author: IRVING, P.J., for the Court:

text:
    Edward M. O’KEEFFE, Appellant v. BILOXI CASINO CORP. d/b/a Casino Magic-Biloxi, Appellee.
    No. 2009-CA-01185-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.
    Rehearing Denied Sept. 13, 2011.
    Certiorari Denied Jan. 5, 2012.

      Robert O. Homes Jr., attorney for appellant.
    Kimberly S. Rosetti, Biloxi, Karen K. Sawyer, Ridgeland, attorneys for appellee.
   IRVING, P.J., for the Court:

¶ 1. On October 15, 2003, Edward O’Keeffe fell in the shower in his hotel room at Casino Magic in Biloxi, Mississippi. On June 1, 2005, O’Keeffe brought a premises-liability action in the Harrison County Circuit Court against Casino Magic. In his complaint, O’Keeffe alleged that the shower was a hazardous condition, and Casino Magic was negligent for allowing the condition to exist. O’Keeffe claimed that his fall resulted in injuries to his lumbar and cervical spine, and he sought damages for medical expenses, pain and suffering, disability, and mental anguish. On February 9, 2009, a jury returned a verdict in favor of Casino Magic. On February 13, 2009, O’Keeffe filed a motion for a new trial, which the circuit court denied.

¶ 2. Feeling aggrieved, O’Keeffe appeals and argues that: (1) the circuit court erred in excluding the expert testimony of Dr. Bert Bratton; (2) the circuit court erred in excluding Dr. Bratton’s report and any reference to his report by other experts; (3) the exclusion of Dr. Bratton’s opinions resulted in prejudice, and (4) the circuit court erred in granting jury instruction number six.

¶ 3. Finding no reversible error, we affirm.

FACTS

¶ 4. O’Keeffe filed responses to Casino Magic’s interrogatories on January 6, 2006, and listed Dr. M.F. Longnecker, Dr. James Doty, and Dr. James Dyess as his treating physicians. Dr. Longnecker, an orthopedic surgeon, evaluated O’Keeffe on November 20, 2003, shortly after his fall in the shower at Casino Magic. Dr. Long-necker had previously operated on O’Keeffe in 1999 for severe spinal stenosis and disc ruptures. In his deposition, Dr. Longnecker testified that O’Keeffe had made a full recovery from the 1999 surgery. When Dr. Longnecker saw O’Keeffe in 2003, O’Keeffe explained that he had fallen in a shower at Casino Magic and complained of persistent back pain. Dr. Longnecker advised O’Keeffe to schedule an MRI, but Dr. Longnecker did not treat O’Keeffe again after the 2003 visit due to the doctor’s retirement. O’Keeffe had an MRI on June 9, 2004, which revealed defects in discs L2-3, L3-4, and L4-5.

All discovery must be completed within ninety days from service of an answer by the applicable defendant. Additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension. Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.

¶ 5. Dr. Doty, an orthopedic surgeon, examined O’Keeffe on November 1, 2004. O’Keeffe again complained of lower-back pain, which he attributed to his fall at Casino Magic. Dr. Doty performed surgery on O’Keeffe on November 5, 2004, and testified in his deposition that O’Keeffe had a new disc herniation at L2-3 and a re-herniation at L4-5. Dr. Doty further testified that the fall at Casino Magic caused O’Keeffe’s lower-back pain.

¶ 6. Dr. Dyess, who practices internal medicine, treated O’Keeffe from June 2004 through January 2009. In his deposition, Dr. Dyess testified that O’Keeffe’s lower-back pain was related to his fall at Casino Magic. Additionally, Dr. Dyess opined that the disc herniation at L2-3 was caused by O’Keeffe’s fall at Casino Magic.

¶ 7. On October 27, 2007, O’Keeffe designated Dr. Crawford Steck, his treating neurosurgeon, as an expert. Casino Magic filed a motion to strike and argued that Dr. Steck’s designation was untimely under Rule 4.04 (A) of the Uniform Rules of Circuit and County Court. On November 7, 2008, a hearing was held on Casino Magic’s motion to strike Dr. Steck, and the circuit court found that because Dr. Steck had only recently performed surgery on O’Keeffe, special circumstances existed, and Dr. Steck would be allowed to testify as an expert. The circuit court also granted O’Keeffe’s request for a continuance of the trial to permit him to recover fully from surgery and to obtain Dr. Steck’s opinion.

¶ 8. On November 21, 2008, O’Keeffe filed an amended expert designation that included Dr. Bratton, a neurosurgeon. Casino Magic filed a motion to strike Dr. Bratton, arguing that the designation was untimely and that the continuance did not open the door for new expert designations. On December 12, 2008, a hearing was held on Casino Magic’s motion to strike Dr. Bratton. O’Keeffe’s counsel had had considerable difficulty obtaining Dr. Steck’s deposition; therefore, he sought Dr. Brat-ton’s testimony in the event that Dr. Steck remained uncooperative. Dr. Steck had cancelled a deposition scheduled for December 8, 2008, but he had agreed to reschedule the deposition for January 5, 2009. The circuit court ordered the deposition to go forward, but if Dr. Steck remained uncooperative, Dr. Bratton would be permitted to testify as an expert in lieu of Dr. Steck.

¶ 9. Dr. Steck’s deposition was taken on January 5, 2009. Dr. Steck had evaluated O’Keeffe on August 11, 2008, and testified in his deposition that O’Keeffe complained of pain in his back and lower extremities; however, O’Keeffe did not mention his fall at Casino Magic. On August 19, 2008, Dr. Steck performed surgery on O’Keeffe. Dr. Steck testified that he did not find a herniated disc at L2-3; however, he found spinal stenosis at L4-5. Dr. Steck diagnosed O’Keeffe with recurring spinal sten-osis and testified that while O’Keeffe’s fall did not cause the stenosis, it could have made the stenosis symptomatic.

¶ 10. Although Dr. Steck gave his deposition, O’Keeffe filed a motion to allow the testimony of Dr. Bratton on January 12, 2009. Casino Magic opposed the motion, arguing that Dr. Bratton’s designation was untimely under Rule 4.04 and that no special circumstances existed that would permit Dr. Bratton’s expert designation. The circuit court heard O’Keeffe’s motion on January 23, 2009, and held that because Dr. Steck had appeared at the deposition and cooperated, Dr. Bratton would not be allowed to testify.

¶ 11. On January 29, 2009, Dr. Dyess gave a second deposition. In preparation for his deposition, Dr. Dyess reviewed a report prepared by Dr. Bratton and conferred with him by telephone. During the deposition, Casino Magic objected to testimony related to Dr. Bratton’s opinions or his report. Following the deposition, Casino Magic filed a motion to strike Dr. Dyess’s deposition arguing that his reliance on Dr. Bratton’s opinions was improper given that the circuit court had struck Dr. Bratton as an expert. The circuit court ruled that the portions of Dr. Dyess’s deposition referring to Dr. Bratton would be stricken.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Exclusion of Dr. Bratton

¶ 13. O’Keeffe argues that the circuit court erred in excluding Dr. Bratton as a late-designated expert. O’Keeffe contends that the designation was timely under Rule 4.04 because he designated Dr. Bratton on November 21, 2008, seventy-three days before the February 2, 2009 trial date.

¶ 14. “A trial court’s admission or exclusion of expert testimony is reviewed for abuse of discretion.” Worthy v. McNair, 37 So.3d 609, 614 (¶ 13) (Miss. 2010) (citing Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss. 2003)). “The trial court’s decision will stand unless the reviewing court concludes that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id. (citing McLemore, 863 So.2d at 34 (¶ 4)). Furthermore, “[mjatters of discovery are left to the sound discretion of the trial court, and discovery orders will not be disturbed unless there has been an abuse of discretion.” Scoggins v. Baptist Mem’l Hosp.-Desoto, 967 So.2d 646, 648 (¶ 8) (Miss.2007) (quoting Earwood v. Reeves, 798 So.2d 508, 514 (¶ 19) (Miss. 2001)).

¶ 15. O’Keeffe mistakenly uses the continued trial date for purposes of determining timely designation under Rule 4.04. Following the November 7, 2008 hearing, the circuit court continued the trial date from December 8, 2008 to February 2, 2009. However, the circuit court granted the continuance for the express purpose of allowing O’Keeffe to fully recover from his surgery and to obtain the testimony of Dr. Steck. The continuance did not give O’Keeffe a new opportunity to designate additional experts.

¶ 16. In Hillier v. Minas, 757 So.2d 1034, 1038 (¶ 8) (Miss.Ct.App.2000), Dr. Robert Hillier noticed depositions two days before trial. The plaintiffs filed a motion for a protective order arguing that they had not received reasonable notice of the depositions. Id. The circuit court quashed the deposition subpoenas and continued the trial date “due to conflicts with its docket.” Id. Dr. Hillier re-noticed the depositions, and the plaintiffs “filed a second motion for a protective order, alleging that Dr. Hillier should not be granted a ‘windfall’ because the original trial date had been changed.... ” Id. at (¶ 9). The circuit court refused to allow Dr. Hillier to take additional depositions following the continuance “and ordered that all forms of discovery be halted.” Id.

¶ 17. This Court found that the circuit court did not abuse its discretion in refusing to allow Dr. Hillier’s depositions to go forward. Id. Additionally, this Court rejected Dr. Hillier’s argument that the continued trial date renewed his opportunity to depose witnesses. Id.

¶ 18. We see no reason to hold differently here. At the November 7, 2008 hearing, the circuit court made it clear that the continuance was not intended to allow either O’Keeffe or Casino Magic to designate additional experts. Instead, the circuit court granted a continuance for the express purpose of allowing O’Keeffe to recover from his recent surgery and to obtain the expert opinions of his neurosurgeon, Dr. Steck. When O’Keeffe encountered difficulties in obtaining Dr. Steck’s deposition, he designated Dr. Bratton. The circuit court ordered that Dr. Brat-ton’s testimony would be allowed only if Dr. Steck refused to give a deposition. Dr. Steck gave a deposition; therefore, the circuit court did not abuse its discretion in excluding Dr. Bratton’s testimony. This issue is without merit.

