source: Caselaw Access Project

author: EASLEY, Justice,

license: Public Domain

text:
    Bobby Earl WILSON, Jr. v. STATE of Mississippi.
    No. 2005-KA-00137-SCT.
    Supreme Court of Mississippi.
    June 8, 2006.
    Rehearing Denied Aug. 17, 2006.

      Henry C. Clay, III, Ridgeland, for Appellant.
    Office of the Attorney General by Scott Stuart, for Appellee.
    Before SMITH, C.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Bobby Earl Wilson, Jr., (Wilson) was indicted on July 20, 2004, by the Grand Jury of Warren County, Mississippi, for the armed robbery of Trustmark National Bank on March 30, 2004, feloniously taking $11,286 from the person of or from the presence of Mary Cunningham and Martha Robinson against their will by violence by the use of a knife, or by placing in fear of immediate injury by exhibition of a knife in violation of Miss.Code Ann. § 97-3-79.

¶ 2. Wilson was also indicted on July 20, 2004, as a habitual offender having been convicted twice previously for felonies under Miss.Code Ann. § 99-19-81. On August 25, 2004, the State filed a motion to amend the indictment of July 20, 2004, to a habitual offender under Miss.Code Ann. § 99-19-83. The habitual portion of the indictment was subsequently amended on September 28, 2004, to charge Wilson as a violent habitual offender under Miss.Code. Ann. § 99-19-83.

¶ 3. Wilson was tried before a jury, and the jury returned a verdict finding Wilson guilty of the lesser-included offense of robbery. The trial court conducted a sentencing hearing. Wilson was sentenced as a habitual offender to serve a term of life without parole in the custody of the Mississippi Department of Corrections under Miss.Code Ann. § 99-19-83. Wilson appeals to this Court in forma pauperis.

FACTS

¶ 4. Wilson robbed the Trustmark National Bank located at Mission and Grove Streets in Vicksburg, Mississippi. Robinson testified that she saw Wilson go to the drive-through window operated by Cunningham. She saw Cunningham putting money in a Wal-Mart bag, and she knew the bank was being robbed. Wilson signaled Robinson to come to Cunningham’s window where Robinson put money in the Wal-Mart bag. Wilson told Robinson it was not enough money, and he had Cunningham go to the drive-through window to get more money. Robinson identified Wilson from a photographic line-up.

¶ 5. Georgia Knox, the drive-through teller, testified she saw Cunningham putting money in a Wal-Mart bag and heard Wilson say that he wanted the money from her window. Knox put the money from her drawer in the Wal-Mart bag. Knox testified she saw Wilson’s knife on the counter. Knox felt threatened and afraid. Wilson left the bank with the money.

¶ 6. Officer Leonce Young of the Vicksburg Police Department received a dispatch call that the bank had been robbed. Officer Young saw Wilson crouched down behind cars and then saw Wilson run. Officer Young followed, caught, and handcuffed Wilson. When Officer Young asked Wilson his name, Wilson responded, “bank robber.” Officer Young testified that Wilson had red dye on his hands and shirt and that a steak knife was recovered from Wilson.

¶ 7. After Officer Young radioed for assistance, Captain Mark Culbertson arrived to assist him. Officer Young asked Wilson where the money was. Wilson responded, “It’s your job to find the money, I rob banks.” Captain Culbertson testified that a steak knife was recovered from Wilson.

¶ 8. Sergeant Virgil Woodall, a crime scene investigator, testified that he collected the steak knife from Wilson’s pocket. Sergeant Woodall also collected the money and Wilson’s clothes. Debra Kinnebrew, the bank’s branch manager, testified that the money recovered was the same money taken from the bank.

DISCUSSION

I. Amended Indictment-Habitual Status

¶ 9. “It is fundamental that courts may amend indictments only to correct defects of form, however, defects of substance must be corrected by the grand jury.” Evans v. State, 813 So.2d 724, 728 (Miss.2002) (quoting Mitchell v. State, 739 So.2d 402, 404 (Miss.Ct.App.1999)). “It is well settled ... that a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Miller v. State, 740 So.2d 858, 862 (Miss.1999).

¶ 10. Wilson argues that the trial court erred in allowing the State to amend the original indictment to charge him as a habitual offender under Miss. Code Ann. § 99-19-83. However, Mississippi law allows an amendment of an indictment to charge a defendant as a habitual offender even after the jury has returned a guilty verdict. Torrey v. State, 891 So.2d 188, 195 (Miss.2004). Here, Wilson was put on notice the State sought to amend the indictment months before trial. Likewise, the trial court allowed the amendment long before trial began. Rule 7.09 of the Uniform Rules of Circuit and County Court Practice allows for the amendment of an indictment in order to charge an offender as a habitual offender. Rule 7.09 reads:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

U.R.C.C.C. 7.09. Thus, an indictment may be amended to charge an offender as a habitual offender only if the offender is given a “fair opportunity to present a defense and is not unfairly surprised.” Id,.; Adams v. State, 772 So.2d 1010, 1021 (Miss.2000).

¶ 11. The two prior felonies charged in the original July 20, 2004, indictment were: (1) grand larceny in the Circuit Court of Warren County, Mississippi, on or about August 5, 1994, Cause no. 1171V, convicted and sentenced to serve five years, and (2) bank robbery in the United States District Court Southern District of Mississippi Western Division on or about June 21, 1999, in Cause no. 5:98crl2BrS, convicted and sentenced to serve seventy months. The grand larceny was actually burglary of an automobile; however, the cause number, sentence, and the sentencing court information were correct. The revocation order on the burglary of an automobile reflected the charge was for attempted grand larceny. Wilson was provided adequate information to inform him that the State sought habitual status and to put him on notice of the conviction to be used. Here, Wilson was not unfairly surprised by the amendment. The State sought to amend the indictment months before trial. The trial court allowed the amendment months before trial. Likewise, Wilson was originally indicted as a habitual offender under Miss.Code Ann. § 99-19-81.

¶ 12. Furthermore, it was not necessary for Wilson to prepare a defense based on the amended indictment because the habitual offender status did not affect the crimes with which Wilson was charged. See Adams, 772 So.2d at 1021. This Court has held, “prior offenses used to charge the defendant as an [sic] habitual offender are not substantive elements of the offense charged.” Swington v. State, 742 So.2d 1106, 1118 (Miss.1999) (emphasis added). In Swington, this Court went on to state:

[T]he test of whether an accused is prejudiced by the amendment of an indictment or information has been said to be whether or not a defense under the indictment or information as it originally stood would be equally available after the amendment is made and whether or not any evidence [the] accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance.

Id.

¶ 13. We find the trial court did not err in amending the indictment to charge Wilson as a habitual offender under Miss. Code Ann. § 99-19-83.

II. Motion to Suppress

¶ 14. During a suppression hearing, the trial court sits as the finder of fact. Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996). “ ‘Once the trial judge has determined at a preliminary hearing, that a confession is admissible, the defen-danVappellant has a heavy burden in attempting to reverse that decision on appeal.’ ” Hunt, 687 So.2d at 1160 (quoting Sills v. State, 634 So.2d 124, 126 (Miss.1994)). The trial court’s decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence. Hunt, 687 So.2d at 1160. “Where the evidence is contradictory, this Court ‘generally must affirm.’ ” Id. (quoting Lesley v. State, 606 So.2d 1084, 1091 (Miss.1992)).

¶ 15. Wilson argues on appeal that the trial court erred in denying his motion to suppress the statements he made when he was stopped by Officer Young. Wilson contends that Officer Young lacked probable cause to stop him. However, Officer Young was aware from the dispatch call that the bank had been robbed, and he was in route to the bank. On the way to respond, Officer Young testified that he saw an individual that appeared to be a shoplifter at the County Market. The individual, later identified as Wilson, was crouched behind cars when the police passed. He then ran down the street and behind a school bus.

¶ 16. Officer Young suspected he was a shoplifter based on his conduct of running and going behind the school bus. Officer Young decided to investigate. He ordered the individual to stop and told him to come here. Officer Young asked the individual his name, and he responded, “bank robber.” Officer Young testified that Wilson was covered in red dye. Officer Young cuffed Wilson and called for assistance. Captain Culbertson and Officer Woodall responded. When asked where the money was, Wilson responded, “It’s your job to find the money, I rob banks.” A steak knife was recovered from Wilson.

¶ 17. Wilson argues that because Officer Young thought he was a shoplifter when he stopped him, Officer Young was stopping a suspect for a misdemeanor crime not committed in his presence. This, Wilson contends, resulted in an illegal arrest, and Wilson’s statements were the fruit of the poisonous tree. Therefore, Wilson argues the trial court erred by not suppressing the statements. However, Wilson’s argument is incorrect and directly contradicts the holdings of this Court. The distinction is not whether the crime was a misdemeanor or a felony for an investigative stop, but whether the officer had reasonable suspicion to believe that a crime had been committed.

¶ 18. In Floyd v. City of Crystal Springs, 749 So.2d 110, 114-15 (Miss.1999), this Court stated:

The constitutional requirements for an investigative stop and detention are less stringent than those for an arrest. This Court has recognized that “given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest,” that is, on less information than is constitutionally required for probable cause to arrest. Singletary v. State, 318 So.2d 873, 876 (Miss.1975). See also McCray v. State, 486 So.2d 1247, 1249 (Miss.1986).
The United States Supreme Court approved this investigatory procedure in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In determining whether there exists the requisite “reasonable suspicion, grounded in specific and articulable facts,” the court must consider whether, taking into account the totality of the circumstances, the detaining officers had a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U.S. at 417-18, 101 S.Ct. at 694-95 (citing Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979)).

(Emphasis added.)

