text:
    Oliver ISAAC v. Michael McMORRIS.
    No. 55212.
    Supreme Court of Mississippi.
    Dec. 5, 1984.
    Forrest A. Johnson, Jr., Johnson & Johnson, Natchez, for appellant.
    Edward J. Currie, Jr., Steen, Reynolds, Dalehite & Currie, Jackson, Handy, Fitzpatrick, Gwin, Blough & Lewis, Natchez, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The issue in this appeal is whether a jury request in county court may be withdrawn by the plaintiff without consent of the defendant after the issues have been joined. The suit filed in Adams County Court resulted in a plaintiff judgment without a jury trial. On appeal, the Adams County Circuit Court reversed the county court judgment, and granted a new trial with a jury. This trial resulted in a defendant’s verdict from which the plaintiff appeals. We affirm the circuit court.

Oliver Isaac, plaintiff below and appellant here, assigns as sole error that:

(1) The circuit court erred in reversing the prior judgment of the county court and ordering a new trial for failure of the county court to grant McMorris’ request for a trial by jury.

On June 30, 1979, the appellant, Oliver Isaac, and the appellee, Michael McMorris, were involved in an automobile collision in Natchez, MS. On August 22, 1979, Isaac filed a complaint against McMorris in the Adams County Court, seeking damages based upon McMorris’ alleged negligence in causing the collision. The complaint included a request for a jury trial. McMorris filed an answer on September 20, 1979, denying liability and counter-claiming for damages based upon Isaac’s alleged negligence in causing the collision. McMorris’ answer and counter-claim did not include a request for a jury trial.

On January 14, 1980, when the docket was called for the regular January term of county court, McMorris’ attorneys were not present. At the docket call, acting County Court Judge Robert Netterville announced that the court docket was critically overcrowded and requested that the Bar cooperate by agreeing to try their cases in front of members of the Bar acting as Judge by stipulation and by waiving a jury where possible. Isaac filed a withdrawal of his demand for a jury trial on the same day, and the case was set for a trial without jury on January 24, 1980.

On January 17, 1980, McMorris filed a motion requesting leave to amend his answer in order to incorporate therein a demand for a trial by jury. Following a hearing, Judge Netterville overruled the motion on the grounds that, under Miss. Code Ann. § 9-9-33, a jury trial in a civil case was discretionary under the circumstances.

Following trial, the county court entered judgment for plaintiff/appellant Isaac in the amount of $5,506.94. Defendant/appel-lee McMorris appealed to the circuit court which reversed the judgment on the grounds that the county court should have granted McMorris’ request for a jury trial. Following a new trial in circuit court by jury, a verdict was rendered for McMorris, and final judgment entered thereon.

I.

The issue presented by this appeal is whether the circuit court erred in reversing the prior judgment of the county court based upon the county court’s refusal to grant McMorris’ request for a jury trial.

Article 3, Section 31 of the Mississippi Constitution provides that the right to trial by jury shall remain inviolate. This Court has interpretated that constitutional provision to apply to all cases where the right to trial by jury existed at common law. Carradine v. Carradine, 58 Miss. 286 (1880); Isom v. Mississippi Central R.R. Co., 36 Miss. 300 (1858). See also Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983) (right to jury trial not denied where summary judgment granted); Walters v. Blackledge, 220 Miss. 485, 71 So.2d 433 (1954) (Workmen’s Compensation law not violative of right to trial by jury). Section 31 is limited by section 147 of the Constitution regarding cases wrongfully transferred from the circuit to chancery court. Talbot & Higgins Lumber Co. v. McLeod Lumber Co., 147 Miss. 186, 113 So. 433 (1927).

Likewise, the right of jury trial may be waived by the parties. To accommodate court docketing and procedure and to determine a party’s preference for a jury trial, section 9-9-33 sets forth that procedure, which provides in pertinent part:

Either party to a suit or proceeding in the county court may demand a jury but in civil cases the demand shall be made by the plaintiff, if made by him, with the filing of the declaration, and if made by the defendant, on the filing of his plea; in criminal cases if a jury is desired by either party the demand shall be made at the time the defendant is arraigned. But the court may, in its discretion, allow a jury trial for any cause arising after either of such events.

Appellant Isaac argues that the failure of McMorris to include a request for a jury trial when his initial pleading was filed constitutes a waiver of the right to a trial by jury. Appellee McMorris argues that the request for a jury trial included in Isaac’s complaint inured to the benefit of all parties and that, therefore, the right to a jury trial could not be withdrawn by one party without the consent of the opposing party.

The question presented is one of first impression before this court. A large number of other jurisdictions have statutes expressly stating that a party who has demanded a jury trial may not withdraw such a demand without the consent of the opposing party. Ex parte Merchants National Bank of Mobile, 257 Ala. 663, 60 So.2d 684 (1952); Padgett v. First Federal Savings & Loan Assn., 378 So.2d 58 (Fla.Ct.App.1979); Sewell v. Leifer, 144 Ga.App. 36, 240 S.E.2d 584 (1977); Heidler v. Heidler, 42 N.C.App. 481, 256 S.E.2d 833 (1979); Russell v. Hackett, 190 Tenn. 381, 230 S.W.2d 191, (1950); White Motor Co. v. Loden, 373 S.W.2d 863 (Tex.Civ.App.1964). See generally 90 A.L.R.2d 1162 (1963). The purpose of these statutes is to prevent a party who wishes to avoid a jury trial from trapping his opponent by initially demanding a jury and then, after the time has elapsed for his opponent to make a similar demand, withdrawing the request. 90 A.L. R.2d at 1162.

Miss.Code Ann. § 9-9-33 does not expressly require consent to a withdrawal of a jury demand. Similar statutes in other jurisdictions have been judicially construed as impliedly requiring consent on the grounds that a demand for a jury trial by one of the parties rebounds to the benefit of the opposing party. Wiseman v. Young, 4 Ariz.App. 573, 422 P.2d 404 (1967); Huntsberry v. Millers Mutual Fire Ins. Co., 199 So.2d 196 (La.Ct.App.1967).

This Court concludes that once either party demands a trial by jury the opposing party may rely upon the request for the entire trial. Withdrawal of such request without the stipulation or consent of all parties may not be permitted.

' The Adams County Circuit Court judgment for the defendant/appellee is affirmed.

AFFIRMED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.

WALKER, P.J., and BOWLING, J., dissent.


source: Caselaw Access Project

author: WALKER, Presiding Justice,

license: Public Domain

text:
    Gregory Steven ANDERSON v. STATE of Mississippi.
    No. 55224.
    Supreme Court of Mississippi.
    Dec. 5, 1984.
    John C. Webb, Greenville, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Washington County, Mississippi wherein the appellant, Gregory Steven Anderson, was indicted, tried and convicted of murder. Upon conviction he was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved with the lower court’s holding, he had perfected an appeal to this Court assigning the following as error:

The verdict of the jury was contrary to the overwhelming weight of the evidence and the appellant should be granted a new trial based on the insufficiency of the evidence submitted to the jury to convict him.

On March 25, 1983, a Friday, Susie Hudson, an elderly black female, was found dead. She was lying semi-nude on her kitchen floor with multiple stab wounds to the chest.

A relative, Lela Mae Willis, who lived across the street from Ms. Hudson phoned the police. The phone in Ms. Hudson’s home was found lying under some clothes; dresser drawers in her bedroom had been pulled out and ransacked; and a purse was found torn open on her bed.

An autopsy was performed by Dr. Burrow, a pathologist at the Delta Medical Center. Ms. Hudson’s blood was typed as “B”. She had suffered multiple incised wounds, 27 in all, several of which incised some of her vital organs including the heart. The wounds and resulting hemorrhage resulted in her death. Although it could not be determined which exact wound caused her death, Dr. Burrow testified any of the three in the heart as well as the one in the pulmonary artery would result in death.

The investigating officers found several shoe prints outside the home as well as under Ms. Hudson’s body. Two footprints were found in front of the house and others were found leading down the south side of the home. The soil was soft and muddy from a rain shower the previous Wednesday. A full print in front of the house and a half-print on the side of the house were preserved in plaster. After the body was removed, the print seen under its location was of a similar pattern to those prints found outside the home.

