author: PEATROSS, J.

text:
    STATE of Louisiana, Plaintiff-Appellee v. R.G., Defendant-Appellant.
    No. 45,718-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Mayer, Smith & Roberts, LLP, by Steven E. Soileau, Shreveport, Louisiana, for Appellant.
    Charles Rex Scott, District Attorney, Scott Brady, Brian H. Barber, Assistant District Attorneys, Shreveport, Louisiana, for Appellee.
    Before WILLIAMS, PEATROSS & DREW, JJ.
   PEATROSS, J.

| ,On January 11, 2010, the juvenile defendant, R.G., was charged with two counts of armed robbery, in violation of La. R.S. 14:64, and two counts of armed robbery with the use of a firearm, in violation of La. R.S. 14:64.3. On February 23, 2010, following an adjudication hearing, R.G. was adjudicated delinquent of two counts of first degree armed robbery, in violation of La. R.S. 14:64.1. Counts three and four, armed robbery with the use of a firearm, were dismissed. On March 17, 2010, R.G. was sentenced to serve three years in the continued custody of the Department of Public Safety and Corrections, Office of Juvenile Justice, with credit for time served and with a recommendation for the fast track program. R.G. now appeals. For the following reasons, R.G.’s convictions and sentence are affirmed.

FACTS

On June 29, 2009, at approximately 11:30 p.m., Arthur Graham and Mardarius Evans were at a friend’s house near LSU Medical Center in Shreveport, Louisiana. Evans got into an argument with one of his friends and left the residence, walking north on Linwood Avenue toward Kings Highway. Graham ran after Evans to calm him down and the two walked together for a few minutes, ultimately turning left onto Kings Highway.

As Graham and Evans walked under a railroad overpass, they were approached by two young black males, one riding a bicycle and the other walking. One of the boys pulled out a gun and told Graham and Evans to give him everything they had. Evans handed over his cell phone, wallet, eyeglasses and earrings. Graham turned over his cell phone. The two |2robbers then left together on the bicycle, Evans ran off in the direction of Mansfield Road and Graham ran to LSU Medical Center to phone police.

While responding to the scene, officers spotted a black male, Z.R., matching the description of one of the perpetrators given by the victims. Z.R. was riding a bike and fled from officers. When he was apprehended, a gun was found nearby. Both victims were transported to the scene of the arrest and both identified Z.R. as one of the robbers. After Z.R., a juvenile, was adjudicated delinquent and sentenced for committing armed robbery in violation of La. R.S. 14:64 and armed robbery with the use of a firearm in violation of La. R.S. 14:64.3, he informed the prosecutor’s office that R.G. was the other perpetrator of the robbery. This information was then communicated to Officer Russell Ross, one of the investigating officers of the robbery, who subsequently prepared a photographic lineup. One of the victims, Graham, was asked to view the photographic lineup and he positively identified R.G. as the other person who had committed the robbery. Consequently, R.G. was arrested on December 16, 2009.

R.G.’s hearing was held on February 8, 2010. The State called Officer Ross as its first witness. Officer Ross testified that, after initially arresting Z.R., he continued to look for the other suspect that evening, but did not find him. He then received information from the prosecutor’s office that R.G. had been implicated by Z.R. as the other perpetrator of the robbery. On receiving this information, Officer Ross conducted a photographic lineup on August 28, 2009, wherein one of the victims, | sGraham, positively identified R.G. as the other perpetrator of the robbery. After Graham’s positive identification of R.G. as the other robber, Officer Ross continued to search for R.G., but learned that he was in juvenile detention at the time. Officer Ross testified that he was under the impression that R.G. was in custody somewhere outside of Shreveport. R.G. was released from custody in September 2009, and Officer Ross arrested R.G. on December 16, 2009.

Officer Ross testified that, while a gun and a bike were found in Z.R.’s possession or close to him on the night of the robbery, there was no such physical evidence linking R.G. to the robbery. Further, no fingerprint analysis was taken of the gun because it was contaminated at the scene.

The State’s next witness to testify was one of the robbery victims, Graham. Graham recounted the details of the night he was robbed and explained that the other victim, Evans, had gotten into an argument with another friend and left the friend’s house upset. Graham went after Evans to calm him down and to try to get him to go back inside the house. Graham testified that, as he and Evans were walking, he saw two young men across from the LSU Medical Center parking lot, one on a bicycle and one walking. As Graham and Evans crossed under the railroad bridge overpass on Kings Highway, the young men approached them and one of them, whom Graham identified at trial as R.G., pulled out a gun and said “give me | ¿everything you got.” Graham testified that Evans then handed R.G. everything he had on him and Graham handed over his cell phone. At that point, the two robbers both got onto the bike and rode back down Kings Highway toward LSU Hospital. Evans ran in the other direction, toward Mansfield Road, and Graham went to LSU Hospital to call the police.

Graham testified that, when he was near LSU Medical Center in an area that was well lit, he got a good look at the young man who took his cell phone, whom he identified in the courtroom and in the photographic lineup as R.G. Graham stated that he kept his eyes on both of the young men as they approached from LSU Medical Center prior to the robbery because they were walking in front of them.

Graham testified that he did not consume any alcohol during the three to four hours preceding the robbery and that he did not use drugs. He also testified that he did not see Evans consume any alcohol or illegal drugs. Graham testified that the robbery occurred very quickly, that he did not know R.G. prior to the robbery and that, during the robbery, Z.R. was holding the bike and R.G. was holding the gun.

Graham further testified that, when he called police the night of the robbery to give a description of the robber later identified as R.G., he told police that R.G. had either dreads or “wild braids.” Graham explained that, while he did not focus on memorizing every attribute of the robber, he did remember enough to identify him. Graham also testified that he saw R.G. standing in front of a car in which he was riding approximately a month |safter the robbery at the corner of Hollywood and Hearne Avenue and that, when Graham saw R.G., R.G. looked at Graham and laughed.

Graham explained that, when he went to the police station to view the photographic lineup, Officer Ross told him that the pictures were a little outdated. He testified that Officer Ross did not indicate which person in the lineup he believed committed the robbery and did not divulge that he had any information linking R.G. to the crime.

The next witness called by the State was Evans, the other robbery victim. Evans testified that, on June 29, 2009, he was at a friend’s house where he got into an argument with someone and left. When Evans left, Graham followed after him and the two walked together on Kings Highway until they came under a railroad bridge overpass and were robbed by two young men. Evans explained that Z.R. and R.G. initially passed by him and Graham and then turned around and came back and robbed them. Evans testified that, when one of the boys, whom he later identified as R.G., pulled a gun on them, Evans handed over his cell phone, wallet, glasses and earrings and Graham handed over his cell phone. Evans testified that he handed over his possessions to the two young men because he was afraid for his life.

Evans testified that the robbery occurred close to 11:00 p.m. and that he saw Z.R. and R.G., one on a bike and the other on foot, while he and Graham were walking past the Burger King on Kings Highway. Evans explained that, at the time of the robbery, he was no longer upset about the fight with his friend. He testified that he could not remember what R.G. |fiwas wearing at the time of the robbery, but that he described R.G. to police as having braids or dreadlocks, that he looked about 19 or 20 years old and was dirty, rugged and thuggish. Evans further testified that, while no one showed him the photographic lineup of R.G., he “vividly remembered” who robbed him and was able to identify R.G. as one of the robbers when he first walked into the courtroom. Evans explained that R.G. was right in front of him and Graham during the robbery, pointing the gun back and forth at each of them. When questioned about his certainty of correctly identifying R.G. as one of the robbers, Evans testified he was “100 percent sure that’s him.”

The State rested its case after Evans’ testimony and R.G. moved for an acquittal, which was denied by the trial court.

The first witness called to testify on behalf of R.G. was Officer Matthew Gry-der, one of the officers from the Shreveport Police Department who investigated the robbery. Officer Gryder testified that, while en route to LSU Medical Center, he encountered a young man about seven or eight blocks from the hospital who matched the description of one of the robbers and was later identified as Z.R. He was riding a bicycle and heading south. When Officer Gryder and the other responding officer attempted to stop the suspect, he dropped the bike and fled on foot. Officer Gryder testified that they found a gun when they caught the fleeing suspect, Z.R., but that none of the items taken from Evans and Graham were found on Z.R. Evans and Graham were then brought to the area where Z.R. was apprehended and both victims identified Z.R. as one of the robbers.

17After apprehending Z.R., Officer Gry-der then went to Z.R.’s parents’ house to obtain permission from them to interview Z.R. Z.R.’s parents agreed and followed Officer Gryder to the police station where Z.R. and his parents were subsequently interviewed. Officer Gryder was not involved in the interview with Z.R.’s parents.

