author: SMITH, Chief Justice, RANDOLPH, Justice,

text:
    Leroy LYNCH v. STATE of Mississippi.
    No. 2004-DR-01085-SCT.
    Supreme Court of Mississippi.
    Feb. 15, 2007.

      Mississippi Office of Capital Post-Conviction Counsel by Louwlynn Vanzetta Williams, Robert Ryan, William J. Clayton, attorneys for appellant.
    Office of the Attorney General by Marvin L. White, Jr., attorneys for appellee.
   SMITH, Chief Justice,

for the Court.

¶ 1. Leroy Lynch was charged with capital murder for his role in the 1995 robbery and killing of Richard Lee. Lynch was convicted following a jury trial and he was sentenced to death by lethal injection. This Court affirmed the convictions and sentence in Lynch v. State, 877 So.2d 1254 (Miss.2004). He now seeks leave to file a motion for post-conviction relief in the trial court.

Statement of the Case

¶ 2. On November 15, 1995, Lynch drove with Kevin Scott from Clarksdale to Cleveland, Mississippi to search for a white Oldsmobile Sierra to replace the one Scott had wrecked the day before. They scouted the parking lots of several retailers until they found Richard Lee parking a white Oldsmobile Sierra at the local Jitney Jungle. The pair followed Lee to his home, where Scott confronted Lee with a gun and shot him in the head. Scott took Lee’s car and Lynch drove Scott’s car home. Police later found Lee’s abandoned car as well as a jacket which contained Kevin Scott’s wallet and a pistol which Lynch had taken from a relative. Lynch testified that he was unaware that Scott would kill anyone. Lynch was represented at trial by Azki Shah and represented on direct appeal by Azki Shah and Cheryl Webster.

Analysis

I. Ineffective Assistance of Trial Counsel.

¶ 3. This issue warrants further consideration in the trial court. The State asserts that Petitioner’s claim of ineffective assistance should be procedurally barred pursuant to Miss.Code Ann. §§ 99-39-21(1) and 99-39-21(3) (Rev.2000) which read in pertinent part:

(1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.
(3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.

(Emphasis added). The State misreads the statute it cites, as this procedural bar applies when a defendant fails to raise issues which were ripe for presentation to the court on direct appeal. That was not the ease for Petitioner, who was represented by the same counsel, Azki Shah, during trial and direct appeal.

¶ 4. This Court has explained that where the defendant is represented by the same counsel at trial and on appeal, ineffective assistance claims have been asserted via proper post-conviction proceedings, even though the point was not preserved at trial and was not raised on direct appeal. See Dunn v. State, 693 So.2d 1333, 1339-40 (Miss.1997); Read v. State, 430 So.2d 832, 838 (Miss.1983). This Court has explained that “[i]t is totally unrealistic to expect that the lawyer charged with ineffectiveness will raise and preserve the issue in the trial court. Even if he raised the issue, it is absurd to fantasize that this lawyer might effectively or ethically litigate the issue of his own ineffectiveness.” Read, 430 So.2d at 838. The procedural bar the State cites does not prohibit review in this case.

“The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 5. One who claims ineffective assistance of counsel claimant must demonstrate that counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

¶ 6. Defense counsel enjoys a presumption of competence. Washington v. State, 620 So.2d 966 (Miss.1993). But even where professional error is shown, a reviewing court must determine whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991). For purposes of death penalty review, the most important inquiry is “whether there is a reasonable probability that, absent the errors, the sentencer— including an appellate court, to the extent it independently re-weighs the evidence— would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death.” Strickland v. Washington, 466 U.S. at 695, 104 S.Ct. 2052.

¶ 7. In the present case, petitioner argues that trial counsel committed professional error in failing to file pre-trial motions until shortly before trial. Petitioner asserts that trial counsel’s lack of preparation is evidenced by the fact that he sought three continuances from May 1996 through November 1997. Petitioner also points to the fact that trial counsel was involved in other cases at the time which eventually lead to Shah’s disbarment. Petitioner further highlights the fact that trial counsel made an untimely and unsuccessful attempt to file just one jury instruction on circumstantial evidence. Trial counsel additionally failed to file a petition for writ of habeas corpus to have Scott testify at the trial. Scott had consistently told law enforcement officers that Lynch had nothing to do with the crime. It is undisputed that trial counsel failed to timely file his list of witnesses to be offered in mitigation of sentencing. The record indicates that these witnesses might have testified to Lynch’s mental state, as Petitioner alleges that he is mentally retarded, an assertion addressed in a separate issue.

¶8. Shah’s untimely disclosure of some mitigation witnesses led to their exclusion from the sentencing phase of the trial. Even the trial court characterized this omission as ineffective assistance of counsel. This certainly counts as professional error for purposes of making out a claim of ineffective assistance of counsel. It is somewhat speculative to say that a jury might not have voted to impose a death sentence had they known of any mental deficiency.

¶ 9. As to trial counsel’s licensing woes, although Shah’s performance in other cases was so deficient as to lead to his disbarment, it does not follow that he was presumptively ineffective in his defense of Lynch on the charge of capital murder.

¶ 10. Defense counsel’s failure to pursue Petitioner’s mental retardation claim and to offer sufficient mitigating evidence, at a minimum, entitles Petitioner to a hearing before the trial court on the issue of ineffective assistance of counsel. At the hearing, the trial court can determine whether defense counsel was deficient and in turn, the extent to which that deficiency, if any, prejudiced Petitioner.

II. Aggravating Factors Not Charged in the Indictment.

¶ 11. Lynch argues that his death sentence must be vacated because the aggravating circumstances which charged capital murder were not included in the indictment. This issue could have been raised on direct appeal and should now be procedurally barred from consideration. Miss.Code Ann. § 99-39-21 (Rev.2000).

¶ 12. Lynch cites the rulings of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), in which that Court held unconstitutional a sentencing scheme where a judge rather than a jury determined whether there were aggravating circumstances present to warrant imposition of enhanced punishment.

¶ 13. Apprendi was charged with firing shots into the home of an African-American family in New Jersey. He pled guilty to possession of a firearm for unlawful purpose. After the judge accepted the guilty pleas, the prosecutor moved for an enhanced sentence on the basis that it was a hate crime. Apprendi argued that he was entitled to have the finding on enhancement decided by a jury. The U.S. Supreme Court held, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

¶ 14. In 2002, the U.S. Supreme Court decided Ring v. Arizona. Ring addressed the issue of whether the Arizona capital sentencing process as upheld in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), of a jury deciding guilt and a judge making findings on aggravating factors, could survive the Apprendi decision. The Supreme Court decided it could not.

[W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047. Because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury.

Ring, 536 U.S. at 609, 122 S.Ct. 2428. The Court specifically noted, “Ring’s claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him.” Id. at 597, n. 4, 122 S.Ct. 2428. Ring did not contend that his indictment was constitutionally defective, as does Lynch.

¶ 15. As a practical matter, Rule 7.06 of the Uniform Circuit and County Court Rules provides that an indictment shall be “a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” A defendant is not entitled to formal notice of the aggravating circumstances to be employed by the prosecution, and an indictment for capital murder puts a defendant on sufficient notice that the statutory aggravating factors will be used against him. Smith v. State, 729 So.2d 1191, 1224 (Miss.1998) relying on Williams v. State, 445 So.2d 798 (Miss.1984).

We believe that the fact that our capital murder statute lists and defines to some degree the possible aggravating circumstances surely refutes the appellant’s contention that he had inadequate notice. Anytime an individual is charged with murder, he is put on notice that the death penalty may result. And, our death penalty statute clearly states the only aggravating circumstances which may be relied upon by the prosecution in seeking the ultimate punishment.

Williams, 445 So.2d at 804-05. This Court has consistently found this issue (failure to charge the aggravating factors in the indictment) to be without merit. Havard v. State, 928 So.2d 771(Miss.2006); Knox v. State, 901 So.2d 1257, 1269 (Miss.2005); Berry v. State, 882 So.2d 157, 172 (Miss.2004).

III. The Eighth Amendment and the Death Row Phenomenon.

¶ 16. Counsel for petitioner argues, without the benefit of authority, that Lynch has suffered cruel and unusual punishment simply by being placed on death row. A claim based on the Eighth Amendment could have been raised on direct appeal and should now be procedurally barred from further consideration. Lynch and other clients of the MOPCC claim to be languishing in fear of their execution and the uncertainty of when it will be carried out. The brief cites to the writings of existentialist author Albert Camus. Counsel for Lynch argues that hid execution eleven years after the offense will serve no purpose. This Court has considered and rejected this argument before. Wilcher v. State, 863 So.2d 776, 834 (Miss.2003); Russell v. State, 849 So.2d 95, 144-45 (Miss.2003); Jordan v. State, 786 So.2d 987, 1028 (Miss.2001). The issue is both procedurally barred and devoid of any merit.

