author: CARLTON, J.,

text:
    Eric DeShawn JACKSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00550-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Rehearing Denied May 31, 2011.
    Certiorari Denied Sept. 8, 2011.

      Phillip Broadhead, Oxford, Jerry Campbell, Vicksburg, Leslie S. Lee, Jackson, Branan Patrick Southerland, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, Scott Stuart, Jackson, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. A jury convicted Eric DeShawn Jackson in the Warren County Circuit Court of three counts of depraved-heart murder. The circuit judge then sentenced Jackson to three consecutive life sentences in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole.

¶ 2. Jackson argues on appeal that the jury verdict is against the overwhelming weight of the evidence; thus, the circuit court erred in refusing to grant his motion for a new trial or, in the alternative, his motion for a judgment notwithstanding the verdict (JNOV). Jackson also argues that the circuit court erred by allowing the State to admit multiple photographs of the victims into evidence, claiming that the photographs possessed no probative value. Jackson now asks this Court to reverse and vacate both his convictions and sentences for the three counts of depraved-heart murder, and he urges this Court to remand this case to the circuit court for a new trial. We, however, find no error and affirm Jackson’s convictions and sentences.

FACTS

¶ 3. On June 26, 2008, at approximately 6:00 p.m., officers from the Vicksburg Police Department responded to a call regarding a shooting on Ken Karyl Avenue. When the officers arrived on the scene, they found Denise Jackson, who was mortally injured from a bullet wound to the chest. She subsequently died as a result of the injury. Denise was pregnant when she was shot, and her unborn fetus also died due to deprivation of oxygen as a result of Denise’s death.

¶ 4. Marquis Bland testified that on the afternoon of the shooting, he was at 2634 Ken Karyl Avenue, the home of Lucius Jackson, where Bland lived with Denise, his fiancée and also Lucius’s granddaughter, and Denise’s children, Jamari and Toni, and Bland’s child with Denise, Ashley. Bland testified that he went outside onto the porch of the house at approximately 5:30 p.m. Bland stated that he noticed people at his mother’s house located next door at 2632 Ken Karyl Avenue. He observed people standing around “like they was [sic] watching something.” Bland walked next door; he testified that he saw Jackson and Rodriguez Lyons, Bland’s fifteen-year-old brother, arguing. Bland stated that he saw Jackson holding Lyons by the collar, and he heard Jackson yelling: “Give me my shit. You broke off in my house. You stole my shit. Where’s my shit at?” Bland proceeded to run into the house, where Bland testified that he and his cousin, Jonathan Jackson, grabbed Jackson and pushed him out of the house. Bland stated that after he and Jonathan removed Jackson from the house, Jackson told them that he was “fixing to go get my scrap.” Jackson further stated that “when I get back, every mother f* *ker better be gone.”

¶ 5. Bland testified that Jackson left, and Bland remained outside of the house and talked to Preston Qualls. While talking to Qualls, Bland stated that he heard someone say, “there he go [sic] right there.” Bland observed Jackson walking down Ken Karyl Avenue, “coming off the hill with a rifle.” Bland testified that Jackson stopped, raised the rifle, and started shooting. Lucius testified that he heard one shot, followed by four or five shots a few minutes later. Bland ducked, and Qualls ran in between the houses. After the shooting stopped, Bland stated that he ran to Lucius’s house and saw Denise “sliding down the wall, and she was holding her chest.” Bland held Denise and screamed for help. Bland heard Denise gasp, and he put his hand on her stomach. Bland testified that he “felt like some kicks in her stomach, and then the kicks just stopped.”

¶ 6. Vicksburg Police Officer Eric Proctor arrived first on the scene. Officer Proctor testified that he spoke to Bland, who seemed “very hysterical, upset.” Officer Proctor stated that Bland told him he heard shots, but he never mentioned a suspect. However, in an interview with Investigator Ken Smith, conducted approximately two hours after the shooting, Bland identified Jackson as the shooter, and he reported that he had seen Jackson seconds before the shooting started. Lieutenant Linda Hearn of the Vicksburg Police Department arrived on the scene approximately an hour after the shooting and found twenty-one shell casings lying in the street on Ken Karyl Avenue; she also located three nine-millimeter shell casings on the opposite side of the street.

¶ 7. A neighbor, Brenda Shelby, also testified that she saw Jackson with a large rifle in the same vicinity where over twenty of the shell casings were found. Shelby had previously dropped her children off at her home on Royal Street, which intersects Ken Karyl Avenue, and proceeded to drive to the grocery store. On the way to the store, Shelby testified that she saw Jackson get out of a car and pull a gun out of the back of the car. Shelby stated that she told Jackson, “don’t get yourself into any trouble,” but he just stared at her. Shelby drove to a gas station to call the police, but as she began to call, she saw police cars drive by and heard an ambulance. Shelby immediately drove back home to check on her children. Shelby testified that police officers never contacted her regarding the shooting, and she never contacted the police department. The first time that Shelby was contacted for information regarding the shooting was by Assistant District Attorney Dewey Arthur.

¶ 8. On the day after the shooting, Lieutenant Hearn responded to a call from 2630 Ken Karyl Avenue, where the police had found the body of Qualls in the backyard of a house, which was located approximately eighty-four feet from where Denise had been shot. The State presented evidence at trial to show that Qualls’s gunshot wounds were inflicted during the same time period as the incident that had killed Denise and her unborn child.

¶ 9. Early the following morning, June 27, 2008, Jackson turned himself over to the police, and a grand jury subsequently indicted him on three counts of depraved-heart murder. Following the trial held on March 23-25, 2009, the jury convicted Jackson of three counts of depraved-heart murder and sentenced him to three consecutive life sentences. Jackson subsequently filed a motion for a JNOV or, in the alternative, a motion for a new trial. The circuit court entered an order denying these post-trial motions on March 30, 2009. Jackson now appeals.

DISCUSSION

I. Whether the circuit court erred in refusing to grant Jackson’s motion for a new trial or, alternatively, motion for a JNOV.

¶ 10. Jackson argues that the circuit court erred in denying his motion for a new trial, claiming that the overwhelming weight of the evidence failed to support the jury’s verdict. Jackson also argues that the circuit court erred in denying his motion for a JNOV, alleging that the facts and inferences presented at trial were legally insufficient to prove Jackson’s guilt beyond a reasonable doubt.

¶ 11. The Mississippi Supreme Court addressed the difference between a motion for a JNOV, as opposed to a motion for a new trial, in stating: “While a motion for a judgment notwithstanding the verdict is considered with regard! ] to the legal sufficiency of the evidence, a motion for a new trial delves into the overwhelming weight of the evidence.” McLendon v. State, 945 So.2d 372, 384 (¶ 34) (Miss.2006) (citing Bush v. State, 895 So.2d 836, 843-44 (¶ ¶ 16-19) (Miss.2005)). Therefore, Jackson’s motion for a JNOV and Jackson’s motion for a new trial will be addressed separately with the proper application of the correct standard of review.

A. Motion for a New Trial

¶ 12. We note that for a verdict to survive, motions for a new trial require “[a] greater quantum of evidence favoring the State.” Dilworth v. State, 909 So.2d 731, 737 (¶ 20) (Miss.2005). This standard requires reversal if the circuit court abused its discretion in denying the motion for new trial. Id. We, therefore, defer to the discretion of the circuit judge, and “we will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” McLendon, 945 So.2d at 385 (¶ 40) (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). Thus, the power to grant a new trial should be invoked only in exceptional cases where the evidence preponderates heavily against the verdict. Bush, 895 So.2d at 844 (¶ 18) (citing Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss. 2000)).

¶ 13. Jackson argues that the State failed to raise any reasonable inferences during the trial to support the jury verdict. Jackson specifically points to inconsistencies between Bland’s statements to the police and his testimony at trial. Jackson argues that when Officer Proctor interviewed Bland about the shooting, immediately after responding to the 911 call, Bland told Officer Proctor that he had heard gunshots. Jackson asserts Bland never identified Jackson as the shooter. However, during Investigator Smith’s interview with Bland, approximately two hours after the shooting, Bland identified Jackson as the shooter, stated that he saw the top of Jackson’s head, and also stated that he saw Jackson firing shots. Then, at trial, Bland testified that he saw Jackson, “totally visible,” raise his rifle and start shooting. Jackson argues that these inconsistent statements relate to the credibility of Bland’s testimony and provide support for his argument that the jury verdict is contrary to the overwhelming weight of the evidence and, thus, warrants reversal.

¶ 14. Jackson next points to the testimony of Shelby, claiming that her testimony suffers from the same “fatal inferential credibility issues” as Bland’s testimony due to her failure to come forward to the police after the shooting. At trial, Shelby testified that the police department never contacted her regarding the shooting; she stated that she never spoke to anyone about the shooting until Assistant District Attorney Arthur contacted her nine months after the shooting. When asked about her failure to contact police regarding the shooting, Shelby testified that she “was scared for [her] and her kids,” and that she had “known [Jackson’s] family forever.” During cross-examination, Jackson’s attorney attempted to question Shelby about her statements to Assistant District Attorney Arthur, where he transcribed that Shelby told him that she had heard gunshots on the day of the shooting. Shelby testified that she saw Jackson with the gun, but she never heard any gunshots. Both attorneys approached the bench, and Assistant District Attorney Arthur admitted that he might have made a mistake when transcribing his interview with Shelby. However, at trial, Assistant District Attorney Arthur stipulated to the document containing Shelby’s previous statements to him, and the circuit judge entered the document into evidence.