¶ 19. In Singletary, 318 So.2d at 876, this Court held:

Police activity in preventing crime, detecting violations, making identifications, and in apprehending criminals may be divided into three types of action ... (2) Investigative stop and temporary detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest....

¶ 20. The United States Supreme Court has “unequivocably settled the question of the lawfulness of an investigative stop where there is no probable cause to arrest if the officer acts reasonably.” Singletary, 318 So.2d at 877. Thus, the test is one of reasonableness, and neither this Court nor the United States Supreme Court has articulated a concrete rule to determine what circumstances justify an investigatory stop. Green v. State, 348 So.2d 428, 429 (Miss.1977); see Floyd, 749 So.2d at 115. The courts approach this question on a case-by-case basis. Green v. State, 348 So.2d at 429; Floyd, 749 So.2d at 115.

¶ 21. Furthermore, this Court has specifically addressed the felony/misdemeanor distinction raised by Wilson on appeal. Floyd, 749 So.2d at 117. In Floyd, this Court held that the felony/misdemeanor distinction is not the correct test by which to evaluate whether an investigative stop is reasonable. Id. The Court determined that the proper question is not whether the person is suspected of a felony or misdemeanor, but whether a law enforcement officer acted reasonably in stopping the person to investigate a complaint short of arrest. Id.

¶ 22. We find this assignment of error is without merit.

III. J.N.O.V. and Weight of the Evidence

¶23. Wilson made a post-trial motion for new trial or J.N.O.V. The trial court subsequently entered its order denying Wilson’s motion for a new trial or J.N.O.V.

A. J.N.O.V.

¶ 24. A motion for J.N.O.V. challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “[T]his Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” Id. at 778. Here, this occurred when the trial court denied Wilson’s motion for J.N.O.V.

¶ 25. In Bush v. State, 895 So.2d 836, 843 (Miss.2005), this Court set out the standard of review for legal sufficiency as follows:

In Carr v. State, 208 So.2d 886, 889 (Miss.1968), we stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.”

The Court stated:

Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70.

¶ 26. Considering the evidence in the light most favorable to the State, we find there was sufficient evidence to convict Wilson of robbery. Wilson was convicted by the jury on the lesser included offense of robbery. Miss.Code Ann. § 97-3-73 defines robbery as follows:

Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.

¶ 27. Wilson argues that the facts of the case did not support a robbery conviction. However, a review of the record refutes that assertion and demonstrates that the elements of robbery as defined in Miss Code Ann. § 97-3-73 were established. Robinson testified she saw Cunningham putting money in a Wal-Mart bag. Wilson was at Cunningham’s window. Robinson realized the bank was being robbed when she saw Cunningham putting money in a Wal-Mart bag.

¶ 28. Robinson testified that Wilson signaled her to the window and told her “You too.” Cunningham went over to Robinson’s window with the bag. Robinson complied and emptied her drawer into the bag. Wilson then said, “That’s not enough.” Robinson testified that she saw Cunningham go over to the drive-through window to get more-money. When asked if she was scared, Robinson testified in the affirmative, “Of course.” Robinson did not see a knife.

¶ 29. Knox testified she saw Wilson’s knife on the counter and that she was afraid. Knox testified she put the money from her drive-through window into the Wal-Mart bag. Wilson left the bank with the money. Robinson then yelled that the bank had been robbed, and the bank was locked.

¶ 30. When Officer Young stopped Wilson and asked him his name, Wilson responded, “bank robber.” Officer Young cuffed Wilson. Officer Young testified that Wilson had red dye on his hands and his shirt and that a steak knife was recovered from Wilson. Officer Young radioed for assistance. Captain Culbertson responded to the call to assist Officer Young. When Wilson was asked where the money was, Wilson responded, “It’s your job to find the money, I rob banks.” Captain Culbertson testified that a steak knife was recovered from Wilson. Sergeant Woodall also responded to the scene. Sergeant Woodall testified that he collected the steak knife from Wilson’s pocket. Sergeant Woodall also collected money found in a Wal-Mart bag and the clothes that Wilson was wearing.

¶31. Kinnebrew, the bank’s branch manager, testified that the money recovered was the same money taken from the bank in the robbery. Kinnebrew testified the bank maintained an inventory of the bills in the branch location and that the bills are audited each month. These bills were not given out to regular customers but held in the event of a robbery. Kinne-brew testified that the bank used a red dye pack to color the bills taken. The red dye pack was activated by a sensor in the bank.

¶ 32. Accordingly, we find the trial court did not err in overruling Wilson’s motion for J.N.O.V.

B. New Trial

¶ 33. A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial. Id. In Bush, 895 So.2d at 844, this Court set out the standard of review for weight of the evidence as follows:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial, the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000). However, the evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” McQueen v. State, 423 So.2d 800, 803 (Miss.1982). Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial.

¶ 34. Here, we find that no new trial is warranted as the jury’s verdict is consistent with the weight of the evidence. Without again discussing the facts already stated within this opinion, the jury heard the testimony from all the witnesses called by the State. Wilson did not testify, and the defense did not call any other witnesses to testify. The jury determined that based on the evidence presented Wilson was guilty of the lesser-included offense of robbery rather than armed robbery.

¶ 35. We find that the weight of the evidence presented by the State supported the jury’s verdict. Accordingly, we find the trial court did not err in overruling Wilson’s motion for a new trial.

CONCLUSION

¶ 36. For the foregoing reasons, the judgment of the Circuit Court of Warren County, is affirmed.

¶ 37. CONVICTION OF BANK ROBBERY AS A VIOLENT HABITUAL OFFENDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT PAROLE, AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . Wilson served time in federal prison for two counts of bank robbery from 1998 through 2004. Wilson served time in the Mississippi State Penitentiary for automobile burglary from 1995 through 1997.

      . “The plain language of URCCC 7.09, concerning amendment of indictments, makes it readily apparent that prior offenses used to charge the defendant as an [sic] habitual offender are not substantive elements of the offense charged.” Williams v. State, 708 So.2d 1358, 1365 (Miss.1998) (Banks, J., concurring).

      . Wilson was not found guilty of armed robbery.

      . Robinson and Cunningham were named in the indictment. Cunningham did not testify at trial. Cunningham's son had died the day of trial.


author: CARLSON, Justice,

text:
    J.E.W. v. T.G.S.
    No. 2004-CA-02458-SCT.
    Supreme Court of Mississippi.
    June 29, 2006.
    Rehearing Denied Aug. 24, 2006.
    Patricia Peterson Smith, attorney for appellant.
    Lee Davis Thames, Jr., Jackson, J. Mack Varner, Vicksburg, attorneys for ap-pellee.
   CARLSON, Justice,

for the Court.

¶ 1. Today’s appeal involves a request by a minor child’s mother that we refuse to give full faith and credit to two ex parte orders entered by a South Carolina trial court concerning child custody issues litigated by her and the child’s father in both the South Carolina and Mississippi courts. The Warren County Chancery Court entered an order on a petition for writ of habeas corpus affording full faith and credit to the South Carolina court orders. The mother asserts that she was denied due process, and that the execution of the Mississippi chancery court order should have been stayed pending appeal, pursuant to our rules of appellate procedure. We find that the mother’s request for a stay of execution of the chancery court order is without merit. Additionally, because the County Court of Warren County has awarded custody of the minor child to the father in separate proceedings, and that judgment is final, the issue of child custody is moot. Thus, as to the issues raised, we affirm in part, and dismiss in part.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. T.G.S. (Tom) and J.E.W. (Jan) are the natural parents of B.A.S. (Bob), born out of wedlock on June 5, 2003, in Vicksburg, where Tom and Jan were then living. On January 31, 2004, Tom, Jan, and Bob moved to Atlanta, Georgia. Within weeks, because of continuing difficulties in their relationship, Jan and Tom parted ways, and Jan, who was essentially a lifelong resident of Warren County, returned to Vicksburg with Bob. However, Jan and Tom, without court intervention, quickly agreed to an alternating schedule of shared custody whereby each parent had separate custody of Bob every other month. When Tom took custody of Bob in August, 2004, he returned with Bob, not to Atlanta, but instead, to his home state of South Carolina. Likewise, instead of returning Bob to Jan’s custody pursuant to this informal agreement, Tom, in November, 2004, filed a petition for child custody and support and restraining order in the Family Court of the Fourth Judicial Circuit of Darlington County, South Carolina. The South Carolina family court promptly entered an ex parte temporary injunction, enjoining both Tom and Jan from removing Bob from the state of South Carolina, pending a temporary hearing on the issues of child custody and child support and other related issues.

¶ 3. Within days of the entry of this ex parte restraining order, Jan and her sister, without knowledge of the South Carolina court action, traveled to South Carolina to retrieve Bob pursuant to a pre-arranged agreement between Jan and Tom. Although the method of notice is disputed, it is undisputed that by the time Jan and her sister left South Carolina with Bob, Jan was aware of the South Carolina family court temporary restraining order prohibiting Bob from being removed from the state of South Carolina. After returning to Mississippi, Jan, on November 16, 2004, filed a petition for child custody in the County Court of Warren County. Upon learning that Jan had removed Bob from the state of South Carolina, in violation of its previously entered order, the South Carolina family court, by way of a second ex parte order entered on November 22, 2004, awarded Tom custody of Bob pending a hearing, and directed “all law enforcement officers” to assist Tom in retrieving Bob.