IV. Improper Admission of Crime Scene Photographs

¶ 17. Petitioner argues that he was denied his right to a fundamentally fair trial because photographs of the deceased were admitted into evidence during the sentencing phase of his trial. Trial counsel objected, and the prosecution countered by arguing that the photos would illustrate the acts which Lynch aided and abetted. The issue was capable of being raised on direct appeal and is now procedurally barred from collateral review in post-conviction proceeding. Miss.Code Ann. § 99-39-21(Rev.2000).

V. Cumulative Error.

¶ 18. Lynch argues generally that the alleged preceding errors, taken as a whole, deprived him of a fair trial. The standard for this Court’s review of an appeal from a capital murder conviction and death sentence is clear. Convictions upon indictments for capital murder and sentences of death must be subjected to “heightened scrutiny.” Balfour v. State, 598 So.2d 731, 739 (Miss.1992) (citing Smith v. State, 499 So.2d 750, 756 (Miss.1986); West v. State, 485 So.2d 681, 685 (Miss.1985)). Under this standard of review, all doubts are to be resolved in favor of the accused because “what may be harmless error in a case with less at stake becomes reversible e^ror when the penalty is death.” Id. (quoting Irving v. State, 361 So.2d 1360, 1863 (Miss.1978)). See also Fisher v. State, 481 So.2d 203, 211 (Miss.1985).

¶ 19. With regard to the issue of alleged cumulative error, this Court took note of those capital cases in which the opinions of this Court articulated differing analyses. For example, in McFee v. State, 511 So.2d 130, 136 (Miss.1987) (rape conviction and life sentence affirmed), this Court individually addressed each assignment of error and found none (harmless or otherwise) by the trial court. Based on that finding, the Court stated:

In sum, McFee contends that the cumulative effect of the alleged errors was sufficient to prejudice the jury, essentially allowing the State to convict him not of rape, but of murder. Yet, as discussed, neither the introduction of the photographs nor the prosecutor’s comments constituted reversible error. As there was no reversible error in any part, so there is no reversible error to the whole.

Id. However, in Jenkins v. State, 607 So.2d 1171, 1183-84 (Miss.1992) (capital murder conviction and death sentence reversed and remanded), in which this Court found both harmless error and reversible error by the trial court, the Court stated:

If reversal were not mandated by the State’s discovery violations, we would reverse this matter based upon the accumulated errors of the prosecution. This Court has often ruled that errors in the lower court that do not require reversal standing alone may nonetheless taken cumulatively require reversal.

Id. (citing Griffin v. State, 557 So.2d 542, 552-53 (Miss.1990)). And in Manning v. State, 726 So.2d 1152, 1198 (Miss.1998) (capital murder convictions and death sentence affirmed), after addressing 21 assignments of error with sub-parts, and after making numerous findings of no “reversible error,” the Court stated:

This Court has held that individual errors, not reversible in themselves, may combine with other errors to make up reversible error. Hansen v. State, 592 So.2d 114, 142 (Miss.1991)[n5]; Griffin v. State, 557 So.2d 542, 553 (Miss.1990). The question under these and other cases is whether the cumulative effect of all errors committed during the trial deprived the defendant of a fundamentally fair and impartial trial. Where there is “no reversible error in any part, ... there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987).

Manning, 726 So.2d at 1198.

¶ 20. To reconcile these different views, the Byrom court held:

What we wish to clarify here today is that 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 shall 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 prejudicial effect. That having been said, for the reasons herein stated, we find that errors as may appear in the record before us in today’s case, are individually harmless beyond a reasonable doubt, and when taken cumulatively, the effect of all errors committed during the trial did not deprive Michelle Byrom of a fundamentally fair and impartial trial. We thus affirm Byrom’s conviction and sentence.

Byrom, 863 So.2d at 846-47. In the present case, the record supports no finding of error, harmless or otherwise, upon the part of the trial court. We hold harmless any error on the part of trial counsel. Consequently, there can be no prejudicial cumulative effect and no adverse impact upon his constitutional right to fair trial. This issue is without merit.

VI. Eligibility for Execution

¶ 21. Petitioner alleges that he is mentally retarded within the meaning of the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and thereby entitled to present evidence of such at a hearing before the trial court. In Atkins, the United States Supreme Court determined that imposition of the death penalty on mentally retarded inmates constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. Id. at 321, 122 S.Ct. 2242. The Atkins decision did not define who is or is not mentally retarded for purposes of eligibility for a death sentence but instead “leaves to the States the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)).

¶ 22. This Court, in Chase v. State, 873 So.2d 1013, 1029 (Miss.2004), established these guidelines for determining mental retardation.

We hold that no defendant may be adjudged mentally retarded for purposes of the Eighth Amendment, unless such defendant produces, at a minimum, an expert who expresses an opinion, to a reasonable degree of certainty, that: 1. The defendant is mentally retarded, as that term is defined by the American Association on Mental Retardation and/or The American Psychiatric Association; 2. The defendant has completed the Minnesota Multiphasic Personality Inventory-II (MMPI-II) and/or other similar tests, and the defendant is not malingering.

(emphasis added) Id. at 1029.

¶ 23. Accordingly, in Mississippi it is acceptable to utilize the MMPI-II and/or other similar tests. Id. at 1029. This Court did not intend by its holding to declare the MMPI-II or any one test as exclusively sufficient. Having a variety of tests at their disposal, courts are provided with a safeguard from possible manipulation of results and diminished accuracy which might result if courts are limited to one test. The United States Supreme Court mentioned the Wechsler Adult Intelligence Scales Test. See Atkins, 536 U.S. at 309 n. 5, 122 S.Ct. 2242. Other tests, as suggested by mental health experts, include the Structured Interview of Reported Symptoms (SIRS), the Validity Indicator Profile (VIP), and the Test of Memory Malingering (TOMM). See Douglass Mossman, Atkins v. Virginia: A Psychiatric Can of Worms, 33 N.M.L.Rev. 255, 277-78 (Spring 2003).

¶ 24. The Court’s interpretation in this case as to the proper test to be administered with regard to an Atkins hearing supercedes any contrary decisions. This Court neither endorses the MMPI-II as the best test nor declares that it is a required test, and decisions that state otherwise are expressly overruled. See, e.g. Scott v. State, 938 So.2d 1233, 1238 (Miss.2006) (holding that despite the doctor’s use of a battery of other tests, administration of the MMPI-II is required prior to an adjudication of a claim of mental retardation); Goodin v. State, 856 So.2d 267, 277 (Miss.2003) (declaring that the MMPI-II is to be administered for a determination of mental retardation since it is the best test to detect malingering). Our trial courts are free to use any of the above listed and approved tests or other approved tests not listed to determine mental retardation and/or malingering by a defendant.

¶25. Counsel for Petitioner offers a report that Lynch has an intelligence quotient (IQ) of 72. Mild mental retardation is typically used to describe people with an IQ level within an approximate range of 55-75. The State does not concede that Lynch is mentally retarded but admits that Lynch has made an adequate showing that he is entitled to be heard on the issue.

¶ 26. In accordance with the guidelines set forth in Chase and further set out herein, this Court remands the matter to the trial court, where it may employ any one of numerous acceptable tests, for an Atkins hearing. The trial court, after being presented with sound mental evidence prepared by experts, should render its decision accordingly.

¶ 27. POST CONVICTION RELIEF GRANTED IN PART; DENIED IN PART.

WALLER, P.J., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ„ CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON, J. SMITH, C.J., JOINS IN PART. COBB, P.J., NOT PARTICIPATING.

RANDOLPH, Justice,

Specially Concurring:

¶ 28. I concur with the majority opinion. I write separately for the benefit of our trial courts who are charged with the awesome responsibility of deciding whether a defendant is mentally retarded. The difficulty in performing this arduous task is accentuated by disagreements among mental health practitioners on the definition of mental retardation. One author fairly describes the trial court’s quandary as follows:

[A] source of uncertainty stems from the fact that, for many items, the test administrator has to decide how many points a subject’s response deserves. In normal clinical use, these imperfections do not matter a great deal. When testing a defendant for whom a one or two point change in IQ score has life and death implications, however, clinicians may have a hard time being dispassionately ‘objective’ about how they interpret a response. The net result of all these imperfections is that judges, or juries, will often have a hard time deciding on which side of the arbitrary line between mentally retarded and merely ‘dull’ a defendant falls.

Douglas Mossman, M.D., Atkins v. Virginia: A Psychiatric Can of Worms, 33 N.M.L.Rev. 255, 270 (Spring 2003).