2. Exclusion of Dr. Bratton’s Report

¶ 19. O’Keeffe also argues that the circuit court erred in excluding portions of Dr. Dyess’s deposition testimony that referred to Dr. Bratton or his report. O’Keeffe contends that Dr. Dyess’s reliance on Dr. Bratton’s opinions was permissible under Rule 703 of the Mississippi Rules of Evidence. Rule 703 states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

However, this Court has held that “[wjhile [Rule 703] allows an expert to use certain other sources in forming his or her own opinion, Rule 703 is not a vehicle for admissibility of otherwise inadmissible evidence.” Koestler v. Koestler, 976 So.2d 372, 381 (¶ 32) (Miss.Ct.App.2008) (emphasis added). Once Dr. Steck gave his deposition, the circuit court excluded Dr. Bratton as an expert. O’Keeffe then attempted to insert Dr. Bratton’s opinions into the record through Dr. Dyess’s deposition testimony. While Rule 703 does permit experts to rely on facts or data that are otherwise inadmissible, it may not be used to circumvent court orders. Therefore, we do not find that the circuit court abused its discretion in excluding references to Dr. Bratton or his report. This issue is without merit.

3. Prejudice

¶20. O’Keeffe contends that he was prejudiced by the exclusion of Dr. Bratton, who was prepared to testify that O’Keeffe’s disc herniation was caused by his fall at Casino Magic. Based on our review of the record, we do not find that Dr. Bratton’s exclusion prejudiced O’Keeffe. At trial, O’Keeffe presented the deposition testimonies of Dr. Doty and Dr. Dyess, who both testified that the fall at Casino Magic caused O’Keeffe’s lower-back pain and resulted in a disc herniation at L2-3. Even Casino Magic’s neurological expert, Dr. Eugene Quindlen, testified that the disc herniation at L2-3 was related to the fall. Therefore, Dr. Bratton’s testimony relating O’Keeffe’s injuries to his fall at Casino Magic would have been cumulative. This issue is without merit.

Jp. Jury Instruction Number Six

¶ 21. O’Keeffe argues that the trial court erred in granting jury instruction number six. O’Keeffe contends that instruction number six had the effect of eliminating the comparative-negligence rule and resurrecting the open-and-obvious defense as a complete bar to recovery.

¶ 22. “When [an appellate court] reviews a claim of trial court error in granting or denying a jury instruction, [it is] required to review all of the instructions as a whole.” Beverly Enters., Inc. v. Reed, 961 So.2d 40, 43 (¶8) (Miss.2007) (citing Richardson v. Norfolk & S. Ry., 923 So.2d 1002, 1010 (¶ 19) (Miss.2006)). “Defects in specific instructions will not mandate reversal when all of the instructions, taken as a whole[,] fairly—although not perfectly—announce the applicable primary rules of law.” Id. (citing Burton v. Barnett, 615 So.2d 580, 583 (Miss.1993)).

¶ 23. The challenged instruction states: As used in these instructions, a “danger” [sic] or “hazardous” condition is defined as a condition which is likely or probable to cause injury to a patron who is exer-rising reasonable care for his own safety. Simply because the Plaintiff fell while in the shower at the Defendant[’s] hotel or that the Plaintiff sustained an alleged injury does not mean that the shower stall complained of was an unreasonable “danger” or “hazard” or that the Defendant was negligent. Conditions which are not likely to cause injury or damage to patrons who exercise reasonable care for their own safety ... may not be characterized as “hazardous” or “dangerous” simply because an accident might have occurred. Therefore, if you find from the evidence in this case that there was no condition present which was reasonably likely to cause injury to a patron who was exercising reasonable care for his own safety, then there was no “danger” or “hazard[,]” and the Plaintiff may not recover from the Defendant.

O’Keeffe argues that under instruction number six, Casino Magic would be exonerated if the jury found that he did not exercise reasonable care. We disagree. Instruction number six simply defined the terms “danger” and “hazard” and explained that the mere occurrence of a fall or other accident on a business premises is not sufficient to attribute negligence to the owner — a correct statement of the law. The instruction required O’Keeffe to prove that a danger or hazard existed in order to recover, but it did not bar his recovery if he failed to exercise reasonable care. In fact, the jury was instructed that O’Keeffe could recover even if he was negligent. Jury instruction number eleven states in pertinent part:

The Court instructs you that if, based upon the instruction of this Court, you find that the Defendant[,] Biloxi Casino Corp. d/b/a Casino Magic-Biloxi, was negligent, entitling the Plaintiff to damages, if any, you may reduce any verdict for damages which you find for the Plaintiff by an amount or percentage which reflects the negligence, if any, of Edward O’Keeffe, in connection with his accident. This reduction is for what is known as comparative negligence.

We do not find that instruction number six had the effect of eliminating O’Keeffe’s possibility of recovery under comparative negligence. Instruction number six did not bar recovery if O’Keeffe failed to exercise reasonable care, and the jury was specifically instructed on comparative negligence in jury instruction number eleven.

¶ 24. Furthermore, we do not find that by requiring O’Keeffe to exercise reasonable care for his safety, instruction number six effectively resurrected the open-and-obvious defense as a complete bar to recovery. As a business owner, Casino Magic owed O’Keeffe, an invitee, a duty to maintain the hotel in a reasonably safe condition. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199 (¶5) (Miss.2008). However, O’Keeffe was “still required to use[,] in the interest of his own safety[,] that degree of care and prudence which a person of ordinary intelligence would exercise under the same or similar circumstance.” Fulton v. Robinson Indus., Inc., 664 So.2d 170, 175 (Miss.1995) (citing Tate v. S. Jitney Jungle Co., 650 So.2d 1347, 1351 (Miss.1995)). Therefore, we do not find that jury instruction number six misstated the law in Mississippi by requiring O’Keeffe to exercise reasonable care or had the effect of barring O’Keeffe’s recovery under the open-and-obvious rule.

¶ 25. Based on our review of the jury instructions as a whole, we do not find that the circuit court erred in granting instruction number six. This issue is without merit.

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

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

      . Rule 4.04(A) states:

      . Dr. Dyess gave his first deposition on November 9, 2006; however, he continued treating O’Keeffe after the 2008 surgery by Dr. Steck.

      . Dr. Steck’s designation was also untimely; however, the circuit court found that special circumstances existed because he had recently performed surgery on O’Keeffe.


source: Caselaw Access Project

license: Public Domain

text:
    Bobby Earl WILSON, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00158-COA.
    Court of Appeals of Mississippi.
    June 7, 2011.
    Rehearing Denied Sept. 27, 2011.
    Certiorari Denied Dec. 15, 2011.
    Bobby E. Wilson, Jr., appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J., for the Court:

¶ 1. In 2004, Bobby Earl Wilson Jr. was sentenced as a habitual offender to life without eligibility for probation or parole in the custody of the Mississippi Department of Corrections (MDOC). On November 5, 2009, Wilson filed a “Motion to Amend Petition for a Writ of Coram No-bis” in the Warren County Circuit Court. In his motion, Wilson challenged his 1994 conviction for automobile burglary that served, in part, as the basis for his habitual-offender status. The circuit court dismissed the motion, noting that Rule 60(b) of the Mississippi Rules of Civil Procedure abolished writs of coram nobis. Feeling aggrieved, Wilson appeals and argues that: (1) the circuit court erred in failing to construe his “Motion to Amend Petition for Writ of Coram Nobis” as a motion for post-conviction relief (PCR); (2) he received ineffective assistance of counsel; and (3) his guilty plea was involuntary.

¶ 2. We find that the circuit court erred in failing to construe Wilson’s motion as a PCR motion; nevertheless, we affirm the circuit court’s judgment as modified.

FACTS

¶ 3. On August 5, 1994, Wilson pleaded guilty to automobile burglary. Following his plea, the circuit court sentenced Wilson to five years in the custody of the MDOC, with all five years suspended and five years of probation. On April 5, 1995, the circuit court found that Wilson had violated the terms of his probation; therefore, it revoked Wilson’s suspended sentence and ordered him to a restitution center. On August 8, 1995, Wilson again violated the terms of his probation, and the circuit court revoked his suspended sentence and sentenced Wilson to five years’ imprisonment with credit for time served in the county jail. Wilson was released from prison on August 1,1997.

¶ 4. On February 22,1999, Wilson pleaded guilty to two counts of bank robbery, and the United States District Court for the Southern District of Mississippi sentenced him to seventy months of imprisonment for each count, to run concurrently, and three years of post-release supervision for each count, also to run concurrently. On March 24, 2004, Wilson was released from prison, and his supervised-release period began. On March 30, 2004, Wilson was arrested for another bank robbery in Vicksburg, Mississippi. Following a jury trial, Wilson was convicted of bank robbery, and the Warren County Circuit Court sentenced him as a habitual offender to life without eligibility for probation or parole. Wilson’s 1994 and 1999 convictions served as the basis for his status as a habitual offender.

¶ 5. On June 11, 2007, Wilson filed a PCR motion, alleging that he had received ineffective assistance of counsel in connection with his 1994 automobile-burglary conviction. The circuit court dismissed the PCR motion as time-barred. Wilson appealed, and this Court held that Wilson’s PCR motion was time-barred and that he lacked standing to file his motion because he was “no longer in custody for the 1994 [automobile-] burglary conviction for which he [sought] post-conviction relief.” Wilson v. State, 990 So.2d 828, 829 (¶ 2) (Miss.Ct. App.2008).

¶ 6. On November 5, 2009, Wilson filed a “Motion to Amend Petition for a Writ of Coram Nobis.” Wilson acknowledged in his motion that he could not proceed under the Mississippi Uniform Post-Conviction Collateral Relief Act because he was no longer in custody for the 1994 automobile-burglary conviction. Therefore, Wilson sought relief via writ of coram nobis.

