author: MYERS, P.J.,

text:
    Michael Latavin SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01946-COA.
    Court of Appeals of Mississippi.
    March 11, 2008.

      H. Bernard Gautier, Pascagoula, attorney for appellant.
    Office of the Attorney General, by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Michael Latavin Smith was convicted of murder and sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. Smith seeks review of his conviction, requesting review of three issues on appeal. First, Smith asks whether his confessions were properly admitted by the trial court. Second, whether Smith was deprived of his right to a speedy trial. Finally, Smith asks whether the trial court abused its discretion by denying his motion for a sequestered voir dire. Finding no error in the trial court’s actions, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Smith was charged with murdering his girlfriend, Joanna M. Eubanks, on August 11, 2004. Eubanks was shot once in the face at close range and died as a result of her injuries. Smith admitted to firing the gun, but he maintained that the shooting was accidental. Smith first maintained that he was cleaning the gun when the gun accidentally fired, fatally wounding Eubanks. Smith later claimed that he first pointed the gun at himself, then at Eubanks. He stated that the gun fired accidentally, surprising him. The State argued at trial that the shooting was intentional and was a result of Eubank’s decision to end their relationship.

¶ 3. Smith was served with capias on October 19, 2004, and later arraigned in George County Circuit Court on November 1, 2004. Sidney Barnett served as Smith’s appointed attorney during the arraignment only. After many continuances and changes in Smith’s appointed counsel, trial took place on June 26, 2006. At trial, Smith filed a motion to suppress his statements and confession, a motion to dismiss for failure to provide a speedy trial, and a motion for a sequestered voir dire on the limited issue of race and intimate interracial relationships. All of these motions were denied by the trial court. Smith was found guilty of murdering Eubanks and sentenced to life in prison. After the judgment, Smith filed a motion for new trial or, in the alternative, a motion for JNOV, which was denied. Smith now appeals.

DISCUSSION

I. WHETHER SMITH’S CONFESSIONS WERE PROPERLY ADMITTED BY THE TRIAL COURT.

A. WHETHER THERE WAS A VALID WAIVER OF MIRANDA RIGHTS UNDER THE FIFTH AMENDMENT.

¶ 4. An appellate court will review a trial court’s admission of evidence under an abuse of discretion standard. Ginn v. State, 860 So.2d 675, 680(¶ 10) (Miss.2003). Additionally, “[djetermining whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence.” Kircher v. State, 753 So.2d 1017, 1023(¶ 27) (Miss.1999) (citing Wright v. State, 730 So.2d 1106, 1108(¶ 11) (Miss.1998)).

¶ 5. Smith argues on appeal that his various confessions were not voluntarily, intelligently, and knowingly given because he did not have capacity to waive his Miranda rights. Specifically, Smith argues his Fifth Amendment rights were violated because his statements were taken and used as evidence at trial without a valid waiver of his Miranda rights. The majority of Smith’s argument alleges that he lacked the capacity to waive his rights because he had limited intellectual capacity and obtained no education beyond the fifth grade. Smith argues that testimony offered by his mother, Joanne Spivery, showed that he was a slow student in school and had, at one time, been prescribed medicine to help with his hyperactivity in school. Spivery additionally testified that he had limited ability to understand detailed or complicated concepts, and he had trouble reading and writing.

¶ 6. The State argues that Smith’s waiver of his Miranda rights was valid. The State further contends that Smith never asserted his right to remain silent or his right to counsel. The State asserts that Deputy John Keel, the officer who interviewed Smith, testified that Miranda warnings were given to Smith before his statements were taken on August 12, 2004, and August 17, 2004. Deputy Keel testified at trial that Smith signed a waiver of rights form before giving each of the statements, and Smith was not abused, threatened, or promised anything in return for his signed statements. The State also argues that when looking at the totality of the circumstances, Smith’s confession was voluntarily given.

¶ 7. The State points to McGowan v. State, 706 So.2d 231, 235(¶ 11) (Miss.1997) in support of its argument. That case involved a defendant with a low IQ and mental retardation who confessed to the crime but later moved to suppress his confession at trial. The Mississippi Supreme Court in McGowan upheld the admission of the confession, finding that “the mental abilities of an accused are but one factor to be considered in determining whether the confession was knowingly, intelligently and voluntarily made.” McGowan, 706 So.2d at 235(¶ 12) (citing Neal v. State, 451 So.2d 743, 756 (Miss.1984)).

¶ 8. Under the Fifth Amendment, a person may invoke his right to counsel at any time prior to or during custodial interrogation. Holland v. State, 587 So.2d 848, 856 (Miss.1991). However, in order to invoke the Fifth Amendment right to counsel, a request for counsel must be “specifically invoked.” Mooney v. State, 951 So.2d 627, 629(¶ 9) (Miss.Ct.App.2007) (citing Holland, 587 So.2d at 856). The Sixth Amendment right to counsel only attaches once formal proceedings have begun against the accused and must be clearly invoked for each separate charge, meaning the “right [to counsel] ... is offense specific.” Texas v. Cobb, 532 U.S. 162, 167, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). “Adversarial proceedings are held to have been initiated when a defendant is arrested pursuant to a warrant.” Lattimore v. State, 958 So.2d 192, 198(¶ 11) (Miss.2007) (citing Nicholson v. State, 523 So.2d 68, 74 (Miss.1988)). “At all critical stages thereafter, the accused is of right entitled to access to counsel, absent a specific knowing and intelligent waiver tied to that stage.” Brooks v. State, 903 So.2d 691, 694-95(¶ 7) (Miss.2005) (quoting Coleman v. State, 592 So.2d 517, 520 (Miss.1991)) (emphasis added).

¶ 9. To be admissible at trial, a confession “must have been intelligently, knowingly and voluntarily given, and not a product of police threats, promises or inducements.” Wilson v. State, 936 So.2d 357, 361(¶ 8) (Miss.2006) (quoting Manix v. State, 895 So.2d 167, 180(¶ 39) (Miss.2005)). The admission of a confession is a finding of fact for the trial court’s determination; therefore, an appellate court will not reverse a finding of fact unless the trial court was manifestly incorrect. Id. (citing Glasper v. State, 914 So.2d 708, 716(¶ 21) (Miss.2005)). A confession will be considered voluntary, if, after looking at the totality of the circumstances, “the statement is the product of the accused’s free and rational choice.” Id. at 362(¶ 8) (citing Jacobs v. State, 870 So.2d 1202, 1206(¶9) (Miss.2004)).

¶ 10. Deputy Keel testified at the suppression hearing that on August 12, 2004, he read Smith the Miranda warnings before interviewing him regarding the ongoing investigation of Eubanks’s murder. Deputy Keel also testified that Smith was facing him when the Miranda rights were being read to him, and Smith appeared to understand the Miranda warnings. Deputy Keel testified that Smith signed the waiver in his and Officer J.D. Mitchell’s presence. Deputy Keel additionally testified that Smith did not indicate that he did not understand his rights, and that he did not request an attorney. Deputy Keel also stated that he did not coerce, threaten, physically abuse, or promise Smith anything in return for his statem'ents. Deputy Keel further testified that he verbally read the Miranda warnings to Smith' the next day, August 13, 2004, and so noted it in his report. Deputy Keel additionally testified that he spoke again with Smith on August 17, 2004, at the George County Regional Jail as part of the ongoing murder investigation. Deputy Keel testified that he again read the Miranda warnings to -Smith. Smith appeared to understand the warnings and signed the waiver. Deputy Keel testified that Smith never invoked his right to counsel at this interview. Further, as the State argues, Smith was not charged with the murder until August 18, 2004. Although he was in custody beginning on August 12, 2004, he was being held in custody for three outstanding bench warrants for charges that were unrelated to the case before us. During this time, Smith voluntarily gave statements to Deputy Keel on August 12 and on August 17. During his custodial interrogation, Smith was given Miranda warnings, and according to Deputy Keel, he waived his rights. Then Smith was arrested officially for Eu-banks’s múrder on August 18 and made an initial appearance on the murder charge that same day.