¶ 29. Although the American Association of Mental Retardation and the American Psychiatric Association caution against “using diagnostic categories for legal and social purposes,” courts must have some benchmark. Id. at 271. “Atkins tells mental health professionals that despite any ‘cautionary statements,’ courts will use their classification to solve legal and social problems that lie far beyond the purpose and intent of psychiatric diagnosis.” Id. at 289-90 (referring to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)).

¶ 30. Some organizations to which many mental retardation professionals belong are zealous advocates for the abolishment of the death penalty, whether administered to retarded, dull, average, bright or genius individuals. Yet courts must rely upon these professionals, and other related experts, to comply with the mandate of the United States Supreme Court. In Atkins, the Supreme Court declared mentally retarded defendants are not to be executed under Eighth Amendment protection. See Atkins, 536 U.S. at 321, 122 S.Ct. 2242. Unfortunately, the Atkins decision offered no substantive or procedural guidance to assist state trial courts in determining which defendants accurately qualify for such protection.

¶ 31. Resolution of such a complex question is both complicated and demanding as the science of determining mental retardation is ever-changing. “We are at the epicycle stage of psychiatry where astronomy was before Copernicus and biology before Darwin. Our inelegant and complex current descriptive system will undoubtedly be replaced by simpler, more elegant models.” Mossman, 33 N.M.L.Rev. at 277-78.

¶ 32. Further,

[T]he diagnosis of mental retardation— despite its clinical usefulness — is an entirely artificial construct: the line that separates persons who receive this diagnosis from individuals whose mental capacities are only well below average is a changing and arbitrary one. There is no better illustration of this last point than decisions of the [American Association of Mental Retardation] to ‘update’ its definition of mental retardation ten times over the past century.

Id. at 265 (emphasis added).

¶ 33. The dilemma faced by the trial courts is highlighted by the following: (1) the definition promulgated by the American Association of Mental Retardation differs from the American Psychiatric Association’s definition; (2) these definitions may be subject to change; and (3) cautionary statements have been issued regarding their use in legal proceedings. However, in the absence of utilizing such definitions, courts would have little or no assistance in making this determination. Thus, the courtroom becomes the crossroads where the paths of science and law must necessarily intersect.

¶ 34. The AAMR states:

Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaver-age intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.

Chase v. State, 873 So.2d 1013, 1028 (Miss.2004) (quoting Atkins, 536 U.S. at 308, n. 3, 122 S.Ct. 2242, citing Mental Retardation: Definition, Classification, and Systems of Support 5 (9th ed.1992) (emphasis added)).

¶ 35. The APA definition is as follows:

The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.”

Id. (emphasis added).

¶ 36. A host of tests are utilized to determine one’s intelligence quotient, or IQ, such as the Stanford-Binet Intelligence Scale, the Wechsler Adult Intelligence Scale-Revised, and the Wechsler Adult Intelligence Scales III. However, the numbers IQ tests generate are

far from being perfectly reliable measurements of a person’s cognitive ability. Under the best conditions, IQ tests have a ‘measurement error’ of about five points. An individual who scores say, 68 on one administration has a ninety-five percent chance of scoring between 63 and 73 on subsequent administrations. More than half of those persons whose IQ results fall in the mildly retarded range receive scores of 65 to 70, that is, their scores’ margin of error will include 70.

Mossman, 33 N.M.L.Rev. at 269-70 (citations omitted).

¶ 37. Furthermore,

IQ, after all, is not the factor that render[s] the imposition of the death penalty against those with mental retardation unjust. Rather, IQ is a proxy and an imperfect one at that, for a combination of factors, such as maturity, judgment, and the capability of assessing the consequences of one’s conduct, that determine the relative culpability of a mentally retarded killer. Culpability, not IQ, should be the benchmark.

Id. at 287 (citation omitted).

¶ 38. Dr. Mossman further explained:

IQ scores are set up so that the “mean” or average score is 100, and the ‘standard deviation’ — a statistical term referring to mathematical properties of the Bell Curve is 15. Approximately ninety-five percent of a normally distributed population lies within two standard deviations of the mean, and individuals lying outside this arbitrary statistical boundary are often deemed ‘abnormal.’ A cutoff score of ‘approximately 70,’ two standard deviations below the mean score of 100 is the intelligence score used in the APA’s current diagnostic manual to separate persons with mental retardation from those designated as having ‘borderline intellectual functioning.’ The modifier ‘approximately’ in the APA’s diagnostic criteria reminds mental health professionals that using 70 as a cut-off score reflects a statistical convention rather than a natural boundary between two distinctive groups of individuals. When conscientious mental health professionals interpret IQ scores and plan treatment interventions, they keep in mind that someone who scores a 69 on an IQ test is practically indistinguishable from someone who scores 71, and that two persons with an IQ of, say, 67 and 73 have much more in common with each other than a person who scores 88. If pre-Atkins state statutes and post-Atkins decisions are any guide, however, legislatures and courts often ignore such considerations when they put Atkins into practice. Of the eighteen state statutes in effect when Atkins was decided, eleven had language that made specific IQ scores part of the criteria for exempting a defendant from facing a possible death penalty.

Id. at 268 (citations omitted).

¶ 39. Of the eleven states cited above, nine of these states have a statute which specifically references an IQ score of 70 or below. Of these nine states, four of these states have held an IQ score of 70 or below creates a rebuttable presumption of mental retardation, while the remaining five states have stated a score of 70 or below, combined with subaverage adaptive functioning quantifies mental retardation. Of the remaining two states, Arkansas sets its requisite IQ level at 65 and Arizona holds that a score of 75 requires additional assessment, where an IQ of 65 creates a rebuttable presumption of mental retardation. Id. at 268-69.

Oklahoma’s definition [of mental retardation] is substantially similar to the one found in DSM-IV-TR and requires a defendant “to prove he or she is mentally retarded by a preponderance of the evidence at trial.” The court notes that “ ‘[intelligence quotients are one of the many factors that may be considered’ and ‘are not alone determinative’ of mental retardation.” Despite this, the court’s definition states that “to be considered mentally retarded,” a defendant must have “an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.”

Id. at 275 (citation omitted).

¶ 40. An additional issue in all mental retardation claims is: Can the defendant achieve a desired diagnosis through manipulating, feigning or malingering for the purpose of avoidance of punishment? This issue was of concern to Justice Scalia in his Atkins dissent. He quoted Matthew Hale from three centuries ago, “[Determination of a person’s incapacity] is a matter of great difficulty, partly from the easiness of counterfeiting this disability ... and partly from the variety of the degrees of this infirmity, whereof some are sufficient, and some are insufficient to excuse persons in capital offenses.... ” Atkins v. Virginia, 536 U.S. 304, 353, 122 S.Ct. 2242, 2268, 153 L.Ed.2d 335, 374 (2002) (Scalia, J., dissenting) (quoting 1 Hale, Pleas of the Crown, at 32-33). Such concern is not relegated to Justice Scalia and Sir Chief Justice Hale. “A man may counterfeit himself to be mad, he may do it so cunningly as it cannot be discerned whether he be mad or so.” Mossman, 33 N.M.L. at n. 176 (quoting Joel Eigen, Historical Developments in Psychiatric Forensic Practice: The British Experience, 6 Int’l J.L. & Psychiatry 423, 427-28 (1984) (quoting statement made in 1681 by Sir Robert Holbron)).

¶ 41. Faking mental retardation in order to avoid punishment is not a matter to be taken lightly by any court, in any era.

Presumably, courts can deal with false claims of mental retardation as well as they deal with false claims of medical and psychological problems that arise in a variety of other legal circumstances. Moreover, in considering Justice Scalia’s concern [in Atkins], it is important to recognize that assessing malingering is a core skill for mental health clinicians, particularly in contexts where being (or appearing) ill may confer advantages (e.g. avoiding punishment ...) on the evaluee.

Id. at 277 (citation omitted).

¶ 42. Accordingly, safeguards should be instituted in order to ensure the validity of a claim of mental retardation, including tests in support thereof, so as to prevent the manipulation of the results and/or diagnosis. As the majority opinion clearly points out, courts may consider any number of tests to accurately determine the existence vel non of mental retardation. When considering the possibility of “faking,” “feigning” or “malingering” mental retardation, this Court has previously given credence to a portion of the MMPI-II that measures validity. However, the MMPI-II is not the sui generis test for the determination of mental retardation and according to one advocate, should be abandoned altogether. See Denis William Keyes, Use of the Minnesota Multiphasic Personality Inventory (MMPI) to Identify Malingering Mental Retardation, 42 Mental Retardation 151 (April 2004). Nonetheless, other professionals continue to endorse its use. “Mental health professionals can use several tests specifically designed to detect feigned psychological problems, including the validity scales on the [MMPI-II]....” Mossman, 33 N.M.L. at 278.

