author: KING, C.J.,

text:
    Johnny McINNIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01576-COA.
    Court of Appeals of Mississippi.
    Feb. 16, 2010.

      Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., ISHEE and MAXWELL, JJ.
   KING, C.J.,

for the Court:

¶ 1. Johnny Mclnnis was convicted in the Circuit Court of Jones County of burglary of a dwelling and sentenced as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Mclnnis appeals raising the following assignments of error: (1) the trial court erred in granting jury instruction S-2 because the evidence was insufficient to support the instruction, and (2) the trial court erred in denying defense counsel’s circumstantial-evidence jury instruction. While we find that the trial court erred in granting jury instruction S-2, we find that the error was harmless; thus, reversal or remand is not warranted. Therefore, we affirm the judgment of the trial court.

FACTS

¶ 2. On October 8, 2007, between 10:30 and 10:55 p.m., Hillary Kissenger was at home asleep when she heard an unfamiliar sound in her home. When Kissenger, who was positioned in her bed with her back toward her bedroom door, heard the sound, she turned over to investigate. As Kissenger turned over, she saw a black man with a plain white T-shirt grab her purse off her dresser and run up the hallway. Instinctly, Kissenger hollered and jumped out of her bed and ran to get out of the house. When Kissenger saw the burglar run out the kitchen door, she turned on the kitchen light and called 911. As Kissenger relayed her account of the event to the 911 dispatcher, she was told by the dispatcher to stay on the line until a police officer arrived. Officer Shannon Carraway with the Laurel Police Department, who was two blocks away, responded to the call. Officer Carraway testified that she was alerted to be on the lookout for a stocky built black male wearing a white T-shirt. While traveling in the direction of Kissenger’s home, Officer Carr-away observed a burgundy car traveling in the opposite direction of Kissenger’s home, and the driver was a black male wearing a white T-shirt. Officer Carraway turned around and began to pursue the vehicle, which she believed to contain the alleged burglar. The vehicle, which was driven by Mclnnis, sped up, but after traveling about six blocks from Kissenger’s residence, the vehicle came to a stop at a residence identified as 24 College Drive in Laurel, Mississippi. The residence was neither Mclnnis’s nor his passenger’s, who was identified as Bonnie Woods Armstrong residence. During the stop, Officer Michael Thomas with the Laurel Police Department, who was assisting Officer Carraway at the scene of the stop, alerted Officer Carraway to three purses that were located on the front seat of the vehicle. Both Mclnnis and Armstrong were questioned about the purses. Officer Carraway testified that Armstrong stated that only one of the purses belonged to her. During their investigation, the officers also found two wadded up Trustmark bank envelopes in the driveway on the driver’s side of the vehicle. Kissenger was brought to the scene of the stop and identified one of the purses and its content as hers and the bank envelopes as ones she had received from the bank earlier that morning.

¶ 3. Mclnnis was indicted by a Jones County grand jury for burglary of a dwelling house and receiving stolen property. On August 19, 2008, the State filed a motion to amend the indictment to reflect Mclnnis’s habitual-offender status pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007). On August 20, 2008, the State filed motions to amend the indictment because of a scrivener’s error regarding the date of the incident and to sever Count II, receiving stolen property, from the indictment. Both motions were granted. On August 20, 2008, Mclnnis was tried on the offense of burglary of a dwelling house. At the conclusion of his trial, Mclnnis was found guilty of burglary of a dwelling house and sentenced as a habitual offender to twenty-five years in the custody of the MDOC. On August 28, 2008, Mclnnis filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. On September 19, 2008, Mclnnis’s post-trial motion was denied.

ANALYSIS

I. Whether the trial court erred in granting jury instruction S-2 because the evidence was insufficient to support the instruction.

¶ 4. The State requested for the trial court to give an accomplice jury instruction, S-2. The text of the proffered jury instruction reads as follows:

The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, willfully and feloniously doing any act which is an ingredient to the crime, or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense; and if you believe from the evidence, beyond a reasonable doubt, that the defendant, Johnny L. Mclnnis, did willfully, knowingly, unlawfully, and feloniously do any act which is an ingredient of the crime of burglary of a dwelling or immediately connected with it, or leading to its commission, then and in that event, you should find the defendant guilty as charged.

¶ 5. Mclnnis objected to the proffered jury instruction stating:

DEFENSE COUNSEL: I think the jury either believes that Mr. Mclnnis did it or Ms. Bonnie Armstrong. I don’t think that they put on any evidence of an accomplice. Therefore, I’d object to that being submitted.

The trial court granted the instruction and ruled on the objection making the following statement:

THE COURT: [The State is] not accusing them of having an accomplice. They’re taking a precautionary instruction here to cover what your evidence was in that he testified that she did it.

¶ 6. Mclnnis argues that the record is void of any evidence to support the State’s accomplice jury instruction. Mclnnis contends that notwithstanding his testimony that Armstrong committed the crime, his testimony did not provide an evidentiary foundation for granting an accomplice instruction.

¶ 7. The State asserts that Mclnnis put on evidence indicating Armstrong had committed the crime. The State contends that because a reasonable jury may accept in part and reject in part the evidence presented by the witnesses, it could have been determined that Mclnnis and Armstrong acted in concert. Therefore, it suggested that Mclnnis might be guilty as an accomplice.

¶ 8. “An accomplice may be convicted of accomplice liability only for those crimes as to which he personally has the requisite mental state.” Welch v. State, 566 So.2d 680, 684 (Miss.1990). “He must have a ‘community of intent’ for the commission of the crime.” Id. According to Crawford v. State, 133 Miss. 147, 97 So. 534 (1923):

In order for one to aid and abet the commission of a crime, he must do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime; hence being present, even with the intention of assisting in the commission, if necessary, does not make one an aider and abettor thereof, unless his intention to render assistance was known to the perpetrator of the crime.

