author: CHANDLER, J., for the Court.

text:
    Flavian L. GRAY, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00256-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2006.
    Rehearing Denied June 20, 2006.

      Frank Caswell Jones, Thomas M. Fort-ner, Jackson, Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by W. Daniel Hinehcliff, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. Flavian L. Gray was tried and convicted of business burglary. Gray appeals, raising the following issues:

I. WHETHER THE CIRCUIT COURT ERRED IN OVERRULING GRAY’S MOTION FOR A MISTRIAL.
II. WHETHER THE TRIAL COURT ERRED IN OVERRULING GRAY’S COUNSEL’S OBJECTIONS TO HEARSAY WHILE SUSTAINING OBJECTIONS BY THE PROSECUTION.
III. WHETHER THE TRIAL COURT ERRED IN DENYING GRAY A JURY INSTRUCTION FOR TRESPASS.
IV. WHETHER THE TRIAL COURT ERRONEOUSLY DENIED GRAY’S MOTION FOR A JNOV OR, ALTERNATIVELY, FOR A NEW TRIAL.

¶ 2. Finding no error, we affirm.

FACTS

¶3. On September 25, 2001, Flavian Gray, Sherry Bernaix and Anthony Anderson arrived at Security Storage Facility in a large diesel moving truck. Gray told the attendant manager, Peggy Thompson, that he was there to remove items from Greg Pippin’s storage locker. Thompson called Pippin, and Pippin confirmed that he had authorized Gray to enter his locker. Thompson directed Gray, Bernaix, and Anderson to Pippin’s locker, number 165. Later, Thompson noticed that the truck was no longer at Pippin’s locker. Thompson left her office and found Gray emptying locker number 212, located in a different area of the complex. Bernaix told Thompson that the locker was hers, but Thompson knew that the true tenant of the locker was Dorothy Taylor. Thompson telephoned Taylor, who denied that anyone had permission to enter her storage bin.

¶ 4. Thompson called the police. Officer Jackie Watson arrived, followed by Officer Robert Bufkin. Officer Watson took a statement from Gray, who said he had made a mistake about the location of Pippin’s storage bin.

¶ 5. At the trial, Gray testified that he had sought only to assist Bernaix and that he had not been involved in emptying locker 212. He stated that he had left Security Storage to purchase beer but, upon returning to Security Storage five minutes later, he discovered that the truck had moved away from locker 165. He found the truck completely loaded with furniture from locker 212.

¶ 6. The jury found Gray guilty of business burglary, and he was sentenced to five years’ imprisonment.

LAW AND ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN OVERRULING GRAY’S MOTION FOR A MISTRIAL.

¶ 7. Gray testified at his trial. The State impeached him by introducing into evidence certified copies of his prior convictions for false pretenses for writing bad checks. Gray’s attorneys objected because the State had not disclosed the fact that it intended to use Gray’s prior conviction record to impeach Gray. Gray claims that his prior convictions were improperly admitted and thát the circuit court should have granted a mistrial.

¶ 8. Uniform Rule of Circuit and County Court 9.04(A)(3) requires that the prosecution give the defendant a copy of the defendant’s criminal record, if the prosecution proposes to use the record to impeach. By failing to provide Gray or his attorneys with copies of his false pretenses convictions, the State was in violation of Rule 9.04. Gray was entitled to notice that his false pretenses convictions would be used against him.

¶ 9. The Mississippi Supreme Court has held that a violation of Rule 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice. Wyatt v. City of Pearl, 876 So.2d 281, 284(¶ 10) (Miss.2004). We find that no miscarriage of justice occurred in the present case. Gray gave three inconsistent statements explaining why he was at Dorothy Taylor’s locker. Firstly, at the crime scene, Gray told Officer Watson that he was at Taylor’s locker because Greg Pippin had given him the wrong locker number. However, at trial, Gray stated that he had known exactly where Pippin’s storage locker was. Secondly, when Gray was at the police station, he said that he was at Taylor’s locker because Peggy Thompson had directed him there. However, when Thompson testified at trial, she stated that she watched Gray and made sure he went to locker 165. She did not confront Gray until after she saw him move the truck to locker 212 and unload items from the locker. Thirdly, at trial, Gray testified that he was not at Taylor’s locker at all but was buying beer when Gray’s friends loaded the truck with Taylor’s possessions. This testimony directly conflicts with the testimony of Thompson, who stated that she saw Gray at locker 212 unloading furniture.