¶ 4. On November 29, 2004, Tom filed a petition for a writ of habeas corpus in the Chancery Court of Warren County requesting, inter alia, that full faith and credit be given to the previously entered South Carolina temporary injunction and custody order. On November 30, 2004, a hearing was conducted before Chancellor Vicki R. Barnes, and both Tom and Jan were personally present, and each was represented by Mississippi counsel. The chancellor received testimony from Tom and Jan as well as S.C. (Sally), Jan’s sister, and B.W. (Betty), Jan’s mother. Exhibits were also received into evidence, including certified copies of the relevant South Carolina state court documents, and the petition for child custody which Jan had filed in the County Court of Warren County. After hearing closing arguments from the attorneys in this two-day hearing, the chancellor immediately thereafter rendered her bench ruling, which stated in pertinent part:

The Court notes that ... a copy of a Temporary Injunction, which was certified by South Carolina was filed as Exhibit B. That the Temporary Injunction was entered on November 12th, 2004, by the Family Court of the Fourth Judicial Circuit County of Darlington, South Carolina. That this was an ex parte order without notice to the Respondent, [J.E.WJ. That also as part of this file is a certified copy of an ex parte custody order entered on November the 22nd of 2004, by the same Court, granting ex parte custody to the Petitioner, [T.G.SJ. The Court also notes that a hearing has been scheduled in South Carolina for January 21st of 2005, at 9:45 a.m., where that is set to determine the custody matter and other issues.
The Court has also been advised as part of the testimony that the Respondent has a hearing scheduled for January 14th of 2005, on the Respondent’s Motion to Dismiss or the Alternate Relief Contesting the Jurisdiction of the South Carolina Court.
The Court has also been advised through testimony that the Respondent has filed a custody action in the Warren County Court.
This Court realizes that this dispute involves the issues of custody and proper service of process.
The Court finds that today the only issue before this Court is that of whether or not the South Carolina Order should be afforded full faith and credit, that this is not a custody hearing to be determined by this Court at this time. The Court finds that the issue regarding the service of process has to be brought before the Darlington County, South Carolina Family Court and that Court would have to make a determination. That both parties are represented by attorneys in South Carolina.
The Court finds after considering all of these facts and the evidence presented as well as the applicable law, that the Petition for Habeas Corpus should be granted and the Court has no choice but to return the minor child to the father until there is a hearing by the Family Court of Darlington, South Carolina. Therefore, the Court must, at this time, give full faith and credit to the Darling-ton, South Carolina Court Order.

¶ 5. After the bench ruling from the chancery court, but prior to entry of the written judgment consistent with the bench ruling, Jan, through counsel, filed a motion for a stay of execution of the chancery court judgment pending appeal at 2:38 p.m., on December 1, 2004, the same day as the bench ruling. It was not until 3:23 p.m., on December 1, 2004, that the chancery court judgment was entered. This judgment stated, inter alia, that the South Carolina temporary injunction and custody order would be afforded full faith and credit and that Tom would receive immediate custody of Bob. At 3:25 p.m., on December 1, 2004, Jan filed her notice of appeal with the trial court. On December 2, 2004, the chancellor entered an order denying Jan’s motion for stay of execution of the judgment and directing Jan to deliver Bob “immediately to the Petitioner, T.G. S., in accordance with the Judgment entered in this cause on December 1, 2004.” Likewise on December 2, 2004, Jan, through counsel, filed with this Court an Emergency Petition for Extraordinary Relief or in the Alternative Emergency Petition for Stay Pending Appeal, and by a single-justice order entered on December 3, 2004, Tom and the Warren County Chancery Court were given the opportunity to respond to Jan’s emergency petition. See M.R.A.P. 21. After receiving a response from Chancellor Barnes and Jan’s reply to that response, a three-justice panel of this Court, by order dated December 31, 2004, and entered on January 5, 2005, denied Jan’s Emergency Petition for Extraordinary Relief or in the Alternative Emergency Petition for Stay Pending Appeal.

¶ 6. After the filing of the notice of appeal, but prior to this Court’s receipt of the trial court record in the chancery court proceedings, the County Court of Warren County conducted a two-day hearing on Jan’s petition for child custody, and on March 16, 2005, the county court granted “the permanent care, custody and control” of Bob to Tom, and all remaining issues, “including but not limited to, visitation and child support [were] deferred until a future hearing” to be scheduled by the County Court of Warren County. Thereafter, Jan appealed the county court’s order directly to this Court. On July 26, 2005, a three-justice panel of this Court granted Tom’s motion to dismiss Jan’s appeal of the county court order. The panel order of July 26, 2005, stated, inter alia, that Jan should have appealed the county court order to the Chancery Court of Warren County, and that this Court thus lacked jurisdiction to consider Jan’s appeal of the custody order entered by the County Court of Warren County. Accordingly, Jan’s appeal of the county court custody order was dismissed, without prejudice, and the mandate issued from this Court on August 16, 2005. Jan then filed a motion with the county court for an out-of-time appeal of the county court custody order to the chancery court. The county court denied the motion for an out-of-time appeal. Finally, Jan filed a motion with the county court requesting the court to reconsider the denial of an out-of-time appeal, or in the alternative to grant relief under Miss. R. Civ. P. 60(b). The record is silent as to the disposition of this motion to reconsider by the County Court of Warren County.

¶ 7. In today’s appeal, Jan asserts that the chancery court erred in granting full faith and credit to the South Carolina ex parte orders, and in denying the automatic stay of execution of the chancery court judgment pursuant to the provisions of M.R.A.P. 8. However, Jan filed her notice of appeal on December 1, 2004, before the automatic stay became an issue on the following day at the hearing on her motion to stay the execution of the judgment. Jan’s notice of appeal makes no mention of the automatic stay, as it had not yet arisen as an issue, and instead only makes reference to the order of December 1, 2004. Finding that Jan is entitled to no relief on appeal, we affirm the Warren County Chancery Court’s denial of Jan’s request for an automatic stay of execution of the chancery court judgment pending appeal, pursuant to M.R.A.P. 8(b)(5), and we dismiss as moot Jan’s appeal from the chancery court order affording full faith and credit to the South Carolina family court orders.

DISCUSSION

¶ 8. Jan raises two issues on appeal: (1) whether the Warren County chancellor erred in granting full faith and credit to the ex parte orders from South Carolina; and, (2) whether the chancellor erred in denying the automatic stay under M.R.A.P. 8. We will restate and reorder these issues for clarity in discussion.

I. WHETHER THE CHANCERY COURT ERRED BY DENYING JAN AN AUTOMATIC STAY UNDER M.R.A.P. 8(b)(5)

¶ 9. Jan asks this Court to determine whether the trial court erroneously failed to grant an automatic 10-day stay of enforcement of the judgment pending appeal under Rule 8 of the Mississippi Rules of Appellate Procedure. Jan filed her notice of appeal in this case on December 1, 2004, and the chancery court denial of the automatic stay did not occur until the next day, December 2, 2004. Rule 3(c) requires that the notice of appeal “shall specify the party or parties taking the appeal and the party or parties against whom the appeal is taken, and shall designate as a whole or in part the judgment or order appealed from.” M.R.A.P. 3(c) (emphasis added). Jan is attempting to do the impossible— pursue on appeal an issue arising from events that had not yet taken place at the time she filed her notice of appeal. M.R.A.P. 3(c) also states that an appeal “shall not be dismissed for informality of form or title of the notice of appeal.” However, Jan fails to comply with the Rule 3 requirements no matter how flexible the text regarding form. The event leading to her appeal had not yet occurred at the time she filed her notice of appeal, and thus this issue is not properly before this Court. Notwithstanding this finding, we will address this issue on its merits.

¶ 10. Jan argues she was due an automatic ten-day stay under M.R.A.P. 8(b)(5), which states:

If a hearing is necessary for issues arising under subpart (b), the judgment shall be stayed during such hearing and for ten days following the trial court’s ruling. The ruling of the trial court on motions filed under this subpart (b) shall be reviewable by the Supreme Court or the Court of Appeals.

Therefore, in order for this rule to apply, a hearing must be “necessary for issues arising under subpart (b),” such as “Application for a stay of the judgment or the order of a trial court pending appeal or for approval or disapproval of a contested su-persedeas bond or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal.” M.R.A.P. 8(b)(1). Assuming, ar-guendo, that M.R.A.P. 8 is applicable in this case, Jan is entitled to no relief under this rule. Immediately after the trial court denied a stay of judgment, she petitioned this Court for relief. A three-justice panel of this Court ultimately denied Jan’s request for a stay pending appeal. From the record before us, we again find the trial court committed no error in denying Jan’s request for an automatic stay of execution of the chancery court order. This issue is without merit.

II. WHETHER THE FULL FAITH AND CREDIT ISSUE CONCERNING THE SOUTH CAROLINA EX PARTE ORDERS IS NOW MOOT

¶ 11. When presented with issues of law, we employ a de novo standard of review; and, when confronted with the issue of whether a sister state’s judgment should be given full faith and credit by our courts, we are indeed considering an issue of law. Tel-Com Management, Inc. v. Waveland Resort Inns, Inc., 782 So.2d 149, 151 (Miss.2001) (citing Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss.1998)).

¶ 12. The authority for a court to give full faith and credit to a foreign court’s judgment is found in Article IV of the United States Constitution. “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. Const, art. IV, § 1. This Court has made it clear that we will first look to the requirements of that clause when determining when a judicial proceeding from another state is due full faith and credit. “Our decision must comport with Article IV., § 1 of the United States Constitution requiring us to give full faith and credit to the judicial proceedings of a sister state.” Owens ex rel. Mosley v. Huffman, 481 So.2d 231, 238 (Miss.1985).

