author: CARLTON, J.,

text:
    Dimera SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00830-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2011.
    Rehearing Denied Jan. 10, 2012.
    Dimera Smith, appellant, pro se.
    Office of the Attorney General, by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Dimera Smith appeals the denial of his motion for post-conviction relief (PCR). Smith claims that: (1) he received ineffective assistance of counsel; (2) his constitutional right to a speedy trial was violated; (3) he was subjected to vindictive and malicious prosecution in violation of his constitutional rights; and (4) his due-process rights were violated by the State’s use of Kathy House as an informant. Finding no error, we affirm.

FACTS

¶ 2. On July 8, 2008, the Lee County grand jury indicted Smith for one count of the possession of cocaine with the intent to sell in violation of Mississippi Code Annotated section 41-29-139 (Rev.2009). Then, on February 3, 2009, the grand jury of Lee County indicted Smith for two counts of the sale of cocaine in violation of Mississippi Code Annotated section 41-29-139(a). Smith was charged as a habitual offender in each cause number.

¶ 3. A plea hearing was held before the Lee County Circuit Court on May 27, 2009, in which Smith, with the assistance of counsel, pleaded guilty to all charges. At the plea hearing, upon motion of the State, the trial court dismissed the habitual portion of Smith’s charges. The trial court then sentenced Smith in cause number CR08-597 to serve thirty years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended, followed by five years of post-release supervision. The trial court also ordered Smith to pay court costs, $485 in restitution, and a $5,000 fine-$4,000 of which was suspended by the trial court. Smith was next sentenced by the trial court in cause number CR09-201 to serve thirty years in the custody of the MDOC, with ten years suspended, to run concurrently to the sentence in cause number CR08-597. Smith was also ordered to pay court costs and a $5,000 fine, which was suspended by the trial court. Lastly, in cause number CR09-200, the trial court sentenced Smith to thirty years in the custody of the MDOC, with all thirty years suspended, to run consecutively to the sentences imposed in cause numbers CR08-597 and CR09-201, and to pay court costs. Smith filed a PCR motion, which was, denied by the trial court. Aggrieved, Smith appeals.

STANDARD OF REVIEW

¶ 4. “In reviewing a trial court’s decision to deny a motion for post-conviction relief!,] the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Smith v. State, 806 So.2d 1148, 1150 (113) (Miss.Ct.App.2002). However, we review issues of law utilizing a de novo standard of review. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 5. In his first assignment of error, Smith argues he received ineffective assistance of counsel because his attorney failed: to investigate his case, to inquire about the delay in the filing of the charges against him thereby invoking his right to a speedy trial, to further pursue his previously filed pro se motion to obtain the grand-jury transcript, and to contest the trial court’s previous denial of his motion to suppress evidence obtained from an allegedly illegal search and seizure. The State responds claiming that Smith received effective assistance of counsel, pointing to Smith’s allegations in his sworn plea petition and his statements made under oath at the plea hearing that directly contradict Smith’s assertions on appeal. The State further asserts that Smith’s claim of ineffective assistance of counsel must fail because he offers only his own statements alleging deficiency on the part of his attorney. See Willis v. State, 17 So.3d 1162, 1166 (¶ 12) (Miss.Ct.App.2009) (“In cases involving post-conviction collateral relief, ‘where a party offers only his affidavit, then his ineffeetive[-]assistanee[-] [of[-]counsel] claim is without merit.’ ”) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)).

¶ 6. In order to prove a claim of ineffective assistance of counsel, the defendant must show: (1) counsel’s performance was deficient, and (2) this deficiency prejudiced the defense. Liddell v. State, 7 So.3d 217, 219 (¶ 6) (Miss.2009) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “In the case of a guilty plea, in order to satisfy the second prong, the petitioner must show that he would not have pled guilty, would have insisted on going to trial, and the ultimate outcome would have been different.” Cook v. State, 990 So.2d 788, 792 (¶ 8) (Miss.Ct.App.2008) (citing Hannah v. State, 943 So.2d 20, 24 (¶ 7) (Miss.2006)).

¶ 7. A review of the record shows that during his plea hearing, upon being questioned by the trial court regarding whether he was satisfied with the legal services and advice of his attorney, as well as whether he felt he had been adequately represented, Smith responded, under oath, that he was satisfied. The record further reveals that Smith admitted under oath that he committed all of the offenses charged. Moreover, we note that Smith failed to attach any affidavits other than his own in support of the allegations set forth in his PCR motion as required by Mississippi Code Annotated section 99-39-9(l)(e) (Supp.2010). We further recognize that Smith failed to show good cause as to why he was unable to obtain the affidavits as required. Accordingly, we find that this issue lacks merit.

II. Right to a Speedy trial

¶ 8. Smith argues that he was denied his constitutional right to a speedy trial because the sales resulting in cause numbers CR09-200 and CR09-201 occurred in February 2008, but the indictments in both causes were not issued until February 2009. However, we recognize that “a valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in the indictment or information against the defendant.” Medlock v. State, 49 So.3d 1162, 1164 (¶ 5) (Miss.Ct.App. 2010) (quoting Reeder v. State, 783 So.2d 711, 720 (¶ 36) (Miss.2001)). See Maggitt v. State, 26 So.3d 363, 365 (¶ 11) (Miss.Ct.App.2009) (finding Maggitt waived his right to a speedy trial upon pleading guilty). Therefore, we find that the entry of Smith’s guilty pleas waived any speedy-trial violations.

III. Vindictive Prosecution

¶ 9. Next, Smith asserts that he was the victim of vindictive prosecution. Specifically, Smith contends that he was only indicted and arrested on the two sale charges because his counsel filed a motion to suppress the evidence in his case for possession with intent to sale. Smith did not raise this argument at the plea hearing; therefore, it is procedurally barred from this Court’s review. See Miss.Code Ann. § 99-39-21(1) (Rev.2007) (“Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal ... shall constitute a waiver thereof and shall be procedurally barred[.]”). See also Brooks v. State, 832 So.2d 607, 610 (¶ 9) (Miss.Ct.App.2002). Procedural bar notwithstanding, we find no merit to this allegation. During the trial judge’s questioning of Smith at the plea hearing, Smith responded, under oath, that he understood the charges against him and admitted he had committed the alleged offenses. Smith also indicated in his plea colloquy that he understood the nature and consequences of his pleas. See URCCC 8.04(A)(4). As such, a factual basis clearly existed for all of the offenses charged. This claim lacks merit.

IV.Due-process Rights

¶ 10. In his final assignment of error, Smith argues that the trial court erred by allowing the State to use House, an alleged drug-addict and alleged prostitute, as the confidential informant for the two sale charges. Additionally, Smith claims that he was entrapped by the State in the sale cases. The State responds by asserting that the indictment set forth the name of the confidential informant for the sale charges against Smith. Further, the State contends that Smith thereafter waived his right to go to trial and cross-examine House, the confidential informant, by entering his guilty pleas. See Clayton v. State, 582 So.2d 1019, 1021 (Miss.1991). The State also asserts that Smith waived his right to raise entrapment as an affirmative defense by entering his pleas of guilt.

¶ 11. The trial court noted that Smith had admitted under oath that he was guilty of all three charges against him. Further, the trial court acknowledged that the time to assert an entrapment defense would have been at the trial on the merits of the charges, not in his PCR motion; accordingly, the court found that this assertion lacked merit. We agree. See Campbell v. State, 878 So.2d 227, 229 (¶ 7) (Miss.Ct.App.2004) (explaining that a guilty plea that is voluntarily made waives any defenses the defendant may have had to the charge, including the defense of entrapment).

¶ 12. The record shows that at the plea hearing, upon the trial court’s inquiry as to whether Smith understood that by entering a plea of guilty he was waiving or giving up any right to a trial to confront, question, and cross-examine any witnesses who appeared and testified against him, Smith responded, under oath, that he understood. See URCCC 8.04(A)(4). Further, the record reflects that Smith entered his guilty pleas knowingly and voluntarily under oath; and in so doing, Smith waived any defense he might have had to the charges against him, including the defense of entrapment. See Campbell, 878 So.2d at 229 (¶ 7). Accordingly, we find this issue is without merit.

¶ 13. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.