¶ 15. Despite Jackson’s arguments attacking the credibility of Bland’s and Shelby’s testimonies, we note that the Mississippi Supreme Court has held that “the jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Billiot v. State, 454 So.2d 445, 463 (Miss.1984). Wfliere the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, we note that it is the jury’s duty to resolve the conflict. Nicholson v. State, 523 So.2d 68, 70-71 (Miss. 1988); Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979); Shannon v. State, 321 So.2d 1, 2 (Miss.1975); Bond v. State, 249 Miss. 352, 356-57, 162 So.2d 510, 512 (1964). As stated above, a jury’s findings will not be disturbed by this Court unless “the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” McLendon, 945 So.2d at 385 (¶ 40). In addition, in Mask v. State, 996 So.2d 106, 111-12 (¶26) (Miss. Ct.App.2008), we held that the verdict was not against the overwhelming weight of the evidence where the impeachment of a witness at trial “involved insignificant details that happened prior to the shooting.”

¶ 16. Jackson also submits that the physical and forensic evidence contradicted and discredited eyewitness testimony at trial. Jackson claims that since investigators failed to recover any gunshot residue off of his hands after he was taken into custody the morning after the shooting, the forensic evidence did not establish him as the shooter. In addition, Jackson asserts that his fingerprints were not found on any of the twenty-six rifle shell casings recovered by the police.

¶ 17. However, we note that Lieutenant Robert Stewart of the Vicksburg Police Department testified that the instructions on the gunshot-residue kit warn that after four hours, gunshot residue could either deteriorate or no longer be present on living subjects. The testimony then reflected that the crime lab typically does not perform gunshot-residue tests more than four hours after the discharge of a firearm. Lieutenant Stewart testified that despite this warning, he proceeded to perform a gunshot-residue test on Jackson approximately twelve hours after the shooting. Lieutenant Stewart stated that Jackson informed him that he had bathed prior to submitting to the gunshot-residue test. James Burchfield, a forensic scientist at the Mississippi Crime Laboratory, also testified regarding the four-hour rule regarding gunshot-residue testing. He opined that it would be highly unlikely to find gunshot residue on a person twelve hours after having fired a weapon. Regarding Jackson’s claim that his fingerprints were not found on the shell casings, Lieutenant Stewart testified that the police department seldom recovers fingerprints on shell casings due to the oil and powder residue that accumulate on the casings after they are fired. Despite Jackson’s argument that the lack of physical evidence provides proof of his innocence, we note that in Bownes v. State, 861 So.2d 1061, 1063 (¶ 6) (Miss.Ct.App.2003) (citation omitted), this Court held that “the absence of physical evidence does not negate a conviction where there is testimonial evidence.” The verdict herein is supported by the overwhelming weight of the evidence. We, therefore, find no merit to Jackson’s assertion that the circuit judge abused his discretion in denying the motion for a new trial.

B. Motion for a JNOV

¶ 18. In turning to the denial of Jackson’s motion for a JNOV, we note that this Court applies an abuse-of-discretion standard of review for post-trial motions. Dilworth, 909 So.2d at 736 (¶ 17). In a motion for a JNOV, we examine whether the verdict was based on legally sufficient evidence. Bush, 895 So.2d at 843 (¶ 16). In Bush, the supreme court explained that when determining whether the evidence is sufficient to support a conviction, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The evidence is insufficient to sustain a conviction where it fails to meet this test. Id. As a result, “the applicable question is whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” McLendon, 945 So.2d at 384 (¶35) (citing Dilworth, 909 So.2d at 736 (¶ 17)). On appeal, the reviewing court is not required “to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Id.

¶ 19. In addition, when the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for us to reverse and render. Dilworth, 909 So.2d at 736 (¶ 17); Edwards v. State, 469 So.2d 68, 70 (Miss.1985). On the other hand, when the facts and inferences considered reveal a result in which “reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence is deemed sufficient. Dilworth, 909 So.2d at 736 (¶ 17).

¶ 20. Mississippi Code Annotated section 97-3-19(l)(b) (Rev.2006) defines depraved-heart murder as:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual;

Jackson argues that the State had to prove that Jackson killed Denise, her unborn child, and Qualls while in the commission of an eminently dangerous act, and he submits that the State failed to meet this burden. Jackson claims that after hearing the- inconsistencies between the eyewitness testimony and the forensic evidence, no reasonable juror could have found him guilty of murder. Jackson also alleges that the forensic evidence failed to identify him as the shooter.

¶ 21. However, a review of the record shows that the State presented evidence that Denise and Qualls died as the result of gunshot wounds. Byron McIntyre, a forensic scientist at the Mississippi Crime Laboratory, testified that Denise and Qualls were killed by the same type of bullets and that the bullets were fired from the same weapon, an AK-47 rifle. Dr. Steven Hayne further testified that Denise’s gunshot wound caused the death of her unborn fetus. Also, as previously stated, Bland provided testimony that moments before the shooting, he heard Jackson threaten to “go get [his] scrap,” and then saw Jackson fire a rifle into the neighborhood where Qualls and Denise were shot. Shelby also testified that she observed Jackson retrieve a gun from a car moments before the shooting occurred.

¶ 22. In the present case, we find that sufficient evidence exists to support the jury verdict finding Jackson guilty of three counts of depraved-heart murder. Accordingly, we find no abuse of discretion by the circuit court in denying either of Jackson’s post-trial motions. This issue lacks merit.

II. Whether the circuit court violated Mississippi Rule of Evidence 403 when it admitted photographs of the victims’ bodies.

¶ 23. Jackson next argues that the circuit court violated Mississippi Rule of Evidence 403 in admitting three photographs of the victims — Denise, her unborn fetus, and Qualls — which were introduced during the testimony of two of the State’s witnesses. With respect to the photographs in issue, the photograph of Qualls was a closeup, color photograph of his head and face, which revealed that his body had already started to decompose by the time the police found him. The photograph of Denise showed the inside of the house where she died, and it shows her topless body with medical tubes inserted in it. The photograph of Denise’s unborn fetus was an autopsy photograph taken at Dr. Hayne’s laboratory. Jackson claims that these photographs rose to the level of graphically disturbing, and he alleges that the State tactically contrived the admission of the photographs into evidence to inflame the jury. He asserts that the photographs possessed no probative value.

¶ 24. Mississippi Rule of Evidence 403 states that: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ... or needless presentation of cumulative evidence.” In McNeal v. State, 551 So.2d 151, 159 (Miss. 1989), the Mississippi Supreme Court established two guidelines for the admission of “gruesome” photographs, stating: “(1) whether the proof is absolute or in doubt as to [the] identity of the guilty party, as well as, (2) whether the photographs are necessary evidence or simply a ploy on the part of the prosecutor to arouse the passion and prejudice of the jury.” Additionally, the supreme court held: “Some ‘probative value’ is the only requirement needed to buttress a trial judge’s decision to allow photographs into evidence.” Parker v. State, 514 So.2d 767, 771 (Miss. 1986).

¶ 25. The supreme court further established that the admissibility of photographs rests within the sound discretion of the circuit court. Manix v. State, 895 So.2d 167, 177-78 (¶ 30) (Miss.2005). Additionally, we will uphold the decision of the circuit judge unless an abuse of discretion occurs. Id. We acknowledge that the discretion of a circuit judge “runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Id.

¶ 26. The record shows that in the present case, the circuit judge reviewed the photographs in his chambers before the trial, and he also conducted a Rule 403 balancing test, wherein he carefully weighed the probative value of the evidence against its potential prejudice to Jackson. The circuit judge acknowledged that the State bore the burden of proving the elements of the indictment, including the following: Jackson fired a weapon multiple times toward Denise’s residence, which resulted in Denise’s death and the death of her unborn child; Jackson fired a weapon multiple times in the direction of Qualls, which resulted in Qualls’s death; and these acts constituted acts which were eminently dangerous to others, thus, evincing a depraved heart. Additionally, the State asserted that the photographs constituted necessary evidence to corroborate the testimony of the witnesses for identification, cause of death, and circumstantial purposes. The State charged Jackson with three counts of depraved-heart murder; thus, the circuit judge concluded that the photographs possessed probative value as to material issues in controversy or an element that the State must prove. The circuit judge also ruled that Jackson could not force the State to stipulate to the fact that an unborn child had died. The circuit court found that this fact pertained to an element of the offense charged in the indictment. Since the State bore the burden to prove each element of the charged offense beyond a reasonable doubt, then the circuit court held that State could enter the photographs into evidence as probative, relevant evidence to prove these elements.

¶ 27. In the instant case, we find no abuse of discretion by the circuit judge in determining that the photographs of the victims’ bodies had substantial probative value. The photographs of Denise and Qualls identified the victims, and the photographs showed the bodies as the police found them at the crime scene. The State offered the photograph of Qualls into evidence, during the cross-examination of Lieutenant Hearn, in an attempt to counter questions from the defense about whether a possibility existed that Qualls did not receive his gunshot wounds on the same day as Denise. The State offered the photograph of Qualls’s decomposing face to show the exposure of his body to the weather elements, thus, providing support to the State’s argument that Jackson had shot Qualls on same day as Denise. The photograph of Denise shows her pregnant body lying on the floor inside of her house and also depicts the injuries she received as a result of the shooting. The State offered this photograph into evidence to meet its burden of proving the elements of depraved-heart murder by showing that Jackson indeed shot into Denise’s residence and killed her. Finally, the State offered the photograph of the third victim, Denise’s unborn fetus, during Dr. Hayne’s testimony to aid in his explanation of how the unborn fetus died. The State also offered the photograph for the purpose of showing proof that Denise was pregnant when she was shot and that her unborn fetus had died as a result of the gunshot wound received by Denise.

¶ 28. All three photographs also helped corroborate the State’s assertion of the manner, time, and cause of death. Thus, we cannot say the admission of the photographs, either individually or collectively, prejudiced Jackson’s right to a fair trial. Moore v. State, 932 So.2d 833, 838 (¶ ¶ 10-14) (Miss.Ct.App.2005). Accordingly, no abuse of discretion exists in the circuit court’s admission of the photographs. Thus, this assignment of error is without merit.

