss.1999)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Walker v. State, 881 So.2d 820, 831(¶ 32) (Miss.2004) (citing Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998) (overruled on other grounds)).

¶ 15. Coleman challenges the trial court’s denial of his motion for a new trial, arguing that the verdict was contrary to the overwhelming weight of the evidence. After reviewing the evidence presented by the State in support of Coleman’s conviction, we cannot say that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We find that the facts and reasonable inferences drawn from those facts strongly point toward Coleman’s guilt. Any discrepancies in the testimony were issues for the jury to decide. Therefore, this issue is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND THE SENTENCE OF TWENTY-FIVE YEARS WITHOUT ELIGIBILITY FOR PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAYMENT OF A FINE IN THE AMOUNT OF $10,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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


author: CARLSON, Justice, for the Court.

text:
    TUNICA COUNTY, Mississippi, Town of Tunica, Mississippi, and Tunica County Airport Commission v. Ann MATTHEWS, Trustee and John Pritchard, Jr.
    No. 2004-CA-02352-SCT.
    Supreme Court of Mississippi.
    April 13, 2006.

      W. Whitaker Rayner, Jackson, James E. Woods, Olive Branch, attorneys for appellants.
    Paul R. Scott, Batesville, attorney for appellees.
   CARLSON, Justice, for the Court.

¶ 1. This appeal focuses on the issue of the proper methodology for the valuation of land and the determination of the proper amount of just compensation in an eminent domain case. Tunica County brought this action to take certain property from the landowners to use in expanding the existing airport in Tunica County. After a trial, the jury determined the value of the land in question. The only contested issue at trial, and here on appeal, is the value of the land. A hotly contested issue in this case is certain expert testimony concerning the value of the land taken in these eminent domain proceedings. Finding no error, we affirm the final judgment entered by the Tunica County Special Court of Eminent Domain.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Tunica County, the Town of Tunica, and the Tunica County Airport Commission (referred to collectively as Tunica) filed this action in The Special Court of Eminent Domain in Tunica County to condemn certain property being used for agricultural purposes in Tunica County and to acquire the property to use as part of an expansion of the existing airport. That the land was being acquired for public use was not contested. Instead, the only dispute was the amount of money owed to the landowners for the land. The landowners’ expert witness, Henry Dunklin, valued the land as having a highest and best use, which is the most feasible use that will produce the greatest profit of commercial or industrial property, and arrived at a price of $4,500 per acre, using comparable sales of commercial or industrial land. Granting in part a motion to exclude this testimony, the trial court precluded Dunk-lin from using comparable sales of the commercial or industrial property, or from testifying that the highest and best use for the property was commercial or industrial.

¶ 3. Nonetheless, the landowners prevailed at trial with a judgment that the land should be valued at $4,500 per acre. Using this valuation, the final judgment entered by the special court of eminent domain stated in pertinent part:

Now, therefore, judgment is entered herein against Tunica County, Mississippi, the Town of Tunica, Mississippi, and the Tunica County Airport Commission in the amount of Ninety-Seven Thousand Six Hundred and 00/100 Dollars ($97,600.00). The sum of $54,225.00 was deposited by the Plaintiff with the Clerk of this Court on October 16, 2000, under Order of the Court granting Plaintiff immediate title and possession and entry upon said property and appropriating it to the public use.
Now, upon payment of the additional sum of $43,375.00 with legal interest on said $97,600.00 at the rate of eight percent (8%) per annum from the date of filing of the complaint on August 4, 2000, until October 16, 2000, and with legal interest on the sum of $43,375.00 at the rate of eight percent (8%) per annum from November 29, 2000, until the payment of the balance of said award, with legal interest thereon as aforesaid, this Judgment shall have been satisfied by payment in full and ownership of the property shall be vested in the plaintiffs and it may be appropriated for the public use as prayed for in the complaint.