      . For clarity, we have restated the appellate issues raised by Smith. We also pause to note that in his pro se "Citation of Supplemental Authorities," Smith argues that "[t]he trial court erred by charging [him] under the habitual statute[; therefore,] [t]he ruling of the trial court should be reversed.” We first recognize that Smith raises issue with his habitual-offender status for the first time on appeal in his "Citation of Supplemental Authorities," which is a misuse of the "Citation of Supplemental Authorities.” See M.R.A.P. 28(j). Additionally, we find that a review of the record shows that Smith did not raise this argument in his PCR motion, but he raises it for the first time on appeal. Therefore, this argument is procedurally barred from our review. See Reese v. State, 21 So.3d 625, 628 (¶ 12) (Miss.Ct.App.2008). Notwithstanding the procedural bar, we note that the trial court, upon motion of the State, dismissed the habitual-offender portion of Smith’s charges prior to the sentencing phase of the plea hearing. Thus, Smith was not sentenced as a habitual offender, which renders this argument moot on appeal.

      . Cause number CR08-597 in the Circuit Court of Lee County, Mississippi.

      . In cause numbers CR09-200 and CR09-201 in the Circuit Court of Lee County, Mississippi, Smith was charged with one count of the sale of cocaine, respectively.

      . This Court pauses to note that: the Lee County grand jury indicted Smith as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007) in cause number CR08-597 and at the plea hearing, the State noted that the charges in cause numbers CR09-200 and CR09-201 were changed to habitual status on plea day.

      . Except for his own affidavit, Smith attached no affidavits to his PCR motion in support of his claims.

      . Section 99 — 39—9( 1)(e) requires that Smith provide:
      A specific statement of the facts which are not within the petitioner’s personal knowledge. The motion shall state how or by whom said facts will be proven. Affidavits of the witnesses who will testify and copies of documents or records that will be offered shall be attached to the motion. The affidavits of other persons and the copies of documents and records may be excused upon a showing, which shall be specifically detailed in the motion, of good cause why they cannot be obtained. This showing shall state what the petitioner has done to attempt to obtain the affidavits, records and documents, the production of which he requests the court to excuse.

      . In his motion showing facts not within his personal knowledge, Smith stated:
      Dimera Smith has [n]ot attempted to obtain the affidavit of counsel Mims to support these facts that are not within his personal knowledge. Dimera Smith sincerely believes that any such attempt would have been in vain, due to the fact that their relationship was adversarial after counsel Mims’s appointment.

      . Smith’s brief is unclear as to which date his assignment of error stems from, the date that the offense occurred or the date that he was charged. We note, however, that “[a] formal indictment or information or an arrest-whichever first occurs-triggers the constitutional right to a speedy trial.” McBride v. State, 61 So.3d 138, 142 (¶ 8) (Miss.2011) (citing United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Smith v. State, 550 So.2d 406, 408 (Miss.1989)). We also recognize that Smith neglects to acknowledge that he pleaded guilty on May 27, 2009, to all three of the offenses charged. Moreover, a review of the record reflects no statute-of-limitations issues in this case.


source: Caselaw Access Project

author: MYERS, J., MAXWELL, J.,

license: Public Domain

text:
    Fred LENARD Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00348-COA.
    Court of Appeals of Mississippi.
    Sept. 13, 2011.
    Rehearing Denied Jan. 10, 2012.

      George T. Holmes, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MYERS, J.,

for the Court:

¶ 1. Fred Lenard Jr. was convicted after a jury trial in the Coahoma County Circuit Court of capital murder, kidnapping, and felony child abuse. Lenard was sentenced to life imprisonment without the possibility of the parole for murder and to thirty years for each of the other counts. The sentences were ordered to be served consecutively, all in the custody of the Mississippi Department of Corrections. Lenard appeals, contending that the trial court erred in admitting evidence of prior bad acts, hearsay, and photographs of the victim. Lenard also argues that the jury’s verdict is against the overwhelming weight of the evidence. Finding no reversible error, we affirm Lenard’s convictions and sentences.

FACTS

¶ 2. In 2008, Lenard was involved in a relationship with twenty-seven-year-old Katrina Dumas of Clarksdale, Mississippi, a single mother of two. The relationship had been ongoing for several years, and Lenard was the father of Katrina’s three-year-old son, Fred Dumas, who was called “Little Fred” to distinguish him from his father and two of Lenard’s other sons, who all shared the name Fred. Katrina had recently obtained a child support order against Lenard and started a relationship with another man.

¶ 3. On April 23, 2008, the Dumas family became concerned when Katrina and Little Fred did not return from a brief errand. Around noon, Katrina had been at her parents’ house and left in her father’s 1998 Cadillac to deliver a lunch to her brother. Katrina called her mother to say she had sold the lunch and would come back to get another plate. This was the last the family would hear from Katrina, who never made it home. At approximately 2:15 p.m., Lenard called Katrina’s parents and asked if Katrina had “made it back yet.” Katrina did not answer her cell phone, and when she failed to pick up her nine-year-old daughter Rhodeisha from school, the family began searching for her. Later that afternoon, Rhodeisha and her maternal grandmother, Catherine Dumas, spotted Lenard driving the Dumases’ Cadillac near the senior Dumases’ home. Catherine and Rhodeisha went searching for the vehicle, which they found about ten minutes later, abandoned on Ashton Alley in Clarksdale. The hood was still warm, and the car was covered in mud, though it had been clean when Katrina took it earlier that day. The Dumases called the police. The doors were locked, and when they were opened by the responding officers, blood was found in the passenger area. A large amount of her blood was also found in the trunk, as well as hair and mud. The blood was later determined to be Katrina’s. At trial, one of the State’s witnesses testified that he had seen the Cadillac in the alley and a “big and stocky” black man — who appeared to be nervous — exit it and walk to another street. The man got into a red car and left, with another person driving.

¶4. The same day, Lenard had picked up his uncle, Marshall Ross, to work on Lenard’s house. Ross testified that some time that morning, Lenard had taken a phone call in private. The two worked in the house until approximately 11:45 a.m., when Lenard left. Ross continued working, but around 2:30 p.m. he went fishing with Lenard’s parents. Ross returned to Lenard’s house later that afternoon. Lenard did not come home until some time after 5:00 p.m. When Lenard returned, his wife was with him, and Lenard had changed his clothes. Lenard asked Ross to say he had borrowed Lenard’s vehicle— a red Pontiac Aztek — that afternoon and left it parked on Ashton Street between noon and 2:00 p.m. Ashton Street is near Ashton Alley where the Dumases’ Cadillac was found.

¶ 5. A search was organized for Katrina and Little Fred. Around 5:00 p.m. the next day, Little Fred was found alive by his half-brother, Fred Aikens. Aikens was the twenty-three-year-old son of Lenard and a former wife. Aikens testified that he had been told by a member of his mother’s family — who had heard it from another family member — that Katrina was dead, but Little Fred was alive; and the two would be found tied to a tractor tire near the Pleasant Grove Church in Sher-ard, Mississippi. Pleasant Grove was the church Lenard and his family attended. Aikens did not know the original source of the information. In the woods near the church, Aikens found Little Fred alone, “hogtied,” lying face-down in a ditch in a wooded area near the church. Little Fred’s hands and feet had been bound together behind his back with wire. He was cold, wet, hungry, and covered with insect bites. Little Fred had also been bitten by a snake; had bruises on various parts of his body; injuries to his wrists and ankles from the bindings; and swelling in his face, hands, and feet. He was taken to a nearby hospital, where he repeatedly stated: “My daddy did it.”

¶ 6. On the evening of April 25, Katrina’s body was found in brush near a cemetery approximately a mile and a half from where Little Fred had been found the day before. The body was nude and had been covered with vines. A piece of steel wire was found tied around Katrina’s neck.

¶ 7. Dr. Steven Hayne examined the body, and he determined that Katrina had been killed by strangulation. She had numerous other injuries, including an injury to her skull that appeared to have been caused by a tire iron — the tire iron kept in the Cadillac was missing. The head injury was nonfatal, but it had likely caused a concussion and some period of unconsciousness. Katrina also appeared to have defensive wounds to her hands and arms.

¶ 8. Lenard was arrested, and he was noted by multiple witnesses to have had scratches on his hands, forearms, and legs after Katrina’s disappearance. Lenard gave a statement to the Clarksdale Police Department. He claimed that on April 23, he dropped his wife off for work at 7:45 a.m., then called Katrina. He met her and Little Fred at a local grocery store, and they ate breakfast together at a fast-food restaurant. Lenard then left to pick up his uncle, Ross, to work on Lenard’s house. Lenard stated that he stayed at the house until he left to pick up his wife from work and their son from daycare later that afternoon.