The next witness called to testify on behalf of R.G. was Muriel Burns, manager of the Caddo Parish Juvenile Detention Center (“the Center”). Ms. Burns testified that she knew both R.G. and Z.R. when they were incarcerated at different times at the Center and that R.G. was at the Center from July 21through July 30, 2009. Ms. Burns could not remember whether R.G. had braids when he was at the Center but testified that he did not have dreadlocks. Ms. Burns further testified that R.G. had facial hair in the past, but she could not remember if he had facial hair in July 2009. Ms. Burns stated that she did not know whether R.G. and Z.R. were friends.

R.G. then took the stand, denied involvement in the robbery and stated that he was not friends with Z.R. The defense proffered testimony that Z.R. had previously told R.G., “I’ve got a cake baked for you.”

As previously stated, at the conclusion of the trial on February 23, 2010, R.G. was adjudicated delinquent of two counts of first degree armed robbery, pursuant to La. R.S. 14:64.1, with counts three and four dismissed, ie., armed robbery with use of firearm pursuant to La. R.S. 14:64.3. On March 17, 2010, R.G. was sentenced to serve three years in the continued custody of the Department of Public Safety and Corrections, Office of |¾Juvenile Justice, with credit for time served and with a recommendation for the fast track program. R.G. now appeals.

DISCUSSION

Assignment of Error Number One (verbatim): The court erred in finding there was no reasonable doubt as to the identification of the juvenile, R. G., in this case.

R.G. argues that reasonable doubt existed as to whether he committed the armed robbery. In support of this assertion, R.G. cites the lack of physical evidence, including the fact that no fingerprints were found on the bicycle or the gun. R.G. also points to the fact that Z.R. refused to identify his accomplice at first, leading police to assume that the accomplice. must have been a family member, when R.G. is unrelated to Z.R. R.G. also asserts that the photographic lineup display was unduly suggestive because none of the other photographs physically resembled the description of the second robber given by the victims on the night of the robbery. R.G. also complains that Graham was the only victim to view the photographic lineup, while Evans never saw it at all. Finally, R.G. posits that he was “set up” by Z.R. because the two young men had not gotten along in the past.

The State contends that the evidence was sufficient because Graham was able to positively identify R.G. in the photographic lineup prior to trial and because both Evans and Graham positively identified R.G. as one of the robbers in the courtroom during trial. The State further argues that the lineup was not unduly suggestive and that the totality of the circumstances did not present a likelihood of misidentifi-cation or an unreliable identification by the witness. The State also asserts that, even had R.G. |9been able to show suggestiveness of the photographic lineup, he was able to cure the issue through eross-exami-nation of the witnesses at trial. Finally, the State contends that Z.R.’s identification of R.G. as his accomplice, standing alone, is sufficient evidence to support the identification of R.G. as one of the perpetrators.

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. See La. Ch. C. art. 883. In a juvenile case, the reviewing court is constitutionally compelled to review both facts and law. La. Const. Art. 5, § 10(A) & (B). The reviewing court, however, must also recognize the fact that the juvenile court observed the conduct and demeanor of the witnesses and was in the best position to assess credibility and weigh the evidence. State ex rel. K.M.T., 44,731 (La.App.2d Cir.8/19/09), 18 So.3d 183. Thus, not only does Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), apply to delinquency adjudication hearings, but our state constitution also requires that the reviewing court determine, after reviewing the record evidence, whether the juvenile court was clearly wrong in its factual findings. Id.

The standard of review for a sufficiency of the evidence claim is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson, supra; State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. State v. Jacobs, 504 So.2d 817 (La.1987). When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational finder of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Id.; State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 06-2514 (La.5/4/07), 956 So.2d 607; State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490; see also State v. Johnson, 96-0950 (La.App. 4th Cir.8/20/97), 706 So.2d 468, writ denied, 98-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999).

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a fact finder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the State to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047; State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

A defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misiden-tification as a result of the identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Prudholm, 446 So.2d 729 (La.1984); State v. Chaney, 423 So.2d 1092 (La.1982). The Manson court listed five factors used to determine whether an identification procedure was suggestive: (1) the witness’s opportunity to view the defendant at the time the crime was committed; (2) the degree of attention paid by the witness during the commission of the crime; (3) the Inaccuracy of any prior description; (4) the level of the witness’s certainty displayed at the time of the identification; and (5) the length of time elapsed between the crime and the identification. Manson v. Brathwaite, supra.

R.G. claims that the trial judge erred in finding that there was no reasonable doubt as to the identification of R.G. as one of the robbers. We disagree. Z.R. identified R.G. as his accomplice after Z.R. had been tried and adjudicated delinquent of the armed robbery. Both victims, Graham and Evans, positively identified R.G. in the courtroom during trial. Graham further testified that he recognized R.G. approximately a month after the robbery, walking near Hollywood and Hearne Avenues in Shreveport.

Graham positively identified R.G. in a photographic lineup which took place on August 27, 2009, approximately two months after the robbery. A review of the photographic lineup array does not demonstrate suggestiveness. The individuals in the photographs appear to be similar in weight and height and have similar complexions, haircuts and facial hair. Additionally, Graham testified that Officer Ross explained that the photographs could be outdated, did not suggest one picture over another and did not tell him that he had information linking R.G. to the crime.

Graham also testified that, because the street and parking lot were well lit, he got a very good look at the robbers when they walked past LSU Medical Center. He further testified that he kept his eye on them prior to the robbery. On cross-examination, Graham stated that he did not remember every detail of R.G.’s appearance, but that he remembered enough to know who he was. On the night of the robbery, he gave police a detailed | ^description of both robbers. Graham also testified that he saw R.G. on the street just prior to the lineup and that R.G. had laughed at him when the two made eye contact. Furthermore, when Graham positively identified R.G. at trial, he testified that R.G. was the person who had told him to “give me everything you got.” Given these facts, we do not find that there was any likelihood of misidenti-fication. Graham’s testimony alone is sufficient to prove the commission of the offense by R.G. State v. Robinson, supra.

Additionally, although Evans’ positive identification of R.G. in the courtroom at trial came almost seven months after the robbery, Evans testified that the robbers walked right past him and Graham before getting to the overpass and that he “vividly remembered” who had robbed him. When questioned as to his certainty that he correctly identified R.G. as one of the robbers, he testified that he was “100 percent sure that’s him.” He also gave police a detailed description of the robbers on the night of the robbery. Accordingly, we find that sufficient evidence exists to support the identification of R.G. as one of the robbers.

This assignment of error is without merit.

Assignment of Error Number Two (verbatim): The court’s errors on evidentiary rulings require a de novo review from which this court should determine there is reasonable doubt as to the identity of the perpetrator.

R.G. contends that the trial judge erred when he sustained the State’s objection to defense counsel asking if Graham had ever been adjudicated delinquent of a DWI offense. R.G. claims that the question was properly used to attack Graham’s credibility because, when asked whether he was drinking on the night of the robbery, he stated that he never drank. R.G. I^also avers that the trial judge erred in allowing hearsay testimony from Officer Ross that he received information from the prosecutor’s office identifying R.G. as one of the robbers. R.G. claims that the State should have called Z.R. to testify to elicit the information for trial purposes. R.G. concludes that, because the State had planned to call Z.R. but never did, a presumption should arise that his testimony would have been adverse to the State’s case.

The State counters that Graham did not testify that he never consumed alcohol; rather, he testified that he did not consume alcohol three to four hours prior to the robbery and that he did not do drugs. According to the State, therefore, any reference to a DWI is irrelevant. The State also contends that' Z.R.’s out-of-court statement was not a confession for purposes of the hearsay exception because it was not given to a law enforcement officer. Additionally, even if the statement implicating R.G. was considered a confession and, therefore, admissible, its exclusion is subject to the harmless error rule and, thus, does not require a reversal of the adjudication. We agree.

La. C.E. art. 609.1 allows for the admission of past convictions at a criminal trial for every witness for the purpose of attacking that witness’s credibility. See La. C.E. art. 609.1. Ordinarily, only the fact of the conviction, the name of the offense, the date thereof and the sentence | ^imposed are admissible. See La. C.E. art. 609.1(C). Details of the conviction, however, may become admissible if: (1) the witness has denied the conviction or denied recollection thereof; (2) the witness has testified to exculpatory facts or circumstances surrounding the conviction; or (3) the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues or misleading the jury. Id.