¶ 4. To support their valuation of the subject property, the landowners relied on the expert testimony of Dunklin. Using a comparable sales approach method to value the land, which was stipulated by both parties to be the proper method, Dunklin identified a highest and best use of the land as industrial or commercial, concluding that the land should be valued at $4,500 per acre. Tunica’s expert, Rip Walker, identified a highest and best use of limited residential or institutional with an interim use of agricultural, arguing for a price of $2,000 per acre. Tunica filed a motion to exclude Dunklin’s testimony, and the trial court granted the motion in part, preventing Dunklin from offering an opinion as to the highest and best use of the land as to industrial or commercial, and from basing his opinion on any comparable sales which were commercial or industrial. Nonetheless, Dunklin’s opinion as to the value of the land remained the same. Dunklin claimed to have been using a different approach and to have abandoned reliance on five highest-valued comparable sales he initially used. Dunklin also based his opinion in part on a study concerning the use of the land for an airport expansion. Tunica filed another motion to exclude his testimony because it essentially remained unchanged. The trial court denied this motion. Tunica also appeals this ruling, arguing that case law from the United States Supreme Court and from this Court prevent this testimony from being used as it is not based on scientific principles. Tunica raises four issues in this appeal. 'The first three focus on whether the expert testimony should have been excluded under existing case law, namely, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Mississippi Transportation Comm’n v. McLemore, 863 So.2d 31 (Miss.2003). The final issue is whether the trial court erred in admitting certain photographs into evidence. Because the first three questions raised fall under the category of the admissibility of the expert’s testimony, and for ease of analysis, we will address the four issues raised as only two issues, with the former subdivided into parts.

DISCUSSION

¶ 5. Our well-established standard of review for the trial court’s admission or suppression of evidence, including expert testimony, is abuse of discretion. McLemore, 863 So.2d at 34. We give great deference to the discretion of the trial judge. “Unless we conclude that the discretion was arbitrary and clearly erro-neons, amounting to an abuse of discretion, that decision -will stand.” Crane Co. v. Kitzinger, 860 So.2d 1196, 1201 (2003).

I. WHETHER THE TESTIMONY OF THE LANDOWNERS’ EXPERT WAS PROPERLY ADMITTED.

¶ 6. Rule 702 of the Mississippi Rules of Evidence addresses the admissibility of expert testimony.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702. In McLemore, this Court adopted the standard initially laid out by the United States Supreme Court in Daubert, and later modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). McLemore, 863 So.2d at 35, 39. That standard is a two-pronged test. For expert testimony to be admissible, it must be both relevant and reliable. Id. at 38. The party offering the testimony must show that the expert based his opinion not on opinions or speculation, but rather on scientific methods and procedures. Id. at 36. The trial judge enjoys a role as a gatekeeper in assessing the value of the testimony. Id. at 39. To be relevant and reliable, the testimony must be scientifically valid and capable of being applied to the facts at issue. Id. at 36. See also Poole ex rel. Poole v. Avara, 908 So.2d 716, 721-25 (Miss.2005).

A. Whether Dunklin’s testimony was reliable, thus satisfying Daubert and McLemore.

¶ 7. The landowners’ expert, Henry Dunklin testified that the highest and best use of the land was commercial or industrial, and Dunklin initially used comparable sales from commercial or industrial property to reach his conclusion that the fair market value of the land should be $4,500 per acre. Tunica’s expert, Rip Walker, meanwhile identified the highest and best use of the property as residential or institutional, with an interim use of agricultural. The land has always been used for agricultural purposes. Granting in part Tunica’s motion to exclude, the trial court precluded Dunklin from testifying using these comparables or using this highest and best use. Tunica contends that because the trial court prevented Dunklin from basing his testimony on comparable sales that are commercial, his new valuation of the land should have been much lower, and, that the testimony therefore lacked reliability and was not the product of proper methodology.

¶ 8. The trial court found that commercial sales were not reliably comparable and should be excluded from evidence, referring to Dunklin’s opinion as speculative that the highest and best use of the property was commercial or industrial, as it was incompatible with the property characteristics and area development history. Because there was no evidence presented of a probability of a change in zoning, the trial court excluded and prohibited comparable sales of commercial property and any testimony or statement of values based in whole or in part on such comparables. Later, after Dunklin’s results remained the same, Tunica filed a second motion to exclude Dunklin’s testimony, and the trial court denied this motion to exclude.

