author: DICKINSON, Presiding Justice, WALLER, Chief Justice, CHANDLER, Justice,

text:
    MISSISSIPPI VALLEY SILICA COMPANY, INC. v. Rutha EASTMAN as Administratrix of the Estate of Robert Eastman, II.
    No. 2010-CA-00924-SCT.
    Supreme Court of Mississippi.
    July 19, 2012.

      Charles G. Copeland, Ridgeland, Laurie R. Williams, Andy Lowry, Ridgeland, John D. Cosmich, Michael D. Simmons, Lakey-sha Greer Isaac, Jackson, attorneys for appellant.
    John T. Givens, Jackson, Timothy W. Porter, Ridgeland, Patrick C. Malouf, R. Allen Smith, Jr., Ridgeland, attorneys for appellee.
    Before DICKINSON, P.J., RANDOLPH and PIERCE, JJ.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. In this lawsuit, Robert Eastman claims Mississippi Valley Silica Company, Inc. (“MVS”) — the company that supplied sand to his employer, Marathon LeTour-neau — failed to warn him of the dangers posed by sandblasting. At trial, MVS requested a sophisticated-userAearned-inter-mediary jury instruction. Although the requested instruction was an incomplete statement of the law, the trial judge refused the instruction for an erroneous reason and failed to instruct the jury properly on the submitted defense. The jury returned a verdict for Eastman, and MVS timely appealed, raising eight issues, including the trial judge’s refusal to grant the sophisticated-user jury instruction. We find this issue dispositive, and we reverse and remand for a new trial.

FACTS

¶ 2. For twenty-eight years, Robert Eastman worked as a sandblaster at Le-Tourneau, a shipbuilder in Vicksburg, Mississippi. LeTourneau supplied silica sand it purchased from MVS to Eastman, who used it daily. Toward the end of his career, Eastman was diagnosed with lung disease and silicosis.

¶ 3. Eastman sued MVS under Mississippi’s products-liability statute, alleging that MVS’ product was defective for failure to contain adequate warnings or instructions. MVS answered, asserting many affirmative defenses, including the provisions of Section 11-1-63 and the sophisticated-user doctrine.

¶ 4. At trial, Dr. Edward Karnes testified that in 1938, and again in 1959, national safety standards were published that required sandblasters to wear air-fed hoods. Dr. Ronald Gots testified that the dangers of sandblasting were known and published in the 1920s and 30s, and that legislation was passed in 1959 — four years before Eastman began sandblasting — that required sandblasters in certain professions to wear air-fed hoods. Dr. Gots concluded that, given the information provided to Le Tourneau, it “had to know” of the dangers posed by sandblasting. Additionally, LeTourneau’s former president testified he had known since 1972 that sandblasting may cause silicosis.

¶ 5. MVS requested a sophisticated-user jury instruction, which the trial judge refused for two reasons. First, he stated the term “sophisticated user” was not defined and would “confuse” the jury. Second, he could recall no direct testimony that Eastman’s employer knew or should have known of the dangers associated with sandblasting.

¶ 6. The jury found MVS sixty percent at fault, and awarded Eastman $3 million in punitive damages; $1.6 million in economic damages; and $3 million in noneco-nomic damages, for a total award of $7.6 million. But because MVS was insolvent, the trial judge reduced the punitive-damages award to zero. Then, after applying Mississippi’s statutory damages cap, he reduced the noneconomic damages to $1 million. After the jury rendered the verdict, but before the trial judge entered final judgment, Eastman died. Later, the trial judge entered a final judgment for Eastman, the deceased.

¶ 7. On appeal, MVS raises the following eight issues: (1) Eastman’s estate was not properly substituted; (2) the trial judge erred by refusing to give MVS’ sophisticated-user jury instruction; (3) the verdict form did not allow the jury to allocate fault under Mississippi Code Section 85-5-7; (4) the fault allocated to MVS was against the overwhelming weight of the evidence; (5) because Eastman had died, damages for future medical costs and future pain and suffering should not have been awarded; (6) the trial judge erred by allocating fault to MVS before applying the damages cap; (7) the issues raised amounted to cumulative error; and (8) a remittitur was proper. MVS also moved to strike the brief Eastman (the deceased) filed in this Court, arguing that, because Eastman’s estate has not been substituted, the party who had filed the brief did not exist.

¶ 8. We find that the circuit judge abused his discretion by denying, rather than reforming, MVS’ proposed “sophisticated-user” instruction. Because we reverse and remand for a new trial, we decline to address the remaining issues.

ANALYSIS

¶ 9. The issue we find dispositive is the trial judge’s failure to instruct the jury on the sophisticated-user defense. Because our standard of review of that issue is critical to our decision, we first turn to our considerable precedent that addresses a trial judge’s ultimate responsibility to instruct the jury properly.

When a party submits an improperly worded jury instruction that raises a central issue in the case, and that is supported by credible evidence, it is the trial judge’s ultimate responsibility to make sure the instruction is reformed properly.

¶ 10. Several of our cases provide familiar principles of law concerning jury instructions. When read together, the instructions must inform the jury sufficiently of the applicable law. A party is entitled to have instructions given that are supported by sufficient, credible evidence and that accurately state the law of the case. Defendants are entitled to instructions presenting their theory of the case, and we have reversed judgments where circuit judges have “eviscerated the defense ... by denying the defendants’ theory instructions ... which compromised the defendants’ right to a fair and impartial trial.

¶ 11. But another principle, ingrained in our law, places upon the trial judge the ultimate duty to instruct the jury properly. Our precedent on the issue was addressed succinctly in Byrd v. McGill, in which the trial judge refused to give a flawed jury instruction on the law of negligence per se. This Court reversed, stating:

The result of the refusal of instruction P-6, coupled with the failure of anyone to substitute a more suitable instruction, was that the jury entered their deliberations unaware that there was such a thing as negligence per se. Much less, did they know that it had any bearing on the case.

¶ 12. In reaching its conclusion, the McGill Court reviewed several prior decisions, including Newell v. State, which stated:

On occasion juries have been left uninstructed due to the oversight, omission or ineptness of attorneys.... Regardless of the reason, the fact remains that juries are at times left groping blindly, though honestly, for the law of the case to aid them in arriving at a verdict.

¶ 13. The Court then turned to Thomas v. State, in which this Court

emphasized that where an instruction relates to a central feature of the case and where there is no other instruction before the court which treats the matter, it is error to refuse an instruction on the grounds that “it has been inartfully drawn.”

¶ 14. Finally, the McGill Court, drawing on the wisdom of Harper v. State, stated “unequivocally” that

where under the evidence a party is entitled to have the jury instructed regarding a particular issue and where the party requests an instruction which for whatever reason is inadequate in form or content, the trial judge has the responsibility either to reform and correct the proffered instruction himself or to advise counsel on the record of the perceived deficiencies therein and to afford counsel a reasonable opportunity to prepare a new corrected instruction. When the trial judge fails in this duty and where the proffered instruction relates to a central issue in the case which is not covered by any other instruction given to the jury, we will reverse.

¶ 15. The dissent incorrectly concludes that our opinion today “unwisely imposes a duty upon the trial court to reform the jury instruction to make it conform with Mississippi law.” But that duty was imposed long ago by this Court’s majorities in McGill, Newell, Thomas, and Harper and applied as recently in 2001 in McKee v. State — and none of these cases has been overruled, modified, or abrogated. In fairness, the dissent is less about whether we are today imposing a new duty, and more about the dissent’s view that we should overrule McGill, New-ell, Thomas, Harper and their considerable progeny on this issue. We decline to do so.

¶ 16. We do agree with the dissent that a trial court may — and, in fact, should — refuse to give jury instructions that incorrectly state the law. But that does not diminish the principle that, where the point of law is a central issue not covered elsewhere in the instructions, the ultimate responsibility to instruct the jury properly falls squarely upon the trial judge, who

has the responsibility either to reform and correct the proffered instruction himself or to advise counsel on the record of the perceived deficiencies therein and to afford counsel a reasonable opportunity to prepare a new corrected instruction.

¶ 17. So, today, we are not imposing a new duty on trial judges, but rather, we are merely following nearly a half-century of precedent that clearly defines the trial judge’s duty. And according to that precedent, where a trial judge fails in that duty, “we will reverse.” Indeed, our own Court of Appeals has recognized and applied the rule we follow today. In Cleveland v. State — joined fully by members of the dissent when they served on that court — the Court of Appeals stated that

the law of this State is quite clear that the trial court may not refuse to instruct the jury on a properly raised defense strictly because the requested instruction is not properly drafted. Rather, it is the duty of the court in that situation to amend the instruction to conform to the applicable law.

¶ 18. As they did in Cleveland, the members of the dissent continue now to recognize the trial judge’s duty to reform inaccurate instructions in criminal cases, but they hold the view that there should be no such duty in civil cases. We cannot agree that a trial judge’s duty to instruct the jury properly may change from case to case, whether civil or criminal.

¶ 19. Our opinion today should not be read as requiring trial judges to rummage through the law books to discover what jury instructions might apply to the case. In Conner v. State, even though “[t]he defense tendered no instruction defining simple murder,” it argued on appeal that the trial court

was duty-bound not only to revise technically flawed instructions but also to advise defense counsel that a definitional instruction would also have to be submitted and then provide an opportunity to prepare such an instruction.

¶ 20. Rejecting the argument, this Court stated that “[t]he case law does not impose upon a trial court a duty to instruct the jury sua sponte; nor is a court required to suggest instructions in addition to those which the parties tender.” Our opinion today is not in conflict with Conner.