¶ 7. In his motion, Wilson sought to vacate his automobile-burglary conviction on the ground that there was an insufficient factual basis for his guilty plea. Specifically, Wilson argued that the State had insufficient proof of his intent to steal personal property located in the automobile. Additionally, Wilson argued that his defense counsel was deficient for failing to inform the circuit court that the State had insufficient evidence of the intent element.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 9. “A trial court’s dismissal of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Means v. State, 43 So.3d 438, 441 (¶ 6) (Miss.2010) (citing Broten v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). However, questions of law are reviewed de novo. Id. (citing Brown, 731 So.2d at 598).

¶ 10. Despite acknowledging in his November 5, 2009 motion that he was not entitled to post-conviction relief because he was no longer in custody for the 1994 conviction, Wilson argues that the circuit court should have construed his “Motion to Amend Petition for a Writ of Coram No-bis” as a PCR motion. We agree. Mississippi Code Annotated section 99-39-3(1) (Rev.2007) states in pertinent part:

The purpose of this article is to revise, streamline[,] and clarify the rules and statutes pertaining to post-conviction[-] collateral [-] relief law and procedures, to resolve any conflicts therein[,] and to provide the courts of this state with an exclusive and uniform procedure for the collateral review of convictions and sentences. Specifically, this article repeals the statutory writ of error coram nobis, supersedes Rule 8.07 of the Mississippi Uniform Criminal Rules of Circuit Court Practice and abolishes the common law writs relating to post-conviction collateral relief, including by way of illustration but not limitation, error coram nobis, error coram vobis, and post-conviction habeas corpus, as well as statutory post-conviction habeas corpus. The relief formerly accorded by such terits may be obtained by an appropriate motion under this article.

(Emphasis added). Based on the above statutory language, this Court has previously held that common-law writs, such as writs of coram nobis, should be construed as PCR motions. See Smith v. State, 29 So.3d 126, 128 (¶ 9) (Miss.Ct.App.2010); Morris v. State, 918 So.2d 807, 808 (¶ 4) (Miss.Ct.App.2005). Therefore, the circuit court should have construed Wilson’s motion as one for post-conviction relief.

¶ 11. Even if Wilson’s motion is treated as a PCR motion, Wilson lacks standing to bring the motion because he is no longer “serving time under the sentence he complains of.” Wilson, 990 So.2d at 830 (¶ 6) (quoting Graves v. State, 822 So.2d 1089, 1091 (¶ 6) (Miss.Ct.App.2002)). Wilson completed the sentence related to the automobile-burglary conviction in 1997. Wilson is currently serving the sentence related to his 2004 bank robbery, for which he was sentenced to life as a habitual offender. While the 1994 conviction served as a basis for Wilson’s habitual-offender status, he was not “in custody” for that conviction when he filed his motion. As such, Wilson lacks standing to challenge his conviction.

¶ 12. Wilson contends that he received credit for time served in the county jail to which he was not entitled; therefore, he was released from custody before he could seek post-conviction relief from the 1994 conviction. In support of his contention, Wilson has supplied a notice of criminal disposition from the MDOC and a second notice marked “amended.” While the amended notice credits Wilson with additional days of jail time, the record contains no explanation for the amendment and no evidence that the amended credits were erroneous. Therefore, the only evidence before this Court that the amended notice was erroneous comes from the bare assertions in Wilson’s brief. It is well established that appellate courts cannot “review the bare assertions in the parties’ briefs, but must look to the record.” Rogers v. State, 796 So.2d 1022, 1029 (¶ 24) (Miss.2001) (citations omitted). Therefore, this issue is not properly before this Court.

¶ 13. It is clear from the record that Wilson has attempted to challenge his 1994 conviction in an effort to invalidate his life sentence. However, Wilson lacks standing to challenge the 1994 conviction because he is no longer incarcerated or on parole or probation for that conviction. Because Wilson lacks standing to bring his motion, this Court need not address the merits of Wilson’s claims that he received ineffective assistance of counsel and that his guilty plea was involuntary. Furthermore, we find that the circuit court properly dismissed Wilson’s PCR motion for the reasons we have discussed.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS AFFIRMED AS MODIFIED TO DISMISS THE MOTION FOR POST-CONVICTION RELIEF. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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

      . In his motion, Wilson explained that he sought to amend a petition for a writ of co-ram nobis that he had sent to the circuit court on May 16, 2009. However, the original petition is not included in the record.

      . See Mississippi Code Annotated section 99-39-5(1) (Supp.2010).

      . We note that in 2009 the standing requirements of section 99-39-5(1) were expanded beyond persons "in custody.” Section 99-39-5(1) provides in pertinent part:
      Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period, may file a motion to vacate, set aside or correct the judgment or sentence, a motion to request forensic DNA testing of biological evidence, or a motion for an out-of-time appeal....
      However, even under the expanded standing requirements, Wilson lacks standing. When Wilson filed his motion in 2009 challenging his 1994 conviction, he was no longer incarcerated for that conviction, nor was he on parole or probation for that conviction.


author: MYERS, J., for the Court:

text:
    Joseph BENNETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00324-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2011.
    Rehearing Denied Dec. 6, 2011.

      Clarence Terrell Guthrie III, Ridgeland, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MYERS, J., for the Court:

¶ 1. Joseph Bennett was found guilty by a jury sitting before the Hinds County Circuit Court of one count of murder, four counts of aggravated assault, one count of shooting into an occupied dwelling, and one count of felon in possession of a firearm. Bennett appeals asserting four assignments of error, which we relate verbatim:

I. THE TRIAL COURT ERRED IN SUPPRESSING EVIDENCE OF OTHER WEAPONS OWNED BY THE VICTIM AND FOUND IN THE AREA, IMPEDING THE DEFENSE’S THEORY OF THE CASE.

II. THE INDICTMENT WAS FATALLY DEFECTIVE, AND THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND IT WITH A “PEN-CHANGE” DURING TRIAL.

III. THE TRIAL COURT ERRED IN ALLOWING HEARSAY EVIDENCE BEFORE THE JURY OVER THE OBJECTION OF THE DEFENDANT.

IV. THE TRIAL COURT IMPER-MISSIBLY ALLOWED PRIOR[-]BAD[-]ACTS EVIDENCE BEFORE THE JURY.

¶ 2. Finding no reversible error, we affirm Bennett’s convictions and sentences.

FACTS

¶ 3. On May 26, 2008, “Memorial Day,” approximately thirty people were hanging out at the house located at 302 Manship Street, Jackson, Mississippi. In the early part of the evening, an incident occurred between Melvin Parker, Terrance Lamp-kin, and Charlie Taylor. A friend of Parker’s, referred to in the record simply as “Trey,” handed Parker a paint-ball gun. Parker pointed the paint-ball gun at Lampkin, and Lampkin pushed Parker, causing the paint-ball gun to discharge, causing Parker to spill Taylor’s liquor. An argument ensued, and Taylor reportedly said, “Y’all better be gone when I get back.... I’m going to clear this block.” Taylor then left the premises.

¶ 4. Thirty minutes later a green Grand Marquis and a black sports-utility vehicle (SUV) pulled up in front the 302 Manship residence. Inside the vehicles were Taylor; Randy Johnson; James Warren; Milton Michaels; and the defendant, Bennett.

¶ 5. Johnson, who was driving the Grand Marquis, called Lampkin over to the vehicle. Lampkin walked over and briefly spoke with Johnson. As Lampkin turned to walk away from Johnson’s vehicle, Bennett emerged from the backseat of the Grand Marquis with a semi-automatic rifle in his hands. Bennett reportedly exclaimed: “I’m sick of y’all n* * * * *s,” and he began firing the rifle at the 802 Manship residence.

¶ 6. Three bullets struck Cordarel Brown, killing him. Alexis England, Mar-tez Samuels, Lampkin, and Parker were also struck by bullets allegedly fired from Bennett’s rifle; each survived their injuries.

¶ 7. Investigators from the Jackson Police Department (JPD) were dispatched to the scene immediately following the shootings. They found, photographed, and retrieved eleven spent .223-caliber casings lying in the street fronting the 302 Man-ship residence. The weapon allegedly used in the shooting, which an expert later testified at trial was a “.223-caliber semiautomatic high-powered rifle,” was never recovered.

¶ 8. The following day, JPD Investigator Robert Bufkin, found and recovered a twelfth spent .223-caliber casing near where the eleven others were discovered on the night of the shootings. Investigator Bufkin also recovered a “SKS 7.62 mm assault rifle,” which somebody (the record does not disclose who) had discovered lying underneath an abandoned house at 320 Manship Street on the day after the shootings. The abandoned house is located immediately adjacent to the 302 Manship residence. Investigators later determined that none of the casings recovered from the crime scene were fired from the SKS rifle.

¶ 9. A couple of days after the shootings, Phyliss Adams, the owner of the 302 Man-ship residence, and who was not present at the time of the shootings, was allowed by investigators to return to her home. Upon entering her home, Adams discovered a .22-caliber handgun located “near her bedroom door.” Adams called the JPD, which retrieved the weapon sometime thereafter.

¶ 10. Prior to trial, the State filed a motion in limine to exclude any evidence relating to the discovery of the handgun recovered inside the 302 Manship residence, as well as the SKS rifle found underneath the house next door. The trial court initially reserved ruling on the State’s motion. Ultimately, however, neither weapon was allowed into evidence based on the trial court’s finding during the State’s case-in-chief that no adequate showing had been made as to either weapon’s relevancy to the case.

¶ 11. Bennett was the only person to testify on his behalf at trial. Bennett claimed that Michaels, not he, was the one who had fired the rifle at the 302 Manship residence that “Memorial Day” evening.