¶ 9. Little Fred was four years of age at the time of the trial. He testified that the last time he saw his mother, Lenard was driving the Dumases’ Cadillac and took Little Fred and Katrina to a “pink church.” He saw Lenard “hurt” his mother, and when Lenard put him in woods, Katrina could not protect him because “blood came out of her nose.” Little Fred also testified that Lenard put a “string” around Katrina’s neck.

¶ 10. The State also offered testimony that Lenard had been abusive toward Katrina in the past and had threatened her life on more than one occasion. On January 29, 2008, Katrina had called the Clarksdale police for a domestic disturbance, complaining that Lenard had come to her home to fight. The police gave Lenard a “courtesy ride” to another location. Rhodeisha testified that Lenard became angry when Katrina would not answer his phone calls. He had taken Katrina into the woods, pointed a gun at her, and threatened to kill her. The night before she was killed, Lenard had been at Katrina’s home, angry, and was “acting like he was going to hit her.” Lenard was described as sometimes acting erratic or “crazy” during these incidents. The State also produced one of Lenard’s ex-wives, Yolanda Lester, who testified that shortly after their divorce, Lenard had strangled her with a wire until she passed out, in a manner similar to how Katrina was killed.

¶ 11. Lenard did not testify in his own defense, but he did offer the testimony of his two sisters, who stated that Lenard and Katrina had a good relationship. They testified that Lenard’s ex-wife, Lester, had fought with Katrina and threatened her life, and the two had “bought guns for each other.” Lenard’s witnesses also stated Katrina was involved in the drug trade, and it was established through other evidence that marijuana plants were found growing in the brush near where her body was found. Several witnesses stated that they had heard Katrina’s voice in the woods around the time Little Fred was found. Also, a Mississippi Department of Human Services employee testified that Lenard had acknowledged paternity and signed all the necessary documents for a “voluntary” child support order and withholding to be entered.

¶ 12. The jury convicted Lenard of capital murder, kidnapping, and felony child abuse. He appeals from that judgment.

STANDARD OF REVIEW

¶ 13. We review the trial court’s eviden-tiary rulings for an abuse of discretion, which may be found only if the decision is not supported by substantial credible evidence or where “the reviewing court has a definite and firm conviction that the court below committed a clear error of judgment and [in the] conclusion it reached upon a weighing of the relevant factors.” Withers v. State, 907 So.2d 342, 345 (¶ 7) (Miss. 2005) (citation and quotations omitted). Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party. Gibson v. Wright, 870 So.2d 1250, 1258 (¶ 28) (Miss.Ct.App.2004). “In other words, the admission or exclusion of evidence must result in prejudice or harm if the cause is to be reversed on that ground.” Harper v. State, 887 So.2d 817, 829 (¶ 57) (Miss.Ct.App.2004).

DISCUSSION

1. Prior Bad Acts

¶ 14. This issue concerns the testimony of Lester, Lenard’s ex-wife. She testified that a few days after their divorce, Lenard forced his way into her home and strangled her with a piece of wire. Lenard had cut the wire from a lamp on Lester’s porch before knocking on her door. When she refused to let him inside, Lenard forced his way inside and strangled her with the wire. During the attack, Lenard told Lester: “Bitch, if I can’t have you, I’m killing you tonight.” She begged for her life, asking Lenard for mercy because she had two children. Lenard responded, “so,” and continued strangling Lester until she passed out. When Lester awoke, Lenard was going through her cell phone. Lenard then choked her again but stopped when Claude Burks, a friend of his, came home.

¶ 15. The State offered Lester’s testimony to show Lenard’s “identity, motive, and plan” under Mississippi Rule of Evidence 404(b), on the theory that the prior attack was similar to the one in which Katrina was killed. On appeal, Lenard contends that the similarities between the incidents are superficial and that the testimony was improperly admitted as character evidence. He argues that it only served to show the jury that Lenard had been violent toward another woman, leading them to conclude that he was more likely to have been violent toward Katrina. Lenard contends that Lester’s testimony was used for the improper purpose of showing “the character of a person in order to show that he acted in conformity therewith.” M.R.E. 404(a).

¶ 16. We find this argument procedurally barred on appeal. At trial, Lenard objected to the admission of Lester’s testimony, but only on specific and limited grounds. He did not argue that it was improper character evidence; instead, he gave two reasons for his objection. He first pointed out that the events had occurred seven years before Katrina’s death, without elaborating further or stating the significance of this fact. Lenard’s principal argument in the objection was that Lester’s testimony was not credible because Lenard had never been convicted of a crime in the assault on Lester. When asked by the trial judge to clarify whether this objection was to the credibility of the testimony, Lenard’s counsel stated:

Yes, sir, it does go to the credibility issue, but they are asking to raise alleged prior bad acts that have not been proven, that have not been tested in court. Anybody can walk in here and say anything about Fred Lenard since he’s on trial and since he’s the defendant, and we believe that the rules are designed to protect against that kind of thing, because what they’re doing is saying that this is evidence of motive and intent, but the allegations, according to him, are untrue as regarding the ex-wife.

¶ 17. “Objections to evidence must bring to the attention of the trial judge the specific ground on which it is contended such evidence is inadmissible so that the trial judge may determine whether or not such evidence is available to objector’s adversary.” Stringer v. State, 279 So.2d 156, 158 (Miss.1973) (quoting Boring v. State, 258 So.2d 251, 258 (Miss.1971)). “[A]n objection on one or more specific grounds constitutes a waiver of all other grounds.” Brown v. State, 682 So.2d 340, 350 (Miss.1996).

¶ 18. As Lenard did not object at trial on the grounds he now seeks to advance on appeal, this issue is procedurally barred.

2. Hearsay

¶ 19. In this issue Lenard attacks several admissions of hearsay evidence by the trial court. Hearsay is defined as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter” and is generally not admissible at trial. M.R.E. 801(c); M.R.E. 802. There are, however, numerous exceptions to the rule against hearsay.

A. Little Fred’s Statements at the Hospital

¶ 20. The first sub-issue concerns Little Fred’s statements made in the hospital shortly after he was found tied up in the woods, the day after his mother’s murder. The trial court allowed these statements to be repeated as hearsay by an emergency-room nurse and by Andrew Thompson, the Coahoma County Sheriff, who briefly interviewed the child a short time after he made the statements to the nurse.

¶ 21. The trial court admitted the testimony, citing three hearsay exceptions, provided by Mississippi Rules of Evidence 803(1) (present-sense impression), 803(3) (then-existing mental condition), and 803(24) (the “catch all” exception for trustworthy hearsay). Lenard argues vigorously that none of these are applicable. We find that a discussion of those exceptions would be academic, since the testimony was clearly admissible under Rule 803(2) as an excited utterance. “It is well established in our jurisprudence that the right result reached for the wrong reason will not be disturbed on appeal.” Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 572 (¶ 42) (Miss.2009).

¶ 22. Rule 803(2) provides an exception to the rule against hearsay for “excited utterances.” The rule defines this as a statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The official comment to the rule elaborates:

The underlying theory of the excited utterance exception is that circumstances may create such an excited condition that the capacity for reflection is temporarily impeded and that statements uttered in that condition are thus free of conscious fabrication.... [T]he essential ingredient here is spontaneity. With respect to the time element, the issue is the duration of the excited state. This, depending on the exact circumstances of a case, can vary greatly....

¶ 23. Nothing in the record suggests that Little Fred was not still under the excitement of the incident at the time the statements were made. He had witnessed his mother’s murder, been bound, carried into the woods, and left in a ditch overnight. Little Fred was covered by insect bites, bitten by a snake, and rained on while lying face-down in the ditch. When he was found, the child was observed to be suffering from exposure and injuries from the bindings, and he had little opportunity to recover before giving the statements.