¶ 13. Jan makes various arguments, stating first that the enforcement of a foreign judgment is subject to various limitations, including proper jurisdiction of the rendering state court, due process provided to the defendant, and finality of the judgment on its merits. See Tennessee Properties, Inc. v. Southern Pilot Ins. Co., 766 So.2d 44 (Miss.App.2000). Jan argues in part that because Bob had not met the residency requirements, South Carolina did not have jurisdiction. Jan also argues that, in entering the order giving full faith and credit to the foreign ex parte orders, the Warren County Chancery Court erroneously failed to find (1) that the South Carolina trial court had no subject matter or personal jurisdiction; (2) that Jan was not afforded the opportunity to defend herself under her due process rights because of lack of proper service and the ex parte nature of the orders; and, (3) that the orders were not final judgments on the merits deserving of full faith and credit. Jan contends that because these requirements were not met, the ex parte orders were in no way deserving of full faith and credit in Mississippi; and, that, therefore, the chancery court erred in entering its judgment. Tom, on the other hand, argues that the issue is now moot because the County Court of Warren County has already awarded him custody in the separate action initiated by Jan’s filing of her petition for custody and child support.

¶ 14. This Court has stated: “[cjases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot. We have held that the review procedure should not be allowed for the purpose of settling abstract or academic questions, and that we have no power to issue advisory opinions.” Monaghan v. Blue Bell, Inc., 393 So.2d 466, 466-67 (Miss.1980) (internal citations omitted). In Monaghan, this Court was called on to decide the validity of a trial court’s order enjoining a party for one year from working for his former employer’s competitor. However, by the time the case was submitted to this Court on briefs and oral argument, the one-year period of injunction had expired, thus, the issue was moot. We will not adjudicate moot questions. Id.; City of Madison v. Bryan, 763 So.2d 162, 166 (Miss.2000).

¶ 15. This principle of mootness applies in child custody cases as well. In an earlier child custody appeal which this Court dismissed as moot, the trial court had initially entered an order giving custody of the child in a divorce proceeding to the father, but then later entered a decree modifying that order, awarding a two-month period of custody to the mother, who was to redeliver the child to the father at the end of that time. Campbell v. Lovgren, 171 Miss. 385, 157 So. 901 (1934). This Court was presented with the issue of whether the later decree modifying the first order should stand, but never directly addressed that issue because the two-month period had ended. “The period of time during which the custody of the child was changed by the decree appealed from having expired, the questions presented by the record have become purely academic, and therefore no actual controversy is presented for the decision of this court, from which it follows that the appeal should be dismissed.” Id. at 901 (citations omitted). In Savell v. Savell, 206 Miss. 55, 56-57, 39 So.2d 532, 533 (1949), the trial court had directed that the children, who were in custody of their mother following a divorce, be placed in certain boarding schools during that scholastic year, and that the father pay five times per month the amount the mother was to pay. The children were to then be returned to the mother for six weeks, and then transferred to the custody of the father for six weeks. Id. The husband appealed, and this Court relied on Campbell to dismiss the appeal as moot, as the appeal took place after both the school year and the two six-week periods of custody had ended. Id.

¶ 16. Tom argues that he sought a writ of habeas corpus based on the applicable statute, Miss.Code Ann. § 11-43-1, which reads, “[t]he writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto, except in cases expressly excepted.” Tom cites several Mississippi cases where habeas corpus proceedings have ultimately been rendered moot. See Bradley v. State, 355 So.2d 675 (Miss.1978); McGarrh v. State, 243 Miss. 234, 138 So.2d 284 (1962); Serton v. Sollie, 829 So.2d 730 (Miss.Ct.App.2002). Jan, on the other hand, asserts that the original orders from the South Carolina trial court were not due full faith and credit. See, e.g., Morrison v. Mississippi Dep’t of Human Services, 863 So.2d 948 (Miss.2004) (a judgment in a child support proceeding was found void because of lack of jurisdiction and due process violations when one party and his counsel were not present at the hearing as a result of flawed service of process). However, in considering the arguments of both Tom and Jan, we find that Jan’s argument cannot overcome the fact that both proceedings concerning the custody of Bob have come to an end, and neither proceeding resulted in Jan’s obtaining custody of Bob. Jan simply cannot legitimately argue that she was not afforded the opportunity to answer and defend herself in South Carolina when she did in fact do exactly that. She hired an attorney and, only one week after Tom filed his complaint in South Carolina, Jan filed both a motion to dismiss based on lack of jurisdiction and the notice of a hearing on the motion in the South Carolina trial court. Tom points out that the South Carolina trial court ultimately granted the motion in Jan’s favor the following month. The South Carolina custody orders were only temporary, pending a hearing. It appears now that the hearing has taken place, and the case has been dismissed because of lack of jurisdiction. More damaging to Jan’s case is the March 16, 2005, order by the County Court of Warren County, awarding Tom the permanent care, custody, and control of Bob in a proceeding Jan herself initiated. Therefore, a court which Jan admits did have proper jurisdiction has now also heard the matter and entered its final judgment awarding “the permanent care, custody and control” of Bob to Tom. Based on the actions of the South Carolina and Mississippi courts, we find that this controversy has now expired at the time of review, making this appeal moot. See Monaghan, 393 So.2d at 466. As noted, we have made it clear that we will not adjudicate moot questions. City of Madison, 763 So.2d at 166.

¶ 17. However, relying on Allred v. Webb, 641 So.2d 1218, 1220 (Miss.1994), Jan attempts to argue, just as the Allred appellant did, that this case should not be dismissed as moot because it is a matter of public interest and therefore an exception to the rule applies. Jan raises the “capable of repetition but evading review” doctrine employed by the United States Supreme Court in Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). This Court in Strong v. Bostick, 420 So.2d 1356, 1359 (Miss.1982), adopted the two-part Weinstein rule that the question of mootness is not applied to matters of public interest, determined by a two-part test, reiterated in Allred. “To utilize the ‘capable of repetition but evading review’ doctrine, these two elements must be combined: (1) The challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subject to the same action again.” Allred, 641 So.2d at 1220. In Strong, this Court found that the Weinstein factors were present and that the question was not moot. 420 So.2d at 1359. In today’s case, we cannot find that both prongs are met as there is no reasonable expectation that Jan will be subject to the same action again; thus, the exception does not apply.

¶ 18. Jan next cites the pre-Weinstein case of Sartin v. Barlow, 196 Miss. 159, 16 So.2d 372, 376 (1944), relied on by Strong, which applied the public interest exception because that case dealt with election proceedings, no doubt a matter of public interest. Another case relied on by Jan, Board of Trustees of Pascagoula Mun. Separate School Dist. v. Doe, 508 So.2d 1081, 1084 (Miss.1987), is also inapplicable here because the Court in that case dealt with a matter of public concern, Mississippi’s compliance with the Education for all Handicapped Children Act. Jan likewise cites Allred because in that case, the two elements were not both met but the Court nonetheless proceeded to publish an opinion concerning the district attorney, relying on Sartin. However, the Court in Allred distinguished that particular case by holding, “[t]his situation is clearly not a mere private dispute between two parties since future district attorneys inevitably will find themselves in the same quandary as Allred found himself in 1991.” Allred, 641 So.2d at 1220. The same is not true here, however. This case is a private dispute between two parties and does not involve matters of such public interest present in Allred, Doe, and Sartin such that we are compelled to do anything except dismiss the case as moot. To do otherwise would be to issue an advisory opinion impermissibly, or to attempt to settle abstract or academic questions. See Monaghan, 393 So.2d at 466-67.

¶ 19. This Court in Allred also reiterated the Monaghan rule that we are normally not to delve into what are essentially advisory opinions. 641 So.2d at 1220. The Monaghan warning against advisory opinions is not a new rule, but reaches as far back as 1934. “Though earnestly requested by counsel to depart from this rule and to say whether or not the decree of the court below should have been rendered, in order that the court may be guided thereby should another petition be filed for the modification of the decree rendered in the divorce proceeding, we do not feel at liberty to do so. Such an opinion would be merely advisory, and the rendering of opinions of that character are not within the province of this Court. Moreover, whether or not that decree should be modified will depend on facts and circumstances that may exist when a petition for that purpose is heard by the court.” Campbell, 157 So. at 901.

¶ 20. We thus find in today’s case that the facts and circumstances involving child custody are too case-specific and sensitive for the Court to lay down a blanket rule when the controversy before us has terminated. The question Jan presents to this Court is now moot. We therefore dismiss the appeal as to this issue.

CONCLUSION

¶ 21. The chancery court did not err in refusing to grant Jan an automatic ten-day stay under M.R.A.P. 8(b)(5). As to the chancery court affording full faith and credit to the South Carolina orders, there is simply no remaining issue that is anything other than academic in this case. The South Carolina proceedings have been dismissed, and the County Court of Warren County has entered a final judgment awarding the custody of Bob to his natural father in a proceeding that the natural mother herself began. The natural mother’s question now presented to this Court on appeal is thus moot.

¶ 22. For these reasons, the judgment of the Chancery Court of Warren County is affirmed in part and dismissed as moot in part.

¶ 23. AFFIRMED IN PART AND DISMISSED IN PART.

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

      . Since a minor child is involved, fictitious names are used for the parties to maintain confidentiality.


author: COBB, Presiding Justice, CARLSON, Justice, Specially

text:
    Jamarcus D. SHUMPERT v. STATE of Mississippi.
    No. 2004-KA-02533-SCT.
    Supreme Court of Mississippi.
    June 29, 2006.
    Rehearing Denied Aug. 24, 2006.

      John Carl Helmert, Jr., Clarksdale, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before COBB, P.J., DICKINSON and RANDOLPH, JJ.
   COBB, Presiding Justice,

for the Court.

¶ 1. Jamarcus D. Shumpert, Conigan Ju-don, and Quatero Middlebrooks were indicted for the depraved heart murder of Jimmy Collier. Judon and Middlebrooks pleaded guilty to a reduced charge, and a jury found Shumpert guilty of manslaughter by culpable negligence. Aggrieved by the outcome of the trial, Shumpert appeals to this Court. We affirm the trial court.