At the time of the incident, the appellant, from Chicago, Illinois, was staying with his grandmother, Lela Willis, her husband and daughter. He had been at his grandmother’s approximately two weeks.

Officer Charles Cochran, major in charge of crime investigation with the Greenville Police Department, was called to the scene. He later went to Ms. Willis’ and asked the appellant to accompany him to the police department for questioning. At the office the appellant voluntarily stated that on Thursday evening he had been with his girlfriend Pam who lived on Shelby Street. He returned to his grandmother’s at approximately 10:30 . p.m. and noticed the lights at his aunt’s house, Ms. Hudson, were on. When he went to bed at approximately 11:15 p.m., the lights were off.

Two days after the appellant arrived at his grandmother’s, his aunt accused him of crawling around on her bedroom floor near her bed and he then informed his grandmother that he would not return to Ms. Hudson’s ever again.

When the appellant was taken to the police department, he voluntarily gave the officer his tennis shoe which had a stain on part of the canvas as well as the shoe lace. The stains were later identified as. human blood of ABO type “B”, the same type as appellant and his aunt. The blood appeared to have dropped straight down on the shoes as opposed to being a spattering pattern or smear.

Again later the same afternoon at approximately 4:30 the officers went to appellant and asked if he would submit to fingerprinting which he voluntarily consented to do. No prints of the appellant were found in Ms. Hudson’s home.

On Saturday the police department received a call that someone had shot into the appellant’s grandmother’s house. The appellant alleged two black males fired at him while he was in the yard stating that “this is for Charlie Mason.” According to Lela Willis, Charles Mason who was in his late 20’s or early 30’s lived with Susie prior to her asking him to move from her home. Two bullet holes were found in Ms. Willis’ home, but the officers concluded the shots could not have been made from the location where the appellant said the two men were standing.

Later that Saturday, the officers contacted Ms. Willis to ask her grandson if they could examine the clothes he was wearing on Thursday. The appellant voluntarily relinquished his jogging suit. On the cuff area of one pant leg there was the presence of blood; however, due to the insufficiency of the stain further testing could not be done.

The tennis shoes worn by the appellant were of the same print as the cast made of those prints found outside Ms. Hudson’s home.

With the above information from the Mississippi Crime Lab on the blood and the print of the shoe an arrest warrant was issued for appellant. The appellant was arrested and brought to the Greenville Police Department on Monday at 11:30 a.m. Officers Cochran and Wynn were present. The appellant was advised of his rights and proceeded to relay the following story: On Thursday at approximately 7:00 p.m. Charlie Mason asked to borrow his shoes and jogging top. He exchanged his shoes with Mason and did not know what Mason planned to do with them. At trial the testimony was that Mason’s shoes were a size IOV2, whereas the appellant’s were a size 8.

After the officers informed the appellant of the information they had on the casts of the footprints and the blood found on his shoes, the appellant related the following story: He saw “Buddy” go to the side window of his aunt’s house and knock. “Buddy” went in and later appellant saw him leave. The appellant went to the back door and went inside and saw his aunt lying on the floor. He called her name, bent over, touched her and pulled her over. Her body rolled over on his feet and he got scared and left and didn’t tell anyone about the incident.

As his story was still inconsistent with the physical facts, he relayed the following which was reduced to writing and signed: On Thursday at about 9:45 p.m. he went to Susie Hudson’s house. He went around to the back and knocked on her window. She asked him to come in. He sat down on the couch and petted her dog. She was drunk at the time and started hugging and kissing him. The appellant asked her to stop and she told him to get out. As he started to leave she ran up behind him with a knife and the two started to tussle. She fell over on the couch at which time the knife went in her. The appellant ran out of the front of the house and then around the side of the home. He went back into the house to see if she was hurt and found that she was going back toward her bedroom. He asked if she was hurt, and she told him she was going to get her pistol and shoot him. He then grabbed her, and it appeared as if she were going to strike him with the knife which was in her left hand. Again the two began to tussle. The knife handle was in appellant’s' stomach, and she fell into the blade of the knife. She fell on the floor with the knife in her hand. The appellant ran out of the house without taking anything with him. When he left the home he went out the back door.

As stated earlier the deceased had been stabbed twenty-seven times.

The appellant, 20 years of age, testified in his own behalf. He admitted giving the police false statements including that which was reduced to writing.

He told the jury he had been visiting his grandmother for approximately two weeks. During that time he had occasion to be at his aunt’s, once to replace her kitchen floor, once to go to the store and again on Wednesday, a rainy day, to borrow a shovel from a shed located behind her home.

The reason that he lied to the police officers was due to threats made to him by two of Charlie Mason’s friends as to “what they would do to his grandmother.” He also stated he was confused because both officers were talking to him at the same time.

On Thursday evening at approximately 9:00 p.m. he went out to find his girlfriend Pam to go walking. • He stated that he had told the police she lived on Shelby Drive; however, he later discovered she lived on Nelson Street. He did not know her last name, and neither he nor the police were able to locate her during the investigation. Unable to find her on that Thursday he returned to his grandmother’s. On his way to the house at approximately 9:15 p.m. he saw a person called “Buddy” knocking on a side bedroom window of his aunt’s house. Under cross-examination he denied seeing “Buddy” knock on the window but stated that he saw “Buddy” when he later saw two people come out of his aunt’s house,

While he was at his grandmother’s house, Ms. Hudson called at approximately 9:30 p.m. She did not state anything was wrong or that her house was being broken into. The appellant then, after the phone call, went out to look for Pam whom he found and they walked for approximately 5 to 10 minutes before he walked her home. On his way back to his grandmother’s at approximately 10:15 he saw two people come out of his aunt’s back door and climb over the gate. He went to his aunt’s and saw her lying on the kitchen floor on her right side. He touched her and she fell back and rolled over on his feet. As he was on his way to tell his grandmother, two men grabbed him and took him behind a neighborhood store where they cut up his back with a razor blade telling him that he had seen too much. (The appellant did not exhibit the wounds or otherwise confirm the fact that he had been cut on his back). They said, “You better not say nothing about this, or what I’m going to do to you grandmother.” They were not specific in exactly how they would harm his grandmother.

The appellant testified he informed Officers Cochran and Wynn about the two males and their threats after he gave his confession. Both officers denied the appellant’s mentioning two friends of Mason who had threatened his grandmother.

The appellant admitted calling the police department as to the shots being fired in his yard. At trial he stated that these two black males gave him a gun, and as they stood in a neighbor’s yard he shot into the house. The men told him to phone the police. They threatened to hurt him if he did not do as they said.

He relayed three possibilities as to how blood stains may have gotten on his shoes: He was with his niece, Keater Commons, when she cut her finger on an easy-bake oven game; he had fallen off of a bicycle and cut his left leg; and he had also cut his finger one day when his grandmother was cooking hamburgers.

Following trial the jury returned its ver-diet of guilty as charged.

On appeal the appellant contends this case tried as a circumstantial evidence case falls within the application of what has become known as the Weathersby rule. See Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).

The appellant’s contention lacks merit. The facts as set forth above clearly take this case out from under the application of the Weathersby rule.

The evidence in this case although largely circumstantial was sufficient to support the jury verdict. There was proof that blood of Ms. Hudson’s type existed on appellant’s shoes; the pattern of which could not have gotten there as he testified. The footprints which were found in the house as well as outside the house were those matching the appellant’s shoes. There were also several conflicting statements made to the police, including a signed confession by the appellant. At the trial and in front of the jury the appellant offered his version as to how the blood could have possibly gotten on his shoes, how the footprints were made inside and outside the house and why he confessed to a crime that he did not commit as well as why he gave prior inconsistent stories to the police.

After hearing the testimony, it then became the duty of the jurors to weigh the evidence before them and judge the credibility of the witnesses whom they had an opportunity to observe as they testified. In Williams v. State, 427 So.2d 100 (Miss.1983), we stated:

We have stated many times that the jurors may accept the testimony of some witnesses and refuse that of others and that they may accept in part and reject in part the evidence on behalf of the State and on behalf of the accused. McLelland v. State, 204 So.2d 158, 164 (Miss.1967). It is not for this Court to pass upon the credibility of witnesses and where the evidence justifies the verdict it must be accepted as having been found worthy of belief. See also Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980).