A trial court is afforded great discretion in controlling the scope and extent of cross-examination and its findings will not be disturbed absent a finding of an abuse of discretion. State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So.2d 1218, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010. Furthermore, any failure on the part of the trial judge to allow cross-examination pursuant to La. C.E. art. 609.1(C), thus resulting in an infringement on a defendant’s right of confrontation, is subject to the harmless error analysis. Id.; State v. Butler, 30,798 (La.App.2d 6/24/98), 714 So.2d 877, writ denied, 98-2217 (La.1/8/99), 734 So.2d 1222.

The testimony of a police officer may encompass information provided by another individual without constituting hearsay if it was offered to explain the course of the investigation and the steps leading to the defendant’s arrest. State v. Smith, 98-1417 (La.6/29/01), 793 So.2d 1199, cert. denied, 535 U.S. 937, 122 S.Ct. 1317, 152 L.Ed.2d 226 (2002). Additionally, a defendant is required under La. C. Cr. P. art. 841 to make a. contemporaneous objection to the hearsay testimony at trial in order to preserve the claim on appeal.

|1fiWe find that the trial judge did not err when he sustained the State’s objection to R.G.’s question to Graham regarding a previous DWI conviction. R.G.’s reference to the alleged past conviction was not proper to attack Graham’s credibility, as required by La. C.E. 609.1. Graham did not testify that he never drinks alcohol — he stated that he had not consumed alcohol in the three to four hours prior to the robbery and that he did not consume drugs. An alleged DWI conviction, therefore, would have no relevance to Graham’s statement that he did not consume alcohol during the three to four hours prior to the robbery.

Further, we find that the trial court did not err in permitting Officer Ross to testify with regard to the communications that he received from the prosecutor’s office pertaining to the potential identity of the other robber. The testimony was elicited by the State to explain Officer Ross’s investigation and his reason for the photographic lineup. His testimony regarding those communications was, therefore, not impermissible hearsay because the testimony was offered to explain the course of the investigation and the steps leading to R.G.’s arrest. Id. Additionally, R.G. failed to contemporaneously object when Officer Ross was questioned on direct examination with regard to the communications; and, consequently, R.G. is barred from raising the issue on appeal. See La. C. Cr. P. art. 841.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the adjudications of delinquency and sentence of the juvenile defendant, R.G., are affirmed.

AFFIRMED.

      . Z.R. did not implicate R.G. as the other perpetrator of the robbery until after he had been tried and adjudicated delinquent of the robbery charges in a separate hearing.

      . Officer Ross testified that he was never able to get in touch with the other victim, Evans, for the purposes of having him view the photographic lineup.

      .The lineup contained six color photographs. Officer Ross explained that, when constructing a photographic lineup, he takes a photograph of the suspect and places it in an array with five other randomly selected photographs of similar-looking people.

      . The State further maintains that the court minutes proffered by R.G. are for a different individual with the same name as the victim, Arthur Graham. The State cites the fact that the conviction for the DWI was in 1998, when the victim Arthur Graham would have been only II or 12 years old. In furtherance of this argument, the State notes that the court minutes were of a district court proceeding, and not a juvenile court hearing, where an 11-year-old or 12-year-old would have been adjudicated delinquent for a DWI offense.


source: Caselaw Access Project

author: WALLER, Chief Justice, DICKINSON, Justice,

license: Public Domain

text:
    James C. NEWELL, Jr. v. STATE of Mississippi.
    No. 2009-KA-00701-SCT.
    Supreme Court of Mississippi.
    Dec. 2, 2010.

      Office of Indigent Appeals by Leslie S. Lee, Jackson, Phillip Broadhead, Oxford, attorneys for appellant.

      Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, Lisa L. Blount, attorneys for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. James C. Newell appeals his conviction for manslaughter stemming from his altercation with and fatal shooting of Adrian Boyette in the parking lot of the Slab House bar in Lowndes County. We find that the trial court committed reversible error in one of its evidentiary rulings and in refusing one of Newell’s requested jury instructions on the newly revised statutory presumption under the “Castle Doctrine.” So we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. James C. Newell lived in Vernon, Alabama, but worked in and around Columbus, Lowndes County, Mississippi. Newell married his wife Diane on April 30, 2008, despite a previously tumultuous relationship. During them two-week marriage, Newell suspected Diane of cheating on him with Tony Hayes, with whom she previously had lived. In fact, Newell already had consulted an attorney about getting a divorce from Diane because of her suspected infidelity. On May 14, 2008, at around 5:00 p.m., Newell called Diane’s cell phone and left two voicemail messages. In the first message, he threatened to shoot Diane and Tony, but in the second message he recanted. Nonetheless, later that evening, Newell drove from Vernon, Alabama, over the state line to the Slab House bar on Caledonia-Vernon Road in Lowndes County, Mississippi. He stated that he went there to confirm Diane’s and Tony’s relationship before he went through with the divorce.

¶ 3. When Newell arrived at the Slab House sometime between 8 and 9 p.m., he saw Diane’s truck in the parking lot, but Diane was not there. Newell saw Adrian Boyette, whom he did not know, standing near Diane’s truck. And he saw Boyette’s friend, Jason Colby Hollis, standing nearby. Newell asked Boyette if he knew the woman who drove Diane’s truck, if he knew where she was, and if he had seen a man with her. Boyette said he did not, so Newell pointed toward Hollis and asked who he was. Boyette responded that Hollis was his friend and told Newell not to go over there and mess with him. Some harsh words were exchanged between Newell and Boyette, and Newell turned around and walked back toward his own truck.

¶ 4. Boyette followed Newell back to his truck. According to Newell, as he was entering the truck, Boyette began shouting and beating on the truck. Newell testified that Boyette stated that he was going to “[mess] [Newell] up!” At some point, Boy-ette shut the truck door on Newell’s leg. Newell said he never pushed, shoved, or struck Boyette in response to his aggression. According to Newell, after the truck door was completely closed, Boyette continued beating on the truck and yelling “I’m fixing to get you — [mess] up your world. I’m fixing to — get [yourself] out of that truck.” At this point, Newell began backing up the truck. But Newell testified that he continued to fear for his life because:

[Boyette] come around there, come around and grabbed on the door, like opening the door, like he was either— from the look in his eyes, he was either going to — you know, he was going to try to open that door, just stand there beat — hitting on me when I was sitting in the door, or he was trying to snatch me out of the truck.

Then, Newell pushed on the door from the inside, and Boyette backed up just enough for Newell to step out of the truck. Next, according to Newell, “[Boyette] said ‘I’m fixing to cut you up,’ ” and “when he grabbed at his pocket, that’s when [New-ell] reached under the ... seat of the truck, pulled the pistol out, and shot him.” Newell then jumped back into his truck and fled to his home in Vernon, Alabama. Although Boyette never displayed a knife or any other weapon, a pocket knife later was found in his pocket. Boyette died from the gunshot.

¶ 5. Larry Swearingen, who worked as the “town cop” with the Caledonia Marshall’s Department, was the first on the scene at the Slab House. He issued a “be on the lookout” (“BOLO”) advisory for Newell’s vehicle, heading toward Vernon, Alabama, on Highway 12. Later, law enforcement officers in Alabama responded to a call that the man identified in the BOLO was at his home in Vernon and was threatening to commit suicide. Officers James Carl Smith and Jeff Patrick of the Vernon Police Department, as well as Deputy Rodney Jones of the Lamar County (Alabama) Sheriffs Department responded to Newell’s residence around 9:30 p.m., followed shortly thereafter by David Sullivan, an investigator with the district attorney’s office in Alabama, who knew Newell personally.

¶ 6. When Sullivan arrived at Newell’s residence, he encountered a standoff between Newell and the other officers. Newell was kneeling by a tree, holding a gun to his own head, and telling the officers to stay back. When officers asked Newell to drop his gun, Newell stated: “Why? You’re going to have to kill me, I’m not going to jail.” To try to get him to relinquish the gun and surrender, Sullivan moved closer and had a conversation with Newell, with the other officers listening. Sullivan testified that he asked Newell what had happened, and Newell related his version of the events surrounding the shooting at the Slab House. Newell told Sullivan “They won’t believe me. They won’t believe my side of the story.” Newell said that he was going to commit suicide because he was determined not to go to jail.

¶ 7. In an effort to defuse the situation, Sullivan agreed to some of Newell’s “demands.” Specifically, Newell wanted Diane’s cell phone “seized” to prove her infidelity by showing all of her calls to Tony Hayes and other purported paramours. He also wanted his truck fingerprinted to show Boyette’s contact with it. The Alabama officers notified the officers back at the Slab House, who got Diane’s cell phone, which still contained the voicemail messages Newell had left earlier that day. But due to moisture present on Newell’s truck window, no fingerprints were recovered. After a tense, one-hour standoff, Newell surrendered and was taken into custody by the Lamar County Sheriffs Department.

