author: LEE, P.J.,

text:
    Daryl MORRIS a/k/a Darryl Morris, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02016-COA.
    Court of Appeals of Mississippi.
    March 20, 2007.
    Rehearing Denied June 19, 2007.

      Rabun Jones, Attorney for Appellant.
    Office of the Attorney General by Desh-un Terrell Martin, District Attorney, Joyce Ivy Chiles, Attorney For Appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On July 5, 2004, Anthony Nash, a twenty-one year old resident of Leland, Mississippi, and his friends were talking outside of McCray’s Grocery, a/k/a Fox Store, in Leland. A man came from around the back of the store and shot Nash two or three times. Nash ran, and the man chased him and shot him two more times in the back after Nash fell to the ground in the street. No weapon was recovered.

¶ 2. Based on statements from witnesses to the shooting, a warrant was issued and Darryl Morris, a twenty-three year old resident of Greenville, Mississippi, was arrested on July 7, 2004. Morris had no criminal history. At trial, the State argued to the jury that the murder was a result of an ongoing family feud between the Jackson family, of which Morris was a member, and the Nash family. The State presented evidence of fighting between family members which will be discussed more fully as relevant.

¶ 3. Morris did not testify but argued through witnesses at trial that he could not have committed the murder in Leland because he was in Greenville at the time. According to the testimony at trial, Green-ville and Leland are approximately fifteen minutes apart but depending on traffic could be less than ten minutes apart. The investigating officer, based on the time of the 911 call, estimated that the shooting occurred between 2:59 and 3:00 p.m. at the latest. Witnesses for Morris presented evidence that he could not have been the shooter because he was in Greenville shopping just moments before the murder. Two receipts were received into evidence from stores in Greenville, one showing a time of 2:19 p.m. and one showing a time of 2:34 p.m.

¶ 4. The first eyewitness to the murder came forward on July 6, 2004. The witness led the police to believe that Morris was the shooter. Two more witnesses came forward in August who also led the police to believe Morris was the shooter.

¶ 5. At trial, Virginia Lowe, Nash’s cousin, testified that on July 5 she and Nash were sitting on her porch in Greenville when a red Expedition that she thought belonged to Greg Jackson, Morris’s uncle, passed by in front of her house twice. She did not see how many people were in the Expedition or who was driving. On cross-examination, she admitted that she did not know for a fact that it was the same Expedition that drove by both times. According to Lowe, Nash left her house to go home. Soon after he left Lowe heard gunshots. She first called Nash’s mother and then within approximately five minutes of hearing the shots she called the police. The police had already received a call.

¶ 6. Jeffrey Butler testified that he was standing outside McCray’s Grocery with Nash moments before Nash was shot. Butler described the shooter as a light-skinned man with dark hair. He assumed the shooter was Morris but did not know for certain.

¶ 7. Katina Davenport testified that she was at the house across the street from McCray’s Grocery on the day of the murder. She and her cousin, David Thompson, were walking down the driveway to cross the street to go to McCray’s Grocery when Darryl Morris ran by with a gun in his hand. Davenport recognized Morris but did not know him personally. When she saw Morris on July 5 he had braids in his hair and a mask or stocking on his head. She testified to seeing Nash run from the grocery store, Morris shooting him, and then shooting him again in the back when Nash fell to the ground. She testified that she was positive that the person she saw shoot Nash was Morris.

1Í 8. David Thompson testified next. He testified that he saw Morris run after Nash and shoot him. He also testified that he had previously seen Morris and Nash fight twice near McCray’s Grocery. Thompson had seen Morris around town but did not know his name. Sometime after the shooting, but before talking to the police, Thompson was at another cousin’s house and saw a picture of Morris. He asked the name of the person in the picture. Before this point Thompson did not know Morris’s name. Neither Thompson nor Davenport mentioned the name Darryl Morris in their police reports. Each just gave an account of the murder.

¶ 9. Morris’s cousin, Marvin Jackson, was with Morris on the day of the murder. He and Morris were in his 1997 red/maroon Ford Expedition. He testified that he and Morris were at the Greenville mall around 2:00 or 2:10 p.m. on the day of the murder. Jackson said that at the mall Morris bought a jersey at Sports Addition. After leaving the mall, they went to Pagers Plus where Morris bought a charger for his cell phone. Jackson testified that he saw Randy Minnix, Jr. at Pagers Plus. Minnix was leaving as they entered the store. Minnix verified this by testifying that he saw Jackson and Morris around 2:25 or 2:30 p.m. in Greenville in the Wal-Mart parking lot near Pagers Plus. Jackson testified that after leaving Pagers Plus he bought a football jersey from a man in the parking lot who was selling jerseys out of his trunk. Dorothy Johnson testified that she knew Morris and Jackson and that she saw them on July 5 in the Wal-Mart parking lot looking at jerseys at approximately 2:30 p.m. She was on her way inside to pay her phone bill. Byron Allen also testified that he knew Morris and saw him in the parking lot of the Wal-Mart looking at jerseys on July 5. He spoke to Morris briefly. After buying a jersey, Jackson took Morris home. Jackson stated that he and Morris did not go to Leland at any point that afternoon.

¶ 10. Minnix testified that after he left Wal-Mart, he went to Leland for a 3:00 p.m. haircut appointment. When he got to Leland he saw police cars and an ambulance on Hudson Street. He estimated that this occurred between 2:50 and 3:00 p.m. Minnix stopped to ask what had happened. Someone told him that Nash had been shot and that Morris was the shooter. Minnix called his father, Randy Minnix, Sr., a Leland police officer, and told him what he heard. Randy Minnix, Sr. knew Morris and called Morris’s father at his home in Greenville to ask where Morris was at the time. Morris’s father responded that Morris was at home and then handed the phone to Morris. According to the testimony, this call occurred around 3:00 p.m.

¶ 11. Darryl Jackson, Morris’s father, testified that Morris came home on July 5 at approximately 3:00 p.m. Jackson testified that just before Morris got home, he received a phone call from Lieutenant Minnix. Jackson was still on the phone with Minnix when Morris walked in the house. Jackson testified that Morris entered carrying a plastic bag containing a jersey from Sports Addition. Morris also had a cash receipt from Pagers Plus. Morris appeared normal and was laughing when he came into the house. The receipt from Sports Addition listed the item sold as a “Portis jersey,” but according to the testimony of Greg Jackson and Darryl Jackson the jersey Morris bought read “Bailey,” the name of a different football player. The Bailey jersey was entered into evidence. The store tags and price tags had been torn off. Darryl Jackson testified that the jersey was in the same condition as when brought home by Morris. Jackson did not remove any tags from the jersey, and Morris never wore the jersey. Matthew Breaux, the general manager of Sports Addition, testified that the receipt showed the jersey was purchased at 2:19 p.m. on July 5. At the time of trial, Breaux had been employed with Sports Addition for approximately six months. He testified that he had never known of a situation where a jersey that was sold came up on the receipt as the wrong name.

¶ 12. On July 21, 2005, a Washington County Circuit Court jury found Morris guilty of murder. Morris was sentenced to life for the murder of Nash.

¶ 13. Morris now appeals to this Court asserting the following issues: (1) reversible error occurred when the state injected irrelevant, highly prejudicial evidence of a fight a couple of days before the alleged murder between Nash and his relatives on one hand, and various members of Morris’s family on the other hand, when no connection between Morris and such fight was shown; (2) Morris was denied due process and a fair trial when the trial court allowed the state, in rebuttal and over timely objection, to introduce evidence of a threat made by Morris’s uncle while Morris was not shown to be present or have any knowledge of such threat; (3) clear error occurred with the admission of the jailhouse confession testimony of Annanais Miller whose testimony was based in large part on double hearsay and the State’s closing argument about such testimony; (4) a violation of defendant’s right to confront the witnesses against him under the Sixth and Fourteenth Amendments to the U.S. Constitution as well as article 3, Section 26 of the Mississippi Constitution of 1890 occurred and the trial court committed reversible error when it curtailed the cross-examination of Annanais Miller; and (5) the cumulative effect of all errors which occurred at trial warrants a reversal of defendant’s conviction. Issues I and II will be discussed together for judicial economy.

¶ 14. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 15. The standard of review 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). Any error in the admission or exclusion of evidence is not grounds for reversal unless the error adversely affected a substantial right of a party. Lynch v. State, 877 So.2d 1254, 1281(¶86) (Miss.2004). Constitutional issues are reviewed de novo. Thoms v. Thoms, 928 So.2d 852, 855(¶ 9) (Miss.2006).

DISCUSSION

I. DID REVERSIBLE ERROR OCCUR WHEN THE TRIAL COURT ALLOWED EVIDENCE OF FIGHTING AMONGST FAMILY MEMBERS BEFORE THE MURDER?