427 So.2d at 104.

We find that the evidence as presented was sufficient to support the jury verdict.

Finding no errors in the trial below, the conviction and sentence of appellant are hereby affirmed.

AFFIRMED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.


author: SULLIVAN, Justice

text:
    Willie HOUSTON, Jr. v. STATE of Mississippi.
    No. 55241.
    Supreme Court of Mississippi.
    Dec. 12, 1984.

      Willie Houston, Jr., pro se.
    Edwin Lloyd Pittman, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, HAWKINS and SULLIVAN, JJ.
   SULLIVAN, Justice

for the Court:

The Circuit Court of Washington County, Mississippi, entered an order denying a petition for writ of habeas corpus filed on August 29, 1983, by appellant. From that order he appeals.

On December 2, 1982, appellant entered a plea of guilty to the crime of murder before the Circuit Court of Washington County, Mississippi, and was sentenced to life imprisonment. A second indictment of armed robbery against appellant was nol prossed by the state of Mississippi. On August 29, 1983, appellant filed a pro se petition for a writ of habeas corpus, alleging that his confessions and guilty plea were not knowingly and voluntarily made and that the circuit court of Washington County erred in not receiving a transfer of jurisdiction from the juvenile court before hearing his case. The Circuit Court of Washington County entered an order denying the petition for writ of habeas corpus, based upon a transcript in which Houston entered his guilty plea and upon our decision in Bougon v. State, 405 So.2d 101 (Miss.1981), which states that the circuit court has exclusive jurisdiction to hear capital charges against a juvenile.

Appellant assigns two errors:

1. The failure of the trial court to hold that the appellant’s confessions and guilty plea were not knowingly and voluntarily made.

2. Failure of the circuit court to receive certification from the juvenile court to try the case prior to receiving appellant’s guilty plea.

Houston gave two confessions to the Greenville police on September 1, 1982, the day following the crime. Both confessions were signed on a voluntary statement form that acknowledged the reading and waiver of Houston’s Miranda rights. The first statement given from 11:51 a.m. to 12:24 p.m. on September 1, 1982, recounts that Houston participated in the robbery but did not fire the shots that resulted in the death of the owner of Tom’s Grocery. The second statement given by Houston was on the evening of September 1, 1982, from 6:20 to 6:34 p.m. and it reflects that in fact it was Houston who was carrying the gun.

Houston originally pled not guilty to separate indictments for capital murder and armed robbery. On December 2,' 1982, Houston went before the Circuit Court of Washington County to withdraw his not guilty plea and enter a plea of guilty to the charge of murder upon the state’s recommendation as to sentence, life imprisonment. The state moved to nol prosse the armed robbery charge.

The court asked Houston if he wanted to plead guilty to the lesser included charge of murder. He replied, “Yes, sir, cause I was with the man who did it.” Houston, a 16-year-old in the tenth grade, agreed that he had discussed the case with his lawyer, was satisfied with his services and had no complaints about his lawyer. The district attorney stated that the state was prepared to prove that Houston, together with Brown, shot Tom Quan with a pistol while engaged in a robbery. Houston agreed that the district attorney’s statement was substantially correct and the crime the D.A. described was that to which he was pleading guilty.

The court then explained to Houston about the right to a trial by jury, the presumption of innocence, and the burden of proof on the state to prove his guilt beyond a reasonable doubt. The court explained to Houston that his lawyer would have the right to cross-examine the witnesses the state offered and that he could call any witnesses he had to testify before the jury. The court explained that under the law he had a choice as to whether he wanted to testify or not, and if he did not then the jury would not be allowed to presume, just from this fact alone, that he was guilty. The court also explained that he had the right to an appeal if he were convicted.

Houston agreed that he understood what had been explained to him about the jury trial, and that by entering the plea of guilty he gives up his right to trial by jury. He understood that he would be sentenced to life imprisonment. He agreed that no promises or hopes of reward had been made to induce him to enter the guilty plea. He agreed that no threats, force,' coercion or intimidation had forced or intimidated him into entering the guilty plea. He agreed that he was entering this guilty plea freely and voluntarily, and that he was in fact guilty of the crime of murder to which he was pleading guilty.

Houston’s parents agreed that they had conferred with their son and his lawyer about the plea and they understood what was happening.

The court accepted Houston’s guilty plea and sentenced him to the State Department of Corrections at Parchman for the rest of his life and not prossed the armed robbery charge.

On August 29, 1983, Houston filed a petition for writ bf habeas corpus in the Circuit Court of Washington County, Mississippi, alleging that his confessions were the product of lengthy interrogations without the benefit of counsel and that he did not fully understand his Miranda rights at the time he signed the waiver and confessions. Houston alleged that in the lineup the victim’s wife identified him as the person standing by the door. The petition refers to Exhibit C, although no such exhibit is a part of the record on appeal. Houston also alleged that at the time he pled guilty he believed he would be imprisoned in the county jail for no more than one year. Finally, Houston alleged that the circuit court erred in not receiving a certification from youth court to hear the murder charge against him.

Four days later, on September 2, 1988, the circuit court entered an order denying Houston’s petition. Judge Wilkes, who heard Houston’s initial change of plea, found that, based on the transcript, Houston fully understood his constitutional rights and his plea of guilty was freely and voluntarily made. The court rejected Houston’s contention that the circuit court lacked jurisdiction because the case was not properly certified from Youth Court to Circuit Court. The court noted that certification was not necessary under Mississippi Code Annotated § 43-23-29 (1972), as construed by Bougon v. State, 405 So.2d 101 (Miss.1981), in which the Court held that the circuit court has exclusive jurisdiction to hear cases where the minor is charged with any crime which upon conviction is punishable by life imprisonment or death.

Finally, with regard to sentencing, the court rejected Houston’s contention that the Youth Court Act was not considered by the court to transfer his case to the Youth Court. The court noted that petitioner’s attorney never filed a motion to transfer. The court noted that the statutory alternative for sentencing minor offenders under Mississippi Code Annotated § 43-21-159(3) (1972) was considered but rejected in light of Houston’s juvenile record and the seriousness of the crimes committed. The court found that it would not be in the best interest of either Houston or the public for him to be committed tó a state institution for delinquents, a county jail, or placed on probation.

I.

WERE HOUSTON’S CONFESSIONS AND GUILTY PLEA KNOWINGLY AND VOLUNTARILY MADE?

Houston raises for the first time in his brief the contention that his attorney told him he would try to get him ten years if he pled guilty to murder.

The circuit court may dismiss a petition for writ of habeas corpus summarily, without an evidentiary hearing, if an examination of the petitioner’s papers reveals that the claims are manifestly without merit. Sanders v. State, 440 So.2d 278, 284 (Miss.1983). In Sanders, we also noted that:

The thoroughness with which Sanders was interrogated by the Circuit Court at the time the plea was tendered may well be the most important evidence of all. For, without regard to the advice or instructions Sanders may have been given by his attorneys, the Circuit Court’s questioning of Sanders and explanations to him of his rights and of the consequences of his plea may (we emphasize, may) have been sufficient to render the plea voluntary without regard to anything else.

Id. at 288.

Houston’s contention that he entered his plea of guilty on the firm representation by his counsel of a lenient sentence dissolves before the light of the transcript which reveals that the trial judge told Houston that life imprisonment was the only sentence that could be imposed in his case. Houston’s acknowledgment of the trial court’s mandatory duty to sentence him to life imprisonment appears on its face to rebut Houston’s now-claimed anticipation of a lenient sentence.

Houston’s contention that he was tricked into signing a waiver of his rights and only confessed to the murder after eight hours of persistent repeated questioning is not borne out by the record. The voluntary statement form on the first confession reflects that questioning lasted for 34 minutes. The second statement reflects that the questioning ended after 14 minutes. The fact that these statements are in the form of a written narrative, rather than a transcript of taperecorded conversations forecloses any evaluation by the circuit court or by this court as to the manner in which Houston was interrogated. However, Houston’s decision to enter the guilty plea meant that no hearing was held on the issue of whether Houston’s confessions were voluntarily given.