¶ 21. The rule is as simple as it is appropriate: When a party submits a jury instruction on an important issue not covered in the other instructions, it is the trial court’s ultimate duty to instruct the jury properly. Having again set forth the rule and the law applicable to the trial judge’s duty with respect to jury instructions, we now turn to the case before us.

MVS properly raised the sophisticated-user defense, but it submitted an inaccurate instruction that should have been reformed by the trial judge.

¶ 22. Mississippi recognizes both a statutory and the common-law “sophisticated-user” defense. We will address both.

“Sophisticated-user doctrine” at common law

¶ 23. First, it is worth noting that courts and litigants often use the terms “learned intermediary” and “sophisticated user” interchangeably. According to one commentator:

The sophisticated user defense relieves a seller of liability for failing to warn a subsequent user of dangers or defects of which the user is already aware. The defense is applied in two situations: (1) where the injured ultimate user is aware of the hazards presented by the product; (2) where an intermediate purchaser is knowledgeable, but the injured end user is ignorant.

¶24. Although the latter situation is properly labeled the “learned-intermediary” defense, the context and facts of a particular case will dictate which label is appropriate, regardless of the label actually used. The commentator goes on to explain why the defense can relieve a manufacturer of liability:

The common law sophisticated user defense developed in the context of industrial users and employer-employee relationships .... The relationship between employer and employee probably provided the basis for the defense. As a general rule, an employer has a duty to maintain a safe workplace for its employees, including maintenance of safe equipment and warning of any dangers present in the workplace.

¶ 25. While the common-law defense is uniformly recognized, states have not always agreed on the correct application. This Court addressed the common-law defense in Swan v. I.P., Inc., in which a manufacturer supplied polyurethane foam to a contractor, who applied it to the roof of a school. A teacher sued the manufacturer and others, alleging the foam’s fumes injured her. The trial court granted summary judgment to the manufacturer

based on the “learned intermediary” defense to products liability actions which provides that a manufacturer’s duty to warn may be discharged by providing information to a third person upon whom it can reasonably rely to communicate the information to the ultimate users of the product or those who will be exposed to its hazardous effects.

¶ 26. This Court stated that the “learned-intermediary defense does not relieve the manufacturer of its duty to warn ... unless the manufacturer’s reliance on the intermediary is reasonable.” And because material issues of fact existed as to that question, this Court reversed.

¶27. We now turn to MVS’ proposed instruction, which stated:

If the purchaser of silica [LeTourneau] knew or should have known the dangers that may be associated with silica, then the purchaser is a sophisticated user, and a supplier [MVS] has no duty to warn of those dangers.

¶ 28. We find no merit in the trial judge’s stated reason for refusing the instruction. Indeed, the instruction, itself, defined a sophisticated user (in the context of this case) as one who “knew or should have known the dangers that may be associated with silica.” But even if the trial judge had been correct, that is, had the term not been defined, then the trial judge would have been in error for failing to define it for the jury.

¶ 29. We do find that the instruction was improperly worded, not for the reason stated by the trial judge, but because it failed to include the common-law, reasonable-reliance requirement announced in Swan. And because the trial judge refused the instruction, rather than reforming it as required by Newell, Thomas, Harper, and McGill, we must reverse and remand for a new trial.

“Sophisticated user” under Mississippi statute

¶ 30. A few months after this Court handed down Swan, the Mississippi Legislature passed what has come to be known as Mississippi’s products-liability statute. While statutes often supersede the common law, the products-liability statute does not. It specifically provides: “Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.”

¶ 31. One subsection of the products-liability statute codifies the sophisticated-user doctrine by stating in relevant part:

In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section [failure to contain adequate warnings or instructions], the manufacturer or seller shall not be liable if the danger posed by the product is known ... to the user ... of the product. ...

¶ 32. Unlike its common-law companion, the statutory defense includes no requirement of reasonable reliance. Instead, all that is required under the statute to shield a seller from liability is that the “user or consumer” knew of the dangers posed by the product. Both parties and the trial court took the position that Le-Tourneau was the user. In arguing against MVS’ proffered sophisticated-user instruction, Eastman’s counsel stated

that a sophisticated user is a legal term as defined under the learned intermediary doctrine, and there has been, as the court said, no testimony with respect to the learned intermediary doctrine and what Mississippi Valley may have done to apprise LeTourneau of the known hazards.

¶33. The trial judge rejected the instruction, in part, because he could not recall direct testimony that LeTourneau knew of the dangers of silica.

¶ 34. Section 11-1-63 does not define “user,” and this Court has never addressed the issue. One reasonably could say that LeTourneau was the “user” because it used sand in its business. If so, MVS’ proffered instruction was a correct statement of the law and should have been given.

¶ 35. But one also reasonably could say that, because Eastman used the sand to do the sandblasting, he was the user. If so, the instruction was flawed and should have been reformed by the trial judge by striking the word “purchaser” and substituting the word “user.” And to the extent the trial judge felt the term “sophisticated user” would confuse the jury, his remedy — rather than refusing the instruction— was to provide the jury with a definition sufficient in his judgment to remove the confusion; but he failed to do that here.

¶ 36. Because we must reverse under the common-law application of the defense; and because neither of the parties briefed or addressed the meaning of “user” as it is used in the statute, we decline to address it here.

CONCLUSION

¶ 37. MVS submitted a flawed jury instruction on the sophisticated-user defense, as recognized by Mississippi common law. The trial judge committed reversible error by refusing, rather than reforming, the jury instruction. We therefore reverse the judgment of the circuit court and remand the case for a new trial consistent with this opinion.

¶ 38. REVERSED AND REMANDED.

CARLSON, P.J., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. WALLER, C.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED IN PART BY RANDOLPH, J. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ.

WALLER, Chief Justice,

concurring in result only:

¶ 39. I concur with the majority’s decision to reverse and remand for a new trial based on the trial court’s failure to instruct the jury on the sophisticated-user defense. The judge’s stated reasons for refusing the instruction were: 1) that there was no testimony that Letourneau knew or should have known of the dangers associated with silica, and 2) the jury would be confused by the term “sophisticated user” because there was no testimony as to what that term meant. However, as the majority recognizes, Letourneau’s former president testified that he knew that sandblasting may cause silicosis. Further, the instruction posed by MVS defined what a sophisticated user was. Accordingly, the judge erred in denying the instructions based on his stated reasons. Because of this error, I concur with the majority in reversing and remanding for a new trial. However, the error by the trial judge was in refusing the instruction and not in failing to reform the instruction. Accordingly, I concur in result only.

RANDOLPH, J., JOINS THIS OPINION IN PART.

CHANDLER, Justice,

dissenting:

¶40. The majority rewards MVS’ failure to discern the applicable law in Mississippi and to tender a jury instruction correctly stating that law. In accordance with long-established precedent governing jury instructions in civil cases, I would find that MVS’ failure to tender a proper jury instruction is fatal to its argument. I respectfully dissent.

¶ 41. The sophisticated-user instruction proffered by MVS stated:

If the purchaser of silica [LeTour-neau] knew or should have known the dangers that may be associated with silica, then the purchaser is a sophisticated user, and a supplier [MVS] has no duty to warn of those dangers.

The majority argues that this “sophisticated-user” instruction was an attempt to assert the learned-intermediary defense, which this Court recognized in Swan v. I.P., Inc., 613 So.2d 846 (Miss.1993). In Swan, this Court held that the learned-intermediary defense “provides that a manufacturer’s duty to warn may be discharged by providing information to a third person upon whom it can reasonably rely to communicate the information to the ultimate users of the product or those who will be exposed to its hazardous effects.” Swan, 613 So.2d at 851.

¶ 42. The majority’s argument is flawed for two reasons. First, the jury instruction was not an attempt to assert the learned-intermediary defense articulated in Swan. The jury instruction did not reference the learned-intermediary defense at all. Reasonable reliance is an element of the learned-intermediary defense. Swan, 613 So.2d at 851. The jury instruction omitted that element. By omitting that element, the jury instruction did not invoke the learned-intermediary defense. I would find that the jury instruction was so flawed that it did not function as an attempt to assert the learned-intermediary defense.

¶ 43. Second, assuming, arguendo, that the jury instruction did invoke the learned-intermediary defense, the majority unwisely imposes a duty upon the trial court to reform the jury instruction to make it conform with Mississippi law. The proposition that the trial court must reform an inai'tfully drawn jury instruction, on a central issue in the case not covered by any other instruction is well-established in criminal cases. In Byrd v. McGill, 478 So.2d 302, 305 (Miss.1985), this Court imported that principle into the civil arena, stating that, while the “other cited cases arose from criminal cases, there is no good reason for countenancing the evils they condemn merely because they arose in a civil action.” Id. In dissent, Judge Roy Noble Lee disagreed, stating, “I do not believe that the law of this state or decisions of this Court place the onus upon the trial judge to prepare litigants’ cases for them.” Id. (Lee, P.J., dissenting).