¶ 10. Thus, even without the introduction of his prior convictions, Gray’s conflicting statements severely impaired Gray’s credibility with the jury. It cannot be said that the State’s introduction of Gray’s prior convictions for the purpose of impeachment was an affirmative miscarriage of justice.

II. WHETHER THE TRIAL COURT ERRED IN OVERRULING GRAY’S COUNSEL’S OBJECTIONS TO HEARSAY WHILE SUSTAINING OBJECTIONS BY THE PROSECUTION.

¶ 11. Gray claims that the trial court displayed favoritism towards the prosecution by overruling his attorney’s objections to hearsay, while sustaining several objections by the prosecution. This Court reviews the trial court’s ruling admitting or excluding evidence for abuse of discretion. Ladnier v. State, 878 So.2d 926, 933(¶ 27) (Miss.2004). Further, an error in the admission or exclusion of evidence must affect a substantial right of a party in order to constitute grounds for reversal. Id.; M.R.E. 103(a).

A. Gray’s hearsay objections.

¶ 12. Thompson related that Gray cursed at her when she confronted Gray about transporting items out of locker 212. Over Gray’s hearsay objection, Thompson further testified that Gray called her a “b — h” who had no business “dipping [her] nose into someone else’s f — -g business.” The trial court admitted these statements after finding them probative of Gray’s behavior upon being confronted at locker 212 by Thompson and Officer Watson.

¶ 13. On appeal, Gray argues that his statements to Thompson constituted inadmissible hearsay. This issue is without merit. Hearsay is a statement, other than one made by the declarant while testifying at the trial, that is offered in evidence to prove the matter asserted. M.R.E. 801(e). Gray’s angry statements to Thompson were not offered for their truth, but to show the circumstances attending Gray’s confrontation by Thompson and Officer Watson. Therefore, the statements were not hearsay.

¶ 14. Over Gray’s objection, Officer Watson testified that he was called to Security Storage because Thompson had alerted police that two suspects were taking items out of the wrong storage unit. The circuit court properly overruled Gray’s objection and admitted this testimony. The Mississippi Supreme Court has held that admitting out-of-court statements made to the police during the course of their investigations is permissible. Swindle v. State, 502 So.2d 652, 658 (Miss.1987). “It is elemental that a police officer may show that he has received a complaint, and what he did about the complaint without going into details of it.” Id.

¶ 15. When Gray was at the police station, Detective Donald Gaiter read Gray his Miranda rights, which Gray waived. Gray then gave a statement to the police, which was introduced into evidence. In the statement, Gray said that he was at Dorothy Taylor’s locker because Thompson had directed him to the wrong locker. Gray’s attorney objected to the introduction of the statement on the ground of hearsay, which the circuit court properly overruled. “Extrajudicial statements by a criminal defendant, so long as the statements are relevant to the matter being tried, are admissible in evidence.” Cobb v. State, 734 So.2d 182, 185(¶7) (Miss.Ct.App.1999) (citing M.R.E. 801(d)(2)(A); Gayten v. State, 595 So.2d 409, 414 (Miss.1992)).

¶ 16. The trial court also allowed Officer Watson to testify that Gray did not answer Officer Watson’s questions at the crime scene. Gray’s silence was admissible. Id. This issue is without merit.

B. The State’s hearsay objections.

¶ 17. Gray further argues that the circuit court erred in sustaining the prosecution’s hearsay objections. He alleges that a permissible exception to the hearsay rule existed in each instance.

¶ 18. We recite the prosecution’s hearsay objections. The circuit court sustained the State’s objection to hearsay when Pippin attempted to recall what Gray told him in a telephone conversation. The court sustained the State’s objection to hearsay when Alex Sanders, the owner of the truck, attempted to recall what Bernaix had asked him to do. The court sustained the State’s objection to hearsay when Gray attempted to recall what Bernaix had told him when she asked him to go with her to Security Storage. The court sustained the State’s objection to hearsay when Gray attempted to recall what Bernaix said to Thompson when Thompson confronted Gray, Bernaix, and Anderson about unloading items out of Taylor’s locker. The court sustained the State’s objection to hearsay when Gray testified that he had asked Bernaix about the whereabouts of Anderson and attempted to recall Ber-nards answer to his question.