¶ 9. In this case, the evidence is insufficient to prove that Mclnnis was an accomplice; therefore, the evidence does not support granting of an accomplice jury instruction. Mclnnis testified that Armstrong called him at approximately 10:00 or 10:30 p.m. to come and get her. When he arrived at her location approximately 30 or 35 minutes later, he helped Armstrong put her bags in the car and they left the area. Mclnnis stated that he was stopped shortly thereafter by Officer Carraway. After Mclnnis was stopped, three purses were found on the front seat of the vehicle. Mclnnis testified that he recalls Armstrong having two purses and that a third purse was inside one of the other purses. The State did not present any evidence that Mclnnis acted as Armstrong’s accomplice.

¶ 10. While there was insufficient evidence for the granting of an accomplice instruction, the evidence does not warrant reversal of this case. The record before this Court contains sufficient evidence upon which a reasonable juror could have properly found Mclnnis guilty of burglary of a house. Kissenger identified the burglar as a black male wearing a plain white T-shirt, and Mclnnis was identified as the alleged suspect in the vicinity of the burglarized dwelling house within seconds of the 911 call. After Officer Carraway pulled Mclnnis over, she discovered Kis-senger’s purse in a car driven by Mclnnis, and two wadded up Trustmark envelopes, which Kissenger identified as hers, were found on the ground on the driver’s side of the car driven by Mclnnis. This evidence was sufficient to sustain a conviction of burglary of a dwelling house. “A person guilty of aiding and abetting will be punished as a principal; he is exposed to the same sanctions as if he committed all of the criminal acts himself.” Hollins v. State, 799 So.2d 118, 123 (IT 13) (Miss.Ct.App.2001).

¶ 11. Although the jury was improperly instructed with the accomplice jury instruction, we find that the error was harmless.

II. Whether the trial court erred in denying defense counsel’s circumstantial-evidence jury instruction.

¶ 12. Mclnnis requested for the trial court to give proffered jury instruction D-3. The jury instruction was refused by the trial court as being cumulative to the state’s jury instruction S-l, which was given by the trial court.

¶ 13. Mclnnis contends that the trial court erred in denying his circumstantial-evidence instruction. Mclnnis asserts that he neither confessed to the burglary nor was there any eyewitness testimony indicating that Mclnnis was in fact the person who had burglarized Kissenger’s home. Mclnnis maintains that Kissenger did not identify him at trial as the person who was inside her home. Mclnnis claims that Kis-senger’s sole testimony was that she saw a black man with a white T-shirt steal her purse. Mclnnis argues that the evidence identifying the burglar is not sufficient to identify him as the burglar and that such description is not an eyewitness identification.

¶ 14. The State asserts that while Kis-senger could not positively identify Mcln-nis as the burglar, it presented strong corroborating proof of Melnnis’s identity as the perpetrator. The State claims that the presented evidence, that Mclnnis was apprehended a few minutes later in the vicinity, matching Kissenger’s description, and in possession of Kissenger’s purse, is strong and compelling evidence to fill in the gap that Mclnnis was the burglar. Price v. State, 749 So.2d 1188, 1197 (¶ 27) (Miss.Ct.App.1999).

¶ 15. “In determining whether error exists in granting or refusing jury instructions, the instructions must be read as a whole; if the instructions fairly announce the law and create no injustice, no reversible error will be found.” Martin v. State, 854 So.2d 1004, 1009 (¶ 12) (Miss.2003).

¶ 16. In criminal cases, where the State’s evidence is entirely circumstantial, the trial court is required to instruct the jury regarding the use and treatment of circumstantial evidence by granting a circumstantial-evidence instruction and a two-theory instruction. Brown v. State, 961 So.2d 720, 728 (¶ 18) (Miss.Ct.App.2007). “[T]he court must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict.” Jones v. State, 797 So.2d 922, 928 (¶ 26) (Miss.2001).- However, our trial courts are not required to grant a two-theory instruction when its substance is covered by other instructions or where there is direct evidence. Brown, 961 So.2d at 728 (¶ 18).

¶ 17. Mclnnis proffered jury instruction D-3, but it was refused by the trial court. The proffered jury instruction stated the following:

The Court instructs the jury that if the evidence in this case presents two reasonable theories, one tending to indicate that the Defendant, Johnny Mclnnis, is guilty and the other tending to indicate that he is innocent, it is your duty to accept the theory favorable to Johnny Mclnnis and to find him not guilty.

¶ 18. We find that the instruction was not required because the evidence was not purely circumstantial. In this case, Kis-senger testified that the burglar was a black male wearing a white T-shirt. The record indicates that Mclnnis was in the vicinity during the time the burglary occurred. Mclnnis was spotted by Officer Carraway leaving the area within seconds of the 911 call being placed by Kissenger. Mclnnis was subsequently chased and detained by the police. When Mclnnis was detained, Officer Carraway informed Mclnnis that he fit the description of a stocky black male wearing a white T-shirt, who had just committed a burglary of a dwelling house. Mclnnis told Officer Carr-away that he was just on 32nd Street trying to “hustle” some Mexicans. Officer Carraway testified that she did not tell Mclnnis where in the area the burglary had occurred. Also, during their investigation, the officers found Kissenger’s purse on the front seat of the car that Mclnnis was driving.

¶ 19. In addition, we find that the substance of the two-theory instruction was found within jury instruction S-l. The jury instruction S-l reads as follows:

JOHNNY L. MCINNIS, has been charged in Count I with the offense of Burglary of a Dwelling House.
If you find from the evidence in this ease beyond a reasonable doubt that:
1. Johnny L. Mclnnis, on or about the 8th day of October, 2007, in the Second Judicial District of Jones County, Mississippi;
2. Did break into and enter;
3. The dwelling house of Hillary D. Kissenger located at 1438 32nd Street, Laurel, Mississippi;
4. With the intent to commit a crime of larceny therein;
5. Once therein, Johnny L. Mclnnis, did unlawfully take, steal and carry away the personal property of Hillary D. Kissenger;
Then you shall find the defendant, Johnny L. Mclnnis, guilty in Count I of Burglary of a Dwelling House.
If the State has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the defendant, Johnny L. Mclnnis, not guilty in Count I of Burglary of a Dwelling House.