¶ 29. In conclusion, we find both of Jackson’s assignments of error lack merit; therefore, we affirm Jackson’s convictions and sentences.

¶ 30. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF THREE COUNTS OF DEPRAVED-HEART MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS ON EACH COUNT WITHOUT THE POSSIBILITY OF PAROLE WITH THE SENTENCES TO RUN CONSECUTIVELY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J, LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.

      . Bland testified that he understood the word “scrap” to mean a pistol or gun.

      . We note the record reflects that during his testimony, Bland explained the inconsistencies in his statements to Officer Proctor and Investigator Smith. Bland provided his statement to Officer Proctor moments after seeing his fiancée and unborn child die. Bland testified that at the time he spoke to Officer Proctor, he was more concerned with the condition of his loved ones than giving an accurate statement about the details of the shooting.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Michael Warren WILLIE, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01918-COA.
    Court of Appeals of Mississippi.
    April 19, 2011.
    Rehearing Denied June 14, 2011.
    Certiorari Denied Sept. 8, 2011.

      Michael Warren Willie, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This case is before this Court on appeal from the Oktibbeha County Circuit Court’s denial of Michael Warren Willie’s motion for post-conviction relief (PCR). Aggrieved by the denial, Willie now appeals, arguing that he was convicted under a defective indictment and that his sentence is illegal. However, because the circuit court lacked jurisdiction over Willie’s PCR motion, we vacate the judgment of the circuit court and remand this case to the circuit court to dismiss for lack of jurisdiction.

FACTS

¶ 2. In 1989, a jury convicted Willie of capital murder and sentenced him to death. Willie v. State, 585 So.2d 660, 664 (Miss.1991) (Willie I), overruled by King v. State, 784 So.2d 884 (Miss.2001). Willie appealed his conviction and sentence to the Mississippi Supreme Court. The supreme court affirmed his conviction, but it remanded the case for a new sentencing hearing. Willie I, 585 So.2d at 682. On remand, Willie was re-indicted as a habitual offender, pled guilty, and was sentenced as a habitual offender to life imprisonment without the eligibility for parole or probation. Willie v. State, 738 So.2d 217, 218 (¶ 4) (Miss.1999) (Willie II). Later, he filed a PCR motion, which the circuit court denied. Id. at (¶5). Willie appealed his PCR case to the supreme court, which remanded the case for a new sentencing hearing on his original indictment since re-indicting Willie was a violation of the double-jeopardy clause. Id. at 221 (¶ 20). At this new sentencing hearing, the indictment was amended to charge Willie as a habitual offender; Willie was, once again, sentenced to life without the eligibility for parole or probation. Willie v. State, 876 So.2d 278, 278 (¶1) (Miss.2004) (Willie III).

¶ 3. Undeterred, Willie again appealed to the supreme court. He challenged his sentence as a habitual offender and alleged that the circuit court had erred in granting the State’s motion to amend the indictment. On his third appeal, the supreme court affirmed his sentence of life without the possibility of parole or probation. Id. at 280 (¶ 9). It was after the supreme court’s affirmance of his sentence in 2004 that Willie filed his current PCR motion in the circuit court. The circuit court denied his PCR motion on the ground that it was time-barred under Mississippi Code Annotated section 99-39-5 (Supp.2010). Willie appeals once again.

DISCUSSION

¶ 4. Although neither party raised the jurisdictional issue in its brief, it is well established that it is “[t]he duty of this Court to raise the question which involves jurisdiction, on its own motion[.]” Slater v. Bishop, 251 Miss. 306, 308, 169 So.2d 465, 467 (1964).

¶ 5. Pursuant to Mississippi Code Annotated section 99-39-7 (Supp.2010), before a movant in Willie’s circumstance may file a PCR motion in the circuit court, he must first seek and obtain permission to do so from the supreme court. The statute reads, in pertinent part, as follows:

Where the conviction and sentence have been affirmed on appeal or the appeal dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, convened for said purpose either in term time or in vacation, and an order granted allowing the filing of such motion in the trial court.

Id.

¶ 6. The supreme court affirmed Willie’s conviction of capital murder in 1991 and then later affirmed his sentence of life without the eligibility for parole or probation in 2004. By having both his conviction and sentence affirmed by the supreme court, Willie’s case falls squarely under the language found in Mississippi Code Annotated section 99-39-7; thus, he was required first to obtain permission from the supreme court before he could properly pursue a PCR motion in the circuit court.

¶ 7. Although required by statute to seek this permission, the record before us is absolutely devoid of any such request from Willie to the supreme court much less an order from the supreme court allowing Willie to pursue his PCR motion in the circuit court. We have held:

[A]s to post-conviction-relief motions brought after an unsuccessful direct appeal of a criminal conviction, the failure of the movant to obtain the prior permission of the supreme court to file the motion as set out in section 99-39-27 [Leave to Proceed in Trial Court] deprives the circuit court — and, necessarily, this Court — of authority to reach the merits of the motion.

Epps v. State, 837 So.2d 243, 245 (¶6) (Miss.Ct.App.2003).

¶ 8. Because Willie failed first to obtain permission from the supreme court before filing his PCR motion as required under Mississippi Code Annotated section 99-39-7, the circuit court lacked jurisdiction to hear Willie’s PCR motion. Accordingly, we vacate the judgment of the circuit court and remand this case to the circuit court to dismiss for lack of jurisdiction.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS VACATED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.

      . Willie's status as a habitual offender came from a previous conviction of grand larceny in Webster County, Mississippi, on June 27, 1989, and a sentence of three years in the custody of the Mississippi Department of Corrections (MDOC); he also was previously convicted of grand larceny in Tallahatchie County, Mississippi, on November 9, 1989, and sentenced to serve three years in the custody of the MDOC.


author: IRVING, P.J.,

text:
    Eric DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00162-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.
    Rehearing Denied Sept. 6, 2011.

      Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. Eric Davis was convicted, in the Warren County Circuit Court, of possession of a firearm by a convicted felon and murder after he shot his next-door neighbor’s son, Devin Moore. Feeling aggrieved by his conviction, Davis appeals and alleges that: he was entitled to a jury instruction on the defense of necessity regarding the possession of a firearm by a felon; the weight of the evidence is against his conviction, and the circuit court erred in refusing to allow testimony regarding the presence of tetrahydrocannabinol (THC) in Moore’s blood at the time of the shooting.

¶ 2. We find no merit to Davis’s contentions and affirm the circuit court’s judgment.

FACTS

¶ 3. Davis had a perpetually combative relationship with his neighbor, Helen Williams. Williams was Moore’s mother, although Davis had apparently never spoken to Moore prior to the shooting. Regardless, Davis testified that Williams told him multiple times that Davis “was lucky that she was keeping her boys off [his] ass.” Davis stated that due to the acrimonious relationship between him and Williams, law enforcement was called at least three times, two of which were in May and June 2008. Davis testified that Williams came to his house with a man a few days before the shooting and threatened to kill him. Davis stated that the man with Williams had a large handgun. Davis testified that this incident caused him to procure a pistol for his safety because he feared for his life. Davis stated that he kept the pistol locked in a toolbox in a non-functioning truck that was in his yard.

¶ 4. On June 25, 2008, the evening of the shooting, Davis was working in his front yard when Moore approached him. Davis testified that Moore said, “Didn’t I tell you that I was going to kill you if you said something else to my mother” and “I’m going to kill you,” and then brandished a firearm. Despite having stated that he kept his pistol locked in a toolbox, Davis testified that he had kept his pistol with him for his safety and that he picked the pistol up from the ground after Moore approached him. At that point, Davis shot Moore repeatedly. Moore was shot five times: in his chest, left thigh, right buttock, mid back, and upper left back. Notably, three of these entry wounds were located in Moore’s back. After shooting Moore, Davis fled the scene and disposed of the murder weapon, which was never recovered. Davis turned himself in to the police shortly after fleeing. Paramedics arrived soon after Moore was shot. One of the paramedics who attempted to revive Moore testified that Moore was essentially dead when they arrived, although he was not pronounced dead until he reached the hospital.

¶ 5. Angelica Burgess, Moore’s friend, testified that she was on the phone with Moore shortly before the shooting. She stated that she heard Moore say: “No, home boy, I don’t have any beef with you,” and then, “No, it wasn’t me that pulled a gun on you.” The line then went dead. Burgess testified that she learned the next day that Moore had been killed. Documents in the record show that Burgess was on the phone with Moore approximately three minutes before 911 was called.

¶ 6. Some neighborhood boys were nearby at the time of the shooting; although their stories were somewhat inconsistent, they generally testified that they heard gunshots and then observed Davis shoot Moore several times as Moore lay on the ground. One of the young men, Justin Williams, was eighteen years old at the time of the shooting and was standing on a corner near Davis’s home with some friends when they heard gunshots being fired. Justin testified that they ran toward the sound of the gunshots and saw Davis shooting Moore. Justin explained that Moore was face-down on the ground for the final gunshots. Williams also heard the gunshots and ran outside. Williams testified that she asked Davis why he had shot her son, and Davis responded that Moore also had a gun.

¶ 7. Justin testified that he moved the gun that Moore had been holding after Williams instructed him to do so. Williams testified that she observed the gun when she went to hold Moore and that she asked for someone to move the gun away from her. Despite any efforts to move or dispose of the gun, it was discovered in Davis’s front yard by law enforcement. Gregory Wright, one of Justin’s friends, was with him at the time of the shooting. Wright testified that everyone else that they were with ran away when they heard the gunshots. Wright testified, like Justin, that he observed Moore being shot as someone stood over him. Wright identified Davis as the shooter. Although Wright and Justin both testified that Moore was face down when he was shot, Williams admitted that she told the police that Moore was face up when she ran to him.