¶ 19. The circuit court properly sustained each of the State’s objections. Each of the instances Gray cites was offered for the truth of the matter asserted, and constituted hearsay. M.R.E. 801(c). Gray did not point out any applicable hearsay exceptions to the circuit court, nor does he on appeal. This issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN DENYING GRAY A JURY INSTRUCTION FOR TRESPASS.

¶ 20. Gray proffered a jury instruction that would have allowed the jury to convict him of trespass, which is a lesser included offense of burglary. Harper v. State, 478 So.2d 1017, 1021 (Miss.1985). The Mississippi Supreme Court has held that lesser offense instructions should be granted only where there is an evidentiary basis therefor in the record, and should not be granted indiscriminately. Lee v. State, 469 So.2d 1225, 1230 (Miss.1985). In other words, a lesser-included offense instruction should be refused in cases where the evidence could only justify a conviction of the principal charge. Perkins v. State, 788 So.2d 826, 828(¶ 8) (Miss.Ct.App.2001) (citing Ruffin v. State, 444 So.2d 839, 840 (Miss.1984)).

[A] lesser included offense instruction should be granted unless the trial judge — and ultimately this Court — can say, taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge), [emphasis added]

Rowland v. State, 531 So.2d 627, 631 (Miss.1988) (quoting Harper v. State, 478 So.2d 1017, 1021 (Miss.1985)).

¶ 21. To prove the elements of burglary of a building other than a dwelling, the State must show that the defendant unlawfully broke and entered with the intent to steal or to commit a felony therein. • Miss. Code Ann. § 97-17-33(1) (Rev.2000). The lesser included offense of trespass requires entering another’s property without permission or remaining on his or her property after being told to leave. See Miss. Code Ann. § 97-17-85 (Rev.2000). In Perkins, the defendant was convicted of burglary and, on appeal, challenged the trial court’s denial of a jury instruction on the lesser included offense of trespass. Perkins, 788 So.2d at 828(¶ 7). This Court affirmed the denial of the instruction. Id. at 829(¶ 10). We found that, since Perkins’s theory of defense was that he had permission to be on the property, the evidence did not support a trespass conviction. Id. at (¶ 9).

¶ 22. As in Perkins, there was no evidence that would have allowed a rational jury to convict Gray of trespass rather than burglary. Gray testified that he was not present when the storage locker was burglarized, never entered Taylor’s locker, never loaded any furniture into the truck, and had returned to Security Storage only after the truck had been loaded with furniture. Thus, if the jury accepted Gray’s version of events, it would have believed that Gray never entered Taylor’s property and had not committed trespass. Therefore, the trial court’s refusal of Gray’s proffered trespass instruction was not error.

IV. WHETHER THE TRIAL COURT ERRONEOUSLY DENIED GRAY’S MOTION FOR A JNOV OR, ALTERNATIVELY, FOR A NEW TRIAL.

¶ 23. Gray challenges the trial court’s denial of his motions for a JNOV or a new trial. Gray points out that, when he entered Security Storage, he identified himself to the office manager, displayed identification, and allowed the office manager to verify his identity and purpose for being at the facility. Based on this evidence, Gray argues that the State failed to show that he entered Security Storage with the intent to commit a felony. Therefore, he contends, the State failed to prove an element of burglary and he was entitled to a JNOV. Gray also alleges that the jury verdict is against the weight of the evidence because his actions were inconsistent with those of a person seeking to burglarize property.

¶ 24. A motion for a JNOV challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). On review of the denial of a JNOV, this Court views the evidence in the light most favorable to the verdict. Id. If any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the Court will uphold the verdict. Id. We are mindful that “[mjatters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.” Harveston v. State, 493 So.2d 365, 370 (Miss.1986).