¶ 11. The trial court considered many factors in its determination that the confessions would be admissible. The trial court noted that Smith had previously pleaded guilty to other charges, indicating that he understood the system. The trial court also determined that Smith had sworn that he could- read and write, when he pleaded guilty to the other charges. The trial court additionally found that there was no evidence indicating that he was coerced or intimidated into making the statements, and there was no evidence that Smith possessed a learning disability or low IQ that would prevent him from fully understanding and waiving his rights. Accordingly, the trial court allowed in all statements by Smith. From our review of the record, there is no evidence that demonstrates that Smith did not validly waive his Miranda rights; therefore, we affirm the trial court’s admission of Smith’s statements.

B. WHETHER SMITH WAS IMPROPERLY DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL.

¶ 12. Smith additionally argues that his Sixth Amendment rights were violated because his statements to the police were introduced into evidence without Smith having benefit of counsel. Smith argues that he was denied his right to counsel which requires that his incriminating statements be excluded from evidence as a result. The State argues that Smith never invoked his right to counsel after being informed of his rights. Thus, the State argues, if the right was never invoked, Smith cannot now complain he was denied his right to have an attorney present.

¶ 13. The Sixth Amendment to the United States Constitution requires that “in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” As stated previously, a Sixth Amendment right to counsel “does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Cobb, 532 U.S. at 167-68, 121 S.Ct. 1335 (quoting McNeil, 501 U.S. at 175, 111 S.Ct. 2204). Therefore, Smith’s Sixth Amendment right to counsel did not formally attach until he was indicted or charged with Eubanks’s murder. The record shows that Smith was formally charged with Eubanks’s murder on August 18, 2004, and made his initial appearance on the murder charge that same day; thus his Sixth Amendment right to counsel attached at this time. At his arraignment, he was provided with an attorney and was informed of his right to an attorney. Smith later informed the trial court, after several attempts by his mother to secure counsel, that he wished to have counsel, but he lacked the ability to pay. The record reflects that, at that time, the trial court appointed counsel for him. We find no merit in Smith’s contention that his Sixth Amendment right to counsel was violated.

C. WHETHER THERE WAS AN UNNECESSARY DELAY IN PROVIDING SMITH AN INITIAL APPEARANCE.

¶ 14. Smith also argues that the State failed to provide him with an initial appearance within forty-eight hours of his arrest on murder charges, as required under Mississippi Code Annotated section 99-3-17 (Rev.2007). Smith claims that there was unnecessary delay, resulting in him being improperly held in jail for six days before he was allowed his initial appearance. Smith claims this amounts to reversible error. The State counters that this argument is without merit since Smith was being held on outstanding bench warrants unrelated to Eubanks’s murder. The State argues that since Smith was not charged or arraigned until August 18, 2004, for Eubanks’s murder, his initial appearance occurred within the forty-eight hour time frame required under Mississippi Code Annotated section 99-3-17.

¶ 15. Smith was being held in custody on three unrelated bench warrants from August 12, 2004, until August 17, 2004. Smith was then charged with the Eu-banks’s murder on August 18, 2004, and arraigned in court that same day. We find no merit to Smith’s claim.

II. WHETHER SMITH WAS DENIED A SPEEDY TRIAL.

¶ 16. Smith argues that his right to a speedy trial was violated for several reasons. Smith argues that there was no good cause for the delays. Smith also argues that he was unaware of and did not agree to most of the continuances obtained by his previous counsel. Therefore, Smith contends that he was not responsible for the delays.

¶ 17. The State argues that in each of the continuances there was good cause shown. The State further argues that Smith’s seven consecutive continuances tolled the time from January 24, 2005, until June 26, 2006, or 518 of the 604 days between arraignment and trial. Therefore, the State argues Smith’s statutory right to a speedy trial was not violated.

¶ 18. When a speedy trial violation is alleged, an appellate court must determine whether a trial court had good cause for the delay. Flora v. State, 925 So.2d 797, 814(¶ 58) (Miss.2006) (citing DeLoach v. State, 722 So.2d 512, 516(¶ 12) (Miss.1998)). “If substantial credible evidence exists from which a finding of good cause may fairly have been made, we will leave the finding undisturbed.” Id. (citing Folk v. State, 576 So.2d 1243, 1247 (Miss.1991)). A criminal defendant is guaranteed the right to a speedy trial under the Sixth and Fourteenth Amendments of the United States Constitution, the Mississippi Constitution, and under Mississippi Code Annotated section 99-17-1. Id. at 814(¶ 59). The chart below outlines each step in the trial process, beginning with the date the crime was committed and ending with the actual date of trial.

DATE EVENT
08-11-04 Date crime committed.
08-12-04 Smith is arrested and held on three outstanding bench warrants for charges unrelated to the present case.
08-18-04 Initial appearance by Smith on murder charge.
11-01-04 Smith is arraigned on murder charge and represented by public defender for arraignment. Smith and his mother, Ms. Spivery, stated she was attempting to hire an attorney. Trial is set for 01-24-07.
12-01-04 Smith appears without counsel and states that his mother is still attempting to procure an attorney. Court allows more time to procure an attorney and orders Smith to appear on 01-24-05.
01-24-05 Smith appears before the court and states he is unable to afford an attorney. The court appoints Sidney Barnett and David Futch to represent Smith. Smith moves for continuance due to recent appointment of attorneys. Trial is set for 04-18-05.
01-31-05 Order granting continuance signed.
03-24-05 David Futch moves to withdraw as counsel due to a conflict of interest.
03-29-05 Order allowing withdrawal David Futch as counsel is signed.
04-06-05 Order appointing Daphne Pattison as co-counsel.
04-15-05 Sidney Barnett moves for a second continuance to give new counsel, Daphne Pattison, time to prepare.
04-19-05 Order granting continuance granted.
04-25-05 Smith demands right to speedy trial.
07-15-05 Smith moves for third continuance, citing reasons that include: need to obtain Smith’s mental health and school records, tropical storm Cindy and Dennis caused office closings and delayed preparation, and counsel’s involvement in various other trials.
07-19-05 Order entered granting Smith’s motion for continuance. Defendant waives constitutional and statutory right to speedy trial for the period of 08-3-05 until 10-24-05.
10-28-05 Order for continuance granted due to co-counsel for defendant Daphne Pattison’s unavailability due to Hurricane Katrina. Trial reset for 01-17-06.
12-06-05 Order for continuance granted in light of co-counsel Daphne Pattison’s permanent relocation to Houston following the destruction of her office in Mississippi and in light of a conflict of interest which would prevent her from trying the case until 10-01-06 at earliest. Daphne Pattison was allowed to withdraw and Attorney Chris Dobbins was appointed in her place.
01-17-06 Order for continuance filed in order to allow Chris Dobbins time to prepare. Family members of Smith were present and acknowledged that they had been advised of the change.
01-17-06 Order granting Smith’s motion for continuance in order to allow Chris Dobbins time to prepare since he was newly appointed to the case. Trial is set for 05-01-06.
02-02-06 Order appointing Ross Simons to replace Sidney Barnett after his relocation due to Hurricane Katrina.
04-18-06 Smith files motion for continuance in order to prepare for expert witnesses and in order to obtain pertinent information from Dr. Steven Hayne regarding the autopsy report. Trial set for 6-26-06.
05-01-06 Continuance granted. Judge noted a death in the immediate family of one of Smith’s attorneys.
06-13-06 Smith files motion to dismiss for failure to provide a speedy trial.
06-15-06 Motion to dismiss for failure to provide a speedy trial is denied. Court found that there was good cause shown for each of the delays with respect to the statutory speedy trial period and there were just reasons and no prejudicial effect on Smith with regard to the constitutional speedy trial.
06-26-06 Trial began.

A. WHETHER SMITH’S STATUTORY RIGHT UNDER MISSISSIPPI CODE ANNOTATED SECTION 99-17-1 WAS VIOLATED.

¶ 19. Under Mississippi Code Annotated section 99-17-1 (Rev.2007), a defendant must be tried within 270 days of his arraignment to avoid a possible speedy trial violation, unless the court grants a continuance for good cause. In addition, “[t]he 270-day rule analysis is very fact specific and hinges upon which side (prosecution or defense) caused the delays.” Sharp v. State, 786 So.2d 372, 377(¶5) (Miss.2001). An appellate court must first determine the total amount of days between the day of arraignment, which is not counted in the total, and the actual date of trial. Id. Here, there were 603 days between the date of arraignment and the date of trial.