¶ 12. In recounting what had transpired immediately prior to the shootings, Bennett said he, Taylor, and Johnson drove over to 302 Manship in Johnson’s Grand Marquis so that Johnson could speak to Lampkin about what had occurred earlier with Taylor. Bennett said when they pulled up in front of the residence, he noticed an individual standing behind a tree with a gun in his hand. Bennett said Lampkin approached Johnson’s Grand Marquis and began conversing with Johnson. As Lampkin and Johnson were talking, a black SUV pulled up behind Johnson’s vehicle. Bennett said Lampkin looked over at the SUV and then starting walking back toward the 302 Manship residence. Lampkin then hollered out, “Man, get my gun.” At that point, the individual behind the tree emerged. Bennett recognized the individual as Brown. Bennett said Brown walked toward Lampkin, who was then sitting on the porch steps, and handed Lampkin a gun, which Bennett indicated was a handgun. According to Bennett, Lampkin began acting “like he was fixing to point [the gun]” in the direction of Johnson’s vehicle. At that point, Michaels, who Bennett said went by the street name of “Hit Man,” got out of the black SUV and hollered out, “Man, don’t make no false moves like that. Don’t make no false moves.” According to Bennett, everybody began “spreading out,” and that is when the shooting started. Bennett said he immediately instructed Johnson to drive away, which Johnson did. Bennett told the jury that he did not have a weapon on him at the time, nor did anyone else in Johnson’s vehicle, and he claimed that he never left Johnson’s vehicle the entire time they were at 302 Man-ship.

¶ 13. The jury found Bennett guilty of murder, four counts of aggravated assault, shooting into an occupied dwelling, and felon in possession of a firearm. Bennett appeals his convictions. Additional facts, as necessary, will be related during our analysis of the issues.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN SUPPRESSING EVIDENCE OF OTHER WEAPONS OWNED BY THE VICTIM AND FOUND IN THE AREA, IMPEDING THE DEFENSE’S THEORY OF THE CASE.

¶ 14. “Relevancy and admissibility of evidence are largely within the discretion of the trial court, and reversal may be had only where that discretion has been abused.” White v. State, 742 So.2d 1126, 1134 (¶ 29) (Miss.1999). “[T]he trial court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence, and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.” Id.

¶ 15. Bennett contends that he announced early in the trial that he intended to assert a claim of self-defense to the charges set forth in his indictment. Bennett maintains that evidence existed in the case to support his self-defense claim, as there was evidence of a weapon present during the “spilled-drink” altercation and evidence of weapons found in the vicinity of Brown’s body after the shootings. Bennett argues that the trial court’s decision to exclude this evidence improperly denied him his theory of the case and necessitated the withdrawal of his self-defense instructions.

¶ 16. The State argues that what necessitated the withdrawal of the proposed self-defense instructions was the complete lack of evidence in support thereof. We agree.

¶ 17. A criminal defendant certainly is entitled to have his or her theory of the case presented to the jury. White v. State, 842 So.2d 565, 575 (¶ 30) (Miss.2003). But this legal principle is not limitless. Id. If there is no foundation in the evidence to support a particular defense theory, a proposed jury instruction setting forth that theory is properly refused. See Johnson v. State, 475 So.2d 1136, 1146-47 (Miss. 1985) (“[I]nstructions should not be given that are not applicable to the facts developed in the case during the trial.”).

¶ 18. According to the record, Bennett’s trial counsel, who is also Bennett’s appellate counsel, made numerous assertions to the trial court throughout the course of the State’s case-in-chief, all outside the presence of the jury, that Bennett was proceeding on the theory of self-defense. Yet trial counsel never informed the trial court what the particulars of Bennett’s self-defense theory entailed. When Bennett testified, Bennett did not present a factually or legally cognizable theory of self-defense; rather, he presented a defense based on the claim that he was not the shooter. According to the record, the proposed self-defense instructions that Bennett’s trial counsel withdrew were each predicated on the theory that Bennett, himself, had acted in self-defense. Based on the evidence in this case, had these instructions been submitted to the jury, it would have been error. Thus, contrary to counsel’s assertion on appeal, these particular proposed self-defense instructions were rightly withdrawn.

¶ 19. The trial court excluded the handgun found inside the 302 Manship residence and the SKS rifle found underneath the house located next door from being admitted into evidence. In Lanier v. State, 291 So.2d 695, 696 (Miss.1974), the Mississippi Supreme Court explained as follows:

As a general rule, any physical object of visual evidence may be introduced into evidence if the objects are relevant to the facts in issue before the court. (Wilkins v. State, 264 So.2d 411 (Miss. 1972)). Of course, it must be first shown that such objects and articles are in some manner relevant to the issue. (Underhill, Criminal Evidence (4th ed.) [sec.] 115, at 148 (1935)). The rule is more liberally construed in circumstantial cases. (29 Am. Jur. 2d Evidence [sec.] 266, at 315 (1967); 22A C.J.S.
Criminal Law [sec.] 637, at 499 (1961)). However, the mere finding of a rifle or other articles owned or in the possession of a defendant or deceased, wholly disconnected with the issue before the court, is properly excluded from the evidence before the jury. Strickland v. State, 269 So.2d 340 (Miss.1972); Gaston v. State, 239 Miss. 420, 123 So.2d 546 (1960); 22A C.J.S. Criminal Law [sec.] 637, at 496 (1961).

Id. at 696-97 (emphasis added).

¶ 20. Here, prior to Adams taking the witness stand for the State, Bennett’s trial counsel made a proffer of evidence to the trial court in an effort to introduce the handgun found by Adams into evidence based on the assertion that it was relevant to the issue of self-defense. In support of the proffer, Bennett’s trial counsel read into the record portions of a statement that Adams’s daughter, Philetta Adams, had made to one of the investigators assigned to the case. Philetta, who did not testify at trial, reportedly had stated as follows: “Then my mama found a gun by her room door. She asked whose gun it was, and I told her I didn’t know. She figured it must have been [Brown’s gun] because he was the only person back there.” The investigator asked Philetta: “Did you see anyone that [sic] shot at your house with a gun on the day of this shooting.” Philetta replied: “No. But earlier [Brown] said he had one. That was before everything had got [sic] started. I never seen [sic] him with it, but he said he had one.”

¶ 21. The trial court subsequently ruled that the handgun was inadmissible under Rules 401 and/or 403 of the Mississippi Rules of Evidence. The trial court found that the handgun was not relevant to the case because no evidence had been presented that Brown had a handgun on his person at the time of the shootings. The trial court further determined that any conclusion that Brown had this particular handgun on him at the time of the shootings, which was based solely on Adams’s assumption that it belonged to Brown, would be grounded on speculation.

¶ 22. Bennett contends this was error because the State had opened the door to the admission of the handgun when it asked “misleading questions” of its witness, Samuels. Bennett argues that because Samuels responded in the negative when asked by the State on redirect examination if Samuels ever saw Brown, England, or Parker with a gun that day, he had the right to counter Samuels’s claim with available competent evidence, that being Adams’s discovery of the handgun in her home.

¶ 23. We disagree. As the trial court found, Adams was not present at that time of the shootings, and she merely assumed that the handgun she found inside her home belonged to Brown. This is conjecture, not evidence. See, e.g., Lanier, 291 So.2d at 697.

¶ 24. Rule 103(a) of the Mississippi Rules of Evidence states: “[Ejrror may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected, and .... the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” According to the record, when Bennett made his proffer, no evidence had been presented that Brown was armed at or around the time of the shootings. Even Adams’s daughter, Philetta, who, unlike Adams, was present when the shootings occurred, said in her statement that she never saw Brown with a gun. This, along with defense counsel’s empty assertion(s) that Bennett was claiming self-defense, is all that the trial court had to go on when it made its ruling.

¶ 25. As the State points out, the only probative evidence that Brown had a gun on him around the time of the shootings came from Bennett when he stated during direct examination that Brown handed a gun to Lampkin after Lampkin said, “Man, get my gun.” No attempt was made by the defense to revisit the issue of admissibility of the handgun in light of Bennett’s testimony that Brown had a gun.

¶ 26. For these reasons, we find no reversible error with the trial court’s decision to exclude the handgun from evidence.

¶27. As to the SKS rifle, Bennett’s trial counsel sought to have it admitted into evidence through Investigator Bufldn’s testimony. The trial court did not allow the SKS rifle to be admitted into evidence because, as with the handgun, no showing was made that the SKS rifle was used or visibly present at the time of the shootings.

¶ 28. Bennett, nevertheless, contends that the State opened the door to the SKS rifle’s admission. Bennett argues that at the time Investigator Bufkin found the twelfth casing lying on Manship Street the day after the shootings, Investigator Buf-kin had been dispatched to the scene by the JPD to recover the SKS rifle. Bennett, thus, maintains that he should have been allowed to present this fact to the jury, particularly since the State asked Investigator Bufkin if finding the twelfth casing was the extent of his investigation.

¶ 29. Again, we disagree. Investigators determined that neither the bullets nor the casings recovered from the crime scene came from the SKS rifle. And no one, not even Bennett, testified that the SKS rifle was visibly present at the time of the shootings. As far as this record is concerned, the SKS rifle bore no connection with the case at hand. See, e.g., Lanier, 291 So.2d at 697. The Mississippi Supreme Court has definitively held that “it is ‘error to allow a witness to be contradicted on an immaterial (or collateral) matter.’ ” Croft v. State, 992 So.2d 1151, 1156 (¶ 21) (Miss.2008) (quoting Johnson v. State, 655 So.2d 37, 41 (Miss.1995)). Injecting evidence of the SKS rifle into the case would have served no purpose other than to confuse the jury. Id. Accordingly, we find no error with the trial court’s decision to exclude the SKS rifle from evidence.

¶ 30. We find no merit to this issue.

II. WHETHER THE INDICTMENT WAS FATALLY DEFECTIVE, AND THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND IT WITH A “PEN-CHANGE” DURING TRIAL.

¶ 31. The question of whether an indictment is defective is an issue of law, which we review de novo. Spearman v. State, 58 So.3d 30, 35 (¶ 16) (Miss.Ct.App. 2011).