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

¶ 25. Gray was convicted of business burglary, which required the State to establish that Gray broke and entered into a building with the intent to steal or to commit another felony. Miss.Code Ann. § 97-17-33 (Rev.2000). Peggy Thompson testified that Taylor’s storage unit was closed and locked when Gray arrived at Security Storage, and that the unit was open when she confronted Gray. She saw Gray moving items out of the storage unit and into the truck. Thompson’s testimony sufficiently established the elements necessary to convict Gray of business burglary. The weight and credibility of Thompson’s testimony was a matter properly resolved by the jury. Drake v. State, 800 So.2d 508, 516(¶ 34) (Miss.2001). Further, the evidence was such that the jury reasonably could have convicted Gray of burglary and the verdict was not against the overwhelming weight of the evidence. Gray was not entitled to a JNOV or a new trial.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF BURGLARY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


source: Caselaw Access Project

author: IRVING, J., for the Court.

license: Public Domain

text:
    In the Interest of T.B., a Minor, by and through his Next Friend and Parent, C.B., Appellant v. BOARD OF TRUSTEES OF The VICKSBURG WARREN SCHOOL DISTRICT, Appellee.
    No. 2004-CA-02283-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2006.
    Rehearing Denied June 20, 2006.

      Mark W. Prewitt, Vicksburg, attorney for appellant.
    Ben J. Piazza, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J., for the Court.

¶ 1. T.B., a ninth grade student at Warren Central High School, was expelled for the remainder of the 2003-2004 school year for alleged possession and sale of controlled substances while at school. Aggrieved, T.B., by and through his father as next friend, appeals and asserts that (1) there was a violation of his constitutional rights and (2) the decision of the Board of Trustees of the Vicksburg-Warren School District was not supported by substantial evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶3. On November 13, 2003, T.B. was suspended by Warren Central High School’s principal, E.M. Douglas, for possession and sale of controlled substances and for “threatening to have a snitch jumped on and beat up.” The suspension was pending a review by the school district’s discipline review committee. On November 25, 2003, a hearing was held before the committee. At this hearing, testimony was taken from another Warren Central High School student, T.S., and Principal Mack Douglas. T.B. testified in his own defense, and he denied that any of the accusations were true. After receiving and reviewing the evidence, the committee recommended that T.B. be expelled for the remainder of the 2003-2004 school year. Feeling aggrieved by the committee’s decision, T.B. appealed to the Board of Trustees of the Vicksburg-Warren School District. After reviewing the record of the hearing before discipline review committee and hearing arguments from T.B’s attorney, the board upheld the recommendation of the committee and formally expelled T.B. for the remainder of the 2003-2004 school year. From the board’s decision to uphold expulsion, T.B. perfected an appeal to the Warren County Circuit Court. The circuit court affirmed the board’s decision, and T.B. now appeals to this Court from that adverse ruling.

(1) T.B.’s Constitutional Rights

¶ 4. T.B. contends that he was denied a fair hearing and his constitutional rights were violated. Specifically, T.B. argues that his due process rights were violated when: (1) no list of witnesses that would testify about the specific charges was provided to him prior to the hearing, (2) he was not given an explanation of the evidence against him, (3) he was denied the right of confrontation and cross-examination, and (4) he was not notified that a key witness had changed his story.

¶ 5. “There is no question that a student facing suspension or expulsion has a property interest that qualifies for protection under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” Warren County Bd. of Educ. v. Wilkinson, 500 So.2d 455, 458 (Miss.1986). Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) is the landmark case establishing a student’s rights to due process when facing suspension or expulsion from school. In Goss, the United States Supreme court stated:

Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.... [However,] longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.

Goss, 419 U.S. at 581, 584, 95 S.Ct. 729. Goss does not clearly articulate what is meant by the phrase “more formal procedures” when dealing with longer suspensions or expulsions. However, the Fifth Circuit has acknowledged that some safeguards should be afforded to satisfy long-term suspensions. In a case in which a student claimed that his due process rights were violated, the Fifth Circuit held that: “[T]he standards of procedural due process are not wooden absolutes and that the sufficiency of procedures employed in a particular situation must be judged in light of the parties, the subject matter, and the circumstances involved.” Keough v. Tate County Bd. of Educ., 748 F.2d 1077, 1081 (5th Cir.1984). Therefore, we must examine the facts and circumstances involved in the case to determine if there were any violations of T.B.’s due process rights.