¶ 43. The validity of a claim of mental retardation is best determined by a true and accurate picture of the defendant’s formative years. Only if such evidence is non-existent or the defendant is still in his teens, should post-crime testing and evaluations serve as a guide to determine the validity of a claim of mental retardation. Post-crime testing increases the likelihood of attempts to manipulate, feign or through malingering, distort the diagnosis.

¶ 44. Of evidentiary import, the definition's by both the AAMR and the APA agree that mental retardation manifests itself before the age of 18. Accordingly, the better practice, i.e., the practice most likely to achieve the truth, is the consideration of historical data found in school, behavioral study, medical/mental health, employment records, and other pertinent data, inter alia, generated before the age of 18, to determine if mental retardation manifested itself before the age of 18. Some mental health practitioners suggest, “[E]xamination of diagnostic criteria suggests that mental retardation is hard to fake successfully, because the criteria require evidence that retardation began during childhood — evidence, that is, that the condition existed years before the defendant committed a capital crime.” Id. at 276. The APA manual warns, “when deciding whether a person meets a particular legal standard of responsibility, ‘additional information is usually required beyond that contained in the [manual’s] diagnosis. This might include information about the individual’s functional impairments and how these particular impairments affect the particular abilities in question.’ ” Id. at 272 (citations omitted). A complete examination of a defendant’s background is essential to determine the validity of a claim of mental retardation.

¶ 45. Navigating through the turbid waters of the science of mental retardation no doubt presents difficulty. Not only must the trial court have at its disposal the requisite data and mental health evidence, the trial court must analyze all proffered testimony and reject not only “junk science,” but also “junk scientists.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

CARLSON, J., JOINS THIS OPINION. SMITH, C.J., JOINS THIS OPINION IN PART.

      . Md. Ann.Code § 2-202(b)(1)(i) (2002) (IQ "of 70 or below”); Ky.Rev.Stat. § 532.130(2) (2002) (IQ "of 70 or below”); Tenn.Code Ann. § 39-13-203(a)(1) (2003) (IQ "of 70 or below"); N.M. Stat. Ann. § 31-20A-2.1(A) (2003) (IQ "of 70 or below”); Ark.Code Ann. § 5-4-618(2) (2003) ("rebuttable presumption of mental retardation when a defendant has an intelligence quotient of sixty-five (65) or below”); Wash. Rev.Code § 10.95.030(2)(c) (2003) (defining significantly below average intellectual functioning as IQ less than 70); Neb.Rev.Stat. § 28-105.01(3) (2002) (stating that IQ less than 70 is “presumptive evidence of mental retardation”); S.D. Codified Laws § 23A-27A-26.2 (2000) (stating that IQ less than 70 is "presumptive evidence of mental retardation”); Ariz.Rev.Stat. Ann. 13-703.02 (2003) (pre-screening IQ score of 75 triggers additional assessment; IQ less than 65 establishes rebuttable presumption of mental retardation); Fla. Stat. Ann. § 921.137(1) (2002) (" 'significantly subaverage general intellectual functioning' means performance that is two or more standard deviations from the mean score on a standardized intelligence test”); N.C. Sess. Law 2001-346 § 1 (" 'significantly subaverage general intellectual functioning' means performance that is two or more standard deviations from the mean score on a standardized intelligence test”).
      Mossman, 33 N.M.L.Rev. at 291.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Alvarado H. KELLY, Deceased. William Kelly, Appellant v. Sarah D. Cuevas, Appellee.
    No. 2005-CA-00011-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2005.
    Rehearing Denied April 11, 2006.
    Floyd J. Logan, Gulfport, attorney for appellant.
    Nicholas McLeod Haas, Waveland, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. The chancery court admitted the decedent’s will to probate in solemn form and held that Sarah D. Cuevas was the sole devisee and legatee of the decedent. William Kelly filed a motion to dismiss for lack of jurisdiction. The chancery court denied Kelly’s motion, and granted Cue-vas’s motion for judgment on the pleadings in accordance with Rule 12(c) of the Mississippi Rules of Civil Procedure. Aggrieved by the judgment against him, Kelly appealed and now asserts three assignments of error. We affirm the judgment of the chancery court, but we also remand for a specific finding of the personal property located in Mississippi.

STATEMENT OF FACTS

¶ 2. Alvarado H. Kelly (decedent) was declared mentally incompetent by a Florida mental hospital on December 2, 1960, and was committed to a Veteran’s Administration (VA) hospital in Florida. In September of 1961, the decedent was transferred to a VA hospital in Gulfport, Mississippi. The decedent was allowed to participate in the VA Residential Care program and in 1975, he moved to the residential care facility of Sarah D. Cue-vas.

¶ 3. The decedent lived with Cuevas in Hancock County, Mississippi until he died testate on November 1, 2000. The decedent’s will, dated April 23, 1992, instructed that Cuevas be appointed executrix. The will also stated in part: “I give, devise and bequeath all my property real, personal, and mixed to: Sarah D. Cuevas ... [m]ore specifically, my personal property located in the Sun Trust Bank, P.O. Box 1498, Tampa, Florida 33601.” Cuevas filed a petition to probate the will in common form on November 8, 2000. A decree admitting the will to probate and appointing Cuevas as Executrix of the Estate of Alvarado H. Kelly was entered the same day.

¶ 4. On December 27, 2000, William R. Kelly, Sr., the decedent’s brother, filed a petition for administration with the clerk of the Circuit Court for Hillsborough County, Florida. Kelly’s complaint included sworn allegations by Kelly that the decedent was domiciled in Hillsborough County until the date of his death. The complaint further stated that the decedent was domiciled in Florida in 1962, when he was declared judicially incapacitated, and that his incapacity continued until the time of his death. Additionally, the complaint asserted that all of the decedent’s assets were located in Florida, “other than clothing and personalty of nil value.”

¶ 5. On January 24, 2001, Cuevas filed a complaint to admit the decedent’s will to probate in solemn form in the Hancock County, Mississippi Chancery Court. The complaint recited that the decedent was a resident citizen of Hancock County, that he had resided there for more than thirty years, and that he died a resident citizen of Hancock County. Kelly was personally served with a Mississippi Rules of Civil Procedure Rule 4 summons on January 31, 2001. Kelly did not file a response to the complaint, and on March 9, 2001 the chancery court admitted the will to probate in solemn form. The chancery court judgment also adjudicated Cuevas to be the decedent’s sole devisee and legatee. On the same date, the clerk granted Cuevas’s application for entry of default.

¶ 6. The Hillsborough County Circuit Court entered an order on April 12, 2001, finding that the Florida courts had jurisdiction for the administration of the decedent’s estate, as he was domiciled in Florida at the time of his death, and his bank accounts were located in Florida. The circuit court also granted letters of administration to Kelly. The Florida District Court of Appeals reversed the decision of the circuit court on March 29, 2004, holding that full faith and credit should be given to the judgment of the Hancock County Chancery Court.

¶ 7. On April 6, 2004, Kelly made a special appearance in the Hancock County Chancery Court and filed a motion to dismiss the Hancock County probate action for lack of jurisdiction. On December 7, 2004, the chancery court denied Kelly’s motion and granted Cuevas’s motion for judgment on the pleadings in accordance with Rule 12(c) of the Mississippi Rules of Civil Procedure. The chancery court determined that it had jurisdiction to probate the wills of nondomiciliaries provided that any of their real or personal property is located in Mississippi at the time of their death. Moreover, the court instructed that Mississippi Code Annotated § 91-7-33, which allows for probate in Mississippi when the will affects or disposes of “property within this state,” sets no requirements as to the value or amount of the property. The court concluded that the decedent could not have resided in Hancock County for thirty years without leaving behind some clothing or other personal items. Thus, the chancery court found that it had jurisdiction to probate the decedent’s will.

¶ 8. Aggrieved by the chancellor’s decision, Kelly appeals asserting the following: (1) whether it was pled as a basis for subject matter jurisdiction that the testator owned any property located in the State of Mississippi and whether there was any record evidence before the trial court to support such a finding; (2) whether the decree is void for failure to follow the mandates of § 91-7-33 of the Mississippi Code of 1972, and Rule 81 of the Mississippi Rules of Civil Procedure requiring Rule 81 process and an evidentiary hearing to probate the will in solemn form; and (3) whether Cuevas failed to sustain her burden of proving the decedent changed his domicile to Mississippi prior to his death and the decree was, therefore, void because there is no jurisdiction of the subject matter.

STANDARD OF REVIEW

¶ 9. This Court employs a limited standard of review when reviewing the decisions of a chancellor. McNeil v. Hester, 753 So.2d 1057, 1063(¶ 21) (Miss.2000) (citing Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997)). It is well settled that “the findings of a chancellor will not be disturbed on review unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Id. Moreover, this Court will not overturn the chancellor’s decision unless it is shown that he was clearly and overtly wrong in his logic. Last Will and Testament of Winding v. Estate of Winding, 783 So.2d 707, 709(¶ 6) (Miss.2001).