¶ 32. Bennett contends that the seventh count of his indictment, which alleged that he was a felon in possession of a firearm, was defective because it: (1) contained no date of the offense, (2) set out an incorrect statute number, and (3) failed to conclude with the phrase “against the peace and dignity of the State of Mississippi.” Bennett argues that he brought these defects to the trial court’s attention by way of demurrer, but the trial court dismissed these defects as “scrivener’s errors,” and allowed the State to cure the defects with a “pen change.”

¶ 33. We find no error with the trial court’s decision to allow the State to amend Bennett’s indictment. Uniform Rule of Circuit and County Court 7.09 provides, in pertinent part, that: “All indictments may be amended as to form but not as to the substance of the offense charged.Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.”

¶ 34. An amendment to correct the date the crime occurred is one of form, unless time is an essential factor or element. Grayer v. State, 928 So.2d 905, 911 (¶ 14) (Miss.Ct.App.2006). Bennett never asserted that time was an essential factor or element with the crime charged in count seven. As the trial court found, the other six counts included the date the alleged offense occurred. This provided a sufficient basis for Bennett to know that he was accused of having possessed a firearm on the same day he was alleged to have committed the other offenses. Thus, we find that the amendment to the indictment to include the date of the alleged offense of felon in possession of a firearm was one of form and did not unfairly prejudice Bennett.

¶ 35. Amendments to correct errors in citations to statutes are likewise permissible. This Court has held that when an indictment provides a clear and concise statement of the elements of the crime charged, citation to a wrong statute number is “merely surplusage and not prejudicial to the defendant.” Amos v. State, 44 So.3d 1058, 1059-60 (¶ 10) (Miss. Ct.App.2010) (citing Evans v. State, 916 So.2d 550, 552 (¶ 6) (Miss.Ct.App.2005)). Review of Bennett’s original indictment shows that count seven set forth that Bennett “willfully, unlawfully, feloniously, and knowingly [had] in his possession a certain firearm, to wit: a Rifle.” It then listed two felony offenses for which Bennett had been previously convicted, including the jurisdiction where each conviction was obtained, the cause number for each conviction, and each conviction’s date of judgment. This clearly and fairly informed Bennett of the elements of the offense he was alleged to have violated.

¶ 36. Lastly, the failure to include the phrase, against the peace and dignity of the State of Mississippi, was a defect of form. Moses v. State, 885 So.2d 730, 736 (¶ 19) (Miss.Ct.App.2004) (citing Brandan v. State, 662 So.2d 1051, 1054 (Miss.1995)). The State filed a written motion in the trial court prior to trial to include the phrase. The trial court granted the motion, and we find that Bennett was not unfairly prejudiced as a result.

¶ 37. This issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING HEARSAY EVIDENCE BEFORE THE JURY OVER THE OBJECTION OF THE DEFENDANT.

¶ 38. Bennett argues that the trial court allowed the State to elicit testimony from Beatrice Blocker in front of the jury that she was on Oakley Street in Jackson, Mississippi, on May 26, 2008, and witnessed Johnson pull up in a green car, and ask for a gun. Blocker testified that Warren responded to Johnson by saying: “I’m not fixing to get in there. I don’t have no pistol.” Blocker then stated that she heard Bennett say, “I got a gun,” at which point Bennett retrieved a “long assault rifle” and left with Johnson.

,¶ 39. Bennett maintains that he objected to the statements as hearsay, which the trial court overruled, based on the State’s argument that the statements were “co-conspirator statements,” admissible as non-hearsay under Rule 801(d)(2)(E) of the Mississippi Rules of Evidence. Bennett contends that the State failed to meet the preliminary requirement of establishing a conspiracy at the predicate hearing, as prescribed by Rule 104 of the Mississippi Rules of Evidence, held prior to Blocker’s testimony in front of the jury. Bennett also submits that the trial court erroneously allowed the State to ask Blocker leading questions during the hearing.

¶ 40. We first address Bennett’s contention that the State was allowed to “ask Blocker leading questions” during the Rule 104 predicate hearing. The trial court allowed the State to examine Blocker outside the presence of the jury in order to determine the admissibility of what Blocker had heard and seen while she was on Oakley Street. Bennett submits that the question asked by the State, “Did you hear [Johnson] ask [Warren] for weapons,” was a leading question, which improperly refreshed Blocker’s memory. Bennett acknowledges on appeal that no objection was entered following the State’s question. But he contends this is because the trial court had told his defense counsel to be quiet after counsel had attempted to interpose an objection while the State was in the process of phrasing its question to Blocker.

¶ 41. Rule 611(c) of the Mississippi Rules of Evidence generally prohibits leading questions and states: “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop [the witness’s] testimony.” Rule 1101(b)(1) of the Mississippi Rules of Evidence, however, provides that the rules of evidence do not apply to Rule 104 predicate hearings. This being a Rule 104 predicate hearing where the complained of question occurred, we see no need to delve into the strictures of Rule 611(c). Suffice it to say, we find Bennett’s contention meritless.

¶ 42. For the sake of thoroughness, we point out that before the State had propounded this particular question to Blocker, Blocker had already testified fully as to her recollection of what she had witnessed on Oakley Street that “Memorial Day.” And she did so without any assistance from the State. The complained of question came at the end of Blocker’s examination, when the State, apparently, was attempting to sum up most of what Blocker had previously stated. Blocker’s answer to the complained of question was consistent with her previous testimony.

¶ 48. We now address the crux of the issue presented: whether the trial court erroneously allowed hearsay statements to go before the jury. At the outset, we decline to enter into a discussion as to whether the complained of statements were admissible under Rule 801(d)(2)(E), which excludes from the definition of hearsay any out-of-court statement offered against a party that was made “by a co-conspirator of [the] party during the course and furtherance of the conspiracy.” See M.R.E. 801(d)(2)(E). First, it is unnecessary for us to do so because, as will be explained, we find that each complained of statement was admissible as non-hearsay, separate and apart from Rule 801(d)(2)(E). Secondly, it is not entirely clear to us whether the trial court allowed the statements in exclusively under Rule 801(d)(2)(E). Had the trial court done so, it would have been error, for one of the statements (that made by Warren) clearly was not a statement made by a co-conspirator. Such error, however, would be harmless, since the statement was nonetheless admissible. Therefore, we limit our discussion of this issue to that which we find to be certain.

¶ 44. Blocker testified at the Rule 104 predicate hearing that she was standing on Oakley Street with Bennett, Warren, and Michaels, when Johnson pulled up in a green car. Blocker stated that Johnson got out of the car and said, “Can I holler at you, [Warren]? ... I got into it with some guys and I need a pistol.” Blocker said that Warren replied, “I don’t have a pistol.... I ain’t fixing to get in it.” According to Blocker, Bennett interjected at that point and said, “I got a gun.” She said Bennett then went behind a house and retrieved a long rifle, he then got in the car with Johnson, and they drove off. Blocker said she saw Bennett approximately thirty to forty minutes later, and he “was real nervous.” Blocker stated that she heard Bennett say that he thought he had killed somebody.

¶ 45. Rule 801(c) of the Mississippi Rules of Evidence defines hearsay as “a statement, other than the one made by the declarant while testifying ... offered in evidence to prove the truth of the matter asserted.” Blocker’s testimony about what Johnson had requested explained Bennett’s actions of retrieving a rifle and then driving away with Johnson. Generally, an out-of-court statement offered to show its effect on the listener is relevant non-hearsay, as it is not offered to prove the truth of the matter of asserted. Knight v. State, 601 So.2d 403, 406 (Miss. 1992).

¶ 46. Both Johnson’s statement and Warren’s statement were admissible for the fact each was said. Id. And Bennett’s statement, of course, qualified as non-hearsay under Rule 801(d)(2)(A) of Mississippi Rules of Evidence.

¶ 47. Accordingly, we find no reversible error with the trial court’s decision to allow Blocker to relate what she allegedly heard and observed to the jury, which the record illustrates was consistent with the testimony she provided at the Rule 104 predicate hearing.

¶ 48. This issue is without merit.

IY. WHETHER THE TRIAL COURT IMPERMISSIBLY ALLOWED PRIOR-BAD-ACTS EVIDENCE BEFORE THE JURY.

¶ 49. During Parker’s direct examination, the State asked Parker if he had any problems with Bennett prior to the alleged shootings. Parker replied that Bennett had shot at him a couple of months prior. Bennett’s trial counsel objected on the ground of relevance. The State responded that the prior shooting incident went to motive. A bench conference was subsequently held off the record, and the trial court thereafter overruled the objection.

¶ 50. Parker continued with his testimony. Parker related that a couple months prior to the shootings at issue, a vehicle in which Bennett was riding attempted to run him over. Afterwards, the vehicle stopped in the road, and Bennett got out of the vehicle brandishing a gun. Bennett laid the gun on the ground and challenged Parker to a fight, to which Parker declined. Parker said a couple of minutes later the same vehicle drove back by, and Bennett began shooting at him. Parker stated that he immediately went to the police station and filed a complaint against Bennett.

¶ 51. During Bennett’s cross-examination, Bennett denied having ever shot at Parker. Following the defense’s case-in-chief, the State called Officer Sharonda Barnes as a rebuttal witness. Bennett entered no objection to Officer Barnes as a witness.

¶ 52. Officer Barnes testified that on January 8, 2008, Parker filed a complaint against Bennett. Officer Barnes stated that Parker claimed that Bennett had shot at him twice and chased him to “Court Services.” Officer Barnes wrote out a police report for Parker, describing the details of the alleged incident according to Parker. The police report was entered into evidence without any objection from Bennett. On cross-examination, Officer Barnes stated that there had been no conviction with regard to the alleged January 8 incident.