¶ 8. Although Newell was indicted and tried for deliberate-design murder, the jury found Newell guilty of the lesser-included offense of manslaughter. The trial court sentenced Newell to serve twenty years in the custody of the Mississippi Department of Corrections, and to pay all court costs and funeral expenses. Newell filed an unsuccessful motion for judgment notwithstanding the verdict (JNOV), or, in the alternative, for a new trial. Newell timely filed his notice of appeal, in which he raises the following four issues.

I.Whether the trial court erred in allowing the Appellant’s personal telephonic voicemail messages, left for and meant to be heard only by his wife, into evidence over a [Mississippi Rule of Evidence] 504 spousal privilege objection since she was neither a victim of any crime nor an adverse party to these proceedings.
II. Whether the trial court erred in refusing to allow defense counsel to cross-examine expert witness Dr. Stephen [sic] Hayne regarding the findings of the toxicology report after performing the decedent’s autopsy, especially in light of the theory of self-defense advanced in the case.
III. Whether the trial court erred in ignoring the evidence that supported a theory of self-defense and refusing to grant a separate jury instruction defining the elements of necessary self-defense and the statutory protections of the “Castle Doctrine.”
IV. Whether the trial court erred when it denied the Appellant’s motion for a directed verdict for legal insufficiency in the prosecution’s case or, alternatively, to grant the Appellant’s motion for a new trial (JNOV) where the verdict was against the overwhelming weight of the evidence.

We address only Issues I through III. See Miss. R.App. P. 17(h).

DISCUSSION AND ANALYSIS OF LAW

I. Refusal to exclude voicemail messages

¶ 9. Newell argues first that it was error to admit into evidence the two voice-mail messages he had left on Diane’s phone, a recording of which was played for the jury during Sullivan’s testimony. In the first message, Newell stated:

You’re probably up at the Slab [House], ... or over at Tony’s, but I bet you’re at the Slab, and you want me to come up there so Mike will whip [me]. But I tell you what I’m going to do: I’m fixing to come up there and pop a cap in [you] and hi[m], too.

In the second message, Newell stated, essentially, “never mind, neither one of you are worth it.” “The standard of review regarding admission or exclusion of evidence is abuse of discretion. We will not reverse the trial court’s evidentiary ruling unless the error adversely affects a substantial right of a party.” Mingo v. State, 944 So.2d 18, 28 (Miss.2006) (citing Parks v. State, 884 So.2d 738, 742 (Miss.2004)). See also Miss. R. Evid. 103(a).

¶ 10. Newell asserts that the voicemail messages are subject to spousal privilege under Mississippi Rule of Evidence 504(b) and that Diane was not competent to aid investigators under the spousal competency standards in Rule 601(a). See Miss. R. Evid. 504(b), 601(a). The State contends that the threats in the messages were relevant to show Newell’s deliberate design to shoot “somebody” that day, which he ultimately did, and that such threats presented a controversy between the spouses, an exception to spousal incompetency. We find that the messages were relevant and were not excluded by Rules 504 and 601.

¶ 11. The husband-wife privilege protects confidential communications between spouses. Miss. R. Evid. 504. A “confidential” communication is made in private and is not intended for disclosure. Miss. R. Evid. 504(a). Before a privileged communication may be revealed, both spouses must consent. See Miss. R. Evid. 504(c); Hickson v. State, 697 So.2d 391, 398-99 (Miss.1997); Martin v. State, 773 So.2d 415, 417 (Miss.Ct.App.2000). Under spousal competency standards, a spouse may not be compelled to reveal confidential communications during the discovery process in a case that involves the other spouse without the consent of both. Miss. Code Ann. § 13-1-5 (Rev.2002), superceded by Miss. R. Evid. 601(a). See also Miss. R. Evid. 601 cmt.; Hood v. State, 17 So.3d 548, 553 n. 5 (Miss.2009) (noting that Rule 601 and Miss.Code. Ann. § 13-1-5 are “essentially the same”); Fisher v. State, 690 So.2d 268, 272 (Miss.1996).

¶ 12. Here, the same facts negate both spousal privilege and spousal incompetency. Newell’s message threatened to shoot Diane and Tony. Because this threat would have been communicated to Tony or the police, it is not “confidential” under Rule 504. See Miss. R. Evid. 504(a); Roland v. State, 882 So.2d 262, 266 (Miss.Ct.App.2004) (denying husband-wife privilege for telephone conversation wife recorded partly because defendant previously had threatened to kill her). But even if we accept Newell’s argument that a private threat is not intended for disclosure, both spouses waived Rules 504 and 601 by their respective actions. Shell v. State, 554 So.2d 887, 894-95 (Miss.1989), rev’d in part on other grounds, Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (finding that defendant waived the husband-wife privilege when he encouraged police to corroborate his story by questioning his wife). See also Miss. R. Evid. 601(a). Investigators obtained Diane’s cell phone on Newell’s request. At the time he asked the officers to check her phone, he knew that damaging messages were there. Diane surrendered her phone and provided the password to her voice-mail. Thus, neither Rule 504 nor Rule 601 applies.

¶ 13. Further, the messages satisfy Rule 401’s broad definition of relevant evidence. See Miss. R. Evid. 401; May v. State, 524 So.2d 957, 965 (Miss.1988). However relevant the evidence, the court may exclude it when unfair prejudice outweighs its probative value. Miss. R. Evid. 403. Three to four hours after threatening Diane, Newell arrived at the Slab House to find Boyette standing next to Diane’s truck. While disputed, three officers testified that Newell asked Boyette if he previously had answered Diane’s cell phone. Newell’s first message did specifically threaten Diane and Tony. Further, it is not disputed that Boyette was nonresponsive and hostile to Newell’s questioning about Diane’s infidelity. The message tends to support the State’s theory that Newell acted with malice toward Boyette because Newell thought he was one of Diane’s lovers. Davis v. State, 767 So.2d 986, 997 (Miss.2000) (finding evidence of defendant’s prior threats against a third party relevant to show motive, intent, and state of mind). Together, the messages explain the chain of events and affect the State’s theory on Newell’s state of mind, and Newell fails to show that them value was substantially outweighed by the danger of unfair prejudice. See Miss. R. Evid. 401, 403. We find no error in the admission of the messages into evidence. Mingo, 944 So.2d at 28. While the messages were relevant to the State’s prosecution for deliberate-design murder, we make no findings on them relevance or probative value in further proceedings.

II. Relevance of Boyette’s toxicology results

¶ 14. Newell next asserts that the trial court improperly refused to allow evidence of Boyette’s toxicology results. During the trial, Newell attempted to cross-examine Dr. Steven Hayne, who had performed Boyette’s autopsy, regarding Boyette’s blood toxicology, but the trial court excluded it.

¶ 15. The trial court ruled that evidence of Boyette’s toxicology was irrelevant and invited speculation by the jury, because at the time Dr. Hayne testified, no evidence had been brought forth to show that Boy-ette had been acting violently. But when Dr. Hayne took the stand, Jason Hollis already had testified that Boyette and Newell had been in a “heated argument,” and that Boyette had shut the door on Newell’s leg. And the officers who had overheard Newell’s conversation with Sullivan all had testified that Newell had told Sullivan that Boyette had beaten his truck windows and cursed at him. So evidence of Boyette’s allegedly aggressive or violent behavior had in fact been presented prior to Dr. Hayne’s testimony.

¶ 16. This Court held in Byrd v. State, 154 Miss. 742, 123 So. 867, 869 (1929), that the defendant can raise the victim’s intoxication to demonstrate all the conditions existing at the time of and giving rise to the killing, including the victim’s mental state. Specifically, we explained that:

In determining whether the defendant acted in self-defense, it is competent to show all the circumstances under which the fatal difficulty occurred, and which would in any manner have affected the defendant’s motives and apprehensions, or indicate the mental state of the deceased. The defendant may show the deceased’s intoxication as bearing upon his motive or intention and the defendant’s belief in the imminence of his danger.

Byrd, 123 So. at 869 (internal citations omitted). See also Huggins v. State, 911 So.2d 614, 617 (Miss.Ct.App.2005) (affirming trial court’s limiting instruction, directing jury to consider victim’s blood-alcohol content in relation to victim’s state of mind at time of shooting, not as to whether victim was aggressor). Intoxication evidence offered for this reason is admissible so long as its relevance has been established by the time the evidence is offered. See Farmer v. State, 770 So.2d 953, 958 (Miss.2000). See also 29 Am.Jur.2d Evidence § 307 (2010) (“ ‘Irrelevant’ evidence denotes evidence that does not logically tend to prove or disprove any material fact or proposition that has been placed at issue.”) (emphasis added).

