text:
    Willie Earl RILEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00915-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2011.
    Rehearing Denied March 13, 2012.
    Certiorari Denied May 24, 2012.
    See also, 848 So.2d 888.

      Willie Earl Riley, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Willie Earl Riley filed his fifth motion for post-conviction collateral relief. The Circuit Court of Holmes County dismissed the motion and found that it was procedurally barred as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp.2011). We find no error and affirm.

FACTS

¶ 2. On February 16, 1999, Riley was indicted for the murder of his girlfriend, Ann Marie Weatherall, under Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006). On October 20, 1999, Riley pleaded guilty to murder and was sentenced to life in the custody of the Mississippi Department of Corrections.

¶ 3. On May 12, 2000, Riley filed his first motion for post-conviction collateral relief. The circuit judge entered an order that dismissed the motion. On May 26, 2000, Riley filed a motion in the circuit court which he titled, “Application for Leave to File a Motion to Vacate the Conviction and Sentence in Trial Court.” The circuit court dismissed the motion with an order instructing Riley not to file again.

¶ 4. On July 12, 2001, Riley filed a second motion for post-conviction collateral relief. In this motion, Riley asserted that: (1) his plea was involuntary; (2) his sentence was illegal; and (3) his counsel was ineffective. On August 8, 2001, the circuit court dismissed Riley’s motion and found that: Riley’s allegations were insufficient to warrant an evidentiary hearing, and he failed to show his counsel was ineffective. On August 20, 2001, Riley filed a notice of appeal and a motion to appeal from circuit court to the Mississippi Supreme Court in forma pauperis.

¶ 5. The supreme court deflected the appeal to this Court, which affirmed the circuit court’s dismissal of Riley’s second motion for post-conviction collateral relief. Riley v. State, 848 So.2d 888, 889 (¶ 2) (Miss.Ct.App.2003).

¶ 6. On September 20, 2001, Riley filed a third motion for post-conviction collateral relief. The circuit court dismissed the motion on November 16, 2001.

¶ 7. On July 25, 2003, Riley filed a fourth motion for post-conviction collateral relief. In his motion, Riley claimed he did not understand the “criminalities” of the charges against him, and the facts negated a guilty plea. The circuit court found the motion to be barred as a successive writ and no statutory exceptions were provided. The circuit court dismissed the motion.

¶ 8. On November 17, 2009, Riley filed a fifth motion for post-conviction collateral relief. The circuit court dismissed the motion as procedurally barred as a successive writ under Mississippi Code Annotated section 99-39-23(6). It is from this judgment that Riley now appeals.

STANDARD OF REVIEW

¶ 9. A circuit court’s dismissal of a motion for post-conviction collateral relief will not be reversed on appeal absent a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

¶ 10. The circuit court properly dismissed Riley’s motion for post-conviction collateral relief as untimely filed and as a successive writ. Mississippi Code Annotated section 99-39-23(6) bars successive motions made under the Mississippi Uniform Post-Conviction Collateral Relief Act. There are also exceptions to this bar:

Excepted from this prohibition is a motion filed under Section 99-19-57(2), raising the issue of the offender’s supervening mental illness before the execution of a sentence of death.... Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States that would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole[,] or conditional release has been unlawfully revoked....

Id.

¶ 11. Here, Riley’s first motion for post-conviction collateral relief was dismissed by the circuit court on May 12, 2000. Since Riley’s first motion for post-conviction collateral relief was dismissed by the circuit court, Riley has filed four subsequent motions for post-conviction collateral relief, and he has appealed to this Court, which affirmed the circuit court’s dismissal. Riley, 848 So.2d at 898 (¶ 17). Because Riley fails to show that an exception listed in section 99-39-28(6) applies, his fifth motion for post-conviction collateral relief is barred as a successive writ.

¶ 12. Riley argues the procedural bars should be waived by this Court because his fundamental rights are implicated. However, there is no merit to his claim. This Court has previously examined his claims that his plea was involuntary and that he received ineffective assistance of counsel. Riley, 848 So.2d at 892 (¶¶ 10, 16). This Court found Riley’s claims were without merit. Id.

¶ 13. Riley additionally claims his indictment was fatally flawed. Riley argues that his indictment fails to state, “the prosecution is brought in the name and by the authority of Mississippi,” and it does not include the judicial district in which the indictment was returned. The general rule is that “a guilty plea waives all defects in an indictment with two exceptions: (1) failure to charge an essential element of a criminal offense and (2) subject-matter jurisdiction.” Black v. State, 806 So.2d 1162, 1164 (¶ 5) (Miss.Ct.App. 2002). Both claims by Riley are waived as a result of his guilty plea. Furthermore, the heading of the indictment clearly states the charge is brought in the State of Mississippi, and Holmes County has only one judicial district. In such counties with one judicial district, the Mississippi Supreme Court has held that the indictment is not required to contain the judicial district. Harris v. State, 757 So.2d 195, 198 (¶ 15) (Miss.2000).

¶ 14. Finally, Riley claims newly discovered evidence exempts his motion from the procedural bar. Mississippi Code Annotated section 99-39-23(6) exempts from the procedural bar against successive writs that evidence which was “not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that if it been introduced at trial, it would have caused a different result in the conviction or sentence.” (Emphasis added). As this Court held in Chancy v. State, 938 So.2d 267, 269 (¶9) (Miss.Ct.App.2005):

Newly discovered evidence is relevant only in situations where a defendant went to trial and was convicted. If following the trial, a defendant discovers relevant and material evidence which could not have reasonably been discovered prior to trial, the defendant may seek to have his conviction set aside based on the newly discovered evidence. When a defendant pleads guilty, he is admitting that he committed the offense. Therefore, by definition, a plea of guilty negates any notion that there is some undiscovered evidence which could prove his innocence.

(Emphasis added). Riley’s sworn testimony in which he admitted that he was guilty of the murder of his girlfriend negates his current claim that there is newly discovered evidence that proves his innocence. Riley’s claims are procedurally barred and have no merit.

¶ 15. Riley’s fifth motion for post-conviction collateral relief is a successive writ; thus, it is procedurally barred from our review. We also note that the motion falls outside the three-year statute of limitations under Mississippi Code Annotated section 99-89-5(2) (Supp.2011). Accordingly, the judgment of the circuit court is affirmed.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

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


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    David HAWKINS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00136-COA.
    Court of Appeals of Mississippi.
    Jan. 31, 2012.
    Rehearing Denied June 12, 2012.

      W. Daniel Hinchcliff and Leslie S. Lee, Jackson, attorneys for appellant.

      Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. David Hawkins was convicted in the Circuit Court of Leflore County of sexual battery and four counts of touching a child for lustful purposes. He was sentenced to five terms of imprisonment, totaling twenty-eight years, all to be served consecutively without the benefit of parole in the custody of the Mississippi Department of Corrections (MDOC). Hawkins appeals, and as we find no reversible error, we affirm his convictions and sentences.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Tywone Thomas was a liturgical dance coach at the Good Hope Missionary Baptist Church in Greenwood, Mississippi. On March 25, 2007, she informed the Greenwood Police Department that a fourteen-year-old pupil, Jane, had confided to her that Hawkins, Jane’s stepfather, had been sexually abusing her. Thomas noticed that Jane had become withdrawn, complained of pain, and “walked like she was sore between the legs.” Jane’s maternal grandmother took her to the Greenwood Police Department to give a statement. Later, a medical examination revealed that Jane’s hymen was not intact, which the doctor attributed to penetration. Jane was also suffering from vaginitis, an inflammation of the vagina that can be caused by trauma or infection.