¶ 20. Then, an appellate court is to consider each of the delays separately. Delays attributed to the defendant do not count toward the 270-day total, but each delay attributed to the State does count toward the total. Id. (citing Baine v. State, 604 So.2d 258, 264 (Miss.1992)). Any delay that is caused by the defendant will “toll the running of the time period for that length of time, and correspondingly, this time is subtracted from the total amount of the delay.” Manix, 895 So.2d at 174(¶ 9).

¶ 21. A trial court’s “finding of good cause for delay is a finding of ultimate fact and should be treated on appeal as any other finding of fact; it will be left undisturbed where there is in record substantial credible evidence from which it could have been made.” Sharp, 786 So.2d at 379(¶ 9) (citing Walton v. State, 678 So.2d 645, 648 (Miss.1996)).

¶ 22. The trial court in this case found that there had been no speedy trial violation. This Court recognizes that “[a] trial judge’s finding will not be reversed unless manifestly wrong.” Hersick v. State, 904 So.2d 116, 125(¶ 31) (Miss.2004). From this Court’s review of the record, we find sufficient good cause shown for each of the continuances granted by the trial court, which are listed in the chart above. We agree with the State’s argument that Smith’s various continuances tolled the time from January 24, 2005, until June 26, 2006, resulting in no speedy trial violations. The trial court stated that there were good reasons for the delays, which resulted in no prejudice to Smith and were actually for his benefit. Therefore, we find no merit to Smith’s argument that his statutory right to a speedy trial was violated.

B. WHETHER SMITH’S CONSTITUTIONAL RIGHT UNDER THE UNITED STATES CONSTITUTION AND THE MISSISSIPPI CONSTITUTION WAS VIOLATED.

¶ 23. Smith first asserts that the delay was presumptively prejudicial since it exceeded an eight-month time period. Brunson v. State, 944 So.2d 922, 926(¶ 12) (Miss.Ct.App.2006) (citing Spencer v. State, 592 So.2d 1382, 1387 (Miss.1991)). Smith argues that since he was not tried for Eubanks’s murder until more than 600 days after his arrest, the time period was presumptively prejudicial. Smith argues that his constitutional right to a speedy trial was violated because he never personally agreed to a continuance motion or to waive his rights to a speedy trial; thus, there was no good cause for the continuances granted. Smith argues there was no proof he was even in the courtroom at the time these motions were before the trial court. Smith argues he was prejudiced as a result of the delay, and the confinement caused him cumulative anxiety. Smith argues that he asserted his right to a speedy trial by filing a motion, demanding that his case be dismissed for failure to afford him a speedy trial. Smith requests on appeal that the trial court’s judgment be reversed and rendered or, in the alternative, that the trial court’s judgment be reversed without prejudice to re-indict.

¶24. “A determination of whether an accused has been afforded a speedy trial within the parameters set forth in Mississippi Code Annotated section 99-17-1 requires a stricter analysis than what is constitutionally required.” Shumaker v. State, 956 So.2d 1078, 1082(¶4) (Miss.Ct.App.2007). As a result, the State argues that since Smith’s statutory right to a speedy trial was not violated, under the Shumaker analysis, Smith’s constitutional right to a speedy trial was also not violated. Id. While the State acknowledges that the léngth of the delay is well over the eight-month mark, it argues that Smith was responsible for much of the delay, consisting of numerous continuances by his attorneys. The State also argues that these continuances were granted for good cause by the trial court. The State also acknowledges that Smith did make a demand for a speedy trial, but Smith suffered no prejudice from the delay. The State argues that cumulative anxiety caused by his confinement does not rise to the level of showing prejudice against Smith.

¶ 25. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court established a four-part test that was adopted by Mississippi courts. An appellate court must consider: “[the] [l]ength of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530, 92 S.Ct. 2182. Each of these factors will be addressed in turn.

1. LENGTH OF DELAY.

¶26. In this case, there was over an eight-month delay in the time Smith’s case was brought to trial, thus triggering the need for further analysis under the three other Barker factors.

2. REASON FOR DELAY.

¶27. Here, the reasons for the delays are listed in the chart above. The Mississippi Supreme Court has stated that “[t]he necessary time for the accused and his counsel to prepare his trial must necessarily be left largely to the sound discretion of the trial judge, bearing in mind the facts and circumstances of the particular case.” Manix, 895 So.2d at 174(¶ 10) (citing Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991)). Smith’s defense counsel was preparing for a complicated murder trial, involving many difficult issues and requiring extensive expert testimony. Additionally, most of the continuance motions requested by counsel for the defense were sought in order to prepare for trial, to allow extra time in light of newly appointed counsel to prepare for trial, to prepare for expert witnesses, to allow new counsel to be appointed because of failing health of the current co-counsel for Smith, or to obtain records of information needed in preparation for trial.

¶ 28. This Court also notes that a “delay caused by the withdrawal of the defendant’s attorney which entails allowing the new attorney a reasonable time to become familiar with the case and prepare for trial cannot be weighed against the State.” Manix, 895 So.2d at 175(1113) (citing Johnson v. State, 666 So.2d 784, 792 (Miss.1995)). Further, in Manix, the Mississippi Supreme Court determined that “the replacement of defendantfs] counsel due to health concerns” constituted good cause. Id. at (¶ 14). Unfortunately, during the time of preparation for Smith’s trial, Hurricane Katrina struck, causing attorneys working on Smith’s case to be uprooted from the area, which further contributed to the delay in Smith’s trial preparation. Eventually, both attorneys for Smith had to be replaced because they were forced to permanently relocate due to the Hurricane Katrina. In light of the foregoing factors, we find that there existed sufficient good cause for each of the delays allowed by the trial court and affirm the trial court’s decision.

3. SMITH’S ASSERTION OF HIS RIGHT.

¶29. Here, there is no question that Smith asserted his right to a speedy trial. Smith filed a motion to dismiss for failure to afford him a speedy trial on April 25, 2005. Therefore, this factor weighs in Smith’s favor.

4. PREJUDICE TO SMITH.

¶ 30. First, “[w]hile this Court has noted the importance of the prejudice factor and has attempted to protect against the type of problems listed by Barker, we have remained reluctant to uphold dismissal of charges on speedy trial grounds where the defendant suffered no actual prejudice.” Price v. State, 898 So.2d 641, 649(¶ 18) (Miss.2005) (citing State v. Magnusen, 646 So.2d 1275, 1284 (Miss.1994)). In determining whether there has been prejudice against Smith, an appellate court will look at three factors: “(i) prevention of oppressive pretrial incarceration; (ii) minimization of anxiety and concern of the accused; and (iii) limiting the possibility that the defense will be impaired.” Id. at 650(¶ 18). “Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.

¶ 31. Here, while the delay was longer than the standard 270 day threshold, the trial court found the delays were to the benefit of Smith. Many of the delays were requested in order to obtain records and to allow his defense team time to adequately prepare for trial. Further, Smith was initially held in jail on three outstanding bench warrants unrelated to Eubanks’s murder. The trial court found that these delays caused no prejudice to Smith, and we agree. We find the delays were not prejudicial to Smith, but they were to his benefit.

III. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH’S MOTION FOR A SEQUESTERED VOIR DIRE.

¶ 32. The Mississippi Supreme Court has stated many times that “the decision of whether to allow individual sequestered jury voir dire should be left to the sound discretion of the trial court.” Le v. State, 913 So.2d 913, 923(¶ 14) (Miss. 2005) (citing Stevens v. State, 806 So.2d 1031, 1055 (¶ 112) (Miss.2001)) (“the decision of whether to allow individual sequestered jury voir dire should be left to the discretion of the trial court”). An appellate court will overturn a denial of a sequestered voir dire only if the trial court committed an abuse of discretion. Morris v. State, 843 So.2d 676, 678(¶ 3) (Miss.2003) (citing Jackson v. State, 791 So.2d 830, 835(¶ 21) (Miss.2001)). In addition, an appellate court will not overturn a trial court’s decision on sequestered voir dire unless there is “a showing of actual harm or prejudice.” Speagle v. State, 956 So.2d 237, 242(¶ 14) (Miss.Ct.App.2006) (citing he, 913 So.2d at 923(¶ 14)).