¶ 17. We conclude that, at the time Dr. Hayne testified, the relevance of Boyette’s toxicology results had been established. The jury obviously knew that Newell was on trial for fatally shooting Boyette, and it already had heard that the shooting had occurred soon after Boyette’s allegedly aggressive and violent behavior, evidence of which had been presented through testimony by Hollis and the officers present at the stand-off. So under Byrd, Boyette’s toxicology results were relevant to show “all the circumstances under which the fatal difficulty occurred, and which would in any manner ... indicate the mental state of the deceased.” Byrd, 123 So. at 869. Therefore, the exclusion of Boyette’s toxicology results was an abuse of discretion, because the relevance of that evidence had been established at the time Dr. Hayne took the stand. Farmer, 770 So.2d at 958.

¶ 18. But we will not reverse the trial court’s evidentiary ruling unless the error adversely affects a substantial right of a party. Mingo, 944 So.2d at 28; Miss. R. Evid. 103(a). Here, Newell’s theory of the case was self-defense, and evidence of Boyette’s toxicology could have affected the jury’s understanding of Boyette’s motive or intention and Newell’s belief in the imminence of his danger. Byrd, 123 So. at 869. So the exclusion of the evidence prevented Newell from fully presenting his theory of the case to the jury and thus adversely affected his right to a fair trial. Therefore, the exclusion of the toxicology evidence is reversible error. Mingo, 944 So.2d at 28. In finding that, under the facts before us, the state of Boyette’s blood toxicology and resultant impairment is relevant, we do not say that the toxicology report is admissible or that Dr. Hayne is competent to offer testimony in this area. Those matters are left for determination in further proceedings on remand.

III. Jury instructions

¶ 19. Newell also challenges the trial court’s refusal of several of his proposed jury instructions, which he asserts eviscerated his theory of self-defense. Specifically, Newell challenges the trial court’s refusal of his separate jury instruction defining the specific elements of self-defense (D-6), and several separate instructions on the “Castle Doctrine” (D-7, D-8, and D-22).

¶ 20. It is well settled that jury instructions generally are within the discretion of the trial court, so the standard of review for the denial of jury instructions is abuse of discretion. Davis v. State, 18 So.3d 842, 847 (Miss.2009) (citing Higgins v. State, 725 So.2d 220, 223 (Miss.1998)). This Court has explained that jury instructions must be considered together:

In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. There is no error if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law.

Rubenstein v. State, 941 So.2d 735, 784-85 (Miss.2006) (internal quotations and citations omitted). Additionally, we have explained that “[a] defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Hearn v. State, 3 So.3d 722, 738 (Miss.2008) (quoting Chandler v. State, 946 So.2d 355, 360 (Miss.2006)). See also Brooks v. State, 18 So.3d 833, 839 (Miss.2009). When serious doubt exists as to whether an instruction should be included, the doubt should be resolved in favor of the accused. Davis, 18 So.3d at 847 (citing Stringfellow v. State, 595 So.2d 1320, 1322 (Miss.1992)).

¶ 21. We cannot say that the trial court abused its discretion in refusing instruction D-6, since Newell’s self-defense theory was covered fairly elsewhere. The State’s self-defense instruction S-7 tracked this Court’s recommended instruction, and Newell’s counsel expressly stated that he did not object to it. See Hearn, 3 So.3d at 738.

¶ 22. We turn now to the effect of the newly revised “Castle Doctrine,” now codified at Mississippi Code Section 97-3-15(3) — (4). Miss.Code Ann. § 97-3-15 (Rev.2006). The revision creates a presumption of fear and abridges a duty to retreat in certain prescribed circumstances. As the Court of Appeals has stated:

The Castle doctrine, which curtailed the duty to retreat and created a presumption that the defendant reasonably feared imminent death, great bodily harm, or the commission of a felony upon him from a person who has unlawfully and forcibly entered the immediate premises of a dwelling, was enacted effective July 1, 2006,.... See Miss.Code Ann. § 97-3-15 (Rev.2006).

Johnson v. State, 997 So.2d 256, 260 n. 2 (Miss.Ct.App.2008) (emphasis added). It is clear to us that, since the enactment of these statutes, Mississippi’s “Castle Doctrine” includes two prongs. First, under subsection (4), if the defendant is in a place where he had a right to be, is not the immediate provoker and aggressor, and is not engaged in unlawful activity, he has no duty to retreat before using defensive force. Miss.Code Ann. § 97-3-15(4) (Rev. 2006). And second, if the jury finds that any of the circumstances in subsection (3) are satisfied, the defendant who uses such defensive force is presumed to have reasonably feared imminent death or great bodily harm or the commission of a felony upon him. Miss.Code Ann. § 97-3-15(3) (Rev.2006).

¶ 23. The “no duty to retreat” rule, found in Newell’s proposed instructions D-7 and D-8, was covered fairly elsewhere, specifically, in the defense’s own instruction D-23. Instruction D-23 read:

The Court instructs the jury that while the danger which will justify the taking of another’s life must be imminent, pending, and present, such danger need not be unavoidable except by killing in self-defense. The Defendant, James Newell, need not have avoided the danger to his person presented by the deceased, Adrian Boyette, by flight. So long as James Newell was in a place where he had the right to be and was not the immediate provoker and aggressor, he may stand his ground without losing his right to self-defense.

(Emphasis added.) Newell obviously had a right to be in the Slab House parking lot and in his own truck. So the jury was instructed adequately by instruction D-23 that Newell did not have a duty to retreat from Boyette’s alleged aggression by leaving his truck or fleeing the parking lot. See Miss.Code Ann. § 97-3-15(4) (Rev. 2006); McCall, 29 So. at 1003; Long, 52 Miss. at 34 (1876). The trial court did not abuse its discretion by refusing instructions D-7 and D-8.

¶ 24. But Newell also argues that the trial court erroneously refused proposed instruction D-22, which he asserts correctly defines the new statutory presumption in Section 97-3-15(3). We must determine whether, based on the evidence presented at trial, Newell was entitled to a jury instruction on the new statutory presumption, and if so, whether instruction D-22 correctly defines the presumption.

¶ 25. Mississippi Code Section 97-3-15(3) provides that:

A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or if the person who uses defensive force is engaged in unlawful activity or if the person is a law enforcement officer engaged in the performance of his official duties;

Miss.Code Ann. § 97-3-15(3) (Rev.2006) (emphasis added). The meaning and application of the newly revised “Castle Doctrine” presumption and its exceptions is a matter of first impression before this Court.

¶ 26. At trial, Newell testified that, after Boyette had shut the door on his leg, and just after he had gotten the truck door completely closed, Boyette was beating on the truck and yelling, “I’m fixing to get you ... I’m fixing to — get [yourself] out of that truck.” After this, Newell testified that Boyette grabbed on the door, as if he were trying to open it. Newell stated that he thought Boyette was going to try to open the door and assault Newell while he was sitting in the truck or that Boyette was going to try to “snatch” Newell out of the truck. Newell also testified that, when he opened the door slightly to get out, Boyette began grabbing at his own pocket and threatened to cut Newell. So Newell’s testimony alone appears to raise the presumption in Section 97-8-15(3).

¶ 27. The trial court ultimately refused instruction D-22, finding that it was not supported by the evidence. Specifically, the court explained that:

[T]his one is not supported by the facts, because the uncontradicted evidence is your client gets out of his vehicle and shoots the man outside of the vehicle. He doesn’t roll the window down and shoot him through the window, he doesn’t sit in his vehicle and shoot him as the man opens the door, he gets out and shoots him.

As applied to the unique facts of this case, we disagree with this conclusion.

¶ 28. Although Section 97-3-15(3) does not expressly refer to the location of the person who uses defensive force, it does refer to the “vehicle which he was occupying.” Miss.Code Ann. § 97-3-15(3) (Rev. 2006). And Section 97-3-15(3) also states that the person who uses defensive force is entitled to the presumption only “if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering ... a[n] ... occupied, vehicle ... or if that person ... was attempting to unlawfully remove another against the other person’s will from that ... occupied vehicle.... ” Miss.Code Ann. § 97-3-15(3) (Rev.2006) (emphasis added). So the statute requires the person who used defensive force to have been “occupying” his vehicle, but it does not expressly refer to when exactly that person must have used defensive force. This ambiguity lends itself to two possible interpretations.