¶ 3. Jane testified that in September 2005, after Hurricane Rita struck the Gulf Coast, her family left their home in Texas. Initially, they shared a single room as guests at the home of Hawkins’s brother, located on Leflore Avenue in Greenwood. Jane testified that Hawkins began touching her at this time. Hawkins touched her “below the waist” and inside or on her underwear three or four times while they lived on Leflore Avenue. The family then moved into a home on Linden Avenue, also located in Greenwood. There the abuse became more frequent, with Hawkins touching Jane approximately “every other day.” He touched her breasts and put his fingers inside her vagina. On two occasions, Hawkins attempted to rape Jane, but both times he was unsuccessful. Jane began sleeping on the floor under her bed to avoid Hawkins.

¶ 4. The theory of Hawkins’s defense was that Jane had falsely accused him because she resented his strict discipline. Hawkins also contended that Jane’s grandmother had a financial motive to get custody, as Jane received a monthly social-security benefit because Jane’s father had been killed in action in the Iraq War. Hawkins testified in his own defense, denying he had ever touched Jane. Jane’s mother also gave testimony to support Hawkins, though she did make several damaging admissions. On one occasion, Jane’s mother discovered Jane and Hawkins sitting close together on the couch in a position that “didn’t look right.” Jane was lying or sitting across Hawkins’s lap, though she appeared to be sleeping. Jane’s mother also admitted Hawkins had approached her about putting Jane on birth-control medication.

¶ 5. Hawkins was convicted of four counts of touching a child for lustful purposes and one count of sexual battery and subsequently sentenced. Hawkins appeals from that judgment. Finding no error, we affirm.

ANALYSIS

I. Venue; Reopening the State’s Case

¶ 6. In his first issue, Hawkins contends the State offered insufficient evidence of venue. Venue is an indispensable element of any criminal prosecution. Smith v. State, 646 So.2d 588, 541 (Miss. 1994). None of the State’s witnesses specifically stated that Hawkins’s crimes occurred in Leflore County, Mississippi, where the trial was held. At the close of the State’s case, Hawkins pointed this out in his motion for a directed verdict. The trial court, acting pursuant to Lyle v. State, 987 So.2d 948 (Miss.2008), found the State’s omission—assuming for the sake of argument that there was one—resulted from a “mere inadvertence” and permitted the State to reopen its testimony. A recalled witness then specifically identified Leflore County, Mississippi, as the scene of the crimes.

¶ 7. On appeal, Hawkins concedes that in the State’s initial case, several witnesses testified that his crimes occurred in “Greenwood, Mississippi,” but none specifically identified it as the Greenwood in Leflore County. Hawkins points out that there is at least one other place in Mississippi called “Greenwood,” an unincorporated, rural community in Itawamba County. Hawkins contends that the State failed to exclude the possibility that the crimes occurred in Itawamba County, but he completely ignores the propriety of the trial court’s decision to allow the State to reopen its evidence.

¶ 8. The trial court correctly cited Lyle, as the controlling authority. In Lyle, the Mississippi Supreme Court announced an “easy to apply standard” for criminal cases, stating: “[T]he trial court must be vested with discretion to permit reopening when mere inadvertence or some other compelling circumstance justifies a reopening and no substantial prejudice will occur.” Id. at 951 (¶ 12) (quoting State v. Allen, 205 Conn. 370, 533 A.2d 559, 564 (1987)). This is necessary to protect against potentially placing the defendant in double jeopardy. Id. at 950 (¶ 9).

¶ 9. Lyle is not directly on point, factually. In that case, the State was acting according to the trial judge’s instructions when it failed to offer certain evidence in its case-in-chief. The supreme court found that omission was a “mere inadvertence.” Id. at (¶ 7). Lyle admittedly presented a stronger case for reopening the evidence than the case before us today, and we are not aware of any other Mississippi appellate decisions applying Lyle’s holding. However, as the supreme court noted, the standard it adopted has been used by courts in other jurisdictions for some time. United States v. Hinderman, 625 F.2d 994 (1980), a decision of the United States Court of Appeals for the Tenth Circuit, applied the same test to facts more in line with our case. In Hinderman, the prosecution had simply neglected to provide sufficient evidence of venue. But because the error was clearly inadvertent and the defense suffered no prejudice as it had not yet presented its case, the district court’s decision to reopen the evidence was affirmed. Id. at 996. The Second Circuit, also applying the same standard our supreme court later adopted in Lyle, has elaborated on its application as follows: “Generally, a [trial] court will allow reopening to establish venue, identify the defendant, or attend to other technical matters.” United States v. Leslie, 103 F.3d 1093, 1104 (2d. Cir.1997).

¶ 10. In the present case, the State actually presented significant evidence of venue before reopening its case. Witnesses repeatedly stated that the crimes had occurred in “Greenwood, Mississippi.” Our supreme court has held that a court may take judicial notice that a city is in a particular county. Bearden v. State, 662 So.2d 620, 625 (Miss.1995). Additionally, in the “Greenwood” in which the crimes occurred, two streets (including Le-flore Avenue), two churches, a school, and the Greenwood Police Department were mentioned by name during the trial. A court can take judicial notice that a landmark such a street, school, or other institution is in a particular city, if this fact is common knowledge in the area where the trial is held. M.R.E. 201(b); see also Thomas v. State, 784 So.2d 247, 250 (¶ 10) (Miss.Ct.App.2000). Witnesses also repeatedly stated that events associated with the crimes and subsequent investigations occurred “here in Greenwood.” The scene of the crimes was not contested at trial, nor was it ever even suggested that the crimes had occurred anywhere other than Leflore County. Considering all of this evidence, the jury could have concluded beyond a reasonable doubt that the crimes occurred in Leflore County, as venue may be proven by circumstantial evidence. Smith v. State, 646 So.2d 538, 541 (Miss. 1994).

¶ 11. The State’s failure to mention explicitly Leflore County as the scene of the crimes was clearly inadvertent and did not result in insufficient proof of venue. Moreover, Hawkins has cited no prejudice and does not appear to have suffered any. Accordingly, we find no abuse of the trial court’s discretion in reopening the evidence. After reviewing the record, we also conclude the State offered sufficient evidence of venue in Leflore County even without the additional testimony. This issue is without merit.

II. Exclusion of Jane’s Letter

¶ 12. At the beginning of his casein-chief, Hawkins offered into evidence a letter Jane had written to her parents. He contended the letter was an admission that she had fabricated the allegations against him. However, the letter was undated and did not mention the allegations of sexual abuse. Instead, in it Jane apologized in general terms for “lies” that “got bigger and bigger.” As part of his proffer of evidence, Hawkins questioned Jane about the letter. Jane denied the letter had anything to do with the allegations against Hawkins. She testified she wrote the letter to apologize to her mother and stepfather for not coming home immediately after school and lying to them about visiting friends they had forbidden her to see. Hawkins did not offer any other evidence as foundation for the admitting the letter.