In Hill v. State, 17 So.3d 1092, 1097 (¶ 17) (Miss.Ct.App.2009), the trial court denied Hill’s two-theory instruction because the jury had been properly informed as to the applicable law through other instructions. In this case, as in Hill, a similar instruction, jury instruction S-l, was offered by the State and given by the trial court.

¶ 20. Therefore, we find that the trial court did not err in denying Mclnnis’s proffered jury instruction D-3 as the evidence was not wholly circumstantial, and the instruction was cumulative to the state’s jury instruction given by the trial court. Thus, this assignment of error is without merit.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF BURGLARY OF A DWELLING HOUSE AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: IRVING, J„

license: Public Domain

text:
    Clinton Wyatt NOLAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-00564-COA.
    Court of Appeals of Mississippi.
    May 25, 2010.
    Rehearing Denied Aug. 24, 2010.

      James D. Franks Jr., Hernando, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J„

for the Court:

¶ 1. Following a bench trial, Clinton Wyatt Nolan was convicted of heat-of-passion manslaughter in the DeSoto County Circuit Court. He was sentenced to seven years in the custody of the Mississippi Department of Corrections and to thirteen years of post-release supervision, with five reporting and eight non-reporting. Aggrieved, Nolan appeals and asserts (1) that the circuit court erred in refusing to grant his motion for a directed verdict, (2) that the verdict is against the overwhelming weight of the evidence, and (3) that the M’Naghten standard should be abandoned in Mississippi.

¶ 2. We find that the evidence is insufficient to support Nolan’s conviction for heat-of-passion manslaughter. However, we conclude that sufficient evidence exists to support a conviction for manslaughter pursuant to Mississippi’s catchall manslaughter provision, Mississippi Code Annotated section 97-3-47 (Rev.2006). Therefore, we affirm Nolan’s conviction and sentence.

FACTS

¶ 3. During the early morning hours of May 26, 2006, Nolan called 911 after shooting his father, Donald Nolan, in the chest in Hernando, Mississippi. Donald died shortly thereafter. In November 2006, Nolan was indicted by a grand jury for heat-of-passion manslaughter. Nolan waived his right to a jury trial. Thereafter, a bench trial was held on December 11, 2007, wherein Nolan asserted an insanity defense.

¶ 4. At the beginning of the trial, the State entered into evidence written stipulations of fact and rested its case, reserving the right to call rebuttal witnesses. Nolan made a motion for a directed verdict, which the circuit judge denied.

¶ 5. Following the denial of his motion for a directed verdict, Nolan called seven witnesses, the first of whom was Dr. Robert Hoehn. Dr. Hoehn, who had been Nolan’s psychiatrist since 1996, was qualified as an expert in the field of psychiatry. Dr. Hoehn testified that Nolan had been diagnosed with, and treated for, “Asperger’s disorder” prior to coming under his care and that he had treated Nolan for symptoms related to “anxiety, attention deficit, and depression.” Dr. Hoehn stated that he had placed Nolan on several medications while Nolan was under his care. Dr. Hoehn testified that he had made modifications to Nolan’s medication during the month before the shooting and that it appeared that Nolan had adjusted well. However, Nolan became more depressed and anxious, prompting Dr. Hoehn to switch his medication from Paxil to Zoloft. Dr. Hoehn recalled that Nolan seemed to be doing better when he saw him approximately three weeks prior to the shooting. However, Dr. Hoehn stated that Nolan’s family members had contacted him the week of the shooting and had informed him that Nolan seemed more upset, was more irritated, and had not been sleeping well. Dr. Hoehn testified that he then prescribed Klonopin. Nolan killed his father within twenty-four hours of taking the Klonopin.

¶ 6. Dr. Hoehn testified that he visited Nolan in the DeSoto County Jail on May 31, 2006, at which time Nolan was “very psychotic.” Dr. Hoehn explained that he meant that Nolan was “unable to distinguish what was real and what wasn’t.” According to Dr. Hoehn, Nolan was confused and agitated. After the shooting, Dr. Hoehn diagnosed Nolan with depressive type schizoaffective disorder. He explained that schizoaffective disorder lies between bipolar disorder and schizophrenia. He also noted that hallucinations are a common symptom of schizoaffective disorder and that Nolan did not experience any hallucinations before the shooting. However, he pointed out that Nolan experienced command hallucinations after the shooting. He defined a command hallucination as a voice that tells a person to do something. When asked whether he had an opinion as to whether Nolan understood the nature and quality of his actions at the time that he shot his father, Dr. Hoehn stated:

I think [Nolan] has always understood the facts of the case as it relates to that he shot his father. As far as, you know, what led to his making that decision, I think he was having very altered thinking. I don’t think he was — I think he was delusional and psychotic, and I think, you know, that he wasn’t in his right mind in terms of making decisions.

Dr. Hoehn concluded by saying that Nolan never expressed to him that he had had command hallucinations on the night of the shooting. Dr. Hoehn stated that he thought that Nolan “was starting to have the beginnings of a psychotic episode the week before his dad died.” Dr. Hoehn also stated that after the shooting, Nolan was prescribed Seroquel, an antipsychotic drug.

¶ 7. Nolan posted bond and was released from jail. Dr. Hoehn- explained that following Nolan’s release, Nolan was sent to Lakeside Behavioral Health System (Lakeside) in Memphis, Tennessee, for three months. According to Dr. Hoehn, Nolan showed improvement while at Lakeside. For example, Nolan’s hallucinations diminished, and although he showed some agitation and frustration, his mood became more stable.

¶ 8. Next, Nolan called Dr. Joseph C. Angelillo, an expert in the field of forensic psychiatry. Dr. Angelillo conducted an evaluation of Nolan a few weeks after the shooting to determine Nolan’s mental status at the time of the shooting. At the time that he conducted the interview, Nolan had been on Seroquel for two to three weeks and was “fairly lucid.” Dr. Angelil-lo concluded that Nolan did not understand the nature and quality of his actions on the night of the shooting.