¶ 44. Despite Byrd, in numerous, more recent, civil cases, this Court has adhered to the principle that the trial court will not be held in error for refusing a jury instruction that is an incorrect statement of the law. See, e.g., Dooley v. Byrd, 64 So.3d 951, 962 (Miss.2011); Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 474 (Miss.2010); Inv. Res. Servs. v. Cato, 15 So.3d 412, 423 (Miss.2009); Blake v. Clein, 903 So.2d 710, 720 (Miss.2005); DeLaughter v. Lawrence County Hosp., 601 So.2d 818, 823 (Miss.1992); Gregg v. Four Squires, Ltd., 498 So.2d 362, 364 (Miss.1986). “While a party is entitled to jury instructions that present his theory of the case, this entitlement is limited; the 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.” Young v. Guild, 7 So.3d 251, 259 (Miss.2009). This principle recognizes that the drafting of jury instructions by the parties is a vital part of the adversarial process, in which each party strategically seeks to have his view of the case placed before the jury. Viewed in that light, MVS’ jury instruction omitted the element of reasonable reliance, because MVS did not want the jury to consider that element. Indeed, MVS does not argue on appeal that the trial court should have reformed the instruction, but continues to argue that the jury instruction was a correct statement of the law.

¶ 45. The rule announced by the majority today will place an enormous burden upon trial judges in this state. I use this case as an example. The majority finds that MVS’ submission of its incorrect jury instruction triggered a duty for the trial court to reform the instruction. The majority holds that, because MVS did not identify the correct law, the trial court should have researched the issue, crafted a jury instruction with the correct language, and tendered it to MVS for approval. Such a process will be unduly burdensome for a trial judge in the midst of a lengthy civil trial. And this process subverts the adversarial nature of judicial proceedings by placing the onus on the trial court, rather than the parties, to craft the jury instructions. Finally, the rule encourages a litigant to tender incorrect jury instructions in the hope that, if the jury decides against him, he can demand a new ■trial on appeal, because the trial court should have reformed the instructions. I soundly reject the majority’s finding that the trial court should have reformed MVS’ jury instruction.

¶ 46. Moreover, even if MVS had tendered a jury instruction that conformed with the learned-intermediary defense announced in Swan, the instruction should have been denied, because there was no evidence that MVS discharged its duty to warn “by providing information to a third person upon whom it cfould have] reasonably reified] to communicate the information to the ultimate users of the product or those who will be exposed to its hazardous effects.” Swan, 613 So.2d at 851. “The learned intermediary defense does not relieve the manufacturer of its duty to warn, however, unless the manufacturer’s reliance on the intermediary is reasonable.” Id. at 856. In Swan, this Court found that it was disputed whether the manufacturers sent any information or warnings to the intermediary. Id. Here, there was no showing that MVS relied on LeTourneau to communicate information to end users, or that any reliance on LeTourneau to do so would have been reasonable. Because there was no evidence that MVS provided information to a third party on whom it reasonably could rely to communicate the information to the end user, MVS did not discharge its duty to warn. Therefore, MVS was not entitled to a jury instruction on the learned-intermediary defense.

¶ 47. I briefly discuss whether the jury instruction was a correct statement of the law under Mississippi Code Section 11 — 1— 68(e), which states:

In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer or seller shall not be liable if the danger posed by the product is known or is open and obvious to the user or consumer of the product, or should have been known or open and obvious to the user or consumer of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons who ordinarily use or consume the product.

Miss.Code Ann. § ll-l-63(e) (Rev.2002). Again, MVS’ proffered jury instruction stated: “[i]f the purchaser of silica [Le-Tourneau] knew or should have known the dangers that may be associated with silica, then the purchaser is a sophisticated user, and a supplier [MVS] has no duty to warn of those dangers.” (Emphasis added.) The plain language of the statute refers to a “user or consumer” of the product, not a “purchaser.” Thus, under the clear statutory language, the danger must be known or open and obvious to the user or consumer of the product before the defense applies. And in determining whether the danger posed by the product was known or open and obvious, the fact-finder must take into account the “characteristics of, and ordinary knowledge common to, the persons who ordinarily use or consume the product.” Therefore, the knowledge of a third party who purchased the product used or consumed by the plaintiff is immaterial. The plain language of Section 11-I-63(e) indicates it was not crafted to shield the manufacturer from liability if the purchaser knew of the danger, but the actual “user or consumer” of the product had no knowledge of the danger and it was not open and obvious to that person. Rather, the statute clearly focuses on the knowledge of the actual “user or consumer” of the product. I would And the jury instruction to be an improper statement of the law under Mississippi Code Section II-l-63(e).

¶ 48. For these reasons, I respectfully dissent.

KITCHENS AND KING, JJ., JOIN THIS OPINION.

      . Miss.Code Ann. § 11-1-63 (Rev.2002).

      . Miss.Code Ann. § 11 — 1—63 (a)(i)2 (Rev. 2002).

      . Miss.Code Ann. § 11-1-60(2) (Supp.2011).

      . Barrett v. Parker, 757 So.2d 182, 187 (Miss.2000) (quoting Starcher v. Byrne, 687 So.2d 737, 742 (Miss.1997)).

      . Adkins v. Sanders, 871 So.2d 732 (Miss.2004); Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373 (Miss.2004) (a trial judge may refuse an instruction if it lacks a proper foundation in evidence); Reese v. Summers, 792 So.2d 992 (Miss.2001) (both parties have the right to embody their theories of the case in the jury instructions provided there is testimony to support it).

      . Richardson v. Norfolk Southern Ry. Co., 923 So.2d 1002, 1010 (Miss.2006).

      . Blake v. Clein, 903 So.2d 710, 719-20 (Miss.2005).

      . Byrd v. McGill, 478 So.2d 302, 303 (Miss.1985).

      . Id. at 305.

      . Newell v. State, 308 So.2d 71, 74 (Miss.1975).

      . McGill, 478 So.2d at 305 (quoting Thomas v. State, 278 So.2d 469, 472 (Miss.1973)); See also Lee v. State, 469 So.2d 1225 (Miss.1985); Rainer v. State, 473 So.2d 172 (Miss.1985); Mease v. State, 539 So.2d 1324, 1335 (Miss.1989).

      . McGill, 478 So.2d at 305 (Miss.1985) (citing Harper v. State, 478 So.2d 1017, 1018 (Miss.1985)).

      . McKee v. State, 791 So.2d 804, 809 (Miss.2001) (quoting Harper, 478 So.2d at 1018).

      . Wilson v. State, 639 So.2d 1326, 1330 (Miss.1994); Simpson v. State, 553 So.2d 37, 39 (Miss.1989); Mease v. State, 539 So.2d 1324, 1335 (Miss.1989) (noting the rule applies in civil cases as well); Peterson v. State, 518 So.2d 632, 637-38 (Miss.1987); Clark v. Whiten, 508 So.2d 1105, 1109 n. 2 (Miss.1987); Guilbeau v. State, 502 So.2d 639, 642 (Miss.1987); Harper v. State, 478 So.2d at 1018; Lee v. State, 469 So.2d 1225, 1232 (Miss.1985); McGill, 478 So.2d at 305; Rainer v. State, 473 So.2d at 174; Newell, 308 So.2d at 74-5; Thomas v. State, 278 So.2d at 472-73.

      . McGill, 478 So.2d at 305 (citing Harper, 478 So.2d at 1018).

      . McGill, 478 So.2d at 305 (citing Harper, 478 So.2d at 1018).

      . Cleveland v. State, 801 So.2d 812, 815 (Miss.Ct.App.2001).

      . Conner v. State, 632 So.2d 1239, 1254 (Miss.1993).

      . Id.

      . Id.

      . Kenneth M. Willner, Failures to Warn and the Sophisticated User Defense, 74 Va. L.Rev. 579, 587 (April 1988).

      . Id. at 592-93.

        .Compare Goodbar v. Whitehead Bros., 591 F.Supp. 552 (D.C.Va.1984) (Under Virginia law, "if the danger related to the particular product is clearly known to the purchaser/employer, then there will be no obligation to warn placed upon the supplier.”), with Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 630, 751 N.E.2d 848 (Mass.2001) (Under Massachusetts law, "the sophisticated user defense protects a supplier from liability for failure to warn when the end user knows or reasonably should know of a product's dangers.”), and Gray v. Badger Mining Corp., 676 N.W.2d 268, 277-78 (Minn.2004) (noting that the defense applies when either situation is met: "(1) the end user’s employer already has a full range of knowledge of the dangers, equal to that of the supplier; or (2) the supplier makes the employer knowledgeable by providing adequate warnings and safety instructions to the employer.”).

        .Swan v. I.P., Inc., 613 So.2d 846 (Miss.1993).

      . Id. at 851 (citing Adams v. Union Carbide Corp., 737 F.2d 1453, 1456 (6th Cir.1984)); Note, Failures to Warn and the Sophisticated User Defense, 74 Va. L.Rev. 579 (1988).

      . Swan, 613 So.2d at 856.

      . Miss.Code Ann. § 11-1-63 (Rev.2002).

      . Miss.Code Ann. § 1 l-l-63(h).

      . Miss.Code Ann. § 11 — 1—63(e) (emphasis added).

      . Miss.Code Ann. § 11 — 1—63(e) (Rev.2002).

      . The need for the trial court's heightened oversight of the jury instructions in criminal cases is understandable, because, there, the defendant’s life or liberty is at stake.

      . In its brief, MVS does not argue there was evidence of reasonable reliance: rather, it contends that its sophisticated-user instruction was a correct statement of the law.


source: Caselaw Access Project

author: CHANDLER, Justice, CARLSON, Presiding Justice,

license: Public Domain

text:
    James Richard CONNERS, Jr. a/k/a Jim v. STATE of Mississippi.
    No. 2011-KA-00406-SCT.
    Supreme Court of Mississippi.
    July 19, 2012.