¶ 24. The accounts of the witnesses consistently described Little Fred as agitated when he was found. He was immediately taken to a hospital in Clarksdale, and all of the statements at issue were made a short time after his arrival there. First, Little Fred spoke to a nurse. He “whined,” complaining that he was hungry and asking for food. Little Fred asked what was being done to him. The nurse then asked Little Fred: “What happened to you?” He responded by repeatedly stating: “My daddy did it.” He would not elaborate when asked what his father had done. About fifteen minutes after his arrival at the hospital, Little Fred was briefly interviewed by Sheriff Thompson. The sheriff testified that when he arrived, the nurses were still trying to calm the child. Initially, Little Fred would not respond to the sheriffs questions, but after being calmed somewhat by a nurse, he responded to the question: “Who made these marks on you?” by saying, “My daddy.” Little Fred would not answer further questions. At that point, Sheriff Thompson “backed off’ so as not to interfere with the child’s treatment.

¶ 25. We find that the statements were spontaneous, as defined by Mississippi law. “The mere fact that the statement ... was in response to an inquiry ... does not necessarily take [it] outside the realm of admissible excited utterances.” Barnett v. State, 757 So.2d 323, 330 (¶ 18) (Miss.Ct.App.2000) (citing Sanders v. State, 586 So.2d 792, 795 (Miss.1991)). In fact, the Mississippi Supreme Court has held that “[w]here the excited utterance is prompted by a simple question, even from an officer, such as ‘What happened?’ or ‘What’s wrong?’ ” it may still fall under the exception. Carter v. State, 722 So.2d 1258, 1261 (¶ 10) (Miss.1998) (citations omitted).

¶ 26. Little Fred’s hearsay statements were admissible as excited utterances, so we find no error in their admission into evidence.

B. Katrina’s Statements to Ranaildi Haynes

¶ 27. Lenard’s second hearsay issue concerns the testimony of Katrina’s friend, Ranaildi Haynes. Haynes testified that a few months before Katrina’s death, he had loaned her $100 to buy a purse. A few days before Katrina disappeared, he spoke with her on the telephone, and she told him that Lenard had been asking who bought her the purse. Katrina told Haynes she planned to end her relationship with Lenard and was going to tell him that she was seeing another man. Before the testimony was heard at trial, Lenard objected to it as hearsay. After a somewhat confusing argument, the trial judge overruled the objection, finding that Haynes’s testimony would not be hearsay.

¶ 28. On appeal, the State concedes that Haynes’s testimony was hearsay. However, it contends that there was no error in admitting the testimony because it fell under the hearsay exception for a statement of then-existing mental condition, Mississippi Rule of Evidence 803(3). We agree.

¶ 29. Rule 803(3) provides an exception to the rule against hearsay for “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.... ” The official comment to the rule adds that “statements which indicate intention to do something in the future are admissible to prove that the act intended took place.”

¶ 30. Haynes testified that Katrina told him of her plan or present intent to tell Lenard she was ending their relationship. Rule 803(3) allows statements of plan or intent, and this “encompasses relevant statements made by murder victims before their death[s].” Harris v. State, 861 So.2d 1003, 1019 (¶ 42) (Miss.2003). Since this testimony was admissible as an exception to the hearsay rule, we find no error in the trial court’s decision to allow it.

3. Photographs of Victim

¶ 31. Next, Lenard challenges the trial court’s decision to admit various photographs of the victim’s body into evidence. A series of photographs in S-21 show Katrina’s nude body as it was found in the woods: S-21i shows the body from a distance; S-21j shows it from closer up; S-21k shows Katrina’s legs and feet; S-21m shows Katrina’s body from another angle; and S-21n shows the injuries to Katrina’s right shoulder and the back of the right side of her head and face. Exhibits S-7a and S-7b were taken at the morgue. They show the injuries to Katrina’s neck and face, respectively, with the wire still wrapped around her neck. S-23 is a series of seven photographs taken during Dr. Hayne’s examination of the body, showing injuries to Katrina’s neck, arms, hands, and torso. On appeal, Lenard contends that the photographs are cumulative and overly gruesome.

¶ 32. The Mississippi Supreme Court has held:

Admission of photographs by the trial court is reviewed for abuse of discretion. A decision favoring admissibility will not be disturbed absent a clear abuse of that judicial discretion. The discretion of the trial judge is almost unlimited regardless of the gruesomeness, repetitiveness, and the extenuation of probative value. Some probative value is the only requirement needed in order to support a trial judge’s decision to admit photographs into evidence. So long as a photograph has probative value and its introduction serves a meaningful eviden-tiary purpose, it may still be admissible despite being gruesome, grisly, unpleasant, or even inflammatory. A photograph has a meaningful evidentiary purpose when it: (1) aids in describing the circumstances of the killing; (2) describes the location of the body or cause of death; or (3) supplements or clarifies witness testimony.

Chamberlin v. State, 989 So.2d 320, 340 (¶ 73) (Miss.2008) (citations and quotations omitted). “In order to exclude any photograph, the trial court would have [to find] that, pursuant to Mississippi Rule of Evidence 403, the probative value of such photograph was substantially outweighed by the danger of unfair prejudice.” Id. at 341 (¶ 79).

¶ 33. With that deferential standard of review in mind, we have reviewed the photographs and the accompanying record. Each of the photographs has some probative value, and it appears that the trial judge carefully considered the threat of unfair prejudice before allowing each photograph into evidence. Several photographs offered by the State, although relevant, were excluded by the trial court because of their graphic content. We cannot find that the trial court abused its broad discretion in allowing the others that are now challenged on appeal. This issue is without merit.

4. Weight of the Evidence

¶ 34. In his final issue, Lenard contends that the jury’s verdict is against the overwhelming weight of the evidence. The Mississippi Supreme Court has detailed how our appellate courts must review the weight of the evidence supporting a jury’s verdict, stating:

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.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather ... [the reviewing] court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (internal citations and quotations omitted). The supreme court also warned that a challenge to the weight of the evidence “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)).

¶ 85. In arguing this issue, Lenard contends that the Dumas family suspected him in Katrina’s disappearance from the beginning. He claims they manufactured or imagined much of the evidence against him. He specifically points to Rhodeisha’s testimony that she alone saw Lenard driving the Dumases’ Cadillac the day Katrina disappeared, whereas Catherine Dumas testified she also saw Lenard driving the vehicle.

¶ 86. Lenard also points to several weaknesses in the case against him. No fingerprints, scrapings, or other trace evidence tied him to the crime. The only direct evidence of his involvement came from Little Fred, whose testimony at trial was broken and difficult. In his testimony, Little Fred was asked repeatedly who his “daddy” was. Several times he initially stated that his “daddy” was named “Rodney” — apparently referring to Rhodeisha’s father — before correcting himself to identify Lenard as his father. This was explained in other testimony as something the child had started doing after his parents had disappeared from his life. Lenard also points to what he asserts are inconsistencies in the accounts describing the clothes he was seen wearing at various times during the day of the murder.

¶ 37. After reviewing the record, we do not find that Lenard’s convictions are against the overwhelming weight of the evidence. As discussed above, there was significant evidence, both circumstantial and direct, of Lenard’s guilt. Lenard’s arguments primarily concern the credibility of witnesses and the resolution of conflicting inferences or testimony. “The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)). Conflicts in the evidence are for the jury to resolve. Whittington v. State, 377 So.2d 927, 929 (Miss.1979). We cannot say that the jury’s verdict is against the overwhelming weight of the evidence. This issue is without merit.

¶ 38. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I, CAPITAL MURDER, AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE; COUNT II, KIDNAPPING, AND SENTENCE OF THIRTY YEARS; AND COUNT III, CHILD ABUSE, AND SENTENCE OF THIRTY YEARS, ALL TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE AND ROBERTS, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION JOINED BY BARNES, CARLTON AND RUSSELL, JJ.

MAXWELL, J.,

concurring in part and in result:

¶ 39. I agree with the majority’s affir-mance of Lenard’s convictions. But I respectfully disagree with its finding that Lenard’s defense attorney failed to preserve an objection to the admission of Rule 404(b) evidence concerning Lenard’s prior strangling of his ex-wife. My review of the record indicates Lenard’s counsel did indeed object to admission of what he deemed “prior bad acts.” He recognized the court could possibly admit the strangling and other acts, as defense counsel put it, as “evidence of motive and intent.” But he argued admitting the seven-year-old, unproven choking would permit the jury to consider evidence that “is highly prejudicial and may not be true.” (Emphasis added).

¶40. Even if his recognition that the circuit court could potentially admit the past strangling evidence to establish “motive and intent” is deemed a waiver, I find his proffer sufficient to at least preserve his objection as it relates to the second part of the Rule 404(b) test — the determination of whether the probative value of the prior act outweighs the danger of unfair prejudice. Davis v. State, 40 So.3d 525, 530(16) (Miss.2010) . (explaining the two-part analysis for M.R.E. 404(b)).