¶ 53. Bennett argues on appeal that the State introduced prior-bad-act evidence without providing proper notice. Bennett contends that prior to trial, he filed a motion for discovery, in which he had requested any and all evidence under Rule 404(b) of the Mississippi Rules of Evidence that the State intended to introduce at trial, to which the State provided no specific response. Bennett further contends that no Rule 403 balancing analysis was conducted on the record, and the trial court abused its discretion in allowing this highly prejudicial evidence before the jury. Bennett acknowledges that no objection was made to the State’s rebuttal witness being called to testify, but he contends this was due to the trial court’s previous ruling and his defense counsel’s tactical decision to demonstrate to the jury that the complaint made by Parker did not result in a conviction.

¶ 54. As the State points out, Bennett did not object to the prior-bad-act evidence on the ground of a discovery violation; rather, he objected that the evidence was inadmissible because it was not relevant. “An objection on one specific ground waives all other grounds.” Swington v. State, 742 So.2d 1106, 1110 (¶ 9) (Miss.1999) (citing Doss v. State, 709 So.2d 369, 387 (Miss.1996)). In Swington, the supreme court reiterated the necessity of this rule, explaining as follows:

There are three basic considerations which underlie the rule regarding specific objections. It avoids costly new trials. Boring v. State, 253 So.2d 251 (Miss.1971). It allows the offering party an opportunity to obviate the objection. Heard v. State, 59 Miss. 545 [ (1882) ]. Lastly, a trial court is not put in error unless it had an opportunity to pass on the question. Boutwell v. State, 165 Miss. 16, 143 So. 479 (1932).

Id. (quoting Oates v. State, 421 So.2d 1025, 1030 (Miss.1982)). Accordingly, we find that Bennett is procedurally barred from asserting a discovery violation for the first time on appeal.

¶ 55. Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 56. Evidence deemed admissible pursuant to the exceptions found in Rule 404(b), is still subject to the prejudice test of Rule 403. Jones v. State, 920 So.2d 465, 475 (¶ 32) (Miss.2006). “[J]ust as with any evidence otherwise admissible under any other evidentiary rule, evidence which is deemed admissible pursuant to 404(b) may still be excluded if its probative value is substantially out weighed by the danger of its resultant unfair prejudice.” Id.

¶ 57. In Jones, the defendant claimed his due-process rights were violated when the trial court failed to make an on-the-record Rule 403 balancing analysis in determining that Rule 404(b) evidence was admissible. The Jones court responded, stating: “the weighing and balancing task required by Rule 403 is not one susceptible of mechanical performance as it asks only that a judge rely on his/her own sound judgment.” Id. at 476 (¶ 33) (citing Jenkins v. State, 507 So.2d 89, 93 (Miss.1987)). The supreme court held:

[W]hile we clearly interpret the rules of evidence as requiring that all otherwise admissible evidence be “filtered” through the balancing test set forth in Rule 403, we do not interpret this requirement to be a regimented procedure that must be explicitly performed on pain of reversal. Though this Court certainly expects trial judges to have considered Rule 403 in making their evi-dentiary rulings, we certainly do not predicate the soundness of these determinations on the express use of magic words.... It follows that our review depends on the evidence and not the judge, and while a judge’s on-the-record analysis is recommended as it serves to fortify the judge’s position for purposes of review, the lack of such analysis is harmless unless we deem the evidence to be patently prejudicial.

Id. at (¶ 34).

¶ 58. Here, the trial court did not perform an on-the-record Rule 403 analysis before overruling Bennett’s objection to this prior-bad-act evidence going before the jury. Nevertheless, we find the trial court’s failure to do so was harmless error, as we cannot say that the prior-bad-aet evidence presented to the jury was manifestly prejudicial to Bennett.

¶ 59. The prior shooting incident that Parker claimed occurred on January 8 was admissible under Rule 404(b), as it both showed a possible motive and indicated intent on the part of Bennett for the crimes he had allegedly committed on May 26, 2008.

¶ 60. In Webster v. State, 755 So.2d 451, 457 (¶ 12) (Miss.Ct.App.1999), reversed in part on other grounds, Webster v. State, 754 So.2d 1282, 1236 (¶ 11) (Miss.2000), the defendant argued that testimony regarding a fight that took place approximately one year earlier between him and the murder victim should not have been admitted by the trial court because the event was too remote in time. This Court found no abuse of discretion on the part of the trial court in allowing this evidence to go before the jury because it showed a possible motive and indicated intent on the part of the defendant for the crime he allegedly later committed. Webster, 755 So.2d at 459 (¶ 16). The supreme court expressly upheld our ruling on this issue when it later heard the case on certiorari. Webster, 754 So.2d at 1238-89 (¶ 16).

¶ 61. As for the evidence presented by the State in its rebuttal case, no objection was made to that evidence going before the jury. Consequently, Bennett may not be heard on this appeal to complain of any error created thereby. Swington, 742 So.2d at 1110 (¶ 9).

¶ 62. For these reasons, we find this issue is without merit.

V. WHETHER CUMULATIVE ERROR REQUIRES REVERSAL.

¶ 63. Bennett failed to list this assignment of error in his original statement of issues, as is required by Rule 28(a)(3) of the Mississippi Rules of Appellate Procedure. Accordingly, we find that this issue is not properly before the Court. Reed v. State, 987 So.2d 1054, 1056-57 (¶ 8) (Miss. Ct.App.2008). Therefore, this issue is procedurally barred.

¶ 64. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE; COUNTS II-V, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS ON EACH COUNT; COUNT VI, SHOOTING INTO AN OCCUPIED DWELLING, AND SENTENCE OF TEN YEARS; COUNT VII, CONVICTED FELON IN POSSESSION OF A FIREARM, AND SENTENCE OF TEN YEARS, WITH THE SENTENCES IN COUNTS II-VII TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND RUSSELL, JJ„ CONCUR. MAXWELL, J., CONCURS IN RESULT ONLY.

      . Rule 401 states: " 'Relevant Evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. Rule 403 states in part: "Although relevant, evidence may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury_" M.R.E. 403.

      . Count seven erroneously cited to Mississippi Code Annotated section 97-37-29 (Rev.2006), which criminalizes shooting into an occupied dwelling.


author: MAXWELL, J., for the court:

text:
    Jonathan COOPER a/k/a Jonathan Dewayne Cooper, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CA-02031-COA.
    Court of Appeals of Mississippi.
    Aug. 23, 2011.
    Rehearing Denied Dec. 13, 2011.

      Ross Parker Simons, George T. Kelly Jr., Greenville, for appellant.
    Office of the Attorney General by Lisa Lynn Blount, for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J., for the court:

¶ 1. Jonathan Cooper appeals the Washington County Circuit Court’s denial of his motion for post-conviction relief (PCR). Cooper argues his attorneys were ineffective in moving to amend his indictment to include the phrase “not in necessary self-defense” rather than attempting to quash it based on the absence of that phrase. He also argues his attorneys rendered ineffective assistance in several respects in dealing with the testimony of the State’s expert in forensic pathology, Dr. Shephen Hayne. Because Cooper has failed to show (1) deficiency and (2) prejudice under Strickland, we affirm.

FACTS

¶ 2. During the early morning hours of May 25, 2002, Carolyn Cooper and Kenneth Shumaker returned to Carolyn’s home from visiting nightclubs in Green-ville, Mississippi. While they were away from the house, they left Carolyn’s twin sons, Tredara and Cordera Cooper (then ten years old), and Shumaker’s son, Kinney “Shaun” Maiten (then seven years old), under Cooper’s supervision.

¶ 3. When the couple returned, Cooper was asleep on the couch. After he was awakened, the couple got into an argument. Carolyn testified that as the argument escalated, Shumaker physically attacked her several times. She claimed he first hit her in the back of the head with his fist. At another point, he grabbed her by the throat. He also hit her in the head with a cordless phone. When Cooper stood between Carolyn and Shumaker in an attempt to diffuse the argument, Shu-maker told Cooper, “I’ll beat the brakes off you, too.” When Shumaker shoved Carolyn toward the door, she ran out of the house and across the street to a neighbor’s house.

¶ 4. Tredara and Cordera both gave similar accounts of what happened after their mother left. According to their testimony, Cooper went to the back bedroom, where he attempted to make a phone call. Shu-maker followed him. Before Cooper could call anyone, Shumaker snatched the phone away and hit Cooper in the jaw with it. Shumaker then asked the boys where his baseball bat was. Shumaker began looking for the bat in other rooms of the house. But Cooper located the bat first. Cooper and Shumaker then confronted each other again — Shumaker unarmed, Cooper brandishing a bat. Shumaker attempted to hit Cooper with his fist, which Cooper averted by ducking. When Shumaker swung again, Cooper hit Shumaker in the wrist with the bat. Though Shumaker did not retaliate, Cooper hit Shumaker again with the bat — this time in the head — knocking Shumaker to the ground.

¶ 5. Shaun related a vastly different version. According to Shaun, Cooper hit Shu-maker with the bat not two, but twenty times. Shaun admitted he was under the covers of the bed and could not see “anything at all.” But he claimed he peeked out and saw Cooper hit Shumaker with the baseball bat.

¶ 6. Based upon information Cooper provided at the scene, he was arrested. After executing a valid Miranda waiver, he provided a statement similar to the twin boys’ version of the events. He maintained that Carolyn and Shumaker had gotten into an argument. When Cooper attempted to stop the argument, Shumaker told Cooper: “I’ll beat the breaks off you, too.” After Carolyn left the house, Shumaker swung his fist at Cooper, which Cooper dodged.

¶ 7. At this point, Cooper’s story diverges from the testimony of the eyewitnesses. Cooper claimed he picked up a pool stick. Cooper swung the pool stick at Shumaker but missed. Cooper then landed hits with the pool stick at least twice. Specifically, Cooper remembered hitting Shumaker with the pool stick once in the left arm above the elbow and once on the front of the head. Cooper made no mention of a bat.

¶ 8. The pool stick recovered by law enforcement from the scene did not have any blood on it and was not broken. The baseball bat was not recovered until two days following the incident when Carolyn contacted law enforcement about having possession of the bat at her home.