ISSUES AND ANALYSIS

I. Whether it was pled as a basis for subject matter jurisdiction that the testator owned any property located in the State of Mississippi and whether there was any record evidence before the trial court to support such a finding.

¶ 10. Kelly argues that the trial court’s finding of jurisdiction should be set aside, as it was based on the presence of personal property owned by the decedent in Mississippi. The trial court’s judgment stated that it was appropriate to “infer with confidence that, after residing for thirty years in Hancock County, the testator had some property here, if only clothing and personal effects.” Kelly insists that the trial court’s conclusion was totally without basis in the pleadings or in the evidence. He notes that Cuevas failed to state in her pleadings that the decedent owned any property in Mississippi at the time of his death. Kelly further argues that even if the testator had some items of clothing and personal effects in Mississippi at the time of his death, there is no evidence in the record that these items of personal property were still in Mississippi at the time the probate petition was filed. According to Kelly, the only evidence of personal property owned by the decedent is the portion of the will referring to a bank account located in Florida.

¶ 11. The will of a person who was domiciled outside the state of Mississippi at the time of his death, known as a foreign will, may be originally probated in Mississippi if the testator owned real or personal property located in Mississippi. Robert A. Weems, Wills and Administration of Estates in Mississippi, § 3:14 (3d ed.2003) (citing Bolton v. Barnett, 131 Miss. 802, 823, 95 So. 721, 725 (1923); Mississippi Code Annotated § 91-7-33). The chancery courts of Mississippi have full jurisdiction in “matters of testamentary and of administration.” Miss. Const. art. 6, § 159(c). The proper venue for probate of a will is the county where the testator had a fixed place of residence, or if no fixed place of residence, the county where land devised in the will was situated. Miss. Code Ann. § 91-7-1 (Rev.2004). If the testator had no fixed place of residence and devised only personalty in the will, then the proper venue is the county where the testator died, or where any of the personalty disposed of by the will is located. Id.

¶ 12. The will in the instant case states that the decedent bequeaths all of his property “real, personal, and mixed” to Cuevas. The chancery court determined that “it is impossible that [decedent] resided thirty years in Hancock County and died here — uncontested facts in this case— leaving no clothing or other personal items in Hancock County.” The chancellor’s logic is sound and sufficiently based on the facts. The will disposes of any personal property that belonged to the decedent. Furthermore, Mississippi Code Annotated § 91-7-33 places no requirements as to the value or amount of the property at issue. Thus, the chancellor’s finding of jurisdiction was not manifestly wrong or clearly erroneous. Consequently, we are affirming the judgment of the chancery court. However, we are also remanding for a specific finding of the personal property located in Mississippi.

¶ 13. Furthermore, it was not necessary for Cuevas to plead that the decedent owned personal property in Mississippi. Before an order or decree may be entered finding that the writing is the decedent’s last will, proof must be presented that the will was duly executed and that the decedent had testamentary capacity at that time. Weems, supra, § 7:7 (citing Moore v. Parks, 122 Miss. 301, 84 So. 230 (1920)). The testimony of a subscribing witness to an attested will may be used to prove testamentary capacity and due execution, so long as the will is not being contested. Id. (citing Miss.Code Ann. § 91-7-9). Cuevas attached the original will to the petition, as well as the affidavits of the two attesting witnesses stating that the decedent was of sound and disposing mind at the time he executed his will. Therefore, this issue is without merit.

¶ 14. As we find that the chancery court had jurisdiction over the probate of the decedent’s will in common form on the basis of personal property located in Mississippi, it is unnecessary to address the third issue Kelly raises, namely, the domicile of the decedent.

II. Whether the decree is void for failure to follow the mandates of § 91-7-33 of the Mississippi Code of 1972, and Rule 81 of the Mississippi Rules of Civil Procedure requiring Rule 81 process and an evidentiary hearing to probate the will in solemn form

¶ 15. Kelly argues that the trial court’s reliance on the proceeding to probate the will in solemn form is in error because no hearing was held and Kelly was never properly served with process under Rule 81 of the Mississippi Rules of Civil Procedure. The probate of a will in solemn form is a Rule 81 matter, requiring a Rule 81 summons. Kelly was served with a Rule 4 summons. Thus, the solemn form proceeding was defective.

¶ 16. Mississippi Code Annotated § 91-7-23 (Rev.2004) states that within two years of the probate of a will without notice, any interested person may contest the validity of the will. The statute further states that “if some person does not appear within two years to contest the will, the probate shall be final and forever binding.” Id. To avoid the finality of the common form probate proceeding, Kelly asserts that the two-year period never began to run in this case. Citing Matter of Estate of McClerkin, 651 So.2d 1052 (Miss.1995), Kelly argues that it is error to rely on the probate in common form proceeding and the two-year statute of limitations for the contest of a will admitted to probated in common form.

¶ 17. In McClerkin, the executor filed a petition to probate the will in solemn form, after probating the will in common form. Id. The Mississippi Supreme Court held that the trial proceedings must be held in abeyance until all necessary parties were joined. Id. at 1053. However, the contestants of the will in McClerkin filed a caveat against probate in solemn form before the two-year period had run since the probate in common form. Id. The instant case differs significantly from McClerkin in that Kelly made no attempt to contest the will in the courts of Mississippi before the expiration of the two-year period. Thus, even though the solemn form probate decree is invalid due to the Rule 4 summons, the chancery court had jurisdiction over the common form probate proceeding and no caveat objecting to the probate was filed. Thus, the two-year limitations period for contesting a will admitted to probate in common form has passed, and the probate in common form is now “final and forever binding.”

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF HANCOCK COUNTY IS AFFIRMED AND REMANDED FOR A SPECIFIC FINDING OF THE PERSONAL PROPERTY LOCATED IN MISSISSIPPI. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . On August 25, 2004, the Florida Supreme Court denied Kelly's petition for review and refused to entertain a motion for rehearing.

      . There are two exceptions to the two-year limitation period, although neither is relevant in this case. The first exception gives minor and persons of unsound mind two years after the removal of their disabilities in which to contest the validity of a will. Miss.Code Ann. § 91-7-23 (Rev.2004). The second exception is for concealed fraud. Id.


author: LEE, P.J.,

text:
    Tommy Lee JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00851-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.
    Rehearing Denied March 13, 2007.

      John Carl Helmert, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Patty Smith was in the seventh grade when she confided to an older friend that Tommy Jones, her mother’s live-in boyfriend, had been sexually abusing her. The friend, who was also Jones’s younger sister, contacted the authorities. Patty was given a pelvic exam at Baptist Memorial Hospital and at the Memphis Sexual Assault Center. Both exams confirmed that Patty had been sexually penetrated. Patty was removed from Jones’s home and was eventually placed in foster care because her mother returned to live with Jones.

¶ 2. A jury was empaneled on March 21, 2005, and the trial court, Assistant District Attorney Robert Kelly and Jones’s attorney, David Walker, conducted voir dire. After voir dire the parties retired to chambers to select the jury in the presence of Joe Reid, Panola County Circuit Court Clerk. The State used one peremptory challenge and tendered a panel of twelve jurors. Jones then struck juror 18, juror 20, juror 29, juror 39, juror 63, and juror 65. Citing Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), the State challenged the peremptory strikes because Jones had stricken five Caucasian males from the jury.

¶ 3. Jones was convicted of statutory rape and sexual battery and sentenced to serve terms of fifteen years and twenty years, respectively. It is from this conviction that Jones appeals, arguing five points of error, which we quote verbatim:

(1) the trial court erred by finding that the State had made a prima facie case of racial discrimination regarding the peremptory strikes exercised by the Defendant; (2) the trial court erred by not making an on-the-record finding regarding the race-neutrality of the reasons offered by the Defendant for those peremptory strikes; (3) the trial court erred by finding that the reasons offered by the Defendant for his peremptory strikes were not racially neutral; (4) even if the reasons offered by the Defendant were not racially neutral, the trial court erred by disallowing the Defendant his original peremptory strikes because the State failed to carry its burden to demonstrate pretext; (5) the trial court erred by disallowing the Defendant to consider the entire jury panel for peremptory strikes, after the trial court had disallowed certain earlier strikes under McCollum.

Additional facts will be discussed during the opinion as appropriate for disposing of Jones’s contentions.

¶ 4. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. As Jones’s assignments of error stem from purported misapplications of Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), our standard of review requires reversal only if the factual findings of the trial judge are “clearly erroneous or against the overwhelming weight of the evidence.” Tanner v. State, 764 So.2d 385, 393(¶ 14) (Miss.2000). Determinations made by a trial judge under Batson are accorded great deference because they are “based, in a large part, on credibility.” Coleman v. State, 697 So.2d 777, 785 (Miss.1997). In the Batson context, the term “great deference” has been defined as “insulating from appellate reversal any trial findings which are not clearly erroneous.” Lockett v. State, 517 So.2d 1346, 1349-50 (Miss.1987).