¶ 41. The circuit judge recognized that Lenard had generally invoked a 404(b)-based objection. And before ruling on it, the circuit court correctly noted: “Generally speaking such evidence is not admissible. However, under [Rule] 404(b), it can be brought in ... an effort to prove motive, opportunity, intent, plan, knowledge, preparation, matters such as that.” The judge further found the seven-year-old strangling event was “not so remote” that “its probative value would be outweighed by the remoteness of it.” The judge admitted the prior strangling “over the objection of the defense.” And he “afforded] the defense a continuing objection as to those matters.”

¶ 42. Finding the objection preserved, I turn to the merits of Lenard’s claim. On appeal, Lenard essentially argues the prejudicial nature of the prior strangling episode outweighed its probative value. The circuit court correctly identified that admission here was governed by Rule 404(b) of the Mississippi Rules of Evidence. Rule 404(b) provides that evidence of prior acts is not admissible to show a person “acted in conformity therewith.” But the circuit judge correctly recognized it might be admissible for other purposes, including “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. The Mississippi Supreme Court has applied a two-part test for the admissibility of evidence under Rule 404(b). First, the evidence must “be relevant to prove a material issue other than the defendant’s charaeter[.]” Davis, 40 So.3d at 530 (¶ 16) Second, “the probative value of the evidence must outweigh the prejudicial effect.” Id. This second prong implicates Mississippi Rule of Evidence 403 — “the ultimate filter through which all otherwise admissible evidence must pass.” Davis, 40 So.3d at 530 (¶ 16).

¶ 43. Citing Robinson v. State, 35 So.3d 501, 506-07 (¶ ¶ 13-16) (Miss.2010), Lenard deems the seven-year-old strangling inadmissible character evidence which bore “no probative value whatsoever” to his present strangling-based capital-murder charge. I disagree. Robinson concerned the reversal of a murder conviction based on admission of evidence that the defendant had previously threatened another woman by placing a gun to her head two years prior to the present victim’s shooting death. Our supreme court reversed this court’s split decision that the admission of the prior event was harmless error. Id. at 507 (¶ ¶ 17-19). In doing so, it found the pri- or-bad-acts testimony was generally inadmissible character evidence. Id. at (¶ 16). I find two distinct differences in Robinson that diminish its applicability to Lenard’s case. First, in Robinson, neither the State nor circuit judge considered admission of the prior acts under any of the explicitly permitted purposes of Rule 404(b). Rather, the State offered a DVD recording of a police interview of the defendant that included questioning about his alleged past bad acts. Id. at 503 (¶ 6). The State claimed it could not redact the complained of portions. The circuit judge overruled the defense’s objection to what it deemed inadmissible evidence on the DVD “concerning a possible criminal background of [the defendant].” Id. But permissible 404(b) purposes were neither raised nor addressed. Instead, the circuit judge took a vastly different path, admitting the DVD in its entirety by reasoning, “the completeness of the issue that I have, that’s what they’re doing is interrogating a homicide. That is different than eliciting evidence of a prior crime or criminal act.” Id.

¶ 44. Another sharp and quite pertinent distinction between Robinson and Lenard’s case concerns the method of injury-strangulation — and the remarkably unusual instrument used in each episode — a wire cord.

¶ 45. I am not ready to classify these highly unusual similarities as the “Mark of Zorro,” as the Court of Criminal Appeals of Texas did when admitting a defendant’s prior strangulation-based sexual-assault homicide as 404(b) evidence in a later similar murder case. See Segundo v. State, 270 S.W.3d 79, 88-89 (Tex.Crim.App.2008). But I do draw from the Texas court’s analysis that one of the main rationales for admitting “extraneous-offense evidence is to prove the identity of the offender.” Id. at 88. I also agree that in some cases, the operative relevancy concerns the “modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a ‘signature.’ ” Id.

¶ 46. Mississippi has not addressed Rule 404(b)’s application to signature crimes, but I find Texas’s well-developed law on this issue to be sensible. In Texas, no rigid rules dictate what constitutes sufficient similarities. Rather, the common characteristics may be proximity in time and place, mode of commission of the crimes, the person’s dress, or any other elements that mark both crimes as having been committed by the same person. Id. “But if the similarities are ‘generic,’ i.e. typical of the crime, they will not constitute a ‘signature crime.’ ” Id.

¶ 47. While a generic gun-based crime under certain facts, like those in Robinson, do not tend to befit the designation of a “signature crime,” I find a wire-based strangulation qualifies. See Taylor v. State, 920 S.W.2d 319, 322 (Tex.Crim.App.1996) (holding similar robbery-murder committed with wire coat hanger was sufficiently similar for admission under Rule 404(b)).

¶ 48. That Lenard’s prior strangling act took place seven years before the charged strangulation-based murder was but one fact to consider in the trial court’s 404(b) analysis. Our supreme court recently affirmed the admission of 404(b) evidence relating to a pedophile’s acts of prior sexual abuse that took place seven years prior to his charged fondling offense. Gore v. State, 37 So.3d 1178, 1183-86 (¶¶ 14-21) (Miss.2010). The circuit court here determined the extraneous strangling was “not so remote” that “its probative value would be outweighed by the remoteness of it.” Finding no abuse of discretion in this logic, I find the prior strangulation proper 404(b) evidence.

BARNES, CARLTON AND RUSSELL, JJ., JOIN THIS OPINION.

      . Katrina and her mother had been selling lunches to raise money for their church; her father was the pastor there.

      . It is not clear from the testimony whether Burks lived in the same home as Lester or somewhere nearby.


author: ISHEE, J„

text:
    Thermon ARRINGTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00808-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2011.
    Rehearing Dismissed Jan. 10, 2012.

      Caleb Elias May, attorney for appellant.
    Office of the Attorney General By W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   ISHEE, J„

for the Court:

¶ 1. Thermon Arrington was convicted of manslaughter in the death of Shasta Smith. Arrington shot Shasta in the neck during an argument at a birthday party. A previous trial of Arrington for Shasta’s death resulted in a mistrial. Arrington was sentenced as a habitual offender to twenty years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Arrington submits three issues for our review: (1) whether his double-jeopardy rights were violated because of a jury instruction, (2) whether the trial court erred in denying a mistrial during voir dire, and (3) whether the trial court erred in denying a directed verdict and by not granting a judgment notwithstanding the verdict (JNOV) and a new trial. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. A birthday party was held on September 21, 2008, at the home of Addie Carol Smith, the mother of the victim, Shasta. Addie was hosting the party for her oldest daughter, Trina Smith. There were ten to fifteen people at the party in Newton, Mississippi, with most of the guests being members of Shasta’s family. Arrington was at the party as a guest of Shasta’s sister, Renee Smith. As the party progressed, alcohol was consumed by the various party goers. Shasta and his brother, Willie Joe Smith, began arguing; because of this, Shasta and Renee made Willie Joe leave the party. At approximately 5:00 p.m., Shasta and Arrington had an argument outside Addie’s home. Shasta’s sister, Valencia Burton, attempted to disrupt the argument by walking Shasta away from the house down a hill to his sister’s house. At this point, there is a disagreement as to what happened next. All of the State’s witnesses testified that Arrington went to his car, retrieved a pistol, and shot the pistol once in the air. He then approached Shasta and Valencia and stood between them trying to cool down the argument. Some of the State’s witnesses, who had seen the killing, testified that Shasta was unarmed. Arrington said Shasta had a red-handled hunting knife. Valencia confirmed Shasta had a knife, but she testified that he dropped it to his side well before he was shot, and Shasta never used it in a threatening manner toward Arrington. Officers with the Newton Police Department who investigated the scene never found a red-handled hunting knife.

¶ 3. Valencia said as Arrington was approaching them, she kept pushing Shasta away from Arrington until she and Shasta were against the house. After Arrington had pushed Valencia out of the way, Ar-rington and Shasta were face to face. The State’s witnesses testified that Arrington put the gun to Shasta’s face, and Shasta told Arrington to get the “f* ⅞ * out of [his] face” and slapped the gun down. Ar-rington maintained Shasta had a red-handled hunting knife. Valencia testified that Shasta had the knife, but he held it at his side at all times. Arrington told Shasta: “B* ⅜ * * * *, I’m going to kill you,” and Shasta replied: “Well if you are gonna do it, do it.” Arrington then put the gun to Shasta’s neck and shot him. Shasta did not die immediately but succumbed to his injury several days later at the local hospital. After he shot Shasta, Arrington fled the scene and drove to Meridian, Mississippi, where he spent the night in a motel room. After talking with his father, Ar-rington returned to Newton the following day and turned himself in to the authorities.