¶ 6. T.B'. asserts that he was denied due process because he did not receive the names of witnesses prior to the hearing. We must note that T.B. never requested that he be provided with a list of witnesses. Nevertheless, The Mississippi Supreme Court has held that failure to provide a list of witnesses is not necessarily a denial of due process. In Jones v. Bd. of Trustees of Pascagoula Mun. Separate School Dist., 524 So.2d 968, 973 (Miss.1988), our supreme court stated: “Since how much process is due depends on the particular circumstances, a denial of a list of witnesses will not always amount to a prejudicial denial of due process. Particularly, this must be so with student witnesses, since a school board has not been given the power of subpoena.” Moreover, in a case where a student was not provided with a list of witnesses prior to the hearing, the Fifth Circuit held that “the student was not denied due process because the student and his parents were fully appraised of the charges, the underlying facts supporting the charges, the nature of the hearing, and that they were entitled to counsel.” Keough, 748 F.2d at 1081.

¶ 7. Similarly, we find that T.B. was not denied due process when the school failed to provide a list of witnesses prior to his hearing. T.B. was apprised of the charges against him. He was informed that the charges stemmed from the incident in which T.S. and other students said that he possessed and sold controlled substances at school. T.B. also knew that the hearing before the district’s discipline review committee was in relation to his suspension for possession and selling controlled substances and “threatening to have a snitch jumped on and beat up.” Finally, T.B. was allowed to have legal counsel present to aid his defense against the charges. Therefore, this issue is without merit.

¶ 8. T.B. also argues that he was not given an explanation of the evidence against him because the school failed to inform him that T.S. had changed his story. T.B. contends that he should have been told that T.S. informed school authorities that he lied when he said that he obtained the pill from T.B. on November 5, 2003, when the actual date of the incident was October 7, 2003. According to T.B., the board’s failure to inform him of the discrepancy in this crucial piece of evidence against him unlawfully allowed the board to take his parents and attorney totally by surprise because their whole defense was geared towards defending against the November 5th allegations.

¶ 9. We acknowledge the fact that prior to the hearing, T.B. and his attorney were not told of the T.S. recanting his original statement implicating T.B. in the November 5th sale of the pill. However, a review of the record reveals that T.B. was suspended and eventually expelled from school for possession and selling controlled substances. More importantly, his suspension and expulsion were not predicated upon a particular date in which he possessed and sold controlled substances, but were the result of continuous incidents in which T.B. allegedly possessed and sold controlled substances while on school property. Consequently, T.B. was given an explanation of the evidence against him. The date of the incident was immaterial under the circumstances. Furthermore, T.B.’s attorney was allowed to cross-examine T.S. about the reasons for his untruthful first statement. T.B.’s attorney was also allowed to cross-examine Principal Douglas as to why he or the school board never informed T.B. of the fact that T.S. changed his statement as to when the incident involving T.B. actually occurred. Therefore, we find that T.B. was given an explanation of the evidence against him, notwithstanding the change of the date of the incident. This issue is without merit.

¶ 10. T.B. further argues that he was denied his right to confrontation and cross-examination. T.B. maintains that he was denied a fair and impartial hearing before the discipline review committee because the committee considered hearsay testimony, i.e., the principal testified to what other students had told him about the incident. T.B. contends that the committee should not have considered the anonymous statements from other students because there was no way for him to question the veracity of the statements.

¶ 11. The Mississippi Supreme Court has held that admittance of hearsay evidence in student disciplinary proceedings is not a denial of confrontation rights. In Jones, the court stated, “[C]ases seem to suggest that courts will not uphold actions taken solely upon hearsay statements of students, but that hearsay testimony from school employees is apparently treated differently, and admitting this type of hearsay does not deprive a student of due process.” Jones, 524 So.2d at 973 (citations omitted). Therefore, hearsay testimony from Principal Douglas did not deprive T.B. of any of his due process rights. Moreover, T.B.’s attorney was allowed to question Principal Douglas about the statements from the unnamed individuals, and Douglas’s response was that it was school policy to allow students to anonymously tell what they knew about certain incidents without being required to testify at a disciplinary hearing. Furthermore, T.B. was not denied the right of cross-examination because his attorney was allowed to question T.S. and Principal Douglas about all aspects of the facts and circumstances that gave rise to the charges. Accordingly, we find that this issue is without merit.