II. WAS MORRIS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE TRIAL COURT ALLOWED THE STATE, IN REBUTTAL AND OVER OBJECTION, TO INTRODUCE EVIDENCE OF A THREAT MADE BY MORRIS’S UNCLE WHILE . THE DEFENDANT WAS NOT SHOWN TO BE PRESENT OR HAVE ANY KNOWLEDGE OF SUCH THREAT?

¶ 16. The State’s theory of the case, which it began presenting to the jury in opening arguments, was that Nash’s murder was the culmination of an ongoing family feud between the Jackson family, which Morris was a part of, and the Nash family. Morris argues that the trial court erred in allowing the State to enter testimony regarding fights between his and Nash’s family. He argues that the testimony was irrelevant and highly prejudicial because, in some instances, no connection was shown between Morris and the fights. Morris’s counsel objected to the testimony during the State’s opening argument and throughout the trial asserting that it was not relevant, but the objections were overruled.

¶ 17. The State presented evidence of the following fights between the Jackson and Nash families. In May of 2004, Morris and Nash got into a fight and Nash pulled a gun on Morris. Morris’s uncle, Greg Jackson, testified that when Nash pulled out a gun Morris ran. Nash shot at Morris several times but missed. One of the shots hit Jackson in the shoulder. Nash was charged with aggravated assault, but at the time of his death his case had not gone to trial. Marvin Jackson, a/k/a Beehaw, Morris’s cousin, testified that he was in two fights with Nash in 2004 prior to Greg Jackson being shot. Morris was not present at the first fight. Morris was present but not involved in the second fight.

¶ 18. Michael Anthony Jackson, Nash’s father, testified that he was at his sister-in-law’s house when he heard about a fight on the corner near McCray’s Grocery. Nash’s father walked to the comer to see that his son and Greg Jackson had just stopped fighting. Later, when Nash’s father began to walk off, Greg drove by and shouted at him, “You get ready. Your boys are dead.” Greg denied making this statement. The record does not reflect if Morris was present at this fight.

¶ 19. According to John Nash, the deceased’s uncle, two days before Nash was murdered he and Nash were walking down the street when Greg drove up beside them and started harassing Nash. Later that day Nash and Greg got into a fight. Greg left the scene and came back with his two brothers. Greg and his two brothers jumped Nash’s uncle. Morris was not involved in this fight. The record does not reflect if Morris was present.

¶ 20. Morris argues that absent evidence that he was at or involved in the fights, the testimony has no probative value and should have been excluded as being irrelevant and confusing to the jury. Morris asserts that the only relevant fight was the one that happened two days before the murder because it was possible that the parties were still angry due to the close time proximity. However, Morris argues that the State did not specifically prove that he was at this most recent fight or even that he knew about it, and, therefore, this testimony should also have been excluded.

¶ 21. Mississippi Rule of Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Evidence must be relevant, and, if so, it is generally admissible. M.R.E. 401 & 402. However, even relevant evidence may not be admissible due to prejudice, confusion, or waste of time. M.R.E. 403. “Rule 403 is the ‘ultimate filter through which all otherwise admissible evidence must pass.’ ” Hodges v. State, 912 So.2d 730, 780 (¶ 119) (Miss.2005) (citing Bounds v. State, 688 So.2d 1362, 1370 (Miss.1997)).

¶22. We find that the testimony regarding the ongoing family feud, whether or not Morris was directly involved in each individual altercation, was relevant and was not so prejudicial as to constitute reversible error. Again, the standard of review for the admission or exclusion of evidence is abuse of discretion. Yoste, 822 So.2d at 936(¶ 7). The trial court did not abuse its discretion in allowing the testimony regarding the fighting among the Nash and Jackson families since the testimony had the tendency of making the action more or less probable. See M.R.E. 401 & 402. Morris obviously knew of the ongoing feud and had participated in several altercations with members of the Nash family. Further, Rule 403 was not violated as the probative value of the testimony was not “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403.

¶ 28. Morris argues that the testimony regarding the fights was unfairly prejudicial in light of the weaknesses in the eyewitnesses’ testimony. Morris points out various inconsistencies in the witnesses’ testimony and asserts error in that their testimony was not sufficient alone to overwhelmingly demonstrate Morris’s guilt. Morris asserts the same argument regarding the alibi because the jury could have rejected it in light of conflicts. Considering all the testimony, we find that sufficient evidence existed for the jury to find Morris guilty. In a criminal prosecution, the jury may accept the testimony of some witnesses and reject that of others, and may accept in part and reject in part the testimony of any witnesses, or may believe part of the evidence on behalf of the State and part of that for the accused, and the determination of the credibility of such witnesses is not for the reviewing court, but only for the jury. Evans v. State, 725 So.2d 613, 680 (¶293) (Miss.1997). Given that it is the responsibility of the jury to determine the weight and credibility of the evidence, we leave it to the jury to sort out any inconsistencies in the testimony. We find that the trial court did not abuse its discretion in allowing the testimony.

¶ 24. We find Issues I and II without merit.

III. WAS THE ADMISSION OF THE JAILHOUSE CONFESSION TESTIMONY OF ANNANAIS MILLER CLEAR ERROR?

¶25. While Morris was in the Leland city jail, Annanais Miller was housed in a nearby cell. Miller was incarcerated on the day of Nash’s murder and had been incarcerated for approximately the previous six months on charges of house burglary and aggravated assault with a baseball bat. On July 11, Miller came to the investigating police officers and told them that he overheard information about the murder from Morris’s cell. Sergeant Byron Vaughn and Lieutenant Juan Overton testified at trial that Miller came forward on his own and that no deal was offered to Miller for a reduced sentence nor did he ask for a deal. Miller told the officers that he overheard Morris telling another prisoner that he shot Nash. Miller gave details to Vaughn, not repeated at trial due to hearsay exclusions, of the murder. At trial, Miller testified that he overheard Morris telling Byron Jones, another prisoner, that he caught Nash “slipping” at the Fox Store and shot him. Miller testified that slipping meant off guard. According to Miller, Jones and Morris were in adjacent cells. Miller testified that he only heard part of what was said because a large fan and an echo made it difficult to hear. Miller also testified that Jones later wrote him a note that a trustee delivered to his cell saying the same thing. Miller could not read so his cell mate read the note to him. The State showed that no visitors to the jail had informed Miller of the shooting.

¶26. Morris argues that Miller’s testimony was double hearsay and should have been excluded even though no objection was made at trial. This Court has repeatedly held that “if no contemporaneous objection is made, the error, if any, is waived.” Walker v. State, 913 So.2d 198, 238 (¶148) (Miss.2005). The contemporaneous objection rule is in place to enable the trial court to correct an error with proper instructions to the jury whenever possible. Gray v. State, 487 So.2d 1304, 1312 (Miss.1986). When hearsay goes into evidence without objection, the trial court has no opportunity to evaluate the proffered testimony under M.R.E. 803(24), or any other exception. Rubenstein v. State, 941 So.2d 735, 764 (¶ 113) (Miss.2006). For this reason, the failure to object to hearsay operates as a waiver of the issue on appeal. Id. The policy behind the contemporaneous objection rule has been stated by this Court as follows:

It is now well settled that when anything transpires during the trial that would tend to prejudice the rights of defendant, he cannot wait and take his chances with the jury on a favorable verdict and then obtain a reversal of the cause in this Court because of such error, but he must ask the trial court for a mistrial upon the happening of such occurrence when the same is of such nature as would entitle him to a mistrial.

Taconi v. State, 912 So.2d 154, 157(¶ 18) (Miss.Ct.App.2005) (emphasis added).

¶ 27. Whether or not the statement made by Miller was hearsay, Morris made no hearsay objection to Miller’s testimony and is now procedurally barred for failure to object. Id. Our only option on appeal is to find that the admission of the statement warrants reversal under the plain error doctrine. When a defendant fails to make a contemporaneous objection, the defendant “must rely on plain error to raise the assignment on appeal.” Jackson v. State, 924 So.2d 531, 542(¶ 35) (Miss.Ct.App.2005). We cannot find that the admission of Miller’s testimony amounts to plain error. The jury had sufficient evidence, such as the testimony from the two eyewitnesses, to find Morris guilty even without Miller’s testimony. Further, given Miller’s previous convictions and outbursts on the witness stand, it is possible that the jury did not weigh his testimony heavily in its decision.