I. DID THE TRIAL COURT ERR IN FINDING THAT THE STATE MADE A PRIMA FACIE CASE OF RACIAL DISCRIMINATION REGARDING JONES’S PEREMPTORY STRIKES?

¶ 6. Jones argues that the trial court erred in finding that the State made a prima facie case that Jones had used his peremptory strikes to exclude members of a certain racial group from the jury. As previously discussed in this opinion, Jones used six peremptory strikes, five of which applied to five Caucasian males. The State objected to the strikes, and the trial court agreed that the use of the strikes showed evidence of racial, and perhaps gender, discrimination.

¶ 7. It is well-established law that the same Batson analysis applies whether the objections originate from the State or the defense. McCollum, 505 U.S. at 59, 112 S.Ct. 2348; State v. Rogers, 847 So.2d 858, 862 (¶¶ 16-19) (Miss.2003); McFarland v. State, 707 So.2d 166, 171(¶13) (Miss.1998). “Under Batson, the party objecting to the peremptory challenge must first make a prima facie showing that race was the criteria for the exercise of the peremptory strike.” McFarland, 707 So.2d at 171(¶ 13) (citing Batson, 476 U.S. at 96-97, 106 S.Ct. 1712; Stewart v. State, 662 So.2d 552, 557 (Miss.1995)); see also Griffin v. State, 610 So.2d 354, 356 (Miss.1992) (holding that within the Batson context “what’s sauce for the goose is sauce for the gander”).

¶ 8. The primary question is “whether the opponent of the strike has met the burden of showing that proponent has engaged in a pattern of strikes based on race or gender, or in other words ‘the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” Puckett v. State, 788 So.2d 752, 757(¶ 14) (Miss.2001) (quoting Randall v. State, 716 So.2d 584, 587(¶ 16) (Miss.1998)). The record reflects that Jones is African-American, while each of the jurors stricken, save for juror 20, were Caucasian males. The trial court held that the State had presented a prima facie case that Jones was striking jurors based upon their race and possibly then-gender.

¶ 9. After the State voiced its objection under Batson, Jones proceeded to provide race-neutral reasons for his strikes. When racially neutral reasons for the peremptory strikes are given, the question of the sufficiency of the prima facie case is moot. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Manning v. State, 735 So.2d 323, 339(¶ 28) (Miss.1999); Woodward v. State, 726 So.2d 524, 530(¶23) (Miss.1997); Aguilar v. State, 847 So.2d 871, 876(¶ 9) (Miss.Ct.App.2002). As this issue is moot, we proceed to the other issues raised on appeal.

II. DID THE TRIAL COURT ERR IN HIS FINDING REGARDING JONES’S EXPLANATION FOR HIS PEREMPTORY STRIKES?

III. DID THE TRIAL COURT ERR IN FINDING THAT JONES’S PEREMPTORY STRIKES WERE IMPROPER?

IV. DID THE TRIAL COURT ERR IN DISALLOWING JONES HIS ORIGINAL FIVE PEREMPTORY STRIKES BECAUSE THE STATE FAILED TO CARRY ITS BURDEN OF PRETEXT?

¶ 10. Jones’s next three issues address the trial court’s findings that Jones failed to articulate race-neutral reasons for his peremptory strikes; as these issues involve the same law and precedent, we address them together. Jones argues that the trial court erred in not making explicit, on-the-record findings regarding Jones’s race-neutral reasons for his peremptory strikes against the jurors, and that the trial court erred in finding that his peremptory strikes were improper.

¶ 11. After the party opposing the strikes makes its prima facie case, the side exercising the strikes must articulate racially-neutral reasons for the strikes. McFarland, 707 So.2d at 171(¶ 14). Such explanations do not have to be persuasive, or even plausible. Lynch v. State, 877 So.2d 1254, 1271(¶ 49) (Miss.2004) (quoting Randall, 716 So.2d at 588(¶ 16)). “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. After the proponent of the strikes offers his race-neutral reasons, the party making the Batson objection is allowed to rebut the reasons offered by the striking party; the failure to rebut the offered reasons requires the trial court to examine only the reasons given by the striking party. Bush v. State, 585 So.2d 1262, 1268 (Miss.1991).

¶ 12. A trial court must make an on-the-record factual determination accepting or disposing of a party’s explanations regarding the challenged peremptory strikes. Johnson v. State, 875 So.2d 208, 209(¶ 2) (Miss.2004). When a trial court enunciates “clear factual findings” regarding its decision to accept or reject reasons for peremptory strikes, “the guesswork surrounding the trial court’s ruling is eliminated upon appeal of a Batson issue to [the appellate court].” Hatten v. State, 628 So.2d 294, 298 (Miss.1993). Our supreme court has identified five indicia of pretext when analyzing the race-neutral explanations for peremptory strikes under Batson:

(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge;
(2) the failure to voir dire as to the characteristic cited;
(3) the characteristic cited is unrelated to the facts of the case;
(4) lack of record support for the stated reason; and
(5) group based traits.

Berry v. State, 802 So.2d 1033, 1038(¶ 15) (Miss.2001).

¶ 13. In defense of his peremptory strike against juror 18, Walker argued that number 18 was an accountant, had a military background, and was a crime victim. The trial judge responded that a number of the petit jury were also crime victims, namely juror 18, 20, 27, 39, 70 and number 165, who had not been tendered on the petit jury. The judge then instructed Walker to continue. Walker next argued that he exercised a peremptory strike against juror number 20 because she was a teacher and her jury questionnaire implied that she was a caregiver for small children. Walker also argued that she, too, was a crime victim. Regarding juror 29, Walker pointed out that twenty years ago he was involved in some litigation in which he took that juror’s deposition. Additionally, juror 29 had previously served on a jury that had convicted someone. Walker further argued that his research reflected that juror 29 would favor the State, as he was a plant manager.

¶ 14. Walker argued that juror 39 was a crime victim, had served in the military, and was a manager. Walker asserted that juror 64 was employed as an investigator with the State Auditor’s Office, and as a general rule he did not want individuals with a law enforcement background on the jury. Finally, Walker argued that juror number 65 had a child under the age of twelve, close to the victim’s age at the time of the alleged rape.

¶ 15. The court responded that another juror 17, whom Walker did not strike, was also the parent of a child twelve years of age or younger. The State then interjected that juror 27 had also served as a criminal juror in the past, had voted to find that defendant guilty and was a crime victim. Walker responded that juror 27 was a factory worker and not a manager.

¶ 16. The court then opined:

Well, I don’t know any authority that I have that I can just categorically exclude jurors because of occupation ... there’s been no showing of any of those alleged crime victims whether it was a child, a murder, a rape, a robbery, a misdemeanor or lawn mower theft. Again, you are asking me to exclude whole categories of people ... I think the rest of them are just pure subterfuge as a pretext to try to get a class of people off the jury, and as a trial judge, I can’t let it happen. I cannot let it happen. And God knows if I had any reason here that I felt like was legally sufficient, I would sustain at least part of them, but I don’t see anything but a pattern here of not wanting a whole class of people....

¶ 17. This Court must give great deference to the trial court in “determining whether the offered explanation under the unique circumstances each case presents is truly a race-neutral reason.” Webster v. State, 754 So.2d 1232, 1236(¶ 10) (Miss.2000). This deference is due because “the demeanor of the attorney making the challenge is often the best evidence of race-neutrality.” Walker v. State, 815 So.2d 1209,1215 (¶ 12) (Miss.2002). We find no error in the trial court’s finding. The court was clearly unpersuaded by Walker’s arguments, and this assessment stemmed from the court’s prior experience with Walker (noting that this was not the “first rodeo” for either the judge or defense counsel), Walker’s demeanor, the arguments Walker advanced regarding the strikes, and the arguments advanced by the State.

¶ 18. We also disagree with Jones’s contention that the State waived its right to contest Jones’s explanations for the strikes. The State countered the explanations by pointing out that Walker was inconsistent in applying his rationale as evidenced by juror number 27.

¶ 19. These issues are without merit.

V. DID THE TRIAL COURT ERR IN NOT ALLOWING JONES TO CONSIDER THE ENTIRE JURY PANEL FOR PEREMPTORY STRIKES?

¶ 20. Jones’s final argument is that the trial court denied him the use of his peremptory strikes in not allowing him to strike the jurors after the court denied the peremptory strikes. Specifically, the trial court re-instated jurors 18, 20, 39, 63 and 65, allowing the strike against juror number 29 to stand. The following dialogue then ensued:

MR. WALKER: Well, Judge, do I get to exercise five more challenges then?
THE COURT: Yes, sir, if you go that far. I’m just trying to find out just— where had you tendered through, Mr. Kelly? For some reason I don’t have it marked.
MR. KELLY: Through 65.
THE COURT: Through number 65?
MR. REID: It would be 75 now.
MR. KELLY: Well, and I don’t object to 75. We had eleven counting through 65, and then I’m looking at 70 and 72[who] were excused.
THE COURT: They were.
MR. KELLY: So I would accept 75[,] and I tender through 75 as a panel of 12.