FACTS

¶ 2. On the evening of September 26, 2003, Shumpert, Judon and Alex Dean were sitting on Lisa Southward’s porch in Tupelo, Mississippi. Collier arrived in front of the house, in a car driven by Stephen Tucker, then walked up to the porch and asked to purchase cocaine. Shumpert said there were too many police officers around and asked Collier to leave.

¶3. As Collier was leaving, a vehicle driven by Southward approached with Middlebrooks in the passenger seat. Collier approached the driver’s side door of the vehicle to speak to Southward, and Shumpert shouted from the porch to Mid-dlebrooks, telling him to hit Collier. Mid-dlebrooks stepped out of the vehicle and struck the side of Collier’s head or his neck.

¶ 4. At this point, the witnesses’ testimony begins to diverge. Shumpert and Tucker said they saw Collier reach for something in his pants, and Shumpert said he hit Collier because he perceived this movement as threatening to Middlebrooks’ safety. However, according to Dr. Stephen Hayne, a physician practicing in the fields of forensic and anatomic pathology, no weapon was found on Collier’s person during examination. Tommy Morris, another witness, testified that Middlebrooks drove away after hitting Collier. Middle-brooks and Southward said Middlebrooks got back into the car after hitting Collier. Middlebrooks said he was not threatened by Collier.

¶ 5. After Shumpert struck Collier, causing him to fall to the pavement, there was testimony that Judon stomped or kicked the victim in the head, although Judon himself testified that he merely placed his foot on Collier’s face. Morris testified that Shumpert participated in kicking Collier in the head, but no other witnesses saw this happen, and Judon testified that Shumpert said nothing that motivated him to attack Collier. After the attack, Shumpert and Judon then turned and ran because, according to Shumpert, they thought Collier had some sort of weapon. Shumpert testified later that Collier never did anything to threaten, insult, or attack him. Shum-pert was seen running across some railroad tracks with Judon after this incident, but he later returned to the porch and was told to leave. The next day Collier died from trauma to the head.

¶ 6. Judon and Middlebrook pleaded guilty to reduced charges. A jury found Shumpert guilty of manslaughter by culpable negligence, and he was sentenced to 20 years in the custody of the Mississippi Department of Corrections with five years suspended. The trial court subsequently rejected Shumpert’s motion for a judgment notwithstanding the verdict or for a new trial. He now appeals to this Court, raising numerous issues which we have consolidated into the following categories: (1) sufficiency of the evidence; (2) errors pertaining to the jury instructions; (3) exclusion of “theft” evidence; (4) prosecuto-rial misconduct; and (5) cumulative error.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶ 7. Shumpert argues the evidence is insufficient because he committed an intentional act, which cannot form the basis for a conviction of manslaughter by culpable negligence. In other words, if the jury was going to convict him of anything, it should have been depraved heart murder; therefore, the jury verdict was irrational. Hence, Shumpert argues the trial court erred when it refused to grant his motion for a directed verdict, a peremptory instruction, or a judgment notwithstanding the verdict. On the issue of jury irrationality, the United States Supreme Court has said:

inconsistent verdicts ... should not necessarily be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury’s error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause.
Inconsistent verdicts therefore present a situation where “error,” in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course.
... there is no reason to vacate respondent’s conviction merely because the verdicts cannot rationally be reconciled. Respondent is given the benefit of her acquittal on the counts on which she was acquitted, and it is neither irrational nor illogical to require her to accept the burden of conviction on the counts on which the jury convicted.

United States v. Powell, 469 U.S. 57, 65, 69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (citations omitted).

¶ 8. This Court has adopted the rule that review of the sufficiency of the evidence is adequate protection from jury irrationality. Holloman v. State, 656 So.2d 1134, 1141 (Miss.1995). Further, a motion for J.N.O.V., peremptory instruction, and directed verdict all challenge the legal sufficiency of the evidence. Hawthorne v. State, 835 So.2d 14, 21 (Miss.2003). When reviewing the sufficiency of the evidence, this Court must ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (Miss.2005). The proper remedy for a verdict based on insufficient evidence is for this Court to reverse and render. Id.

¶ 9. In support of his argument Shum-pert first cites Hurns v. State, 616 So.2d 313, 315 (Miss.1993), in which the defendant was convicted for beating a fellow inmate to death in jail. The medical examiner determined the cause of death to be massive trauma to the brain as a result of multiple blows to the head with a blunt object in a short period of time, and Hums was found guilty of murder after the trial court denied his request that the jury be given an instruction for manslaughter by culpable negligence. Id. at 320. This Court rejected his argument on appeal, holding that the murder instruction was proper because his acts were intentional, not reflecting culpable negligence, defined as a flagrant and reckless disregard for the safety of others, or willful indifference to the injury liable to follow. Id.

¶ 10. Shumpert also cites Goff v. State, 778 So.2d 779 (Miss.Ct.App.2000). The defendant in that case was convicted for hitting a bar patron and lacking him twice. Id. at 781. The jury was instructed on both murder and manslaughter, and the defendant requested an instruction on manslaughter by culpable negligence. Id. at 782. The court held he was not entitled to a culpable negligence instruction because his acts were intentional, rather than evidencing culpable negligence. Id.

¶ 11. The third case cited by Shumpert is Sanders v. State, 781 So.2d 114 (Miss.2001). This case concerned a defendant found guilty of deliberate design murder. Id. at 116. He argued that the trial court erred by not instructing the jury on manslaughter by culpable negligence. Id. at 119. This Court rejected that argument, pointing out that all the testimony revealed that the defendant intentionally hit the victim with a hammer, making an instruction on manslaughter by culpable negligence inappropriate. Id.

¶ 12. Shumpert argues that these cases require this Court to reverse and render. He claims that the State failed to prove a prima facie case for depraved heart murder, and should not have been allowed to fall back on manslaughter by culpable negligence when that instruction does not fit the facts of this case. The State made a general argument that the evidence was sufficient to sustain the verdict.

¶ 13. All three cases cited by Shumpert are distinguishable. In each, the defendant requested the instruction of manslaughter by culpable negligence, but that instruction was not given to the jury. In the current case, the jury was instructed on both depraved heart murder and culpable negligence manslaughter, and decided that manslaughter was more appropriate. In addition, there was conflicting evidence at trial, which makes it implausible on appeal to ascertain what version of the story the jury believed. Shumpert is asking this Court to make the broad declaration that intentional acts cannot form the basis for culpable negligence. However, “[cjulpable negligence must be ascertained from the facts of each case, and no ironclad statement can be set forth as applicable to all classes of cases.” Sims v. State, 149 Miss. 171, 115 So. 217, 219 (1928).

¶ 14. Shumpert also seeks to make a distinction between an intentional act leading to death and a negligent, or accidental act leading to death, arguing that because he intended to deliver the blow to Collier, he cannot be guilty of manslaughter by culpable negligence. This attempted distinction is flawed because manslaughter by culpable negligence is “such gross negligence ... as to evince a wanton or reckless disregard for the safety of human life, or such an indifference to the consequences of an act under the surrounding circumstances as to render such conduct tantamount to willfulness.” Evans v. State, 562 So.2d 91, 95 (Miss.1990) (citations omitted). The only requirement is recklessness or a willful disregard for an unreasonable risk. Campbell v. State, 285 So.2d 891, 893 (Miss.1973). Furthermore, a recognized distinction between manslaughter by culpable negligence and depraved heart murder concerns the degree of mental culpability. Windham v. State, 602 So.2d 798, 801 (Miss.1992). The determination of a defendant’s mental culpability is an issue properly resolved by the jury. Morris v. State, 748 So.2d 143, 148 (Miss.1999).

¶ 15. Shumpert admitted hitting Collier even though Collier never threatened, insulted, or attacked him. Shumpert said he did this because he thought Collier had some kind of weapon, and was going to hurt Middlebrooks. The jury could have determined this series of events constituted criminal negligence because Shumpert stated he did not intend to kill Collier, but nevertheless hit him and left him lying on the street without medical attention after the attacks. Morris testified that Shum-pert, along with Judon, repeatedly kicked Collier while he was on the ground. The jury could have decided Shumpert was criminally negligent because he acted in concert with or instigated Judon and Mid-dlebrooks in bringing about harm, and later death, to Collier. Pursuant to the evidence presented, a rational juror could have determined that Shumpert was guilty of manslaughter by culpable negligence.

¶ 16. Manslaughter is a lesser-included offense of murder. State v. Shaw, 880 So.2d 296, 304-05 (Miss.2004); Fairley v. State, 871 So.2d 1282, 1284-85 (Miss.2003) (this Court held that an instruction which stated that culpable negligence manslaughter is a lesser-included offense of murder was properly submitted to the jury). Mississippi law requires trial courts to instruct juries on lesser-included offenses unless the lesser-included offense has no basis in evidence. Clark v. State, 693 So.2d 927, 932 (Miss.1997). There is a basis in evidence for the culpable negligence manslaughter charge because a blow delivered by one individual to another can be intentionally delivered, and at the same time negligently delivered with excessive force. See Campbell, 285 So.2d at 893. Therefore, the trial court was required to give the instruction.

¶ 17. We see no reason for this Court to reverse Shumpert’s conviction and render a contrary decision simply because he engaged in an action or some actions that may have been intentional. The jury was properly charged with determining which crime encompassed Shumpert’s mental state, and the evidence in the record is sufficient to support this decision. Shum-pert’s argument is without merit.

II. JURY INSTRUCTIONS

¶ 18. Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. Rushing v. State, 911 So.2d 526, 537 (Miss.2005). Shumpert is entitled to have jury instructions given which represent his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Byrom v. State, 863 So.2d 836, 874 (Miss.2003). Jury instructions are within the sound discretion of the trial court. Goodin v. State, 787 So.2d 639, 657 (Miss.2001).