¶ 8. Lieutenant Linda Hearn, with the Vicksburg Police Department, testified at trial regarding the size and locations of various blood drops and pools. During her testimony, the jury was taken to the scene of the shooting to observe the crime scene while Lieutenant Hearn and the attorneys referred to the actual scene. Doctor Stephen Hayne, a pathologist, testified that he examined Moore’s body. Dr. Hayne described five gunshot wounds, three of which were located in Moore’s back. Dr. Hayne opined that several of Moore’s wounds were consistent with Moore “lying prone face down” at the time he was shot, although Dr. Hayne testified that the position of the wounds could also be consistent with other scenarios.

¶ 9. Rochelle Williams, Davis’s fiance, testified at trial. After first attempting to plead the Fifth Amendment, Rochelle essentially testified that she could not remember anything that had happened on the night of the shooting. Rochelle’s pretrial statement to the police was then played for the jury. In that statement, Rochelle told the officer that, approximately ten minutes before the shooting, Davis entered their house and complained about Moore allowing Williams’s dog to defecate on Davis’s lawn.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Jury Instruction

¶ 11. Davis claims that the circuit court improperly denied his proposed necessity defense to the charge of felonious possession of a firearm. “[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.” Newell v. State, 49 So.3d 66, 74 (¶ 20) (Miss.2010) (quoting Hearn v. State, 3 So.3d 722, 738 (¶ 45) (Miss.2008)).

¶ 12. There is no dispute as to Davis’s status as a convicted felon. Additionally, although the firearm that Davis used to shoot Moore was never presented at trial, as it was never recovered, there was sufficient evidence to establish that Davis possessed a firearm on the night in question. In fact, Davis admitted that he had purchased a pistol to protect himself. In other words, there is little doubt that Davis was a convicted felon in possession of a firearm. However, a defendant can prove the defense of necessity if he shows: “(1) the act charged was done to prevent a significant evil; (2) there ... was no adequate alternative; and (3) the harm caused was not disproportionate to the harm avoided.” Stodghill v. State, 892 So.2d 236, 238 (¶ 8) (Miss.2005) (citing McMillan v. City of Jackson, 701 So.2d 1105, 1107 (¶ 8) (Miss.1997)). This Court has applied the general rule regarding a defense of necessity in the context of a felon in possession of a firearm. See Mayers v. State, 42 So.3d 33, 41 (¶ 25) (Miss.Ct.App.2010); Williams v. State, 953 So.2d 260, 263 (¶ 9) (Miss.Ct.App.2006).

¶ 13. We find that the circuit court properly denied Davis’s proposed necessity instruction, as Davis provided an insufficient factual basis to support the instruction. Although there was testimony about an alleged threat by Williams days before the shooting, there is no evidence showing the necessity of obtaining a firearm. For example, Davis could have called the police in response to the alleged threat, but he made no attempt to do so. There is nothing to suggest that, at the time of the shooting, Davis attempted to retreat inside his house or pursue a course other than keeping a gun with him at all times.

¶ 14. As Davis provided an insufficient factual basis to support a necessity instruction, the circuit court acted properly in denying his proposed instruction. This contention of error is without merit.

2. Weight of the Evidence

¶ 15. In looking at the weight of the evidence, we will allow a jury’s verdict to remain in effect unless “to allow it to stand would sanction an unconscionable injustice.” Long v. State, 52 So.3d 1188, 1192 (¶ 11) (Miss.2011) (quoting Boyd v. State, 977 So.2d 329, 336 (¶ 27) (Miss. 2008)). In considering the weight of the evidence, we review the evidence “in the light most favorable to the verdict.” Id. (quoting Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005)).

¶ 16. Davis contends that the verdict is against the overwhelming weight of the evidence because he acted in self-defense. Ultimately, “the issue of justifiable self-defense presents a question of the weight and credibility of the evidence, rather than sufficiency, and is to be determined by [the] jury.” Jones v. State, 39 So.3d 860, 865 (¶ 28) (Miss.2010) (citation omitted). Furthermore, “[o]n issues of witness credibility, the jury determines the weight and credibility of each witness’s testimony.” Thomas v. State, 48 So.3d 460, 469 (¶ 20) (Miss.2010) (citing Nelson v. State, 10 So.3d 898, 905 (¶29) (Miss.2009)). Although conflicting testimony was presented, the relevant facts weighing in favor of the verdict are: (1) Moore was shot five times, including three wounds to his back; (2) Davis admitted to shooting Moore; (3) multiple eyewitnesses testified that they observed Davis standing over Moore and firing into Moore’s prone body; (4) although Davis testified about receiving a threat to his life, he never called the police or attempted to resolve the threat in any other way; (5) Burgess was on the phone with Moore shortly before he was shot and heard Moore telling Davis that he did not have any problem with Davis; and (6) Davis disposed of the murder weapon before turning himself in to the police.

¶ 17. After hearing all of the evidence, the jury determined that Davis was guilty of murder. Implicit in that finding was a rejection of the notion that Davis had acted in self-defense. We cannot impose our judgment for the jury’s, as there is nothing to suggest that allowing Davis’s conviction to stand will sanction an unconscionable injustice.

¶ 18. This contention of error is also without merit.

3. THC Evidence

¶ 19. Finally, Davis contends that the circuit court erred in disallowing evidence regarding the presence of THC in Moore’s blood at the time of his autopsy. Davis contends that the traces of THC in Moore’s blood “suggest ... that Moore may have been under the influence of a mind-altering substance at the time of the shooting and [was] possibly the initial aggressor.”

¶ 20. Davis acknowledges our holding in Rouster v. State, 981 So.2d 314, 318 (¶ 12) (Miss.Ct.App.2007), wherein we held that a circuit court was correct in refusing to admit evidence that two of the victims had been smoking marijuana moments before their confrontation with the defendant. In Rouster, we noted that the defendant had failed to offer any evidence showing that “smoking marijuana increases a person’s propensity for violence generally.” Id. Davis contends that the same holding should not apply to him because “unlike the defendant in Rouster, Mr. Davis offered his own testimony suggesting that Moore had threatened him with his ... pistol.... ” However, Davis’s testimony that Moore threatened him with a pistol still offers nothing to show that marijuana had any effect on Moore’s propensity for violence. Accordingly, the circuit court properly refused to allow this evidence.

¶ 21. There is no merit to this contention.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE AND COUNT II, FELON IN POSSESSION OF A FIREARM, AND SENTENCE OF FIVE YEARS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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

      . Burgess's name is also shown as "Angela” at points in the record.

      . Justin is not related to Moore or Williams.


author: GRIFFIS, P. J.,

text:
    William Bryan NELSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00097-COA.
    Court of Appeals of Mississippi.
    June 7, 2011.
    Rehearing Denied Sept. 6, 2011.

      Edmund J. Phillips Jr., Newton, Kevin D. Camp, Jackson, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P. J.,

for the Court:

¶ 1. William Bryan Nelson appeals his conviction for his third DUI offense within five years, in violation of Mississippi Code Annotated section 63-ll-30(2)(c) (Supp. 2010). Nelson argues that: (1) the State failed to prove that he committed three DUI offenses within five years, and (2) the indictment failed to allege the essential elements of the crime with certainty. We find no error and affirm.

FACTS

¶ 2. On December 27, 2008, Nelson was stopped at a roadblock in Carthage, Mississippi. Officer Eric Lewis testified that Nelson admitted he had been drinking and that his driver’s license was suspended. Officer Lewis said that Nelson slurred his speech and held onto the side of the car for balance as he walked. Officer Lewis administered a Breathalyzer test, which was positive for alcohol. Nelson was arrested and taken to the Leake County Jail where Officer Lewis administered an In-toxilyzer 8000 test. The test revealed Nelson’s blood-alcohol level was 0.13 percent.

¶ 3. At trial, the State introduced evidence of two previous convictions. First, the State introduced a copy of an Abstract of Court Record from the Richland Municipal Court. This Abstract revealed that Nelson was previously convicted of a DUI offense on June 7, 2006, in the Richland Municipal Court. The abstract also indicated that Nelson’s “arrest date” was February 6, 2006. Second, the State introduced an abstract from the Rankin County Justice Court that revealed a second DUI conviction on June 19, 2006, for an offense that occurred on March 13, 2006.

¶ 4. The jury found Nelson guilty of three DUI offenses within five years. He was sentenced to two years in the custody of the Mississippi Department of Corrections with 120 days to serve in the Leake County Jail and the remainder of the sentence to serve on house arrest. Nelson was also ordered to pay a $2,000 fine. It is from this judgment that Nelson appeals.

ANALYSIS

¶ 5. Before we reach the merits of Nelson’s argument, we must address the procedural history of Nelson’s appeal. Nelson filed his appellate brief with the aid of his counsel, Edmund Phillips Jr. His brief raised two issues on appeal: (1) whether the State failed to prove that he had committed three DUI offenses within five years and (2) whether the indictment failed to allege the essential elements of the crime with certainty. The State then responded to the issues raised by Nelson.

¶ 6. After the State filed its brief, a second attorney, Kevin Camp, filed an entry of appearance on behalf of Nelson. Through Camp, Nelson filed his reply brief. On the same day that the reply brief was filed, Nelson filed a motion to address new issues in his reply brief. That motion was later denied by this Court. However, the reply brief had already been filed, and it raised several entirely new issues that were not addressed in Nelson’s initial brief.

¶ 7. The reply brief argued that Nelson’s initial attorney of record had been ineffective in his failure to raise in Nelson’s initial brief those issues contained in the reply brief. In fact, in his reply brief, Nelson admitted that the issues raised in his first brief were without merit.