The court then instructed Reid to count off the jurors on the panel: numbers 12, 18, 19, 20, 24, 27, 39, 58, 63, 64, 65, and 75.

THE COURT: That’s been tendered. All right. I’m with you now.
MR. WALKER: Is it proper for the defense to exercise its five challenges remaining?
THE COURT: Sir?
MR. WALKER: Is it appropriate now, Judge, for me to exercise my five challenges remaining?
THE COURT: Yes, sir.
MR. WALKER: With this statement, Judge, I’m going to strike the first five on the list under the theory that if Mr. Kelly wants them on the jury, I don’t. D2 will be number 12, [name omitted]; D3 will be number 18, [name omitted]; D4 will be number 19 [name omitted].
THE COURT: Wait a minute now. You are going back striking jurors that’s [sic] already been—
MR. WALKER: I think so, Judge.
THE COURT: I don’t know what you’re doing.
MR. WALKER: You took away my strikes.
THE COURT: I just reinstated these people on the jury. What are you saying now? You can go back and reconsider the same people and come up with a different strike?
MR. WALKER: I would think so, Judge. I mean, eighty per cent of my strikes were taken away from me.
THE COURT: Yes, sir, I’m saying the reasons you gave me for those preempts were insufficient, legally insufficient. You’ve still got your strikes, but I can’t go back and let you consider all these jurors again and come up with a different reason. I have never been requested to do that, but I don’t think that would be proper at all....

¶21. Citing Mississippi Code Annotated Section 99-17-3 (Rev.2000), Jones argues that the trial court’s refusal to allow him to strike the tendered jurors in this manner was error. Section 99-17-3 provides, in pertinent part, as follows:

In cases not capital the accused and the state each shall be allowed six peremptory challenges; but all peremptory challenges by the state shall be made before the juror is presented to the prisoner. In all cases the accused shall have presented to him a full panel before being called upon to make his peremptory challenges.

¶ 22. Jones argues that the trial court “took” Jones’s peremptory challenges “as a penalty for improper use;” thus, he should have been allowed to consider the entire jury panel and strike offending members.

¶ 23. Rule 10.01 of the Uniform Rules of Circuit and County Court addresses jury selection, providing, in pertinent part, as follows:

In felony cases not involving the possible sentence of death or life imprisonment, the defendant and the prosecution shall have six (6) peremptory challenges for the selection of the twelve regular jurors. These challenges may not be used in the selection of an alternate juror or jurors.

¶ 24. The use of the word “shall” in section 99-17-3 and Rule 10.01 implies that the trial court has no discretion in the number of peremptory strikes given to each side; thus, the court lacked the discretion to grant Jones five additional strikes. But see Moody v. State, 841 So.2d 1067, 1079(¶ 32) (Miss.2003) (where trial court granted each side nineteen peremptory strikes) and Le v. State, 913 So.2d 913, 924(¶ 18) (Miss.2005) (where the defendant, having left peremptory challenges “on the table”, could scarcely demonstrate prejudice in trial court’s refusal to grant additional peremptory strikes).

¶ 25. Regarding the improper “taking” of peremptory strikes, we note that a similar argument was advanced in Weeks v. State, 804 So.2d 980 (Miss.2001), wherein Weeks argued that the trial court denied him his full number of peremptory strikes in refusing five of the strikes. The Mississippi Supreme Court found that the issue was procedurally barred; notwithstanding the procedural bar, the court opined:

The State challenged all of the twelve strikes under the Batson rule. Of the twelve strikes, the trial judge denied five strikes. Defense counsel clearly exercised twelve peremptory strikes on the venire persons as demonstrated in the trial record. In essence, the defense did not use all the strikes in a proper manner.

Weeks, 804 So.2d at 990(¶ 23). The implication is clear: Jones exercised his six peremptory strikes against jurors 18, 20, 29, 39, 63, and 65 — the trial court did not “take” the strikes from him. Furthermore, under the mandatory language of URCCC 10.01, Jones is not entitled to additional peremptory strikes due to his failure to use the strikes for non-discriminatory purposes.

¶ 26. Jones does not cite any relevant authority regarding his argument that he should have been able to revisit and, therefore, re-strike members of the panel of tendered jurors. Failure to cite relevant authority obviates this Court’s obligation to review this issue. Simmons v. State, 805 So.2d 452, 487(¶ 90) (Miss.2001). Notwithstanding the procedural bar, we are unpersuaded that Jones’s attempt to strike the empaneled jurors was less pretextual than his first attempt to strike the unwanted jurors. The court’s ruling that the strikes were discriminatory ends the analysis of the issue at the trial level. To hold otherwise would accomplish nothing but a time-consuming, circuitous series of attempts to conjure an acceptable reason to strike an unwanted juror.

¶ 27. This issue is without merit.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF COUNT I, STATUTORY RAPE, AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND UPON RELEASE FROM THE TERM OF INCARCERATION PLACED UNDER A TERM OF FIVE YEARS OF NON-REPORTING POST-RELEASE SUPERVISION; AND COUNT II, SEXUAL BATTERY, AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO RUN CONCURRENTLY WITH THE SENTENCE IMPOSED IN COUNT I, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

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

      . The Court of Appeals declines to identify sexual assault victims who are minors. In the interest of the child's privacy, names of family members have been substituted with aliases.

      . The record does not indicate juror 20’s race.

      . Although the defendant in Weeks was entitled to twelve peremptory strikes under Miss. Code Ann. Section 99-17-3 because he was charged with a capital crime, this distinction is irrelevant for purposes of our analysis.


author: SOUTHWICK, J.,

text:
    James SHANKS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01958-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.
    Rehearing Denied March 13, 2007.

      Sharon D. Henderson, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

      Before KING, C.J., SOUTHWICK and IRVING, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. James Shanks was convicted by a Jones County Circuit Court jury of the crime of possession of marijuana. On appeal, he argues there were prejudicial trial errors. He also contests the weight and sufficiency of the evidence. We find no error and affirm his conviction and sentence.

FACTS

¶ 2. On March 9, 2005, Malcolm Bounds, a narcotics officer with the Laurel Police Department, was contacted by a FedEx office in Phoenix, Arizona about a package en route to Laurel that might contain an illegal substance. The record does not indicate the source of the information from the Arizona FedEx office. Bounds intercepted the package when it arrived at a FedEx distribution facility in Hattiesburg, Mississippi. A drug dog indicated the presence of illegal drugs. Bounds and other officers opened the package and discovered a large amount of marijuana. The package was addressed to David Drum-mond and the sender was listed as Roy Shawn Drummond. The residence for delivery was owned by a Daphne Drummond. A search of Laurel public records did not contain a person by the name of David Drummond. Nobody by that name would ever be identified.

¶ 3. Bounds organized a controlled delivery conducted by Laurel police and one out-of-town officer. The out-of town-officer, David Stringer, posed as a FedEx deliveryman. Stringer was accompanied in the delivery van by a Laurel police officer. Bounds and other officers involved were positioned close to the residence but could not see the delivery transaction from their position. Officer Chris Flowers testified that after Stringer knocked on the door and Shanks came out of the residence, Stringer set the package down. Flowers then testified that Shanks picked the package up, looked at it briefly, set it back down, and signed the receipt form prior to being arrested. Flowers could not hear the conversation between Stringer and Shanks.

¶ 4. Stringer testified that he placed the package on the ground in the carport and asked Shanks to inspect the package to make sure it was not damaged. This was done to get Shanks out of the house and to prevent the package from being taken into the house. Shanks “picked it up briefly,” said “okay,” and set it back down. Shanks then signed for the package using the alias of Joe Harris. He was immediately arrested. Evidence was presented that Shanks received two phone calls from Arizona on his cell phone, one on the day the drugs were shipped and the second on the day the package arrived. Shanks was at the delivery address at the time the package was scheduled for delivery and knew the occupant of the house would not be home.

DISCUSSION

ISSUE 1: Weight and sufficiency of the evidence

¶ 5. Shanks argues that the jury verdict was against the weight of the evidence because nothing supports that Shanks was aware of the contents of the package. He also argues that he was never in possession of the drugs. Though expressed in terms of the weight of evidence, Shanks challenges the denial of his motion for directed verdict of acquittal. A motion for directed verdict argues against the sufficiency, not the weight of the evidence.