¶ 9. The comparable sales the trial court initially ordered excluded were five “per acre” values of $100,000, $56,000, $40,000, $32,000, and $26,000. Thus, the remaining “per acre” values were $18,500, $7,000, $5,500, and $5,000, plus one other new comparable of $7,500 per acre. Dunklin’s appraised value of the land at $4,500 per acre remained the same after the trial court’s order. Tunica claims that Dunk-lin’s appraisal value remaining unchanged, despite the court order, offends basic principles of logic and mathematics.' Tunica argues that Dunklin must have ignored the court’s order and based his results on improper methodology. The landowners argue that real estate appraisal is much more complicated than a simple mathematical calculation, but instead requires analysis of all applicable information and data. The landowners point out that, in any case, Dunklin’s appraised value of the land at $4,500 per acre was not only a lower per-acre price than all of the comparable sales he considered, both before and after the trial court’s order, but was also a lower valuation than six of the nine comparable sales used by Tunica’s appraiser.

¶ 10. This Court has refused to accept testimony of values of comparables for a highest and best use different from that of the subject property. See Pearl River Valley Water Supply Dist. v. Brown, 254 Miss. 685, 182 So.2d 384, 388-89 (1966); Mississippi State Highway Comm’n v. Roche, 249 Miss. 792, 163 So.2d 874, 880 (1964). However the trial court is vested with a gatekeeping responsibility to prevent the admission of expert testimony based on guess or conjecture. McLemore, 863 So.2d at 36. “The trial court must make a ‘preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue.’” Id. (relying on Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). Testimony concerning the valuation of the land is certainly relevant; it is the reliability of this testimony that is at issue. Tunica questions the reliability of the testimony, taking issue with Dunklin’s conclusion not changing after the trial court’s ruling. However, we have said:

The Court in Daubert adopted a non-exhaustive, illustrative list of reliability factors for determining the admissibility of expert witness testimony. The focus of this analysis “must be solely on principles and methodology, not on the conclusions they generate.” These factors include whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.

Id. at 36-37 (internal citations omitted). In McLemore, we reversed the admission of expert testimony of a land appraisal in part because the method the expert employed in his appraisal was not printed in any textbook, not taught in seminars, unique to the McLemore appraisal, not a principle of any kind, and not taught in any of the licensing courses the expert completed. Id. at 41. The methodology employed by Dunklin in this case, however, meets the criteria of both Rule 702 and McLemore. The experts both agreed on using the comparable land sales approach as the proper methodology to value the land, a methodology that easily meets the Dmbert factors. It was not Dunklin’s entire testimony, nor his result, which the trial court found to be unreliable; but, instead, the trial court found the use of commercial sales as comparables and.the reliance on a highest and best use of commercial and industrial to be unreliable. The trial court made this clear in its orders, which denied Tunica County’s second motion only upon conditions Dunklin had to fulfill in his testimony. We are. quite simply unable to find that the trial court abused its discretion, or failed in its gatek-eeping responsibility, in admitting this testimony. The testimony was admissible, thus placing before the jury the issue of what weight or credit to afford to this testimony.

¶ 11. We have long held that the jury may reject or accept any expert testimony it chooses in cases involving land valuation. “The jury in the trial of a case of this kind is not required to accept the opinion evidence of an expert witness who testifies for the land owner or the county. The jury may disregard the testimony of a witness whose testimony the jury has reasonable grounds to believe is worthless.” Warren County v. Harris, 211 Miss. 80, 88, 50 So.2d 918, 920 (1951). In addition, the jury had the opportunity to inspect the subject land in this case, and was to use this, too, in coming to its decision. “The opinions of experts as to values in cases of this kind are not to be passively received and blindly followed, but are to be weighed by the jury and judged in view of all of the testimony in the case and the jury’s own general knowledge of affairs, and are to be given only such consideration as the jury may believe them entitled to receive.” Id. at 921. This rule is often cited in Mississippi case law. See, e.g., Miss. State Highway Comm’n v. Madison County, 242 Miss. 471, 480, 135 So.2d 708, 712 (1961); N. Biloxi Dev. Co., L.L.C. v. Miss. Transp. Comm’n, 912 So.2d 1118, 1126 (Miss.Ct.App.2005); Bishop v. Miss. Transp. Comm’n, 734 So.2d 218, 222 (Miss.Ct.App.1999). For these reasons, we find that the correct valuation' of the land was entirely a jury question, and, we thus find no fault in the trial judge’s decision to admit this testimony.