¶28. Morris also argues that a new trial should be granted because the State embellished Miller’s testimony in closing arguments by stating that Miller testified that Morris said that he “had shot him in the head.” No objection was made by defense counsel during closing. “In deciding whether an improper comment by the prosecutor requires a reversal, the test is whether or not the natural and probable effect of the statement is to create an unjust prejudice against the accused so as to result in a decision influenced by prejudice.” Id. at 542(¶ 36); Harvey v. State, 666 So.2d 798, 801 (Miss.1995). The prosecutor’s remarks are viewed in light of the entire trial. Id. We do not find that the prosecutor’s misstatement in closing created an unjust prejudice against Morris. Miller testified that he overheard that Nash was shot, and counsel for the State said in closing that Miller testified that Nash was shot in the head. The statement in closing, although an exaggeration of Miller’s testimony, did not amount to plain error. It is unlikely that the jury was confused or their decision prejudiced by this slip of the tongue. We find that this misstatement does not warrant reversal.

¶ 29. We find that neither Miller’s testimony nor the misstatement by the prosecution involved a fundamental right, and, therefore, neither argument amounts to plain error. Issue III is without merit.

IV. WAS MORRIS’S RIGHT TO CONFRONTATION VIOLATED AND DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY LIMITING THE CROSS-EXAMINATION OF ANNANAIS MILLER?

¶ 30. Morris argues that his Sixth Amendment right to confrontation was violated when the trial judge cut short Miller’s testimony concerning the conditions of his confinement. Morris’s assertion at trial was that Miller was not a credible witness because he received a lenient sentence for testifying against Morris. As to Miller’s aggravated assault charge, his testimony on cross-examination of which Morris now complains is as follows by Morris’s counsel, Johnnie Walls.

Q: And so how much time you say you got for that?
A: A year and two more to serve on paper.
Q: A year—
A: And two to serve on paper.
Q: — and two to serve on paper, which means you got a year on house arrest.
A: Yes, sir.
Q: You were in prison.
A: Could I ask you a question?
Q: Yeah, go ahead.
A: I don’t feel like talking about that.
Q: You don’t feel like talking about it.
A: Because it made me angry.
Q: Well, don’t you know that when you come to court, you have to talk about it? Especially after you sit up there and you got another lawyer on the other side have to ask you questions, don’t you realize you have to talk about it now?
A: Yes, sir.
Q: You didn’t tell her you didn’t want to talk about it, did you?
A: Know what I’m saying, it made me more angry, know what I’m saying, about talking about it, know what I’m saying.
Q: More angry?
A: Yes, sir. Make me just come back, know what I’m saying—
Q: What are you angry about?
A: I’m just saying I don’t want to talk about it, because, you know what I’m saying, I already served my time and it’s over with, know what I’m saying.
Q: But what you’re here for is that you coming in here saying that this young man over there told you or you heard him say that he killed somebody.
A: Yes, sir.

Upon hearing objections by Morris’s counsel out of the hearing of the jury concerning the relevancy of the questioning, the court ruled as follows:

THE COURT: I think that’s right. If you want to ask him about his-any deal that he got, I think that’s permissible, but I think this questioning about the conditions of his confinement, I don’t think that’s relevant to anything. I mean, I don’t think it impacts on his credibility to the jury ...

Questioning by Morris’s counsel concerning Miller’s confinement continued as follows:

Q: What’d [Officer Overton] say to you?
A: He had asked me, you know what I’m saying, did you know something, and I said ... yeah, I know a little bit. Where he like — know what I’m saying — he say he had something to tell me but he ain’t never told me.
Q: All right. When you told him you knew a little bit, did he say, man, this might be able to help you out a little'bit?
A: No, he ain’t said that.

¶ 31. Miller next testified that after he gave the statement to Officer Overton he was moved to the county jail. Miller said that he wanted to go to the county jail and had been trying to do something to get moved. He then stated that the reason he was moved was because he was acting out in his cell by throwing mattresses, flooding his cell, etc. and not because of his statement to the police. Miller next testified as to the length of time he served and the time he was on house arrest. The questioning proceeded as follows:

Q: ... You served less than six months, and you say you got not [sic] favorable treatment for your testimony?
A: I’m fixing to break it down for you. I did — the time I did in jail, that count to the time they gave me. Six months down in Leland jail.
Q: Well, that means you got no time at all then.
A: Then I did a year and two to serve on paper. That’s enough for me, you know what I’m saying.

This was the conclusion of the cross-examination.

¶ 32. Morris’s main objection to the limitation put on Miller’s testimony was the statement by the trial judge, “I think this questioning about the conditions of his confinement, I don’t think that’s relevant to anything.” Regardless of this statement, Morris’s counsel was able to ask numerous questions about Miller’s motive in giving the statement to the police about Nash’s death. Miller stated several times during questioning that he did not receive favorable treatment for testifying. The fact that Morris did not receive the answer that he wanted does not mean that his counsel could continue repetitious questioning until he got a desirable answer. We cannot find where the trial court unduly restricted cross-examination.

¶ 33. This issue is without merit.

V. DO CUMULATIVE ERRORS MADE AT TRIAL WARRANT REVERSAL OF MORRIS’S CONVICTION?

¶ 34. Having found no abuse of discretion by the trial court in any of the above issues, we cannot find that cumulative error denied Morris a fair trial. This issue is without merit.

¶ 35. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT 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 THE APPELLANT.

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


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    James A. PEACOCK a/k/a Jimmy Peacock, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00804-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.
    Rehearing Denied Sept. 4, 2007.

      James A. Peacock, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On March 31, 2006, the Circuit Court of Yalobusha County summarily denied James Peacock’s motion for post-conviction relief. He appeals, asserting four issues: (1) he was entitled to an evidentia-ry hearing; (2) the original sentence was illegal because the circuit court could not have legally suspended part of his sentence, and that the circuit court should have sentenced him to probation or post-release supervision; (3) his suspended sentence should not have , been revoked, because he was ultimately acquitted of the offense that gave rise the facts underlying the State’s contention that he violated the terms of the suspended sentence; and (4) notice of the revocation hearing was insufficient to provide him with due process. Finding no error, we affirm.

FACTS

¶2. On July 7, 1997, Peacock pleaded guilty to burglary of a building other than a dwelling, grand larceny, simple assault of a law enforcement officer and four counts of sale of a controlled substance. He was sentenced to twenty years confinement with seven to serve and thirteen years suspended. On August 15, 2003, he was released from incarceration after serving seven years. On August 24, 2004, the State moved to revoke the suspended sentence. On October 15, 2004, a hearing was held in which, after the State put on its proof, the circuit court found that the proof was sufficient to show Peacock had violated the terms of his suspended sentence. However, the matter was continued until December 9, 2004, when the circuit court revoked the thirteen years suspended sentence. From March 7-9, 2005, a trial was held and Peacock was acquitted of the charges that led to his new indictment.

ISSUES AND ANALYSIS

1. Denial of an evidentiary hearing

¶ 3. A petitioner in post-conviction relief matters is only entitled to an eviden-tiary hearing if, under the facts within his knowledge and/or attached affidavits, he states a cognizable claim for relief, and absent that claim, a trial court may summarily dismiss the petition. Rogers v. State, 811 So.2d 367, 370-71 (¶ 11) (Miss.Ct.App.2001). As the discussion concerning the remaining issues concludes, no such claim is present in Peacock’s motion; therefore, the circuit court properly dismissed , the petition. This assignment of error is without merit.

2. Illegal sentence

¶ 4. Peacock contends that his sentence was illegally imposed, because he received a suspended sentence, and as a previously convicted felon, he could only have received parole or post-release supervision. The law is clear that a person may not complain that he received a lighter sentence than that imposed to invalidate a sentence. McGleachie v. State, 800 So.2d 561, 563(¶4) (Miss.Ct.App.2001). This issue is without merit.

3. Illegal revocation of sentence

¶ 5. Peacock contends his sentence was illegally revoked because he was ultimately found not guilty of the charges upon which his suspended sentence was revoked. A conviction is not necessary for revocation of probation. Berdin v. State, 648 So.2d 73, 79 (Miss.1994). A mere showing that a defendant has more likely than not violated the terms of his release is sufficient. Id. (citing Wallace v. State, 607 So.2d 1184, 1190 (Miss.1992)). Peacock fails to specify that he did not violate the terms and conditions of his suspended sentence. This issue is without merit.

4.Lack of notice of revocation proceedings

¶ 6. Peacock contends that the notice of the revocation proceedings that he received was insufficient to comport with due process. The circuit court found, and Peacock does not deny, that he received actual notice of the revocation proceedings. There is no assertion that the circuit court’s findings regarding either the notice or the facts underlying the revocation were in error. Nothing in the record before us indicates that Peacock’s due process rights were infringed. See Thorn v. State, 815 So.2d 455, 456-57 (¶¶4-5) (Miss.Ct.App.2002). This issue is without merit.

¶ 7. Lastly, while Peacock failed to raise the issues before this Court, he did raise ineffective assistance of counsel and double jeopardy claims in his initial pleading before the circuit court. We find the issues are waived for failure to raise before this Court, and were they not waived, they would be without merit.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YALOBUSHA COUNTY.