¶ 8. We find that not only was Nelson’s request to raise new issues in his reply brief denied by this Court, but the Mississippi Supreme Court has adopted the rule of the United States Fifth Circuit Court of Appeals, stating: “We will not consider issues raised for the first time in an appellant’s reply brief.” Sanders v. State, 678 So.2d 663, 669-70 (Miss.1996) (quoting United States v. Anderson, 5 F.3d 795, 801 (5th Cir.1993)). Thus, this Court will not address the new issues addressed in Nelson’s reply brief. However, despite Nelson’s own admission that his original issues lack merit, we will briefly explain why we agree.

1. Whether the State failed to prove that he committed three DUI offenses within five years.

¶9. Nelson claims that the State failed to meet its burden of proof that he committed three DUI offenses within five years because the abstract of the conviction in the Richland Municipal Court did not disclose the date of the offense or arrest.

¶ 10. In reviewing a challenge of legal sufficiency, this Court must determine whether any rational juror could have found that the State proved each and every element of the crime charged beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). The State must be given the benefit of all reasonable inferences that may be drawn from the evidence. Christian v. State, 859 So.2d 1068, 1071 (¶ 12) (Miss.Ct.App.2003) (citation omitted).

¶ 11. Nelson was charged under section 63-ll-30(2)(c) which states: “Except as otherwise provided in subsection (3), for any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felony.” This requires that the State prove two things for each conviction. First, the offenses resulted in convictions for DUI; and second, the offenses for which the defendant was previously convicted occurred within five years of the charged offense.

¶ 12. Nelson’s argument is partly correct. The record shows that the abstract does not state the date of the offense. And he is correct that section 63 — 11— 30(2)(e) requires the State to prove that the date of offense for each of the three convictions occurred within five years of each other, not the date of the convictions. However, the abstract of Nelson’s conviction in the Richland Municipal Court does include the date of arrest. As the State asserts, a reasonable juror could infer that the date of arrest for the DUI was the same date that the offense occurred. See Smith v. State, 950 So.2d 1056, 1058 (¶ 8) (Miss.Ct.App.2007) (noting that the date of the offense is normally the date of arrest).

¶ 13. We find that the State presented sufficient evidence for the jury to find the necessary elements to convict Nelson of three DUI offenses within five years. Accordingly, we conclude that this issue has no merit.

2. Whether the indictment failed to allege the essential elements of the crime with certainty.

¶ 14. Nelson also claims that his indictment failed to state the essential elements of the crime with certainty. Specifically, he says that the indictment alleged that he had .08% or more alcohol in his blood by “weight volume.” Nelson argues that weight and volume are different characteristics of matter. He says there is no such measurable characteristic as the weight volume of alcohol; therefore, his indictment that used the phrase weight volume was vague. The State responds that the term weight volume has been used in several Mississippi statutes and cases concerning a person’s blood-alcohol level.

¶ 15. Whether the indictment sufficiently notified the defendant of the charge against him is a question of law reviewed under a de novo standard. Winters v. State, 52 So.3d 1172, 1174 (¶ 7) (Miss.2010).

¶ 16. The language of the DUI statute says that it is unlawful for a person to drive with “an alcohol concentration of eight one-hundredths percent (.08%) or more-” Miss.Code Ann. § 63-11-30(l)(e) (emphasis added). While the statute does not use the term weight volume, the supreme court has held that the indictment is not required to have the exact terms of the statute “if the crime can be substantially described without using them.” Winters, 52 So.3d at 1174-75 (¶ 7).

¶ 17. What is required is that the indictment “be a plain, concise and definite written statement of the essential facts constituting the offense charged and should fully notify the defendant of the nature and cause of the accusations against him.” Id. (citation and quotation omitted). The indictment clearly notified Nelson of the State’s allegation that Nelson had a .08% alcohol content in his blood. We find that the indictment was legally sufficient to charge Nelson with a DUI offense. Therefore, this issue has no merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF DUI THIRD OFFENSE AND SENTENCE OF TWO YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH 120 DAYS TO SERVE IN THE LEAKE COUNTY JAIL AND THE REMAINDER TO BE SERVED UNDER HOUSE ARREST AND TO PAY A $2,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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

      . The record does not contain a motion to withdraw from Phillips, Nelson’s first attorney.

      . See Miss.Code Ann. § 59-23-7(l)(c) (Supp. 2010). See also Weaver v. State, 713 So.2d 860, 864 (¶ 22) (Miss.1997); Fishery. City of Eupora, 587 So.2d 878, 888 (Miss.1991); Porter v. State, 749 So.2d 250 (Miss.Ct.App.1999).


author: CARLTON, J,

text:
    Carl HOLDER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00985-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.
    Rehearing Denied Aug. 30, 2011.
    Carl Holder, appellant, pro se.
    Office of the Attorney General, by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J,

for the Court:

¶ 1. Carl Holder appeals the dismissal of his motion for post-conviction relief (PCR). Holder claims that: (1) his guilty pleas were not knowingly and voluntarily entered; (2) he received ineffective assistance of counsel; and (3) he was entitled to an evidentiary hearing on his PCR motion. Finding no error, we affirm.

FACTS

¶ 2. Holder was indicted for the crimes of burglary of a dwelling and capital murder. Holder pleaded not guilty to both charges. Subsequently, the State offered Holder a plea deal that reduced the capital-murder charge to manslaughter; on March 30, 2009, Holder changed both of his previously entered pleas to guilty. Holder was then sentenced to twenty years for manslaughter and twenty years for burglary of a dwelling, with the sentences to run consecutively in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. On May 27, 2010, Holder filed a PCR motion in the Jones County Circuit Court arguing that he had entered involuntary and unintelligent pleas and that he had received ineffective assistance of counsel. In support of his motion, Holder attached the following documents: the sworn statement of Quirino Perez Hernandez, the investigator’s report, five sworn affidavits of witnesses claiming that they heard Holder’s attorneys tell Holder that he should plead guilty because the district attorney only wanted to prosecute him, the sworn affidavit of a prisoner who witnessed Holder’s co-defendants visiting with the district attorney’s office, and Holder’s sworn affidavit. The trial court dismissed Holder’s PCR motion without holding an evidentiary hearing. Aggrieved, Holder now appeals. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. Our standard of review for a dismissal of a PCR motion is well established. We .will not disturb the trial court’s dismissal of a PCR motion unless it is clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App. 2004). However, we review issues of law utilizing a de novo standard of review. Id. The trial court may dismiss a PCR motion without an evidentiary hearing where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2010).

DISCUSSION

I. Guilty Pleas and Ineffective Assistance of Counsel

¶ 5. In his first assignment of error, Holder argues that he unintelligently and involuntarily entered his guilty pleas due to the erroneous advise of his attorneys, namely, that the district attorney only sought to prosecute him on the capital-murder charge, rather than any of his other co-defendants, and that if he entered guilty pleas, he would only have to serve twelve years of the forty-year sentence. Holder also claims that his attorneys improperly induced him into entering his guilty pleas by calling upon five of his family members to convince him to enter pleas of guilt. In response, the State argues that the plea-hearing testimony clearly demonstrates that Holder was aided by two competent attorneys when he entered his knowing and voluntary pleas of guilt.

¶ 6. The Mississippi Supreme Court has stated:

A guilty plea will be found valid if it is shown to have been voluntarily and intelligently made by the criminal defendant before the trial court. King v. State, 738 So.2d 240, 241 (Miss.1999). To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea. Harris v. State, 806 So.2d 1127, 1130 (Miss.2002).

Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009).

¶ 7. The record fails to support Holder’s assertions. The record includes the following exchange, which occurred at Holder’s plea hearing:

PROSECUTOR: Does the defendant himself and through his attorneys admit there is a factual and legal basis for accepting the plea of guilty to manslaughter and to burglary from the State’s evidence?
THOMPSON: Yes, we do. We feel based upon the evidence there is a factual and legal basis for the charges.
PROSECUTOR: Mr. Holder, do you agree also?
HOLDER: Yes, sir.
PROSECUTOR: Thank you. Your Honor, that being the case, the State is ready to proceed.
THE COURT: How old ar[e] you?
HOLDER: 22[.]
THE COURT: 22?
HOLDER: Yes, sir.
THE COURT: How far did you go in school?
HOLDER: I got my GED.
THE COURT: Can you read and write?
HOLDER: Yes, sir.
THE COURT: Have you had any kind of drugs or alcohol to consume within the last 48 hours?
HOLDER: No, sir.
THE COURT: Are you telling the Court [that] you want to change your former plea of not guilty to [a] plea of guilty at this time on these two charges because you are guilty as charged?
HOLDER: Yes, sir.
THE COURT: Your attorneys have explained to you that you have a right to a trial by jury and before you could be found guilty the district attorney’s office, after jury selection, would have to present all their evidence to the jury and their testimony by their witnesses. You’d have an opportunity to view any evidence and cross-examine any witnesses. You’d have an opportunity to bring forth your own witnesses if you wanted to present your case and defense.
You’d have a right to take the stand on your own behalf. If you decided at such time as the State had finished its testimony that you did not want to bring any witnesses or that you didn’t want to take the stand, the Court would instruct the jury by written instruction that you had a right to remain silent and that you don’t have to prove anything. That you’re relying on the State’s case in chief to prove you guilty.
If you were found guilty and you were sentenced by the Court, you’d have a right to appeal to the State Supreme Court any conviction and any sentence by the Court. The Court would appoint you an attorney for that purpose if you couldn’t afford an attorney. When you plead guilty, you waive these rights. Do you understand that[?]
HOLDER: Yes, sir.
THE COURT: The reason [that] I’ve asked you these questions and made these statements to you is because I am required under the law to find out whether or not you enter your plea freely, voluntarily, and intelligently. Do you understand that?
HOLDER: Yes, sir.
THE COURT: Do you feel like you’ve done that?
HOLDER: Yes, sir.
THE COURT: Is there anything you want to say?
HOLDER: No, sir.
THE COURT: Well, the maximum sentence in the charge that’s before the Court of capital murder was — you were not seeking the death penalty, so it would have been life in the — if you were found guilty it would be life in the penitentiary without—
PROSECUTOR: That’s correct, Your Honor. We [are] not seeking the death penalty but life or life without parole was an option for the jury.
THE COURT: And if you were subsequently tried or charged with burglary, the maximum sentence in that would be 25 years.
All this has been explained to you?
HOLDER: Yes, sir.
THE COURT: Do you understand all it? Do you understand all that?
HOLDER: Yes, sir.
THE COURT: Okay. Do you feel like you’ve entered your plea freely, voluntarily, and intelligently?
HOLDER: Yes, sir.
THE COURT: Are you satisfied with your lawyers’ representation and advice?
HOLDER: Yes, sir.