¶ 33. Smith filed a motion seeking individual sequestered voir dire on the limited issue of attitudes toward race and intimate interracial relationships, which was denied by the trial court. Smith is an African American, and the victim was Caucasian. Smith argues that issues involving interracial relationships are so sensitive in nature that most persons would be hesitant to discuss truthfully their feelings in front of other potential jury members. Smith argues that since George County is a small community and because he was not allowed a sequestered voir dire, he was unable to freely question members of the jury pool. Smith argues this resulted in him not being able to obtain a fair and impartial jury.

¶ 34. The State argues that the trial court made it clear to potential jury members that if they felt more comfortable answering any of the questions privately before the bench, they would be allowed to approach the bench to answer questions. This, the State argues, was sufficient to assure Smith a fair and impartial jury. Further, the trial court asked all jurors whether they could be fair and impartial, to which they all answered in the affirmative. “[An appellate court] gives great deference to such statements of impartiality.” Speagle, 956 So.2d at 242(¶ 14).

¶ 35. The record before this Court contains no evidence that Smith suffered actual prejudice or actual harm as a result of the trial court’s denial of a sequestered voir dire. We find no merit in this argument and affirm the trial court’s denial of the sequestered voir dire.

CONCLUSION

¶ 36. Here, this Court finds that there was no evidence in the record that Smith’s waiver of his Miranda rights was invalid. There is additionally no evidence in the record that Smith’s Fifth and Sixth Amendment rights were violated, as Smith was informed of his rights and validly waived them. Further, we find good cause existed for each of the continuances granted by the trial court, and the continuances were granted to the benefit of Smith, without prejudice. Therefore, we find that there was no statutory or constitutional violation of Smith’s right to a speedy trial. We also cannot say that the trial court abused its discretion in denying a sequestered voir dire to Smith. We, accordingly, affirm Smith’s conviction and sentence.

¶ 37. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GEORGE COUNTY.

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

      . Miranda v. Arizona, 384 U.S. 436, 468, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (holding in part that during custodial interrogation, in order "to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.")


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Lawrence Kirby PAYNE, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CA-00330-COA.
    Court of Appeals of Mississippi.
    March 25, 2008.
    Randolph Walker, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. On October 20, 1989, Lawrence Kirby Payne entered a guilty plea to conspiracy to commit capital murder as a habitual offender under Mississippi Code Annotated section 99-19-81 and was sentenced to twenty years in the Mississippi Department of Corrections. Payne appeals from the dismissal of his motion for post-conviction relief, which was filed on October 27, 2006. The trial court found that Payne’s motion was barred by the three-year statute of limitations of Mississippi Code Annotated section 99-39-5(2).

¶ 2. On appeal, Payne raises the following assignments of error:

1. Whether the trial court erred in finding that Payne did not prove the denial of a fundamental right.
2. Whether the judgment of the trial court denying the motion for post-conviction relief and failing to grant an evidentiary hearing was against the overwhelming weight of the evidence.

¶3. This Court finds no error and affirms the judgment of the trial court.

FACTS

¶ 4. On October 7,1988, Payne and Susie Balfour had robbed a Circle K convenience store and were in the process of getting away or escaping when they were pulled over by a police officer in a marked squad car. The police officer was placing Payne in handcuffs when Balfour got out of the car and shot the officer. Payne was initially indicted for capital murder in the death of the police officer.

¶5. At the time of his guilty plea on October 20, 1989, the trial court also found that Payne had been twice convicted in Yalobusha County, by the same circuit judge who was hearing the guilty plea, of felonies separately brought and arising out of separate incidences that occurred at different times. Payne had been sentenced to separate terms of one year or more on these felonies. The trial court also found that Payne had entered a plea of guilty to the crime of robbery and been sentenced to a term of ten years on February 22,1989.

¶ 6. In finding that Payne’s motion for post-conviction relief should be dismissed, the trial court held that the motion was time-barred and did not fall within any exception to the statute. The trial court alternatively found that there was no merit to Payne’s claims raised in his motion.

STANDARD OF REVIEW

¶ 7. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

1. Whether the trial court erred in finding that Payne did not prove the denial of a fundamental right.

¶ 8. Payne argues that he was denied a fundamental right during his sentencing; therefore, the three-year statute of limitations is waived, citing Hudson v. State, 891 So.2d 260, 261-62(¶ 6) (Miss.Ct.App.2004) and Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). The Supreme Court’s holding in Solem has since been overruled by Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).

¶ 9. Mississippi Code Annotated section 99-39-5(2) (Rev.2007) provides for exceptions to the three-year statute of limitations in cases where there are intervening cases from the Mississippi Supreme Court or United States Supreme Court that would have a bearing on the case or where there is newly discovered evidence. Payne does not allege that either of these instances are applicable, but he does allege that there has been a denial of a fundamental right during his sentencing. In Hudson, this Court found that “the three year statute of limitation may be waived when a fundamental constitutional right is implicated.” Hudson, 891 So.2d at 262(¶ 6). In Hudson, this Court did not find any denial of a fundamental right in sentencing, and likewise we cannot find any here. Id. at 264(¶ 12).

¶ 10. In Solem, the United States Supreme Court set out factors which could guide a proportionality analysis: (1) the gravity of the offense and the harshness of the penalty, (2) comparison of the sentence with sentences imposed on other criminals in the same jurisdiction, and (3) comparison of sentences imposed in other jurisdictions for commission of the same crime with the sentence imposed in this case. Solem, 463 U.S. at 290-91, 103 S.Ct. 3001.

¶ 11. Mississippi Code Annotated section 99-19-81 (Rev.2007) sets forth the requirements for sentencing a criminal defendant as a habitual offender. In this case, the circuit judge found that the State proved beyond a reasonable doubt that Payne was clearly a habitual offender as set out in section 99-19-81. The circuit judge sentenced Payne to the maximum imprisonment, which in this case was twenty years, and ordered that the sentence should not be reduced or suspended nor should he be eligible for parole or probation. Despite the mandatory nature of the statute, the trial court did a proportionality analysis under Solem and Clowers v. State, 522 So.2d 762, 764-65 (Miss.1988). After its analysis, the trial court concluded that the mandates of the statute should be followed and sentenced Payne to the mandated twenty-year sentence.

¶ 12. We conclude that the three-year statute of limitations was properly applied and find this argument has no merit.

2. Whether the judgment of the trial court denying the motion for post-conviction relief and failing to grant an evidentiary hearing was against the overwhelming weight of the evidence.

¶ 13. Based on our conclusion that the motion was barred by the three-year statute of limitations, it is not necessary for this Court to review this issue. However, we will address the issue in order to show it is also without merit, even if it had been timely filed.

¶ 14. Payne’s basic argument is that he received ineffective assistance of counsel. He argues that Balfour was more involved in the slaying of the police office than he was and that his attorney should have raised this issue. Payne argues that some of the convictions used for sentence enhancement occurred after the charges were filed in the present case.

¶ 15. It is clear from the sentencing phase of Payne’s guilty plea hearing that the circuit judge was familiar with the facts of Payne’s prior crimes and of his culpability in the killing of the police officer. It should also be noted that the State dismissed the capital murder portion of the indictment after Payne pled guilty to conspiracy to commit murder. It was not necessary for “Payne’s trial attorney ... to present evidence of testimony from the trial of Susie Balfour that would have effectively shown that Payne was the less culpable party and therefore should have received a lesser sentence.” At the sentencing hearing, the circuit judge concluded that “you may not think you’re very lucky right now, but I believe you’re a lucky man because unlike Susie Balfour, you’re not looking at the death penalty.”

¶ 16. In the order dismissing the motion for post-conviction relief, the trial court specifically addressed the issue of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial court found no merit to Payne’s claim of ineffective assistance of counsel. Payne had admitted his guilt and stated that he was satisfied with the services of his two attorneys. The sentence that Payne received was that mandated by the Mississippi Legislature.

¶ 17. Other issues also raised by Payne were specifically addressed by the circuit judge in the order dismissing the motion for post-conviction relief. We conclude that the trial court properly dismissed the motion for post-conviction relief and that an evidentiary hearing was not warranted.

CONCLUSION

¶ 18. The circuit judge properly found that Payne was barred by the three-year statute of limitations and that, alternatively, all the issues raised were without merit. This Court affirms the judgment of the Circuit Court of DeSoto County.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


author: ISHEE, J., ROBERTS, J.,

text:
    MARATHON ASSET MANAGEMENT, LLC, Appellant v. Alicia OTTO and Jonathan Otto, Appellees.
    No. 2006-CA-01386-COA.
    Court of Appeals of Mississippi.
    March 25, 2008.