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


text:
    Joey SELLARS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00812-COA.
    Court of Appeals of Mississippi.
    April 24, 2007.
    Rehearing Denied Sept. 4, 2007.
    Joey Sellars, Appellant, pro se.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On April 12, 2005, Joey Sellars pled guilty in the Circuit Court of Clay County to the manufacture of methamphetamine. He was sentenced to serve a term of twenty-two years in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $5,000.

¶ 2. Sellars filed a motion for post-conviction relief alleging that his sentence of twenty-two years for the manufacture of methamphetamine is disproportionate to the offense committed and to other sentences given to similarly situated defendants. The trial court found that the sentence was not disproportionate to the crime and dismissed the motion on April 11, 2006.

¶ 3. Sellars now appeals to this Court citing the following issue: the trial court erred in dismissing his petition for post-conviction relief since his sentence is grossly disproportionate to the crime.

STANDARD OF REVIEW

¶ 4. 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(113) (Miss.Ct.App.2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

I. DID THE TRIAL COURT ERR IN DISMISSING SELLARS’S PETITION FOR POST-CONVICTION RELIEF?

¶ 5. Sellars argues that the trial court erred in dismissing his petition for post-conviction relief without a hearing because his sentence of twenty-two years is disproportionate to the crime. Sellars asserts two reasons why his sentence is disproportionate: he was a first time offender and other similarly situated defendants have received lesser sentences.

¶ 6. We find Sellars’s argument regarding his sentence without merit. Sel-lars received less than the maximum sentence of thirty years for manufacturing methamphetamine. Miss.Code Ann. § 41-29 — 139(b)(1) (Rev.2005). The general rule in Mississippi is that a sentence that does not exceed the maximum term allowed by the statute cannot be disturbed on appeal. Edwards v. State, 800 So.2d 454, 468(¶ 45) (Miss.2001). “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Id. (quoting Hoops v. State, 681 So.2d 521, 537 (Miss.1996)). We find that a threshold comparison of Sellars’s sentence with the crime committed does not lead to an inference of “gross disproportionality” and, therefore, no further analysis is necessary. Id. at 469(¶ 47).

¶ 7. Sellars next argues that his sentence should be overturned because the trial court did not state specific reasons for the sentence imposed as required in Green v. State, 762 So.2d 810, 814(¶ 11) (Miss.Ct.App.2000) (“Besides passing judgment, the trial court must properly utilize the broad discretionary authority granted to it and must, in the interest of judicial fairness and efficiency, state specific reasons for sentences.”). It is apparent from the record that the trial court gave reasons and used its discretion in determining Sellars’s sentence. For example, the trial court took into consideration testimony from a Tri-County Narcotics Task Force officer in regards to Sellars’s drug involvement and used this as an aggravating factor in the sentencing. Before sentencing Sellars, the trial court retired five other methamphetamine-related counts in the same indictment and retired a two-count methamphetamine-related separate indictment. Sellars argues that the trial court wrongly took these retired counts into consideration in sentencing him. No evidence exists in the record that the trial court used the retired counts to enhance his sentence. Even if the trial judge took the retired counts into consideration, trial courts have broad discretion in what may be considered when imposing a sentence. Summe rall v. State, 734 So.2d 242, 246(¶21) (Miss.Ct.App.1999).

If 8. We find Sellars’s argument that his sentence was grossly disproportionate without merit.

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

KING, C.J., MYERS, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


text:
    MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellant v. PRODUCT CONNECTIONS, LLC, Appellee.
    No. 2006-CC-00078-COA.
    Court of Appeals of Mississippi.
    April 24, 2007.
    Rehearing Denied Sept. 4, 2007.

      Albert B. White, Madison, attorney for appellant.
    Gwendolyn Baptist Hewlett, attorney for appellee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. From May 22, 2004, until June 18, 2004, Donis Chatham worked for Product Connections (PC) as a product demonstrator. Shortly after ceasing her work with PC, Chatham filed a claim for unemployment benefits with the Mississippi Department of Employment Security (MDES). After an investigation MDES ruled that an employer/employee relationship existed between Chatham and PC, thus the amount paid to Chatham and all other workers in that class should be reported as employee wages and unemployment taxes paid. PC appealed this decision and a hearing was held. On April 5, 2005, Timothy Rush, the hearing officer, affirmed the decision of MDES. PC appealed to the Board of Review, which affirmed Rush’s decision. PC then appealed to the Hinds County Circuit Court. The trial court reversed the decision of the Board, finding that Chatham and other similarly situated product demonstrators were independent contractors and not employees of PC.

¶2. The MDES now appeals to this Court asserting the following issues: (1) the trial court erred by failing to find substantial evidence that Chatham was an employee of PC; (2) the trial court erred by finding that PC proved Chatham was an independent contractor; and (3) the trial court acted arbitrarily and capriciously by failing to follow case law showing that Chatham was an employee of PC. As all of MDES’s issues are related to whether there was substantial evidence for the trial court to reverse the decision of the Board, we will address them together.

STANDARD OF REVIEW

¶ 3. Our restrictive standard of review for administrative appeals is well known. In the absence of fraud and if supported by substantial evidence, an order from a Board of Review on the facts is conclusive in the lower court. Miss. Employment Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991). On appeal, employees have the burden of overcoming a rebuttable presumption in favor of the Board’s decision. Miss. Employment Sec. Comm’n v. Noel, 712 So.2d 728, 730(¶ 5) (Miss.Ct.App.1998). The denial of benefits may be disturbed only if (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope of power granted to the agency, or (4) in violation of the employee’s constitutional rights. Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993). Furthermore, the burden of proof is upon the party seeking to show that the worker is not an employee. PDN, Inc., 586 So.2d at 840.

¶ 4. The supreme court has “articulated the additional principle that employment security contribution assessments are an excise tax and, therefore, every doubt as to their application must be resolved in favor of the taxpayer and against the taxing power.” Id.

DISCUSSION

¶ 5. This Court has specific factors to consider when determining the type of employment relationship, whether employee/employer or independent contractor. The factors to consider are:

(1) The extent of control exercised over the details of the work;
(2) Whether or not the one employed is engaged in a distinct occupation or business;
(3) The skill required in the particular occupation;
(4) Whether the employer supplies the tools and place of work for the person doing the work;
(5) The length of time for which the person is employed;
(6) The method of payment, whether by the time or by the job; and
(7) Whether or not the work is a part of the regular business of the employer.

PDN, Inc., 586 So.2d at 841-42 (citing Miss. Employment Sec. Comm’n v. Plumbing Wholesale Co., 219 Miss. 724, 69 So.2d 814 (1954)). However, the central issue to be considered in determining whether an individual is an employee or an independent contractor is whether the employer has the right to exercise control over the work of the employee. Estate of Dulaney v. Miss. Employment Sec. Comm’n, 805 So.2d 643, 646(¶ 13) (Miss.Ct.App.2002). Our supreme court has previously held that “one may be actually under slight supervision or control but still be an employee where the right of control existed and the service performed was a part of the regular business of the alleged employer.” Miss. Employment Sec. Comm’n v. Logan, 248 Miss. 595, 600, 159 So.2d 802, 804 (1964).

¶ 6. Mississippi Code Annotated Section 71-5-11 J(14) (Supp.2006) sets forth the necessary requirements for an employer-employee relationship to be established.

Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the department that such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant.

¶ 7. PC contracted with various manufacturers/retailers to provide product demonstrators as needed by the manufacturer. PC would then contact area coordinators who in turn contacted a product demonstrator to perform available jobs. The demonstrators would provide their own transportation and equipment for each job. PC never provided the demonstrators supplies, tools or materials. The demonstrators were supplied an information kit from the manufacturer of the product for which they were providing a demonstration. This kit contained all the instructions for the particular demonstration, including dates, length of demonstration, break times, appropriate dress code, specific instructions on how to conduct the demonstration, a name tag and other items relevant to the particular product such as sampling cups, gloves, or a hair net. Chatham testified that if she had to buy samples for a demonstration a check was included in the kit. Although Chatham believed the check was from PC, she was certain that this check was always made payable to Wal-Mart, where she conducted all of her demonstrations.

¶ 8. If a demonstrator experienced any problems during a demonstration, he or she was instructed to contact the manufacturer. According to one of the attached exhibits, if a demonstrator was unable to report to the store at the scheduled time, he or she was instructed to contact the manufacturer as well as the “agency,” in this case PC. However, Joanne Whalen, the operating owner of PC, testified that it was acceptable for a demonstrator to get a replacement without notifying PC. Whalen also stated that she could not guarantee future jobs for demonstrators. Whalen further stated Wal-Mart, one of PC’s customers, requires PC to carry workers’ compensation coverage and liability coverage on the demonstrators. The aforementioned exhibit, which was sent by the manufacturer, also requires the demonstrator to conduct a “pre-event store check” wherein the demonstrator would contact the store or food manager, introduce themselves, locate the product to be sampled and verify the date and time of the event.