¶ 9. Margaret Cashion, a nurse who worked at the DeSoto County Jail during Nolan’s incarceration, testified that while being housed in a holding cell on May 26, 2006, Nolan became aggressive and agitated. According to Cashion, she was called to render assistance after Nolan struck an officer on the nose. Cashion testified that when she reached Nolan’s cell, he was talking to a wall and that she was told that he had been hitting his head against the wall prior to her arrival. Cashion stated that Nolan was allowed to speak with his mother after complying with Cashion’s request to calm down. Cashion testified that she contacted Dr. Hoehn at some point thereafter and that he prescribed psychotropic medication which, in her opinion, positively affected Nolan’s behavior.

¶ 10. In addition, several friends of the Nolan family testified on Nolan’s behalf. Lynn Ford, who visited Nolan on a daily basis while he was incarcerated, recalled that during one visit Nolan asked her if she heard people talking, even though there was no one else in the room. Ron Donahoo visited Nolan while Nolan was at Lakeside and described Nolan as being agitated and frustrated about the circumstances surrounding why he was there.

¶ 11. J. Hickman testified about a telephone conversation that he had had with Donald shortly before the shooting. According to Hickman, Donald told him that Nolan’s condition had deteriorated, as Nolan had become agitated and was having trouble sleeping.

¶ 12. Like Ford, Hickman visited Nolan while Nolan was incarcerated. According to Hickman, Nolan was incoherent, agitated, confused, and fidgety. Nevertheless, he noted that Nolan expressed remorse for his father’s death, even though he did not indicate that he knew what happened to his father.

¶ 13. James Wendell Sanders had lunch with Nolan and Donald on the day before the killing and testified that Nolan was withdrawn and “was not acting like his normal self.” Sanders noted that he had not seen Nolan in that state before.

¶ 14. The State then offered several rebuttal witnesses, including Commander Mark Blackson with the DeSoto County Sheriffs Department and clinical psychologist Dr. W. Criss Lott. Commander Black-son interviewed Nolan on the morning of the shooting and testified regarding the interview. Commander Blackson testified that Nolan acknowledged shooting his father and that Nolan expressed remorse for doing so. Commander Blackson noted that the tape depicts an instance where the tape recorder was on and Nolan was talking, but stopped abruptly and asked whether the recorder was on. Commander Blackson answered affirmatively. Then, according to Commander Blackson, Nolan became quiet and ceased talking. Commander Blackson then turned the recorder off. Later, Commander Blackson turned the recorder on again, and Nolan just looked at it and remained silent. Commander Blackson then terminated the interview.

¶ 15. Dr. Lott, at the State’s request, interviewed Nolan one week before Nolan’s trial. Dr. Lott was charged with providing a psychological assessment and an evaluation of Nolan’s mental state at the time of the killing. Dr. Lott reviewed the following: (1) the transcript of Nolan’s interview conducted by Commander Black-son, (2) two psychological evaluations conducted in June 2006 by Drs. Angelillo and Robert Serino, (3) Dr. Hoehn’s medical records, and (4) Nolan’s medical records from Lakeside. Dr. Lott opined that Nolan was mentally ill at the time of the shooting but that his mental illness did not impact his ability to understand the nature and quality of his actions. According to Dr. Lott, he reached this conclusion because Nolan is very familiar with guns and was able to tell the 911 operator that he had shot his father with a .357 handgun. Dr. Lott surmised that Nolan “obviously knew that this was a gun, and that indicates to me that [he knew] nature and quality.” Further, Dr. Lott testified that when Nolan spoke with Dr. Hoehn two days after the shooting, Nolan was clearly aware of what had transpired. Dr. Lott explained that, in his opinion, Nolan’s mental illness did not “preclude his knowing that this is a gun, and if I shoot at someone, I’m going to hurt someone.” Dr. Lott also testified that Dr. Hoehn failed to explain how Nolan did not know what would happen if he pointed the gun and fired it at his father.

¶ 16. In addition to his trial testimony, Dr. Lott sent a letter to the circuit court, wherein he wrote the following:

It is unclear to this examiner exactly what Mr. Nolan heard, as he gave inconsistent statements. He initially said that he could not recall what happened on the day of the offense, and did not spontaneously report hearing voices telling him to kill anyone, but his mother encouraged [him] to recall what happened, and concurred that he heard voices telling him to kill his father. It should be noted that the mother reported that he had not told anyone in the family that he was hearing voices regarding his father calling him names or voices telling him to kill his father....
Asked to describe what he was thinking and feeling on the day of the alleged offense, he said, “I was worried that my brain wasn’t functioning right. I got up, don’t remember the time. My brain wasn’t functioning. I heard voices telling me that my father said I was a sociopath. Voices said I had to go kill him. I picked up my pistol I had under my bed for self-defense. I decided to pick up the gun and shoot him. I went upstairs and shot him. He woke up and told me to call 911 and I did. I was in a strange state when I shot him. I wasn’t sure what to do, confused. I told the police what happened and let them arrest me. They put my dad in the ambulance. In jail, it was weird. I was in a strange hyper-manic state. There was a buzzing sound in my head. I was hallucinating. I was communicating with family through cinder block walls.

¶ 17. On cross-examination, Dr. Lott conceded that someone who had evaluated Nolan closer to the time of the incident would have a better assessment of Nolan’s mental state but noted that “no one assessed the issue of insanity” after the shooting. He also noted that there is no documentation supporting the notion that Nolan was hearing command hallucinations when he shot his father.

¶ 18. Following the trial, the circuit court concluded that Nolan was sane at the time of the shooting and convicted him of heat-of-passion manslaughter.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 20. Motions for directed verdicts challenge the sufficiency of the evidence. Boone v. State, 973 So.2d 237, 242 (¶ 18) (Miss.2008) (quoting Brown v. State, 970 So.2d 710, 712-13 (¶ 7) (Miss.2007)). Additionally, it is well established that:

“the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Bush v. State, 895 So.2d 836, 843 (¶ 16) ] (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence must show “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If, keeping in mind the reasonable-doubt standard, “reasonable and fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

Id. On the other hand, motions for a new trial challenge the weight of the evidence. Id. Our supreme court has consistently held that a jury verdict will not be disturbed unless “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (quoting Brown, 970 So.2d at 713 (¶ 8)).