      Hunter Fariss Crisler, Jackson, attorney for appellant.
    Paul E. Rogers, Jackson, attorney for appellees.
    Before KING, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. This appeal resulted from a case in the Hinds County Chancery Court wherein Marathon Asset Management, LLC (Marathon) sought to set aside an order entered in another action in which the chancellor granted Alicia and Jonathan Otto’s request to extend the tax redemption period. The chancellor held that the court had the authority to extend the redemption period for an additional sixty days, and therefore, Marathon’s request to conform its tax title was denied. Marathon now appeals, asserting that the chancellor committed error in: 1) finding that the statutory redemption period for the tax sale could be extended after the maturity date expired and 2) giving credence to and recognizing the preceding order granting the motion to amend judgment and denying the motion to reconsider when Marathon’s predecessor in interest was not a party to the civil action. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 28, 2000, Ironwood Acceptance Corporation (Ironwood) purchased a parcel of land located in Hinds County. Ironwood purchased the land at a tax sale by paying a sum in the amount of the 1999 ad valorem taxes owed. The two-year tax redemption period for the subject property began to run on this day and was set to expire on August 28, 2002. Subsequently, Ironwood obtained a deed for the subject property that was recorded in the office of the Chancery Clerk of Hinds County. Ironwood thereafter transferred title to Marathon by way of a quitclaim deed that was also recorded with the Hinds County Chancery Clerk.

¶ 3. On February 11, 2002, a special commissioner was appointed by the chancery court for the purpose of selling the subject property through a foreclosure sale. The sale was intended to foreclose a deed of trust on the subject property held by AmSouth Bank. On June 4, 2002, the commissioner conducted the foreclosure sale on the subject property whereby Alisha Otto and Jonathan Otto were the highest bidders. However, the Ottos were delayed in obtaining title to the property by separate court proceedings involving the subject property. Therefore, the deed to the subject property was not conveyed to the Ottos until September 9, 2002. Subsequently, the deed was recorded in the land records of the office of the Hinds County Chancery Clerk. The conveyance occurred twelve days after the tax redemption period for the previous tax sale had expired.

¶ 4. On November 1, 2002, AmSouth Bank filed a motion to amend the final judgment on behalf of the Ottos with the chancery court, asking the court to extend the tax redemption period in order to allow the Ottos to redeem the subject property. The chancellor, finding that the Ottos were delayed in receiving the subject property due to the dilatory actions of the property’s former owners, granted the motion to amend on November 22, 2002. In doing so, the chancellor approved a provision extending the tax redemption period. By letter dated December 3, 2002, the Hinds County Chancery Clerk notified the Ottos that they were granted an additional sixty days in order to redeem the subject property from the tax sale. On January 3, 2003, within the court-ordered redemption period, the Ottos redeemed the subject property by paying the 1999, 2000, and 2001 taxes plus interest and fees totaling $8,292.65. Subsequent to purchasing the property, the Ottos also expended the sum of approximately $60,000 in order to improve and renovate the property.

¶ 5. Marathon filed its complaint with the Chancery Court of Hinds County on February 10, 2004, seeking to have the court confirm the title to the subject property in Marathon. The chancellor found the Ottos to be the fee simple owners of the land. Marathon now appeals that decision.

STANDARD OF REVIEW

¶ 6. “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002) (citations omitted).

¶ 7. “We conduct a de novo standard of review for determinations of legal questions.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶5) (Miss.2002).

ANALYSIS

I. Whether the chancellor erred in finding that the chancery court had the authority to extend the redemption period.

¶ 8. Marathon claims that the chancellor acted outside of his statutory authority by extending the tax redemption period by sixty days to allow the Ottos to redeem the subject property. Marathon is correct in its assertion that the statutory redemption period is generally two years from the date of the tax sale. The method by which a tax sale can be redeemed is set forth in section 27-45-3 of the Mississippi Code Annotated, which provides in part:

The owner, or any persons for him with his consent, or any person interested in the land sold for taxes, may redeem the same, or any part of it, where it is separable by legal subdivisions of not less than forty (40) acres, or undivided interest in it, at anytime within two (2) years after the day of sale, by paying the chancery clerk, regardless of the purchaser’s bid at the tax sale, the amount of all taxes for which the land was sold, with all costs incident to the sale....

Miss.Code Ann. § 27-45-3 (Supp.2006). However, Marathon’s argument fails in assuming that the two-year redemption period is absolute. “The legislature may impose reasonable conditions on the right to redeem under the constitution, but the right cannot be defeated by the legislature neglecting or failing to provide a scheme by which it may be done. The courts will afford a remedy in case the legislature furnishes none, and equity has jurisdiction of a suit to redeem independent of the legislature.” Levy v. McCay, 445 So.2d 546, 547 (Miss.1984) (quoting Union Sav. Bank & Trust Co. v. Jackson, 122 Miss. 557, 573-74, 84 So. 388, 391 (1920)). Our supreme court has chosen to refrain from applying a strict interpretation to the redemption statute. See James v. Tax Inv. Co., 206 Miss. 605, 618, 40 So.2d 539, 543 (1949); McLain v. Meletio, 166 Miss. 1, 5, 147 So. 878, 879 (1933); Darrington v. Rose, 128 Miss. 16, 25, 90 So. 632, 634 (1922). To the contrary, the supreme court has held that statutes allowing the right of redemption from tax sales, whether by the owner of the fee, or any person who has an interest in the land, “are to be liberally and benignly construed in favor of the right to redeem.” Darrington, 128 Miss, at 25, 90 So. at 634.

¶ 9. It should be noted that the cases cited above held that redemption was effected where the owner or interested party made an attempt to redeem the land, but redemption was not accomplished due to negligence on the part of the clerk or custodian of records. However, the party attempting to redeem in these cases was either the original owner, had acquired a deed, or otherwise held record title during the redemption period. There is no evidence that the Ottos made an offer to the chancery clerk to redeem the property, but they also did not hold record title and had no reason to know that redemption was necessary during the redemption period. Though arguably they had an interest in the property as the winning bidders at the foreclosure sale, that interest was contingent on the chancellor confirming the sale. It is our opinion that this case presents an issue of first impression before this Court. Therefore, it is necessary to examine the known facts of this case to determine if the chancellor acted outside of his authority.

¶ 10. The statutory redemption period was extended by a chancellor’s order due to the dilatory actions of a third party. It is without question that the statutory redemption period expired on August 28, 2002. It is also undisputed that the foreclosure proceeding, by which the Ottos purchased the subject property, was commenced within the redemption period on June 4, 2002. The chancellor found that at the time of the foreclosure sale the Ottos stood ready, willing, and able to redeem the subject property, and they would have redeemed the property had they not been delayed by the actions of the original owners. In fact, because of separate court proceedings involving the original owners and the subject property, the Ottos did not obtain legal title to the property until more than two months after the commencement of the foreclosure sale. Given the facts of this case and keeping in mind that the redemption statute is to be liberally construed, we agree with the Ot-tos’ assertion that extending the redemption period by an additional sixty days was reasonable under the circumstances.

¶ 11. It is worthy to note that among the reasons given by some of the courts for such a liberal construction of statutes of this character is that the purchaser at a tax sale suffers no loss; he buys with full knowledge that his title cannot be absolute until the time for redemption expires, and if his title is defeated by redemption, it reverts to the original owner; and if it is redeemed, he is fully reimbursed for his outlay, with interest. Darrington, 128 Miss, at 25-26, 90 So. at 684. Therefore, Marathon, as Ironwood’s successor in interest, knew or should have known that it was purchasing an unconfirmed interest in the subject property at the time it was purchased. The Ottos correctly point out that often purchasers are motivated to purchase properties at a tax sale because they are able to get a conditional title to the property at far less than its market value. The fact that an owner may redeem the property is a calculated risk that purchasers knowingly accept. At the time Ironwood purchased the subject property at the tax sale, it knowingly accepted the risk that its title would be defeated by redemption, and this risk was transferred to Marathon. Further, Marathon has suffered no personal or pecuniary loss as a result of the chancellor’s decision to extend the redemption period. Marathon, which obtained the property by paying off the outstanding property taxes, has been reimbursed for that amount by the Ottos.