¶ 6. In reviewing the denial of a motion for directed verdict, an appellate court must examine all of the evidence before the trial court from a perspective that is favorable to the State. Shaw v. State, 915 So.2d 442, 448 (Miss.2005). The objective is to determine whether a jury could not have found an accused guilty even with all the reasonable inferences in favor of guilt that could have been derived from the evidence. Id. at 448—49.

¶ 7. Under the indictment the prosecution had to prove that Shanks felo-niously and knowingly possessed more than one kilogram but less than five kilograms of marijuana. Possession requires that an accused be “aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Kerns v. State, 923 So.2d 196, 199-200 (Miss.2005) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). The possession may be actual or constructive. Id. Constructive possession arises from “dominion and control” over drugs and requires “incriminating circumstances” to connect an accused to the substance. Id. Proximity alone is not sufficient evidence to prove possession. Id.

¶ 8. Shanks seeks reversal because of precedents in which a defendant could not be convicted where contraband was discovered near the accused and also near other people, without any evidence that the defendant had touched the contraband and it also was not on the defendant’s property. Martin v. State, 804 So.2d 967, 969-70 (Miss.2001). Shanks also relies on caselaw that an accused must be acquitted if contraband is found on premises that the accused does not exclusively possess and there is no competent evidence to connect the contraband to the accused. Fultz v. State, 573 So.2d 689 (Miss.1990); Pool v. State, 483 So.2d 331 (Miss.1986). Shanks argues that since he was not the owner of the property upon which the drugs were located, no presumption arises that he exercised dominion and control over them.

¶ 9. Shanks would have us reverse because he may simply have been at the residence, accepted a package on behalf of the owner with the same last name as the addressed recipient, and had no knowledge of the contents and thus no knowing possession of contraband. Looking at all reasonable inferences of knowing possession, however, we find several incriminating facts presented to the jury. Incrimination begins with Shanks’s presence at a residence that was not his own at a time that that the package was to be delivered. Shanks testified that he was there to spend time with a girl. However, he was alone when apprehended. Shanks received calls on his cell telephone from the location where the drugs were shipped. Shanks signed for the package by using a fake name. Shanks explained that he used that name in an effort to conceal his presence at the Drummond residence from another girlfriend. However, Shanks did not try to conceal his vehicle that was parked in the driveway in front of the residence. There was no evidence that the name of the sender, Roy Shawn Drummond, or of the recipient, David Drummond, were those of actual people.

¶ 10. Permissible inferences from the facts are these. Shanks was at the residence to receive a package of drugs; he had been notified that the drugs were to arrive at a specific time in the two phone calls he received from the shipment location in Arizona. He used a false name to sign for the delivery because of his knowledge of the criminal nature of the contents. It was not reasonable for a person to be concerned that FedEx would somehow notify a girlfriend of his signature on a package receipt, making his explanation incrim-inatingly false. Shanks possessed the package by taking delivery. These factors support the jury’s conclusion that Shanks exercised dominion and control over the package knowing the package contained the drugs. We find that a view of the evidence in the manner consistent with the verdict, making all reasonable inferences in favor of that verdict, allows this conviction to stand.

ISSUE 2: Jury Instructions

¶ 11. Shanks argues that the trial court erred in refusing to give certain jury instructions he requested. A total of four jury instructions were given. Two of the instructions were given by the court dealing with deliberations on a verdict and the proper form of the verdict. The State’s sole instruction explained the elements of the charge. This instruction also stated that “if the State has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the defendant not guilty....” The sole defense instruction given discussed “reasonable doubt” and that the proof must show more than a probability.

¶ 12. Shanks argues that some of his proposed instructions were vital because they gave a more complete definition of the elements of the charge. Shanks places much significance on jury instruction D-7, which the court rejected. The relevant portion of the proposed instruction states:

To constitute possession, there must be sufficient facts to warrant a finding beyond a reasonable doubt that the Defendant was aware of the presence and character of the particular substance, in this case, marijuana, and was intentionally and consciously in possession of it. Where the particular substance is not in the actual physical possession of the Defendant, there must be sufficient facts to establish beyond a reasonable doubt that the substance involved was subject to the Defendant’s dominion or control.

Shanks argues that he was convicted based on constructive possession. The prosecution argued that Shanks was in actual possession of the package and that he knew the contents of the package. The State argues that proposed defense instruction D-7 would have been to Shanks’s disadvantage because the jury needed to find actual possession.

¶ 13. Instructions D-5 and D-6 elaborated on the elements of the crime. Through the State’s instruction, jurors were told that Shanks must have knowingly possessed the drugs, meaning that Shanks must have known that drugs were inside the package. Instruction D-6 repeats that guidance and therefore would not have been helpful to the jury. Instruction D-5 gave an accurate definition of what possession must entail, including the key requirement for conviction that the jury must find that “Shanks knew that it was marijuana.”

¶ 14. On review for error, the jury instructions given are to be read as a whole. Johnson v. State, 908 So.2d 758, 764 (Miss.2005). When the given instructions explain the law fairly and no injustice is created, there is no error. Id. A trial court does not need to give redundant jury instructions. Swann v. State, 806 So.2d 1111, 1117 (Miss.2002). The jury was instructed on the requirement that Shanks have knowing possession of the contraband. There is no merit to the argument that additional explanations of the knowledge needed for possession had to be given.

ISSUE 3: Prejudicial Statements

¶ 15. Shanks argues that the prosecution engaged in misconduct by making prejudicial statements which include referencing the drugs as “that big ole box of dope,” and certain statements made in the closing argument. The prosecution in closing said:

[Y]ou know, I’m sorry, but I didn’t wake up over there in California or Michigan or somewhere. I’m just a red neck from right out around Indian Springs, and all I know is ....

¶ 16. Defense counsel objected to this as unnecessary extemporaneous material, but the objection was overruled. The prosecution continued:

All I know is that water don’t flow uphill. You know, we learn little old things like that. And if somebody believed that cock and bull story of this guy, well, you know, all I can say is turn him aloose. You know, this crap right here, look at all that. That stuff destroys communities. It destroys families, children. I mean, God knows, maybe some of you or whatever — you know, I hope not, but, you know, we have people that we know that’s been touched by that stuff, whether it’s that or some other drug. That’s why it’s against the law to sell it, whether we like it or not. And it ought to be ....
Now, this ain’t California, you know. You can get your fancy lawyers here, there and everywhere, you know. But this ain’t California....

¶ 17. The Supreme Court has held that a prosecution closing argument will cause reversal if 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” created prejudice. Flora v. State, 925 So.2d 797, 812 (Miss.2006). That standard gives prosecutors considerable leeway. Prosecutors must not engage in arguments that are “inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Id. The objective of controlling prejudicial statements is to keep the focus of jurors on the evidence and to discourage appeals to jurors to vote as members of the community, the effect of which is to create a reluctance to acquit even if the evidence is weak. The key issue in reviewing alleged prose-cutorial misconduct during closing arguments is whether the statements denied a defendant a fair trial. Walker v. State, 913 So.2d 198, 240 (Miss.2005).

¶ 18. Shanks labels part of the prosecutor’s statement as a version of a “send a message” argument. Such arguments indirectly express that the jury should decide guilt or innocence either to intimidate others who might be inclined to commit crime or, sometimes, to please the community. “Send a message” arguments are improper but will not cause reversal if the reviewing court determines that it is “clear beyond a reasonable doubt, that absent the prosecutor’s comments, the jury could have found the defendant guilty.” Spicer v. State, 921 So.2d 292, 317 (Miss.2006).

¶ 19. The first disputed portion of the argument was a reference to the package as a “big ole box of dope.” Evidence was presented that a box of marijuana was delivered to the accused. The prosecutor’s flippant description of that event did not affect the fairness of the trial.

¶ 20. Other statements in the closing argument encouraged jurors to consider this a serious crime. Among the ways in which this point was made was in stating that marijuana “destroys communities. It destroys families, children. I mean, God knows, maybe some of you or whatever— you know. I hope not, but, you know, we have people that we know that’s been touched by that stuff, whether it’s that or some other drug. That’s why it’s against the law to sell it, whether we like it or not.”

¶ 21. The statements made by the prosecution, while a bit rambling and tending to bring in extraneous considerations, largely were focused on the need to consider that drugs were dangerous and possession should be a crime, even if citizens in some other named states did not think so. The evidence offered to support conviction was of a person signing for delivery of marijuana, without any evidence that he was otherwise involved in the drug trade. The State may have believed some jurors might not have been as concerned about a crime such as this as they should be.

¶ 22. We do not find that the challenged arguments to be in the “send a message” category. We also do not find that the statements interfered with the fairness of the trial.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION FOR POSSESSION OF MARIJUANA, MORE THAN ONE KILOGRAM BUT LESS THAN FIVE KILOGRAMS, AND SENTENCE OF TWENTY-FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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