¶ 9. The State called Dr. Hayne to testify as an expert in forensic pathology. Dr. Hayne had performed an autopsy of Shu-maker’s body and identified three injuries. One injury was a “compound commuted fracture” to Shumaker’s forearm. Dr. Hayne found this injury consistent with “defensive posturing.” He explained the victim would have sustained such an injury while attempting to ward off a blow to the face or upper body.

¶ 10. Dr. Hayne also identified two head injuries. His external examination showed injuries to both the left back portion of Shumaker’s head and the left side of his head. An internal examination revealed “evidence of great force applied to the head.” In Dr. Hayne’s opinion, the baseball bat, which was entered into evidence, could have inflicted the injuries. Given the severity of Shumaker’s injuries, Dr. Hayne determined they were more likely inflicted by a baseball bat than a pool stick. He determined the manner of death to be homicide.

PROCEDURAL HISTORY

¶ 11. A grand jury in Washington County indicted Cooper for murder. Following a two-day trial, the jury convicted Cooper of the lesser-included offense of manslaughter. The circuit court sentenced him to twenty years.

¶ 12. On direct appeal, Cooper challenged the weight and sufficiency of the evidence in addition to raising an eviden-tiary issue. This court affirmed his conviction. See Cooper v. State, 911 So.2d 665 (Miss.Ct.App.2005).

¶ 13. On December 3, 2008, the Mississippi Supreme Court granted Cooper leave to file a PCR motion in the trial court. On April 7, 2009, he filed his PCR motion. The circuit court held a hearing, where only Cooper testified. Finding Cooper failed to show ineffective assistance of counsel under Strickland, the circuit court denied his PCR motion.

¶ 14. On appeal, Cooper alleges his trial attorneys were ineffective. Their various alleged deficiencies include: (1) moving to amend his indictment to include the words “not in necessary self defense,” rather than seeking to quash the indictment; (2) failing to voir dire Dr. Hayne; (3) failing to sufficiently cross-examine Dr. Hayne; (4) failing to call a rebuttal expert; (5) failing to discuss discovery material with him; and (6) failing to object to the State’s introduction of certain photographs.

STANDARD OF REVIEW

1115. In considering the denial of a PCR motion, we review the trial court’s findings of fact for clear error. Rowland v. State, 42 So.3d 503, 506 (¶ 8) (Miss. 2010). “A finding of fact is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made.” Johns v. State, 926 So.2d 188, 194 (¶ 29) (Miss.2006). We accept as true any evidence, together with the reasonable inferences that may be drawn from that evidence, which supports the trial court’s findings. Loden v. State, 971 So.2d 548, 572-73 (¶ 59) (Miss.2007). As to credibility issues, we defer to the circuit judge who is the “sole authority for determining credibility of the witnesses.” Id. at 573 (¶ 59). When reviewing questions of law, our standard is de novo. Rowland, 42 So.3d at 506 (¶ 8). The PCR movant has the burden to show by a preponderance of the evidence that he is entitled to relief. Miss.Code Ann. § 99-39-23(7) (Supp.2010).

DISCUSSION

I. Statute of Limitations

¶ 16. We begin by addressing the timeliness of Cooper’s PCR motion. Mississippi Code Annotated section 99-39-5(2) (Supp.2010) provides: “A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon[.]” In Pittman v. State, 20 So.3d 51, 52 (¶ 1), 53-54 (¶¶ 9-11) (Miss.Ct.App.2009), we found a PCR motion was timely where the movant sought leave to file a PCR motion in the trial court within the three-year limitation period and the supreme court granted leave. Similarly, on July 21, 2008, Cooper filed a “Motion for Complaint for Fraud and Deception” — which the supreme court considered to be an application for leave to proceed in the trial court — within three years after this court decided his direct appeal. See Cooper v. State, 911 So.2d 665 (Miss.Ct.App.2005) (final mandate issued October 11, 2005). The supreme court granted Cooper leave. In accordance with Pittman, we find Cooper’s PCR motion is timely.

II. Ineffective Assistance of Counsel

¶ 17. To show ineffective assistance of counsel, Cooper must establish: (1) his attorneys’ performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To qualify as deficient, an attorney’s performance must fail to meet “an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, ... the challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (quotations omitted). For prejudice to exist, there must be a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

¶ 18. The PCR movant has the burden to show both prongs of Strickland are met. Moody v. State, 644 So.2d 451, 456 (Miss. 1994). His allegations under both prongs must be pled with specific detail. Jenkins v. State, 986 So.2d 1031, 1035 (¶ 14) (Miss. Ct.App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)). And the movant may not rely on mere allegations in his affidavit or brief. Vielee v. State, 653 So.2d 920, 922 (Miss.1995). We review whether the movant has made the required showing under each prong of Strickland based on the totality of the circumstances. Carney v. State, 525 So.2d 776, 780 (Miss.1988).

A. Indictment

¶ 19. Cooper first claims his counsel rendered ineffective assistance by moving to amend his indictment for murder to include the words “not in necessary self-defense” rather than moving to quash the indictment for failure to include this language. Cooper’s original indictment alleged:

JONATHAN DEWAYNE COOPER, on or about [the] 25th [d]ay of May, 2002, in Washington County, did unlawfully, wilfully, feloniously, and with malice aforethought, did [sic] then and there kill and murder one Kenneth Shumaker, a human being against the peace and dignity of the State of Mississippi.

¶ 20. We recently rejected an argument virtually identical to Cooper’s. See Man-gum v. State, 64 So.3d 503 (Miss.Ct.App. 2010) (cert, denied June 30, 2011). In Mangum, the PCR movant claimed his indictment for murder was defective because it did not include the words “not in necessary self-defense.” Id. at 503 (¶ 1). We held: “the phrase ‘not in necessary self-defense’ is encompassed in the word ‘unlawful.’ Therefore, we find ... Man-gum’s indictment was legally sufficient as it contained the word ‘unlawfully.’ ” Id. at 507 (¶ 12). We reasoned “unlawful” is defined as “not authorized or justified by law.” Thus, a charge that a lolling was “unlawful” would necessarily include the allegation it was not legally justified because of self-defense. Id.

¶ 21. As in Mangum, because Cooper’s original indictment alleged Cooper committed the killing “unlawfully,” it was not defective. Since a motion to quash, if made, would not have been properly granted, Cooper cannot show prejudice under Strickland. See Geiger v. Ccdn, 540 F.3d 303, 309-10 (5th Cir.2008) (to show prejudice from an attorney’s failure to make a certain motion, the defendant must show trial court would have granted the motion or would have committed reversible error in refusing it); United States v. Kimler, 167 F.3d 889, 893 (5th Cir.1999) (“An attorney’s failure to raise a meritless argument ... cannot form the basis of a successful ineffective assistance of counsel claim because the result of the proceeding would not have been different had the attorney raised the issue.”). Nor do we find any prejudice from the inclusion of the phrase “not in necessary self-defense” in the amended indictment, at Cooper’s attorneys’ request. The phrase was unnecessary, but its inclusion had no detrimental impact on Cooper’s defense. As a result, the phrase is surplusage. See Neal v. State, 936 So.2d 463, 469 (¶20) (Miss.Ct.App.2006).

¶ 22. Because Cooper has not shown his attorneys’ conduct relating to his indictment might have altered the outcome of the proceeding, he has not shown prejudice under Strickland. Accordingly, his ineffective-assistance-of-counsel argument fails on this issue.

B. Dr. Hayne

¶ 28. Cooper raises several arguments relating to Dr. Hayne’s testimony. First, Cooper claims his attorneys were ineffective for their “unconditional and open-armed acceptance” of Dr. Hayne as an expert in forensic pathology and their failure to voir dire him. Second, Cooper contends his attorneys did not sufficiently cross-examine Dr. Hayne. Third, Cooper claims his attorneys should have offered expert testimony to challenge Dr. Hayne’s testimony.

1. Failure to Challenge Dr.

Hayne’s Qualifications

¶ 24. We acknowledge that Dr. Hayne’s work has received criticism. Though the Mississippi Supreme Court rejected his two-shooter theory in Edmonds v. State, 955 So.2d 787, 792 (¶8) (Miss.2007), we note in Edmonds the supreme court made abundantly clear that “Dr. Hayne is qualified to proffer expert opinions in forensic pathology [.] ” (Emphasis added). And since Edmonds, the supreme court has consistently found Dr. Hayne qualified to render expert opinions in the field of forensic pathology in criminal cases. See Moffett v. State, 49 So.3d 1073, 1110-11 (¶¶ 126-27) (Miss.2010); DeHenre v. State, 43 So.3d 407, 417 (¶40) (Miss.2010); Nelson v. State, 10 So.3d 898, 904 (¶ 26) (Miss. 2009); Lima v. State, 7 So.3d 903, 907 (¶ 17) (Miss.2009).

¶ 25. We do not find Cooper’s attorneys’ performance deficient for merely failing to challenge Dr. Hayne’s qualifications. In Conway v. State, 48 So.3d 588 (Miss.Ct.App.2010), where the PCR mov-ant raised an identical argument, we observed: “Following the State’s voir dire of Dr. Hayne, we can hardly fault Conway’s trial counsel for choosing not to further question Dr. Hayne as to his extensive qualifications.” Id. The same is true here. In addition, an attorney’s decision to make certain objections generally “falls within the realm of trial strategy and is not grounds for a claim of ineffective assistance of counsel.” Id. at 600 (¶ 19) (citing Spicer v. State, 973 So.2d 184, 203 (¶69) (Miss.2007)).

¶ 26. Cooper has also failed to explain how testing Dr. Hayne’s qualifications might have altered the result of his trial. He mentions in his PCR motion that his attorneys’ failure to object to Dr. Hayne’s qualifications barred the issue for the purposes of appeal. But Cooper has not shown a corresponding basis for reversal of his conviction. As already explained, our supreme court has emphasized Dr. Hayne is qualified as an expert in forensic pathology. See, e.g., Moffett, 49 So.3d at 1110-11 (¶¶ 126-27). Thus, we do not find it reasonably probable his attorneys’ failure to object to Dr. Hayne’s qualifications affected the outcome of his case. Cooper fails to meet either prong of Strickland on this issue.