B. Whether Dunklin’s opinion on the property’s highest and best use was consistent with the tri- ■ al court’s order.

¶ 12. Tunica claims Dunklin failed to adopt any new opinion of highest and best use and continued to rely on his initial testimony because he arrived at exactly the same price per acre after the court’s order. Tunica draws our attention to numerous places in the record to illustrate this fact by way of references to answers to interrogatories and Dunklin’s deposition. Because Dunklin’s initial opinion was that the highest and best use of the property was commercial and industrial, and because he continued to testify to that effect, Tunica asserts that his opinion was not in keeping with the court’s order. It is true that Dunklin continued to believe that the highest and best use of the land should have been commercial or industrial, but the court did not order Dunklin to change his actual opinion. The court order only prohibited his testimony based on compa-rables of commercial or industrial land dr based on a highest and best use of commercial or industrial. Dunklin makes it clear in his deposition that, despite his own opinion, he understood the confines of the court order and kept his testimony within those boundaries. Again, we cannot find an abuse of discretion by the trial court in admitting Dunklin’s testimony.

C. Whether. Dunklin’s use of the airport study was proper.

¶ 13'. Finally, Tunica asserts Dunklin’s testimony should have been stricken because he placed value on the property based in part on previous airport studies which had identified the land as a possible site for future airport expansion. Dunklin testified that obtaining fair market value is predicated on a knowledgeable seller dealing with a knowledgeable buyer, and that an informed property owner who knew of the study, and who knew the land was needed for the airport, would not have sold the subject land as farm acreage. Tunica County argues this methodology is improper, relying on Pearl River Valley Water Supply, where this Court held that in eminent domain proceedings, “damages are assessed and compensation determined as of the time of taking, but general benefits and injuries resulting from the use to which the land is to be put, and which are shared by the general public, are not to be considered in awarding damages.” Pearl River Valley Water Supply Dist., 182 So.2d at 385.

¶ 14. The definition of fair market value is not new to this Court. “In numerous cases, we have stated that the fair market value is the amount of money which could be obtained on the open market at a voluntary sale of property; the amount that a purchaser who is willing, but not required to buy, would pay, and the amount that a seller who is willing, but not required to sell, would accept.” Bear Creek Water Ass’n, Inc. v. Town of Madison, 416 So.2d 399, 402 (Miss.1982). We also stated in Bear Creek that determining the fair market value “necessarily requires that both the purchaser and the seller be fully informed of all circumstances involving the value and use of the property so that an approximation of its present worth might be determined.” Id. at 403.

¶ 15. Tunica objected at trial to the relevance of a 1995 study’s effect on a 2000 sale of land. Tunica now relies on Pearl River Valley Water Supply and is correct to do so with regard to the rule that the valuation of the land is to be determined at the time of the eminent domain proceedings. However, in Pearl River Valley Water Supply, dealing with the creation of the Ross Barnett Reservoir, we also said that the landowner may show and claim enhancement in value of the land prior to the taking. Pearl River Valley Water Supply Dist., 182 So.2d at 386. The study Dunk-lin referred to was nothing more than an analysis that, given Tunica County’s rapid growth, due in part to the casino industry, a bigger airport was needed, and that the most logical place to put a new airport was where the current one already stood. “We cannot conceive of a prospective purchaser of commercial property, in an area being transformed by urban renewal, not inquiring into the zoning restrictions on the property, the plans for streets and alleyways, the lot frontage on such streets, etc., so that he might determine its suitability for his purpose.” Paulk v. Housing Authority of City of Tupelo, 204 So.2d 153, 155 (Miss.1967) (finding urban renewal plans should have been allowed into evidence). The airport study did not serve the purpose of showing the benefits which would be available to the general public from the new use of the land, but rather what information existed which was at the disposal of both a knowledgeable and willing seller and buyer. Thus, we are unquestionably unable to find that the trial court abused its discretion in admitting this testimony.