¶ 12. Given that there is no statute that explicitly prohibits the extension of the redemption period and our supreme court has directed us to construe the redemption statute liberally in favor of redemption, we find no error in the chancellor’s decision to extend the tax redemption period. Granting the Ottos an additional sixty days to redeem the subject property was reasonable considering that they stood ready to redeem the property within the statutory redemption period, and the subsequent delay was outside of their control. Such was not outside of the chancellor’s authority.

II. Whether the chancellor erred in recognizing the order granting AmSouth Bank’s motion to amend the final judgment and denying the motion to reconsider when Ironwood was not a party to the civil action.

¶ 13. Marathon contends that Ironwood was a necessary and indispensable party to the civil action whereby the chancellor’s order extending the tax redemption period was issued. It further argues that because Ironwood was not made a party to that civil action, the contents and provisions of that order, even if valid, are not applicable to Ironwood or its successors. We are not required to determine whether Ironwood, as Marathon’s predecessor in interest, was a necessary and indispensable party to the original civil action because, even assuming that it was, Marathon is procedurally barred from bringing its Rule 19 objection on appeal.

¶ 14. Rule 19(a) of the Mississippi Rules of Civil Procedure provides that a person who is subject to the jurisdiction of the court shall be joined as a party in the action if:

(1) in his absence complete relief cannot be accorded among those already parties, or
(2) he claims an interest relating to the subject matter of the action and is so situated that the disposition in his absence may ... impede his ability to protect that interest or leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations....

If he has not been so joined, the court shall order that he be made a party. Miss. R. Civ. P. 19(a). However, Rule 12(h)(2) of the Mississippi Rules of Civil Procedure requires a party to raise the issue of failure to join a necessary and indispensable party in their pleadings under Rule 7(a) or by motion for judgment on the pleadings or at the trial on the merits. See Miss. R. Civ. P. 12(h)(2). Generally, failure to raise an objection based on non-joinder at trial procedurally bars the objecting party from raising the issue on appeal. Shaw v. Shaw, 603 So.2d 287, 293 (Miss.1992) (citing Nat’l Life & Accident Ins. Co. v. Miller, 484 So.2d 329, 337 (Miss.1985)). Our supreme court has found that an exception exists allowing an appellate court to consider the issue sua sponte when the interests of an absent person are prejudiced by virtue of not being made a party to the original action. Shaw, 603 So.2d at 294. It has stated:

The court of appeals may remand the action to allow the trial court to make the joinder determination, or may conduct a Rule 19 analysis itself. However, where the judgment appealed from does not prejudice the interests of the absent person the appellate court usually will not disturb an otherwise valid judgment on grounds of prejudice to the defendant alone, since any prejudice to the defendant has been brought upon him by his own failure to object to non-joinder in the trial court.

Id. (citations omitted).

¶ 15. In this case, it is true that Ironwood was not made a party to the original action where the chancellor extended the tax redemption period. However, Marathon was given the opportunity to raise the issue of failure to join Ironwood as a necessary and indispensable party as a defense in its suit to confirm title. Marathon failed to bring its Rule 19 objection by motion for judgment on the pleadings or at trial on the merits. It was only after the chancellor denied its claim to confirm title in its name that Marathon raised this objection. Therefore, the only way that the issue may now be heard on appeal is if this Court raises it sua sponte in accordance with our supreme court’s holding in Shaw. We hold that this is not necessary. Ironwood was notified by letter of the foreclosure sale and the possibility that the tax redemption period could be extended. This knowledge was imputed to Marathon, as Ironwood’s successor in interest. Neither Ironwood nor Marathon chose to challenge the joinder issue until after the conclusion of the trial court proceedings. Therefore, any prejudice to Marathon has been brought upon it by its own failure to object to non-joinder in the chancery court. Marathon’s claim under Rule 19(a) is barred by Rule 12(h)(2). This issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING AND CHANDLER, JJ., CONCUR. ROBERTS, J., DISSENTS • WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS AND BARNES, JJ. CARLTON, J., NOT PARTICIPATING.

ROBERTS, J.,

Dissenting:

¶ 17. Because possession of title is not required for one to exercise the right of redemption and because no attempt was made to redeem the subject land within two years of the tax sale, I find that the chancellor acted outside of his authority in extending the period of redemption. Therefore, I respectfully dissent.

¶ 18. The majority concludes that the dilatory actions of the original owners, which caused a delay in the conveyance of the land to the Ottos, provided equitable justification to extend the two-year redemption period prescribed by Mississippi Code Annotated section 27-45-3 (Supp. 2006). As the majority stresses, precedent does provide that statutes allowing the redemption of land from tax sales are liberally construed in favor of redemption. See, e.g., Levy v. McCay, 445 So.2d 546, 548 (Miss.1984) (quoting James v. Tax Inv. Co., 206 Miss. 605, 618-19, 40 So.2d 539, 543 (1949)); McLain v. Meletio, 166 Miss. 1, 5, 147 So. 878, 879 (1933); Barrington v. Rose, 128 Miss. 16, 25, 90 So. 632, 634 (1922). However, I find no legal authority or equitable justification to extend the two-year period of redemption based on the facts of the instant case.

¶ 19. The dilatory acts of the original owners did not hinder the Ottos from exercising their right to redeem the land. Our redemption statute allows the right of redemption to be exercised by “the owner, or any persons for him with his consent, or any person interested in the land sold for taxes. ...” Miss.Code Ann. § 27-45-3 (emphasis added). The Mississippi Supreme Court, liberally construing this language in favor of redemption, has explained that:

[The right to redeem] is not confined to the owner of the fee, but any person who has any interest in the land may redeem; that any right which in law or equity amount to the ownership of land, any right of entry on it, or to its possession or enjoyment, gives the owner thereof the right of redemption.

Darrington, 128 Miss, at 25, 90 So. at 634 (emphasis in original). In the instant case, the Ottos purchased the subject land through a foreclosure sale. Thus, they were clearly “person[s] interested in the land” within the meaning of section 27-45-3; consequently, they were free to redeem the property during the redemption period if they so chose. Because possession of title is not required for one to exercise the right of redemption, I find the delayed conveyance caused by the original owners inconsequential to the Ottos’ failure to timely exercise their right of redemption.

¶20. The chancellor’s decision to extend the redemption period in the instant case is not supported by the cases cited by the majority. Those cases held that redemption was affected where the owner or interested party offered to redeem land within the redemption period, but redemption was not accomplished due to negligent conduct of the clerk or custodian of records. See Levy, 445 So.2d at 548 (owner attempted to pay on three occasions, but the clerk informed him each time that no taxes were due); James, 206 Miss, at 617-18, 40 So.2d at 542 (owner made repeated attempts to pay, but the deputy clerks refused to wait on her out of dislike); McLain, 166 Miss, at 5, 147 So. at 879 (owner offered to pay, but the clerk informed him that no taxes were outstanding). In the instant case, no attempt was made to redeem the subject lands within the two-year period. Moreover, the negligent/dilatory conduct complained of was not attributable to the clerk of court or a custodian of records and, as explained above, did not impair or impede the Ottos’ right to redeem the land.

¶ 21. Because the Ottos provided insufficient justification for their failure to redeem within the two-year period prescribed by section 27-45-3, I find the chancellor abused his discretion in extending the redemption period and in denying Marathon’s request to confirm its tax title. Therefore, I would reverse and render judgment in favor of Marathon on the issue of title. Additionally, because the chancellor did not reach the Ottos’ counterclaim for an equitable lien, I would reverse and remand this issue for the chancellor to determine whether and in what amount an equitable lien should be imposed based upon the costs of any improvements, payment of the taxes, and other related expenses.

GRIFFIS AND BARNES, JJ., JOIN THIS OPINION.

      . At trial, the Ottos filed a counterclaim for alternative relief. Specifically, the Ottos prayed that, should the chancellor not confirm title in them, that the court should impose an equitable lien of $100,000 on the property for costs of improvements, taxes, interest, fees, attorney’s fees, and costs.


author: GRIFFIS, J„

text:
    Rixxie HARRIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02159-COA.
    Court of Appeals of Mississippi.
    March 25, 2008.

      Aelicia L. Thomas, Rosedale, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J„

for the Court.