¶ 8. Based upon our review of the record, we conclude that the record reflects that Holder’s pleas were voluntarily and intelligently entered. The record clearly demonstrates that the trial judge advised Holder of the nature of the charges against him, the consequences of his guilty pleas, and his right to have a jury decide his case. The record shows that the trial judge advised Holder of the consequences of waiving his right to a jury trial. The record further reveals that Holder acknowledged under oath his understanding of the charges against him, the consequences of pleading guilty, and the consequences of waiving his rights. Therefore, we conclude the record reflects that Holder’s pleas were voluntary and intelligent, and the trial court abused no discretion in dismissing Holder’s PCR motion on this basis.

¶ 9. Holder further claims that his attorneys’ conduct violated his Fifth, Sixth, and Fourteenth Amendment rights. Mississippi Code Annotated section 99-39-9(l)(e) (Supp.2010) requires that a movant furnish the trial court with the affidavits of witnesses who will testify and copies of documents or records that he intends to use in support of his claim. A review of the record reveals that while Holder submitted statements and affidavits of witnesses with his PCR motion, the statements and affidavits furnished by Holder fail to provide support to his contention that a violation of his constitutional rights occurred. With respect to his ineffective-assistance-of-counsel claim, we further recognize that Holder failed to prove both prongs of the Strickland analysis as required to show a violation of one’s constitutional right to effective counsel. Holder has failed to present evidence to this Court of his attorneys’ alleged deficiencies and, much less, how the deficiencies would have affected the outcome of his case. Holder cannot overcome the first prong of the two-part Strickland analysis; thus, we will not proceed to the second prong of Strickland. See Havard v. State, 988 So.2d 322, 331 (¶ 25) (Miss.2008) (citing Foster v. State, 687 So.2d 1124, 1129-30 (Miss.1996)). Moreover, we note that “a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Mason v. State, 42 So.3d 629, 632-33 (¶ 9) (Miss.Ct.App.2010) (citing Dennis v. State, 873 So.2d 1045, 1048 (¶ 9) (Miss. Ct.App.2004)). Accordingly, we find that the trial court did not err in dismissing the PCR motion. This issue is without merit.

II. Evidentiary Hearing

¶ 10. Holder argues that he was entitled to an evidentiary hearing on his PCR motion. We disagree.

¶ 11. Mississippi Code Annotated section 99-39-9(1) (Supp.2010) provides in pertinent part that a PCR motion must include (1) a concise statement of the grounds for relief, (2) a sworn statement of those facts within the personal knowledge of the prisoner, and (3) a statement of facts outside of the prisoner’s personal knowledge and how or by whom these facts will be proven. The petitioner should attach affidavits of these witnesses and any supporting documents to the motion. Id.

¶ 12. Upon receipt of this information, the trial judge must examine “[t]he original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack[.]” Miss.Code Ann. § 99-39-11(1) (Supp.2010). If after doing so, it appears that the mov-ant is not entitled to any relief, the trial judge is authorized to enter an order dismissing the motion without conducting an evidentiary hearing. Miss.Code Ann. § 99-39-11(2). See Medlock v. State, 49 So.3d 1162, 1163 (¶3) (Miss.Ct.App.2010). The decision to grant or deny an evidentia-ry hearing falls within the discretion of the trial court. Stovall v. State, 770 So.2d 1019,1021 (¶ 8) (Miss.Ct.App.2000).

¶ 13. Holder’s argument on this issue is largely an attempt to reargue his foregoing assertions of error that we have previously addressed herein and found to lack merit. Upon review of his motion, exhibits, and the record, we again note that Holder alleged no set of facts in support of his claim which would entitle him to relief. Therefore, we find no abuse of discretion in the trial court’s dismissal of Holder’s PCR motion.

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

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

      . Hernandez’s statement providing the following:
      Sunday morning, March 30, 2008[,] at approximately 12:30 a.m. I was asleep in the same room [that] Fredrico Ramirez Perez [ (the victim) ] was sleeping in. We heard all the yellingf,] and it woke us and scared us. Fredrico got up and ran out into the hall. I put my shoes on. It all happened in seconds. When I got out of the door of my room, I saw a black male that was at Martin Morales’s door. He was in the hallway!,] and the black male saw us all coming out' of our rooms!,] and he ran out of the door of the house. I saw a piece of metal that must have come off the door[,] and I hit him on the back of [his] neck. He held the gun over his shoulder and shot it as he was running. That is the only time [that] I saw the gun. The black male ran out through the yard into the street beside the house.

      . Brad Thompson and Lesile Roussell represented Holder at the trial level.

      . In order to prove ineffective assistance of counsel, a defendant must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A strong presumption exists that counsel’s performance was effective. Id. at 689, 104 S.Ct. 2052. "The two-prong test set forth in Strickland to determine whether the defendant has received ineffective assistance of counsel applies to challenges to guilty pleas as well.” Ivy v. State, 31 So.3d 643, 646 (¶ 15) (Miss.Ct. App.2009) (citing Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss.Ct.App. 1999)). The record in this case contains the transcript from Holder’s guilty-pleas hearing. While under oath, Holder stated that he was satisfied with his attorneys' advice and representation. Holder further testified that he was guilty as charged and indicated that he understood the nature of the charges against him. "Great weight is given to statements made under oath and in open court during sentencing.” Ward v. State, 879 So.2d 452, 455 (¶ 11) (Miss.Ct.App.2003) (quoting Gable v. State, 748 So.2d 703, 706 (¶ 11) (Miss. 1999)).


text:
    James WHATLEY, Appellant v. Dale CASKEY, B. Grimes, Felix Harris and Joyce Graham, Appellees.
    No. 2010-CP-01378-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    James Whatley, appellant, pro se.
    No Brief Filed for appellees.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. On March 10, 2010, James Whatley filed a complaint, which he entitled “Petition to Show Cause or an Writ of Habeas Corpus,” against Dale Caskey, B. Grimes, Felix Harris, and Joyce Graham. In his complaint, Whatley challenged the conditions of his confinement at the East Mississippi Correctional Facility and sought transfer to the Mississippi State Penitentiary at Parchman, Mississippi, or to a Mississippi Department of Corrections (MDOC) facility in Greene County, Mississippi. On July 20, 2010, the Lauderdale County Circuit Court entered an order dismissing Whatley’s action without prejudice after finding that no evidence existed in Whatley’s civil file showing that What-ley had provided a summons for any of the named defendants. In the order of dismissal, the trial court found as follows:

Pursuant to [Rule 4 of the Mississippi Rules of Civil Procedure,] a [pjlaintiff must perfect service on a [defendant within 120 days of the filing of the [c]omplaint. [M.R.C.P.] 4(h). If process is not served within 120 days, absent good cause shown, “the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.” ([EJmphasis added) [M.R.C.P.] 4(h).
The [pjlaintiff commenced this action on March 10, 2010[,J by filing his complaint. The [pjlaintiff failed to have process issued for any of the defendants upon filing of his motion; and further, as of the date of [¡Judgment, it appears that [pjlaintiff made no effort whatsoever to have the defendant properly served with process. The one hundred and twenty (120) days expired on July 8, 2010, and this is well beyond the timely service required by [Rule 4 of the Mississippi Rules of Civil Procedure.] Accordingly, Rule 4 leaves the Court without discretion. Unless good cause is shown why process has not been made upon the defendants, the Court is required to dismiss the action without prejudice. [M.R.C.P. 4(h) J.

On August 17, 2010, Whatley filed the following response to the trial court’s order:

I am filing [tjhis appeal and [rjebuttal on [tjhis motion [tjo show cause, and asking for it [tjo be [rjeconsidered. I filed [tjhe summons in a [tjimely manner, way before July 8[,J 2010[.J All I[’]m asking is for someone [tjo look into [tjhis matter and at least consider offering me some help. I hope that we can resolve [tjhis issue[.J I need [tjo [r]e[-]file all of [tjhis paperwork^] Thank you for your [tjime [and] effort on [tjhis matter.

Then, on August 20, 2010, the trial court entered an order granting Whatley leave to proceed in forma pauperis on his appeal of the court’s order of dismissal dated July 20, 2010. Aggrieved, Whatley appeals.

DISCUSSION

¶ 2. “On appeal, this Court reviews the trial court’s dismissal of a lawsuit based on a question of law under a de novo standard of review.” Roland v. Epps, 10 So.3d 972, 974 (¶ 9) (Miss.Ct.App.2009) (citing Wimley v. Reid, 991 So.2d 135, 136 (¶ 5) (Miss. 2008)); see also Nelson v. Baptist Mem’l Hosp.-N. Miss., Inc., 972 So.2d 667, 670 (¶ 7) (Miss.Ct.App.2007).