(2) Substantial Evidence

¶ 12. T.B. was charged with the possession and selling of controlled substances. There is no reference in Principal Douglas’s written charge to any particular date for such possession and sale. At the hearing, T.S. directly implicated T.B. in the possession and sale of controlled substances. T.S. gave extensive detailed testimony about an alleged drug sale between himself and T.B. on October 7, 2003. T.S. testified that T.B. told him that the charge for the pill would be $5. T.S. also testified that T.B. said that purchased pill would either be Larocet or Darvocet. T.S. further testified that T.B. had approached him on prior occasions and informed him that he and another student had pills for sale.

¶ 13. T.B. argues that the committee and the school board should not have believed the testimony of T.S. because he admitted that he had previously lied and falsely implicated T.B. in the sale of pills on November 7, 2003. However, as an appellate court, it is not our function to weigh the credibility of witnesses. Credibility of witnesses is the sole province of the trier of fact, which in this case was the disciplinary committee and the school board. Apparently, the committee and the school board found T.S.’s testimony to be credible. Moreover, T.S.’s testimony was corroborated by the testimony from Principal Douglas concerning the results of his investigation. Although most of Principal Douglas’s testimony was based on hearsay, such testimony was clearly admissible under Mississippi law and not violative of any of T.B.’s due process rights. See Jones, 524 So.2d at 973.

¶ 14. T.B. also argues that there was not substantial evidence to support the committee and school board’s decision because he was never actually found be in possession of any controlled substances. According to the Mississippi Supreme Court, substantial evidence is “evidence that provides a substantial basis of fact from which the fact in issue can be reasonably inferred.” Davis v. Public Employees’ Retirement System, 750 So.2d 1225, 1233(¶ 24) (Miss.1999). Although there was no evidence of actual possession of a controlled substance by T.B., we find that there was a substantial basis from which the committee and the school board could reasonably infer that T.B. possessed and sold controlled substances while at school. In summary, although T.S. acknowledged that he initially lied about T.B.’s involvement with drugs on November 7, he implicated T.B. in drug possession and sale on more than one other occasion. The evidence uncovered during Principal Douglas’s investigation further corroborated the charges against T.B. Therefore, we find that the circuit court properly affirmed the committee and school board’s decision to expel T.B. for the remainder of the 2003-2004 school year.

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

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

      . We use initials in order to protect the identity of minors involved in this matter.

      . The charge of "threatening to have a snitch jumped on and beat up" is not considered as part of this appeal.

      . T.S. testified that he approached T.B. in the school’s cafeteria and asked if he had anything for a headache. T.S. testified that T.B. told him no, but he could get a pill from another student, for $5. According to T.S., he only had $2, so T.B. gave him the additional $3 needed to purchase the pill. T.S. also testified that T.B. gave the $5 to the other student, and the other student gave T.B. a pill in exchange. T.S. further testified that T.B. gave him the pill, which he alleges was either Larocet or Darvocet pain medication. T.S. initially stated that the incident occurred on November 5, 2003; however, he later recanted and said that the incident occurred on October 7, 2003. Principal Douglas also presented four anonymous hand-written statements from other students implicating T.B. in the possession and selling of controlled substances at the school.


author: ISHEE, J„ for the Court.

text:
    Scott Keith MITCHELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00317-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2006.
    Rehearing Denied June 20, 2006.

      William Mitchell Moran, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J„ for the Court.

¶ 1. Scott Keith Mitchell was convicted in the Circuit Court of Leake County for possession of methamphetamine and precursor chemicals, for which he was sentenced to a total of forty years in the custody of the Mississippi Department of Corrections (“MDOC”). Aggrieved by his conviction and sentence, Mitchell appeals. Finding no error, we affirm.