¶ 4. Arrington was charged with murder as a habitual offender. At his first trial in August 2009, the jury deliberated for twelve hours and then reported to the trial judge that it was hopelessly deadlocked. The trial judge declared a mistrial. At the second trial held on April 8, 2010, the jury returned a guilty verdict of manslaughter after deliberating only thirty-one minutes. During sentencing, at the habitual-offender hearing, the State produced evidence of eleven felony convictions that the forty-five-year-old Arrington had committed in the State of Florida. The trial judge then sentenced Arrington to the maximum twenty-year sentence for manslaughter without eligibility for parole or probation.

¶ 5. The trial court overruled Arring-ton’s post-trial motions for a JNOV and a new trial. Arrington now appeals.

ANALYSIS

I. DOUBLE JEOPARDY

¶ 6. Arrington argues that the trial court erred by refusing a manslaughter instruction in his first trial and only submitting a murder instruction. Arrington claims by refusing a manslaughter instruction in the first trial and allowing one in the second trial, the trial judge violated Arrington’s constitutional right against double jeopardy. Arrington claims by not submitting the manslaughter instruction in the first trial, the trial judge “acquitted Mr. Arrington of manslaughter”; and since he was “acquitted” of manslaughter, his trial and conviction of manslaughter in the second trial were barred by double jeopardy, and he could not be “twice put in jeopardy of life or limb” for the same offense. U.S. Const. amend. V. Arrington cites Watts v. State, 492 So.2d 1281, 1284 (Miss.1986), for the proposition that if a mistrial is granted upon the court’s motion, a second trial is barred by double jeopardy, unless taking into consideration all of the circumstances there was a “manifest necessity” for the mistrial. This is a correct statement of the law. However, Arrington’s double-jeopardy argument fails on so many fronts that it is not necessary to reach a “manifest-necessity” analysis in the instant ease.

¶ 7. His argument fails primarily because he has not supplied us with a record on which we can decide his assigned error. We simply do not have the benefit of the record of the first trial to know why any of the instructions were given or denied. The part of the first trial that would have set out the discussion of the instructions given or denied was not designated by Arrington for inclusion in the appeal record. Of course, each party is responsible for designating the content of the trial record that he or she determines should be included in the appellate record. M.R.A.P. 10. It was Arrington’s responsibility to ensure that his appellate record was sufficiently made so this Court could analyze his alleged errors. Arrington urges this Court to make decisions regarding jury instructions in the first trial without designating the record of the first trial and, more specifically, the arguments and judicial rulings on the instructions. Instead, all that is in the appeal record regarding instructions from the first trial are five documents with the heading of the trial court case and each marked “jury instruction” and showing a file stamp of the Circuit Clerk of Newton County dated August 10, 2009, the date of the first trial. Four “instructions” appear to have the marking “refused” at the bottom, and we are unable to read what is written at the bottom of the fifth “instruction.”

¶ 8. We must decide cases on appeal by the facts shown in the record, not by assertions in the parties’ briefs. Oakwood Homes Corp. v. Randall, 824 So.2d 1292, 1298 (¶ 8) (Miss.2002) (citation omitted). In an opinion containing facts similar to those in this case, the Mississippi Supreme Court declined to review an allegation that the trial court erroneously refused to give the plaintiffs’ jury instructions. Nichols v. Tubb, 609 So.2d 377, 388 (Miss.1992). The supreme court ruled that the appellants made no record whatsoever about the refused instruction; therefore, the appellate court was not required to consider the issue. Id. The supreme court stated if there had been confusion or error on the part of the trial court, then counsel for the appellants should have made “a proper record of precisely what occurred in reference to these instructions.” Id. The supreme court also said that without a record, the appellants’ counsel was asking the court “to speculate” about what had occurred at the trial level regarding the instructions since the court had “no way of knowing what occurred in reference to them.” Id. The supreme court further noted that counsel should not ask the court to surmise about jury instructions. Id. “It is in poor grace when experienced and able counsel are afforded an opportunity to make a clear and unambiguous trial record [and] do not see fit to do so, yet claim some alleged error from an incomplete, ambiguous[,] or uncertain record” which they are responsible for submitting on appeal. Id. After admonishing counsel, the supreme court addressed the importance of preserving jury instructions for appeal, stating:

If counsel for any party wants a circuit judge to consider a proposed instruction, it is his duty to submit such instruction on the record, and have the court make a ruling thereon on the record. Any error predicated upon the granting or refusing of an instruction must come from an instruction presented to the circuit court on the record, and a ruling thereon made on the record.

Id.

¶ 9. Arrington has obviously ignored the precedent noted above that the burden is on him as the appellant to demonstrate why the trial court was in error. Because we presume the decisions of the trial courts are correct as seen in Robinson v. State, 345 So.2d 1044, 1045 (Miss.1977), we find no merit to this alleged error.

¶ 10. Arrington’s double-jeopardy argument also fails because it was not included in his motion for a JNOV or new trial. '“We need not consider matters raised for the first time on appeal, which practice would have the practical effect of depriving the trial court of the opportunity to first rule on the issue, so that we can then review such trial court ruling under the appropriate standard of review.” Stephens v. Miller, 970 So.2d 225, 227 (¶ 9) (Miss.Ct.App.2007) (quoting Alexander v. Daniel, 904 So.2d 172, 183 (¶ 26) (Miss.2005)).

¶ 11. Finally for double jeopardy under the Mississippi Constitution to bar a second prosecution, there must be an actual conviction on the merits. The plain language of the state constitution reads as follows: “No person’s life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.” Miss. Const. Art. 3 § 22 (emphasis added). As the supreme court said in State v. Fleming, 726 So.2d 113, 115 (¶ 9) (Miss.1998), before an accused can claim a violation of the state’s Double-Jeopardy Clause, “the accused must first suffer an actual acquittal or conviction on the merits of the offense.” Arrington’s first trial ended in a mistrial because the jury could not reach a verdict after lengthy deliberations. There was no conviction. Therefore, Arrington could not be placed in jeopardy again at his second trial. Instead, Arrington was simply retried.

¶ 12. For all of these reasons, we find Arrington’s rights under the federal and state Double-Jeopardy Clauses were not breached, and this issue is without merit.

II. MISTRIAL

¶ 13. After the State had finished its voir dire of the jury venire but before counsel for Arrington began his voir dire, Arrington blurted out that his counsel, Bobby Everett, was “biased.” His remark appears in the record after the prosecution had completed its voir dire. The record reflects:

BY THE COURT: Voir dire for the defendant.
BY THE DEFENDANT: Your Hon- or, he is biased. Mr. Bobby Everett is biased.
BY THE COURT: Approach the bench.
(CONFERENCE HELD AT BENCH OUT OF HEARING OF JURORS)
BY THE COURT: He’s what?
BY THE DEFENDANT: Biased.
BY THE COURT: What did you say?
BY THE DEFENDANT: I say Mr. Bobby Everett is fired.
BY THE COURT: He’s what?
BY MR. EVERETT: Fired.
BY THE DEFENDANT: Fired. FI-R-E-D. Fired.
BY THE COURT: I don’t know what he’s saying.
BY MR. EVERETT: He’s saying I’m biased about something. I don’t know what happened.
BY THE COURT: About what?
BY THE DEFENDANT: He’s not giving me, representing me to the fullest of his ability.
BY THE COURT: Well, you sit in the chair. You’ve been in this trial before. You hired Bobby Everett, didn’t you?
BY THE DEFENDANT: Uh-huh.
BY THE COURT: He’s your lawyer!,] and he’ll represent you in this case. Bobby is not a biased man. He represents his clients the best [sic] of his ability.
BY THE DEFENDANT: Uh-huh.
BY THE COURT: So he’ll represent you in this case.
BY THE DEFENDANT: He’ll represent me in this case?
BY THE COURT: Yes, sir.
BY THE DEFENDANT: I don’t want him.
BY THE COURT: I don’t care if you want him or not, you’ve got him. Your case is set for trial — we’ve already started.
BY THE DEFENDANT: Unh-unh [sic],
BY THE COURT: I’m not going to recess this case for you to hire you another lawyer. You could have done it — you’ve had all this time.
BY THE DEFENDANT: I don’t want another lawyer.
BY THE COURT: What do you want to do?
BY THE DEFENDANT: I want to represent myself.
BY THE COURT: Get me Uniform Circuit Court Rules. Get the book. You can have a seat over there. I’m going to instruct you on what kind of problems you’re going to have, and I’ll explain it to you when I have that rule here. Have a seat over there.
BY MR. KILGORE (prosecutor): Judge, before we go back, would you also ask the Defendant not to stand up and do outbursts. He just stood up and yelled before the jury panels.
BY THE COURT: He did what?
BY MR. KILGORE: He stood up and yelled that his attorney was fired in the courtroom.
BY THE COURT: Well, he’s going to have to — if he’s going to represent — I’m going to let him represent himself, but he’s going to have to comply with the rules, but I’ll have to bind him — I’ll gag you if you don’t follow the rules.
All right. Have a seat over there.