A) The failure to instruct the jury on simple assault

¶ 19. The proposed instruction on simple assault stated that: “[t]he Court instructs the jury that if Jamarcus Shumpert knowingly, recklessly or purposefully caused bodily harm to the decedent, then Jamarcus Shumpert is guilty of a simple assault.” The trial judge refused to allow the jury instruction on simple assault, saying:

I think we are faced with a unique set of facts in this case because this defendant admitted from the stand that he threw the punch or threw a punch. But to give this instruction, I’ve got to believe that simple assault is a lesser crime of manslaughter and that simple assault is a lesser crime or of murder, and in this instance, there is a death. And I’m going to deny the instruction.

¶20. Shumpert gives three reasons why this instruction should have been given. He argues that simple assault is a lesser-included offense of murder, and therefore the jury should have been instructed on its elements. He cites Clark, 693 So.2d at 932, for the rule that a lesser-included offense instruction is required unless, considering the evidence in the light most favorable to the accused, no rational jury could have found the defendant guilty of the lesser-included offense, or not guilty of the greater offense. While Shumpert correctly cites the Clark rule, he makes an incorrect assumption that assault is a lesser-included offense of murder. In Wolfe v. State, 743 So.2d 380, 387 (Miss.1999), this Court reiterated the longstanding rule in Mississippi that assault is not a lesser-included offense of murder. Further, the jury was instructed on manslaughter, which is a lesser-included offense of murder. See Shaw, 880 So.2d at 304-05. Therefore, this argument is without merit.

¶ 21. Second, Shumpert argues that a defendant is entitled to an instruction embodying his theory of the case if that instruction is supported by the evidence and is a correct statement of law, citing Montana v. State, 822 So.2d 954, 962 (Miss.2002). He claims there is sufficient evidence in the record to support a jury instruction on simple assault. From the record, it appears that Shumpert’s theory of the case was that although he assaulted Collier, Judon actually caused Collier’s death by kicking or stomping him when he was on the ground. In his opening statement, Shumpert’s attorney laid out this theory:

You will hear the evidence of how [Shumpert] hit a man once. Somebody else came along and kicked him. And I’ll ask you not to find him responsible, Jamarcus here, I’ll ask you not to find Jamarcus responsible for the actions of some other individual, and I’ll ask you to find him not guilty.

Shumpert testified at trial that he hit Collier once, and denied kicking Collier along with Judon. Morris testified he saw Shumpert take part in stomping on Collier’s head. The trial judge heard all the evidence and made the determination that the record did not justify an instruction on simple assault.

¶22. Assuming arguendo that Shum-pert did not stomp or kick Collier along with Judon, there is still credible evidence that he aided and abetted in bringing about the death of Collier, making him guilty for Collier’s death. See Doss v. State, 882 So.2d 176, 196 (Miss.2004) (The law is well settled in this State that any person who is present, aiding and abetting another in the commission of a crime, is equally guilty with the principal offender).

¶ 23. Shumpert admitted to hitting Collier in the face, and there is evidence this blow knocked Collier to the ground, where he was left without medical attention. The evidence shows that Shumpert did shout at Middlebrooks to hit Collier, and Middle-brooks subsequently exerted a blow to Collier’s head or neck. There is testimony that Shumpert and Judon kicked Collier in the head. Shumpert was later seen running with Judon after the beating, and when asked why they ran, Judon said he and Shumpert “knew we done did something bad.”

¶ 24. Lesser offense instructions should not be granted indiscriminately, and only where there is an evidentiary basis in the record. Gangl v. State, 539 So.2d 132, 136 (Miss.1989). Further, “[u]nwarranted submission of a lesser offense [instruction] is an invitation to the jury to disregard the law.” Stewart v. State, 909 So.2d 52, 55 (Miss.2005). We do not find the trial judge abused her discretion by refusing to instruct the jury on simple assault because the record does not support a charge of simple assault.

B) The flight instruction

¶ 25. Pertaining to the flight instruction, the trial judge stated:

[Shumpert] did flee in this case, and this instruction when read carefully states this: That he did flee from the scene. That’s true. Then the flight of Shum-pert is to be considered in connection with all other evidence in the case. You will determine from all the facts whether the flight was from a conscious sense of guilt or whether it was caused by other things, which is testimony that’s in the record. The other things might very well be that he thought that Mr. Collier had something in his pockets. I’m going to allow P-7.

¶ 26. Shumpert cites the rule in Mississippi that flight instructions are only allowed when the flight is unexplained and considerably probative of guilt. Liggins v. State, 726 So.2d 180, 182 (Miss.1998). He also cites Tran v. State, 681 So.2d 514, 519 (Miss.1996), which says that flight instructions are particularly inappropriate when self-defense is claimed, because often the flight is to avoid retribution. Shumpert says he fled to avoid being hurt by Collier. He claims this is a valid reason to explain the flight, making the flight instruction inappropriate.

¶27. The State makes the counter-argument that the flight was evidence of consciousness of guilt, based on Judon’s testimony that he and Shumpert ran because they “knew we done did something bad”. The State also points out that Shumpert did not just flee from the vicinity of Collier, who by Shumpert’s own admission had done nothing to threaten or menace him, but went by the laundromat in an effort to escape possibly being injured. The State asserts that the issue of self-defense was for the jury to decide, and the instruction on flight was proper for the jury to be fully informed of the pertinent law.

¶ 28. The only explanation Shumpert offers for the flight is that he was running to avoid being hurt by Collier. However, as the State correctly points out, Shumpert also said that Collier did nothing to threaten or harm him. In addition, Middle-brooks (the man that Shumpert claimed to be protecting when he hit Collier) said he was not threatened by Collier either. Further, the medical examiner never found a weapon of any kind on Collier, and Shumpert fled much further away than the parameter within which Collier, who was lying on the ground after being attacked, could have inflicted harm on him. All of this evidence supports the contention that the flight was not explained by any reason other than consciousness of guilt. The trial court agreed and granted the flight instruction, and it did not err in doing so.

C) The aiding and abetting instruction

¶ 29. With regard to the aiding and abetting instruction, the trial judge stated:

The Court is going to allow P-6. There has been much discussion about this instruction in chambers, and I am — have referred to the Milano decision. I think the instruction does properly instruct the jury that before they can find the defendant to be criminally responsible for acts of others it’s necessary that he deliberately associate himself in some way with the crime, in other words, that he is a participant and not a mere spectator. And I think the proof is sufficient in this case to show that he was a participator, not a mere spectator.

¶ 30. Shumpert disagrees with the trial judge and argues that the instruction was not founded in evidence. Shumpert says he did nothing to incite, encourage, or approve of the crime that Middlebrooks or Judon committed. More specifically, he avers that there is no proof that Middle-brooks heard Shumpert tell him to hit Collier. Shumpert also argues that there was no common purpose behind the attacks on Collier. Because of this, he asserts the instruction on aiding and abetting was inappropriate.

¶ 31. The State counters by pointing out that Shumpert provided assistance by striking Collier, causing him to fall to the ground. In addition, the State correctly states that aiding and abetting does not require a common plan or scheme, unlike conspiracy, with which no one in this case has been charged.

¶ 32. That Shumpert aided and abetted in bringing about the death of Collier is supported by the evidence set forth supra. There is clearly enough evidence of aiding and abetting in the record to preclude finding error from the instruction. The trial court did not err in giving the aiding and abetting instruction.

D) The failure to instruct the jury on causation

¶ 33. Shumpert’s final argument with regard to jury instructions concerns the trial court’s failure to explicitly instruct the jury on causation. Shumpert also argues the instructions given should have been more precise in order to make it clear to the jury that if he did not aid and abet, then his blow(s) must have been the cause of death for him to be guilty. He cites Thompson v. State, 220 Miss. 200, 205, 70 So.2d 341, 342 (1954), for the rule that a person cannot be criminally responsible for the death of a person wounded if the death resulted from an independent cause.

¶ 34. The trial court did not err. Both the manslaughter and murder instruction contained language of causation. Further, the aiding and abetting instruction adequately incorporated causation language necessary to inform the jury of the difference between being held liable as a principal versus being held liable as someone who aided and abetted. The jury instructions, when read as a whole, adequately stated the law and informed the jury of its proper role in the case.

III. THE “THEFT” EVIDENCE

¶ 35. A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the trial judge abuses this discretion so as to prejudice the accused, the Court will not reverse the ruling. Walker v. State, 878 So.2d 913, 915 (Miss.2004) (quoting Jefferson v. State, 818 So.2d 1099, 1104 (Miss.2002)).

¶ 36. Shumpert sought to introduce evidence to impeach Tommy Morris, a witness for the State, contending Morris reached into the pocket of Collier and stole some money. Shumpert argues this evidence is critical because Morris, who the State portrayed as a model citizen, was the only person who testified that Shumpert repeatedly kicked Collier. Shumpert concedes that the evidence can be used only for evaluation of Morris’s perception of the events under Mississippi Rules of Evidence 608, which bars its use to attack his character. Shumpert claims the evidence is admissible to show that Morris was too consumed by his thoughts about taking the money from the pockets of a dying man to think clearly enough to correctly evaluate what transpired. In its motion to suppress, the State argued that Shumpert was attempting to use this evidence to inflame the jury, rather than for impeachment purposes. The State contends that the trial court’s ruling not to admit the evidence was not an abuse of discretion and no substantial right of Shumpert’s was violated.

¶ 37. The trial judge ruled that under M.R.E. 608 Morris could be questioned about this alleged theft, but his answer could not be attacked with extrinsic evidence. The trial judge properly read M.R.E. 608 to allow for impeachment by specific acts, other than criminal convictions, when the character trait of truthfulness of the witness is under attack. See M.R.E. 608(b). The trial judge correctly held that this can only be done by questioning the witness, excluding the use of extrinsic evidence. See M.R.E. 608(b). Morris was questioned on cross-examination about stealing money, and he denied it. The rules of evidence do not allow further questioning. Shumpert’s argument that he sought to introduce this evidence to show that Morris was too concerned with stealing to accurately perceive what happened is not persuasive. This evidence goes directly to the credibility of Morris’s testimony. The trial court did not err in its ruling.