1. Nolan’s Sanity at the Time of the Homicide

¶ 21. Nolan contends that the circuit court erred in refusing to grant his motion for a directed verdict. Specifically, he argues that the State failed to prove that he was sane at the time of the killing. He further argues that the State failed to prove each element of heat-of-passion manslaughter.

¶ 22. As stated, the State entered into evidence a Stipulation of Facts and then rested its case-in-chief. The Stipulation of Facts reads as follows:

1. That Clinton Wyatt Nolan did on the 26th of May, 2006 in DeSoto County, Mississippi shoot and kill Donald Nolan, a human being, by the use of a dangerous weapon, to-wit: a handgun.
2. The parties further stipulate to the authenticity of, and to the admission into evidence of, the following documents:
a. The 911 recording and transcript of the telephone call on May 26, 2006;
b. The transcripts from Crichton University and Northwest Community College of Clinton Wyatt Nolan;
c. Clinton Wyatt Nolan’s medical records from Lakeside Behavior[al] Health Systems;
d. Autopsy report of Donald Nolan; and,
e. Statements made by Clinton Nolan to [DeSoto County Sheriffs Department] investigators and transcript thereof.

¶ 23. During the 911 call, the dispatcher asked Nolan whether his father had been shot accidentally. Nolan told the dispatcher that he had “acted out of emotion” when he shot his father. Nolan also told the dispatcher that he had shot his father with a “.357 Sig.” Shortly thereafter, Donald got on the telephone with the 911 dispatcher. The dispatcher asked Donald why Nolan had shot him, and Donald responded that “[Nolan] was having (unintelligible) problems.” Donald told the dispatcher that Nolan “is having an episode because his medicine is messed up.” Further, the transcript of the 911 call reveals that Donald was asleep immediately prior to the shooting and awoke when he heard a noise.

¶ 24. The circuit judge concluded in his ruling that Nolan was not insane pursuant to the M’Naghten standard when he killed his father. It has long been established in this State that:

To establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. (R. Perkins, Criminal Law 859 (2d ed.1969) (quoting from M’Naghten’s Case, 10 Clark & F. 200, 210, 8 Eng. Rep. 718, 722 (1843))). In applying this rule, there is a presumption that the accused is sane; and therefore, the burden is initially on the defendant to introduce evidence creating a reasonable doubt of his sanity. Herron v. State, 287 So.2d 759 (Miss.1974); Ford v. State, 73 Miss. 734, 19 So. 665 (1896). However, once the defendant has overcome this initial burden, it is the burden of the State to present sufficient evidence to prove the defendant’s sanity beyond a reasonable doubt. Lias v. State, 362 So.2d 198 (Miss.1978); Myrick v. State, 290 So.2d 259 (Miss.1974). Expert witnesses are frequently used, as well as lay witnesses, to state their opinions of the accused’s mental state with regard to the M’Naghten Rule. Such opinions must be based on personal knowledge, and the jury is not bound to accept the conclusions of any expert. Hollins v. State, 340 So.2d 438 (Miss.1976); Smith v. State, 245 So.2d 583 (Miss.1971).

Edwards v. State, 441 So.2d 84, 86-87 (Miss.1983).

¶ 25. Prior to reaching his ultimate conclusion, the circuit judge stated the following:

Based on the totality of the circumstances and the evidence which was presented in this case, the Court finds that the State of Mississippi has in fact proven Mr. Nolan to be legally sane beyond a reasonable doubt as required under the stringent requirements of the State of Mississippi’s McNaughton [sic] rule. The Court finds that Mr. Nolan obviously knew the nature and the quality of his physical acts and the physical consequences of those acts. The Court has heard nothing by way of testimony that would contradict that first prong, and as noted, that is obviously a difficult prong to meet. The real issue is whether Mr. Nolan knew what he was doing was wrong.
I find that the greater weight of the evidence and the evidence which shows beyond a reasonable doubt that Mr. Nolan was in fact sane at the time of the crime, the most telling piece of evidence is the 911 tape. I find that Mr. Nolan was extremely lucid and logical on the tape, clearly expressed with no problem what had happened, using forensic terminology, was able to convey at the request of his dying father what type of weapon had been used, certainly showed emotional outburst and remorse during the 911 conversation. There is nothing the Court finds about the 911 conversation or any evidence that has been presented to this Court prior to that 911 conversation that would indicate Mr. Nolan not to know the nature and quality of his actions and that those actions would have been wrong.
I do not have the luxury of relating back Mr. Nolan’s grossly psychotic appearance the next day in the DeSoto — or later that day, I suppose, in the DeSoto County Jail relating that back to the specific moment that he chose to and did in fact shoot and kill his father; but to the extent those determinations have to be made, certainly I find the 911 tape moments after the shooting to be the most important piece of evidence in that regard.
Certainly, I will note, certainly Mr. — as required by the law and noted throughout jurisdiction and jurisdiction, certainly Mr. Nolan’s statements of remorse are also evidentiary in that regard; but the witnesses who testified regarding Mr. Nolan’s appearance within days after the shooting, I certainly heard nothing that would make me dispute anything those witnesses testified to. However, those are not or that is not the evidence as to the mental state of Mr. Nolan at the time of shooting and certainly nothing before that time indicates that he did not know the nature and quality and wrongfulness of his actions, and certainly the 911 tape would go against any claim that he did not. The Court finds that Mr. Nolan and finds beyond a reasonable doubt that Mr. Nolan did in fact act out of emotion and in the heat of passion in the killing of Donald Nolan and is in fact guilty of the charge of manslaughter as set forth in the indictment....