As noted in Sanders v. State, supra, a guilty plea constitutes a waiver of Houston’s right against self-incrimination. While Houston’s confession in open court that he was guilty of killing Tom Quan, may be rendered ambiguous by his prior statement that he was with the man who did it, this ambiguity is not sufficient to render involuntary his plea of guilty. The first confession paints Houston as an accomplice; his second confession indicates he was the triggerman. There is no indication in this record or in Houston’s briefs that he entered his guilty plea relying on representations by either the court, the district attorney, or his own counsel that he would receive a lesser sentence as an accomplice. To the contrary, he was repeatedly told that the only sentence that could be imposed in his case was life imprisonment.

The trial court’s interrogation of Houston in qualifying his plea of guilty clearly reveals that he was not offered any promises or hopes of reward for the plea of guilty, nor was he coerced, threatened or intimidated into making that plea. We noted in Sanders that where an accused asserts that he lied about the absence of any threats or promises and disregarded warnings as to sentence in hopes of a more lenient sentence, the accused may be entitled to relief. 440 So.2d at 287-88. Houston, however, does not contend that he lied about the absence of threats or promises; nor can he reasonably contend that he expected a more lenient sentence in view of the trial judge’s crystal clear admonition that life imprisonment was the only sentence he could impose. The circuit court’s explanation to Houston of his constitutional right to trial by jury and the other protections afforded to him as an accused, coupled with Houston’s unqualified acknowledgment that life imprisonment was the only sentence he could receive, were sufficient to render his plea voluntary without regard to anything else under the rule in Sanders v. State.

Houston’s claim that his confessions and guilty plea were involuntary and not knowingly made are manifestly without merit.

II.

DID THE CIRCUIT COURT HAVE EXCLUSIVE JURISDICTION OVER HOUSTON’S CASE?

Yes. § 43-23-29 Mississippi Code Annotated (1972) provides that the circuit court shall have exclusive jurisdiction over any child thirteen years of age or older if he be charged with any crime which, upon conviction, is punishable by life imprisonment or death. In Bougon v. State, 405 So.2d 101, this Court affirmed the conviction of a 16-year-old male who pled guilty to armed robbery and was sentenced to fourteen years in the Mississippi Department of Corrections. Bougon sought transfer of jurisdiction to the youth court of Lincoln County, but the trial judge denied the motion to transfer. In Houston’s case, no motion to transfer to the youth court was filed. Therefore, the Circuit Court of Washington County retained exclusive jurisdiction to hear his case under § 43-23-29. In Bougon, the accused also petitioned to be sentenced by the circuit court under § 43-21-159(3), which provides the alternative punishments which Houston seeks to invoke on appeal. Houston made no petition for sentencing under this statute, however, the order denying the petition for writ of habeas corpus reflects that the trial judge considered the statutory alternatives for sentencing minor offenders under § 43-21-159(3). It was the trial judge’s opinion that considering Houston’s juvenile record and the seriousness of the crimes committed it would not be in the best interest of Houston to transfer his case to the youth court. It was also the trial judge’s opinion that it would not be in the best interest of Houston or the public welfare to commit him to a state institution for delinquents, to a county jail, or to place him on probation.

Houston’s second assignment of error is without merit.

Based upon the record and the law set out above, we find that the Circuit Court of Washington County was correct in denying the petition for writ of habeas corpus and in that action the trial court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


author: ROBERTSON, Justice,

text:
    Ricky WARD v. STATE of Mississippi.
    No. 54508.
    Supreme Court of Mississippi.
    Dec. 12, 1984.

      Robert E. Buck, Walls, Buck & Irving, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

On overwhelming evidence Ricky Ward has been convicted of armed robbery, kidnapping and forcible rape and has been sentenced to life imprisonment on each conviction, the three sentences to be served consecutively. Our only serious legal concern on this appeal is that Ward was tried under a single indictment stating the three charges as three separate counts.

The facts and circumstances giving rise to the three charges against Ricky Ward arose out of a single series of occurrences on July 24, 1981. On that day Theresa Nolen was driving north from Jackson on Interstate Highway 55 toward Memphis with her ultimate destination being Tulsa, Oklahoma. She had left Jackson at approximately midnight and became sleepy shortly before reaching the Como Exit in Tate County. She pulled off the highway onto the shoulder to take a rest just past the Como Exit. Shortly thereafter, two males, Ricky Ward and James Artis Gilmore, one carrying a gun, accosted her. At gunpoint they searched her purse and took $159 and a pocket calculator. Immediately thereafter, they placed Nolen in the backseat of their car alongside Ward while Gilmore drove. Nolen was forced to lie down low on the backseat whereupon Ward raped her. A short time thereafter, the two men returned Nolen to her car and left.

The legislature of this state has enacted that kidnapping [Miss.Code Ann. § 97-3-53 (Supp.1984)], forcible rape [Miss.Code Ann. § 97-3-65(2) (Supp.1984) ], and armed robbery [Miss.Code Ann. § 97-3-79 (Supp.1984) ] are separate and distinct offenses. There is no legal impediment to the State’s mounting of three separate prosecutions, even where, as here, the three offenses arise out of a common nucleus of operative fact. Ohio v. Johnson, _ U.S. _, 104 S.Ct. 2536, 2540-41, 81 L.Ed.2d 425, 433 (1984); Pharr v. State (Miss.1984); Smith v. State, 429 So. 2d 252, 253 (Miss.1983). Our only question is whether all three offenses may be charged in the same indictment and heard at the same charge. We do not write on a clean slate. In Stinson v. State, 443 So.2d 869, 872-873 (Miss.1983), we held that a defendant may not be tried for two or more distinct crimes charged in separate counts of a single indictment and receive two separate sentences in one and the same proceeding. Multi-count indictments have been condemned further in Bennett v. State, 451 So.2d 727, 728-729 (Miss.1984); Johnson v. State, 452 So.2d 850, 852-853 (Miss.1984); and Friday v. State, 462 So.2d 336, 338 (Miss.1984). In Johnson v. State, we held that the illegality of multi-count indictments in this state was so clear that, even where the point was not assigned as error, the Court should notice it on its own motion. Johnson v. State, 452 So.2d at 853.

On the other hand, the protections afforded in Stinson and Johnson are personal to the accused. We have recognized that there is no error in consolidating for trial separate and distinct indictable offenses where the defendant has so requested. See, e.g., Frost v. State, 453 So.2d 695, 696 (Miss.1984). There are reasons known to any experienced criminal defense lawyer why in some cases it would be to the defendant’s advantage to have all charges tried at once.

In the case at bar, Ward made no objection to the multi-count indictment. Indeed, he affirmatively requested that the proceeding against him on all three charges be consolidated for pre-trial and trial purposes. It appears that this step was a part of the overall defense strategy of defense counsel, albeit ultimately unsuccessful. On this record, we find and hold that Ward has consciously waived any objections he may have had to the multi-count indictment. Under these circumstances the plain error rule announced in Johnson has no force and affirmance is required.

We have carefully considered the other issues presented on this appeal and find that each is wholly without merit. We will recount these briefly:

A.

Ward points to the fact that the State utilized all of its peremptory challenges to exclude black persons from the jury and contends that this constitutes impermissible racial discrimination. Absent proof of continuous and systematic and purposeful use of peremptory challenges by the prosecution in Tate County to exclude black persons from juries, this claim simply is not viable. It was authoritatively rejected in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). It has been repeatedly rejected in this Court, most recently in Booker v. State, 449 So.2d 209, 222 (Miss.1984); and Mason v. State, 440 So.2d 318, 319-320 (Miss.1983). Applying these authorities to this record, Ward is entitled to no relief.

B.

Ward makes a two-pronged assignment of error regarding the search of his car. First, Ward claims that the search warrant pursuant to which his car was examined was not returned within the statutory period. Second, even after a motion was made by Ward’s counsel and sustained by a court order, Ward’s counsel complains that he was not provided with an inventory of the items which would be used as evidence in the trial that were found in Ward’s car.