¶ 9. After each job, the demonstrator completes a form included in the kit and sends it to PC. PC in turn mails these forms to the manufacturer. The demonstrators are paid by the job and, although their checks issue from PC, the amount is determined by the manufacturer. PC receives a fee from the manufacturer which is deducted from the amount of compensation before being distributed to the demonstrators. The area coordinator also receives a booking fee.

¶ 10. The Board adopted the Hearing Officer’s decision, which found the following:

The employer hired the individuals to perform a specific service, which was integral to the employer’s on-going operations and not something performed on an intermittent as-needed basis. The mere fact that the employer issued the claimant and other workers Form 1099 for tax purposes does not in any way alter the fact that there did exist a master/servant relationship in this case. The fact that the owner did not visit the demonstration job site did not alter the fact that the owner reserved the right to direct the coordinator and the demonstrator as to how to perform their work to the clients and employer’s expectation. Either party could terminate their [sic] working relationship without liability to the other party. The hearing officer is also of the opinion that the decision of the Chief of the Contribution and Status Department is in order and will be affirmed.

The decision of the Chief of the Contributions and Status Department is in the form of a letter to PC. Pertinent parts of this decision are as follows:

The information shows the worker performed services under the firm’s name. The worker reported to the firm. The worker received written instructions. The worker was provided materials used in the demonstration. The worker was paid an hourly rate. The worker was required to make purchases at the beginning of each day which was used as a time card. The worker was given a lunch break if the demonstration was 6 hours long. The worker was required to work the hours assigned. The worker was required to call the firm if late or absent or unable to start or complete an assignment. The firm had a dress code. The firm carried Workman’s Compensation Insurance. The worker was an integral part of the firms operation. The worker had no investment in a business and did not stand to make a profit nor suffer a loss. Either party could terminate services without liability.

¶ 11. These opinions by the hearing officer, which the Board accepted, and by the status chief, are not based on substantial evidence. In fact, the letter by the status chief clearly misstates the relationship between Chatham and PC. The record is clear that PC did not provide materials or instruction, other than the place and date of the demonstration, to Chatham. PC did not instruct Chatham as to when to take lunch breaks. Chat-ham was paid by the job and performed services for the manufacturer/retailer. The name tag included in the demo kit had the manufacturer’s logo on it. The demonstrator was required to work the hours assigned, but these hours were set by the manufacturer. The demonstrator was instructed by the manufacturer to contact the retailer prior to the demonstration in order to verify the date and time of the event. The hearing officer states that the “owner” reserved the right “to direct ... the demonstrator as to how to perform their work to the clients and employer’s expectation.” It is unclear as to whom the hearing officer is referring when using the term “owner.” If the owner is PC, then the hearing officer misstates the facts. If the owner is the manufacturer/retailer, then that statement would not support an employer/employee relationship. Another misstatement of fact by the hearing officer concerns his finding that these jobs were not performed on an as needed basis. However, the testimony is clear that demonstrators were only contacted after the manufacturer contacted PC and informed PC of an available job. Chatham was only contacted when the manufacturer needed a demonstrator. If Chatham declined the job, which she was free to do, then another demonstrator was contacted.

¶ 12. Careful scrutiny of the record fails to support the Board’s conclusion that Chatham was an employee of PC. The trial court was correct in reversing the Board’s decision and we affirm.

¶ 13. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED.

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


text:
    Lucy BESTER on behalf of her minor child, Angela J. BESTER, and Annie Williams as next friend of the minor child, Latedra S. Williams, Appellants v. Glenn CLARK d/b/a Clark Texaco, Appellee.
    No. 2006-CA-00168-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Rehearing Denied Sept. 4, 2007.
    W. Howard Gunn, Aberdeen, attorney for appellants.
    Christopher James Latimer, David L. Sanders, Columbus, attorneys for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Lucy Bester filed suit on behalf of her minor child, Angela J. Bester, and Annie Williams filed suit as next Mend of the minor child, Latreda S. Williams (collectively referred to as Bester), against Glenn Clark d/b/a Clark Texaco (Clark) in the Circuit Court of Noxubee County, ah leging defamation, false imprisonment, intentional and/or negligent infliction of emotional distress, and negligent investigation. The circuit court granted Clark’s motion for summary judgment. Aggrieved, Bes-ter appeals, asserting the following issue for this Court’s review: whether the trial court erred in granting summary judgment on a finding that there existed no genuine issue of material fact. Finding no error, we affirm.

FACTS

¶2. On October 10, 2003, Glenn Clark, the sole proprietor of Clark Texaco, a full-service gas station, left his employee, Harold Mackie, in charge of the station. While Mackie was pumping gas into Robert Jenkins’s car, Angela and Latreda, who were both sixteen years old, pulled up to the gas station in a truck. Angela asked Mackie to pump gas into the truck that she was driving. Before Mackie had finished pumping gas into Angela’s truck, Latreda told Mackie that she wanted to purchase some snacks from inside Clark Texaco. Mackie stopped pumping gas and escorted Angela and Latreda into the store. Two young boys, Cedracus and Patrick Brown, also went into the store. After the girls selected their snacks, Mackie filled out a charge ticket for Angela to sign, as her mother had a charge account with Clark Texaco. Angela signed the charge ticket, and Mackie, Angela, and Latreda exited the store. Mackie then finished pumping Angela’s gas and the girls drove away.

¶ 3. After Angela and Latreda drove away, Jenkins went inside the gas station to pay Mackie for his gas. When Mackie opened the cash register to deposit Jenkins’s money, he noticed that the inside of the cash register, which was full minutes earlier, was now empty except for one-dollar bills. Mackie subsequently called Clark and informed him that someone had “cleaned out the cash register.” Mackie then called 911 and told the operator that the Clark Texaco had been robbed. When the police arrived, Mackie told them that he thought the robbery was committed by Angela and Latreda. Consequently, the police officers drove with Mackie in a police cruiser to Angela’s house. The sheriff arrived at Angela’s house shortly thereafter.

¶ 4. Police Officer Randy Dixon informed Angela and Latreda that Clark Texaco had been robbed and asked them whether they had anything to do with it. After the girls denied any involvement, Officer Dixon asked Angela’s mother to bring the girls to the police station to give a written statement. Consequently, Angela’s aunt took the girls to the police station.

¶ 5. At the police station, Angela and Latreda gave written statements in the presence of Officer Dixon and Angela’s aunt. Angela and Latreda were never told that they were arrested, nor were they threatened with arrest. After Angela’s aunt co-signed Latreda’s statement and Angela’s mother co-signed Angela’s statement, the girls were allowed to leave the police station. The entire process took less than an hour. The police never questioned Angela or Latreda again and no charges were filed against them.

¶ 6. Angela and Latreda were questioned by schoolmates about the incident that took place on October 10. Both of the girls testified during deposition that, as a result of the humiliation and questioning, they sought counseling and eventually checked into the same overnight treatment center for depression.

¶ 7. On January 9, 2004, Bester filed suit against Clark in the Circuit Court of Nox-ubee County, alleging compensatory and punitive damages for defamation, false imprisonment, intentional and/or negligent infliction of emotional distress, and negligent investigation. On May 19, 2005, Clark filed a motion for summary judgment or, in the alternative, a motion to dismiss. A hearing on the motion was held, and on September 30, 2005, the circuit court granted Clark’s motion for summary judgment, finding that no genuine issue of material fact existed. Aggrieved, Bester appeals.

STANDARD OF REVIEW

¶ 8. An appeal from summary judgment is reviewed de novo. Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 183(¶ 4) (Miss.Ct.App.2005) (citing Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 136(¶ 19) (Miss.1998)). The standard by which we review the grant or denial of summary judgment is the same standard as is employed by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Jacox, 908 So.2d at 183(¶ 4) (citing Dailey v. Methodist Med. Ctr., 790 So.2d 903, 906-07(¶3) (Miss.Ct.App.2001)). Pursuant to Rule 56(c), summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” The evidence must be viewed in the light most favorable to the non-moving party. Jacox, 908 So.2d at 184(¶ 4) (citing Dailey, 790 So.2d at 907(3)).

ISSUE AND ANALYSIS

I. Whether the trial court erred in granting summary judgment on a finding that there existed no genuine issue of material fact.