¶ 13. The trial court excluded the letter for two separate reasons. First, the trial court found it irrelevant because Hawkins had not produced any evidence the letter related to the sexual abuse allegations. Second, the trial court held that the letter would be excluded because it had not been timely produced in discovery. As we find the letter irrelevant, we will not address this alternative basis for the court’s decision.

¶ 14. A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. Catchings v. State, 39 So.3d 943, 950 (¶ 29) (Miss.Ct.App.2009). Even if the trial court’s ruling was erroneous, an appellate court can only reverse if the ruling resulted in prejudice and harm or adversely affected a substantial right of a party. Id. at 951 (¶ 34).

¶ 15. We find no abuse of discretion in the trial court’s exclusion of the letter as irrelevant. Under Mississippi Rule of Evidence 402, evidence that is irrelevant is not admissible. Other than the assertions of his attorney, which are not evidence, Hawkins offered nothing to support his contention that the letter was a recantation of the sexual-abuse allegations.

¶ 16. On appeal, Hawkins presents a different argument than he did before the trial court. He now contends that he should have been allowed to cross-examine Jane regarding the letter. Of course, the trial court has the inherent power to limit cross-examination to relevant matters. Foley v. State, 914 So.2d 677, 691 (¶ 30) (Miss.2005). Hawkins now contends, however, that the letter was evidence of Jane’s general propensity not to tell the truth. He argues that he should have been allowed to cross-examine her regarding the letter for that purpose.

¶ 17. It is true that Mississippi Rule of Evidence 608(b) provides the trial court discretion to allow a party to cross-examine a witness on specific instances of her past conduct, for the purpose of attacking her general disposition for truthfulness. However, the flaw in Hawkins’s argument is obvious: the letter is extrinsic evidence of Jane’s conduct and extrinsic evidence may not be used to attack a witness’s character for truthfulness. See M.R.E. 608(b). Moreover, Hawkins did not seek to cross-examine Jane regarding the conduct that was actually discussed in the letter — the disobedience and lying to her parents about her whereabouts. Hawkins proposed instead to insinuate, without any foundation, that through the letter Jane had recanted the allegations of sexual abuse. Couched as a cross-examination issue, Hawkins’s contentions regarding the letter are still without merit.

¶ 18. We find no error in the trial court’s exclusion of Jane’s letter from evidence.

III. The State’s “Classic Case” Argument

¶ 19. In his final issue, Hawkins argues the State improperly remarked in its opening and closing statements that his was a “classic case” of child molestation. Hawkins contends this remark prejudiced the jury by urging it to view his case as one of many, suggesting a preordained outcome and equating a not guilty verdict with a vote against every past and future child-abuse ease.

¶ 20. In reviewing whether an argument at trial constitutes reversible error, the supreme court has outlined two threshold inquiries. Brown v. State, 986 So.2d 270, 275-76 (¶ 13) (Miss.2008). We first ask whether the comments were invited and then whether the defense objected. Id. Here, the comments were not invited by the defense, but Hawkins offered no contemporaneous objection to any of the statements. Failure to object waives the issue on appeal, since “the trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect.” Spicer v. State, 921 So.2d 292, 309 (¶¶ 31-32) (Miss.2006).

¶ 21. When a defendant fails to object at trial, on appeal the issue is barred unless “the argument is so inflammatory that the trial judge should have objected on his own motion.” Id. at 317 (¶ 52) (citation and internal quotation omitted). We do not find that exception to the procedural bar applicable in this case. Though a prosecutor is limited “to the facts introduced in evidence, deductions!,] and conclusions he may reasonably draw therefrom, and the application of the law to the facts,” counsel is entitled to wide latitude in arguing his case. Ivy v. State, 589 So.2d 1263, 1266 (Miss.1991). In each of the three instances where the prosecutor referred to Hawkins’s crimes as a “classic case,” he was urging the jury to draw conclusions based on the evidence. During his opening statement, the prosecutor highlighted the facts that the child was vulnerable after the loss of her father and that the abuse had escalated over time in an effort to show that Jane’s actions were consistent with those of a child-abuse victim. Likewise, in his closing argument, the prosecutor stated that Hawkins’s attempted rape of Jane was a “classic case” in the sense that it was sufficient to support a sexual-battery conviction. Hawkins has not presented any authority holding similar arguments to be reversible error, nor are we aware of any.

¶ 22. This issue is proeedurally barred on appeal because Hawkins failed to object contemporaneously to the prosecutor’s comments. Notwithstanding the procedural bar, we find the arguments harmless and incapable of creating jury bias or prejudice. This issue is without merit.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF CONVICTION OF COUNTS I-IV, TOUCHING A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF TWO YEARS ON EACH COUNT, AND COUNT V, SEXUAL BATTERY, AND SENTENCE OF TWENTY YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT BENEFIT OF PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

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

      . To protect the identity of victims of sexual abuse, we substitute fictitious names for the victim and the victim's relatives through which the victim could be identified.


author: MAXWELL, J.,

text:
    Antonio SMITH a/k/a Antonia Smith, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00491-COA.
    Court of Appeals of Mississippi.
    Feb. 28, 2012.
    Rehearing Denied June 12, 2012.

      William R. Labarre, Virginia Lynn Watkins, Jacinta Andreanna Hall, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Scott Stuart, attorneys for appellee.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. A jury in the Hinds County Circuit Court found Antonio Smith guilty of armed robbery. On appeal, Smith argues: (1) the State impermissibly referenced his post-Miranda silence; (2) the trial court erroneously admitted evidence of drugs found in his vehicle; (3) the State violated Batson in exercising its peremptory strikes; and (4) the trial court erred in denying his proposed misidentification instruction. Finding no reversible error, we affirm.

FACTS

¶ 2. On April 30, 2006, an armed robbery occurred at a Jackson, Mississippi gas station. The gunman approached the store clerk, Patricia Gordon, and asked her for some Black & Mild cigars. When the man handed Gordon a five-dollar bill, she opened the cash register. The gunman then demanded, “Give me all the money,” and brandished a firearm he had hidden beneath his shirt. Gordon gathered the money from the register and placed it on the counter. The gunman took the money and cigars, then left the store.

¶ 3. Gordon immediately called 911. She told authorities the robber’s vehicle had a personalized license plate, reading “TY ROSE.” This license plate was registered to Rosenna Adams (Smith’s wife) for a GMC Yukon. A check of the personalized plate led police to Smith’s residence, where a GMC Yukon with “TY ROSE” on its tag was parked. Smith allegedly ran inside the house and refused to answer the door. Officers dispatched a SWAT team to the house, and a three-hour stand off ensued. Smith was eventually removed from the house and arrested. After obtaining Adams’s consent, police searched the Yukon and found a pack of Black & Mild cigars on the front floorboard and another pack on the rear floorboard. Officers also seized five plastic bags containing a “green leafy” substance, allegedly marijuana, from the rear seat of the vehicle.