2. Failure to Sufficiently Cross-Examine Dr. Hayne

¶ 27. Cooper also asserts Dr. Hayne’s testimony suggests Cooper struck the victim, Shumaker, in the head with a baseball bat at least two times. Maintaining that he only struck Shumaker in the head once, Cooper contends his attorneys should have cross-examined Dr. Hayne concerning the number of blows to Shumaker’s head.

a. Dr. Hayne’s Testimony

¶ 28. Dr. Hayne identified two injuries to Shumaker’s head. Dr. Hayne’s external examination showed one injury to the left back portion of the head, where “the skin was torn and ripped, slightly irregular, measuring approximately one inch in length.” The other injury was “an abrasion or scraping of the skin” on the left side of the victim’s head. The photographs introduced into evidence depict these two external injuries to Shumaker’s head.

¶ 29. Dr. Hayne also conducted an internal examination. Though noting that the external injuries to Shumaker’s head “appear fairly superficial,” Dr. Hayne stated his internal examination revealed “evidence of great force applied to the head.” He found Shumaker’s death was caused by “blows to the head” and opined a baseball bat could have inflicted the injuries.

¶ 30. Dr. Hayne also testified there was a third injury to Shumaker’s body — a “compound commuted fracture” to the forearm, which he determined was consistent with “defensive posturing.”

¶ 31. On cross-examination, one of Cooper’s attorneys questioned Dr. Hayne about the injury to Shumaker’s forearm. When asked whether the injury could have been something other than a defensive posturing injury, Dr. Hayne responded affirmatively. Cooper’s attorney also posited that the victim could have been swinging his fist at Cooper at the time he sustained the forearm injury. And Dr. Hayne admitted, “I could not exclude that.” Still, Cooper contends his counsel performed deficiently by not questioning Dr. Hayne concerning Shumaker’s head injuries.

b. Strickland

¶ 32. Cooper offers little explanation of how a more thorough cross-examination would have altered the outcome of his trial. He simply points out Dr. Hayne’s testimony was inconsistent with other trial testimony as to the number of blows to the victims head. Cooper has shown us no credible proof that Dr. Hayne’s testimony that the victim received two head injuries is unreliable. Based on the record before us, including the photographs of the injuries to the victim’s head, we cannot find Cooper’s attorneys deficient for choosing to limit cross-examination to the “defensive-posturing” issue.

¶ 33. Cooper also fails to show resulting prejudice because he has not established, by a reasonable probability, that any further questioning of Dr. Hayne would have resulted in Cooper’s acquittal. Further, he fails to plead the prejudice prong with the required specificity. Jenkins, 986 So.2d at 1035 (¶ 14) (citing Brooks, 573 So.2d at 1354).

¶ 34. Cooper cites Edmonds as supporting authority. In Edmonds, the supreme court reversed and remanded the defendant’s (Edmonds’s) murder conviction. Dr. Hayne testified at Edmonds’s trial that, more likely than not, two shooters had pulled the trigger at the same time, discharging the fatal shot. Ed-monds, 955 So.2d at 791-92 (¶7). The supreme court found Dr. Hayne’s testimony concerning his two-shooter theory unreliable and improperly admitted. Id. at 792 (¶¶ 7-9).

¶ 35. But here, unlike Edmonds, Cooper does not argue Dr. Hayne applied unreliable principles or methods in forming his opinion. See M.R.E. 702. Nor does Cooper suggest Dr. Hayne’s opinion was not based upon sufficient facts and data presented in the case. See id. Because we find nothing in the record to indicate Dr. Hayne’s testimony was unreliable or otherwise inadmissible, Edmonds is inapplicable. See Moffett, 49 So.3d at 1110-11 (¶¶ 126-27); Lima, 7 So.3d at 907-08 (¶¶ 14-20).

¶ 36. While there were varying accounts of how many blows Cooper received, there is often factually conflicting evidence in criminal cases. And it is the sole province of the jury to resolve conflicts and make witness-credibility determinations. Gathright v. State, 880 So.2d 1276, 1278 (Miss.1980). Cooper’s concern with Dr. Hayne’s testimony relates to the weight of the evidence, not its admissibility. This court has already rejected Cooper’s challenge to the weight and sufficiency of evidence on direct appeal. Those issues are not before us today.

¶ 37. For these reasons, we find Cooper has failed to make his required showing on this issue.

3. Failure to Call Rebuttal Expert

¶38. Cooper claims his attorneys should have called a rebuttal expert. However, Cooper neither establishes that contradictory expert testimony exists, nor shows the substance of any such testimony. Thus, he cannot prove prejudice under Strickland.

¶ 39. Cooper cites the Mississippi Supreme Court’s decision in Howard v. State, 945 So.2d 326 (Miss.2006) as support. In Howard, the supreme court found deficient performance in defense counsel’s decision not to call an expert witness to rebut the State’s expert. Id. at 352 (¶ 52). However, the PCR movant, Howard, supported his claim with “numerous expert affidavits and other documents” attacking the State expert’s testimony. Id. at (¶ 53). “These affidavits and other documents point out how many times [the State’s expert] has been proven wrong and they discuss how unscientific his methods are.” Id. Here, Cooper has not supported his claim with affidavits or other evidence criticizing Dr. Hayne’s methodology.

¶ 40. Further, and equally pertinent to our analysis, we note that despite the numerous affidavits and documents offered by the PCR movant in Howard, the supreme court still found no resulting prejudice. Id. The court held that “in order for Howard to show that the result of the proceeding would have been different, he must offer an affidavit from an expert witness who rebuts the State’s expert testimony.” Id. Though the extensive material offered in Howard disparaged the State’s expert and his methods, no potential rebuttal expert was willing to conclude the State’s expert’s opinions were incorrect. As a result, the supreme court found no prejudice. Id. Under Howard’s reasoning, Cooper falls far short of the required showing of prejudice, as he fails to point to any expert testimony refuting Dr. Hayne’s conclusion concerning the number of blows to the victim’s head. We further note that Cooper was the sole -witness at his PCR hearing. He neither attached affidavits to his motion nor identified contrasting expert testimony.

¶ 41. Cooper fails to meet his burden on this issue.

C. Failure to Discuss Discovery Material

¶ 42. Cooper contends his attorneys were ineffective because they “did not share discovery materials or trial strategies [with him] ... during the investigation stage of his case.” But when Cooper testified at his post-conviction evidentiary hearing, he could not refute that his attorneys had reviewed his entire file. He also failed to even allege what specific information they failed to discuss with him. Nor does he allege with any specificity how this alleged non-disclosure affected the outcome of his trial. Because Cooper has failed to plead this issue with the specificity required, he is not entitled to relief. Jenkins, 986 So.2d at 1035 (¶ 14) (citing Brooks, 573 So.2d at 1354) (claims of ineffective assistance of counsel must be specifically pled on both prongs of Strickland ); Finley v. State, 739 So.2d 425, 428 (¶¶8, 10) (Miss.Ct.App.1999) (finding PCR movant’s similar ineffective-assistance-of-counsel argument based on attorney’s alleged failure to discuss discovery material was not pled with required specificity).

D. Photographs

¶ 43. Cooper also argues his counsel was ineffective for failing to object to the admission of autopsy photographs taken by Dr. Hayne and admitted at trial. Cooper specifically challenges a photograph depicting one of the victim’s head injuries, which he contends was more prejudicial than probative.

¶ 44. We review a trial court’s admission of photographs for an abuse of discretion. Dampier v. State, 973 So.2d 221, 230 (¶ 25) (Miss.2008). “The discretion of the trial judge is almost unlimited regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Id. (internal quotations omitted). “So long as a photograph has probative value and its introduction serves a meaningful evidentiary purpose, it may still be admissible despite being gruesome, grisly, unpleasant, or even inflammatory.” Id. (internal quotations omitted). “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). “Some probative value is the only requirement needed in order to support a trial judge’s decision to admit photographs into evidence.” Id

¶ 45. Mississippi Rule of Evidence 401, which defines relevant evidence, favors admission “[i]f the evidence has any probative value at all[.]” M.R.E. 401 cmt. Mississippi Rule of Evidence 403 allows relevant evidence to “be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (Emphasis added).

¶ 46. We find the photographs here meet all three prongs of the test for “meaningful evidentiary purpose,” only one of which need be met. The photographs (1) aid in describing the circumstances of the killing, (2) describe the cause of death, and (3) supplement and clarify Dr. Hayne’s testimony. Indeed, Cooper highlights the significance of the number of blows to the victim’s head in other issues raised in this appeal. The photographs, which we do not find to be gruesome, depict the victim’s injuries and arguably aid in illustrating the number of times Cooper struck the victim. For these same reasons, we also find the photographs easily pass through the filter of Rule 403.

¶ 47. Any objection to the photographs would have been unsuccessful and immaterial to the outcome of the trial. Therefore, we find Cooper fails to show either deficiency or Strickland prejudice.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS AND RUSSELL, JJ., CONCUR. IRVING, P.J., AND ISHEE, J., CONCUR IN PART AND IN THE RESULT. MYERS AND CARLTON, JJ., NOT PARTICIPATING.

      . We note that the victim is referred to as "Shumake” at some points in the trial transcript.

      . See Miranda v. Arizona, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1969).

      . See Miss.Code Ann. § 99-39-7 (Supp.2010).

      . We note that the supreme court in Chamberlin recognized McNeal v. State, 551 So.2d 151 (Miss. 1989) as the "solitary instance where [the supreme court] held a photograph, a close-up of the victim’s partly decomposed skull, was gruesome and lacked an evidentia-ry purpose and was more prejudicial than probative[.]” Chamberlin, 989 So.2d at 340 (¶ 73).

      . The definition of relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401.