¶ 29. Perhaps the person who uses defensive force must be occupying his vehicle at the moment he uses defensive force. This is the construction given by the trial court. Under this interpretation, Newell would not be entitled to the presumption in Section 97-3-15(3). Newell himself testified that he had exited the truck and was outside it when he shot Boyette. And Newell’s testimony was corroborated by Sullivan and Officers Smith and Patrick. So, at the moment Newell used defensive force, Boyette could not have been in the process of entering an occupied vehicle, because Newell’s truck was no longer occupied. And Boyette also could not have been attempting unlawfully to remove Newell from an occupied vehicle against his will, because Newell was already outside the truck.

¶ 30. • But the statute also may mean that the person who uses defensive force must be occupying his vehicle when the person against whom defensive force is used takes the actions that result in its use. We think this is the most reasonable interpretation of the statute. The first intei'pretation would require vehicle occupants to wait for the attacker to gain entry to the vehicle before defending themselves or to open the door or window to do so, which would provide easier access for the assailant. Also, the first interpretation does not account for a vehicle occupant’s need to exit the vehicle to use defensive force to protect another occupant from the assailant’s attack. We do not believe that the Legislature intended for persons threatened by physical violence in their own automobiles to remain inside the vehicle at all costs to be entitled to the presumption in Section 97-3-15(3). If the occupant is still in danger after exiting the vehicle, and he is still “in the immediate premises thereof[,]” he should be allowed to use reasonable force to defend against the danger and still be presumed to have acted in reasonable fear of imminent death or great bodily harm. Miss.Code Ann. § 97-3-15(3) (Rev.2006).

¶ 31. Following this interpretation, if the jury believed Newell’s version of the events, he would have been entitled to the presumption in Section 97-3-15(3). Although the initial interaction between Newell and Boyette took place in the Slab House parking lot, Boyette’s first act of physical aggression against Newell, slamming the truck door on his leg, took place while Newell was entering his truck. And Newell testified that while he was inside the truck, Boyette was banging on the truck, grabbing the door, yelling and cursing at Newell, and threatening to “snatch” Newell out of the truck. Newell stated that he responded to Boyette’s aggression by pushing the door open just enough to step out quickly, at which point Boyette grabbed at his own pocket while threatening to cut Newell. So Newell fired a single shot at Boyette, jumped back into his truck, and sped away. Hence, according to Newell, he utilized force while he was still “in the immediate premises” of the truck and while he still perceived danger from Boyette. Therefore, based solely on Newell’s testimony, the jury should have been instructed on the “Castle Doctrine’s” new statutory presumption, as codified in Section 97-3-15(3).

¶ 32. Now we must decide whether instruction D-22 defines the new statutory presumption in Section 97-3-15(3). Instruction D-22 states that:

The Court instructs you that the killing of another human being shall be justifiable when committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or in any occupied vehicle in which such person shall be.
A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or against a vehicle which he was occupying if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered, an occupied vehicle, or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that occupied vehicle and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred.

¶ 33. The first paragraph of this instruction closely follows the language of the justifiable-homicide statute. See Miss. Code Ann. § 97-3-15(l)(e) (Rev.2006). But it removes any references to dwellings, businesses, places of employment, and the immediate premises thereof. It thus defines justifiable homicide as it relates specifically to an occupied vehicle only. And the second paragraph of the instruction tracks the language of the “Castle Doctrine’s” new presumption in Section 97-3-15(3), but again refers only to an occupied vehicle, to match the facts of the case. See Miss.Code Ann. § 97-3-15(3) (Rev.2006). While not artfully drawn or properly organized, instruction D-22 states the law regarding the statutory presumption as it applied to the facts of this case. And instruction D-22 is the only instruction proposed by either side that outlines the presumption in Section 97-3-15(3). So the new “Castle Doctrine” presumption was not covered elsewhere.

¶ 34. We hold that the jury should have been instructed that, if it believed Newell’s version of the events surrounding his altercation with Boyette, then it should presume that Newell used defensive force against Boyette because he “reasonably feared imminent death or great bodily harm, or the commission of a felony upon him ... or against the vehicle which he was occupying....” Miss.Code Ann. § 97-3-15(3) (Rev.2006). Instruction D-22 would have accomplished this, so the trial court abused its discretion by refusing instruction D-22. Had it been instructed properly on the new “Castle Doctrine” presumption, the jury may have come to a different conclusion regarding the reasonableness and necessity of Newell’s action against Boyette, which would have given more weight to Newell’s self-defense claims. So the refusal of instruction D-22 necessitates a new trial.

CONCLUSION

¶ 35. The trial court did not err in admitting the voicemail messages into evidence. The trial court committed reversible error by excluding the evidence of the victim’s toxicology on the basis of relevance and by refusing Newell’s request for a jury instruction on the newly revised statutory presumption under the “Castle Doctrine.” Therefore, we reverse New-ell’s conviction and sentence, and remand this case to the trial court for a new trial consistent with this opinion.

¶ 36. REVERSED AND REMANDED.

CARLSON, P.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. RANDOLPH, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J. RANDOLPH, J., JOINS IN PART.

DICKINSON, Justice,

concurring in part and dissenting in part:

¶ 37. I agree with the majority on all but one issue. The majority holds that neither spousal privilege applies to the voi-cemails Newell left for his wife, Diane. Specifically, the majority states that the voicemails were not barred by Mississippi Rule of Evidence 504, concluding that the messages “would have been communicated” to third persons and finding that each spouse waived Rules 504 and 601 — Newell by asking the police to examine Diane’s cell phone, and Diane by turning over her cell phone and voicemail password. Because I believe the majority’s analysis of Rules 504 and 601 is flawed, I respectfully dissent, in part.

¶ 38. Mississippi Rule of Evidence 504 renders inadmissible a “communication ... made privately by any person to that person’s spouse and [ ] not intended for disclosure to any other person.” That Diane was Newell’s spouse is not in dispute, so the issue is whether Newell intended the voicemails to be disclosed to any other person, and in addressing this issue, it does not matter whether the communication actually was disclosed by Diane, or even whether the communication was likely to be disclosed by Diane; unless Newell intended for Diane to disclose the communications, Mississippi Rule of Evidence 504⅛ privilege applies.

¶ 39. There is simply no evidence that Newell intended Diane to disclose to anyone the content of his voicemails to her. It strains credibility to suggest that one would leave a threatening, incriminating voicemail with the intent that it be disclosed to others. And because the record includes no evidence that Newell intended Diane to relay his voicemail to a third party, I would hold that the voicemails were privileged.

¶ 40. Waiver of Rule 504’s privilege requires the consent of both spouses. The majority finds that both Newell and Diane implicitly consented to the introduction of the voicemails. Specifically, the majority finds that Newell consented by asking “the officers to check [Diane’s] phone, [knowing] that damaging messages were there,” and Diane consented by “surrendering] her phone and providing] the password to her voicemail.”

¶ 41. The majority misapprehends Newell’s request. Newell asked the police to “seize” Diane’s phone and inspect the call log to confirm his suspicion that Diane was cheating on him. The record includes no evidence the “damaging messages were there” on the phone, itself. Since we are guessing, it is more likely that the messages were stored on the cell phone carrier’s computers, and accessed by calling in with a password or code. In any case, Newell never authorized the police to listen to the voicemails.

¶ 42. While I agree with the majority that the trial court’s exclusion of toxicology evidence and refusal of a “Castle Doctrine” instruction constituted reversible error, I would hold that the voicemails Newell left for Diane were inadmissible.

GRAVES, P.J., JOINS THIS OPINION. RANDOLPH, J., JOINS IN PART.

      . The owner of the Slab House testified at trial that Diane and Tony were not in the bar or in the parking lot at the time of the shooting.

      . The officers who testified at trial stated that Newell had told Sullivan that his first question to Boyette was not where Diane was, but whether he was the man who had answered Diane’s cell phone earlier.

      . Newell testified that he is five feet, eight inches, tall and that, at the time of the altercation, he weighed approximately 180 pounds. Boyette was six feet tall and weighed 255 pounds.

      . Newell testified that he always kept the gun in his truck and carried it with him because he often worked in a dangerous part of town where his boss previously had been robbed and shot.

      . It is undisputed that Newell was not given any Miranda warnings before his conversation with Sullivan. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      .Sullivan testified that:
      [Newell] had an altercation with somebody he didn’t know there. They followed him out to his truck. [Newell] said, "I got in the truck to leave.” This unknown white male started beating on his truck, beating on his door glass, threatened him. He said — well, his exact words, the unknown subject approached his truck and started threatening him. [Newell] stated he was backing up, and the unknown man, subject, started banging on his driver’s side door window. [Newell] said, "I opened the door, popped a cap in [him].” He said, "He told me he had something for me. I had something for him.”