¶ 4. On the date of the robbery, Gordon gave a written statement to police. She reported being robbed at gunpoint by a black male driving an “SUV” with “Ty Rose” on its license plate. The next day, an officer presented Gordon with a photographic lineup, and she identified Smith as the man who had robbed the gas station. At Smith’s trial, Gordon again identified Smith as the armed robber and described the “Yukon” he had driven with “TY ROSE” on the tag.

¶ 5. Smith testified in his own defense and denied robbing the gas station: He also denied he had ever visited the particular gas station where the robbery occurred. But he acknowledged he is sometimes called “Ty” and has a tattoo bearing that nickname. He also admitted the vehicle with “TY ROSE” on the license plate was his. He explained “TY ROSE” was a. combination of his and his wife Rosenna’s names. He claimed he had purchased the Black & Mild cigars found in his vehicle at a “local discount tobacco store.”

¶ 6. The jury found Smith guilty of armed robbery. The circuit court sentenced him to fifteen years, with ten to serve and five suspended. Smith timely appealed.

DISCUSSION

I. Comment on Right to Remain Silent

¶ 7. Smith claims the State improperly commented on his post-Miranda silence, first during an officer’s testimony and later during closing argument.

A. Officer’s Testimony

¶ 8. Smith’s first challenge is based on the following exchange during Officer Kent Daniels’s testimony:

[The State]: Okay. Did you have any contact with the suspect?
[Officer Daniels]: Once they brought the suspect out the house, I had a patrol officer to transport him downtown to the unit, and I came down and advised him of his Miranda rights, and told him, you know, we want to get a statement from him of what happened, and he refused to give me a statement.

(Emphasis added). Smith’s counsel objected at this point, and the parties approached the bench. The bench conference was neither recorded nor described in the record. However, after the State had concluded its case and the jury had been excused, defense counsel addressed the comment: “You’re Honor, we just want to put on the record about the objection to [the] statement about the plaintiffs [sic] refused to talk. The Supreme Court has said numerous times that whether the defendant decides to talk to officers should not be mentioned[.]” Our review shows Smith’s counsel neither requested a mistrial nor a curative instruction. And the trial court did not discuss or rule on his objection, but instead moved on to other issues.

¶ 9. When reviewing challenges to comments on post-Miranda silence, we are generally faced with a trial court’s denial of a motion for a mistrial, which we review for abuse of discretion. Gilbert v. State, 48 So.3d 516, 521 (¶ 20) (Miss.2010). But here, Smith did not seek a mistrial. We agree with the State that Smith failed to preserve this issue for appeal. The Mississippi Supreme Court has held that “when anything transpires during the trial that would tend to prejudice the rights of defendant^] ... he must ask the trial court for a mistrial upon the happening of such occurrence when the same is of such nature as would entitle him to a mistrial.” Blackwell v. State, 44 So.2d 409, 410 (Miss. 1950). A contemporaneous motion for a mistrial “is critical because it allows the judge to avert a mistrial, if possible, by admonishing the jury to disregard the utterance.” Knight v. State, 751 So.2d 1144, 1154 (¶ 26) (Miss.Ct.App.1999). We find Smith’s failure to timely request a mistrial or curative instruction is a procedural bar to our review of the issue. See, e.g., Randall v. State, 806 So.2d 185, 213 (¶ 69) (Miss.2001); Logan v. State, 773 So.2d 338, 349 (¶¶ 43-46) (Miss.2000); see also Collins v. State, 81 So.3d 1174, 1179 (¶13) (Miss.Ct.App.2011) (rehearing denied Nov. 29, 2011) (citing Parker v. State, 20 So.3d 702, 707-08 (¶ 23) (Miss.Ct.App.2009)). Still we address the merits.

¶ 10. The Fifth Amendment to the United States Constitution provides: “No person ... shall be compelled in any criminal case to be a witness against himself[.]” The Fourteenth Amendment incorporates this right to the states. Chamberlin v. State, 989 So.2d 320, 332 (¶ 35) (Miss. 2008). The applicable provision in the Mississippi Constitution essentially mirrors the federal right. It states: “In all criminal prosecutions the accused ... shall not be compelled to give evidence against himself[.]” Miss. Const. art. 3, § 26.

¶ 11. The United States Supreme Court has held that a criminal defendant’s post-Miranda silence may not be used by the government to impeach the defendant’s exculpatory testimony. See Doyle v. Ohio, 426 U.S. 610, 611, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Because it is implicit in Miranda warnings “that silence will carry no penalty,” it would be fundamentally unfair to allow a defendant’s post-arrest silence to be used to impeach his subsequent trial testimony. Id. at 618, 96 S.Ct. 2240.

¶ 12. It is “improper and ordinarily, reversible error to comment on the accused’s post-Miranda silence.” Emery v. State, 869 So.2d 405, 408-09 (¶ 17) (Miss.2004) (quoting Quick v. State, 569 So.2d 1197, 1199 (Miss.1990)). But the mere mention of a defendant’s refusal to give a statement does not, in all instances, require reversal. See Gossett v. State, 660 So.2d 1285, 1291 (Miss.1995) (finding harmless-error analysis applies to an officer’s comment on a defendant’s post-Miranda silence). Instead, we review such comments “on an individual basis.” Birkhead v. State, 57 So.3d 1223, 1238 (¶ 53) (Miss.2011). The proper test for determining if a comment on a defendant’s post-Miranda silence amounts to reversible error is “whether ... the natural and probable éffect of the statement is to create an unjust prejudice against the accused [resulting] in a decision influenced by prejudice.” Gunn v. State, 56 So.3d 568, 571 (¶ 14) (Miss.2011) (internal quotations omitted).

¶ 13. We do not find the natural and probable effect of Officer Daniels’s comment was to unjustly prejudice Smith. It does not appear the prosecutor intentionally elicited this comment, as it was not directly responsive to the prosecutor’s question. The challenged testimony, while legally improper, appears to be the officer’s mere recitation of the facts about his contact with Smith. We further note this comment was the sole reference, over the course of Smith’s trial, to his post-Miranda silence. The prosecutor did not suggest to the jury that Smith was guilty because he exercised his right to remain silent. Nor did the State use Smith’s silence to impeach his testimony. The procedural bar aside, we find the lone unsolicited reference to Smith’s post-Miranda silence does not warrant reversal.

B. Closing Argument

¶ 14. Smith next claims the prosecutor’s closing argument (1) impermissibly referenced his right to remain silent and (2) shifted the burden of proof from the State to the defense.

¶ 15. We find these arguments are similarly procedurally barred because Smith failed to raise a specific and contemporaneous objection during closing arguments. See, e.g., Swington v. State, 742 So.2d 1106, 1112 (¶ 14) (Miss.1999). A separate but equally restrictive bar applies because he also failed to timely request a mistrial or curative instruction. See Randall, 806 So.2d at 213 (¶ 69); Logan, 773 So.2d at 349 (¶¶ 43-46); Collins, 81 So.3d at 1179 (¶ 13) (citing Parker, 20 So.3d at 707-08 (¶ 23)).