¶ 26. The question of whether Nolan was sane at the time of the killing is a question of fact. As stated, the circuit judge found that Nolan was sane at the time of the offense. Although Nolan offered expert testimony that he was insane at that time, the State offered rebuttal expert testimony that he was not. The law is well settled that the fact-finder, here the circuit judge, is the arbiter of the credibility of the witnesses. Culp v. State, 716 So.2d 642, 644 (¶ 11) (Miss.1998) (citing Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987)). It is obvious that the circuit judge accepted Dr. Lott’s testimony on the question of Nolan’s sanity and not the testimonies of Drs. Hoehn and Angelillo. It was the judge’s prerogative to do so. Therefore, this issue lacks merit.

2. Heal^of-Passion Manslaughter

¶ 27. Finding that Nolan acted out of emotion when he shot his father, the circuit judge convicted him of heat-of-passion manslaughter pursuant to Mississippi Code Annotated section 97-3-35 (Rev. 2006), which reads: “The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.”

¶ 28. After careful consideration of the record, we conclude that the record does not support Nolan’s conviction for heat-of-passion manslaughter, as the State did not offer any evidence establishing that Nolan acted in the heat of passion when he killed his father. The Mississippi Supreme Court has defined heat of passion as:

[A] state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Tait v. State, 669 So.2d 85, 89 (Miss.1996) (emphasis added) (quoting Buchanan v. State, 567 So.2d 194, 197 (Miss.1990)). Nolan’s statement to the 911 dispatcher that he “acted out of emotion” when he killed his father is not sufficient to support a conviction for heat-of-passion manslaughter, as there is nothing in the record that suggests that Donald provoked Nolan by words or acts at the time of the shooting. Therefore, we find that the circuit judge erred in finding that the State proved all of the elements of heat-of-passion manslaughter.

¶ 29. Although we have found that the State failed to prove heat-of-passion manslaughter, we conclude that sufficient evidence exists to sustain a conviction for manslaughter pursuant section 97-3-47. In reaching this conclusion, we are mindful that Nolan was not indicted under section 97-3-47, which makes all killings of a human being, not designated under a specific code section, manslaughter when done without authority of law. We find that Tait, though not on all-fours with our case, is persuasive authority for the course we take.

¶ 30. In Tait, Timothy Andrew Tait and Christopher Canon had been joking and horse playing when Tait grabbed a gun, cocked it, and pointed it at Canon’s head. Tait, 669 So.2d at 87. The gun dis-' charged, killing Canon. Id. Thereafter, a Jackson County grand jury indicted Tait for depraved-heart murder in violation of Mississippi Code Annotated section 97-3-19(l)(b). Id. at 86-87. At the request of the State, the jury was instructed with regard to both depraved-heart murder and heat-of-passion manslaughter. Id. at 89. The jury returned a verdict for depraved-heart murder. Id. at 87.

¶ 31. Tait appealed to the Mississippi Supreme Court, alleging that his actions did not warrant a conviction for depraved-heart murder. He argued that the evidence, at most, established that he had committed manslaughter. Id. at 87-88. However, he had not requested a manslaughter instruction at trial. The Mississippi Supreme Court agreed that Tait’s actions constituted manslaughter rather 'than murder but held that the evidence would not sustain a conviction for heat-of-passion manslaughter. Id. at 89. The court reasoned that “[tjhere was no ‘state of violent and uncontrollable rage engendered by a blow or certain other provocation given.’” Id. at 90. Instead, the supreme court held that “Tait’s actions ‘show a conscious, wanton and reckless disregard of the likely fatal consequences of his willful act which created an unreasonable risk.’ ” Id. Thus, the court reversed Tait’s murder conviction and remanded the case to the circuit court for resentencing. Id. The court reasoned that “it would serve no useful purpose to subject the state and the defendant to another trial for manslaughter when the evidence has established guilt of that crime beyond a reasonable doubt.” Id. (quoting Clemons v. State, 473 So.2d 943, 945 (Miss.1985)).

¶ 32. Based on the rationale employed in Tait, we affirm Nolan’s manslaughter conviction, as we conclude that any rational trier of fact could have found beyond a reasonable doubt the essential elements of manslaughter pursuant to section 97-3-47. We decline to remand for resentencing, as the penalties for both heat-of-passion manslaughter and manslaughter pursuant to the section 97-3-47 are the same.

3. Abandonment or Modification of the M’Naghten Rule

¶ 33. Finally, Nolan argues that the M’Naghten Rule should be abandoned in this State. We decline to address this issue, as this Court lacks authority to do so. It is the prerogative of our supreme court to determine when and if the M’Naghten Rule should be abandoned.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND THIRTEEN YEARS OF POST-RELEASE SUPERVISION, WITH FIVE YEARS REPORTING AND EIGHT YEARS NON-REPORTING, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . We note that this is an improper reference to a verdict since Nolan waived a jury trial and consented to a bench trial. Therefore, the proper issue is not whether the circuit court erred in refusing to grant a directed verdict, but whether it erred in refusing to dismiss the charges due to insufficient evidence. We further note that at the conclusion of the State’s evidence Nolan moved for a directed verdict. However, the proper motion made to a judge sitting as a fact-finder is a motion to dismiss the charges based on insufficient evidence.

      . In M’Naghten’s Case, 10 Clark & F. 200, 210, 8 Eng. Rep. 718, 722 (1843), the court announced that in order for a defendant to be criminally liable for his actions, he must have appreciated the difference between right and wrong at the time the crime was committed. Without specifically mentioning the M’Naghten Rule, the Mississippi Supreme Court in Cunningham v. State, 56 Miss. 269 (1879) announced that the test for determining whether a criminal defendant was insane at the time a crime was committed is whether he knew the difference between right and wrong.

      . Section 97-3-47 reads: "Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.”

      . Donald's autopsy report reveals that he died of a "distant or near-contact and penetrating wound” to the chest.

      . Dr. Hoehn stated that Nolan’s depression coexisted with his "Asperger’s disorder.”

      . Dr. Hoehn explained that Klonopin is a tranquilizer that is used to treat sleep anxiety and agitation.

      . While Dr. Hoehn testified that he visited Nolan on May 31, 2006, his notes indicate that he visited Nolan on May 28, 2006.