¶ 1. Rhode Harris was indicted on two counts: count one for possession of cocaine and count two for possession of marijuana with intent to sell. Harris was convicted of the second count, possession of marijuana with intent to sell, under count two of the indictment. However, the trial court declared a mistrial on the first count, possession of cocaine. On appeal, Harris argues that: (1) the trial court erred when it denied his motion for directed verdict; (2) the verdict was against the overwhelming weight of the evidence; and (3) the verdict should have been written on a separate sheet of paper.

FACTS

¶ 2. Jacob Lott, a trooper for the Mississippi Highway Patrol, testified that on June 15, 2003, he was patrolling Sunflower County. Trooper Lott was traveling south on Highway 49 when he noticed a car, with illegal tint on its windows, stopped at a stop sign. Trooper Lott initiated a stop, and the driver of the car, Harris, got out and met him between the two vehicles.

¶ 3. Trooper Lott testified that he smelled marijuana while he was talking to Harris, so he decided to look inside the tinted car in order to protect himself because he did not have back up. Trooper Lott opened the door to the car and observed the passenger, Joe Drisdell, smoking a blunt. Next, Trooper Lott asked Harris whether or not Harris had been smoking marijuana. Harris told him that he had smoked a little earlier that day. Trooper Lott arrested Harris and Drisdell. When Trooper Lott inventoried the car, he discovered a Crown Royal bag under the passenger seat that contained several small bags filled with marijuana and a pill bottle that contained cocaine.

¶ 4. Trooper Lott took Harris and Dris-dell to the Sunflower County Sheriffs Department and interrogated each of them separately. Trooper Lott read Harris his Miranda rights, and Harris signed a waiver of these rights. Trooper Lott testified that Harris originally confessed to possessing the marijuana, but he said that the cocaine was not his. Trooper Lott also stated that Harris wrote in his statement that he was going from Moorehead to Sunflower with Drisdell to sell some marijuana, but Harris later scratched this language out and refused to sign the confession. The portion of the confession that was not scratched out stated that Drisdell wanted to sell the marijuana and that they were driving to Sunflower because he knew some people that would buy it. Trooper Lott testified that Harris changed his story a couple of times about who owned the drugs.

¶ 5. Drisdell, who had already entered a guilty plea before this trial, testified that Harris asked him to ride with him to Sunflower to visit a cousin. He said that, before Harris got out of the ear to meet Trooper Lott, Harris threw a Crown Royal bag at him. Drisdell testified that he could tell that there were drugs in the bag by the way that it felt, so he hid it under his seat. Drisdell also stated that Trooper Lott opened the door to the car and witnessed him smoking a blunt. After Trooper Lott took Drisdell to the Sheriffs Department, Drisdell wrote a statement in which he confessed to possession of the blunt.

ANALYSIS

I. Whether or not there was sufficient evidence to deny Harris’s motion for directed verdict.

¶ 6. Harris argues that the State failed to provide sufficient evidence to prove the element of possession; therefore, the trial court erred in denying his motion for directed verdict. In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844(¶ 16) (Miss.2005). Usually, if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we will uphold the verdict. Id.

117. To show that a defendant possessed marijuana with intent to distribute, the State must prove beyond a reasonable doubt that the defendant “knowingly or intentionally ... possessed marijuana] with intent to sell, barter, transfer, manufacture, distribute or dispense_” Miss. Code Ann. § 41-29-139 (Rev.2005). Since Harris did not physically possess the marijuana, we must examine the issue of constructive possession.

[W]hat constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of ‘possession’ is a question which is not susceptible to a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Dixon v. State, 953 So.2d 1108, 1112(119) (Miss.2007) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)) (emphasis added). Furthermore, if the defendant is the driver but not the owner of the car that contains the drugs, the State must show additional incriminating facts to link the defendant to the contraband. Ferrell v. State, 649 So.2d 831, 835 (Miss.1995).

¶ 8. Since there was no evidence that Harris owned the car he was driving, we must look for additional incriminating facts that link Harris to the marijuana. To establish Harris’s constructive possession, the State offered evidence that Trooper Lott smelled marijuana on Harris; Harris confessed that the marijuana was his and that the cocaine was not his; Harris confessed that he and Drisdell were going to sell some marijuana; and Drisdell testified that he had never seen the Crown Royal bag until Harris threw it at him during the stop.

¶ 9. Looking at the totality of all of the evidence presented by the State, we find that the State put forward sufficient evi-denee that Harris possessed the marijuana found in the Crown Royal bag. Trooper Lott testified that Harris confessed to possessing the marijuana. Also, Drisdell testified that Harris handed him the drugs. We have previously found such testimony to support a finding of constructive possession. See Bell v. State, 830 So.2d 1285, 1288(¶ 11) (Miss.Ct.App.2002). After examining the evidence, we find that there was sufficient evidence to support the trial judge’s denial of Harris’s motion for directed verdict. We find no merit to this issue.

II. Whether the evidence was contrary to the overwhelming weight of the evidence.

¶ 10. ‘When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18). The evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.

¶ 11. After reviewing the record in this case, we note that Harris failed to file a motion for a new trial or a motion for judgment notwithstanding the verdict. Because Harris did not bring the issue that the verdict may have been against the overwhelming weight of the evidence to the attention of the trial court, “it may not be raised here for the first time. A trial judge cannot be put in error on a matter which was not presented to him for decision”. Cooper v. Lawson, 264 So.2d 890, 891 (Miss.1972).

¶ 12. Procedural bar aside, we will briefly address Harris’s argument. During the trial, both Trooper Lott and Dris-dell testified against Harris. As stated above, Trooper Lott’s and Drisdell’s testimony show that Harris possessed the drugs in the bag. Harris did not bring forward any contradictory evidence and rested after the State’s case. Therefore, we find that the verdict was not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We find no merit to this issue.

III. Whether the verdict must be written on a separate sheet of paper.

¶ 13. Harris’s final argument is that his conviction should be reversed because it was not written on a separate sheet of paper. This rule is merely clerical in nature. “The law does not require verdicts to be written upon a separate piece of paper.” Bowen v. State, 177 Miss. 715, 718, 172 So. 151 (1937). Furthermore, the jury was polled after they returned a verdict, and every juror said that the verdict was consistent with his or her vote. Therefore, this issue also has no merit, and we affirm.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY OF CONVICTION OF POSSESSION OF MARIJUANA WITH THE INTENT TO SELL, DISTRIBUTE, TRANSPORT OR DELIVER AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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

      . A blunt is a cigar that has had the tobacco removed and replaced with marijuana.


author: GRIFFIS, J.,

text:
    Shawn Gavin O’NEAL, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-00788-COA.
    Court of Appeals of Mississippi.
    March 25, 2008.

      Brenda Jackson Patterson, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Shawn Gavin O’Neal was convicted of aggravated domestic violence, pursuant to Mississippi Code Annotated section 97-3-7(4) (Rev.2006). He was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with eight years to serve, twelve years suspended pursuant to five years of post-release supervision. O’Neal was also ordered to pay a fine of $2,000. As error on appeal, O’Neal argues that: (1) the trial court allowed a key witness to testify about a necklace and admitted it into evidence when the necklace was not furnished to the defense until the trial and (2) the trial court allowed Dr. Rocco Barbieri to testify as to causation of the injury even though the State did not qualify him as an expert witness. Finding no reversible error, we affirm.

FACTS

¶ 2. O’Neal and Mary Landry were involved in a romantic relationship and lived together in the same household along with Landry’s teenage son, Nicholas. On Sunday, August 20, 2004, the three were having a cookout at their home with Landry’s adult nephew, his wife, and their small child. Nicholas was the last to leave the house to visit a friend, which left O’Neal and Landry alone together.

¶ 3. Landry testified that she was afraid of being alone with O’Neal, so she decided to leave. As she was pulling her car out of the garage, O’Neal reached into the car to pull the keys out of the ignition. He grabbed her hair and pulled her out of the car. As she resisted, he kicked her in the leg with his steel-toed boots and stomped on her back and side before she passed out from the pain. Landry sustained a broken femur from the alleged assault.

¶ 4. As the paramedics were attending to Landry, O’Neal told an investigator from the sheriffs department that he was trying to keep Landry from driving while intoxicated. He said that while he was trying to get her out of the car, their dog got in the way, and he tried to kick the dog, but he kicked Landry instead.