      . Newell testified that he thought the authorities would never believe his version of the shooting because of the voicemail messages he had left on Diane’s cell phone.

      . Part of the autopsy report proffered by Newell indicated that at the time of death, Boyette's alprazolam concentration was 0.06 micrograms per milliliter. The court noted that alprazolam would have made Boyette less aggressive, but defense counsel stated that studies show that the therapeutic level is around 0.02, and the toxic level is 0.10. So he opined that Dr. Hayne would agree that Boyette’s level of 0.06 was three times the therapeutic level, which could cause disinhi-bition and aggressive behavior.

      . While both the "no duty to retreat” rule and the presumption recently have been codified by these statutes, it has always been the law in this state that one has no duty to retreat from an attack if he is in a place where he has a right to be and is not the initial aggressor or provoker. See McCall v. State, 29 So. 1003 (Miss.1901) ("Flight is one of the means of avoiding danger which was necessary to be made at common law, but is not required in this state.”); Bang v. State, 60 Miss. 571 (1882); Long v. State, 52 Miss. 23, 34 (1876) (explaining that an individual may stand his ground and still be entitled to claim self-defense "so long as he is in a place where he has a right to be ... and is no[t] the provoker [of], nor the aggressor in the combat”). This rule is codified at Section 97-3-15(4). See Miss.Code Ann. § 97-3-15(4) (Rev.2006).

      . Refused instruction D-9 also discusses the presumption, but it states that "a person who unlawfully and by force enters or attempts to enter a person's occupied vehicle or attempting to unlawfully remove another against he other person’s will is presumed to be doing so with the intent to commit an unlawful act involving force or violence.” The "Castle Doctrine" in some states may include this type of presumption (see Florida Statutes Annotated Section 776.013(4)), but Mississippi’s does not. See Miss.Code Ann. § 97-3-15 (Rev.2006). So instruction D-9 was an incorrect statement of the law.

      . Miss. R. Evid. 504(a) (emphasis added).

      . Miss. R. Evid. 601(a).


author: WILLIAM L. WALLER, JR., Chief Justice.

text:
    Eddie Lee HOWARD, Jr., Petitioner v. STATE of Mississippi, Respondent.
    No. 2010-DR-01043-SCT.
    Supreme Court of Mississippi.
    Dec. 2, 2010.
   CORRECTED ORDER

WILLIAM L. WALLER, JR., Chief Justice.

This matter came before the Court en banc on Eddie Lee Howard’s Request for Post-Conviction DNA Testing and Motion for Post-Conviction Relief. The State has filed a response to the request and Howard has filed a reply to that response. Howard requests DNA testing of biological evidence and Howard contends that he has newly discovered evidence and seeks post-conviction collateral relief.

After due consideration, the Court finds that Howard’s request for DNA testing should be granted. Miss.Code Ann. § 99-39-11(3) (Supp.2010). This matter should be remanded to the Circuit Court of Lowndes County to proceed pursuant to Section 99-39-11(4) of the Mississippi Code regarding locating items of biological evidence to be tested. The circuit court should determine which laboratory or laboratories will conduct the testing pursuant to Section § 99-39-11(5) of the Mississippi Code. The circuit court should determine who will pay for the testing. Miss.Code Ann. § 99-39-11(6), (7) and (8). The circuit court may enter such other orders as may be appropriate pursuant to Sections 99-39-11(9) and (10) of the Mississippi Code. The Court further finds that all other issues raised by Howard, including his claims of newly discovered evidence, should be dismissed without prejudice to be refiled with the DNA test results.

IT IS THEREFORE ORDERED that Eddie Lee Howard’s Request for Post-Conyiction DNA Testing and Motion for Post-Conviction Relief is hereby granted in part and dismissed without prejudice in part. Howard’s request for DNA testing is hereby granted. This matter is remanded to the Circuit Court of Lowndes County to proceed as herein directed.

IT IS FURTHER ORDERED that all other issues raised by Howard, including his claims of newly discovered evidence, are hereby dismissed without prejudice to be refiled with the DNA test results.

IT IS FURTHER ORDERED that this order be published. The Clerk of this Court shall spread this order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of the Southern Reporter, Third Series (Mississippi Edition).

SO ORDERED, this the 2nd day of December, 2010.


author: RANDOLPH, Justice,

text:
    Elzie Junior HARRISON v. STATE of Mississippi.
    No. 2009-KA-01732-SCT.
    Supreme Court of Mississippi.
    Dec. 9, 2010.

      Office of Indigent Appeals by W. Daniel Hinchcliff, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorneys for ap-pellee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. Elzie Junior Harrison appeals from his conviction on five counts of statutory rape and sexual battery. Harrison raises two assignments of error based on comments made by the trial court, but did not raise an objection at the time the comments were made. Both assignments are without substantive merit. We affirm the judgment of the Neshoba County Circuit Court.

FACTS

¶ 2. S.W. (born January 17, 1991) lived in the Linwood community of Neshoba County with her mother, two brothers, and stepfather, Harrison (born December 17, 1981). S.W. testified that, on Mother’s Day, 2004, Harrison was present while she and her brothers were preparing a Mother’s Day card. She said she was looking down at the card, but Harrison seemed to think that she was looking at his crotch. S.W. testified that he looked down at himself and then smiled at her. She stated that, shortly thereafter, he sent her mother out of the house on an errand, told the boys to go to their room, and told her to go to another room. She said he came in and had sex with her, penetrating her mouth and anus. S.W. testified that, in the next few weeks, while she was still thirteen, he started having vaginal sex with her, and that this continued numerous times at various locations, until after her sixteenth birthday. After she began to go to church, her pastor noticed that she was depressed and began to counsel her. Eventually, she confided in him. He advised S.W. and her mother to report Harrison to the sheriffs office. They did so. Harrison was arrested and gave a statement to an investigator after waiving his right to counsel. The investigator wrote a statement, read it back to Harrison, and gave him an opportunity to make changes. Harrison signed the statement, which reads as follows:

I am not sure of the date but when we were living in Linwood [S.W.] my stepdaughter would come onto me and I did not have sex with her but I did touch her privates with my hands. In 2006 we were living [near Philadelphia] and [S.W.] came onto me again and I did have sex then. I had sex with [S.W.] 3 or so different times in 2006. [S.W.] was 16 years old in 2006. I haven’t had sex with [S.W.] since 2006.

Harrison was indicted on five counts: (1) Statutory rape for intercourse with a child under age fourteen; (2) Sexual battery for oral sex with a child under age fourteen; (3) Sexual battery for anal sex with a child under age fourteen; (4) Statutory rape for intercourse with a child between the ages of fourteen and sixteen; (5) Sexual battery for intercourse with a sixteen-year-old child by a person of trust or authority over the child. See Miss.Code Ann. §§ 97-3-65(l)(b), 97 — 3—95(l)(d), 97-3-95(2) (Rev. 2006).

PROCEDURAL HISTORY

¶ 3. Trial was held July 14-15, 2009. Prior to voir dire, the judge made introductory remarks, including instructing the jury that an indictment means only that twelve members of a grand jury, hearing only the State’s side of the case, have found that probable cause exists that a crime has been committed. The judge explained, inter alia, the presumption of innocence, the burden of proof, and the requirement of unanimity. Immediately after the jury panel was selected, the judge continued his introductory and explanatory remarks before excusing those veniremen who had not been selected. As this was the last jury trial of the week, those not chosen had completed their jury duty. The judge extolled the value of jury service and thanked the venire members for having served. The judge described jury service as a “good and noble thing,” an “indispensable link,” and “part and parcel of the rule of law.” He recalled a speech he had given on Independence Day and compared our system to that of Iran, where “there’s no such thing as a jury trial or an indictment....” Following these remarks, the judge excused those venire members who had not been chosen and continued his explanatory remarks, including informing the witnesses and the jury that they would be excused for lunch. He instructed the witnesses not to have any contact with the jurors, and told the jurors not to discuss the case among themselves or with others. Harrison did not object at any time to any remark by the trial judge.

¶ 4. On two occasions — just before the first lunch break and just before excusing the jury for the night — the court described the case as a “capital case.” In both instances, the comment was made to impress upon the jurors and witness the seriousness of the case and the importance of their following the court’s instructions. The court never said it was a capital-murder case or a death-penalty case. Harrison did not object on either occasion.