¶ 16. After the jury had been excused to begin deliberations, defense counsel challenged the State’s allegedly impermissible references to Smith’s decision not to testify about certain matters at trial. Soon after, he requested a mistrial claiming the State had shifted the burden of proof. Our supreme court has held “a motion for mistrial after the jury has retired to consider its verdict comes too late.” Williams v. State, 684 So.2d 1179, 1203 (Miss.1996). Thus, in raising these arguments after the jury had begun deliberating, Smith failed to preserve these objections. See also Collins, 81 So.3d at 1178-79 (¶¶ 12-13) (citing Parker, 20 So.3d at 707-08 (¶ 23)).

¶ 17. Though his untimely request for a mistrial serves as a procedural bar, our review reveals Smith’s asserted challenge at trial differs from the ground he now advances on appeal. His objection at trial dealt with the State’s mention of matters Smith elected to avoid while testifying. Yet on appeal, he latches to a different ground, arguing the State impermissibly commented, during its closing argument, on his pretrial exercise of his right to remain silent.

¶ 18. The record shows the State made no reference during closing arguments to Smith’s pretrial silence. Rather, the prosecutor’s closing focused on Smith’s trial testimony and the fact that it did not square with other evidence. Such arguments have been deemed permissible. See Jordan v. State, 464 So.2d 475, 482 (Miss.1985) (quoting Calloway v. Wainwright, 409 F.2d 59, 65 (5th Cir.1968)) (“[Wjhen a defendant voluntarily testifies to the merits, and not just upon a purely collateral matter, the prosecutor may comment upon the defendant’s failure to deny or explain incriminating facts already in evidence.”). And though the issue was not preserved, any perceived impropriety in the State’s argument concerning its burden of proof was cured by the jury instructions. See Houston v. State, 887 So.2d 808, 814 (¶ 22) (Miss.Ct.App.2004). The trial judge properly explained the beyond-a-reasonable-doubt standard. And the jury was admonished to render its verdict based on the evidence, which they were instructed does not include “[arguments, statements, and remarks of counsel.” We must presume that the jury heeded this clear directive. See, e.g., Clark v. State, 40 So.3d 531, 539 (¶ 16) (Miss.2010) (“Juries are presumed to follow the instructions given to them by the court.”).

¶ 19. We find this issue both procedurally barred and without merit.

II. “Green Leafy Substance”

¶ 20. Smith next claims the trial court’s admission of evidence of a “green leafy substance” recovered from his vehicle violates Rules 901 and 404(b) of the Mississippi Rules of Evidence.

A. Procedural Issues

¶ 21. Though Smith raised his Rule 404(b) argument in the trial court, the State contends this issue is procedurally barred because he failed to re-assert it in his motion for new trial. We disagree. It is true that certain errors — such as an argument that the verdict is against the weight of the evidence — must be raised in a motion for new trial to preserve the issue for appeal. Hughey v. State, 729 So.2d 828, 830 (¶ 6) (Miss.Ct.App.1998) (citing Jackson v. State, 423 So.2d 129, 131 (Miss. 1982)). But a party need not “make a motion for a new trial grounded upon errors shown in the official ... record.” Melton v. State, 723 So.2d 1156, 1159 (¶ 14) (Miss.1998). Because Smith raised Rule 404(b) in a motion in limine, which the trial court denied, we consider this issue on the merits.

B. Rule 404(b)

¶ 22. We review the trial court’s admission or exclusion of evidence for an abuse of discretion. Terrell v. State, 952 So.2d 998, 1005 (¶ 31) (Miss.Ct.App.2006). Under Mississippi Rule of Evidence 404(b):

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.

Rule 404(b) “prevent[s] the State from raising the inference that the accused has committed other crimes and is therefore likely to be guilty of the offense charged.” White v. State, 842 So.2d 565, 573 (¶ 24) (Miss.2003). But the rule permits admission of evidence of other crimes, wrongs, or acts for other relevant purposes.

¶ 23. For a judge to admit evidence under Rule 404(b): (1) the evidence must “be relevant to prove a material issue other than the defendant’s character,” and (2) “the probative value of the evidence must outweigh the prejudicial effect.” Davis v. State, 40 So.3d 525, 530 (¶ 16) (Miss.2010). This second prong implicates Mississippi Rule of Evidence 403 — “the ultimate filter through which all otherwise admissible evidence must pass.” Davis, 40 So.3d at 530 (¶ 16).

¶ 24. Smith filed a motion in limine, arguing admission of evidence of marijuana seized from his vehicle violated Rule 404(b). Though the State did not file a written response, it argued during the pretrial motion hearing on the day of the trial that the evidence fell within an exception to Rule 404(b) to show motive. The State also contended the evidence was necessary to depict the “complete story” of the armed robbery.

¶ 25. The trial judge apparently misinterpreted the nature of the 404(b) issue. Instead, he seemed primarily concerned about the substance being authenticated as marijuana. He deferred ruling on the admissibility of the evidence, instructing:

[T]he defendant states that there is indication that witnesses may say the defendant was in possession of marijuana. The court finds that that will not be admissible unless there is someone that will give testimony that the substance was indeed marijuana that was found in the automobile. Otherwise, it would be hearsay and it would not be admissible unless the substance was indeed tested and determined to be marijuana.

Later, Officer Charles Taylor testified outside the presence of the jury that he was familiar with certain controlled substances from his experience in law enforcement. Based on his experience, he believed the substance seized from Smith’s vehicle “appear[ed] to be marijuana.” But he admitted the substance had not been chemically tested to verify it was marijuana.

¶ 26. Following Officer Taylor’s testimony, the trial court ruled the evidence concerning the green-leafy substance was admissible, finding:

[T]he witness ... can give testimony as to any and all items that he observed .... [T]he defendant will be allowed to cross-examine him as to what he collected and observed. So the green leafy substance, the witness can give testimony in his opinion what he believes it to be; and, likewise the defendant can cross-examine him regarding that opinion.

While the State and defense both cited Rule 404(b), the judge did not mention Rule 404(b) in his ruling. Officer Taylor then testified in the jury’s presence that he had seized “five packs of green vegetable material” from Smith’s vehicle. He testified the substance “appear[ed] to be marijuana.” The record reveals the physical substance was admitted into evidence. On cross-examination, Officer Taylor admitted he was unsure whether Smith had been charged with possessing marijuana. He also acknowledged the substance had not been tested.

¶ 27. Our supreme court has held that “[p]roof of another crime is admissible ... where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged[.]” Mack v. State, 650 So.2d 1289, 1311 (Miss.1994). Under certain circumstances, evidence of a defendant’s drug activity is relevant and admissible to show motive for a robbery. Watts v. State, 717 So.2d 314, 322 (¶22) (Miss.1998) (citing Mack, 650 So.2d at 1313). But there must be a “close connection” showing that the defendant’s “specific monetary objective” for committing the robbery is to finance drug activity. Id. at 323 (¶ 23). There are also other circumstances, such as a robbery from a drug distributor or purchaser, that may support admission of other-acts evidence. In Mack, a capital murder case, the supreme court found no error in the trial court’s admission of other-crimes evidence that the defendant had purchased and smoked crack cocaine. Mack, 650 So.2d at 1313. The Mack court found it “clear” from the evidence that the defendant had robbed the victim “because he needed money [to purchase] cocaine.” Id.