¶ 5. Nicholas testified that O’Neal told him two different versions of what happened. First, O’Neal called Nicholas to tell him to come home because his mother had tripped over the dog and injured her leg. Then, after Nicholas arrived at the house, O’Neal told him that, as Landry was trying to get out of the car, the dog got in her way, and O’Neal tried to kick the dog; but he missed and kicked Landry.

¶ 6. Nicholas further testified that he found a necklace that he had given to his mother for Mother’s Day. The necklace was broken into pieces on the garage floor with a lock of hair stuck to it. He did not turn the necklace over to the police or mention finding it. Nicholas kept it until he delivered it to the district attorney just days before the trial began.

¶ 7. Dr. Barbieri, the orthopedic surgeon who repaired Landry’s broken femur, testified at trial. He stated that the type of break that Landry sustained was usually the result of a high-energy force like a fall from a great height or a car accident, not the result of a simple fall.

¶ 8. O’Neal testified that he was not wearing steel-toed boots and that he did not own a pair. He stated that the dog ran in between him and Landry, as he was helping her out of the car. He lost his balance, and they both fell over, causing Landry’s left femur to break.

ANALYSIS

1.Whether the trial court erred by allowing a key witness to testify about a necklace and admitting it into evidence when the necklace was not furnished to the defense until the trial.

¶ 9. O’Neal argues that the trial court erred when it allowed Nicholas to testify about the necklace he found in the garage on the day his mother was injured. O’Neal did not know about the necklace until the morning of trial, which was almost three years after the alleged assault. Thus, O’Neal claims that he was severely prejudiced by the testimony. The State responds that this discovery violation was waived when counsel for O’Neal did not request time to interview the witness or move for a continuance.

¶ 10. The standard of review for the trial court’s ruling on a discovery violation is abuse of discretion. Montgomery v. State, 891 So.2d 179, 181(¶6) (Miss.2004). The procedure for the trial court to follow regarding a discovery violation is governed by Rule 9.04(1) of the Uniform Rules of Circuit and County Court Practice, which states:

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 a 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 non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.

¶ 11. At trial, the State called Nicholas to testify about the necklace. Defense counsel objected on the grounds that they did not know about the necklace until that morning. The State claimed to have received the necklace only days before and to have shown it to defense counsel that morning. The judge allowed the necklace to be entered into evidence and allowed defense counsel to cross-examine Nicholas regarding the necklace. Nicholas testified that he found the broken necklace on the day of the alleged assault, but he did not turn it over to the police. The necklace was not mentioned in his statement, and he first furnished the necklace to the district attorney on the Friday before trial began on the following Tuesday. After cross-examination, defense counsel again objected to the necklace being entered into evidence. The trial court overruled the objection. Thereafter, defense counsel did not request any extra time to examine the necklace and did not request a continuance.

¶ 12. O’Neal claims that it was reversible error for the trial court to allow the necklace to be introduced into evidence; however, the supreme court has “repeatedly held an accused’s remedy for tardy disclosure of that to which he was entitled in pre-trial discovery is a continuance reasonable under the circumstances.” Middlebrook v. State, 555 So.2d 1009, 1011 (Miss.1990). Further, the court has “held equally often that the accused’s right to a continuance is not self-executing and that he must affirmatively request it on pain of waiver.” Id. Counsel for O’Neal chose to allow the trial to continue and did not make any such request for a continuance, thereby waiving any remedy for the State’s discovery violation. Because O’Neal waived his right to a claim for relief, we find that this issue has no merit.

¶ 13. Notwithstanding the procedural bar, we further note that “[wjhere the discovery violation results in the admission of evidence that is merely cumulative, the error is harmless.” Prewitt v. State, 755 So.2d 537, 541(¶ 11) (Miss.Ct.App.1999). Here, testimony about the broken necklace was cumulative evidence of Landry’s testimony that she was violently removed from the ear by her hair and thrown onto the garage floor by O’Neal. Thus, any error created by the admission of the necklace was harmless in nature.

2. Whether the trial court erred by allowing Dr. Barbieri to testify as to the causation of Landry’s injury even though the State did not qualify him as an expert witness.

¶ 14. O’Neal also argues that the trial court committed reversible error by allowing Dr. Barbieri to testify as to the causation of Landry’s injury despite the fact that he was called as a lay witness and not as an expert witness. The State contends that if any error by the trial court occurred regarding this issue, it was harmless error.

¶ 15. O’Neal states that Dr. Barbieri’s testimony was based on his training and experience as an orthopedic surgeon; thus, Dr. Barbieri should have been classified as an expert witness subject to the requirements in Rule 702 of the Mississippi Rules of Evidence and the discovery requirements of Rule 9.04(A)(4) of the Uniform Rules of Circuit and County Court Practice. During direct examination, the State first asked Dr. Barbieri whether Landry’s injury was consistent with a fall. Counsel for O’Neal objected because the question pertained to causation, and the trial court sustained the objection. However, the trial court allowed Dr. Barbieri to testify as to what type of force was necessary to cause this type of fracture. The trial court overruled O’Neal’s objection based on the fact that Dr. Barbieri examined the fracture himself. Dr. Barbieri testified as follows:

Q: Okay. What type of force would be necessary to cause this type of fracture?
Usually a high-energy force. <!
High-energy force? <3?
High-energy force. A fall from a height or usually a car wreck. It’s not something you usually see every day from a simple fall. <d

¶ 16. We review the trial court’s decision on the admissibility of evidence under an abuse of discretion standard. Wade v. State, 588 So.2d 965, 967 (Miss.1991). Rule 701 of the Mississippi Rules of Evidence governs opinion testimony by a lay witness, and it provides that such testimony is:

limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of his testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

M.R.E. 701.

¶ 17. The supreme court has held that it is possible for an expert in an area of knowledge to give a lay opinion, but not if the witness is operating in his professional capacity. Miss. State Hwy. Comm’n v. Gilich, 609 So.2d 367, 377 (Miss.1992). “[W]here a witness is to give testimony derived from specialized knowledge gained by education or experience, the testimony is not lay opinion testimony.” Id. In Sample v. State, 643 So.2d 524, 530 (Miss.1994), the supreme court stressed the importance that we not blur the line between Rules 701 and 702 so that the responding party has sufficient notice and an opportunity to prepare a rebuttal.

¶ 18. Here, it is clear that Dr. Barbieri, as the orthopedic surgeon who performed Landry’s surgery, was qualified to testify as an expert. Dr. Barbieri was acting in his professional capacity when he testified that the type of fracture Landry experienced was caused by a high-energy force as opposed to a simple fall. Clearly, Dr. Barbieri should have been qualified as an expert witness under Rule 702; therefore, O’Neal would have been allowed discovery in order to test Dr. Barbieri’s qualifications before his testimony was presented to the jury. See Sample, 643 So.2d at 530.

¶ 19. The State contends that this error committed by the trial court was harmless error as it did not affect a substantial right of O’Neal. Rule 103(a) of the Mississippi Rules of Evidence states that error based upon rulings of evidence “may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.... ” To warrant reversal, the error by the trial court must have “the effect of denying the defendant a fundamentally fair trial.” Martin v. State, 726. So.2d 1210, 1214(1113) (Miss.Ct.App.1998).

¶ 20. Dr. Barbieri’s testimony regarding the causes of this type of fracture did not deny O’Neal his right to a fundamentally fair trial. Even without Dr. Bar-bieri’s testimony as to causation, there was sufficient evidence submitted to the jury to establish the crime of aggravated domestic violence. Landry testified that O’Neal forced her out of her car, threw her down on the garage floor, and kicked and stomped on her leg and back. Photographs that show the bruises on her body, which were consistent with her testimony, were admitted into evidence. The officer who arrived on the scene testified that Landry was in a great deal of pain from the injury, and Dr. Barbieri testified without objection, that Landry’s broken femur was a serious injury. The trial court erred in allowing Dr. Barbieri’s testimony as to the cause of Landry’s injury because Dr. Barbieri was not offered as an expert witness. However, such error did not have the affect of denying O’Neal a substantial right or rendering his trial fundamentally unfair. Consequently, this error does not warrant reversal.

¶ 21. THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT, DOMESTIC VIOLENCE, AND SENTENCE TO SERVE TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWELVE YEARS SUSPENDED, WITH FIVE YEARS ON POST-RELEASE SUPERVISION, AND FINE OF $2,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAMAR COUNTY.

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