      Office of Indigent Appeals by Mollie Marie McMillin, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. A Pike County jury convicted James Richard Conners Jr. of two counts of murder and two counts of possession of a firearm by a felon. The Circuit Court of Pike County imposed two life sentences for the 'murder convictions and two ten-year sentences for the possession-of-a-firearm-by-a-felon convictions, with all sentences to run consecutively. Conners appeals, arguing that the admission of two forensic reports at his trial violated his right of confrontation under the Sixth Amendment to the United States Constitution and constituted plain error. He also argues that he received ineffective assistance of counsel due to counsel’s failure to make a Confrontation Clause objection to the admission of the forensic reports, and due to counsel’s failure to object to gruesome photographs and evidence of Conners’s past criminal activity and gang affiliation.

¶ 2. This Court finds that the trial court erred by admitting the forensic test reports without live testimony from the analysts who performed the tests, but that the error was harmless. We further find that Conners did not receive ineffective assistance of counsel, because he cannot show that he was prejudiced by any deficient performance by counsel. Therefore, we affirm.

FACTS

¶ 3. On the morning of January 20, 2010, Kathleen Theriot called her grandmother, Sandra Conners. Sandra lived with her husband, Kenneth Conners, and his brother, Conners. The only functional telephone in their trailer was a land line. Although Kathleen lived in Houma, Louisiana, and Sandra lived in Pike County, Mississippi, the two spoke on the phone daily. On this occasion, Sandra told Kathleen she was going to sleep and would call Kathleen back later. However, Sandra never returned Kathleen’s call. Kathleen called Sandra’s house many times that day and the next, with no answer. On January 22, 2010, Kathleen got in touch with a friend’s mother who lived in Pike County, Jennifer Brooks. Brooks agreed to check on Sandra.

¶ 4. When Brooks arrived, she knocked on the side of the trailer and heard a dog barking inside. When no one came out, she walked around the outside of the trailer. She left and informed Kathleen. Kathleen drove up with her husband and uncle, Albert Touzet, arriving at the trailer at about 4:30 or 5:00 p.m. They noticed that all the occupants’ vehicles were parked outside. Kathleen gave Touzet the set of keys that was kept in a nearby RV, but he was unable to unlock the trailer door. Kathleen and her husband walked around the outside of the trailer, yelling and banging on it. They heard a dog barking inside, the sound of a television, and then the sound of footsteps moving quickly from one side of the trailer to the other. At that point, they called the police.

¶ 5. Lieutenant Mike Milholen with the Pike County Sheriffs Department responded. He walked around the trailer, banged on it, and yelled “Sheriffs Department,” but no one came out. He opened an unlocked window, moved the blinds and curtain, and saw a body in the living room lying beside the front door. Chief Detective Davis Haygood arrived with other officers, and forced entry to the trailer by kicking in the front door. Detective Hay-good testified that the dead bolt of the front door had been locked from the inside.

¶ 6. Once inside, the officers found the bodies of Kenneth and Sandra Conners. Kenneth’s body was just inside the front door. Kenneth had sustained multiple shotgun wounds, including one that almost had severed his neck. Sandra’s body was in the kitchen. She had sustained a single shotgun wound to the back that had severed her spinal cord. The investigating officers determined from the position of Kenneth’s body that it had been moved to that location. They discovered blood under the front porch of the trailer and damage from shotgun blasts both outside and inside the trailer that indicated Kenneth had been shot as he stood in the front door. A sawed-off Mossberg 12-gauge shotgun was found on a table near Kenneth’s body.

¶ 7. The investigators also encountered a chihuahua dog running around the inside of the trailer, barking. Several officers then traveled down a short hallway and through a bedroom door that was tied open with a string. In the room they found Conners lying on a bed watching “Seinfeld” on television. Conners told them that, two days previously, two men from Louisiana had'arrived to buy drugs from Kenneth and Sandra. Conners said he was in his bedroom with the door closed when he heard gunshots. He left his bedroom and encountered one of the men in the hall. The man hit him in the ribs and then in the mouth, dragged him to his room, and forced crushed pills down his throat. Conners stated that he had passed out from the pills and did not awaken until the police broke down the door two days later. Conners was very ill and was sent to the emergency room of a nearby hospital, where he spent several days in the intensive care unit being treated for conditions including low blood pressure, kidney failure, pneumonia, and pancreatitis.

¶ 8. The investigators found a 9mm handgun in a drawer in Conners’s nightstand and many knives located throughout his bedroom. They also found a damp shirt and pair of pants that had been laid out to dry in Conners’s room. Testing did not reveal blood on these items. Testing conducted on wet rags found in a trash can in the kitchen revealed a partial DNA profile. Blood found on the door of Con-ners’s bedroom was determined to be Kenneth’s. A gunshot-residue test of Con-ners’s hands was consistent with gunshot residue, although other sources for the particles could not be excluded. Finally, the officers found a gun case in Conners’s bedroom that was compatible with the 12-gauge shotgun. The case had shotgun shells inside that were found to b'e consistent with several spent shells collected in the living room and kitchen. While there were no fingerprints on the shotgun, DNA was found on the shotgun, and testing showed neither Conners nor Sandra could be excluded.

¶ 9. Two neighbors testified that, at 4:00 p.m. or 5:00 p.m. on the afternoon of the murders, they had heard about four gunshots in rapid succession. They did not call the police, because they thought it was someone hunting. One of these neighbors stated that she had seen Kenneth checking the mail at about 10:30 a.m. or 11:00 a.m. that morning. Kenneth had picked up prescriptions from the pharmacy at 2:00 p.m. on the afternoon of the murders. The defense established that, although several days before the murders, multiple prescriptions for oxycodone and Oxycontin had been filled for Conners and Sandra, no controlled substances were found at the scene.

¶ 10. After Conners’s release from the hospital, he gave a three-hour statement to the police in which he recounted the same version of events he had told at the scene. This tape was played for the jury at trial. Conners first said he had never seen the sawed-off shotgun, but later said he had cleaned it for Kenneth. Conners said that no weapon had ever been stored in the gun case. He stated that he was undergoing pain management treatment with opiate drugs due to several old gunshot wounds and motorcycle injuries. He admitted that he had over-medicated himself on the morning of the murders by taking double his prescribed dose of morphine, along with a muscle relaxer and his blood-pressure medication. He thought the crushed-up drugs that the drug dealers had shoved down his throat had been opiates. When asked if it was possible that he could have committed murders, he said he did not think so.

¶ 11. Throughout his statement, Con-ners was adamant that he had been asleep from the time the drug dealers had departed until being awakened by the police. This contention was undermined by the evidence. Conners said the drug dealers had arrived at 11:30 a.m. or 12:00 p.m., and had stayed for about an hour. However, the State showed that Kenneth had been alive at 2:00 p.m. when he picked up prescriptions, and neighbors had heard gunshots at 4:00 p.m. or 5:00 p.m. The dead bolt had been locked from the inside. Kathleen testified that Conners’s bedroom door was always tied open in the position in which it was found by police, although Conners claimed the drug dealers had shut the door when they left. Conners did not explain why he did not arm himself with the handgun or a knife before leaving his room to confront the armed drug dealers who had just shot his family. Conners was clean-shaven when the police found him, although he claimed he had been asleep for two and a half days. Conners had damp laundry in his room, indicating recent laundering. Kathleen and her family testified they had heard footsteps inside the trailer when they knocked. A neighbor testified she had heard hammering coming from the trailer on January 21, 2010. Investigator Bruce Fairburn testified that, although there was a dog inside the house with Conners, no urine or feces were present, indicating someone had been letting the dog out. Also, photographs of the dog’s full food and water bowls were admitted into evidence. Conners was unable to explain these discrepancies in the interview. His only defense witness was the physician who had treated Conners at the hospital, who testified that he did not see any injuries to Conners’s chest.

¶ 12. The parties stipulated that Con-ners was a prior convicted felon. The jury found Conners guilty of two counts of felon-in-possession-of-a-firearm, based on his possession of the shotgun and the 9-mm handgun. The jury also found Conners guilty of two counts of murder. The trial court granted a directed verdict on a possession-of-stolen-property charge.

LAW AND ANALYSIS

I. WHETHER THE ADMISSION OF FORENSIC REPORTS VIOLATED CONNERS’S RIGHT TO CONFRONTATION.

¶ 13. Conners argues that the admission of two forensic reports in the absence of the analysts who performed the tests violated his Sixth Amendment right to confrontation. During Detective Hay-gdod’s testimony, the State introduced a report of ballistics tests performed by Carl Fullilove of the Mississippi Crime Laboratory. The Mississippi Crime Laboratory had been asked to determine if the spent shell casings found at the murder scene were fired in the Mossberg 12-gauge shotgun also found at the scene. Fullilove’s report stated the following:

The shotgun shells in Submissions 30 through 34 bear some similarities in class characteristics consistent with those produced by the gun in Submission 24. However, the shotgun shells in Submissions 30 through 34 could not be positively included or excluded as having been fired in the gun in Submission 24 to the exclusion of all other firearms bearing the same class characteristics.

Detective Haygood testified that this meant that the shells could have been fired in the Mossberg 12-gauge shotgun or in another one. The State did not call Fulli-love to testify.

¶ 14. Also during Detective Haygood’s testimony, the State introduced a toxicology report of Conners’s blood prepared by Alyssa Purcell of the Mississippi Crime Laboratory. The report stated that Con-ners’s blood had tested positive for caffeine, oxycodone, and metabolite opiates. The State did not call Purcell to testify.