¶ 28. Here, the State’s proffered reason for admission of the drug evidence was to show Smith’s motive for committing the robbery. But the trial judge apparently failed to recognize the nature of the State’s request and did not perform the two-prong 404(b) inquiry. And inexplicably, after the evidence was admitted, the State apparently abandoned this theory. Instead, both sides haggled over whether the substance was indeed marijuana. The State presented no evidence that Smith robbed the gas station for money to purchase drugs, nor did it even mention this purported motive to the jury during closing arguments.

¶ 29. Smith relies on the supreme court’s reversal of a drug-distribution conviction in Spraggins v. State, 606 So.2d 592, 594-96 (Miss.1992), claiming that the improper Rule 404(b) admission requires reversal. In Spraggins, the defendant was charged with selling cocaine. The jury heard numerous improper references to his involvement in other drug-related crimes and acts unrelated to charged offense. The jury also heard Spraggins had been previously convicted of a drug offense and had also been arrested on an unrelated drug charge. And Spraggins’s testimony was thoroughly impeached with the improper Rule 404(b) evidence. We acknowledge the supreme court’s reversal in Spraggins, based on improper admission “of a conviction, a prior arrest, and other bad acts,” id. at 598, but find the facts before us differ.

¶ 30. We find the facts here more akin to those confronted by our supreme court in Waits. In Watts, the supreme court found error in a trial court’s admission of evidence that the defendant used money stolen from a homicide victim to purchase crack cocaine. Watts, 717 So.2d at 323 (¶ 23). On appeal, Watts’s challenged the admission of the drug evidence, arguing it prejudiced his case. The supreme court found “there was no evidence of a ‘close connection of a specific monetary objective’ to rob and murder ... in order ... to obtain money to purchase crack cocaine.” Id. The supreme court also acknowledged the trial judge’s failure to conduct a Rule 403 balancing test to weigh the probative value against the prejudicial nature of the cocaine evidence. Thus, it was error to admit the drug evidence. However, due to the overwhelming evidence of Watts’s guilt, the supreme court found the Rule 404(b) violation was harmless error. Id. at (¶ 24); see also United States v. Sausedo, 24 F.3d 97, 98-99 (10th Cir.1994) (finding admission of cocaine seized from the defendant’s person at the time of arrest constituted harmless error, where the defendant was convicted of possessing marijuana with intent to distribute and using a firearm during a drug trafficking crime).

¶ 31. We are faced with a similar predicament. We cannot speculate that Smith’s motive for committing robbery was to finance drug activity, where the State offered no proof showing that to be the case. Therefore, we conclude the trial judge erred in admitting evidence concerning the green-leafy substance seized from Smith’s Yukon. Because we find error in the admission of the substance, we need not address Smith’s Rule 901 argument. But our inquiry does not end here. Like the supreme court in Watts, we must also consider whether the admission of drug evidence affected a substantial right requiring reversal, or if in light of overwhelming evidence of Smith’s guilt, it may be deemed harmless error. See also Webster v. State, 754 So.2d 1232, 1240 (¶ 21) (Miss.2000) (citing Baldwin v. State, 732 So.2d 236 (Miss.1999); Carter v. State, 722 So.2d 1258 (Miss.1998)) (“[H]armless error analysis applies to questions of the admissibility of evidence pursuant to [Rule] 404(b).”).

¶ 32. The supreme court has refused to reverse based on an improper admission under Rule 404(b) “[w]here the prejudice from [the] erroneous admission ... dims in comparison to other overwhelming evidence[.]” Carter, 722 So.2d at 1261-62 (¶¶ 13-14) (citing Holland v. State, 587 So.2d 848, 864 (Miss.1991)) (finding evidence of defendant engaging in a prior “shoot-out” was harmless error in a murder trial); see also Caldwell v. State, 6 So.3d 1076, 1079 (¶ 9) (Miss.2009) (“Erroneously admitted evidence is harmless when ‘the same result would have been reached had error not existed.’ ”).

¶ 33. Here, the store clerk, Gordon, unequivocally identified Smith as the armed robber. She testified, consistent with her police statement, that she had seen the armed robber leave in a vehicle with a personalized license plate, reading “TY ROSE.” Gordon also identified Smith from a photo lineup. Though Smith denied he had robbed the gas station, which he claimed he had never visited, he admitted he is sometimes called “Ty.” And more importantly, he admitted the Yukon bearing the personalized plate that Gordon had described was his. Further, when authorities arrived at his home, Smith barricaded himself inside and refused to come out. Jurors heard evidence that a SWAT team engaged in a three-hour standoff to remove him. Officers also recovered Black & Mild cigars from his vehicle — the same brand of cigars Gordon testified Smith had stolen from the convenience store.

¶ 34. Considering similar erroneous admissions of other-acts evidence, the supreme court has found harmless error in an improper Rule 404(b) admission. Carter, 722 So.2d at 1260-62 (¶¶4, 13-14) (admission of evidence in a murder trial of a prior “shoot-out” was harmless due to convincing eyewitness testimony, despite defendant testifying and denying the eyewitness’s allegations). Although we find the green-leafy substance was erroneously admitted, the eyewitness’s testimony was clear, detailed, consistent with her statement to investigators, and corroborated by other evidence. Several of Smith’s own admissions were also highly condemning evidence. Under the specific facts of this particular case, we find the State’s proof sufficient to render harmless the trial court’s erroneous admission of the substance found in Smith’s vehicle.

III. Batson

¶ 35. Smith, an African American male, alleges the State violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) by exercising its peremptory challenges in a discriminatory manner. “This Court reviews a trial court’s ruling on a Batson challenge with great deference and will not overturn the trial court’s ruling unless it is clearly erroneous or against the overwhelming weight of the evidence.” See, e.g., Wilson v. State, 72 So.3d 1145, 1153 (¶ 18) (Miss.Ct.App.2011).

¶ 36. The record reveals both sides made Batson objections during voir dire. The State first raised a so-called “reverse Batson challenge,” alleging the defense had struck Caucasian venire members solely based on their race. The trial judge found the State had not yet shown the defense had excluded white venire members in a discriminatory manner. Soon after, defense counsel raised a Batson challenge, pointing to the State’s use of its first seven peremptory challenges to strike black venire members. .The State responded: “We tendered some [African Americans] as well as struck some. There is no race reason with it.” The prosecutor also noted the venire members were predominantly African American; thus, it was “almost impossible not to strike some of the African American jurors.” The trial judge denied the Batson challenge. Later, the State again raised Batson, advising the judge that Smith had stricken every white venire member on the panel. Observing the State had “struck African American jurors as well,” the court denied the State’s reverse-Batson claim.