FACTS

¶ 2. On or about April 17, 2002, Leake County Sheriffs Department officers executed a search warrant at Mitchell’s residence. The warrant was procured after receiving tips from several confidential informants that Mitchell was engaged in illegal drug activities, and after Leake County deputies patrolling the road near Mitchell’s home smelled a strong chemical smell typically associated with the manufacture of methamphetamine. Upon entering the residence to execute the warrant, officers saw Mitchell and Hershell Monk standing in the kitchen, and subsequently handcuffed the men. Upon searching the residence, the officers found paraphernalia and precursor chemicals used to make methamphetamine, as well as methamphetamine. The officers then transported Mitchell and Monk to the Leake County Correctional Facility, and while en route, Mitchell made incriminating statements that the methamphetamine and precursor chemicals were his.

¶ 3. Mitchell was indicted on charges of possession of methamphetamine and precursor chemicals, and was subsequently tried, convicted of both charges, and sentenced to the custody of the MDOC for a total of forty years. Aggrieved by the conviction and sentence, Mitchell appeals, asserting: (1) that the trial court erred when it overruled his motion to suppress the search warrant because there was insufficient probable cause and the issuing judge was not detached and neutral; (2) that he is entitled to a new trial based on discovery violations by the State and the trial court’s admission into evidence of an oral confession made by Mitchell; (3) that the results of the search of his residence should not have been admitted into evidence because police did not knock and announce, and the judge issuing the warrant did not have authority to issue a “no knock” warrant.

ISSUES AND ANALYSIS

I. Whether the trial court erred when it overruled Mitchell’s motion to suppress the search warrant because there was insufficient probable cause, and because the issuing judge was not detached and neutral.

A. Whether probable cause existed to issue a search warrant of Mitchell’s home

¶ 4. This Court is not required to make a de novo determination of probable cause on appeal. Pittman v. State, 904 So.2d 1185, 1190(¶ 4) (Miss.Ct.App.2004). Rather, we must only make a determination whether the magistrate had a substantial basis for finding probable cause. Id. As to the standard for probable cause, the test requires examination of the totality of the circumstances. Lee v. State, 435 So.2d 674, 676 (Miss.1983) (adopting test set forth by United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). This simply requires the magistrate “to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317.

¶ 5. The record supports the contention that police received several tips from multiple confidential informants concerning Mitchell’s involvement in illegal drug activity. While neither the search warrant nor the affidavit securing it appear in the record on appeal, it seems likely that the veracity and basis of knowledge of these informants was established in procuring the warrant. Leake County Sheriff Greg Waggoner testified to having known one of the informants for “a couple of years.” He further testified that the reliability of the informants had previously been established when tips they had given resulted in other arrests. Thus, it is likely that the judge issuing the warrant was satisfied with the informants’ veracity and basis of knowledge. There was additionally testimony that officers patrolling the road on which Mitchell lived detected a strong chemical smell typically associated with methamphetamine production, and that the officers believed the smell was originating from the Mitchell residence. Considering the totality of the circumstances, we find that there was a substantial basis for the magistrate’s determination of probable cause. We thus find Mitchell’s assertions as to this issue to be without merit.

B. Whether the judge issuing the warrant was detached and neutral

¶ 6. Mitchell neglected to object at trial to the neutrality and detachment of the judge issuing the search warrant. As such, he is procedurally barred from raising the issue for the first time on appeal. See Thorson v. State, 895 So.2d 85, 112(¶ 64) (Miss.2004). However, regardless of the procedural bar, this issue lacks merit.

¶ 7. It is well-settled that an individual issuing a warrant must be a detached and neutral magistrate. See Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948); McCommon v. State, 467 So.2d 940, 942 (Miss.1985). The reasoning behind this requirement is that “the detached scrutiny of a neutral magistrate ... is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime.’ ” United States v. Leon, 468 U.S. 897, 913-14, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting Johnson, 333 U.S. at 14, 68 S.Ct. 367). Furthermore, a magistrate must actually “ ‘perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.’ ” Leon, 468 U.S. at 914, 104 S.Ct. 3405 (quoting Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)). A magistrate failing to adhere to the detached and neutral standard, who is instead acting more as “an adjunct law enforcement officer” cannot validly authorize a search that would otherwise be unconstitutional. Id. Mitchell contends that Justice Court Judge Carolyn Wilcher-Thomas, the judge who issued the warrant, was not detached and neutral because her son is the Leake County Sheriffs Department’s only investigator. Mitchell further points to testimony by Leake County Sheriff Greg Waggoner that he cannot recall Judge Wilcher-Thomas ever refusing to sign a search warrant he presented to her. Because the record holds nothing more to support Mitchell’s argument as to this issue, we cannot say that Judge Wil-cher-Thomas’s detachment and neutrality is in question. Furthermore, as discussed above, there was a substantial basis in the record to support a finding of probable cause. Thus, the mere fact that Judge Wilcher-Thomas issued the warrant does not suggest that she was acting as “an adjunct law enforcement officer.” Consequently, this issue lacks merit even if it were not procedurally barred.