¶ 14. The trial judge then excused the jury and explained to Arrington that if he represented himself he would be held to the same standards as a lawyer. The trial judge told Arrington that he had the right to represent himself or to hire a lawyer of his own choosing. “You do not have the right to now come in this courtroom and say you don’t want your lawyer to represent you — the one you hired — and delay the trial of your case.... This case will go forward.” Then Arrington asked to speak privately with his attorney, Everett. After the meeting, Arrington announced to the trial court that he was going to keep Everett as his attorney.

¶ 15. Arrington claims the trial judge should have specially voir dired the jury concerning Arrington’s statement about his attorney’s bias and then, if necessary, declared a mistrial.

¶ 16. The only statement the jury might have heard was Arrington’s assertion that his attorney was “biased.” The record as set out above shows the rest of the conversation about Arrington’s dissatisfaction with his lawyer was made at a “conference held at [the] bench out of hearing of [the] jurors.”

¶ 17. In Roundtree v. State, 568 So.2d 1173, 1177-78 (Miss.1990), the supreme court stated:

Case law unequivocally holds that the trial judge “is in the best position for determining the prejudicial effect” of an objectionable remark. The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared. Where “serious and irreparable damage” has not resulted, the judge should “admonish the jury then and there to disregard the impropriety.” (Internal citations omitted).

¶ 18. The determination of whether or not a juror is fair and impartial is a judicial question and will not be set aside unless it is clearly wrong. Taylor v. State, 672 So.2d 1246, 1264 (Miss.1996) (citation omitted).

¶ 19. To decide this alleged error we must look at it in the context of the trial. Voir dire was taking place. The State had just finished its voir dire of the jury, and the trial judge called on the defense to begin its voir dire. At that moment, Ar-rington told the trial judge, “Your honor, he is biased. Mr. Bobby Everett is biased.” The trial judge told the parties to approach the bench, and he instructed that a conference among the parties be held outside the hearing of the jurors.

¶ 20. All of the jurors chosen for the trial swore to the trial judge that they could be fair and impartial and follow their instructions faithfully. There is a presumption that the jury follows the trial court’s instructions. Payne v. State, 462 So.2d 902, 904 (Miss.1984) (citation omitted).

¶ 21. If we were to find error and declare a mistrial due to the defendant’s unprovoked outburst, we daresay the whole criminal prosecution system could come to a standstill. At any critical moment in a trial, a defendant could blurt out any type of disruptive statement that would tend to poison the jury. Under Arrington’s theory, a mistrial would be declared and another trial would have to be held on every occasion of an outburst. We will not invite such disorder in to our system of law.

¶ 22. Further, Arrington did not include the failure to declare a mistrial when he spoke of his “biased” counsel in his motion for a JNOV or new trial. As previously noted, we will not consider matters brought up for the first time on appeal. Alexander, 904 So.2d at 183 (¶ 26). For these reasons, we find this allegation of error lacks merit.

III. JNOV/New Trial

¶ 28. Arrington claims the trial court should have directed a verdict of acquittal at the conclusion of the State’s case or, alternatively, granted his motion for a JNOV or a new trial. Arrington cites no authority in support of this proposition. The supreme court has repeatedly held that the failure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment of error. McClain v. State, 625 So.2d 774, 781 (Miss.1993) (citation omitted). Procedural bar notwithstanding, we find that there was sufficient evidence to support Arrington’s conviction of manslaughter and that the conviction is not against the overwhelming weight of the evidence.

¶ 24. “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) (citation omitted). A motion for a new trial is addressed to a trial court’s discretion, and a new trial should be granted 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)).

¶ 25. When considering whether evidence is sufficient to support a conviction, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Id. at 843 (¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). If the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the appellate court should reverse and render. Id. (citing Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). But if the evidence is of “such quality and weight that, ‘having in mind the beyond[-]a[-]reasonable[-]doubt[-]burden[-]of[-]proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’” then the evidence will be considered sufficient. Id.

¶ 26. The State called several eyewitnesses to the shooting. The witnesses corroborated each other’s testimony in testifying that Arrington and Shasta argued and Arrington then armed himself with a pistol. The testimony varied on whether Shasta was armed with a knife. Some witnesses said they saw Shasta with a knife, while others testified that he did not have a knife. However, no witness, other than Arrington, testified that Shasta was armed with a knife and used it in a threatening manner toward Arrington during the argument. Valencia, who was standing between Shasta and Arrington, testified that Shasta had a knife, but she was certain Shasta never used it as a weapon and had it by his side when Arrington shot him. The police department searched for a knife, but never found one.

¶ 27. Terry Moncrief, who was not related to any of the party goers, testified that he was an eyewitness to the shooting. He said he saw Arrington and Shasta arguing. He then saw Arrington go to his car and retrieve a handgun. Moncrief said he did not see Shasta with any weapon. Moncrief stated Arrington fired one shot into the air and then moved steadily toward Shasta. Arrington pushed the gun in Shasta’s face, and Shasta pushed it out of his face. Moncrief testified that Arring-ton pulled the gun back up and shot Shasta in the neck.

¶ 28. Velma Page, a party goer unrelated to Shasta’s family, testified that she heard Arrington and Shasta arguing. She said Valencia started pulling Shasta down a hill toward Trina’s house to de-escalate the argument. She further testified that she saw Arrington go to his car, retrieve a silver gun, and start walking toward Shasta. Page saw Arrington shoot the pistol once in the air and then move closer to Shasta. She stated Arrington pushed Valencia out of the way and “pulled the trigger,” shooting Shasta in the neck. Page said she was very close to the shooting, and after Arrington shot Shasta in the neck, she ran to Shasta and took off her shirt in order to apply pressure to Shasta’s bleeding neck wound.

¶ 29. Valencia testified that after Ar-rington shot the pistol in the air, he continued to move toward her and Shasta at a rapid pace saying: ‘Yeah b* * * *, I got the gun now. What’s up now?” while he was pointing the gun at them. She said Shasta drew the knife, but it fell out of his hand before Arrington got to them. She also stated Arrington and Shasta were face to face, and Arrington was taunting him saying: “B* * * *, I’ll kill you.” Then Shasta slapped the gun out of Shasta’s face, and Arrington said: “If you slap my mother f* * * * * * gun out of your face again, I’ll kill you.” Valencia testified that Shasta responded: “If you gonna do it, do it then,” and Arrington immediately shot Shasta in the neck. Valencia immediately went to her brother’s aide, and Arrington left the scene in his car. The expert witness who performed the autopsy testified that Shasta died of a gunshot wound to an artery in his neck.

¶ 30. Arrington testified on his own behalf. He stated Shasta came running toward him with a red-handled hunting knife. In response, he jumped up and ran to his car and got a gun. Arrington said by this time, Valencia was trying to hold Shasta back, but he broke away from her and told Arrington that he was not going to shoot “no MF body.” Arrington maintained that Shasta was running at him with the knife and that he shot once in the air to try to back Shasta off. Arrington testified that Shasta did not back off but continued approaching him. Arrington stated he tried to hit Shasta with the gun and when he did, the gun hit Shasta in the jaw and discharged, shooting Shasta behind the ear. Arrington denied that he was trying to shoot Shasta intentionally; rather, Arrington said he was just trying to protect himself.