¶ 3. Mississippi Rule of Civil Procedure 4(h) provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

¶4. Upon a review of the record, we, like the trial court, find no evidence in the record that Whatley provided a summons for any of the named defendants as required by Rule 4(h). Pursuant to Rule 4(h), the trial court was required to dismiss Whatley’s complaint unless he was able to show cause as to why service was not made upon the defendants within 120 days. Because Whatley violated the 120-day provision of Rule 4(h) and failed to show good cause for his failure to comply, we find that the trial court did not abuse its discretion by dismissing Whatley’s complaint without prejudice.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR.

      . Whatley claims that Harris subjected him to cruel treatment that caused him to fear for his safety. Whatley contends that Caskey and Grimes knew of Harris’s actions but failed to take precautionary measures to prevent Harris from harming him. Further, Whatley asserts that the MDOC failed to release him from long-term status as required by the MDOC policies and procedures, and the stated defendants violated his constitutional rights by not providing him a proper classification hearing. Specifically, Whatley contends that Graham is liable due to her duty to ensure that all inmates receive proper classification hearings.

      . We pause to note that the appellees did not file an appellate brief with this Court. Further, we note that Whatley, the appellant, failed to file an appellate brief with this Court; instead, he re-filed his "Petition to Show Cause or an Writ of Habeas Corpus.”

      . A review of the record also reflects that Whatley, in his show-cause notice, sought an evidentiary hearing before the trial court to show that his security was threatened warranting a transfer to Parchman or to a MDOC facility in Greene County. However, there is no indication in the record showing that Whatley exhausted his administrative remedies on this claim through the MDOC’s Administrative Remedy Program, or otherwise, prior to his filing for judicial review.


text:
    Edgar L. McDONALD Jr., Appellant v. Cynthia Jean Guess McDONALD, Appellee.
    No. 2010-CA-00044-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2011.

      Hal H.H. McClanahan, Columbus, attorney for appellant.
    George M. Mitchell Jr., Eupora, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Edgar L. McDonald Jr. (Ed) unsuccessfully attempted to divorce his wife, Cynthia Jean Guess McDonald (Cindy). Instead, the Clay County Chancery Court granted Cindy’s request for separate maintenance. Less than two weeks later, Ed attempted to terminate his separate-maintenance obligation, but the chancery court denied Ed’s motion. Ed then attempted to terminate his separate-maintenance obligation again — this time via his motion to alter or amend the order denying his motion to terminate separate maintenance. Cindy responded by requesting that Ed be held in contempt for failing to pay her separate maintenance. The chancellor denied Ed’s motion to alter or amend his previous order and granted Cindy’s request that Ed be held in contempt. Accordingly, the chancellor awarded Cindy a judgment of $6,000. The chancellor also awarded Cindy $1,000 in attorney’s fees. Aggrieved, Ed appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. After approximately thirty years of marriage, Ed filed a complaint for divorce based on habitual cruel and inhuman treatment. Cindy responded and filed a counterclaim for separate maintenance. The chancellor ultimately found that Ed had failed to demonstrate that he was entitled to a divorce, but Cindy was entitled to separate maintenance. Consequently, the chancellor ordered Ed to pay Cindy separate maintenance in the amount of $1,000 per month in addition to the monthly mortgage on the marital home and Cindy’s car payment. Ed’s total monthly separate-maintenance obligation is approximately $3,200. The chancellor entered his final decree on April 17, 2009.

¶ 3. Thirteen days after the chancellor had entered his final decree, Ed filed a motion to terminate his separate maintenance obligation to Cindy. Within his motion, Ed claimed that he had “made a good faith effort to return to the marriage and amend the marital relationship.” However, Cindy’s response was in opposition to Ed’s motion. On May 19, 2009, the chancellor heard Ed’s motion to terminate separate maintenance. Testimony during the hearing revealed that Ed had only moved some of his things back into the marital home at approximately 10:00 p.m. the night before the hearing. On June 17, 2009, the chancellor filed his order. The chancellor found that Ed’s motivation was “solely to avoid making the Court ordered payments and not to truly resume a normal and healthy marital relationship.” According to the chancellor, Ed’s “filing of [his] motion so soon after the entrance of the order of separate maintenance ... and his return to the marital home on the eve of the hearing may have been premature.” The chancellor’s order will be discussed in greater detail in the analysis portion of this opinion.

¶ 4. On July 20, 2009, Ed filed a motion to alter or amend the chancellor’s order denying Ed’s motion to terminate separate maintenance. Four days later, Cindy filed a “complaint for citation for contempt of court and other relief.” Among other things, Cindy claimed that Ed had not paid her $l,000-per-month separate-maintenance payment since May 2009. On October 26, 2009, the chancellor heard Ed’s motion and Cindy’s “complaint for citation for contempt.” The chancellor later denied Ed’s motion and granted Cindy’s request that Ed be held in contempt. In so doing, the chancellor’s order specifically found:

Both parties testified and it appears from the testimony that there has been no reconciliation sufficient to allow this Court to terminate the former separate[-]maintenance order. The parties have not resumed the marital relationship and continue to live separate and apart in the homestead. [Ed] has spend nights at the marital homestead, but there is no proof that these were with [Cindy] in a marital relationship as cohabitation. Further, [Ed] testified that his job had changed and that he had to travel quite a bit. This also would by its very nature be problematic to a continuous resumption of normal marital relations. In addition, there was no proof that the parties had discussed a reconciliation, had begun the normal activities of a marriage such as cohabitation, eating meals together, time with each other, movies, dates, trips, marriage counseling or pastoral visits, church attendance or any other activity of such nature as to justify termination of the former separate[-]maintenance order.
It was clear to the Court that [Cindy] heard the name of the woman [Ed] had an alleged affair with for the first time at this hearing. There was no proof that they had even discussed this nor made any attempt to work out the problems before the latest hearing. [Ed] was critical of [Cindy] for changing her address and taking a cruise. He also noted that she had changed the security code and would not communicate it to him. [Cindy]’s explanation for the change of address was plausible, as was the cruise details. Further, as a co-owner of the house, [Ed] has as much right to access as [Cindy] and it does not seem that this would reasonably inhibit the resumption of the marriage. [Cindy] is certainly fee to take a cruise, as her ability to pay for it (she testified her sister paid the bill) is not material to the issue at hand. If the proof showed that [Cindy] was purposefully stonewalling or avoiding [Ed] merely to continue payments, the Court could take appropriate action to punish her for bad faith.
As stated in the prior [o]rder that refused to terminate the separate[-]maintenance order, the burden is on [Ed] to develop the proof of good faith and honesty. [Ed] had very little proof that were any different facts than those of the prior hearing and once more seemed more concerned with the financial issues than reconciliation. It is not the purpose of this Court to punish anyone other than in contempt actions. The premise of separate maintenance is a simple one and that is to order the husband to resume cohabitation with his wife, and by failing to do so, to provide suitable maintenance to her until they are reconciled. Lynch v. Lynch, 616 So.2d 294 (Miss.1993). If there is reconciliation by the offer of cohabitation and the treatment of the wife with conjugal kindness in good faith, the [o]rder should be terminated. Day v. Day, 501 So.2d 353 (Miss.1987). This standard was set forth in the prior order refusing to terminate the original order of separate maintenance. Therefore, until there has been such compliance with existing law, the Court is without authority to terminate the separate[-]maintenance order.
Turning now to [Cindy]’s request for a contempt of court order, the proof showed that [Ed] had not made the monthly separate[-]maintenance payments in the amount of $1,000 for the six months preceding the hearing. This ar-rearage would therefore total $6,000.00. [Ed] did not offer any testimony to counter this allegation nor any proof of payment. He did not offer any reason why he is or was unable to pay the amount ordered by the Court. Therefore, the Court must find him in contempt and enter judgment against [Ed] and in favor of [Cindy] in the amount of $6,000.00. The same shall bear interest at the rate of eight percent (8%) per annum.

¶ 5. On November 10, 2009, Ed filed a motion to alter or amend the judgment. The chancellor denied Ed’s motion. Ed appeals.

STANDARD OF REVIEW

¶ 6. Our standard of review is well-settled. “We review domestic-relations matters under the limited substantial-evidence/manifest-error rule. A chancellor’s findings will not be disturbed on appeal when supported by credible evidence and not manifestly wrong.” Diehl v. Diehl, 29 So.3d 158, 156 (¶ 14) (Miss.Ct.App.2010) (internal citations omitted).

ANALYSIS

I. SEPARATE MAINTENANCE

¶ 7. Ed claims the chancellor erred when he refused to terminate the separate-maintenance obligation. According to Ed, the chancellor placed undue emphasis on Ed’s financial motivation for returning to the marital home. Ed concedes that curtailing his living expenses was one of his motives for returning to Cindy. However, Ed goes on to state that his “primary purpose was to cohabit with Cindy as required by law.”

¶ 8. “Separate maintenance is a court-created remedy.” Diehl, 29 So.3d at 157 (¶ 16). “A decree for separate maintenance is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance for her until such time as they may be reconciled to each other.” Id. (quoting Thompson v. Thompson, 527 So.2d 617, 621 (Miss.1988)). “The purpose of the award is to provide, as nearly as may be possible, the same sort of normal support and maintenance for the wife, all things considered, as she would have received in the home, if the parties had continued normal cohabitation.” Id. (citation and quotations omitted).