The first type of error assigned — based on when the warrant was returned — is quickly disposed of by the case of Meyer v. State, 809 So.2d 161 (Miss.1975):

It certainly was not an unreasonable delay and, in any event, appellant made no showing that he was in any way prejudiced by the delay in returning the warrant.
309 So.2d at 166; see also Cole v. State, 237 So.2d 443, 445 (Miss.1970) (failure to make return on search warrant does not invalidate search and make related testimony incompetent).

The second error assigned — that an inventory of the contents was not provided to Ward’s attorney — strikes a curious note for two reasons. Defense counsel was present when the vehicle was searched, when items were removed, and when an inventory was given to the police investigator. He clearly knew what had been seized. At no time during the trial did Ward’s counsel move for a continuance or indicate in any way that Ward’s defense had been disadvantaged by this failure of the prosecution to furnish Ward’s counsel with an inventory (of what was already within Ward’s counsel’s knowledge). Under these circumstances the assignments of error are rejected.

C.

Ward argues that the prosecuting attorney made prejudicially improper arguments to the jury. This is a frivolous assignment of error. Ward’s counsel behaved outrageously throughout the trial. The prosecution’s final argument, if anything, was understated and mild-tempered. Because Ward’s counsel had injected himself so thoroughly as a factor in this trial, it would have been nearly impossible for the prosecution to have ignored his behavior. The fact that the prosecution failed to dwell upon the evidence adduced at trial is no more than an indication of how clear cut and overwhelming the evidence against Ward was.

D.

Finally, Ward claims that he has been denied effective assistance of counsel in the conduct of his defense in violation of rights secured to him by the Sixth and .Fourteenth Amendments to the Constitution of the United States. The current standards for evaluating such claims are found in Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Stringer v. State, 454 So.2d 468, 476-477 (Miss.1984); Thames v. State, 454 So.2d 486, 487 (Miss.1984). Without inquiring into the ineffectiveness criteria derived from Strickland v. Washington, it is clear that Ward’s claim here flunks the prejudice test. A fundamental reason why no prejudice can be demonstrated in this case is that it is clear from the record that Ward is hopelessly guilty. This overwhelming evidence of guilt makes the determination by the jury in this case thoroughly reliable. Accordingly, the errors of trial counsel— and they were many — were not so serious as to deprive Ward of a fair trial, a trial whose result is reliable. Strickland v. Washington, _ U.S. at _, 104 S.Ct. at 2068-69, 80 L.Ed.2d at 698-99. We have carefully reviewed the record of all proceedings in this case. Suffice it to say that we are unable to conclude from the record that Ward’s trial counsel was constitutionally ineffective. See Read v. State, 430 So.2d 832, 841 (Miss.1983).

AFFIRMED.

ARMED ROBBERY, KIDNAPPING & RAPE; LIFE SENTENCE ON EACH COUNT TO RUN CONSECUTIVELY.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.


author: ROBERTSON, Justice, WALKER, Presiding Justice,

text:
    Sharon WILSON v. STATE of Mississippi.
    Misc. No. 1754.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    Tom P. Calhoun, III, Greenwood, for appellant.
    No briefs for appellee.
   ROBERTSON, Justice,

for the Court:

Sharon Wilson has been convicted in the Circuit Court of Carroll County, First Judicial District, of the crime of embezzlement and has been sentenced to three years in the custody of Mississippi Department of Corrections. On June 26, 1984, she perfected her appeal to this Court. See Rule 48, Miss.Sup.Ct.R.

The matter is here today on Wilson’s motion for an enlargement of time within which to review and examine of the court reporter’s notes for proposed corrections and suggestions. The motion was denied by the Circuit Judge on grounds that the Circuit Court had lost jurisdiction of the matter. Appellant Wilson applies here for the same relief she had sought and was denied in the court below.

We are of the opinion that the question presented is one within the concurrent jurisdiction of this Court and of the Circuit Court. Thus, the Circuit Court had the authority to entertain Wilson’s motion.

By way of analogy, this Court has recognized its authority over trial court reporters respecting matters relating to the preparation and filing of the trial transcript. Brown v. City of Water Valley, 319 So.2d 649, 651 (Miss.1975). We have also recognized the authority of the trial court to grant the court reporter an extension of time to complete the transcript after the appeal has been perfected. Haralson v. State, 308 So.2d 222, 223 (Miss.1975); State v. Autry, 236 Miss. 316, 320, 110 So.2d 377, 378 (1959). Such motions are no doubt heard under the authority of Miss. Code Ann. § 9-13-37 (1972).

The instant motion is made on the authority of Section 9-13-35. That statute provides that upon completion of the transcript the court reporter shall file same with the clerk of the court where the case was tried with each party having a limited opportunity for study of the transcript for the purpose of examination and correction. The statute expressly provides that, if corrections or suggestions as to alterations are made by either party, those shall be presented “to the trial judge”. By virtue of this statutory empowering law, the trial judge still has jurisdiction regarding matters touching the preparation of the transcript and the record for appeal.

Notice of appeal has been filed on June 26, 1984, and jurisdiction of this case is now vested in this Court. This Court’s jurisdiction is concurrent, however, not exclusive, with respect to subject matter of the instant motion. The Circuit Court has, concurrent with the jurisdiction of this Court, full authority to entertain any and all matters relating to the preparation, correction and perfection of the transcript and record for this appeal, including matters relating to the time within which the various duties must be performed.

In cases such as this where, after an appeal has been perfected, one party or the other seeks an extension of time for the purpose of examination and study of the transcript or record, the motion should in the first instance be filed with the clerk of the court where the trial was had. Such motion is necessarily addressed to the sound discretion of the trial judge. The motion should be granted .only where reasonable grounds are advanced in support thereof. If the motion should be denied by the trial judge, the moving party may then apply to this Court for relief, for, as indicated above, the jurisdiction with respect to these matters is concurrent. ■ '

In the case at bar, the trial judge denied the motion because he was of the opinion that he had no jurisdiction to entertain it. This, was error. In order to facilitate the matter and avoid unnecessary expenditures of time and motion, and because reasonable cause has been stated for the granting of the motion, we provide here that the Appellant, Sharon Wilson, shall have through and including December 21, 1984, within which to complete her review and examination of the court reporter’s notes.

MOTION FOR TIME EXTENSION TO REVIEW AND EXAMINE COURT REPORTER'S NOTES GRANTED.

ROY NOBLE LEE, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.

WALKER, P.J., and BOWLING, J„ dissent.

PATTERSON, C.J., not participating.

WALKER, Presiding Justice,

dissenting:

The majority opinion will do no more than add confusion to the law, bring dismay to the lawyers and frustration to the judges.

Therefore, I dissent from the holding of the majority that Mississippi Code Annotated section 9-13-35 (1972) gives the circuit court the authority to grant an enlargement of time to the parties on an appeal for them to review and examine the court reporter’s notes for proposed corrections and suggestions.

Section 9-13-35 (1972) provides as follows:

When the notes shall be transcribed, the court reporter shall mail or deliver personally, to each attorney or firm, shown by the record to be interested in the case, written notice that the notes have been forwarded or delivered to the clerk of the court, and shall append to the copy of his notes his certificate of the fact that such notice has been so mailed or delivered, giving the names and addresses of the attorneys or firms so notified. It shall be the duty of the court reporter upon the completion of the transcript of his notes to deliver in person or forward the transcribed notes by registered mail or express, to the clerk of the court where the cause was tried. For ten days after the date of mailing of the notice by the court reporter, the appellant’s counsel shall have the use of the notes for the purpose of examination and correction, at the expiration of which time the appellant’s counsel shall deliver or mail the notes to one firm or attorney representing the ap-pellee, appending to the notes or endorsing thereon a certificate showing the date when the notes were so mailed or delivered. The appellant’s attorney shall also append any written suggestion or proposed correction in the notes. The appellee’s counsel shall be entitled to have the use of the notes for five days from the date of the mailing or delivery of the same by the appellant, for the purpose of examination or suggesting corrections therein, and at the end of five days the notes shall be returned to the clerk. If neither party shall suggest any corrections, the notes shall upon their return to the clerk by the appellee become a part of the record. If corrections or suggestions as to alterations be made by either party, the clerk shall forthwith deliver in person, mail or express, the notes with all suggested corrections, to the trial judge, who- shall make such corrections as may be proper and forthwith return the transcript of the notes to be corrected to the court reporter, who shall make all such corrections as the trial judge shall direct, and return the same to the judge within ten days, who shall thereupon sign and return the notes to the clerk of the court, which shall be considered a correct transcript. But if both parties to the litigation, or their attorneys, shall enter upon the court reporter’s notes, or file in the supreme court a written agreement that the same as originally filed, or as subsequently modified by agreement, are correct, such transcribed notes shall become a part of the record in the case without the approval of the trial judge. (Emphasis added).