¶ 37. The Equal Protection Clause of the Fourteenth Amendment forbids the State from exercising peremptory challenges based solely on race. Johnson v. State, 529 So.2d 577, 583 (Miss.1988) (citing Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69). A three-step analysis applies to Batson challenges:

(1) the defendant must make out a pri-ma facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose;
(2) once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible, race-neutral justifications for the strikes; and
(3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination,

Pruitt v. State, 986 So.2d 940, 942-43 (¶ 8) (Miss.2008) (citing Johnson v. Cal., 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005)). The ultimate “burden of persuasion rests with, and never shifts from, the opponent of the strike.” Johnson, 545 U.S. at 171, 125 S.Ct. 2410 (citations and quotations omitted). “[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Id. at 170, 125 S.Ct. 2410. If the defendant fails to make out a prima facie case showing a discriminatory purpose, the inquiry ends. See Pruitt, 986 So.2d at 942-43 (¶ 8); Scott v. State, 981 So.2d 964, 968 (¶ 11) (Miss. 2008).

¶ 38. Smith claims the trial court erred in “failing to follow through the Batson process.” In response, the State argues Smith’s Batson claim necessarily fails because all jurors selected were African Americans — the same race as Smith. Although the record does not indicate the racial composition of the jury, Smith does not dispute the State’s allegation that the seated jury was solely comprised of African Americans.

¶ 39. The supreme court has recently held “that exercising seven peremptory strikes against African-Americans [ (the same of number of strikes at issue here) ], standing alone, absent any other facts or circumstances ... fails to establish a prima facie showing that race was the criteria for the exercise of the peremptory challenge.” Strickland v. State, 980 So.2d 908, 917 (¶ 12) (Miss.2008); see also Jackson v. State, 672 So.2d 468, 479 (Miss. 1996). And in Hansen, the supreme court rejected an appellant’s Batson challenges where the record did not include the race of the jurors. Hansen v. State, 592 So.2d 114, 127 (Miss.1991). The supreme court noted its longstanding requirements that it “must decide each case by the facts shown in the record, not assertions in the brief,” and that the burden is on the appellant to make sure “the record contains sufficient evidence to support his assignments of error on appeal.’ ” Id. Here, Smith’s counsel had the burden to ensure the record indicated the facts supporting the State’s alleged discriminatory use of its peremptory strikes, and to show the ultimate racial composition of the jury. Scott, 981 So.2d at 968-69 (¶¶ 11, 15) (explaining that a properly raised Batson objection must be supported by specific facts constituting a prima facie case of discriminatory use of peremptory strikes). Without sufficient facts and record evidence to assess the alleged pretextual nature of the State’s challenges, we cannot find the trial judge in error for striking the challenged jurors.

IV. Jury Instruction

¶ 40. Our standard for reviewing jury instructions is well established. A criminal defendant is entitled to jury instructions that present his theory of the case even if the supporting evidence “is weak, inconsistent, or of doubtful credibility.” Banyard v. State, 47 So.3d 676, 682 (¶ 17) (Miss.2010) (citing Ellis v. State, 778 So.2d 114, 118 (¶ 15) (Miss.2000)). But a defendant’s right to jury instructions presenting his theory of the case is not absolute. Harris v. State, 861 So.2d 1003, 1012 (¶ 18) (Miss.2003). “[T]he court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id. at 1012-13 (¶ 18); Brown v. State, 39 So.3d 890, 898 (¶ 27) (Miss.2010). An appellate court does not read jury instructions in isolation. Instead, we read them as a whole with no single instruction taken out of context. Rushing v. State, 911 So.2d 526, 537 (¶ 24) (Miss.2005).

¶ 41. Smith argues the jury was not properly instructed on his defense of mis-identification. He alleges his proposed jury instruction D-6, which the trial court refused, was a “more complete” instruction than instruction S-3 — the instruction given on eyewitness identification. Instruction S-3 reads:

The burden is on the State to prove beyond a reasonable doubt that the offense was committed and that the defendant was the person who committed it. You have heard the evidence regarding the identification of the defendant as the person who committed the crime. In this connection, you should consider the witness’s opportunity to observe the criminal act and the person committing it, including the length of time the witness had to observe the person committing the crime, the witness’s state of mind, and any other circumstances surrounding the event. You should also consider the witness’s certainty or lack of certainty, the accuracy of any prior description, and the witness’s credibility or lack of credibility, as well as any other factor surrounding the identification. You have heard evidence that pri- or to this trial, the witness, Patricia Gordon, identified the defendant, Antonio Smith, by viewing a photographic spread which contained his photograph.
The identification of the defendant by a single eyewitness, as the person who committed the crime, if believed beyond a reasonable doubt, can be enough evidence to convict the defendant.
It is for you to determine the reliability of any identification and give it the weight you believe it deserves.

Instruction D-6 proposed the following:

The Court instructs the jury that one of the issues in this case is the identification of ANTONIA TYRONE SMITH as the person who committed the crime. The State has the burden of proving identity beyond a reasonable doubt. Identification testimony is an expression of belief or impression by the witness, and its value may depend upon your consideration of several factors. Some of the factors which you may consider are:
1) The witness’s capacity and opportunity to observe the offender. This include[s], among other things, the length of time available for observation, the distance from which the witness observed, the lighting, and whether the person who committed the crime was a prior acquaintance of the witness;
2) The degree of certainty expressed by the witness regarding the identification and the circumstances under which it was made, including whether it is the product of the witness’s own recollection;
3) The occasion, if any, on which the witness failed to make an identification of ANTONIA TYRONE SMITH or made an identification that was inconsistent with the identification at trial; and
4) The occasions, if any, on which the witness made an identification that was consistent with the identification at the trial, and the circumstances surrounding such identification.
The State has the burden of proving every element of the crime charged, and this burden specifically include[s] the identity of ANTONIA TYRONE SMITH as the person who committed the crime for which he is on trial. If after considering the identification testimony in light of all the proof you have a reasonable doubt that ANTONIA TYRONE SMITH is the person who committed the crime, you must find ANTONIA TYRONE SMITH not guilty.

¶ 42. Comparing the two instructions, we do not see any information in the refused instruction D-6 that was not fairly covered by S-3. Both instruct the jury that the State is required to prove identity beyond a reasonable doubt. And each contains a list of factors for assessing whether the State has done so. There is no particular factor in instruction D-6 that is not covered by instruction S-3 or encompassed within one of the factors outlined in S-3. “[T]rial judges are not required to grant repetitious instructions.” Davis v. State, 568 So.2d 277, 280 (Miss.1990) (quotations omitted). Further, the supreme court has held a proper identification instruction need not include a detailed list of factors. See id. at 279-81. Because the jury was properly instructed on misidentification, and instruction D-6 was cumulative of the instruction given, we find no error on this issue.

¶ 43. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS, WITH FIVE YEARS SUSPENDED AND TEN YEARS TO SERVE, 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, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.

      . We note that defense counsel's failure to immediately specify the ground for the objection did not waive this issue because the ground for the objection is obvious. See M.R.E. 103(a)(1) (stating specific objection only required “if the specific ground was not apparent from the context[.]”); see also Murphy v. State, 453 So.2d 1290 (Miss.1984).

      . The Doyle rule is not without exception. Doyle itself provided: "[T]he fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest.” Doyle, 426 U.S. at 619 n. 11, 96 S.Ct. 2240.