II. Whether Mitchell is entitled to a new trial based on discovery violations by the State and the trial court’s erroneous admission of an oral confession made by Mitchell.

A. Discovery violations

¶ 8. The standard by which this Court reviews assertions of error “regarding the admission or exclusion of evidence is abuse of discretion.” Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss.2002). Mitchell asserts that the trial court erred by allowing the State to enter into evidence an oral confession made by Mitchell while en route to the Leake County Correctional Facility. Mitchell alleges that his trial counsel had no knowledge of the confession until the day of trial.

¶ 9. Rule 9.04(A) of the Uniform Circuit and County Court Rules (“URCCC”) states, in pertinent part:

[T]he prosecution must disclose to each defendant or to defendant’s attorney ... the following which is in the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecution:
2. Copy of any written or recorded statement of the defendant and the substance of any oral statement made by the defendant.

URCCC Rule 9.04(1) further states, in pertinent part:

If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule ... the court may ... grant a continuance, or enter such other order is it deems just under the circumstances.
If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the nondisclosed evidence or grant a mistrial.

¶ 10. In the case sub judice, the record reveals conflicting testimony as to when the State informed Mitchell’s counsel of the oral confession. In objecting to the admission of the oral confession into evidence, Mitchell’s counsel, outside the presence of the jury, contended that he did not receive the letter notifying him of the oral confession until the day of trial. The State, however, contended that it had faxed the information to Mitchell’s counsel the previous week. The trial judge overruled Mitchell’s motion to suppress, and admitted the confession into evidence. As sufficient evidence existed in the record to support the ruling of the trial judge as to this issue, we find that he did not commit an abuse of discretion in admitting the oral confession into evidence. Furthermore, Mitchell’s counsel did not subsequently request a continuance, which reinforces that he was not likely surprised by the introduction of the confession into evidence. As such, we find this assertion of error without merit and affirm the decision of the trial court.

B. Miranda violation

¶ 11. Mitchell further argues that the confession was elicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but the record reveals testimony by officers that the statement was made spontaneously and without elicitation from the law enforcement officers when Mitchell was en route to the Leake County Correctional Facility. See, e.g., Illinois v. Perkins, 496 U.S. 292, 295, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (noting that Miranda only prohibits admission of statements elicited during custodial interrogation without prior warning and defining custodial interrogation as “questioning initiated by law enforcement after the person has been taken into custody”). Therefore, we find this assertion of error without merit.

III. Whether the trial court erred in admitting the results of the search of Mitchell’s residence into evidence because police did not knock and announce.

¶ 12. Because Mitchell cited no authority as to this issue and did not discuss it whatsoever other than mentioning it in the Statement of Issues in his brief, we are not obligated to discuss this assignment of error and consequently affirm. See Gary v. State, 760 So.2d 743, 754 (¶¶ 32-33) (Miss.2000).

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF POSSESSION OF METHAMPHETAMINE AND SENTENCE OF TWENTY-FOUR YEARS, WITH FOURTEEN YEARS SUSPENDED AND TEN YEARS LEFT TO SERVE, AND CONVICTION OF POSSESSION OF METHAMPHETAMINE PRECURSOR CHEMICALS AND SENTENCE OF THIRTY YEARS; BOTH SENTENCES TO RUN CONSECUTIVELY 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, AND BARNES, JJ., CONCUR. SOUTHWICK AND ROBERTS, JJ., NOT PARTICIPATING.