¶ 9. As stated previously, Ed claims the chancellor erred when he denied Ed’s motion to terminate the separate-maintenance obligation. “[I]f the husband should, in good faith, offer to cohabit and treat the wife with conjugal kindness, the wife’s right to separate maintenance ceases and would, on a proper showing to the court, be discontinued.” Day v. Day, 501 So.2d 353, 357 (Miss.1987) (citation omitted). “For reconciliation to occur ‘it must be accepted that the appellant was honest in his intention to remedy his fault, and that his offers of reconciliation and request to return were made in good faith, with honest intention to abide thereby, and that the defendant deliberately refused his offers.’” Id. (quoting Rylee v. Rylee, 142 Miss. 832, 840-41, 108 So. 161, 163 (1926)). These issues are “essentially” questions of fact, which this Court shall not disturb so long as they are supported by substantial evidence. Id.

¶ 10. Ed initially moved to terminate the monthly separate-maintenance obligation less than two weeks after the chancellor had entered the final judgment ordering Ed to begin paying monthly separate maintenance to Cindy. In the chancellor’s order denying Ed’s motion to terminate the separate-maintenance obligation, the chancellor found:

The question of whether ... Ed’s effort was one of good faith and honest is of a factual nature and must be decided by this Court on the basis of the facts as developed in the courtroom. At no time has there been any testimony that in any way could be construed that Cindy would not welcome Ed back or resume the marital relationship and bed. Her only request in the testimony is that Ed make a clean breast of his past relationships, if any. Ed has never denied any relationship under oath, but [he] has asserted his Fifth Amendment right against self-incrimination. Ed did testify that he wanted to move on and did not want to discuss the past. The Court can certainly understand Ed’s desire not to address the past for obvious reasons. However, to resume a relationship after thirty (30) plus years of marriage, as this one is, there has to be a foundation of complete trust. A marriage which has never lost the trust factor may be strong because there has never been any reason to doubt. A marriage which has lost the trust factor must be repaired and shored up with an extraordinary amount of reassurance, openness, and certainly frankness.
Ed’s reluctance to engage in such discussions cast doubt in the Court’s mind as to whether he will ever make the effort necessary to resume a proper marital relationship. As in Day, ... Ed never once expressed regret or repentance, nor were there promises made to be a proper husband if allowed to return. This combined with Ed’s reluctance to do what it took to satisfy Cindy leads the Court to the only conclusion possible; that is, Ed’s motivation is solely to avoid making the [c]ourt[-]ordered payments and not to truly resume a normal and healthy marital relationship. The Court also would state that the filing of the motion so soon after the entrance of the order of separate maintenance ... and his return to the marital home on the eve of the hearing may have been premature. A few days is hardly enough time to restore a thirty (30) year marriage. The Court only had evidence that Ed dropped off his bags and that was basically it. Without more, the Court cannot grant the motion by law.

¶ 11. According to Ed, he refused to tell Cindy the names of any women with whom he had had affairs because “[t]here is ... no requirement that either party waive his or her Fifth Amendment rights in order to restart the relationship.” Ed based his refusal to disclose the names of his “alleged paramours” on the concept that “adultery is still a punishable crime in Mississippi.”

¶ 12. Nonetheless, during the hearing on Ed’s second motion to terminate the separate-maintenance obligation, Ed disclosed the name of a woman with whom he had been involved. In the chancellor’s October 26, 2009 order denying Ed’s second motion to terminate the separate-maintenance obligation, the chancellor held as follows:

It was clear to the Court that [Cindy] heard the name of the woman [Ed] had an alleged affair with for the first time at this hearing. There was no proof that they had even discussed this nor made any attempt to work out the problems before the latest hearing.... As stated in the prior [o]rder that refused to terminate the separate maintenance order, the burden is on [Ed] to develop the proof of good faith and honesty. [Ed] had very little proof that were any different facts than those of the prior hearing and once more seemed more concerned with the financial issues than reconciliation.

¶ 13. Finally, it is noteworthy that Ed initially attempted to resume cohabitation by moving some of his things back into an apartment attached to the marital home at approximately 10:00 p.m. the night before the hearing on his motion to terminate the separate-maintenance obligation. Ed’s “attempt to resume cohabitation was showing up on a Sunday night at 10:00 p.m. (the night before [the][h]earing on Monday morning) demanding to be allowed to move his stuff back into the marital domicile. One acting under this time frame and the circumstances that attend such does not equal good faith on his part.” Once again, we revisit the following language from the chancellor’s order denying Ed’s motion to terminate separate maintenance:

Ed arrived at the house on a Sunday night around 10[:00] p.m. and brought some overnight items. He did not move into the marital bedroom, but chose to stay in the apartment which is part of the marital residence. His testimony was that he had attempted to talk with Cindy about moving back in on several occasions, even offering to meet her for lunch. Ed also testified that he did not have a key or the code to the security system to the house, and therefore, was not able to have free access to the home and the resulting ability to move back in completely. In contrast, Cindy testified that Ed had not resumed a conjugal marital relationship and had not been honest with her in revealing any extra[-]marital relationships. On cross[-]examination, Ed refused to reveal any further information concerning Cindy’s allegations of extra[-]martial affair(s) despite being questioned about it several times.
The Mississippi Supreme Court held in the case of Day, ibid., that any attempt at reconciliation must be in good faith and honest in the husband’s intention to remedy his fault. There is no question that Cindy has a duty to not “block” the door and to meet Ed halfway if his efforts are made in good faith. Cindy should have done whatever was necessary to provide Ed with a key and the code to the security system immediately upon his request. She should have also mét with him or at least returned his calls to ostensibly discuss the reconciliation. In this, she is not without some degree of fault. However, it must be remembered that she is not the party upon whom the burden of reconciliation and good faith rests. That burden rests with Ed.

¶ 14. Within the bounds of the previously mentioned standard of review, we conclude that the chancellor was not manifestly wrong when he found that Ed did not seek to resume cohabitation in good faith. The chancellor heard testimony that Ed had refused to entertain Cindy’s questions regarding Ed’s extra-marital affairs. It was only during the hearing on Ed’s second motion to terminate separate maintenance that Ed finally revealed the name of a paramour. It was not unreasonable for the chancellor to conclude that,' by declining to discuss openly any lingering issues regarding his capacity for fidelity, Ed had not made a good-faith attempt to resume cohabitation and his marital relationship with Cindy. Suffice it to say that a marriage requires more than simple cohabitation. Accordingly, we find that the chancellor did not abuse his discretion when he denied Ed’s requests to the terminate separate-maintenance obligation. It follows that we find no merit to this issue.

II. CONTEMPT

¶ 15. Ed claims the chancellor erred when he held him in contempt. Ed’s entire argument under this heading is as follows:

In the [ojrder of November 10, 2009, the [cjhancellor held [Ed] in contempt for non-payment of monthly support and awarded $1,000.00 [in] attorneyfs] fees. In his Motion to Terminate Separate Maintenance, however, [Ed] had asked that the payment be stayed pending the hearing. With his request for a stay pending, [Ed] cannot be held in contempt, since the [Chancellor’s decision is flawed and should be reversed on the basis set forth in Chapel, Townsend, [and] McBride, supra.

However, Ed also filed a reply brief. Ed did not substantially expand on his initial argument. That is, Ed reiterated his position that he should not have been held in contempt because he filed his motion to terminate the separate maintenance two days before his first payment was due. However, Ed also argued that the chancellor erred in awarding Cindy $1,000 in attorney’s fees because Cindy was able to pay for her own attorney.

¶ 16. Ed references Chapel v. Chapel, 876 So.2d 290 (Miss.2004), Townsend v. Townsend, 859 So.2d 370 (Miss.2003), and McBride v. Jones, 803 So.2d 1168 (Miss. 2002). However, none of those cases pertains to a decision to find a litigant in contempt. What is more, none of those cases address Ed’s claim that a request to stay an obligation to pay the separate-maintenance payments operates in the same manner as an actual stay. Because Ed failed to cite relevant authority to support his argument on appeal, this issue is procedurally barred. M.R.A.P. 28(a)(6).

¶ 17. Cindy requests that this Court award her “attorneyfs] fees for having to answer and defend herself in regard[s] to the appeal filed by” Ed. We have generally awarded attorney’s fees on appeal in the amount of one-half of what was awarded in the lower court. Monroe v. Monroe, 745 So.2d 249, 253 (¶ 17) (Miss. 1999). Attorney’s fees are based upon necessity rather than entitlement. Id. In awarding attorney’s fees to Cindy, the chancellor stated as follows:

The finding of contempt in this matter as to [the] separate[-]maintenance payments permits the Court to require the party in contempt to pay reasonable attorney’s fees to the innocent party. The award is based on the contempt and not the ability to pay. Therefore, the Court orders [Ed] to pay the sum of $1,000.00 to [Cindy] as attorney’s fees for his failure to pay the monthly separate[-]maintenance support as ordered by this Court.

The chancellor specifically held that the attorney’s fees awarded to Cindy are based on the fact that Ed was in contempt “and not the ability to pay.” Because precedent dictates that attorney’s fees are based on “necessity rather than entitlement,” and the chancellor did not find that the attorney’s fees awarded to Cindy were based on an inability to pay her attorney, we decline to award Cindy any attorney’s fees on appeal.

¶ 18. THE JUDGMENT OF THE CLAY COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . While the chancellor was taking up preliminary matters, Ed's attorney requested that the chancellor allow him to "amend or[e] tenus the motion under Rule 59 [of the Mississippi Rules of Civil Procedure] for leave to amend to include the acts that have happened subsequent to the court hearing [Ed's initial motion to terminate separate maintenance]. Cindy's attorney did not oppose Ed’s request.

      . We decline to address the question of whether Ed could have successfully been prosecuted for adultery pursuant to Mississippi Code Annotated section 97-29-1 (Rev. 2006), which sets forth as follows:
      If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.
      Furthermore, we decline to address the question of whether Ed could have privately disclosed any extra-marital affairs to Cindy under the protection of the "Husband-Wife Privilege” set forth in Mississippi Rule of Evidence 504.