¶ 31. The trial judge gave the jury instructions on murder, heat-of-passion manslaughter, and self-defense. The jury found Arrington guilty of manslaughter.

¶ 32. “The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.” Miss.Code Ann. § 97-3-35 (Rev.2006).

¶ 33. It is undisputed that Arrington shot Shasta and that Shasta died as a result of his gunshot wound. While Ar-rington testified at times that he shot Shasta in self-defense and at other times that he accidentally shot him, the jury rejected Arrington’s testimony and instead believed the host of witnesses who stated Arrington shot and killed Shasta without malice but in the heat of passion without authority of law. There is ample evidence in the record to support this verdict. Therefore, we find Arrington’s arguments without merit.

¶ 34. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

LEE, C.J., GRIFFIS, P.J., MYERS, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: IRVING, P.J.,

text:
    Anthony THADISON, Appellant v. UNIVERSAL LIGHTING TECHNOLOGIES, INC. and Twin City Fire Insurance Company, Appellees.
    No. 2010-WC-01563-COA.
    Court of Appeals of Mississippi.
    Jan. 10, 2012.

      Carlos E. Moore, Tangala L. Hollis, Grenada, attorneys for appellant.
    Andrew G. McCullough, Ridgeland, Amy L. Topik, attorneys for appellees.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On February 20, 2008, Anthony Tha-dison filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) alleging that he had sustained injuries to his neck while working as a forklift operator for Universal Lighting Technologies, Inc. (Universal). A hearing was held before an administrative judge (AJ), who denied Thadison’s claim for workers’ compensation benefits. Tha-dison appealed the AJ’s decision to the full Commission, which affirmed the AJ’s decision. Thadison appealed the Commission’s decision to the Circuit Court of Lincoln County. The circuit court affirmed the Commission’s denial of benefits and, upon motion by Universal, dismissed Thadison’s appeal for failing to file a timely appellate brief.

¶ 2. Feeling aggrieved, Thadison raises the following issues on appeal: (1) whether the circuit court erred in granting Universal’s motion to dismiss and (2) whether the circuit court erred in affirming the Commission’s ruling that Thadison’s injury was non-compensable due to the lack of medical testimony.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Thadison began experiencing neck and back pain during 2005 while employed by Universal as a forklift operator. Thadi-son testified that in 2006, while operating a forklift at work, he hit a bump and “felt a jar” to his body. Then, he “felt a pop” in his neck when he looked up while driving the forklift. Thadison further testified that he did not report either incident to Universal, and he continued to work. When questioned by the AJ, Thadison admitted that he did not give Universal notice of a work-related injury prior to filing his petition to controvert.

¶ 5. On July 26, 2005, Thadison presented to Dr. Steven Liverman complaining of left-sided neck pain. Dr. Liverman prescribed medications and physical therapy for Thadison and released him to return to work on August 29, 2005. Dr. Liverman’s notes do not mention a work-related injury.

¶ 6. Sometime after Dr. Liverman released Thadison to return to work, Thadi-son reported to the emergency room at King’s Daughters Hospital in Brookhaven, Mississippi, complaining of left-sided next pain. The doctors at King’s Daughters referred Thadison to Dr. Patrick Barrett in Jackson, Mississippi. Dr. Barrett examined Thadison on October 25, 2005. During the visit, Thadison completed a questionnaire and indicated that his injury was not work related. Dr. Barrett diagnosed Thadison with spinal stenosis and herniated discs. On October 26, 2006, Dr. Bruce Senter, Dr. Barrett’s partner, performed cervical surgery on Thadison.

¶ 7. Dr. Senter opined in his deposition that forklift driving did not have “anything to do with [Thadison’s] neck condition.” Additionally, Dr. Senter stated that there was “only a possibility” that Thadison’s job contributed to or aggravated his existing spinal condition.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 9. The first issue raised by Thadi-son on appeal is whether the circuit court erred in granting Universal’s motion to dismiss for want of prosecution. The circuit court’s decision to grant Universal’s motion to dismiss will not be reversed absent an abuse of discretion. Hill v. Ramsey, 3 So.3d 120, 122 (¶ 6) (Miss.2009).

¶ 10. Universal filed its motion to dismiss for failure to prosecute based on Tha-dison’s failure to file an appellate brief. Thadison asserts that the circuit court erred in granting Universal’s motion because Universal did not renew its motion prior to the circuit court’s ruling on the merits of the case. However, the record completely belies Thadison’s argument. The record shows that counsel for Universal began the August 16, 2010 motion hearing by renewing Universal’s motion to dismiss based on Thadison’s failure to file an appellate brief. Thadison’s counsel was given an opportunity to respond. After the response, the circuit court decided that it would “rule on everything” after hearing oral argument on the merits of the appeal. Neither party objected to the circuit court reserving its ruling.

¶ 11. Moreover, the circuit court did not abuse its discretion in granting Universal’s motion to dismiss. When reviewing a final order of the Commission, the circuit court sits as an intermediate appellate court. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1247 (Miss.1991). Therefore, an appeal of the Commission’s decision “must conform to the practice of the Supreme Court, including form, time of filing[,] and service....” URCCC 5.06. Rule 31(b) of the Mississippi Rules of Appellate Procedure requires an appellant to serve and file his brief “within [forty] days after the date on which the record is filed.” When an appellant fails to file a brief within the time limitation set forth in Rule 31(b), “the appeal may be dismissed on motion of appellee.” M.R.A.P. 31(d) (emphasis added).

¶ 12. The circuit court clerk notified Thadison ninety-two days after the record was filed that his appellate brief was late. Subsequently, Thadison was given fourteen days, as provided by Rule 2(a)(2) of the Mississippi Rules of Appellate Procedure, “to correct the deficiency.” Twenty days later, Universal filed a motion to dismiss based on Thadison’s failure to file an appellate brief. Forty-two days after Universal filed its motion to dismiss, Tha-dison finally filed his brief. Thadison clearly missed the forty-day deadline as set forth by Rule 31(b) and failed to correct the deficiency within the fourteen days provided by the circuit court clerk. Therefore, the circuit court was within its discretion to grant Universal’s motion to dismiss. This contention of error is without merit.

Commission’s Decision

¶ 13. Thadison’s second contention of error is that the circuit court erred in affirming the Commission’s decision that Thadison had a non-compensable injury. An appellate court’s review of the Commission’s decision is limited to determining whether the decision was supported by substantial evidence. Lott v. Hudspeth Ctr., 26 So.3d 1044, 1048 (¶ 12) (Miss.2010). This standard prohibits an appellate court from re-weighing the evidence and acknowledges that the Commission is the ultimate fact-finder and judge of the credibility of witnesses. Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461 (¶ 27) (Miss. 2005).

¶ 14. In this case, the AJ determined that Thadison failed to prove that he had suffered a compensable injury, and the Commission agreed. In making his decision, the AJ noted that Thadison admitted he never gave notice of a work-related injury to Universal prior to filing his petition to controvert. Additionally, the AJ observed that Thadison’s medical records did not mention any relationship between Thadison’s neck problems and his job duties. Furthermore, the AJ noted that Dr. Senter, who eventually performed Thadison’s neck surgery, opined that there was only a possibility that Thadison’s job had aggravated his existing condition.

¶ 15. The Mississippi Supreme Court has stated: “When a patient gives a history to a physician which is inconsistent with allegations in a workers’ compensation case, this is a significant factor in support of denial of a claim.” Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (¶ 16) (Miss.2005) (citing Hudson v. Seneca Wire Cloth Co., 482 So.2d 226, 227-28 (Miss.1986)). Here, Thadison’s medical records are devoid of any mention that his spinal condition is related to his job with Universal. Also, Thadison admitted that he never told anyone at Universal about his alleged injury. Additionally, the only medical expert whose testimony was offered in this case opined that there was only a possibility that Thadison’s condition and his job at Universal were connected. “It is well established that recovery under the workers’] compensation scheme must rest upon reasonable probabilities, not upon mere possibilities.” Harrell v. Time Warner/Capitol Cablevision, 856 So.2d 503, 511 (¶ 30) (Miss.Ct.App.2003) (citing Burnley Shirt Corp. v. Simmons, 204 So.2d 451, 454 (Miss.1967)). Based on these facts, we cannot say that the Commission erred in finding that Thadison failed to prove, by a preponderance of the evidence, that he had sustained a compen-sable work-related injury. This issue is without merit.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. FAIR, J„ NOT PARTICIPATING.