¶ 16. We review the trial court’s decision today, looking only for an abuse of discretion. The trial judge’s decision to admit the testimony must be given wide latitude. Because the testimony was based upon sufficient facts or data, was the product of reliable principles and methods, and was based on principles and methods reliably applied to the facts of the case, the testimony was able to assist the trier of fact and thus passes muster under Rule 702. As discussed above, the testimony also meets the Daubert test and was properly admitted. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHS OF PROPERTY NOT USED AS COMPARABLES.

¶ 17. The final issue is an assignment of trial court error for the admission of certain photographs into evidence. The trial court admitted photographs offered by the landowners into evidence as exhibits D-l, D-2, D-4, and D-5. Because the photographs were not used as comparables to the landowners’ property at issue, Tuni-ca objected to their introduction into evidence and asserts on appeal that the pictures were irrelevant and prejudicial, and therefore, only confused the jury.

¶ 18. The standard of review for the admission or exclusion of evidence is abuse of discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936 (Miss.2002). We have long held that the admissibility of photographs is within the sound discretion of the trial court and that the trial judge has a wide latitude in admitting them. Smith v. Mississippi State Highway Comm’n, 423 So.2d 808, 812 (Miss.1982). We will not disturb the trial court’s ruling unless there is a clear abuse of discretion. Id. We have also noted that when the only purpose of photographs is to influence and prejudice the jury they should be excluded. Butler v. Chrestman, 264 So.2d 812, 816 (Miss.1972). However, this is not the case today. That the photographs were not being introduced as evidence of comparables was made clear at trial.

¶ 19. We have upheld a trial court’s decision to allow photographs of areas which underwent changed conditions as long as the jury was informed of the changes. Nelson v. Phoenix of Hartford Ins. Companies, 318 So.2d 839, 843 (Miss.1975). Recognizing that the trial court has wide latitude and discretion with regard to the admission of photographs, this Court held in Nelson that the mere fact that the photographs were taken at a time when conditions were somewhat changed did not render such photographs inadmissible, so long as the changes were carefully pointed out to the jury. Id. The trial court in Nelson was justified in allowing the introduction of the photographs into evidence, so long as the court provided proper explanation to the jury of the changes. Id. This is not unlike the situation in the case before us now. Though the photographs admitted in this case were not of comparable property used by Dunklin in formulating his opinions, the photographs were not offered as such. The landowners merely wished to establish that Dunklin was familiar with the area in which the land was located and that Dunklin had been thorough in his appraisal of the area. In overruling Tunica County’s objections, the trial court clarified that the pictures were not of property used in determining comparable value, and that they were not being admitted as such. Because the trial judge made it clear the photographs were not compa-rables, and given the wide latitude the trial court enjoys in admitting or excluding photographs, we find no abuse of discretion in the trial court’s admitting these photographs into evidence. This issue is thus without merit.

CONCLUSION

¶ 20. In reviewing the trial court’s decision today, we look only for an abuse of discretion with regard to the admission of evidence in this case, both in the expert testimony of Henry Dunklin and in the photographs. We have concluded that Dunklin’s expert testimony meets the requirements both of Miss. R. Evid. 702 and of Daubert and was thus properly admitted. Admission of the photographs also does not amount to an abuse of discretion. The case was properly submitted to the jury, which made its decision after hearing all of the properly admitted evidence. For these reasons, we affirm the final judgment entered by the Special Court of Eminent Domain of Tunica County.

¶ 21. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, GRAVES AND DICKINSON, JJ., CONCUR. COBB, P.J., DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . The expert testimony in McLemore was that of Rip Walker, Tunica’s expert in today’s case.