IY. PROSECUTORIAL MISCONDUCT

¶ 38. Attorneys are allowed wide latitude in arguing their cases to the jury, but they are not allowed to employ tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. Sheppard v. State, 777 So.2d 659, 661 (Miss.2000). If this Court determines the prosecutor did engage in misconduct during closing argument, the inquiry is “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Id., citing Ormond v. State, 599 So.2d 951, 961 (Miss.1992).

¶ 39. Shumpert objected to, and now assigns error to, the following statement made by the prosecution during closing argument: “Self-defense? I do not know why Dee Dee and Cornell jumped on Jimmy. Dee Dee and Jimmy have been jumping on a lot of people lately.” Shumpert says this statement constituted misconduct because it referred to prior bad acts in violation of M.R.E. 404(b). This rule prohibits prior bad acts as character evidence to show that the defendant acted in conformity with those acts on the present occasion. The State argues this one statement was not enough to command reversal.

¶40. The prosecutor’s statement was not improper. He was referring to a statement from Middlebrooks that was admitted into evidence as exhibit 3 over a general objection. The prosecutor may comment on any facts introduced into evidence and may draw whatever deductions and inferences that seem proper to him from the facts. Flowers v. State, 842 So.2d 531, 554 (Miss.2003).

¶ 41. However, even if this Court found the statement to be improper, there was no resultant prejudice. The statement constituted one sentence and did not refer to any specific incident, and it was already admitted into evidence in exhibit 3 over a general objection. Thus, we find this assignment of error is without merit.

V. CUMULATIVE ERROR

¶ 42. In Byrom, 863 So.2d at 847, this Court said:

... upon appellate review of cases in which we find harmless error or any error which is not specifically found to be reversible in and of itself, we still have the discretion to determine, on a case by case basis, as to whether such error or errors, although not reversible when standing alone, may when considered cumulatively require reversal because of the resulting cumulative effect.

¶ 43. A criminal defendant is not entitled to a perfect trial, only a fair one. Sand v. State, 467 So.2d 907, 911 (Miss.1985). In this case, we have not found harmless error or any error. This argument without merit.

CONCLUSION

¶44. We affirm the trial court on all issues. The evidence was sufficient to sustain the conviction for manslaughter by culpable negligence; the trial court did not err with respect to the jury instructions; the “theft” evidence was properly excluded; and the prosecutor’s statement in closing argument did not constitute misconduct. Further, because there were no errors committed by the trial court, there is no cumulative error. Therefore, we affirm the trial court’s judgment.

¶ 45. CONVICTION OF MANSLAUGHTER BY CULPABLE NEGLIGENCE AND SENTENCE OF TWENTY (20) YEARS WITH FIVE (5) YEARS SUSPENDED, WITH CONDITIONS, FIVE (5) YEARS ON POST-RELEASE SUPERVISION, IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $2500.00 AND COURT COSTS, AFFIRMED.

SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. CARLSON J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J., DIAZ, EASLEY AND DICKINSON, JJ.; GRAVES JOINS IN PART.

CARLSON, Justice, Specially

Concurring:

¶ 46. While I unhesitatingly join my colleagues in the majority in an excellently written opinion affirming Jamarcus Shum-pert’s conviction and sentence for culpable negligence manslaughter, I write separately to once again emphasize my dislike of the so-called flight instruction. As correctly concluded in the majority opinion, the learned trial judge, in quite appropriately analyzing the evidence before the court at the time of the jury instruction conference, acted consistent with our case law in granting the State’s proposed flight instruction. However, in my opinion the State is rolling the dice, as far as potential reversible error, each time it submits a proposed flight instruction to the trial judge for consideration.

¶ 47. In Randolph v. State, 852 So.2d 547, 567-68 (Miss.2002) (Carlson, J., specially concurring), I stated:

While I agree with the majority that the giving of the “flight instruction” was proper, based on the facts and circumstances of this particular case, and the applicable case law, the use of the flight instruction in this state can be described in one word-“dangerous.” In my years of experience as a trial judge, the flight instruction was very seldom requested by the prosecution and almost never given. It simply is not needed. While evidence of flight might be relevant, no legitimate purpose is served by the jury receiving an instruction from the trial court (which heightens the importance of the evidence in the eyes of the jury) highlighting for the jury the fact that the jury can consider evidence of flight as “a circumstance of guilt or guilty knowledge” when “that flight is unexplained and somehow probative of guilt or guilty knowledge.” See Reynolds v. State, 658 So.2d 852, 856 (Miss.1995); Fuselier v. State, 468 So.2d 45, 57 (Miss.1985). The term “unexplained flight” is somewhat nebulous, anyway, and a trial court, by giving a flight instruction, simply puts itself in a position of possibly placing reversible error in an otherwise clean record. If a trial court persists in giving a flight instruction, I suggest that it do so with great caution.

Id. at 567-68.

¶ 48. This Court recently stated:

However, a flight instruction is appropriate only where the flight is unexplained and somehow probative of guilt or guilty knowledge. Id.[Fuselier v. State, 702 So.2d 388 (Miss.1997)] Therefore, evidence of flight is inadmissible where there is an independent reason for the flight. Id. Also, it is well settled that evidence of flight or escape is admissible as an exception to M.R.E. 404(b) in order to show guilty knowledge. Davis v. State, 722 So.2d 143, 145 (Miss.1998); Mariche v. State, 495 So.2d 507, 508 (Miss.1986) (citing Lee v. State, 457 So.2d 920, 923 (Miss.1984)); Hill v. State, 432 So.2d 427 (Miss.1983). While evidence of flight is admissible under Rule 404(b), it must be filtered through M.R.E. 403. See Ford v. State, 555 So.2d 691 (Miss.1989). Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
M.R.E. 403. In determining whether to admit evidence of flight under Rule 403, the trial court is afforded great discretion. Foster v. State, 508 So.2d 1111, 1118 (Miss.1987).

Shaw v. State, 915 So.2d 442, 447 (Miss.2005). In Shaw, we went on to state:

Generally, we have upheld evidence of flight as well as flight instructions only where there was no independent reason or basis for flight. See Jimpson v. State, 532 So.2d 985 (Miss.1988); Mariche v. State, 495 So.2d 507 (Miss.1986). Because Shaw possessed a sufficient, independent basis for his flight, we hold that the trial court erred in allowing testimony of his escape to be presented to the jury in order to infer guilt or guilty knowledge to the charge of capital murder.
While acknowledging that it was error to allow the flight testimony, we conclude that such error was harmless beyond a reasonable doubt. A thorough review of the record reveals that Shaw’s two companions, Joseph and Reginald, testified that Shaw murdered Duffle. Shaw was placed at the scene of the murder by other corroborating evidence. The bullet extracted from Joseph’s knee was fired from the same weapon used to kill Duffle. In sum, the evidence of Shaw’s flight pales in comparison to more direct evidence of his guilt. Under the facts before us, we hold that admission of Shaw’s escape was harmless error.

Id. at 448. However, in Walker v. State, 913 So.2d 198, 234 (Miss.2005), we stated that “[t]his Court is not prepared to condemn flight instructions. We caution trial courts to only allow such instructions in the rarest of cases.”

¶ 49. Finally, in reversing an aggravated assault/armed robbery conviction, based, in part, on the erroneous giving of a flight instruction, this Court stated:

At trial, Liggins’s counsel specifically objected to the deliverance of the flight instruction by pointing out that more than one incident could have been reason for the flight. This Court has established that flight generally is admissible as evidence of consciousness of guilt. Fuselier v. State, 702 So.2d 388, 390 (Miss.1997) [hereinafter Fuselier III]; see also Williams v. State, 667 So.2d 15, 23 (Miss.1996). Yet, pursuant to such an objection, this Court reasons that “an instruction that flight may be considered as a circumstance of guilt or guilty knowledge is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.” Fuselier v. State, 468 So.2d 45, 56-57 (Miss.1985) [hereinafter Fuselier I ], see also Reynolds v. State, 658 So.2d 852, 856 (Miss.1995). When determining whether a flight instruction is appropriate, we further have explained that two considerations are paramount: (1) only unexplained flight merits a flight instruction; and (2) flight instructions are to be given only in cases where that circumstance has considerable probative value. Banks v. State, 631 So.2d 748, 751 (Miss.1994); Pannell v. State, 455 So.2d 785, 788 (Miss.1984); Tran v. State, 681 So.2d 514, 519 (Miss.1996); see also Mack v. State, 650 So.2d 1289, 1308 (Miss.1994); and see Brown v. State, 690 So.2d 276, 294 (Miss.1996). A flight instruction is appropriate where flight is “highly probative” to the facts of the particular case. Fuselier III, 702 So.2d at 390. Evidence of flight is inadmissible where, as in this case, there is an independent reason for flight known by the court which cannot be explained to the jury because of its prejudicial effect upon the defendant. Id. Indeed, in Fuselier I, we stated the turning principle in this case:
Fuselier was obviously put in a no-win situation by either being required to explain his flight and the fact that he was a prison escapee or not explaining the flight and subjecting himself to a flight instruction. Here, because the court was aware of an explanation for Fuselier’s flight, which was at that time inadmissible, we are of the opinion that the flight instruction should not have been granted.
Fuselier I, 468 So.2d at 57.
Plenty of evidence exists that Liggins may not have known from what he was fleeing. The record reflects Liggins’s concern about carrying a weapon, gambling, drinking, and involvement with drugs, not to mention the counts on which this case is based. The record further reflects that Liggins was “under indictment in Cause Number 11,960-V from October 1994 for sale of cocaine as an offense that happened on August the 12th, 1994.” Given such prejudicial information, Liggins’s September 23 flight may have been from guilt of selling cocaine, rather than the counts at issue in this case.