¶ 15. Conners did not object to the admission of either report; therefore, he did not preserve this issue for appellate review, and it thus is procedurally barred. Blanchard v. State, 55 So.3d 1074, 1077 (Miss.2011). Conners argues that this Court should consider this issue under the plain-error doctrine. “Under the plain-error doctrine, we can recognize obvious error which was not properly raised by the defendant ... and which affects a defendant’s ‘fundamental, substantive right.’ ” Smith v. State, 986 So.2d 290, 294 (Miss.2008) (quoting Debrow v. State, 972 So.2d 550, 553 (Miss.2007)). For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Brown v. State, 995 So.2d 698 (Miss.2008) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). This Court has held that a Confrontation-Clause violation is a violation of a “fundamental, substantive right.” Therefore, we examine whether a Confrontation-Clause error occurred that resulted in a manifest miscarriage of justice. See Corbin v. State, 74 So.3d 333, 337 (Miss.2011). We conclude that, although a Confrontation-Clause violation occurred at Conners’s trial, because the error was harmless, no manifest miscarriage of justice resulted.

¶ 16. The Sixth Amendment to the United States Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. The Confrontation Clause confers a right to confront “those who ‘bear testimony’ ” against the defendant. Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004). Thus, the testimonial statements of a witness who does not testify at trial are inadmissible unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Id. at 68, 124 S.Ct. at 1374. “ ‘Testimony,’ ... is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. (citation omitted). In Crawford, the Supreme Court elaborated on the “core class” of testimonial statements covered by the Confrontation Clause:

Various formulations of this core class of “testimonial” statements exist: “ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” ... “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” ... “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,”.... These formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it.

Id. at 51-52, 124 S.Ct. at 1364 (citations omitted).

¶ 17. In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009), the Supreme Court held that forensic laboratory reports that determined tested substances were cocaine were testimonial and could not be admitted without offering the live testimony by the laboratory analysts. The Court held that the analysts provided “testimony” against the petitioner because they provided one fact necessary for his conviction, which was that the substance he had possessed was cocaine. Id. at 2533. Also, the statements were “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 2532 (quoting Crawford, 541 U.S. at 52, 124 S.Ct. at 1364). The Court held that “under our decision in Crawford, the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment.” Id. “Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the analysts at trial.” Id. (quoting Crawford, 541 U.S. at 54, 124 S.Ct. at 1365) (emphasis in original).

¶ 18. We note that, in a case decided after Conners’s trial, a plurality of the Supreme Court held that the Confrontation Clause does not allow the prosecution to admit a forensic laboratory report containing a testimonial certification through the in-court testimony of a different analyst than the one who made the certification or performed or observed the test. Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). The Court held that “[t]he accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” Although Bull-coming was decided after Conners’s trial, it applies retroactively, because Conners’s appeal was pending at the time of decision. See Griffith, v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (stating that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”).

f 19. Plainly, under Melendez-Diaz, the forensic reports at issue were testimonial in nature. The ballistics report provided “testimony” against Conners by showing that the shotgun shells found at the scene were consistent with having been fired from the shotgun found at the scene. The toxicology report confirmed the presence of controlled substances in Conners’s system. Both forensic tests were performed at the request of the Pike County Sheriffs Department with the results to be used in the prosecution of Conners. The forensic reports were “made under circumstances which would lead an objective witness reasonably to believe that the statements] would be available for use at a later trial.” Melendez-Diaz, 129 S.Ct. at 2532 (quoting Crawford, 541 U.S. at 52, 124 S.Ct. at 1364); see also Hobgood v. State, 926 So.2d 847, 852 (Miss.2006) (stating that, under Crawford, “a statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused”). The analysts were not found to be unavailable, and Conners had no prior opportunity for cross-examination. Because the forensic reports were testimonial in nature, the reports were inadmissible at Conners’s trial absent the analysts’ live testimony, and the admission of the reports violated the Confrontation Clause.

¶ 20. But our inquiry does not end with the determination that a Confrontation-Clause violation occurred. Having determined that Conners’s right to confrontation was violated, we now turn to whether the error resulted in a manifest miscarriage of justice. We conclude that no manifest miscarriage of justice resulted from the error, which was harmless. This Court has recognized that Confrontation-Clause violations are subject to harmless-error analysis. Corbin, 74 So.3d at 338 (citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). “[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436. Harmless errors are those “which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). In Gossett v. State, 660 So.2d 1285, 1297 (Miss.1995), this Court held that, although a defendant’s right of confrontation was violated when the State introduced an autopsy report without live testimony by the person who had performed the autopsy, the error was harmless beyond a reasonable doubt due to the other evidence of the cause of death and in light of the overwhelming evidence of the defendant’s guilt of murder.

¶ 21. This Court finds that the admission of the ballistics report and the toxieol-ogy report was harmless error. The ballistics report did not determine that the spent shells found at the scene definitely were fired from the shotgun found at the scene. Rather, the ballistics report simply found that the spent shells found at the scene could have been fired in that shotgun, or in another 12-gauge shotgun. This evidence was largely cumulative of other evidence before the jury. Spent shotgun shells and a shotgun were found at the scene; a reasonable inference is that the spent shotgun shells had been fired from the shotgun. Evidence also showed that the spent shotgun shells were of the same type and brand as the shells found in the shotgun case recovered from Conners’s room. Photographs of the spent shells and the shells found in the shotgun case were admitted into evidence, from which the jury reasonably could have drawn this conclusion. The fact that matching shells were found in the shotgun case supported the conclusion that the spent shells had been fired from the shotgun that had been stored in the shotgun case along with the shells. And the toxicology report that showed caffeine, oxycodone, and metabolite opiates in Conners’s blood was consistent with Conners’s theory of defense that the murders had been committed by drug dealers who then shoved opiate drugs down his throat. This evidence was not harmful to the defense case; rather, it bolstered it. The error in admitting the reports in violation of Conners’s right to confront the analysts was harmless beyond a reasonable doubt. Therefore, no manifest miscarriage of justice resulted, and there is no reversible error.

II. WHETHER CONNERS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 22. With new appellate counsel, Con-ners argues he received ineffective assistance from his two trial attorneys because they (1) failed to object to the forensic reports; (2) failed to object to the admission of gruesome photographs of the victims; and (3) failed to object to evidence about his criminal history and former motorcycle-gang membership. The State argues that the record is factually inadequate to enable this Court’s determination of this issue on direct appeal, and that the issue is appropriate for post-conviction proceedings.

¶ 23. Mississippi Rule of Appellate Procedure 22(b) addresses the propriety of raising the issue of ineffective assistance of counsel on direct appeal. The rule provides:

Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.

M.R.A.P. 22(b). The comment provides:

Rule 22(b) allows the appellant to raise post-conviction issues on direct appeal where the issues are fully apparent from the record of the trial, and failure to raise such issues constitutes a waiver. Under this provision, issues such as claims of ineffective assistance of counsel for failure to object to evidence offered by the state or to argument by the state must be raised on direct appeal. Other post-conviction issues which cannot be raised at the time of appeal because they involve actions or inaction outside the record are not waived since they cannot practically be raised without further development or investigation.

M.R.A.P. 22(b) cmt. The comment specifically states that issues of ineffective assistance of counsel based on counsel’s failure to object must be raised on direct appeal, or they are waived. Conners’s claims of ineffective assistance of counsel all are based on counsel’s failure to make certain objections. These issues are fully apparent from the trial record. Therefore, Con-ners’s ineffective-assistance-of-counsel claims are properly brought on direct appeal. See Neal v. State, 15 So.3d 388, 404-OS (Miss.2009).

¶24. This Court applies the standard from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to claims of ineffective assistance of counsel. Williams v. State, 73 So.3d 1125, 1128 (Miss.2011). “There is a strong but rebuttable presumption that trial counsel was competent and performed within the wide range of reasonable conduct expected from counsel.” Knight v. State, 72 So.3d 1056, 1060 (Miss.2011). To rebut this presumption, the burden is on the petitioner to show that (1) counsel’s performance was deficient; and (2) the deficiency prejudiced the petitioner. Id. (quoting Johnson v. State, 29 So.3d 738, 745 (Miss.2009)). Under the prejudice prong, the petitioner must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Chamberlin v. State, 55 So.3d 1046, 1050 (Miss.2010) (quoting Mohr v. State, 584 So.2d 426, 430 (Miss.1991)). The “defendant must prove that the ‘deficient performance prejudiced the defense,’ which requires showing that ‘counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ ” Id. (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2052).

¶ 25. All of Conners’s arguments are based upon counsel’s failure to make certain objections. “The failure of counsel to make certain objections may fall within the ambit of trial strategy, and therefore may not give rise to a claim for ineffective assistance of counsel.” Nix v. State, 8 So.3d 141, 144 (Miss.2009). We find that, even if counsel’s failure to object was deficient performance, Conners has not shown that any error was so serious that it denied Conners a fair trial.

A. Failure to object to the forensic reports

¶ 26. As discussed above in Issue I, trial counsel failed to make a Confrontation-Clause objection to the forensic reports introduced during the testimony of Detective Haygood. But Conners has not shown prejudice from the failure to object. This is because, as previously discussed, the admission of these reports into evidence was harmless error that did not deprive Conners of a fair trial.

B. Failure to object to gruesome photographs

¶ 27. Conners complains of counsel’s failure to object to the State’s introduction of thirty-six photographs of the victims’ bodies taken at the crime scene and at the autopsies. These photographs showed the bodies as they were discovered by the investigators, then after they had been moved by investigators, and then at the autopsies after they had been cleaned, with wounds visible. Conners argues that the photographs were gruesome, repetitive, and served no purpose except to inflame the jury’s passions against him.