      . Commander Blackson made an audio recording of the interview.

      . Dr. Lott also testified that he reviewed the transcript of the 911 call; however, in his letter to the circuit court, Dr. Lott did not list the transcript as one of the documents that he had reviewed.

      . Dr. Hoehn testified that Nolan had been sexually molested as a child and that Nolan felt as though his father was concerned about Nolan's sexual behavior.

      . Donald spoke with the operator during most of the 911 call; however, due to the severity of his injury, he could not be understood. Thus, there are numerous instances where the transcript of the call reads "unintelligible.”

      . We note that the Tait court remanded the case for resentencing under a statute that was different from the statute under which Tait was indicted. Tait, 669 So.2d at 90.


author: ROBERTS, J„

text:
    Larry EVANS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00524-COA.
    Court of Appeals of Mississippi.
    Jan. 25, 2011.
    Rehearing Denied May 3, 2011.

      Larry Evans, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J„

for the Court:

¶ 1. Larry Evans pled guilty to manslaughter and armed robbery. He later filed a motion for post-conviction relief. The circuit court summarily dismissed Evans’s motion. Aggrieved, Evans appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Evans and two accomplices robbed a convenience store in Hinds County, Mississippi. One of Evans’s accomplices shot Bharat Bhushan, a clerk at the convenience store. Bhushan survived. Evans chased another clerk, Dalijt Singh, out of the convenience store and shot him in the stomach. Singh did not survive.

¶ 3. On November 3, 2005, Evans was indicted and charged with capital murder, aggravated assault, and possession of a firearm by a previously convicted felon. The indictment against Evans also alleged that he qualified for enhanced sentencing as a habitual offender. According to the indictment, Evans had been convicted of armed robbery on July 8, 1999. Additionally, the indictment alleged that Evans had been convicted of theft of a motor vehicle on July 8,1999.

¶ 4. On January 12, 2007, Evans pled guilty to two felonies. The prosecution allowed Evans to plead guilty to manslaughter and armed robbery. In exchange for Evans’s guilty pleas, Evans avoided being prosecuted for capital murder. Additionally, the prosecution agreed to drop the charge of possession of a firearm by a previously convicted felon. Furthermore, the prosecution agreed not to pursue revocation of Evans’s probation for his previous 1999 conviction for armed robbery. In his petition to plead guilty, which was executed the same date Evans pled guilty, Evans stated that he expected to be sentenced to twenty years for manslaughter and fifteen years for armed robbery. He also stated that he expected the circuit court to run the sentences “consecutive to each other.” At the close of Evans’s guilty plea hearing, the circuit court sentenced Evans exactly as Evans had anticipated.

¶ 5. On December 10, 2008, Evans filed a motion for post-conviction relief. The circuit court resolved Evans’s motion by “denying” it. However, the circuit court also stated that its “denial” was under Mississippi Code Annotated section 99-39-11(2) (Rev.2007). Section 99-39-11(2) sets forth that a circuit court “may make an order for ... dismissal” if the circuit court finds that “it plainly appears from the face of the motion ... that the movant is not entitled to any relief.” We, therefore, interpret the circuit court’s order as a dismissal, rather than a denial of Evans’s motion.

¶ 6. Aggrieved, Evans appeals. According to Evans, the circuit court erred when it summarily dismissed his motion for the following reasons: (1) the prosecution did not tell him that his accomplices would be testifying against him until ten days prior to his scheduled trial date; (2) he had received ineffective assistance of counsel; (3) the transcript of his guilty plea and other documents were withheld from him while he was trying to prepare his motion for post-conviction relief; and (4) the circuit court failed to review the transcript of his guilty-plea hearing prior to summarily dismissing his motion.

STANDARD OF REVIEW

¶ 7. In reviewing a trial court’s dismissal of a motion for post-conviction relief, we will not disturb the circuit court’s factual findings unless they are clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). However, we review questions of law de novo. Id.

ANALYSIS

I. PROSECUTORIAL MISCONDUCT

¶ 8. Evans’s first and third issues are substantially the same. According to Evans, the circuit court erred when it summarily dismissed his motion for post-conviction relief because, ten days before his scheduled trial date, the prosecution informed him that his two accomplices would be testifying against him. Evans claims that the timing of the prosecution’s disclosure was “prosecutorial error, because the information was not included in discovery — exculpatory evidence.” Evans then cites Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) for the principle that “[s]uppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of the prosecution.” Evans also argues that the prosecution engaged in impermissible misconduct by declining “to allow him a copy of the deposition of the accusations, and a chance to possibly impeach the credibility of the witness[es] against him.”

¶ 9. First and foremost, Evans’s guilty pleas waived any “non-jurisdictional rights or defects.” Campbell v. State, 878 So.2d 227, 230 (¶ 13) (Miss.Ct.App.2004). This includes any complaints regarding the timing of the prosecution’s disclosure that Evans’s two accomplices would be testifying against him. Second, the record contains no evidence that the prosecution had notice that Evans’s two accomplices would be testifying for the prosecution any earlier than when it disclosed that fact to Evans. Finally, Evans misunderstands the meaning of “exculpatory” evidence. The testimonies of Evans’s two accomplices that would have incriminated Evans would be inculpatory evidence rather than exculpatory evidence. We find no merit to this issue.

II. ASSISTANCE OF COUNSEL

¶ 10. In his second issue, Evans complains that he received ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, Evans bears the burden of demonstrating (1) a deficiency of his counsel’s performance that is (2) “sufficient to constitute prejudice to his defense.” Swington v. State, 742 So.2d 1106, 1114 (¶ 22) (Miss.1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Walker v. State, 703 So.2d 266, 268 (¶ 8) (Miss.1997)). In deciding whether Evans’s counsel rendered ineffective assistance, this Court examines the totality of the circumstances surrounding the case. Swington, 742 So.2d at 1114 (¶ 22). Evans faces a “strong but rebuttable presumption that counsel’s conduct falls within a broad range of reasonable professional assistance.” Id. at (¶ 23). To overcome this presumption, Evans must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (citations omitted).