¶ 50. This case is best summed by our own words:

... To paraphrase previous considerations by this Court, no person accused, however angry the people, however evil the crime, regardless of how strong the appearance of guilt, can be denied the full protection of the law and a fair and orderly trial.
Fuselier III, 702 So.2d at 394.

Liggins v. State, 726 So.2d 180, 183-84 (Miss.1998).

¶ 51. In sum, I can only imagine how many (or how few) criminal cases have been tried in this state, where the jury, in privately deliberating in the jury room, came to the conclusion, that “well, this might be a close case of the defendant’s guilt, but because of this flight instruction that the judge gave us, let’s find the defendant guilty.” Stated differently, if the State of Mississippi, represented by the elected District Attorney in any one of our twenty-two circuit court districts, is concerned about whether sufficient evidence has been presented in a particular case to convince the jury of the defendant’s guilt, to the extent that the State is willing to run the serious risk of placing the trial court in error by submitting a flight instruction, then, in my opinion, the State must have a weak case which is otherwise undeserving of a conviction.

¶ 52. With this having been said, I concur in the majority opinion which affirms Jamarcus Shumpert’s conviction and sentence for the crime of manslaughter by culpable negligence.

WALLER, P.J., DIAZ, EASLEY AND DICKINSON, JJ., JOIN THIS OPINION. GRAVES, J., JOINS THIS OPINION IN PART.


author: WALLER, Presiding Justice,

text:
    Kenneth W. CHESTER a/k/a Kenneth Chester a/k/a Kenny Wayne v. STATE of Mississippi.
    No. 2005-KA-00366-SCT.
    Supreme Court of Mississippi.
    July 20, 2006.

      Paul M. Luckett, McComb, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before SMITH, C.J., WALLER, P.J., and DICKINSON, J.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Kenneth W. Chester was convicted of possession of cocaine while in possession of a firearm, possession of marihuana while in possession of a firearm, and possession of a firearm by a convicted felon by a Pike County Circuit Court jury and sentenced to seventeen years in the custody of the Mississippi Department of Corrections. It is from these convictions and sentences that he now appeals.

FACTS

¶ 2. The facts leading to Kenneth Chester’s arrest are not at issue in this case, and the sufficiency and weight of the evidence are not raised on appeal. Accordingly, the facts of this case are briefly summarized. Chester arranged to sell cocaine powder to an informant for the Mississippi Bureau of Narcotics (MBN). Conversations between Chester and the informant were recorded by the MBN. A woman later identified as Flora Brister appeared on Chester’s behalf and sold the informant cocaine. Brister was arrested, and it was learned that she lived at the same residence as Chester. A search warrant was prepared by the MBN to be executed at Chester’s residence. Authorities discovered cocaine and marihuana in his home. A pistol was also discovered in Chester’s home during the execution of the search warrant. Chester was charged with possession of a firearm, possession of marihuana while in possession of a firearm, and possession of a firearm by a convicted felon. He was also charged with intent to distribute the cocaine and marihuana. A jury returned verdicts finding Chester guilty of all charges except the charges for intent to distribute. Chester was sentenced as a habitual offender to seventeen years in prison.

DISCUSSION

I. BATSON CHALLENGES

¶ 3. Chester alleges that the State improperly used two of its peremptory challenges against two potential jurors solely based on their race in violation of Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986). Chester argues that the circuit court erroneously accepted the State’s race-neutral explanations and failed to make on the record findings concerning the two challenges. We give great deference to a trial court’s findings of whether or not a peremptory challenge was race-neutral. Lynch v. State, 877 So.2d 1254, 1270 (Miss.2004); Walker v. State, 815 So.2d 1209, 1214 (Miss.2002). Such deference is necessary because finding that a striking party engaged in discrimination is largely a factual finding and thus should be accorded appropriate deference on appeal. Id We will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence. Id

Juror # 82, Helen Love

¶ 4. The first venire member Chester alleges was improperly struck was Juror # 32, Helen Love. Chester argues the State only gave Love’s employment with Sanderson Farm Poultry Plant as its race-neutral reason for striking her and such explanation was insufficient to overcome the Batson challenge. Chester’s argument, though, is not supported by the record which shows that the State originally challenged Love for cause. A past incident in a courtroom involving the sentencing of Love’s husband for a crime showed Love expressing a distaste for the district attorney’s office in the past, and the State argued she simply could not be trusted to be impartial in the present case. The circuit court judge refused the challenge for cause but stated he would instead let the State “use one of your peremptories on her.” Additionally, there is no mention of Love’s employment in the State’s reasons for striking her. The State’s race-neutral reasons were the same ones used in an attempt to challenge Love’s placement on the jury for cause. Dissatisfaction with prosecution or district attorney’s conduct in a past case involving a family member may provide a race-neutral reason for striking a juror. See Thorson v. State, 895 So.2d 85, 119 (Miss.2004). The record simply does not support Chester’s claim that the circuit court erred in accepting the State’s race-neutral reasons for using one of its peremptory challenges to remove Helen Love from the jury.

Juror # 27, Casey Bennett

¶ 5. The second member of the ve-nire Chester argues was improperly removed was Juror #27, Casey Bennett. When asked to give a race-neutral reason for striking Bennett, the State responded that Bennett’s jury questionnaire revealed that her workplace was across the street from where Chester lived. The record also reveals she lived across the street from Chester’s residence. The circuit court accepted this reason, and Chester argues the circuit court judge erred in doing so. Where a juror resides can provide a valid race-neutral reason that overcomes a Batson challenge. See Gibson v. State, 731 So.2d 1087, 1096 (Miss.1998); Barnett v. State, 757 So.2d 323, 327 (Miss.Ct.App.2000). Also, the record shows that Chester even admitted the circuit court’s ruling finding the State’s race-neutral reason for striking Bennett to be understandable and agreeing it was for nondiscriminatory reasons. Thus, the record does not support Chester’s argument that the circuit court erred in finding that the State’s race-neutral reason for striking Bennett was valid and did not violate Batson.

II. SEARCH AND SEIZURE

¶ 6. In his pro se brief, Chester alleges that his Fourth and Fourteenth Amendment rights were violated because he was not given a copy of the search warrant by officers of the Mississippi Bureau of Narcotics when they searched his home. While Chester alleges this information was recorded during a suppression hearing, no transcript of that hearing is included in the record. We cannot decide issues on direct appeal when they are not supported by the record. Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001) (“Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the record.”) (citing Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995)). Additionally, even if such a hearing could be found in the record, Chester’s argument still fails. While Miss.Code Ann. § 41-29-157(a)(3) (Rev.2005) clearly dictates Chester should have received a copy of the warrant, we have never held that failure to follow this procedure constitutes reversible error or voids an otherwise valid search. See Williams v. State, 583 So.2d 620, 624-25 (Miss.1991). Because this issue finds no support in the record, it is without merit.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 7. Chester argues that his counsel was ineffective by failing to investigate whether a proper search warrant was executed during the search and seizure of Chester’s home and property and by failing to obtain a transcript of a suppression hearing that would have proven such violations occurred. Chester again fails to point to any part of the record to substantiate his claim that a suppression hearing was ever held. We cannot consider claims not supported by the record on direct appeal, and, as such, this issue is without merit. See Pulphus, 782 So.2d at 1224; Robinson, 662 So.2d at 1104.

CONCLUSION

¶ 8. Because Chester has failed to raise any errors warranting reversal, we affirm the circuit court’s judgment.

¶ 9. COUNT I: CONVICTION OF UNLAWFUL POSSESSION OF LESS THAN ONE TENTH (0.1) GRAM OF COCAINE WHILE IN POSSESSION OF A FIREARM BY A HABITUAL OFFENDER AND SENTENCE OF EIGHT (8) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $10,000.00, AFFIRMED. COUNT II: CONVICTION OF UNLAWFUL POSSESSION OF AT LEAST THIRTY (30) GRAMS BUT LESS THAN TWO HUNDRED FIFTY (250) GRAMS OF MARIHUANA WHILE IN POSSESSION OF A FIREARM BY A HABITUAL OFFENDER AND SENTENCE OF SIX (6) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $3,000.00, AFFIRMED. COUNT III: CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON WHO IS A HABITUAL OFFENDER AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $10,000.00, AFFIRMED. ALL COUNTS SHALL RUN CONSECUTIVELY FOR A TOTAL OF SEVENTEEN (17) YEARS, THE SEVENTEEN (17) YEARS BEING SERVED DAY FOR DAY WITHOUT BENEFIT OF EARLY RELEASE, PROBATION OR PAROLE. APPELLANT SHALL PAY COURT APPOINTED ATTORNEY’S FEES IN THE AMOUNT OF $4,000.00 AND ALL COURT COSTS.

SMITH, C.J., COBB, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ„ CONCUR.

      . When a Batson challenge is raised, a three-pronged inquiry ensues. First, the party objecting to the peremptory challenge "must make a prima facie showing that race was the criteria for the exercise of the peremptory strike.” Lynch v. State, 877 So.2d 1254, 1270-71 (Miss.2004). Second, the burden shifts to the party who exercised the challenge to give a race-neutral reason for exercising the peremptory strike. Id. at 1271. Finally, the trial court determines whether the party objecting to the peremptory strike has shown the presence of purposeful discrimination in the strike's use. Id. at 1272. In the present case, the circuit court found that Chester made a prima facie showing of the use of racial criteria in the State's exercising of strikes against Jurors Love and Bennett.