¶ 28. The admissibility of photographs rests within the trial court’s sound discretion. Jordan v. State, 995 So.2d 94, 110 (Miss.2008). While photographs may have the potential to inflame the emotions of the jury, they are admissible as long as they have an evidentiary purpose. Id. Photographs have an eviden-tiary purpose “when they (1) aid in describing the circumstances of the killing; (2) describe the location of the body and cause of death; (3) supplement or clarify witness testimony.” Id. (quoting Spann v. State, 771 So.2d 883, 885 (Miss.2000)). However, “photographs of the victim should not ordinarily be admitted into evidence where the killing is not contradicted or denied and the corpus delicti and the identity of the deceased have been established.” Id. (quoting Sharp v. State, 446 So.2d 1008, 1009 (Miss.1984)). But, “[r]e-versal for the admission of cumulative and/or gruesome photographs is rare.... ” Barfield v. State, 22 So.3d 1175, 1181 (Miss.2009).

¶ 29. Conners argues that, had trial counsel objected to the admission of the photographs of the victims, the trial court probably would have excluded many of them, because the killing was not contradicted, and the victims’ identities were established. He also argues that several photographs likely would have been excluded as cumulative, and that it was unnecessary to admit photographs from both the crime scene and the autopsies. Con-ners has not shown prejudice from the failure to object. The photographs had an evidentiary purpose, because they aided the State in describing the circumstances of the killing and the location of the bodies and cause of death. They also supplemented and clarified the testimony of the investigating officers and the forensic pathologist who performed the autopsies. The autopsy photographs, which showed the victims’ wounds after they had been cleaned, were not cumulative of the crime-scene photographs, because they more clearly showed the victims’ wounds. And, while the trial court might have excluded some of the photographs after an objection, there is little likelihood that the admission of several additional photographs of the victims so inflamed the jury against Conners as to create a probability that the outcome of his trial would have been different.

C. Failure to object to evidence of Con-ners’s gang affiliation and prior criminal record

¶ 30. Conners’s trial counsel stipulated to Conners’s prior felony convictions. But trial counsel did not object to evidence that came in during his videotaped confession and the testimony of Detective Fairburn about his prior criminal history and former motorcycle-gang membership. During his videotaped confession, which was played for the jury, Con-ners discussed his prior criminal activities and arrests, including that he had been a suspect in a murder case, and that he had served seven years for racketeering. Detective Fairburn related that, at the scene, Conners had told him about his former gang membership and that he had been shot several times in the past. Conners argues that his prior criminal history and gang membership were irrelevant and prejudicial, and that counsel’s failure to object constituted ineffective assistance.

¶ 31. In Sea v. State, 49 So.3d 614, 618 (Miss.2010), Sea argued that his trial counsel was ineffective for introducing Sea’s two prior convictions.for sexual battery at Sea’s sexual battery trial. The two prior convictions were twenty-five and twenty-one years earlier. Id. Under Rule 609 of the Mississippi Rules of Evidence, evidence of convictions more than ten years old is inadmissible absent a specific determination by the trial court that the probative value substantially outweighs the prejudicial effect. M.R.E. 609(b). The Court found that the performance of Sea’s trial counsel was deficient because he had not moved for exclusion of the convictions, but instead had introduced them at Sea’s trial. Sea, 49 So.3d at 618. Further, the Court held that Sea had demonstrated that he was prejudiced. Id. There was no physical evidence of sexual abuse, and the case was based on Sea’s word against that of the children. Id. The Court found that the children’s testimony consisted of “yes” and “no” answers to leading questions by the prosecution. Id. at 618-19. Due to the relative weakness of the case against Sea, this Court held that counsel’s error in introducing the evidence of Sea’s prior convictions had. prejudiced him. Id. at 619.

¶ 32. In contrast with the evidence in Sea, overwhelming evidence of Conners’s guilt was shown at trial. Conners was found in the trailer with the bodies of his brother and sister-in-law, who had been killed with a shotgun. A shotgun was found at the scene, and a shotgun case and shells that matched the spent shells was found in his room. Conners’s theory of defense, that drug dealers had arrived, had committed the murders, had hit him in the chest and face, and then had drugged him, causing him to pass out until the police arrived, was undermined by the physical facts. These included the facts that the deadbolt was locked from the inside, Con-ners had been clean-shaven, the dog inside the trailer with him had fresh food and water and had not eliminated in the trailer, damp laundry was in his room, and Kathleen had heard footsteps inside the trailer. Other facts failed to corroborate Conners’s version of events: he had no visible injuries to his chest or face, and he had not armed himself against the murderous drug dealers despite numerous weapons in his room. Additionally, gunshot residue was found on Conners’s hands. The Court finds that, in light of the overwhelming evidence against Conners, the admission of the irrelevant information about his prior criminal history and gang membership does not undermine confidence in the outcome of his trial. We hold that Conners has not shown that prejudice resulted from counsel’s failure to object; therefore, Con-ners’s claim of ineffective assistance of counsel is without merit.

CONCLUSION

¶ 33. We observe that “ ‘a defendant is entitled to a fair trial but not a perfect one,’ for there are no perfect trials.” Brown v. U.S., 411 U.S. 223, 231-32, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208 (1973) (quoting Bruton v. U.S., 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968)). Conners received a fundamentally fair trial. While Conners’s right of confrontation was violated by the admission of forensic test reports without the live testimony of the analysts who performed the tests, this error was harmless. Conners’s claim of ineffective assistance of counsel is without merit because he has not shown prejudice from any of counsel’s alleged errors. Therefore, we affirm the judgment of the Circuit Court of Pike County.

¶ 34. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. ALL SENTENCES ARE TO RUN CONSECUTIVELY.

WALLER, C. J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, PIERCE AND KING, JJ., CONCUR. CARLSON, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ.

CARLSON, Presiding Justice,

specially concurring:

¶ 35. While I embrace in toto the majority opinion authored by Justice Chandler, I write separately to expand the discussion concerning the first issue raised by Conners; namely, whether the trial court’s admission of the ballistics report and the toxicology report generated after the tests performed by Carl Fullilove and Alyssa Purcell, respectively, at the Mississippi Crime Laboratory, when Fullilove and Purcell did not testify, was error. In my opinion, the majority opinion correctly concludes that the admission of such evidence was error.

¶ 36. But I also agree with the majority opinion that this error was harmless beyond a reasonable doubt. “[I]t is clear beyond a reasonable doubt that [the error] did not contribute to the verdict.” Kolberg v. State, 829 So.2d 29, 51 (Miss.2002) (citing Conley v. State, 790 So.2d 773, 793 (Miss.2001)). See also Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). As pointed out in the majority opinion (¶ 32), the properly admitted evidence at trial reveals that proof of Conners’s guilt was overwhelming. Also, the majority opinion (¶ 21) appropriately discusses the harmless effect that the ballistics report and the toxicology report had on the outcome of the jury verdict. Thus, I will not belabor this point.

¶ 37. I move now to the main reason for my writing separately today. No doubt, this case addresses an important issue in criminal law — the Sixth Amendment right to confrontation — and this Court must be clear as to what the law requires in that regard. Other cases are pending before this Court in which we ultimately will address issues similar to the one before us today as a result of Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). See also Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 38. I agree with the majority that the ballistics report and the toxicology report admitted at trial were testimonial in nature. The admission of those reports through Detective Haygood’s testimony, rather than through the live testimony of the analysts who prepared the reports, was a violation of Conners’s Sixth Amendment right to confrontation. However, I emphasize that neither Melendez-Diaz nor Bullcoming stands for the proposition that automatic per se error — much less reversible error — occurs in all cases where the primary analyst who performed the test and prepared the report (be it a ballistics, toxicology, or other type of test) fails to testify.

¶ 39. Forensic laboratory reports, like the reports at issue, are considered “testimonial” under the Confrontation Clause, and therefore, ordinarily cannot be admitted in court without the testimony of the analyst who performed the test or made the certification. Melendez, 129 S.Ct. at 2530-32, 2542. However, this Court recognizes, as does the United States Supreme Court, that laboratory work and testing often involve multiple analysts, and in some instances, which someone other than the primary analyst who conducted the test can testify regarding the results. See Melendez-Diaz, 129 S.Ct. at 2532 n. 1; McGowen v. State, 859 So.2d 320, 339-40 (Miss.2003).

¶ 40. In McGowen v. State, the State sought to admit a crime lab report and, recognizing that the defendant’s right to confrontation was at issue, this Court had to determine which witnesses could satisfy the protections of the Confrontation Clause. McGowen, 859 So.2d at 338. We found that, although another analyst had performed the bulk of the work, an analyst who had assisted in the analysis and the preparation of the report was qualified to testify about the crime lab report. Id. at 339. In reaching that decision, we held that “when the testifying witness is a court-accepted expert in the relevant field who participated in the analysis in some capacity, such as by performing procedural checks, then the testifying witness does not violate a defendant’s Sixth Amendment rights.” Id. This Court also found that the testifying analyst was “actively involved in the production of the report and had intimate knowledge of the analyses even though she did not perform the tests first hand.” Id. at 340.