¶ 9. Bester asserts that the court erred in granting summary judgment because the following genuine issues of material fact existed: (1) whether Angela and La-treda were ever inside Clark’s station alone whereby they could take money from his cash register; (2) whether another customer, identified by Angela and Latreda as a heavy set ■ white man, was alone in Clark’s station when Angela, Latreda, and Mackie entered the station prior to Mackie discovering the missing money; (3) whether the heavy set white man remained in the service station alone after Angela, La-treda, and Mackie exited the station; (4) whether Robert Jenkins took the alleged money from Clark’s cash register; (5) whether “the Brown boys” took the alleged money from the cash register; (6) whether Clark, through his agent, Mackie, acted negligently when making accusations against Angela and Latreda; (7) whether Angela and Latreda suffered damages. Although Bester notes the aforementioned genuine issues of material fact, Bester does not elaborate on them. Instead, Bes-ter’s argument focuses on Mackie’s communication with police officers, as Bester asserts that Mackie was grossly negligent in his communication with law enforcement. Bester maintains that Mackie was dishonest and exercised bad faith in pointing the finger at Angela and Latreda because he testified that he “[did not] really know who took the money out of the cash register but they [were] the only ones on the premises.”

¶ 10. Regarding Bester’s assertion that Mackie communicated with the police in bad faith, the principle is well established that “[a] citizen has a privilege to start the criminal law into action by complaints to the proper officials so long as one acts either in good faith, i.e., for a legitimate purpose, or with reasonable grounds to believe that the person proceeded against may be guilty of the offense charged.” Downtown Grill, Inc. v. Connell, 721 So.2d 1113, 1117(¶ 8) (Miss.1998) (citing Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1187 (Miss.1990)). Furthermore, “communications which would otherwise be defamatory are protected as privileged if they are made in good faith in the prosecution of any inquiry regarding a crime which has been committed.” Id. (citations omitted). If an individual is subjected to criminal proceedings that were instigated out of malice, then that individual is entitled to recover compensation for his losses. Downtown Grill, 721 So.2d at 1117(¶ 11) (citing Owens v. Kroger Co., 430 So.2d 843, 846 (Miss. 1983)). When a citizen “merely states what is believed” to prosecuting authorities and leaves “the decision to prosecute entirely to the uncontrolled discretion of the officer” then the citizen has not instigated a criminal proceeding. Id. (citing W. Page Keeton et al., Prosser and Keeton, on the Law of Torts § 119 at 872-73 (5th ed.1984)).

¶ 11. The record reveals that Bes-ter failed to establish that Mackie acted with malice when he informed the police that the store was robbed and that he thought Angela and Latreda were responsible. Mackie testified during deposition that he gave a written statement to the police when they arrived at the gas station. Mackie further testified that he did not identify Angela or Latreda or anyone else in the statement, as he only stated that the store had been robbed and that money had been taken out of the register. Although Mackie did tell the police that he thought Angela and Latreda had taken the money, nothing in the record suggests that Mackie did not have a reasonable basis for making the assertion, or that he knew the assertion to be false. Consequently, we find Bester failed to establish that Mackie acted in bad faith and that his communication with the police officers was not privileged. This issue is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF NOXUBEE COUNTY GRANTING THE MOTION FOR SUMMARY JUDGMENT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: CARLTON, J.,

text:
    Kenneth Wayne KEYS a/k/a Kenneth Wayne Keyes, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00138-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Rehearing Denied Sept. 4, 2007.

      Herbert H. Klein, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before LEE, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Kenneth Wayne Keys was convicted by a Perry County Circuit Court jury for the crime of simple assault on a police officer. On appeal, he alleges numerous errors at trial and challenges the sufficiency and weight of the evidence. Finding no reversible error, we affirm his conviction and sentence.

FACTS

¶ 2. At about 1:00 a.m. on December 14, 2002, Keys was driving a vehicle and passed Perry County Deputy Sheriff Danny Merritt, who was driving in the opposite direction. The road on which the two men were traveling is narrow. Keys testified that the deputy had his high beams on and was pulled to the side of the road as Keys passed by.

¶ 3. Deputy Merritt testified that he noticed a vehicle traveling in the middle of the road with the bright lights activated. The deputy pulled to the side of the road and flashed his bright lights at the oncoming vehicle, then activated his blue lights when the oncoming vehicle did not respond. The oncoming vehicle “seemed to get faster, [and] just kept going.” At this point the deputy turned his vehicle around and began to pursue the vehicle that had just passed by.

¶ 4. After pulling in to a driveway behind Keys and approaching the stopped vehicle, the deputy noticed the smell of alcohol and asked if Keys had been drinking. Keys responded that he had not been drinking. The deputy obtained his driver’s license and retrieved a portable breathalyzer device from his patrol car to administer to Keys. The deputy asked Keys to step out of his vehicle. The deputy then tried to administer the breathalyzer to Keys twice but was unsuccessful because Keys bit down on the blow tube. Keys stated that he could not blow into the device properly because he had a heart murmur. Deputy Merritt asked Keys what he thought he might register on a breathalyzer. Keys responded that he would probably register “a two.” Deputy Merritt understood that to mean a .2 on the breathalyzer. The legal limit is .08. Keys agreed to blow into the device after Deputy Merritt instructed Keys to place his hands on the vehicle to be transported to the sheriffs department for a more thorough blood alcohol content test. Keys agreed to blow into the device a third time rather than be taken down to the sheriffs office to blow into the machine there. The breathalyzer reflected that Keys had a blood alcohol content of .2, well above the legal limit. After Keys failed the breathalyzer, Deputy Merritt asked Keys to place his hands on the vehicle but Keys stated that he was not going to jail. The deputy repeated the command. Keys repeated that he was not going to jail and began to back away from the deputy. Deputy Merritt reached to grab Keys and Keys began to run away. Keys ran behind a nearby shed and tripped over a wire fence. The ground area surrounding the shed was covered with obstructions including: erected wire fence, broken bricks, fallen trees, rocks, and brush. Deputy Merritt pursued Keys and also tripped, causing him to fall on top of Keys. The two men struggled but Keys managing to break free twice.

¶ 5. During the struggle, Deputy Merritt testified that Keys struck him twice, once in the temple area of the head and a second time in the mouth. Deputy Merritt decided not to pursue Keys into the woods alone because he had dropped his portable radio and flashlight during the struggle. Deputy Merritt radioed for backup from his vehicle and three other officers arrived on the scene. Keys was seen pacing and speaking to himself but then ran back into the woods before the deputies could apprehend him. Keys turned himself in to law enforcement two days after the incident. Other relevant facts are discussed in more detail below.

¶ 6. In April 2003, Keys was indicted for the crime of simple assault upon a law enforcement officer under Mississippi Code Annotated § 97-3-7(1) (Rev. 2006). On December 12, 2003, a jury convicted Keys as charged in the indictment. Keys was sentenced to five years imprisonment. His appeal has been assigned to this Court.

DISCUSSION

1. Self Incrimination

¶ 7. Keys argues that his answer to Deputy Merritt’s question, concerning what Keys thought he would register on the breathalyzer, was inadmissible. Keys argues that he was under arrest at the time the question was asked, and should have been given his Miranda warning against self incrimination. Keys concludes that since he was not given his Miranda warning but was in custody, that his statement was inadmissible.

¶ 8. The State argues that the question to Keys was part of a general on the scene investigation. Luckett v. State, 797 So.2d 339, 345 (Miss.Ct.App.2001) (quoting Tolbert v. State, 511 So.2d 1368, 1375 (Miss.1987)). The State argues that the question was asked prior to Deputy Merritt obtaining the probable cause to arrest Keys.

¶ 9. The Fifth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution protect citizens from incriminating themselves. To resolve the issue of whether the statement Keys made was made during a custodial interrogation, and therefore inadmissible absent a waiver of Miranda rights, we must first determine whether Keys was in custody and being interrogated when the statement was made. Mingo v. State, 944 So.2d 18, 25(¶ 12) (Miss.2006). The status of whether a person is “in custody” depends on “if a reasonable person would feel that they were going to jail and not just being temporarily detained.” Id. (citation omitted). Due to the routine nature of the precise issue before us, we do not engage in a detailed analysis of whether Keys was in custody. This Court has previously applied United States Supreme Court precedent in holding that a motorist is not subject to custodial interrogation prior to an arrest. Levine v. City of Louisville, 924 So.2d 643, 644-45 (¶¶ 6-9) (Miss.Ct.App.2006) (discussing Berkemer v. McCarty, 468 U.S. 420, 420-39, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Miranda v. Arizona, 384 U.S. 436, 436-44, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)); see also Millsap v. State, 767 So.2d 286, 289 (¶¶ 7-12) (Miss.Ct.App.2000) (also applying Miranda and Berkemer in concluding that a traffic stop alone is not an arrest or custodial interrogation requiring Miranda warnings).

¶ 10. Keys was being questioned about whether he had been drinking due to the smell of alcohol on him or emanating from within his vehicle. Deputy Merritt testified that Keys twice prevented the portable breathalyzer device from properly producing a reading due to biting down on the mouthpiece. The question to Keys was asked prior to the deputy obtaining an incriminating reading from the breathalyzer device. No arrest had yet been made. Keys was not subject to a custodial interrogation and did not need to receive Miranda warnings at the moment he was asked what he would register on a breathalyzer. The issue is without merit.