That section does not say and cannot honestly be construed to mean that the circuit court has the authority to grant additional time to attorneys for examination of the record.

For many years this Court has held that once an appeal has been filed in this Court that the Court has exclusive jurisdiction of all matters concerning said appeal except as provided by statute. Today’s holding will do nothing but add to the delay in reaching a final determination of cases and will add to the backlog of this Court.

In my opinion the circuit judge was imminently correct in overruling the appellant’s motion for time for lack of jurisdiction based on well-established and long-standing law.

BOWLING, J., joins this dissent.

      . In the exercise of their discretion with respect to these matters, we are confident that the trial judges will keep well in mind the problem of overall delay in the appellate process becoming so critical today for the courts and counsel, the litigants and the public.


author: PRATHER, Justice,

text:
    BOARD OF TRUSTEES OF the HATTIESBURG MUNICIPAL SEPARATE SCHOOL DISTRICT v. Peggy G. GATES.
    No. 54216.
    Supreme Court of Mississippi.
    Dec. 12, 1984.

      W. David Watkins, William L. Smith, Brunini, Grantham, Grower & Hewes, Jackson, Moran Pope, Pope & Pope, Hat-tiesburg, for appellant.
    Thomas M. Matthews, Jr., Parsons & Matthews, Wiggins, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The basic issue in this, appeal involves the constitutional question of free speech balanced against the substantial evidence rule in a teacher non-renewal case. Peggy G. Gates was not reemployed by the Board of Trustees of the Hattiesburg Municipal Separate School District (the Board), and appealed that decision to Forrest County Chancery Court asserting that her non-reemployment was because of her exercise of her constitutional right of free speech in speaking out against the Board, participation in teachers’ organizations, and grand jury investigations. The chancery court reversed the Board’s decision finding that non-reemployment was due 'to Gates’ participation in constitutionally protected speech and ordered that Mrs. Gates be reinstated.

The School Board appeals and argues:

(1) That the chancery court erred by substituting its judgment for that of the school board’s where the school board’s was supported by substantial evidence.

(2) That the non-renewal decision would have been made even in the absence of Mrs. Gates teacher organization and grand jury participation.

(3) That the non-renewal decision was made upon a rational basis to promote a legitimate educational interest.

We reverse and reinstate the School Board’s non-renewal decision.

I.

Peggy Gates had served as a school teacher within the Hattiesburg system for 18 years. She spent 6 years teaching third grade students, a total of eight years teaching fourth, fifth and sixth grade students and 4 years teaching eighth grade students. She was a member of and served as officer to the Hattiesburg Association of Educators (HAE) and was a member of the Mississippi Association of Educators (MAE). She was elected by fellow teachers to represent Mary Bethune Elementary School on the Professional Affairs Committee, a laison group between teachers and the school administration. Gates actively participated in the HAE, MAE, and Professional Affairs Committees in promoting improvements in her profession.

Mary Buthene Elementary School principal, Pricilla Walker, refused to recommend Peggy Gates for reemployment for the 1981-82 school year. The grounds for such refusal were: (1) inadequate and/or improper classroom instructional skills; (2) excessive absences from the classroom; (3) refusal to abide by school policy with respect to leaves of absence; and (4) unprofessional conduct.

(1.) This is the key point for the first reason for the non-renewal, i..e., improper classroom instruction. Mrs. Gates’ sixth grade class contained three different reading levels, and each level used a different basic reader. Mrs. Walker directed Mrs. Gates to place each student physically within his/her group. It was suggested that the group be formed as a circle providing a better instructional environment. Principal Walker accused Gates of not following directives to organize her classroom for reading purposes according to the reading level of the students. Mrs. Walker discussed these matters with Dr. Spinks, Superintendent of Education.

Gates answered this charge by stating that her students were in their proper groups, but instead of requiring each student to move his/her desk, she merely kept the desks in straight rows and allowed the students to change seating arrangements. She contended that this provided a good instructional environment with minimal class disturbance.

Also cited as improper skills was excessive homework and improper testing. Charles Davison, professor at USM, had a son who was taught by Peggy Gates during the 1979-80 school year. Davison complained that his son was being subjected to excessive homework that amounted to no more than busy work. He stated that his son was often kept up until 11:00 or 11:30 at night attempting to complete his homework. Davison visited the school on one occasion and discovered Gates absent from the room. Davison’s son had told him previously that she often left the room unattended. Davison’s son related that he felt intimidated and his likeness for school was turning to hate.

Based upon Davison’s experience as an educator and what his son had told him, it was his opinion that Mrs. Gates should not be rehired as an elementary school teacher. Davison, however, had no knowledge of Gates’ conduct during the 1980-81 school year.

Gates countered these charges with proof that Davison’s son was an A-B student and was very capable of handling the workload. She knew of his exceptional abilities and often encouraged him to enter essay contests, several of which he won or placed. Parents who testified in Gates’ behalf had nothing but praise for her ability to motivate and educate their children.

Under the self-improvement goal setting program, meetings were held between Principal Walker and the teachers of Mary Bethune in October and November, 1980. Mrs. Gates refused to set goals for herself, terming herself adequate in the areas evaluated. Mrs. Walker suggested that Gates participate in the inservice programs to increase instructional skills. She also suggested that Gates improve in areas of motivation of students. Mrs. Walker commended Gates for providing a conducive learning environment and establishing good rapport with her students. While testifying, Walker termed this as a compliment only upon the decor of the classroom.

(2.) Excessive absences from the classroom was cited as another reason for non-reemployment. Principal Walker testified that Mrs. Gates suffered a diuretic problem and had to make frequent trips during the day to the bathroom. Gates stated that if such was the case she had Mrs. Lockett watch the children or obtain the teacher next door to watch. Lockett corroborated this, but stated that these absences often lasted for 10 to 15 minutes and occurred up to five times a day. Lockett also testified that Mrs. Gates frequently left the classroom to make or receive personal phone calls at times when she was not on break.

One occasion cited by Walker as illustrative of this problem was when the HAE then asked the PEER committee to investigate the system. Mr. Rubinsoff, a representative of the PEER committee, contacted Mrs. Gates for an interview on November 19, 1980 at 1:30 p.m.' On November 18, the principal, Mrs. Walker, was not present at the school. Elaine Lockett, the school secretary, was left in charge. Lockett, as well as Gates and other teachers, testified that this is normal procedure. Mrs. Gates notified Mrs. Lockett that she would be out of her room from 1:30 until 2:30 (the end of the school day) on the 19th. Mrs. Gates’ regular break was from 1:05 until 1:35. Normally during this break time, Gates took her students to the library where they were watched. On this particular occasion, Mrs. Gates took the students to the library, and Mrs. Lockett obtained an aide to watch the children from 1:35 until 2:30. Four weeks later, Mrs. Gates received a letter of reprimand from Mrs. Walker for failure to notify her about the absence.

(3.) In addition to inadequate instruction methods and excessive absences from the classroom, Mrs. Gates was accused of taking three days personal leave without approval. Mrs. Gates’ husband, Bob Gates, was a vice-president of Hattiesburg Grocery Company. His employer, W.T. Russell, required him to go to an annual convention held in March of each year in Chicago. Russell highly recommended that Bob take Mrs. Gates to the convention. Mrs. Gates had gone each prior year in which Bob was required to go. Mrs. Gates followed the proper procedure in submitting the request for personal leave form to her principal, Walker, asking for leave on March 16, 17 and 18, 1981. This request was returned to her denied by Superintendent Spinks, his reason being that this particular request was becoming an annual occurrence. Gates was aware that she had accumulated over 20 days of sick leave. Feeling that she was not being treated fairly, Gates talked with Board member, Charles Phillips, who advised her of a new leave policy which had been adopted which required the deduction of $25.00 per day from a teacher’s salary to pay for the substitute teacher. Phillips advised her to resubmit her request with the new policy attached, which she did on February 23, 1981. Mr. Russell contacted Phillips and explained to him the situation with the convention. He felt that he had put Mrs. Gates in a bad position and wanted to clear up the matter.

Phillips advised Gates that Spinks had not gotten her second request. Gates and her husband then went to Spinks’ home to hand him another request form at which time Spinks asked Gates to meet with him the following day in his office. Gates charged that at this meeting Spinks accused her of backing him into a corner by going over his head. At this point Spinks volunteered the statement that Gates’ involvement with the grand jury and PEER committee had nothing to do with the denial of leave. The following week the sealed request was sent back denied.

Still feeling unfairly treated, Mrs. Gates decided to go on the three day trip anyway, despite being denied leave. On March 6, 1981, Gates left a note with Elaine Lockett indicating her intentions to be absent from class on the 16th, 17th and 18th. The note requested that a substitute be obtained, and it also advised that her lesson book was in the desk drawer. Gates saw that Mrs. Lockett gave the note to Walker outside the school building. A substitute was obtained for the three days, and Gates went on the trip. Mrs. Gates’ request for personal leave was the only such request denied during the 1980-81 school year.

(4.) The fourth and final charge against Mrs. Gates was unprofessional conduct. Pricilla Walker and others by affidavit accused Mrs. Gates of speaking derogatively about the abilities of her students to persons outside the school system. Gates acknowledged that many of her students could not do simple math problems. Further, she expressed a great deal of frustration over the fact that many of her sixth graders were working math on a second grade level. In order to properly attempt to bring these students up to level it was necessary to use lower level workbooks. Many of her students could not solve simple math problems. The only suggestion Mrs. Walker made was to make the test easier. The charges against Mrs. Gates alleges that she accused the teachers of the lower grades of not properly teaching the students math. Gates denies these allegations, but admits voicing her frustrations that the students were not on grade level.

An additional charge of unprofessional conduct grew from an occurrence in the teacher mail room. Mrs. Gates was aware that another teacher, Martha Hayes, had submitted a personal leave request on February 23, 1981, the same day her own request for leave for the trip to Chicago was submitted. Mrs. Hayes had requested leave to attend a program in which her daughter was performing at another school. Boxes are provided in the teachers’ lounge for the receipt of mail for each teacher, which boxes are open and cannot be locked or sealed. Mrs. Gates stated that in an effort to see whether Mrs. Hayes’ request had been approved, she looked into Mrs. Hayes’ mailbox, which was located directly above her own. Gates stated that she was able to see that the unfolded request had been approved. Gates was able to view the request without removing it from Mrs. Hayes’ box. She viewed the request in the presence of Mrs. Walker. Walker testified that the request was folded over and that in an effort to view it, Gates removed it from Hayes’ box and unfolded it. Other teachers corroborated Gates’ testimony that unfolded or uncovered mail can easily be seen without taking it from the boxes.

There was testimony from Buddy Watkins, athletic director, and Billy Rogers, principal, at Hawkins Junior High School that at a board meeting in April or May, 1981, Spinks told the principals of each school to evaluate disgruntled teachers closely. Concern was centered around remarks made about the school system and the fact that some teachers were not taking complaints through the proper chains of command. Reese Snell, principal of Blair High School, also related that Superintendent Spinks discussed some teachers who were not being loyal in every aspect. He mentioned two schools specifically, neither of which was Mary Bethune.

II.

Gates challenged the non-reemployment, claiming that the true reason of her dismissal was that she had exercised her First Amendment constitutional right to free speech.

When the July 1979 Grand Jury convened Mrs. Gates was selected as foreperson. This Grand Jury, as well as all of those of the past, investigated public agencies within its jurisdiction, including the Hattiesburg, Forrest County, and Petal School Systems. Dr. Sam Spinks termed the 1979 investigation mild as opposed to those of the past. Criticisms of the school system were made in the areas of equipment and building maintenance. Criticisms cited by Gates as having the most effect against her concerned the fact that the Hattiesburg system earned more revenue than other systems investigated, yet it paid a less expense percentage for teachers’ salaries than the other systems. Spinks was unable to say whether past Grand Juries had investigated teachers’ salaries but he did consider the 1979 report as favorable.

One incident that occurred which Mrs. Gates termed as intimidating to her was the fact that she was forced to go to Spinks’ home to pick up subpoenaed documents. Spinks had earlier refused to deposit the documents with the circuit clerk. Gates had advised the District Attorney of her fear of losing her job, and he assured her that he would help in any way he could.

Gates’ Grand Jury participation came at a time when she was teaching the sixth grade at Woodly Elementary School. She was transferred without request to Mary Bethune Elementary School for the 1980-81 school year, where she was assigned to the sixth grade. Spinks cited problems with handling students as a reason for her transfer. These problems cropped up during the 1979-80 school year. However, during the preceding year (1978-79) school year, as shown by her professional staff rating form, she was categorized as an excellent teacher and was recommended for reemployment by the principal, Liz Myers. Likewise, her rating for the 1979-80 school year was termed excellent again by Mrs. Myers and she again was recommended for reemployment. Prior to her transfer Mrs. Gates was serving as president of the HAE.

After the transfer in September of 1980, as president of the HAE, Gates participated in the drafting of a resolution requesting that the School Board comply with the state law requiring that the Board pay teachers for their preschool services during August by issuing paychecks during that month. This resolution was submitted to Dr. Spinks who had on a prior occasion stated that the Board did not recognize the HAE. The resolution was not adopted.

In December, 1980, Gates and about 18 other teachers appeared on a local news program and publically spoke out against administration policies involving teacher rotation, lack of pay during first month of school, PEER committee investigations, intimidation by the school administrators, and problems with standardized test scores.

In February, 1981, Gates as president of the HAE, requested professional leave to go to Jackson as a lobbyist for the Mae education bill. She had gone to Jackson in previous years for this reason and felt as an officer of HAE, she should have been allowed to go in 1981. Dr. Spinks denied her request. Spinks likewise denied the request of five others to go to Jackson for the same reason, two of whom were at the time involved in litigation against the school. No reason was cited on any of the leave forms for the denial. Of the six requests, four had the approval of the prin-icipal only to be disapproved by Spinks. At the hearing Spinks cited lack of substitute teachers as a reason for the denials. Only one other professional leave request was denied during the 1980-81 year. Gates claimed that her request was denied because of her activities with the teacher organizations, grand jury investigations and the TV news program, and not because of lack of substitutes. Also, this was the first time Gates had ever been denied professional leave.

Hearing Officer Frank Montegue found that any one of the four charges would as a matter of law call for dismissal. He felt that the evidence supporting these charges was substantial and that Mrs. Gates’ activities were not the cause of her non-renewal. The Board followed his recommendation and refused to rehire Peggy Gates for the 1981-82 school year.

Upon appeal the Chancery Court found that there were no procedural guarantees under the School Employment Procedures Act of 1977, Miss.Code Ann. § 37-9-101 et seq. (1980 Supp.) that had been violated. However, the chancery court reversed the Board’s decision, on two grounds: (1) that under local school district rules of the Hat-tiesburg Municipal Separate School District that the School District had failed to meet its own imposed burden of proof to show that non-reemployment was rationally related to some legitimate, educational interest of the District and (2) violation of her federal and state constitutional rights of free speech. The Board’s decision was reversed by the Chancery Court and Mrs. Gates was ordered reinstated for the 1981-82 school year and also that she was entitled to be recommended for the 1982-83 school year, since the deadline for recommendation of teachers had passed.

III.

There is no contention by Mrs. Gates that statutory procedural requirements of timely notice and hearing were not met in this case. McDonald v. East Jasper County School District, 351 So.2d 531 (Miss.1977); Jackson v. Board of Education of Oktibbeha County, 349 So.2d 550 (Miss.1977); Board of Trustees of Pass Christian Municipal Separate School District v. Acker, 326 So.2d 799 (Miss.1976).

There is no contention here that public school teachers have tenure, and that the school board is required to justify its decision for non-reemployment. On appeal a reviewing court is limited to considering that a non-reemployment decision was (1) supported by substantial evidence, (2) not arbitrary or capricious, (3) not beyond the power of the administrative agency to make, or (4) violated some state or constitutional right of the complaining party. Tanner v. Hazelhurst Municipal Separate School District, 427 So.2d 977 (Miss.1983); Calhoun County Board of Education v. Hamblin, 360 So.2d 1236 (Miss.1978); McCormick v. Attala County Board of Education, 407 F.Supp. 586 (N.D.Miss.1976).

IV.

Initially in this opinion, this Court stated that in this case the decision here balances the free speech right of an individual teacher against the substantive evidence rule in a teacher non-renewal employment case.

Freedom of speech is guarded by both federal and state constitutions as the essence of a democracy. U.S. Constitution, Amendments I and IV, Mississippi Constitution, Art. 3, Sec. 13.

Under the United States Supreme Court decisions, non-renewal of a teacher’s contract predicated upon a teacher’s exercise of First Amendment rights of free speech has been prohibited. Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). In the Mt. Healthy case, supra, the Supreme Court stated that the burden of proof was on the teacher to show that the conduct was constitutionally protected and that such conduct was a substantial factor in the Board’s decision. If the teacher meets this initial burden, then the board must show by a preponderance of the evidence that it would have made the same decision as to the teacher’s reemployment in the absence of the protected conduct.

Under state decisions, this Court has also addressed non-reemployment teacher cases in which constitutional rights allegedly were violated. In Tanner v. Hazelhurst Municipal Separate School District, supra, this Court stated that:

“Initially the burden [of proof] is placed on the teacher to show that his conduct was constitutionally protected, and that such conduct was a ‘substantial factor’ in the board’s decision not to rehire.” Once that teacher has carried that burden, the board must show by a preponderance of the evidence that it would have made the same decision as to the teacher’s reemployment even in the absence of the protected conduct.” (Citing Mt. Healthy City School District Board of Education, supra).

See also Calhoun County Board of Education v. Hamblin, supra.

Applying these guidelines to the instant case, this Court addresses first whether there was substantial evidence to support the Board’s decision. A detailed summary was outlined of the testimony of Principal Walker, a teacher of 34 years experience with a master’s degree, and AAA teaching certificate. The record contains many allegations of Ms. Walker and Superintendent Spinks and denials by Mrs. Gates. The Board as the factfinder judged the credibility of the witnesses and determined that Mrs. Walker had made a proper employment decision. There is substantial evidence to support the Board’s finding. The one incident of Mrs. Gates’ insubordination in taking personal leave when it has been denied is sufficient alone to justify the substantial evidence requirement. Even though Mrs. Gates’ request was the only personal leave request denied during the school year, Mrs. Gates acted without permission.

The Board found that the decision of the superintendent and principal to not recommend reemployment was not in retaliation of Mrs. Gates’ exercise of First Amendment constitutional rights.

On appeal, the chancery court found to the contrary that Mrs. Gates’ exercise of free speech was a substantial factor in the Board’s decision not to reemploy. Although the Board found as a fact that no constitutional infringement was present, let us analyze this case under the Mt. Healthy rule. Let us assume that Mrs. Gates’ proof was sufficient to show that she had protected free speech rights, the exercise of which played a substantial part in the board’s decision. Under the Mt. Healthy test, a court must go further to determine “if the board had shown by a preponderance of the evidence that it would have reached the same decision as to [teacher’] reemployment even in the absence of the protected conduct.” If the same outcome would have been reached, the decision not to rehire does not necessarily amount to a constitutional violation justifying remedial action.

The evidence presented on behalf of Peggy Gates shows that her activities, beginning with the Grand Jury investigation up through her request for leave to go with her husband, conflicted with Superintendent Spinks. Principal Walker stated that her decision to not recommend Gates for reemployment came in mid-March 1981. Two things happened in March.

First, Gates had a confrontation with Spinks in his office where he allegedly ac-. cused her of stabbing him in the back by going over his head. Second, Gates decided to go to Chicago on personal leave despite being denied leave. While the decision to not recommend Gates for reemployment was allegedly made in mid-March, Gates did not receive notice of such decision until April 3. This was approximately two weeks after her trip to Chicago. There is substantial evidence in the record to indicate that as Peggy Gates became more out-spoken against the administration she became more disfavored by the administration. On the other hand, there is also substantial evidence to show that Mrs. Gates was, at least in past years, a dedicated and talented teacher who held good rapport with most of her students and was categorized as an excellent teacher.

The decision not to reemploy Gates was made not because of her activities, but rather for her regard of school policy in taking leave without permission. The underlying reasons for the denial of leave are not relevant; only the fact that she left without permission is relevant. This reasoning supports the proposition that the constitutionally protected activities were not a “substantial factor” in the non-reemployment decision, as well as for the proposition that Gates would not have been reemployed anyway because of her insubordination in leaving without permission.

Section 37-9-111(4) Miss.Code Ann. (1972) states in part:

The board shall review the matter presented before it, or, if the hearing is conducted by a hearing officer, the record of the proceedings and, based solely thereon, conclude whether the non-reemployment determination is a proper employment decision, and shall notify the employee in writing of its final decision and reasons therefor.

The Board of Trustees is required by statute to make the ultimate employment decision on all teacher dismissal and non-renewal cases. If there is any credible evidence to sustain the decision of the administrative body’s finding of facts, then those findings should not be overturned, even on conflicting evidence.

The administration offered substantial and credible evidence of reasons why it recommended non-renewal of Mrs. Gates. Since Mrs. Gates is nontenured, that finding of fact by the School Board must be respected.

V.

One additional topic needs to be addressed. The chancery court, reversed the board’s decision on an additional ground, and that was the Rules of Procedure of the Hattiesburg Municipal Separate School District. The rules provide that the school district has the burden of establishing that the decision was rationally related to some legitimate educational interest of the district. The chancellor considered this to be a substantive right granted to the teacher by the board, and he found no evidence to show that it would be detrimental to the school system to retain this teacher.

In the case of Connick, District Attorney In And For The Parish of Orleans, La. v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) the United States Supreme Court addressed a discharge of a government employee allegedly in violation of free speech guarantees. There the Court stated, as this Court has stated here, that the Court’s task is to balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 461 U.S. at 142, 103 S.Ct. 1686, quoting Pickering v. Board of Education, 391 U.S. 563, 568, 20 L.Ed.2d 811, 817 (1968). The Court stated that “a public employee had no right to object to conditions placed upon the terms of employment, including those which restricted the exercise of constitutional rights.” 461 U.S. at 143, 103 S.Ct. at 1688.

The language of Connick, supra, touches on this very issue, and we quote:

When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer’s dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable. ...
We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.

461 U.S. at 146-47, 103 S.Ct. at 1690.

Certaining Mrs. Gates’ participation as fore-person of the grand jury and her interview with the Peer Committee related to issues of public concern. The appearance of Mrs. Gates and others on a local news program addressed both issues of public concern and matters of personal interest. “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form and context of a given statement as revealed by the whole record.” Connick, supra at 147-48, 103 S.Ct. at 1690.

Other comments on the newscast involved teacher rotation, lack of pay during the first month of school, and problems with standardized scores do not address matters of public import in evaluating the school system.

But in view of the entire record, conceding that Mrs. Gates exercised constitutional rights which entered into the board’s decision not to reemploy, there is still a viable and valid reason alone to not rehire for reason of insubordination. That fact alone cannot be sidestepped and it alone supports the board’s determination.

This Court, therefore, concludes that the chancery court should be reversed and the order of the Hattiesburg Municipal Separate School District reinstated.

REVERSED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P. JJ., and BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.

SULLIVAN, J., not participating.

      . See Weatherford v. Martin, 418 So.2d 777 (Miss.1982), Jerry Martin and Laura Jo Edwards were both denied leave to go to Jackson as lobbyists.