¶ 11. A claim of ineffective assistance of counsel is meritless when that claim is based solely on the affidavit of the claimant. Rush v. State, 811 So.2d 431, 434 (¶ 5) (Miss.Ct.App.2001) (citing Lindsay v. State, 720 So.2d 182, 184 (¶ 6) (Miss.1998)). Evans did not support his claim with an affidavit other than his own. Additionally, during the guilty-plea hearing, the circuit court asked Evans whether he was “completely satisfied” with the performance of his court-appointed attorney. Evans responded, “[y]es, sir.” Evans also indicated that his attorney had explained everything in his guilty-plea petition “to [Evans’s] full satisfaction.” Even so, Evans complains that his court-appointed attorney was ineffective for two reasons. Assuming, for the sake of discussion, that Evans’s claims were not rendered merit-less because of his failure to support his claims with an affidavit from someone other than himself, we would find no merit to Evans’s arguments on appeal.

¶ 12. First, Evans argues that “if his court[-]appointed counsel would have done his job, and would have been properly prepared, there is a reasonable probability that he would have been given a different and lesser sentence.” Evans argues that his court-appointed attorney failed to investigate some unspecified mitigating evidence and, therefore, failed to present that unidentified mitigating evidence during Evans’s guilty-plea hearing. Evans concludes this line of reasoning by stating that the government “would not provide funding for [i]nvestigators, or [expert [witnesses to analyze the evidence, which [his court-appointed attorney] should have argued [under] this issue, but did not.”

¶ 13. “A defendant is not entitled to an investigator without showing a substantial need or concrete reasons why an investigator is necessary.” Roland v. State, 882 So.2d 262, 264-65 (¶ 6) (Miss.Ct.App.2004) (citing Manning v. State, 735 So.2d 323, 345-46 (¶ 51) (Miss.1999)). “It is insufficient to allege undeveloped assertions that the requested assistance would be beneficial.” Id. (citing Caldwell v. Miss., 472 U.S. 320, 323, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Hansen v. State, 592 So.2d 114, 125 (Miss.1991)). Evans does not identify what mitigating evidence he expected his attorney to discover. At best, Evans seems to speculate that his attorney might have discovered some mitigating evidence if his attorney would have requested that the circuit court provide court-appointed investigators to assist his attorney. Evans’s argument is nothing more than speculation built upon speculation. We cannot find that the outcome of Evans’s sentence would have been different based on Evans’s first line of reasoning.

¶ 14. Second, Evans claims that his court-appointed attorney failed to recognize that the habitual-offender portion of the indictment failed to specify the dates of his prior sentences. Evans then states that circuit court never sentenced him as a habitual offender. According to Evans, the habitual-offender portion of his sentence “merely showed up on the sentencing order.” Evans argues that his court-appointed attorney was ineffective for failing to rectify this. Despite Evans’s assertion that the circuit court sentenced him as a habitual offender, we can find nothing in the record that confirms Evans’s assertion.

¶ 15. Evans was indicted as a habitual offender. He is correct that the circuit court did not mention sentencing him as a habitual offender. It is plainly obvious that the circuit court did not sentence Evans under Mississippi Code Annotated section 99-19-83 (Rev.2007) because the circuit court did not sentence Evans to life in the custody of the Mississippi Department of Corrections. There was no mention of sentencing Evans as a habitual offender during the guilty-plea hearing. The circuit court’s sentencing orders and the “prisoner commitment notice” documents have a notation at the top that states “habitual 99-19-81 or 99-19-83,” but those notations appear to reference the fact that he was indicted as a habitual offender—not that he was sentenced as a habitual offender. Evans is simply mistaken about being sentenced as a habitual offender. In any event, we do not find that Evans received ineffective assistance of counsel. Accordingly, we find no merit to this issue.

III. WITHHOLDING OF RECORDS

¶ 16. In this issue, Evans argues that the circuit court impermissibly denied his request for copies of his transcript and other records. According to Evans, if he would have had a copy of his transcript while he was preparing his motion for post-conviction relief, he “would have been able to demonstrate ... that the [circuit court] never sentenced him as a habitual offender and that his trial counsel was ineffective.”

¶ 17. When a defendant pleads guilty, he bypasses the right to a direct appeal, and he forfeits the right to a free transcript. Fleming v. State, 553 So.2d 505, 507 (Miss.1989). To obtain a free copy of a guilty-plea transcript, a movant has the burden of proving that he has been prejudiced on appeal by not having prior access to such transcript. Walton v. State, 752 So.2d 452, 456 (¶ 10) (Miss.Ct.App.1999). “This prejudice can be proven by showing specific need or proving that the transcript was necessary to decide a specific issue.” Id. When Evans requested a copy of his transcript and his other records, he did not list any reasons for his request. Because Evans did not demonstrate a specific need for his request or that the transcript was necessary to decide a specific issue, “the State [was] not required to furnish a free copy of the transcript from the guilty-plea hearing.” Id. Thus, we find no merit to this issue.

IV. FAILURE TO READ TRANSCRIPT BEFORE DISMISSAL

¶ 18. In his final issue, Evans claims the circuit court erred when it dismissed his motion for post-conviction relief because the circuit court did so without reviewing the transcript of his guilty plea. Evans notes that, according to Mississippi Code Annotated section 99-39-ll(l)(Supp.2010), “transcripts ... shall be examined promptly by the judge to whom [a motion for post-conviction relief] is assigned.”

¶ 19. Although the circuit court’s order stated that Evans’s motion for post-conviction relief was “denied,” the same order also indicated that the circuit court resolved Evans’s motion under Mississippi Code Annotated section 99-39-ll(2)(Supp.2010), which states that “[i]f 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, the judge may make an order for its dismissal and cause the petitioner to be notified.” Accordingly, the circuit court was not required to review the transcript of Evans’s guilty plea before it resolved Evans’s motion under section 99-39-11(2). It follows that we find no merit to this issue.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE AND MAXWELL, JJ., CONCUR. BARNES AND CARLTON, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.