2. Sufficiency and Weight of Evidence

¶ 11. Keys argues that the jury convicted him with legally insufficient evidence, and against the overwhelming weight of the evidence presented against him at trial. To support his conclusion, Keys repeats his argument that evidence of his blood alcohol content should not have been allowed into evidence, including his own statement and the breathalyzer result of which Deputy Merritt testified. Keys argues that the evidence could only support a conviction for misdemeanor resisting arrest if the jury would have been allowed to consider the illegality of the arrest. Shields v. State, 722 So.2d 584 (Miss.1998). The minimum relief Keys seeks, based upon Shields, is a reversal of his conviction and a remand for sentencing on misdemeanor resisting arrest.

¶ 12. The trial court denied the defense motion for a directed verdict. We review the issue of whether the evidence was legally sufficient from a perspective that is favorable to the State. Shaw v. State, 915 So.2d 442, 448(¶ 24) (Miss.2005). Evidence is legally insufficient to convict a criminal defendant if a jury could not have found an accused guilty even with all the reasonable inferences in favor of guilt that could have been derived from the evidence. Id.

¶ 13. The State charged and had to prove that Keys “did wilfully, unlawfully and feloniously attempt to cause bodily injury to Danny Merritt by striking [him] in the face and head with his elbow and fists ... [and that] Danny Merritt [was a] law enforcement officer ... acting within the scope of his duty....” The State produced evidence that Danny Merritt was a law enforcement officer acting within the scope of his duty when he encountered Keys. Deputy Merritt testified that Keys “struck [Merritt] in the left temple area.” The deputy also testified that Keys “did a strike to my mouth ... and he rared back for a second strike.... Deputy Merritt testified that Keys used his left elbow while striking him in the temple and such a strike must have been intentional due to Keys having to extend his elbow behind his back to strike the deputy. Deputy Merritt also testified that Keys used his fist when striking him in the mouth. This testimony alone was legally sufficient evidence for the jury to convict Keys of simple assault on a law enforcement officer. The holding of Shields would assist Keys if there was legally insufficient evidence to support his conviction. Shields, 722 So.2d at 585(¶ 7).

¶ 14. The trial court also denied the motion for a new trial. We review the weight of the evidence by viewing the evidence in a light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). In reviewing the evidence, we sit as a limited thirteenth juror and will only disturb the verdict against Keys if allowing it to stand would “sanction an unconscionable injustice.” Id.

¶ 15. in addition to the testimony of Deputy Merritt, Keys testified about his encounter'With the deputy. Keys testified that he had consumed NyQuil, a medication containing alcohol. He testified that he consumed the medicine by drinking it directly from the bottle. Although Keys denied drinking alcohol, thirteen beer cans were found in the toolbox in the back of his truck. An empty beer can was found on the floor of his truck. During his testimony, Keys admitted that he resisted arrest because the deputy was trying to charge Keys for a crime for which Keys claims he did not commit. Keys also admitted that he “may have accidentally hit [Merritt],” but claims that any contact made with his elbow was unintentional. The testimony of both men involved in the altercation and the record before us demonstrates that allowing the jury verdict to stand would not sanction an unconscionable injustice.

S. Evidentiary Errors

¶ 16. Keys argues that the trial court erred in allowing evidence of another crime, erred in allowing the jury to speculate as to the alleged intoxication level of Keys, and erred in allowing parole officer Marion Greene to testify.

Evidence of Other Crimes; Speculation on Intoxication

¶ 17. Keys relies on caselaw to conclude that any evidence regarding alleged intoxication and blood alcohol content should not have been admitted into evidence. Jones v. State, 920 So.2d 465 (Miss.2006) (Rule 403 balancing test acts as a filter for evidence); Young v. Brookhaven, 693 So.2d 1355, 1360-61 (Miss.1997) (Intoxilyzer test is admissible for the purpose of proving probable cause to arrest); Lester v. State, 692 So.2d 755 (Miss.1997) (capital murder conviction and death penalty reversed, in part because prejudicial evidence of sexual abuse admitted at trial); McDonald v. State, 285 So.2d 177 (Miss.1973) (fair trial denied where inflammatory, irrelevant and immaterial testimony pertaining to extraneous issues and unrelated offenses was admitted); Wood v. State, 257 So.2d 193 (Miss.1972) (in a very close evidentiary case, questions about whether the defendant had been in jail were prejudicial, requiring prejudicial answers, and being repeatedly pressed upon the jury, deprived the defendant of due process of law); Watson v. State, 835 So.2d 112 (Miss.Ct.App.2003) (affirming a felony DUI conviction and stating that defendant failed to articulate how an evidentiary ruling of the trial court resulted in prejudice); Price v. State, 752 So.2d 1070, 1077 (Miss.Ct.App.1999) (Intoxilyzer test is admissible for the purpose of proving probable cause to arrest).

¶ 18. The record reflects that the following objections were made at trial. The defense objected to Deputy Merritt testifying about the response from Keys when the deputy asked Keys what he thought the breathalyzer would indicate about his blood alcohol content. Defense counsel objected, stating, “[Your] Honor, I object to this — the hearsay. [Keys] was stopped. [Deputy Merritt] was investigating a crime and hadn’t read him his rights.” The trial judge responded, “[But] the statement was made by the defendant himself. Note your objection and overrule the same.” After Deputy Merritt testified that Keys said that the breathalyzer would reflect a blood alcohol content of “probably about a two,” the deputy was asked about the meaning of “a two.” Defense counsel again objected, stating, “[Your] Honor, objection. He obviously isn’t going to know what he was — he testified what he said the defendant told him. What the defendant meant, he’s not going to be able to testify to.” The trial court ruled that Deputy Merritt could not testify as to what Keys meant by stating “a two.”

¶ 19. No objection was made to the testimony of Deputy Merritt smelling alcohol or about what the results of the portable breathalyzer after Keys properly blew into the device. The objections made at trial were concerning hearsay, and about the deputy explaining what he thought Keys meant -by “a two.” Keys himself later testified that he told Deputy Merritt he would probably register a blood alcohol content of “a two,” but that he was only joking. The testimony of Keys himself clearly reflects that he jokingly communicated to the deputy that Keys was intoxicated above the legal limit. The testimony concerning intoxication was advanced to explain why Keys was being placed under arrest, and why a physical altercation resulted. The evidence was not advanced to prove that Keys was intoxicated, but only that there was probable cause for the arrest. The testimony came into evidence without objection raising the specific argument now raised on appeal.

¶ 20. Failing to make a contemporaneous objection during trial causes Keys to rely on plain error to raise the assignment of error on appeal. Stephens v. State, 911 So.2d 424, 432(¶ 19) (Miss.2005). Concerning objections made at trial, we are “required to consider only that portion of the assignment of error which is related to the specific objection made in the court below.” Williams v. State, 445 So.2d 798, 810 (Miss.1984). The arguments concerning intoxication are waived as they do not amount to plain error.

Testimony of Parole Officer

¶ 21. Keys relies on Watson in concluding that allowing his parole officer to testify was error because there was no balancing test conducted pursuant to M.R.E. 403. Watson, 835 So.2d at 112 (affirming a felony DUI conviction and stating that defendant failed to articulate how an evidentiary ruling of the trial court resulted in prejudice). Keys argues that the testimony communicated to the jury that Keys was a prior convicted felon. The specific concern raised is that a witness was identified as a parole officer and testified that he knew the defendant. The jury was not informed that Keys had any specific acquaintance with the parole officer, or that Keys was under the supervision of a parole officer because of his previous conviction for murder.

¶ 22. After the jury had been selected, but prior to opening statements, the defense raised a concern about Perry County parole officer Marion Greene testifying. The trial judge allowed the officer to be called as a fact witness because the prosecution stated that the officer was not going to say that he was supervising Keys as a parolee. After Officer Greene was called to testify and identified himself, the defense objected to the officer being identified as a parole officer. The trial judge excused the jury and heard arguments from both the prosecution and defense. The trial judge determined that the officer could testify about what took place on the night Keys was involved in the altercation with Deputy Merritt.

¶ 23. Officer Greene was identified as a parole officer and testified to the following. He testified that he had been called out to the scene of the incident. Officer Greene was described to the jury as a “sworn officer” including that he would “carry a gun and a badge and all that good stuff.” Three other officers were already on the scene, two Perry County deputy sheriffs, and an officer from New Augusta. The officers had been called out to back up Deputy Merritt. Officer Greene observed that Deputy Merritt was bleeding and had injuries to his mouth and left eye. Officer Greene testified that he knew the property well because of his relationship with the property owners. The officer testified that he and the other law enforcement officers on the scene searched for Keys on the property until about 7:00 a.m., but were unable to locate him.

¶ 24. An appellate court does not conduct a de novo review on the admissibility of evidence. Jones v. State, 904 So.2d 149, 152(¶ 7) (Miss.2001). Trial courts have the discretion to determine whether potentially prejudicial evidence possesses sufficient probative value. Id. This determination on admissibility is highly discretionary because Rule 403 “does not mandate exclusion but rather provides that the evidence may be excluded.” Id. Our review is confined to “simply determine whether the trial court abused its discretion in weighing the factors and in admitting or excluding the evidence.” Id.

¶ 25. Officer Greene was allowed to testify after the trial judge heard arguments from the parties on the probative value and potential prejudice of the testimony. Although no direct phrase was used to indicate a Rule 403 balancing test was conducted, an implicit Rule 403 balancing test was sufficient. Hoops v. State, 681 So.2d 521, 531 (Miss.1996) (holding that an implicit determination is present even where the “magic words” of a probative versus 'prejudicial balancing test are not stated). The testimony presented does not indicate that Keys and Officer Greene had any relationship. We cannot say that the trial judge abused his discretion in allowing Officer Greene to testify.

k- Prosecutorial Misconduct

¶ 26. Keys argues that the prosecution made an improper and prejudicial comment during opening arguments. The contention is that the prosecutor’s comment is misleading and prejudicial because the simple assault statute provides for an increased penalty for the crime of assaulting a law enforcement officer, not extra protection for law enforcement officers. At trial, the following statement and objection were made during the prosecutor’s opening statement:

[BY THE PROSECUTOR]: This is a simple assault on a police officer, which is a very, very serious crime. We give our officers this extra protection in the law because of the dangerousness of what they do.
[BY DEFENSE COUNSEL]: Your Honor, again, I object. This isn’t anything about what he expects to prove. [THE COURT]: Note your objection and overrule the same.
[PROSECUTOR CONTINUING]: And we give them that protection because they’re, like Danny Merritt, out in the middle of the night protecting us. They’re on the dark, dangerous road. They deal with dark, dangerous people. That’s the reason.

¶27. An improper comment by a prosecutor will cause reversal if “the natural and probable effect of the prosecuting attorney’s improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice.” Flora v. State, 925 So.2d 797, 808(¶ 25) (Miss.2006) (citations omitted). As attorneys, prosecutors have broad leeway in forming arguments. Spicer v. State, 921 So.2d 292, 308 (¶¶ 31-33) (Miss.2006). Prosecutors are restricted from employing “tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Id. A trial judge, not an appellate court, “is in the best position to determine if an alleged objectionable remark has a prejudicial effect.” Id. (citation omitted).

¶ 28. One of the functions of punishing crime is to deter harmful actions from taking place in our society. Protection is given to individuals, and sometimes classes of people like law enforcement, by penalizing actions against them. An increased punishment for a crime functions as a deterrent. A statute providing for an increased punishment for assaulting a police officer does provide extra protection for police. The trial judge was in the best position to determine any danger of prejudice and decided the comment had no prejudicial effect. We agree with the determination of the trial judge.

5. Jury Instructions

¶ 29. Keys argues that the trial court erred in refusing to give instructions D-15 and D-16. Keys argues that the jury was not instructed on his theory of the case, that Keys had the right to resist an unlawful arrest. He argues that the issue of whether an arrest is illegal is a question of fact for the jury to decide. Murrell v. State, 655 So.2d 881, 888 (Miss.1995); Johnson v. State, 754 So.2d 576 (Miss.Ct.App.2000).

¶ 30. Refused instruction D-15 states, “[if] you determine from the evidence that the attempted arrest is unlawful, the Defendant may use reasonable force as is necessary to effect his escape, but no-more. If you find from the evidence that this is what happened, you should find the Defendant not guilty.” Refused instruction D-16 states, “[the] right to resist is limited to those situations where the arrest is, in fact, illegal, and the arrestor and arrestee have reason to know that it is or where the arrest is accompanied by excessive force.” The trial court refused both of these instructions because a determination of whether Keys was being lawfully arrested was not a question of fact for the jury to decide. To prevent any confusion, the jury was instructed on the lesser-included offense of resisting arrest. The claim of error is confined to the issue of whether the jury was properly instructed on the right of a person to resist arrest.

¶ 31. When reviewing for error, jury instructions that were given at trial are to be read as a whole. Phillipson v. State, 943 So.2d 670, 671(¶6) (Miss.2006). No error results “if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law....” Id. (quoting Adams v. State, 772 So.2d 1010, 1016 (Miss.2000)). The instructions must “fairly announce the law of the case and not create injustice.” Id. (citation omitted). A trial court “may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Phillipson, 943 So.2d at (¶ 6) (quoting Adams, 772 So.2d at 1016).

¶ 32. In Johnson, this Court relied in part on Murrell in deciding whether a conviction for assault on a law enforcement officer should stand. There, the jury instruction “allowed the jury to respond with a verdict of not guilty if jurors believed that [the officer] overreacted to events in such a way as to permit [the appellant] to begin resisting.” Johnson, 754 So.2d at 578(¶ 13). We went on to say that even if there was more evidence of an unlawful arrest, “a person may only use reasonable force_” Id. at 579(¶ 14). The supreme court has held that it would be “unreasonable to approve a crime of violence under the name of lawful resistance.” Watkins v. State, 350 So.2d 1384, 1386-87 (Miss.1977). Violent resistance is not reasonable force in resisting what is perceived to be an unlawful arrest. Here, as in Johnson, the jury was given an instruction concerning resisting a lawful arrest. The lesser-included offense instruction D-17 stated in part that if the jury found “beyond a reasonable doubt that the arrest of [Keys] was lawful, and that [Keys] did unlawfully and without justification resist such arrest,” the jury could find Keys guilty of the lesser-included offense of resisting arrest.

¶ 33. In a case similar to the present situation, this Court upheld the refusal of a jury instruction concerning an illegal arrest where the evidence did not support a theory of illegal arrest. Brown v. State, 852 So.2d 607, 611(¶ 14) (Miss.Ct.App.2003) (no right to resist arrest or receive such an instruction where arrest was determined to be legal). In Brown, two officers began to investigate a suspicious vehicle and spotted open containers of alcohol inside the vehicle. Id. at 611 (¶¶ 12-15). The officers then had probable cause to arrest the occupant of the parked vehicle. Id.

¶ 34. Here, Keys filed a motion to dismiss the charge against him because there was no probable cause for Deputy Merritt to have stopped Keys. The trial judge determined that the motion was insufficient to warrant dismissal. Keys testified that he was driving in the middle of the road. The deputy testified that he pursued the vehicle because the driver was traveling in the middle of the road and did not lower the high beam lights when passing an oncoming vehicle. The deputy approached Keys after Keys had pulled into a driveway and parked his truck. The deputy noticed the smell of alcohol when speaking with Keys. The deputy interpreted the statement Keys made about blowing “a two” as an indication that Keys was intoxicated well above the legal limit. The portable breathalyzer test reflected a blood alcohol level of .2 when Keys blew into the device. A bag containing thirteen cans of beer was located in the toolbox in the bed of the truck Keys owned and was driving. There was also an empty beer can in the cab of the truck. No bottle of NyQuil was found in the vehicle. Keys denied having consumed the beer but testified that he would “nip” NyQuil, which contains alcohol, by drinking it directly out of the bottle.

¶ 35. The assault charge resulted from injuries Deputy Merritt sustained when attempting to arrest Keys. The evidence was uncontradicted that Keys engaged in a violent physical struggle with the deputy which resulted in both men sustaining multiple injuries. The trial judge determined that there was a lack of evidence to support an instruction on illegal arrest. The trial judge did not abuse his discretion in denying instructions D-15 and D-16.

6. Cumulative Error

¶ 36. Keys argues that even if the individual claims do not constitute error, their cumulative effect deprived him the right to a constitutionally fair trial. Our analysis of a claim of cumulative error has been described as follows:

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

Powers v. State, 945 So.2d 386(¶ 26) (Miss.2006) (quoting Byrom v. State, 863 So.2d 836, 847 (Miss.2003)).

¶ 37. The record and arguments before us demonstrate that Keys received a fair trial. Keys was entitled to a fair trial, not a perfect trial. Powers, 945 So.2d at 386(¶ 26) (quoting McGilberry v. State, 741 So.2d 894, 924 (Miss.1999)).

¶ 38. THE JUDGMENT OF THE PERRY COUNTY CIRCUIT COURT OF CONVICTION OF SIMPLE ASSAULT OF A POLICE OFFICER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCE IN FORREST COUNTY CAUSE NO. 12,214 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., • CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.