¶ 5. During S.W.’s testimony, when she was first asked about the events of Mother’s Day, 2004, she struggled with completing her answers. The judge asked her if she needed to take a break. He told her to try to answer if she could, but assured her that if she could not go on, he would allow her to take a break. Following this, the prosecutor asked some preliminary questions, but when he returned to questions about Mother’s Day, S.W. spoke softly and was told to speak up. She was again unable to answer, and the judge ordered the court in recess. While the jury was out, the judge spoke to S.W., introducing himself, explaining the circumstances, and attempting to calm her down enough to continue. S.W. accepted the judge’s offer take a break to compose herself. She left the courtroom accompanied by a female bailiff. When S.W. returned, the judge again instructed her to speak loudly enough to be heard and to answer the questions to the best of her ability. She assured the judge that she could do so. After questioning resumed, the following colloquy occurred:

State: Now, at any time that day, did you get any idea about what it was that he thought you were looking at?....
Defense: Objection to speculation. As to what the defendant thought.
Court: I’m going to overrule the objection. I think that’s a valid question. Go ahead and answer the question if you can.
S.W.: Yes.
State: And what was that?
S.W.: His private area.
State: So he was standing in a position such, with respect to the card you were gazing at—
Defense: Objection to leading.
Court: I’ll sustain that. Try not to lead.
State: Judge, I’m just trying to re-cap and give some context to what she’s testified about.
Court: Okay.
State: No[w], once you looked at the card, was he standing in an area near where he would have been able to think you were looking at him?
Defense: Objection to speculation on what the defendant would have been thinking.
Court: I’m going to overule the objection. The — what we’re seeking is the truth.... The court is seeking to allow that to come in within the parameters of the rules. The witness is a child, eighteen years of age now, but was thirteen at the time, and within that total context, the court is seeking to stay away from the rule, as far as leading, but also to get at the truth and I would instruct counsel to do the best that he can ... to not lead. So go ahead and make another effort.

Harrison neither objected to the trial court’s statement nor claimed that the trial judge had vouched for the veracity of the witness.

¶ 6. The jury found Harrison guilty on all five counts. The court sentenced Harrison to fifty years. The court denied Harrison’s motion for judgment notwithstanding the verdict or, in the alternative, new trial. In it, Harrison raised seven assignments of error, none of which is repeated in his brief to this Court.

ISSUES

¶ 7. The issues, as quoted from Harrison’s brief, are as follows:

I. Did the trial court’s repeated mis-characterization of the case as a “capital case” taint the jury and prevent Harrison from receiving a fair trial.

II. Did the trial court comment on the veracity and the truthfulness of the State’s primary witness thereby deny Harrison a fair trial.

III. Whether the cumulative effect of the foregoing judicial comments, if they were otherwise not found to be reversible error, was sufficient error to require this cause be reversed.

ANALYSIS

¶ 8. The standard of review for the issues raised is abuse of discretion. See Miller v. State, 996 So.2d 752, 756 (Miss.2008); Strickland v. State, 980 So.2d 908, 916 (Miss.2008).

I. Did the trial court’s repeated mis-characterization of the case as a “capital case” taint the jury and prevent Harrison from receiving a fair trial.

¶ 9. This issue is procedurally barred. Harrison did not timely object, include this issue in his post-trial motion, or argue on appeal why it should not be procedurally barred. See Doss v. State, 709 So.2d 369, 381 (Miss.1996) (citing Foster v. State, 639 So.2d 1263, 1286 (Miss.1994)) (“the contemporaneous objection rule also applies to comments by the trial judge”).

¶ 10. Should we overlook the bar and consider the assignment of error, it is without merit. Harrison argues that a “ ‘capital case’ [is] a case, meriting the ultimate penalty,” thus, the jury must have thought Harrison was deserving of the death penalty. Harrison first cites a century-old case stating that jurors are “very susceptible to the influence of the judge.” See Green v. State, 97 Miss. 834, 53 So. 415, 416 (1910). Green is distinguished, as the judge’s statements evinced prejudice toward the defendant and indicated to the jury the preferred outcome. Id. (“We want to break this [racial epithet]’s neck.”). Other cases cited by Harrison also are distinguishable. See Fermo v. State, 370 So.2d 930, 933 (Miss.1979) (trial court involved itself in plea negotiations); Hannah v. State, 336 So.2d 1317, 1321 (Miss.1976) (trial court asked prosecutor if he had an objection).

¶ 11. Furthermore, the trial court’s comments were not without support in the law. “ ‘[C]apital case,’ ... when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary.” Miss.Code Ann. § 1-3^1 (Rev. 2005). Harrison was indicted on two counts of statutory rape, a crime for which life imprisonment is possible. See Miss. Code Ann. § 97-3-65(3)(c) (Rev.2006).

¶ 12. First, we And that this assignment of error is procedurally barred. We also find that, if the procedural bar is not applied, the argument is without merit.

II. Did the trial court comment on the veracity and the truthfulness of the State’s primary witness thereby deny Harrison a fair trial.

¶ 13. Harrison argues that the trial court’s comment was a “stamp of approval” that signaled to the jury that the judge believed her and that the defense was trying to prevent the truth from being told. The State argues that this issue also is procedurally barred by the contemporaneous-objection rule. However, these comments were made in an objection colloquy. Such a ruling would require a litigant to object to the explanation of a failed objection.

¶ 14. The trial court did not vouch for S.W.’s veracity, but only commented that getting to the truth was the court’s goal. “[T]hat the truth may be ascertained” is among the ultimate purposes of the rules of evidence. Miss. R. Evid. 102. Even when a trial court’s comments “have the effect of bolstering a witness’s testimony in the eyes of the jury,” they do not necessarily constitute reversible error. Shore v. State, 287 So.2d 766, 768 (Miss.1974). In Shore, this Court found that a judge’s comment was a “stamp of approval,” as he had said that a witness had not been impeached. Id. at 768. However, the appeal was not decided on that point, as the Court already had found reversible error on another issue. Id. “We do not state that the comment alone would constitute reversible error, but we do point out that comment upon the evidence by a trial judge in the presence of the jury is hazardous to affirmance on appeal.” Id. at 769 (citing Green, 53 So. at 416).

¶ 15. A trial court is permitted to explain its rulings, but not to make prejudicial comments about the evidence. Wells v. State, 698 So.2d 497, 510 (Miss.1997); Lofton v. State, 818 So.2d 1229, 1232 (Miss.Ct.App.2002). Although the overruled objections here were for speculation, the issue on appeal is the court’s reasoning, which related to a leading ques tion. A trial court has the discretion to allow leading questions under certain circumstances, so long as doing so does not prejudice a “complaining party.” Jones v. State, 606 So.2d 1051, 1059 (Miss.1992) (“The classic example for allowing the use of leading questions is where a child is a witness.”).

¶ 16. This Court has described the balancing act required of a trial court judge as follows:

Of course, he should keep off of the province of the jury, and not try to influence their verdict; and while it might be safer for him to rule without giving his reasons therefor, he has the right to give such reasons if he so desires, and to show why, in his opinion, the reasons advanced for a contrary ruling are unsound.... It is true that “an overspeaking judge is no well-tuned cymbal,” but ... neither is an aphonic dummy a becoming receptacle for judicial power.

Bumpus v. State, 166 Miss. 276, 144 So. 897, 899 (1932) (quoting Berger v. U.S., 255 U.S. 22, 43, 41 S.Ct. 230, 236, 65 L.Ed. 481, 489 (1921)).

¶ 17. We find no error on this issue.

III. Whether the cumulative effect of the foregoing judicial comments, if they were otherwise not found to be reversible error, was sufficient error to require this cause be reversed.

¶ 18. There being no “error, harmless or otherwise,” there can be no cumulative error. Lynch v. State, 951 So.2d 549, 556 (Miss.2007).

CONCLUSION

¶ 19. The judgment of the Neshoba County Circuit Court is affirmed.

¶ 20. COUNT I: CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT V: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS I, II AND III SHALL RUN CONCURRENTLY FOR A TOTAL OF TWENTY (20) YEARS TO SERVE. SENTENCE IN COUNT IV SHALL RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS I, II AND III. SENTENCE IN COUNT V SHALL RUN CONSECUTIVELY TO SENTENCES IN COUNTS I, II, III AND IV FOR A TOTAL OF SIXTY (60) YEARS TO SERVE. THE COURT SUSPENDED TEN (10) YEARS FROM THE SENTENCE IN COUNT V, LEAVING A TOTAL OF FIFTY (50) YEARS TO SERVE, AND WHICH SENTENCE SHALL BE SERVED DAY-FOR-DAY.

WALLER, C.J., CARLSON, P.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY. DICKINSON, J., CONCURS IN PART AND RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Harrison’s brief also includes arguments regarding the propriety of the "law and order speech.” However, this argument was not raised as a separate issue. See Miss. R.App. P. 28(a)(3).