¶ 41. The central inquiry for whether a witness can satisfy a defendant’s right to confrontation is twofold. First, we ask whether the witness has “intimate knowledge” of the particular report, even if the witness was not the primary analyst or did not perform the analysis firsthand. Id. Second, we ask whether the witness was “actively involved in the production” of the report at issue. Id. We require a witness to be knowledgeable about both the underlying analysis and the report itself to satisfy the protections of the Confrontation Clause. If an analyst can discuss competently the analysis performed, as well as the particular document being offered — in other words, the analyst can testify live regarding the testing, methodology, and results of the analysis, rather than simply relying on the document to speak for itself — a defendant is adequately protected by the Confrontation Clause. The analyst in McGowen satisfied this criteria, because she had intimate knowledge of the analysis and was actively involved in the production of the report. Id. Thus, it was the analyst who ultimately testified; the report did not speak for itself.

¶42. More recently, in Bullcoming v. New Mexico, the United States Supreme Court was confronted with a situation in which the principal evidence against a person on trial for aggravated DWI (driving while intoxicated) was a forensic laboratory report revealing that the defendant had tested well above the threshold for aggravated DWI. Bullcoming, 131 S.Ct. at 2709. The laboratory analyst who testified at trial was familiar with the laboratory’s testing procedures; however, the testifying analyst had not participated in or observed the testing of the defendant’s blood sample. Id. The Supreme Court succinctly stated the issue before it:

The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification — made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. We hold that surrogate testimony of that order does not meet the constitutional requirement.

Id. at 2710.

¶ 43. Justice Sotomayor wrote a separate opinion, concurring in part, in which she emphasized “the limited reach of the Court’s opinion.” Id. at 2719. In Bullcoming, the nontestifying analyst who actually tested the defendant’s blood sample was Curtis Caylor. Id. at 2710. The testifying analyst who had neither participated in, observed, nor reviewed Caylor’s testing and analysis was Gerasimos Razatos. Id. at 2712. Justice Sotomayor stated:

[T]his is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue. Razatos conceded on cross-examination that he played no role in producing the BAC report and did not observe any portion of Curtis Caylor’s conduct of the testing.... The court below also recognized Razatos’ total lack of connection to the test at issue.... It would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results. We need not address what degree of involvement is sufficient because here Razatos had no involvement whatsoever in the relevant test and report.

Id. at 2722 (Sotomayor, J., concurring in part) (emphasis added).

¶ 44. As in Bullcoming, today’s case reveals that Detective Haygood had no involvement whatsoever in the tests or the generation of the reports as a result of the tests. Therefore, I agree with the majority that this was a Confrontation Clause violation, but the error was harmless because “it is clear beyond a reasonable doubt that it did not contribute to the verdict.” Kolberg, 829 So.2d at 51.

WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.

      . We note the United States Supreme Court’s recent Confrontation-Clause decision in Williams v. Illinois, — U.S. —, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). This decision does not affect the outcome of this case.

      . See also Brown v. State, 999 So.2d 853, 861 (Miss.Ct.App.2008) (The analyst who actually performed the DNA test did not testify; the testifying witness was the laboratory manager who "actively participated in the analysis” and checked the work done by the other analysts. The Court of Appeals held that the laboratory manager was "sufficiently involved with the analysis and overall process,” and the defendant’s Sixth Amendment right to confrontation was not violated.); Adams v. State, 794 So.2d 1049, 1057-58 (Miss.Ct.App.2001) (The testifying witness "supervised, witnessed!,] and checked the tests performed by his technician!,]” therefore, he was "not so far removed from the process as to be reduced to the level of a records custodian,” and the defendant's Sixth Amendment right was not violated.).

      . It is not enough for one to be simply an expert in the field and knowledgeable about the testing methods used. Such an expert will not satisfy the criteria if he was not actually involved in the testing or preparation of the specific report at issue. See Debrow v. State, 972 So.2d 550, 554 (Miss.2007) (doctor was expert in toxicology, but had not been involved in testing or in producing report, and did not have intimate knowledge of the analyses; admitting test results without evidence that the doctor "actually performed the test or participated in its analysis” was error).


author: RUSSELL, J.,

text:
    Lewis Henry THOMPSON a/k/a Lewis Henry Thompson Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-02061-COA.
    Court of Appeals of Mississippi.
    April 3, 2012.
    Rehearing Denied July 17, 2012.

      Edmund J. Phillips Jr., P. Shawn Harris, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. A jury in the Neshoba County Circuit Court convicted Lewis Thompson of possession of methamphetamine (Count I) and possession of precursor chemicals with intent to manufacture methamphetamine (Count II). He was sentenced to sixteen years without the possibility of parole, suspension, probation or reduction on Count I and sixty years without the possibility of parole, suspension, probation or reduction on Count II. The circuit court ordered the sentences to run concurrently. Thompson asserts four issues on appeal: (1) whether there was sufficient probable cause to issue a search warrant; (2) whether the circuit court erred in admitting his confession into evidence; (3) whether the verdict was against the overwhelming weight of the evidence on Count II; and (4) whether the oral or written sentencing order controls. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On July 20, 2008, Sheriff Donnie Adkins received information from a confidential informant that methamphetamine was being manufactured, used, and sold at the home of Buddy Smith located at 10671 County Road 238, Union, Mississippi, at the second trailer on the right on Road 238. According to the confidential informant, Smith and Thompson were manufacturing methamphetamine in the woods behind the trailer. Sheriff Adkins testified that this confidential informant had provided credible information in the past, leading to arrests and convictions. Based on the information obtained from the confidential informant, Sheriff Adkins prepared a search warrant, affidavit, and supporting underlying facts and circumstances, and presented this information to justice court judge Steve Cumberland for his review and signature. Judge Cumberland reviewed all three documents, found that there was sufficient probable cause for the issuance of a search warrant, and signed the warrant the same day.

¶ 3. Sheriff Adkins and several other officers served the search warrant later that evening at approximately 6:31 p.m. Upon arrival, several adults and children were located on the premises, and Thompson was behind the trailer working on a car. Sheriff Adkins and Deputy Ken Spears approached Thompson, while other officers secured the scene. The other officers discovered two active methamphetamine labs in the woods behind a shed. After the meth labs were discovered, Sheriff Adkins gave Thompson his Miranda warnings with Deputy Spears present. According to Sheriff Adkins, Thompson did not appear to be under the influence of drugs or alcohol at the time, and Thompson acknowledged that he understood his rights. After Thompson waived his Miranda rights, he showed Sheriff Adkins a black valve containing three small bags of methamphetamine by the shed. Next, Thompson told Sheriff Adkins that there was some methamphetamine on tinfoil inside the shed, which was recovered by Sheriff Adkins. Finally, Thompson directed Sheriff Adkins to Thompson’s truck where a bag of methamphetamine lay inside Thompson’s ball cap on the front seat of the truck. Thompson admitted to Sheriff Adkins that the three bags in the black valve, the methamphetamine on the foil, and the methamphetamine in the ball cap were “his share” of the methamphetamine for “personal use.” Sheriff Adkins also testified that Thompson admitted to doing the “cooking” with Smith:

Q: Now, you had already found what you believed to be an active meth lab. Is that correct?
A: Yes, sir, it was in operation.
Q: Did you inquire of the defendant at all about what you believed to be the lab?.
A: I asked him who was doing the cooking of the meth, and he said that he and Buddy Smith were doing the cooking.
Q: So he claimed responsibility for the making of the methamphetamine also.
A: Yes, sir.

¶ 4. Agent Kevin Gregory and Agent Grant Myers testified that they discovered two active meth labs along with several ingredients used to make methamphetamine inside a camouflaged cooler. Specifically, they found cold medicine (ephedrine), icee hot (ammonium nitrate), drain cleaner (sodium hydroxide), liquid fire (sulfuric acid), and camp fuel (hexanes, hep-tanes). The agents also testified that they wore suits for protection as they allowed the meth to finish cooking for safety reasons. They also took samples and sent them to a crime laboratory for testing.

¶ 5. Keith McMahan works for the Mississippi Crime Laboratory and testified that he personally tested the samples from the scene. He stated that there was approximately 1.1 grams of methamphetamine total.

¶ 6. The jury returned a guilty verdict on Count I, possession of methamphetamine, and Count II, possession of precursor chemicals. At the sentencing hearing, the circuit court orally sentenced Thompson to eight years for Count I and twenty-five years for Count II, with the sentences to run consecutively. Later, the circuit court entered a written order sentencing Thompson to sixteen years for Count I and sixty years for Count II, to run concurrently, finding Thompson was a second offender pursuant to Mississippi Code Annotated section 41-29-147 (Rev.2009). Thompson timely appealed.

DISCUSSION

I. Whether there was sufficient probable cause to issue the search warrant.

¶ 7. “In reviewing a finding of probable cause, this Court does not make a de novo determination of probable cause, but only determines if there was a substantial basis for the determination of probable cause.” Roebuck v. State, 915 So.2d 1132, 1137 (¶ 12) (Miss.Ct.App.2005) (citing Smith v. State, 504 So.2d 1194, 1196 (Miss.1987)). Further, “this Court looks both to the facts and circumstances set forth in the. affidavit for [the] search warrant and ... the sworn oral testimony presented to the issuing judge.” Id. (citing Petti v. State, 666 So.2d 754, 758 (Miss.1995)). “On appeal, the issuance of a warrant will not be reversed where substantial evidence supports the [trial judge’s] determination that probable cause existed.” Phinizee v. State, 983 So.2d 322, 328 (¶ 18) (Miss.Ct.App.2007) (citing McNeal v. State, 617 So.2d 999, 1007 (Miss.1993)).