      . We note that Jordan was vacated on other grounds by Jordan v. Mississippi, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352 (1986) and abrogated on other grounds by Willie v. State, 585 So.2d 660 (Miss.1991), overruled by King v. State, 784 So.2d 884 (Miss.2001).


author: FAIR, J.,

text:
    Latoya HACKLER, on Behalf of Herself, Individually, and as Mother and Next Friend of A’Kaalin Hackler Townes, a Minor Deceased, and any Wrongful Death Beneficiaries of A’Kaalin Hackler Townes, Deceased, Appellants v. PHC-CLEVELAND, INC. d/b/a Bolivar Medical Center and Dr. Robert C. Tibbs, III, Appellees.
    No. 2011-CA-00078-COA.
    Court of Appeals of Mississippi.
    May 15, 2012.
    Louise Harrell, attorney for appellant.
    Kimberly Nelson Howland, L. Carl Hag-wood, Jackson, Rebecca L. Hawkins, Mary Frances Stallings-England, attorneys for appellees.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Latoya Hackler filed a wrongful-death claim against Dr. Robert Tibbs III and PHC-Cleveland Inc. d/b/a Bolivar Medical (Bolivar). The trial court granted summary judgment to Tibbs and Bolivar because Hackler did not present an expert opinion to support her malpractice claim. Finding no error, we affirm.

FACTS

¶ 2. Latoya Hackler gave birth to A’Kaa-lin Townes by cesarian section at Bolivar Medical Center. A’Kaalin was immediately admitted to the hospital by her treating physician, Dr. Robert Tibbs. After four days, she was discharged and went home with her mother. Two days later Hackler brought A’Kaalin back to the hospital with apnea and an erratic heart beat. Though A’Kaalin was transported to University of Mississippi Medical Center, she died.

¶ 3. Hackler filed a complaint for wrongful death in August 2009 asserting Dr. Tibbs and Bolivar had deviated from the standard of care and caused A’Kaalin’s death. The trial court entered a scheduling order stating discovery would be completed within 120 days from service of an answer, and experts should be designated no later than 45 days prior to the discovery deadline. One year later, no depositions had been taken, and no experts had been designated.

¶ 4. Tibbs and Bolivar moved for summary judgment in August 2010 contending Hackler had no expert witness to support her claim. A hearing was set for November. Two days before the hearing, Hack-ler moved for a continuance under Rule 56(f) of the Mississippi Rules of Civil Procedure, claiming her delay was justified. She attached affidavits from her attorney and from a medical-legal consultant. The trial judge granted summary judgment stating that he could not allow the case to proceed without an affidavit from a qualified expert. Feeling aggrieved, Hacker now appeals.

DISCUSSION

¶ 5. Hackler asserts that the trial court should have granted her motion for continuance under Rule 56(f) and allowed her more time to obtain an expert.

1. Rule 56(f) Continuance

¶ 6. Mississippi Rule of Civil Procedure 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

¶ 7. Hackler filed a Rule 56(f) motion and requested more time to obtain an expert’s affidavit. In her motion, Hackler explained she was unable to obtain the complete medical records until August 2010, and due to financial difficulties, she had been unable to retain an expert. Hackler also attached the affidavit of a medical-legal consultant who stated that he would not testify at trial and had not practiced medicine in several years. At the summary judgment hearing, Hackler admitted that she still had not located an expert to testify in support of her claims.

¶ 8. A trial court has sound discretion to grant or deny a continuance under Rule 56(f). Owens v. Thomae, 759 So.2d 1117, 1120 (¶ 10) (Miss.1999). This Court will only reverse where the trial court has abused that discretion. Id.

¶ 9. The trial judge reasoned Hackler had known since filing this action that she would need expert testimony. In March 2010, Hackler answered discovery stating that she had not yet chosen an expert and would supplement her responses. Defendants requested this supplement in July, but after receiving no response, they filed for summary judgment in August. Hack-ler had nearly three months to prepare for the hearing in November and still did not obtain an expert.

¶ 10. To grant a Rule 56(f) motion, a trial judge must have proof of diligence on behalf of the party seeking a delay. Hobgood, v. Koch Pipeline Se., Inc., 769 So.2d 838, 846 (¶ 38) (Miss.Ct.App.2000). In Vaughn v. Mississippi Baptist Medical Center, 20 So.3d 645, 656 (¶ 34) (Miss. 2009), the supreme court held that denying a continuance under Rule 56(f) was proper where the plaintiffs assertions were vague on how additional time would have enabled her to rebut the defendant’s summary judgment motion. In Maxwell v. Baptist Memorial Hospital-Desoto, Inc., 15 So.3d 427, 436 (¶ 21) (Miss.Ct.App.2008), this Court affirmed a trial judge’s decision to deny a continuance under Rule 56(f) where the plaintiff had ignored discovery requests and the court’s scheduling order. Similarly, in McDaniel v. Pidikiti, 39 So.3d 952, 958 (¶ 14) (Miss.Ct.App.2009), we affirmed the denial of a plaintiffs Rule 56(f) motion where four months had elapsed between the court striking his original expert and the summary judgment hearing.

¶ 11. Hackler cites to Terrell v. Rankin, 511 So.2d 126 (Miss.1987), asserting that it is an abuse of discretion to deny a Rule 56(f) continuance where the requesting party was unable to secure the necessary affidavits. However, that opinion notes: “The cases so holding are somewhat different ... in that the non-movant, acting pro se, was incarcerated, or the plaintiff non-movant was waiting for affidavits from Kuwait.” Id. at 129 (citations omitted). As Hackler was neither incarcerated nor awaiting affidavits from a remote location, Terrell is distinguishable.

¶ 12. Here, we cannot find that the trial court abused its discretion in denying Hackler’s request for additional time to obtain a medical expert’s affidavit. Hack-ler had a year to find an expert and had the complete medical records for three months before the summary judgment hearing. Further, her affidavit does not explain how a delay will resolve the financial problems that prevented her from obtaining an expert. We find that Hackler had ample time to locate a medical expert to support her claim. Therefore, the trial court did not abuse its discretion in denying her motion for continuance under Rule 56(f).

2. Summary Judgment

¶ 13. This Court reviews summary judgment de novo. Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss.2004). Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). Evidence is viewed in the light most favorable to the party opposing the motion. Davis, 869 So.2d at 401 (¶ 10).

¶ 14. The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). If the non-moving party “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

¶ 15. Hackler had the burden of proving the existence of a genuine issue of material fact. A plaintiff must produce proof of each element of the medical malpractice claim. See Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So.2d 1346, 1356-57 (Miss.1990). And expert testimony is required to establish that a malpractice defendant failed to use ordinary skill and care. Stallworth v. Sanford, 921 So.2d 340, 342 (¶ 6) (Miss.2006) (citations omitted). “ ‘[A] complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial,’ entitling the moving party to judgment as a matter of law.” Maxwell, 15 So.3d at 434 (¶ 17) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

¶ 16. The trial court held a hearing on the summary judgment motion in November 2010. Hackler did not submit an expert affidavit to support her claims and admitted that she still had not obtained an expert. Without an expert, Hackler was unable to establish that the defendants had failed to use ordinary skill and care. Thus, Dr. Tibbs and Bolivar were entitled to judgment as a matter of law. We affirm the circuit court’s judgment.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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