¶ 8. “A search warrant is validly issued when based upon probable cause.” Phinizee, 983 So.2d at 328 (¶ 18) (citing Zinn v. City of Ocean Springs, 928 So.2d 915, 920 (¶ 11) (Miss.Ct.App.2006)). Our supreme court has stated the following regarding probable cause:

Probable cause is a practical, nontechnical concept, based upon the conventional considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

Strode v. State, 231 So.2d 779, 782 (Miss.1970). Stated simply, “probable cause means more than a bare suspicion but less than evidence that would justify condemnation.” State v. Woods, 866 So.2d 422, 426 (¶ 11) (Miss.2003).

¶ 9. “Under Mississippi law, probable cause is determined by assessing the ‘totality of the circumstances.’ ” Phinizee, 983 So.2d at 328 (¶ 18) (citing Rooks v. State, 529 So.2d 546, 554 (Miss.1988)). “Probable cause exists where it is based on ‘information reasonably leading an officer to believe that then and there contraband or evidence material to a criminal investigation would be found.’” Id. (quoting Rooks, 529 So.2d at 555).

¶ 10. Search warrants, like arrest warrants, “shall be issued only by the judge after a judicial determination that probable cause exists based upon the affidavit or other evidence before the court.” Woods, 866 So.2d at 425 (¶ 10) (citing Miss. Unif. R.P.J.C. 3.03). Under the totality-of-the-circumstanees test, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision based on all the circumstances set forth in the affidavit before him, including the ‘veracity’ and the ‘basis of the knowledge’ of persons supplying hearsay information.” Id. (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Veracity may be established by a statement of the affiant that a confidential informant has given credible information in the past. Woods, 866 So.2d at 426 (¶ 14); United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir.1992).

¶ 11. In the instant case, Sheriff Adkins submitted underlying facts and circumstances to support the issuance of the search warrant:

Affiant, Donnie Adkins[,] has been in law enforcement since 1984 and has been an [i]nvestigator with the Neshoba County Sheriffs Department and with the Philadelphia Police Department for a total o[f] 12 years. Donnie [Adkins] had been Justice Court Judge in Nesho-ba County for 11 years and is currently Sheriff of Neshoba County. Donnie Adkins is a certified law enforcement officer, and a graduate of the Laurel Police Training Academy, and [has] attended numerous schools on the subject of criminal investigations, and [has] effected numerous felony arrests.
The affiant states the following facts to wit.
On Sunday[,][the] 20th day of July 2008[,] a confidential informant that is known to Donnie Adkins and has given creditable information in the past told Donnie [Adkins] that he/she saw [m]eth-amphetamine being manufactured and for sale and being used at 10671 Road 238[,] Union, MS 39365, 2nd trailer on the right on Road 238 coming from [C]ounty Road 311 in Neshoba County. Informant stated that Buddy Smith and Lewis Thompson were the ones manufacturing the [m]ethamphetamine in the woods behind the trailer. This residence is controlled and occupied by Buddy Smith. On Sunday[,] July 20th[,] 2008[,] Sheriff Donnie Adkins began preparing an Affidavit for Search Warrant, Search Warrant, with supportive Underlying Facts and Circumstances, this all being within the past 24 hours.
It is based on these facts that your affiant respectfully requests a search warrant be issued for this residence at 10671 Road 238[,] Union, MS 39365, 2nd trailer on right on [C]ounty [R]oad 238 coming from [C]ounty [R]oad 311 in Neshoba County to include all outbuildings and vehicles.

This document was signed by Sheriff Adkins and Judge Cumberland on July 20, 2008. Further, Sheriff Adkins testified that the confidential informant had provided reliable information in the past, which had led to arrests and convictions. Thompson moved to suppress the search warrant. At the suppression hearing, after hearing testimony from Sheriff Adkins, the circuit court ruled as follows:

In this particular case, Sheriff Adkins states that the confidential informant— he says that he has [provided] confidential information in the past and that the confidential informant saw methamphetamine being manufactured and methamphetamine being for sale[,] and methamphetamine was being used at that address. He says that the two [defendants in that case, Smith and Thompson, were the ones manufacturing the methamphetamine in the woods behind the trailer leading certainly to the statement that they saw it being manufactured in [the] woods by these two [defendants. He states that the residence was controlled by Buddy Smith. I’m going to overrule the objection. It’s my opinion that even based upon the Roebuck case, that this affidavit has enough to establish probable or reasonable cause. The [s]upreme [c]ourt in that case stated that the information necessary to establish probable cause to issue a search warrant must be information reasonably leading an officer to believe that then and there contraband or evidence material to a criminal investigation would be found. Certainly from the statements that he saw methamphetamine being manufactured; that he saw methamphetamine being for sale; that he saw methamphetamine being used; and that he saw it being manufactured in [the] woods behind the trailer is sufficient to establish reasonable cause or probable cause for the issuance of the search warrant.

¶ 12. Upon review, we find that there was substantial evidence to support the justice court judge’s finding of probable cause to issue the search warrant. Under the totality of the circumstances, we find sufficient evidence to support a finding that methamphetamine was being used and manufactured at Smith’s residence. Therefore, this issue is without merit.

II. Whether the circuit court erred in admitting Thompson’s confession into evidence.

¶ 13. Thompson argues that he was illegally arrested, and as a result, his confession should have been inadmissible under the fruit-of-the-poisonous-tree doctrine. However, Thompson fails to argue how or why his arrest was illegal. Under Mississippi Rule of Appellate Procedure 28(a)(6), “[t]he argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” Thompson fails to state any reason for his contention that he was illegally arrested, and he fails to cite any portions of the record on this point. Therefore, his argument is procedurally barred. See Martin v. State, 43 So.3d 533, 535 (¶ 10) (Miss.Ct.App.2010).

III. Whether the verdict is against the overwhelming weight of the evidence on Count II, possession of precursor chemicals with the intent to manufacture methamphetamine.

¶ 14. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). A motion for new trial “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). Further, “the evidence should be weighed in the light most favorable to the verdict.” Id.

¶ 15. Thompson does not dispute his possession-of-methamphetamine conviction since he admitted the methamphetamine was his. He instead argues his conviction of possession of precursor chemicals with the intent to manufacture methamphetamine was against the overwhelming weight of the evidence because he “had no ownership or dominion over the realty on which the precursors were found and made no admissions about it being his.” However, Sheriff Adkins testified that Thompson admitted “cooking” the methamphetamine:

Q: Now, you had already found what you believed to be an active meth lab. Is that correct?
A: Yes, sir, it was in operation.
Q: Did you inquire of the defendant at all about what you believed to be the lab?
A: I asked him who was doing the cooking of the meth, and he said that he and Buddy Smith were doing the cooking.
Q: So he claimed responsibility for the making of the methamphetamine also.
A: Yes, sir.

¶ 16. Further, officers recovered several precursor drugs and chemicals, including cold medicine (ephedrine), icee hot (ammonium nitrate), drain cleaner (sodium hydroxide), liquid fire (sulfuric acid), and camp fuel (hexanes, heptanes), all of which are prohibited under Mississippi Code Annotated section 41 — 29—313(l)(b) (Supp. 2011). Viewing the evidence in the light most favorable to the verdict, we find that the verdict is not contrary to the overwhelming weight of the evidence. This issue is without merit.

IV. Whether the oral sentence or the written sentencing order controls.

¶ 17. As previously noted, at the sentencing hearing, the circuit court orally sentenced Thompson to eight years for Count I and twenty-five years for Count II, to be served consecutively. Four days later and prior to the end of the term of court, the circuit court entered a written order sentencing Thompson to sixteen years for Count I and sixty years for Count II, to run concurrently. Thompson argues that the oral sentence should control.

¶ 18. Thompson cites Leonard v. State, 271 So.2d 445, 447 (Miss.1973), for the proposition that “once a circuit or county court exercises its option to impose a definite sentence it cannot subsequently set that sentence aside and impose a greater sentence.” However, Leonard is distinguishable because Leonard violated the terms of his probation, his probation was revoked, the original suspended sentence was set aside, and a greater sentence was imposed. Id. at 446. In the instant case, Thompson was not on probation. Therefore, the rule announced in Leonard does not apply to the case before us.

¶ 19. Further, this Court has previously held that a written sentencing order controls over a prior oral pronouncement of a sentence:

In Boutwell v. State, 847 So.2d 294, 295 (¶ 6) (Miss.Ct.App.2003), we recognized that the law in most jurisdictions is that when a written judgment of sentence directly conflicts with the sentencing judge’s oral pronouncement of sentence, the oral pronouncement controls. (Citations omitted). However, the Boutwell Court also found that, while this may be the rule in other jurisdictions, our supreme court has held that where there is a direct conflict between the oral and written pronouncements of a sentence, the written order controls. Id. at (¶ 8) (citing Temple v. State, 671 So.2d 58, 59 (Miss.1996) (holding that “in order for a sentence to be valid, a judgment must be entered as of record”)).

Chandler v. State, 27 So.3d 1199,1201 (¶ 8) (Miss.Ct.App.2010). Therefore, we find that the written sentencing order controls. This issue is without merit.

¶ 20. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, POSSESSION OF METHAMPHETAMINE, AND SENTENCE OF SIXTEEN YEARS, AND COUNT II, POSSESSION OF PRECURSOR CHEMICALS WITH INTENT TO MANUFACTURE METHAMPHETAMINE, AND SENTENCE AS A SECOND DRUG OFFENDER AND A HABITUAL OFFENDER OF SIXTY YEARS, TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR REDUCTION OR SUSPENSION OF THE SENTENCE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHO-BA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR.