author: KING, C.J.,

text:
    Desmond FORTHNER, Sr., Appellant v. LaKenya Bonner FORTHNER, Appellee.
    No. 2009-CA-00916-COA.
    Court of Appeals of Mississippi.
    Oct. 19, 2010.
    Rehearing Denied Feb. 1, 2011.

      Thomas L. Tullos, Bay Springs, attorneys for appellant.
    Michael Duane Mitchell, attorneys for appellee.
   KING, C.J.,

for the Court:

¶ 1. The Jasper County Chancery Court denied LaKenya Forthner a divorce on the ground of cruel and inhuman treatment, granted her custody of the minor children, and denied the request of her husband, Desmond Forthner Sr., for separate maintenance. LaKenya does not appeal the denial of a divorce. However, Desmond has appealed in this matter, raising four issues: (1) whether the chancellor erred in the evaluation of the Albright factors, (2) whether the chancellor erred in refusing to grant separate maintenance to Desmond, (3) whether the chancellor erred by violating Desmond’s constitutional right to freedom of religion, and (4) whether the chancellor erred in refusing to grant Desmond reasonable attorney’s fees.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. LaKenya and Desmond were married on June 29, 2002, and one child was born during the marriage. LaKenya has a daughter from a previous relationship, whom Desmond adopted. LaKenya moved out of the marital home and filed for divorce on the ground of habitual cruel inhuman treatment on May 15, 2008. Desmond filed a counter-complaint for legal separation and separate maintenance. The chancellor heard this case in three separate stages: custody hearing, divorce proceeding, and determination of separate maintenance.

¶ 4. On September 9, 2008, the chancellor conducted the custody hearing. The record reveals that both parents were involved in the children’s daily lives. LaK-enya testified that she dedicated a substantial amount of time to furthering her education, and she worked full time. She also testified that when she was home, she contributed to the household chores, helped the children with their homework, and attended their extra-curricular activities. In 2005, Desmond was in an accident and sustained severe neck and back injuries that rendered him disabled. He testified that as his recovery progressed, he was able to care for the children while LaKenya was at work or school. Both parties agreed that LaKenya’s mother was also helpful in assisting with the care of the children. At the conclusion of the hearing, the chancellor entered an interlocutory order, wherein he awarded primary legal and physical custody of both children to LaKenya, and he provided that LaKen-ya would receive the children’s social-security checks. The chancellor did not order Desmond to make any child-support payments.

¶ 5. The chancellor heard evidence regarding the divorce on January 27, 2009. LaKenya testified that problems in their marriage began in 2002, when Desmond joined a Pentecostal church. LaKenya testified that she does not share Desmond’s religious views and that the conflict between their different religious views ultimately led to the separation. In support of her request for a divorce based on habitual cruel and inhuman treatment, LaKenya testified that: Desmond refused to allow the family to celebrate Christmas; he turned the electricity off during the winter; and he constantly criticized her. LaKenya testified that Desmond routinely told her that she was in danger of “hellfire” and that his newly adopted religious beliefs encouraged an attitude of “his way or no way.” According to LaKenya and LaKenya’s mother, Desmond expected to be treated as “head of the house.” Further frustrating their situation, LaKenya testified that after the accident, Desmond became increasingly angry, which led to physical altercations, especially in regard to their financial affairs.

¶ 6. Desmond admitted that he may have made the statement that LaKenya would be in danger of “hellfire” and that he believed that the husband should be the “head of the house.” Desmond further testified that if there were an award from the litigation concerning the accident, he did not feel like LaKenya was entitled to a portion, and he had not shared any of the insurance proceeds from the totaled vehicle with the family. LaKenya testified that when she attempted to discuss their marital problems, Desmond was mean in return. Desmond testified LaKenya never attempted to discuss their problems.

¶ 7. Finally, the chancellor heard testimony regarding Desmond’s request for separate maintenance. Desmond testified that he did not do anything to cause LaK-enya to leave the marital home. Desmond admitted that they did not have a good marriage. He denied any physical altercations and being controlling over the household finances. Desmond also testified that he had no problem with celebrating Christmas, but he did refuse to lie to his children about Santa Claus. Desmond and LaKen-ya agreed that their differences in religious beliefs was the primary cause of their marital problems. Desmond’s testimony was clear that he loved LaKenya and wanted her to return to the marital home. Desmond wanted to reconcile, while LaKenya did not.

ANALYSIS

¶ 8. The appellate court “employs a limited standard of review in domestic relations cases; that is, [it] will not reverse a chancellor’s findings ‘unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.’ ” Yelverton v. Yelverton, 26 So.3d 1053, 1056 (¶ 11) (Miss.2010) (quoting Phillips v. Phillips, 904 So.2d 999, 1001 (¶ 8) (Miss.2004)).

1. Albright Analysis

¶ 9. In matters of child custody, the primary consideration of the chancellor must be the best interest of the child. Vaughn v. Davis, 36 So.3d 1261, 1264 (¶ 10) (Miss.2010). In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the Mississippi Supreme Court identified several factors that the trial courts must consider in determining the best interest of the child for custody purposes. The court held as follows:

We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school[,] and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent!;] and other factors relevant to the parent-child relationship.

Id.

¶ 10. Desmond argues that the chancellor erred in evaluating the Albright factors. At the conclusion of the hearing on child custody, the chancellor analyzed the Albright factors as follows:

THE COURT: So, those are the facts as testified to by the witnesses. In evaluating that situation, we have to look at the Albright factors. The age of the children. The daughter is nine; the son is five. The son is in kindergarten; the daughter is in regular school, if you will.
The sex of the children. The older child is female; the younger child is male. When you take into account the testimonies] of the parties, the fact that one is five and one is nine, the fact that one is female, [and] one is male, the Court is of the opinion that neither one of those factors favors either the mother or the father.
The continuity of care prior to the separation. They both participated in that. A lot has been made in the fact that [LaKenya] goes to school and has two jobs. That does take time away from her home, but it doesn’t make her a bad parent.
The other side of that coin is in a little over a year she will be a nurse practitioner. She can make very good money; and if the government allows her to, depending on what happens with this bailout situation, she can go anywhere she wants to and buy her a house. She can make very good money. So, she says she is looking out for the future of her children.
At the time there was a period of time when [Desmond] was unavailable to take care of the children after he had his accident. From then until, basically, December of that year, someone else had to do most of that; and, according to the testimony, the Court finds that the responsibility fell on his wife, the mother of these children. But, again, that’s something we can’t necessarily hold against him. He didn’t go out that morning and say, I think I’m going to go break my neck. Those things happen. Accidents happen, the victim of an accident of some sort. I think we determined that was a motorcycle accident. That’s a whole other story. We won’t get into that sermon just yet.
But there have been times when both the mother and the father had the primary responsibility for the children!,] and there have been times when they both shared that[,] and there have been times when they relied on the maternal grandmother a good bit. At this point in time, the father just prior to the separation probably had a little more of that responsibility because the mother was in school!,] and she was working two jobs.
So, if there is going to be — well, maybe we should say in the final analysis there would be a very slight balance towards the father there. It’s slightly in favor of awarding custody to the father, but it’s very slight. Depending on the time, that could go either way. As we noted, there was a time when the mother bore almost all of that responsibility after his accident; and at this point, and for probably the next year, she is not going to have as much time to spend with the children. So, that slightly favors the father.
The best parenting skills. They both can take care of the children. I see nothing in the testimony to question the parenting skills of either one of them.
Employment factors. As we noted, [LaKenya] is going to school on Thursday nights, right now 6:00 to 9:00 p.m. She has three weeks of that left. She will be [done with class] until January. In January!,] she will start back to school. She will finish in approximately 12 months at which point her education will be completed. She also works 7:00 a.m. to 5:15 p.m.[,] and she works approximately three days per month on the weekends when the children are with their father. She has a heavy load. She is working two jobs and going to school.
The father is not employed. He is disabled. He does do some work around the house on automobiles for people who either pay him or throw him some change, depending on which way you want to see that.
The mother is employed. Her employment has steadily increased during the marriage. She started out as a school nurse. She decided to go back to school. She has received her BS and is on her way to receiving a degree as a nurse practitioner. She has been working on that several years. That factor favors the mother.
The age of the parents. The father says he’s 30. I never did hear any testimony regarding the age of the mother. I’m assuming it’s similar. That factor does not favor either.
Health factors. The health of the children is good.
Physical health of the parents. That factor would have to favor the mother. There is no testimony with regard to any physical or mental infirmities whatsoever. We have already talked about the father’s situation. He does have days when he would not be able to take care of these children. If he goes out in the backyard and he’s painting on somebody’s hood and he twists his back the wrong way, there is a possibility he could wind up in bed a few days on medication that says, Do not drive, may make you drowsy, don’t operate equipment. Those would not be good times to have responsibility of the children. Emotional ties — well, let me back up. The health factor favors the mother.
Emotional ties between the parent and the child. There are two children. And one can glean from the testimony that, as far as the daughter is concerned, the mother has a better relationship with her; and, as far as the son is concerned, the father has a better relationship with him. That would be a fair interpretation of the evidence. That’s the interpretation I will adopt. That factor favors neither parent.
Moral fitness. There wasn’t a lot made of the issue of the birth of the daughter. There was some testimony about how that came about and the other gentleman involved in that but those are things that happened 9 or 10 or ever how many years ago. That’s not relevant to our issue today.
The Court doesn’t find any evidence directly on point as far as things such as use of alcohol, use of drugs, adultery, things of that nature, the more typical type things you discuss under morality. The factor favors neither.
The stability of the home environment. That’s really difficult to say at this point. This is temporary for both of them. They do own a home. Use and possession and ownership of that home [have] not been determined by the Court and will not for another four months. He is still in the home. She is living with her mother. There is no testimony in the record that either is unstable. The only testimony that the Court could consider at this point is the fact that the father still lives in the marital home[,] and certainly[,] there would be a preference for a stabilizing influence in the lives of these children that they remain in their home[,] but the Court has yet to determine who is going to have use and possession and ownership of that home. So, that issue at this point does not favor either.
The past record of a child’s behavior. At this point the Court sees no testimony to indicate that that factor would favor awarding custody to either the father or the mother.
The preference of the child is not an issue at this point. The oldest child is nine[,] and the youngest is five.
I don’t know if we said so or not[,] but I better cover that so there won’t be a problem with it. As far as the issue of moral fitness of the home environment, that factor does not favor either at this point for the same reasons as we discussed in the stability of the home environment.
Other factors. The maternal grandparent has played a big role in the lives of these children. She has been there to help when they were both in school. When the father was injured, [sic] When the mother was working or going to school at night, whichever, on the weekends, she’s been there to help. That should be considered.
Another factor is there are two children. As a general rule, the children shouldn’t be split. They should stay together. They are brother and sister.
Everybody is entitled to their own religion. That’s a very touchy issue. As Mr. Tullos noted, [it] could even be a constitutional issue. The bottom line is the paramount consideration of this Court in these types of situations must always be the best interest[s] of the children. That is written in literally thousands of cases. But yet we also know that that can be trumped. That can be trumped by constitutional issues. That can be trumped by other issues.
For instance, the right of the Court of Appeals and the Supreme Court to review the record would trump the best interests] of the children. Jethrow, I think is that particular case. Their right to make a decision on appeal trumps the best interests] of the children. So, the best interest is not in truth and in fact the very top number one thing on the list, but it should be up there somewhere.
The best interests] of the children [are] now and will always be the main issue in this Court, but that’s not true everywhere.
Taking that into account, the Court has absolutely no criticism of [Desmond’s] religion. He has the right to whatever religion he wants, but I think he should stop and think about this attitude of always tell [sic] the children the truth. Some things children have a business of knowing, period, whether it be true or false, for instance. Different parents will have different opinions about how to raise children, obviously. This Court has always taken the position that the best people to make those decisions are the parents. But the reality is when the parents can’t agree on that, when they walk into this courtroom or any other in the [S]tate of Mississippi and they say to some chancellor, [w]e cannot agree. Those issues upon which they cannot agree are then placed in the lap of that particular chancellory and the chancellor gets to make those decisions.
So, I suppose every chancellor has the right to his religious preferences also, just as [Desmond] does. I only say that to say to these two parents, that your first choice should be to work this out between yourselves. That’s what I would personally prefer. That’s what every court would prefer because no one is better equipped to make decisions for these two children than you two. You know them intimately. No court you ever walk in will know them as well as you do.
But the other side of that coin is when you cannot agree, when you walk into a courtroom and you say, [w]e cannot agree, then someone has to make those decisions. You realize that. What you’re doing is delegating the authority to make those decisions to some chancellor whoever happens to be sit[ting] in this chair. That’s the only reason I make that comment is to tell you that not everyone will always agree with your side, [Desmond]; or with your side, [LaKenya].
So, I encourage you to see if you can’t resolve your differences in the future and work together for the best interests] of your children, realizing that on those issues you cannot agree, someone else gets to make the decision. Not you two. Okay? Always remember that.
As stated, the Court has no problem with and finds no fault with [Desmond’s] religion. But I would request that he rethink, and I don’t know if that’s a part of his religion or not, but he rethink the idea that children should always be told the truth. Some things they shouldn’t be told at all, some issues just shouldn’t ever be broached. For instance — well, we won’t even get into that. I’ll leave that up to your imagination.
The other thing that concerns me, as far as other factors, is general equity; and I know that we have to tread lightly here because equity is almost a lost art in the [S]tate of Mississippi, at least. Equity, basically do the right thing. I don’t really get those vibes from [Desmond]. I really don’t. I have concerns.
We talked about the cars. I have concerns about, for instance, he puts money in the account. She puts money in the account; and I get the vibe from him, my understanding of his position is he’s in control of that even though she is putting in two to his one, sometimes three to his one. He said sometimes he puts in 1,000 to 1,200 and sometimes she puts in 2,500 to 3,000. He’s had several different automobiles some of which have been wrecked. He’s received checks on those and then he got the stimulus check, roughly $8,000 with which he shared zero with her, offered her none of it.
The two children were living with her under the temporary order. [Desmond] had standard visitation!,] and then we went further with that and provided — • this all occurred at the beginning of the summer, so, we specified some specific things for summer vacation!,] and we gave him time to be with the children while she was at work or school. The children were in her custody. That temporary order said that she had custody!,] and yet[,] he goes and stops one of the— redirects, if you will, one of the [s]ocial [s]eeurity checks for the children. That’s the children’s money. That’s not [Desmond’s] money. Those things cause concern.

¶ 11. The chancellor heard the evidence related to custody of the minor children and determined that it was in the best interests of the children that their custody be awarded to LaKenya. Generally, the determination of child custody is a question of fact. A chancellor sitting as a fact-finder in a custody case enjoys wide discretion, and reviewing courts defer to a chancellor’s findings of fact when supported by substantial evidence. Blevins v. Bardwell, 784 So.2d 166, 170 (¶ 12) (Miss.2001).

¶ 12. The chancellor, in accordance with Albright, conducted an analysis and determined that LaKenya should be awarded custody of the minor children. The chancellor found that while many factors favored both parents equally; the factors of employment and physical health favored LaKenya, while the continuity-of-care factor slightly favored Desmond. Additionally, the chancellor also considered: the more stable environment LaKenya could provide where both of her children would be raised together, the substantial involvement of the maternal grandmother, Desmond’s attitude toward the children and Desmond’s negative behavior regarding the family finances. The chancellor’s determination of custody was fully supported by the substantial evidence in the record. This issue is without merit.

2. Separate Maintenance

¶ 13. Desmond argues that the trial court erred in refusing to grant his request for separate maintenance. “Separate maintenance is a court-created equitable relief based upon the marriage relationship and is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.” Perkins v. Perkins, 787 So.2d 1256, 1262 (¶ 15) (Miss.2001). 'The granting of separate maintenance is premised upon the existence of a valid marriage contract, see Weeks v. Weeks, 654 So.2d 33, 36 (Miss.1995), and that there is no significant conduct on the part of the requesting spouse that negatively impacts the enjoyment of the marriage contract. Robinson v. Robinson, 554 So.2d 300, 304 (Miss.1989).

¶ 14. Whether the parties have a valid marriage contract is a question of law, Estate of Barker, 236 Miss. 436, 441, 110 So.2d 615, 616 (1959), which this Court would review de novo. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 945 (¶ 7) (Miss.2000). There is no issue as to whether the Forthners have a valid marriage contract; therefore, no review of this issue is required.

¶ 15. Whether the party requesting separate maintenance has engaged in significant conduct that negatively impacted the enjoyment of the marriage contract is a question of fact to be resolved by the chancellor. Robinson, 554 So.2d at 304. Where the chancellor’s finding of fact is supported by substantial evidence, this Court is obligated to accept and defer to that finding, notwithstanding that this Court might have interpreted the facts of the case differently. Id. Inextricably interwoven into the deference to the chancellor’s fact-finding is acceptance of his/her findings of individual credibility. See Estate of Burgess ex rel. Burgess v. Trotter, 6 So.3d 1109, 1114 (¶ 19) (Miss.Ct.App.2008).

¶ 16. The record indicates that when the parties married, LaKenya attended a Methodist church, and Desmond attended a Baptist church. After they married, each retained his/her own religious faith. According to Desmond, at some point, he joined a Pentecostal church, which held beliefs significantly different from those of the Baptist church. This difference in religious beliefs became a matter of significant contention between the parties. According to LaKenya, after Desmond joined the Pentecostal church, he became controlling, indicating that things were to be done his way or no way, and constantly stating unless she accepted the tenets of his religion, she was doomed to “hellfire.” According to LaKenya, Desmond’s actions made her feel as if she were merely a piece of property. She felt that Desmond’s religion turned “him into somebody he wasn’t previously” and caused him to turn his back on his family, and she wanted no part of it. Clearly, the actions of Desmond negatively impacted the enjoyment of the marital contract.

¶ 17. While finding that LaKenya had failed to establish any ground for obtaining a divorce, the chancellor did find that her testimony was more credible than Desmond’s. Additionally, the chancellor found that the changes in Desmond as a result of his current religious affiliation created marital discord and was a factor in LaKenya’s decision to leave the marital home. A spouse is not entitled to separate maintenance when that spouse’s conduct has materially contributed to the separation. Marble v. Marble, 457 So.2d 1342, 1343 (Miss.1984) (acknowledging that disputes over differing religious views can be a contributing factor in preventing separate maintenance). This type of conduct may be found as fault sufficient to deny separate maintenance, and as such, the chancellor held that Desmond was not entitled to separate maintenance. Because the record does in fact contain substantial evidence which supports that finding, this issue is without merit.

3. Freedom of Religion

¶ 18. Desmond suggests that the chancellor’s custody determination and denial of separate maintenance is a violation of his constitutional right to freedom of religion. The First Amendment to the United States Constitution guarantees that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const, amend. I.

¶ 19. In this case, Desmond bases his claim of religious discrimination on exchanges within the record where the chancellor provided his opinion that Desmond should reconsider his attitude toward the children and “rethink the idea that children should always be told the truth.” Desmond asserts that his idea regarding truthfulness is based on his religious beliefs. The chancellor’s view on Desmond’s attitude was in no way derogatory toward a religious practice.

¶20. The chancellor was careful to point out that Desmond had the right to practice any religion, and the court found no fault in Desmond’s religious beliefs. The supreme court has held that stating an opinion regarding a party’s religious practices is not sufficient to prove bias, or a constitutional violation, without further supporting evidence. See Muhammad v. Muhammad, 622 So.2d 1239, 1248 (Miss.1993). The record simply does not support the contention that the chancellor’s decision regarding the issues of custody and separate maintenance were in any way influenced by Desmond’s religion. The chancellor’s decisions do not appear to be the result of any bias. Accordingly, we find this issue is without merit.

4. Attorney’s Fees

¶ 21. Desmond further argues the chancellor erred in failing to grant his request for attorney’s fees. An award of attorney’s fees in domestic cases is a matter entrusted to the chancellor’s discretion. Woodell v. Parker, 860 So.2d 781, 790 (¶ 38) (Miss.2003) (citations omitted). Generally, attorney’s fees are not awarded unless the party requesting such fees has demonstrated an inability to pay. Dunn v. Dunn, 609 So.2d 1277, 1287 (Miss.1992). However, attorney’s fees may also be properly awarded where one party’s actions have caused the opposing party to incur additional legal fees. Stuart v. Stuart, 956 So.2d 295, 299 (¶ 20) (Miss.Ct.App.2006) (citation omitted). As neither party prevailed on all issues, there is no suggestion that one party caused the other to incur additional legal fees. Furthermore, Desmond failed to present any evidence concerning the amount of attorney’s fees accrued or his inability to pay. We find no error in the chancellor’s decision to deny Desmond’s request for attorney’s fees.

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

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


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Lisa M. McCARTY (Kole), Appellant v. Jeremy McCARTY, Appellee.
    No. 2009-CA-01062-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.

      Jimmy D. McGuire, Gulfport, attorney for appellant.
    Mark V. Knighten, attorney for appellee.
    Before LEE, P.J., GRIFFIS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. As part of their 2004 irreconcilable-differences divorce, Lisa Kole and Jeremy McCarty agreed to joint physical custody of their two children. But constantly exchanging the children between them soon became unworkable, prompting each to file motions to modify custody. In 2009, the Jackson County Chancery Court modified the custody of Lisa and Jeremy’s two children, awarding Jeremy sole physical custody and Lisa visitation.

¶ 2. On appeal, Lisa challenges the evi-dentiary basis for the chancellor’s modification. She argues the chancellor placed too much emphasis on unreliable evidence supporting Jeremy’s custody award and too little weight on evidence showing Jeremy was a bad parent. Since these questions concern the weight of the evidence, we defer to the chancellor. Because his decision is supported by substantial evidence, we find no manifest error and affirm the custody modification.

BACKGROUND

¶ 3. Lisa and Jeremy’s two children, Jul-ianna and Jacob, were ages four and one at the time of the 2004 irreconcilable-differences divorce. The parents agreed to joint physical custody.

¶ 4. Both parents remarried. Lisa married Ron Kole in January 2005, after becoming pregnant with his child before her divorce from Jeremy was finalized. And Jeremy married Karen in 2007, with whom he had been sexually involved prior to his divorce from Lisa. As expected, the record strongly supports that neither parent got along with the other’s new spouse. Jeremy and Ron were involved in at least one fistfight while exchanging the children. And Lisa and Karen both exhibited extreme animosity toward one another. Lisa admitted she had drawn a picture of Karen in Julianna’s journal, as if Julianna had drawn it. She captioned the picture, “spit on Karen every day.” And Karen, in turn, wrote a nineteen-page, single-spaced typed letter to Lisa, which Lisa found threatening and insulting.

¶ 5. In 2005, Lisa sought to modify the joint-custody agreement and requested sole physical custody of both children. Jeremy responded with his own request for sole custody. For two years, neither parent pushed for a modification determination. But in 2007, they jointly requested the chancellor appoint a guardian ad litem (GAL).

¶ 6. The GAL filed a preliminary report in August 2007, expressing deep concern for Julianna, then seven years old, and her emotional stability. As a result of her preliminary investigations, the GAL concluded Lisa was mentally unhealthy and was using Julianna as a pawn in Lisa’s embattled relationship with Jeremy. The GAL recommended the chancellor immediately award Jeremy temporary custody of both children until she could present her final report to the chancellor for determination of whether permanent modification was in the children’s best interests. On August 30, 2007, the chancellor granted Jeremy temporary sole physical custody of Julianna and Jacob. He renewed this order twice over the next two years, while awaiting a final custody hearing.

¶ 7. In February 2009, the GAL entered her final report. Based on her interviews with both parents and both children, she perceived a material change in circumstances had occurred since the divorce. She considered the change detrimental to the children and reasoned a permanent modification of custody was in their best interests. The material change was Lisa’s manipulation of her children and interference with their relationship with their father. The GAL turned to the Albright factors to determine which custody arrangement would serve the children’s best interests. After concluding that, of the ten relevant factors, four were neutral, one favored Lisa, and five favored Jeremy, she recommended the chancellor award Jeremy custody.

¶ 8. On February 3, 2009, the chancellor began the custody-modification hearing, which ultimately concluded on May 12, 2009. The chancellor heard testimony from both parents and the GAL. He admitted into evidence Lisa’s drawing, Karen’s nineteen-page letter, and the GAL’s reports. But he excluded records of Jeremy’s three DUI convictions. The chancellor reasoned that because the convictions had occurred before the divorce, they were not relevant to the issues of a material change of circumstances since the divorce or Jeremy’s present character and parenting abilities. Because Lisa was unable to produce any evidence post-divorce alcohol or drug abuse by Jeremy, the chancellor excluded the misdemeanor convictions.

¶ 9. At the conclusion of the hearing, the chancellor denied Lisa’s motion for custody and granted Jeremy’s. The chancellor found a material change in circumstances had occurred, supported by his specific findings that “Lisa’s behavior toward her daughter Julianna, her severe preoccupation with Jeremy[] and his life and her hatred for Karen constitute a material change in circumstances since the original custody decree that has adversely impacted the children....”

¶ 10. The chancellor applied the Al-bright factors and determined it was in the best interests of the children to award Jeremy custody. Of the ten relevant factors, the chancellor found four were neutral and the other six favored Jeremy. On June 2, 2009, the chancellor ordered custody be permanently modified from joint to sole custody to Jeremy. Lisa timely appealed.

SCOPE OF OUR REVIEW

¶ 11. “The standard of review in child custody cases is limited.” Lorenz v. Strait, 987 So.2d 427, 430 (¶ 12) (Miss.2008). “This Court will not reverse a chancellor’s decision when supported by substantial evidence unless the chancellor either abused his discretion or based the decision on manifest factual or legal error.” Id. (citing Settle v. Galloway, 682 So.2d 1032, 1033 (Miss.1996)).

¶ 12. The chancellor decided that: (1) since the 2004 divorce, a material change in circumstances had occurred; and (2) it was in the best interests of the children to modify custody and award Jeremy permanent physical custody. Our review of these conclusions is limited to asking did the chancellor properly apply the law and did he base his decisions on substantial evidence.

DISCUSSION

I. The Evidence

¶ 13. Underlying Lisa’s challenge to the chancellor’s modification are three evidentiary decisions she claims were legal error. We begin by emphasizing that credibility and weight-of-evidence issues are factual issues for the chancellor to decide. Lorenz, 987 So.2d at 430 (¶ 12) (citing Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994)). We further note that the “[ajdmission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.” Blake v. Clein, 903 So.2d 710, 722 (¶ 30) (Miss.2005) (quoting Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 210 (¶ 36) (Miss.1998)). For the following reasons, we find no abuse of discretion in the chancellor’s treatment of the evidence.

A. The GAL’s Recommendations

¶ 14. Lisa argues the chancellor put undue weight on the GAL’s unreliable reports and recommendations. According to Lisa, the GAL neglected her duties and produced an unreliable report. She specifically claims the GAL (1) refused to consider certain relevant evidence — Jeremy’s past DUIs and Karen’s nineteen-page letter, (2) relied too heavily on other evidence — the interviews with Julianna, who she argues was too young to be relied upon, and (3) exhibited an irrational bias against the Koles due to a “misunderstanding” that led to the GAL trying to get a restraining order against Lisa’s husband, Ron.

¶ 15. Lisa further argues the GAL’s failures in themselves warrant reversal. But unlike the authority she cites in support, this is not a case where Mississippi statutory law mandated a GAL be appointed. Cf. Miss.Code Ann. § 43-21-121 (Rev. 2009) (listing circumstances when GAL must be appointed); In re D.K.L., 652 So.2d 184 (Miss.1995) (court-ordered appointment of a GAL to represent neglected child). Rather, here the parties mutually requested the chancellor appoint a GAL. So the underlying performance of the GAL is not the controlling issue. Instead, we focus on the chancellor’s performance in his role as fact-finder and whether the evidence supports his conclusion. Lorenz, 987 So.2d at 431 (¶ 16) (citing Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)).

¶ 16. The GAL’s reports and testimony was evidence. And as with all evidence presented, the chancellor, as the fact-finder, was tasked with deciding how much weight it deserved. Lorenz, 987 So.2d at 431 (¶ 16) (citing S.N.C. v. J.R.D. Jr., 755 So.2d 1077, 1082 (¶ 17) (Miss.2000)). The GAL testified at the custody hearing about the evidentiary basis of her report. She explained why she had relied on Julianna’s interview and how she made herself available to Lisa, through Lisa’s attorney, even after the restraining-order incident with Ron. She also explained that she did not consider Jeremy’s DUIs because no one had told her about them. And, even if someone had, she reasoned the convictions would have been too remote to be relevant to her analysis. She further explained she did not place a great deal of weight on Karen’s letter since she believed Karen was “venting” her frustration over Lisa’s jealousy. Satisfied that the GAL had performed her duties and provided a sound report, the chancellor gave her recommendations the appropriate weight he thought they deserved.

¶ 17. We also acknowledge that the chancellor did not merely adopt the GAL’s Albright findings. He instead conducted an independent analysis of these factors. Though he considered the report along with the other evidence, he differed with the GAL on certain points. Therefore, we find no abuse of discretion in drawing from the GAL reports in reaching his conclusions.

B. Karen’s Letter

¶ 18. Lisa offered Karen’s nineteen-page letter as evidence of Jeremy’s bad character and emotional instability. The chancellor considered the letter, reaching the same conclusion as the GAL — that Karen was merely venting frustration. The chancellor said he did not see how the letter showed Jeremy was emotionally manipulative, a conclusion the chancellor instead drew about Lisa when considering the emotional ties of the parent and child in his Albright analysis. In fact, he did not reason that the letter weighed against Jeremy at all.

¶ 19. Lisa takes serious issue with the chancellor’s assessment. She relies on a psychologist’s report describing the letter as threatening and the product of “grandiose” thinking. But we simply cannot reverse the chancellor’s decision because he drew what Lisa believes was the wrong conclusion. Rinehart v. Barnes, 819 So.2d 564, 567 (¶ 10) (Miss.Ct.App.2002). The chancellor supported his decision with credible evidence — (1) the GAL’s opinion, formed after considering Karen’s letter in context of her investigation, and (2) his own determination the letter was not relevant to Jeremy’s emotional stability. Thus, we find no abuse of discretion in the chancellor assigning the letter little evi-dentiary value.

C. Jeremy’s Pre-Divorce Behavior

¶ 20. Lisa takes issue with the chancellor’s refusal to admit evidence of Jeremy’s past drug and alcohol abuse, including three DUIs. She also complains the chancellor failed to consider Jeremy’s absence as a father to his three older sons from past relationships. Because this evidence referred to pre-divorce behavior, the chancellor concluded it was not relevant to the question of a material change after the divorce.

¶ 21. Although Lisa tried to admit the evidence of drugs and DUIs to show a pattern of conduct, she failed to produce any evidence of drug or alcohol abuse since the divorce to establish a present or more recent pattern. Because making eviden-tiary calls of this nature falls within the ambit of the chancellor’s discretion, we find no error in his conclusion that Jeremy’s pre-divorce behavior was not relevant to the subsequent modification request. M.R.E. 401; 402 (defining “relevant evidence” and proscribing irrelevant evidence as inadmissible). Further, the chancellor determined testimony about Jeremy’s relationship with his older children did not outweigh the evidence of Jeremy’s attentive relationship to Julianna and Jacob. This also falls within his province as the fact-finder. We find no abuse of discretion in the chancellor’s handling of this evidence.

II. The Child-Custody Modification

¶ 22. We next address the chancellor’s decision to modify custody. To modify a previous custody order, “the party seeking the change bears the initial burden of proving there has been a material change in circumstances ... adverse to the child’s welfare.” Anderson v. Anderson, 961 So.2d 55, 58 (¶ 6) (Miss.Ct.App.2007) (citing Thompson v. Thompson, 799 So.2d 919, 922 (¶ 8) (Miss.Ct.App.2001)). If the party meets this burden, “the chancellor may determine whether the best interest of the child requires a change in custody.” Id.

¶ 23. In determining whether an adverse material change has occurred, “the chancellor is required to consider the situation of the child in its totality and may not confine himself to consideration of isolated incidents or events.” Ferguson v. Ferguson, 782 So.2d 181, 183 (¶ 5) (Miss.Ct.App.2001) (citing Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991)). This court has noted, “[w]hen considering a modification of child custody, the proper approach [for chancellors] is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change.” Sturgis v. Sturgis, 792 So.2d 1020, 1025 (¶ 19) (Miss.Ct.App.2001). We find the chancellor properly followed this directive.

A. A Material Change in Circumstances Adversely Affecting the Welfare of the Children

¶ 24. The chancellor first found that Jeremy had proved an adverse material change in circumstances had occurred. The chancellor supported his determination with specific findings regarding Lisa’s behavior and its adverse affect on the children. Instead of limiting his conclusion to an isolated incident, he considered the totality of the circumstances since the divorce.

¶ 25. Lisa argues the chancellor erred in finding a material change because he based his decision on the fact Lisa hated Karen. Because Lisa’s feelings about Karen were well-known prior to the divorce, she claims the chancellor relied on a circumstance that has not changed since the divorce and failed to support his conclusion that a post-divorce change had occurred. But the chancellor agreed with the GAL that Lisa had an unhealthy preoccupation with Jeremy’s remarriage — a circumstance that occurred after the divorce — and supported his conclusions with post-divorce incidents between Lisa and Karen. He also considered Lisa’s post-divorce behavior toward Julianna. Therefore, we find appropriate support for his conclusion that a material change had occurred that adversely affected the welfare of the children.

B. The Best Interests of the Children

¶ 26. The chancellor next considered the relevant Albright factors, providing on-the-record analysis of each relevant factor. Sturgis, 792 So.2d at 1025 (¶21) (citing Powell v. Ayars, 792 So.2d 240, 244 (¶ 8) (Miss.2001)) (reversible error to fail to do an on-the-record analysis using Albright). He based his ultimate determination on the totality of the circumstances and the “polestar consideration” — the best interests of the children. Albright, 437 So.2d at 1005.

¶ 27. Lisa challenges the chancellor’s analysis of the following nine factors: (1) parenting skills, (2) the physical and mental health and age of the parent, (3) the emotional ties of parent and child, (4) moral fitness of the parents, (5) stability of the home environment, (6) age, health, and sex of the child, (7) continuity of care, (8) home, school, and community of record, and (9) preference of the child.

¶28. Regarding the first five factors, Lisa argues the chancellor came to the wrong conclusion on each of these factors because of his erroneous treatment of the GAL’s recommendations, Karen’s letter, and Jeremy’s past behavior. Because we found no error in the chancellor’s evaluation of this evidence, we find no error in his assessment of these factors.

¶ 29. Lisa also argues the chancellor erred in finding the factor regarding age, health, and sex of the child neutral because he failed to consider the tender-years doctrine. Because at the time of the modification hearing her daughter was seven and her son was four, she claims their tender years should favored her.

¶30. The tender-years doctrine has traditionally provided that if a “child is of such tender age as to require the mother’s care for his or her physical welfare, he or she should be awarded to the mother’s custody....” Montgomery v. Montgomery, 20 So.3d 39, 44 (¶ 22) (Miss.Ct.App.2009) (quoting Gilliland v. Gilliland, 969 So.2d 56, 66 (¶ 32) (Miss.Ct.App.2007)). But “[m]anifest error does not arise simply from failing to give custody of children of tender years to their mother.” Steverson v. Steverson, 846 So.2d 304, 306 (¶ 8) (Miss.Ct.App.2003). “Chancellors are required to weigh a number of factors, of which age is only one.” Id.

¶ 31. Further, “the supreme court has made clear that the tender-years doctrine has been diminished somewhat in recent years and is no longer absolute.” Montgomery, 20 So.3d at 44 (¶ 22) (citing Copeland v. Copeland, 904 So.2d 1066, 1075 (¶¶ 34-35) (Miss.2004)). The doctrine has been weakened to where it is now only a presumption. Law v. Page, 618 So.2d 96, 101 (Miss.1993). “The doctrine has become even less binding when the child is male.” Id. And “a child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So.2d 304, 307 (¶ 15) (Miss.1998) (citation omitted) (finding seven-year-old to be “long past the age that requires this type of special care from her mother”).

¶ 32. As Mercier illustrates, at seven years old, Julianna would likely be deemed past the age of needing her mother’s special care. Id. And although Jacob was only four, the tender-years doctrine is perhaps even less binding because he is male. Montgomery, 20 So.3d at 44 (¶ 22). Had the chancellor applied the tender-years doctrine, precedent indicates that its application would not mandate a finding in Lisa’s favor on this factor.

¶ 33. The chancellor found the factor of continuity of care to be also neutral. Lisa argues she was the primary caregiver of the children for the majority of their lives—a fact she claims the chancellor ignored. But she provides no evidence to support this allegation and fails to show a manifest factual error. In fact, the record shows Jeremy became the primary caregiver in 2007, when the chancellor awarded him temporary custody. See Swartzfager v. Derrick, 942 So.2d 255, 257-58 (¶¶ 9-10) (Miss.Ct.App.2006) (discussing the legal effect of a prolonged temporary custody award). Therefore, we find no error in the chancellor’s conclusion that this factor favored neither.

¶ 34. Considering the factor regarding home, school, and community of record, the chancellor found Julianna had improved in school since living with her father full time. Lisa argues the chancellor failed to consider evidence of Lisa’s actions that contributed to her improved grades. The chancellor made a factual determination based on the evidence presented, which we do not second-guess or find erroneous.

¶ 35. Regarding preference of the child, the chancellor properly found this factor to be irrelevant because neither child was old enough to state a preference. See Miss.Code Ann. § 93 — 11—65(l)(a) (Supp. 2010) (statutory allowance for children twelve years or older to state a preference, “[pjrovided ... the court shall find that both parties are fit and proper persons to have custody of the children”). Lisa argues the chancellor, nonetheless, improperly considered this factor because he relied of the GAL report, which found Julianna had a “preference” to live with her father. But the GAL did not conclude Julianna preferred to live with her father. Instead, she observed Julianna was much more comfortable talking about her relationship with Jeremy than talking about Lisa. This was not evidence of Julianna’s preference but instead evidence of her experience with both parents, an important circumstance in determining what was in her and her brother’s best interests.

¶ 36. Reviewing the chancellor’s analysis under Albright, we find no factual or legal errors.

CONCLUSION

¶ 37. Deciding custody of children is perhaps one of the most difficult decisions our courts must make. The task here was no doubt made more difficult by two parents whose pettiness, poor behavior, and disagreements are prominently highlighted. We know and accept that there are times when people cannot agree. For this reason, we have courts to decide these tough cases. We are also quite cognizant that there is “no mathematical formula for deciding such cases.” Even when a chancellor sensitively assesses Albright and its progeny, “the best the judiciary can offer is a good guess.”

¶ 38. Though the chancellor here was faced with a very close case, we find substantial evidence supported his determination that there had been a material change in circumstances. We also find no manifest error in his decision that it was in the children’s best interests that permanent physical custody be awarded to Jeremy. We therefore affirm the chancellor’s modification of custody.

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

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. KING, C.J., AND BARNES, J., CONCUR IN RESULT ONLY.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

      . The GAL thought the employment factor slightly favored Lisa, while the chancellor found this facts was neutral. The GAL thought both parents were equally morally fit, while the chancellor found this factor favored Jeremy. And the GAL and the chancellor differed on what other factors were relevant in reaching the final conclusion Jeremy should be awarded custody.

      . Brewer v. Brewer, 919 So.2d 135, 141 (¶21) (Miss.Ct.App.2005).

      . Buchanan v. Buchanan, 587 So.2d 892, 897 (Miss.1991).

        .Id.


author: IRVING, J.,

text:
    Delynn Delshae PITTMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00929-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.

      Edmund J. Phillips Jr., Newton, James E. Smith Jr., Carthage, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. Delynn Delshae Pittman was convicted of aggravated assault by a jury in the Leake County Circuit Court and was sentenced by the circuit court to serve eight years in the custody of the Mississippi Department of Corrections, with four years suspended and five years of post-release supervision. Feeling aggrieved, Pittman appeals and asserts that the circuit court erred in allowing an improper leading question and in allowing Officer Michael Harper to testify regarding Pittman’s body language during an interview.

¶ 2. We find no reversible error and consequently affirm the circuit court’s judgment.

FACTS

¶ 3. Pittman shot Roshea McCoy multiple times. McCoy survived, and Pittman was charged with and convicted of aggravated assault as a result of the shooting.

¶ 4. It is not clear from the record what prompted Pittman’s attack. There was evidence indicating that both McCoy and Pittman had attended a party in Leake County, although they had no altercation of any kind at the party. McCoy returned home after the party. Sometime thereafter, Pittman drove to McCoy’s home. Pittman did not go to McCoy’s home alone; Adi’ian Calhoun was in the front seat with Pittman, and Quincy Boyd was in the backseat of the vehicle. According to Quincy and McCoy, McCoy approached the vehicle and exchanged small talk with its occupants. McCoy testified that Pittman exited the vehicle, held a firearm in front of McCoy’s face, and demanded that McCoy “give it up.” McCoy thought that Pittman was joking and began to walk away.

¶ 5. McCoy testified that as he began to retreat from the vehicle, Calhoun exited the vehicle and physically assaulted McCoy. McCoy stated that as Calhoun held onto him, Pittman began firing his gun. Two shots had hit McCoy when McCoy’s girlfriend, Sally Boyd, exited McCoy’s home. Sally had heard the struggle and retrieved a gun before coming outside. Sally fired several shots in the air; she testified that the shots had no effect on the struggle in the yard, but McCoy testified that he believed that Sally’s appearance caused Calhoun to disengage and flee. According to McCoy, when Calhoun released him, he fled to some trees at the back of his property. McCoy testified that Pittman continued to fire as McCoy fled, and a third bullet entered and exited McCoy’s arm during his flight to the trees. McCoy hid in the trees until Pittman left, and eventually crawled back toward his house. Sally took McCoy to a hospital in Jackson, and he was released the following morning.

¶ 6. Quincy, who apparently remained in the backseat during the incident, testified about the shooting. He indicated that it was dark, but that he was able to see McCoy and Calhoun fighting; he also saw Pittman with a firearm, which Pittman fired multiple times. Quincy did not realize that McCoy had been shot. During his direct testimony, the prosecutor asked Quincy, “Was Adrian [Calhoun] trying to grab hold of Roshea [McCoy]?” Pittman’s attorney objected to the question as leading, but was overruled. At the time of Quincy’s testimony, McCoy had already testified that, during the confrontation, Calhoun grabbed him. After the objection was overruled, Quincy responded: “It was kind of dark and really you can’t see nothing, but they say he was trying to get in his pocket.”

¶ 7. Pittman gave a statement to law enforcement wherein he essentially denied intentionally shooting McCoy. Pittman told the officers that he and McCoy had gotten into an argument and ended up fighting over a firearm that McCoy had in his possession. Pittman stated that the gun went off during the struggle. Officer Harper testified at trial about Pittman’s statement, which was not recorded. According to Officer Harper, Pittman demonstrated how he and McCoy had engaged in a hand-to-hand struggle over the gun. Pittman claimed that the gun was on the ground and that they were struggling over it when the gun went off. Officer Harper questioned how that statement could be true, since McCoy was shot in the buttocks. Officer Harper testified that when he asked Pittman that question, Pittman slumped and seemed to have the “air” taken out of him. The prosecutor tried to get Officer Harper to testify about what the slump indicated, but McCoy’s attorney objected. The objection was sustained.

¶ 8. During cross-examination, Pittman’s attorney questioned Officer Harper about whether he had training as a “kinesthesiol-ogist.” Officer Harper responded that he had received formal training in reading body language during interviews. During redirect, the prosecutor asked Officer Harper again about what he believed Pittman’s slump indicated. Pittman’s attorney objected, but the circuit court found that Pittman had invited the line of questioning during cross-examination. Officer Harper then testified that the slump appeared to him to be a “confession slump.” Pittman never sought to voir dire Officer Harper as to his qualifications.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Leading Question

¶ 10. Pittman argues that the circuit court erred in overruling his objection to the prosecutor’s question to Quincy. The Mississippi Supreme Court has defined a leading question as “one that suggests to the witness the specific answer desired by the examining attorney.” Tanner v. State, 764 So.2d 385, 405 (¶ 58) (Miss.2000) (quoting Clemons v. State, 732 So.2d 883, 889 (¶25) (Miss.1999)). Although leading questions may be improper on direct examination, “[tjrial courts are given great discretion in permitting the use of such questions, and unless there has been a manifest abuse of discretion resulting in injury to the complaining party, we will not reverse the decision.” Id. (quoting Clemons, 732 So.2d at 889 (¶ 25)).

¶ 11. The question of which McCoy complains was: “Was Adrian [Calhoun] trying to grab hold of Roshea [McCoy]?” At the outset, we note that this question does not necessarily suggest a certain response. At worst, the question prompted Quincy to testify that Calhoun was attempting to grab McCoy.

¶ 12. Even if the question were leading, we find no reason to reverse the circuit court’s judgment on this ground. The answer that the State was attempting to elicit from Quincy had already been testified to by McCoy. Therefore, any error flowing from the question was harmless at worst. Additionally, Quincy answered the question and indicated that it was too dark to tell whether Calhoun was attempting to grab McCoy. Since Quincy did not give the answer that the State was allegedly trying to elicit, no injury could have resulted to Pittman as a result of the question and answer. Finally, it is within the circuit court’s discretion to allow leading questions, and we find no manifest abuse of that discretion.

¶ 13. Therefore, there is no merit to Pittman’s contention of error.

2. Officer Harper’s Testimony

¶ 14. Pittman complains that Officer Harper improperly offered expert testimony that Pittman’s body language indicated a “confession slump,” even though Officer Harper was never offered as an expert. We review the circuit court’s decision to allow Officer Harper’s testimony under an abuse-of-discretion standard. Williams v. State, 35 So.3d 480, 488 (¶ 25) (Miss.2010). “We will not reverse unless the trial court applied an improper legal standard resulting in prejudice to” Pittman. Id. (citing Ford v. State, 975 So.2d 859, 865 (¶ 16) (Miss.2008)).

¶ 15. While Officer Harper was not offered as an expert, Pittman’s attorney questioned Officer Harper about his training. Officer Harper then explained that he had been trained in observing and identifying body language. Pittman did not seek to further voir dire Officer Harper, and even after it became clear that the circuit court was going to allow Officer Harper to testify about Pittman’s body language, Pittman still did not request an opportunity to further question Officer Harper about his experience and training. Therefore, there was no error in allowing the testimony. Furthermore, even if it had been error to allow the testimony, it would be harmless at worst due to the overwhelming weight of the evidence against Pittman. Walton v. State, 998 So.2d 971, 976 (¶ 14) (Miss.2008).

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

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FOUR YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . We assume the attorney meant kinesiologist.


author: BARNES, J.,

text:
    David Martin ROBERT, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CA-01292-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.

      J. Stewart Parrish, Meridian, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   BARNES, J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. A jury in the Circuit Court of Kem-per County convicted David Martin Robert of depraved-heart murder. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. After Robert lost his direct appeal, the Mississippi Supreme Court granted his application for leave to seek post-conviction relief on the sole issue of ineffective assistance of counsel. Robert timely filed a motion for post-conviction relief in the Kemper County Circuit Court, attacking his conviction and sentence based upon his trial counsel’s admitted incompetence. An evidentiary hearing was held on the merits of Robert’s post-conviction relief claim for ineffective assistance of counsel. The trial court, in a fifty-two page opinion, denied Robert’s motion for post-conviction relief. Robert timely appealed. Finding no error in the circuit court’s decision, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. This case arose from a shooting that occurred in March 1999 at “The Other Side of Midnight,” a nightclub in rural Kemper County that left Lakel Cross dead. That evening, Robert, Anthony Rhone, and William Glass drove from Meridian to the club. Robert’s wife, Mary Ann, and her friend, Charlotte Curtis, drove to the club in a separate vehicle. Witnesses said the club was “packed” that evening. A fight broke out on the dance floor between Cross and Glass, with Robert and Rhone very close to the fight. Mary Ann and Charlotte were outside at the time. Someone turned the lights off and on in the club, signaling a fight was occurring, and the patrons exited the building. When the lights went out the final time, several witnesses heard and saw gunshots. Cross was shot five or six times. Testimony differs as to the timing, location, and number of shots fired. Robert claimed that he left the scene with his wife and Charlotte; Rhone and Glass were in a different vehicle.

¶ 4. During the murder investigation, Robert admitted in a statement to law enforcement that during the fight he had fired a nine millimeter pistol with a ten round clip loaded with “Black Talon” bullets. Robert’s statement, however, conflicted as to where he shot this gun and how many times. At one point, Robert told law enforcement he shot toward the ground, near Cross, and at another point, he stated he shot at the ceiling and the ground. At one time, he stated he shot his gun four times, but later he said he could not remember how many times he fired the gun. Initially, Robert told law enforcement officers he did not think he had shot Cross, but subsequently, in a tape-recorded statement to police, he stated he had told his wife, upon leaving the club, that he thought he had shot Cross. Robert also admitted he gave his gun to an individual to “put up” a few days after the shooting, and it was never located. Robert’s tape-recorded interview to law enforcement was transcribed into a seventeen-page statement, which was entered into evidence at trial. The murder investigation later revealed a possible motive for the crime: Cross had “snitched” on Glass to law enforcement authorities about a robbery of a Meridian clothing store in which Cross was also involved; Glass and Robert were friends. Also, Cross and Robert were allegedly in rival gangs.

¶ 5. In January 19, 2000, Robert was indicted for Cross’s murder. Robert was represented by court-appointed attorney James A. Williams. Robert’s trial commenced in May 2000. At trial, no witnesses definitely stated Robert had committed the crime; so Williams was hopeful for his client’s acquittal. Rhone testified, contrary to Robert’s statement, that Robert and Glass were already in a vehicle once Rhone exited the club after the shooting. Rhone claimed to have seen multiple gunshots coming from different areas of the club, but he could not identify a shooter. Debra Boyd testified that she saw two or three men fighting and five or six shots fired from one direction. In earlier statements to law enforcement Debra had implicated Sanders Ruffin as the shooter, who was also at the club that night. At trial, however, Debra could not identify a shooter. Charlotte was the only witness to testify that she definitively saw Robert with a gun that evening. Before she heard gunshots inside, Robert, Rhone, and Glass came outside to a vehicle. She said Robert retrieved a black gun from the trunk of the vehicle and went back inside the club. Charlotte heard more than two shots inside the club, and two shots outside, as well. When she and Mary Ann were leaving, Robert got out of the car with Rhone and Glass and got into Mary Ann’s vehicle. Charlotte then heard Robert tell Mary Ann that Glass had beat up Cross. She testified that Robert also bragged to Mary Ann about shooting Cross, and that his gun held ten bullets, but there were none left. Tyrone Hill, a friend of the victim, was also at the club that night. He testified that neither he nor Cross had a firearm or weapon that evening, and that they had no intention of fighting anyone at the club. Hill saw two men fighting but could not identify them. The last time the lights went out, Hill heard gunshots and saw the fire of the bullets moving down to the floor. He testified he heard four gunshots inside and additional gunshots outside, but he could not identify any of the shooters. When he went back in the club, he saw Cross lying on the floor where two nurses were trying to revive him. On cross-examination, Hill stated he heard more than three shots — either four, five, or six shots inside, and two or three shots outside.

¶ 6. Williams remained Robert’s counsel through his direct appeal. Williams did not raise his own ineffective assistance on direct appeal. Williams did, however, attach an affidavit to Robert’s application for leave to file a motion for post-conviction relief with the supreme court, listing in detail numerous instances wherein he found his representation of Robert ineffective.

¶ 7. Additionally, we note that Robert’s motion for leave to file a motion for post-conviction relief, and the motion itself, were entitled “pro se.” At the post-conviction relief evidentiary hearing in June 2006, Williams admitted to drafting the “pro se” documents for Robert. A memo, entered into evidence at the hearing, written by Williams to Robert’s family, quoted a fee of $20,000 to file the motion for post-conviction relief in the supreme court and for filing a petition for federal habeas corpus relief. The fee originally was to be split between Williams and another lawyer. Williams testified he was paid $5,000 by Robert’s uncle for drafting the post-conviction relief motion, but he returned the money. Evidence of these transactions were entered at the hearing. Williams denied committing a fraud upon the court by intentionally failing to raise certain issues on direct appeal. The circuit court took “judicial notice that the pleadings on file in this case were prepared by Honorable James A. Williams in direct conflict with his position as a competent and able attorney.”

¶ 8. Robert’s current attorney, J. Stewart Parrish, filed an entry of appearance in the circuit court on March 16, 2006, after the motion for post-conviction relief was filed, but before its evidentiary hearing. At the hearing, Parrish called and examined only one individual, Williams, who testified as an adverse witness concerning his performance and ineffectiveness. In finding that Williams provided competent counsel and in denying Robert’s motion for post-conviction relief, the circuit court relied on Williams’s testimony presented at the hearing. Robert raises one issue before this Court: ineffective assistance of counsel by Williams.

STANDARD OF REVIEW

¶ 9. This Court will not disturb the trial court’s factual findings in denying a motion for post-conviction relief unless those findings are “clearly erroneous.” Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999) (citing Bank of Miss. v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)). This Court “must examine the entire record and accept ‘that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact....’” Loden v. State, 971 So.2d 548, 572-73 (¶ 59) (Miss.2007) (quoting Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987)). Deference to the circuit judge will be given as the “sole authority for determining credibility of the witnesses.” Id. (quoting Mullins, 515 So.2d at 1189). Only when the appellate court has a strong conviction that a mistake has been made will it reverse the findings of the trial court. Johns v. State, 926 So.2d 188, 194 (¶ 29) (Miss.2006) (citing Bryan v. Holzer, 589 So.2d 648, 659 (Miss.1991)). Questions of law are reviewed de novo. Brown, 731 So.2d at 598 (¶ 6) (citing Bank of Miss., 677 So.2d at 191). Robert’s burden of proof at the evidentiary hearing in the circuit court was by a preponderance of evidence. Miss.Code Ann. § 99-39-23(7) (Rev. 2000).

ANALYSIS

¶ 10. The touchstone for ineffective assistance is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland’s two-part test must be satisfied for ineffective assistance of counsel; the defendant must show that: (1) his counsel’s performance was deficient, and (2) the deficiency prejudiced the defense. Irby v. State, 893 So.2d 1042, 1048 (¶ 25) (Miss.2004) (citing Carr v. State, 873 So.2d 991, 1003 (1127) (Miss.2004)). There is a presumption that an attorney’s performance is competent, “with a strong presumption that the conduct fell within the wide range of professional assistance.” Johns, 926 So.2d at 194 (¶ 30) (citing Hiter v. State, 660 So.2d 961, 965 (Miss.1995)). The Strickland standard demands a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial. Id. at 195 (¶ 31). The deficiency and prejudice are measured by looking at the totality of the circumstances. Hiter, 660 So.2d at 965 (citing Carney v. State, 525 So.2d 776, 780 (Miss.1988)). In order to overcome the presumption of competence, “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Johns, 926 So.2d at 195 (¶ 31) (citing Schmitt v. State, 560 So.2d 148, 154 (Miss.1990)).

¶ 11. The defendant is not entitled to representation without mistakes, but competent representation. Mohr v. State, 584 So.2d 426, 430 (Miss.1991). “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction.... ” Lambert v. State, 462 So.2d 308, 316 (Miss.1984) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Further, the United States Supreme Court has stated that, in adjudicating a claim of actual ineffectiveness of counsel, the rules are not mechanical, and the adjudicating court does not need:

to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.

Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

¶ 12. The circuit court, after careful examination of the trial and post-conviction relief transcripts, enumerated the errors elicited from Williams at the evidentiary hearing in its detailed fifty-two page opinion. It was noted that at the evidentiary hearing, Robert did not stand up and affirmatively plead not guilty. Robert did not testify that his attorney was incompetent. There was no testimony that anybody but Robert committed the offense, and no one else confessed to the murder. The circuit judge found that the alleged deficiencies were mainly trial tactics and concluded that he was not convinced that, but for the alleged deficiencies, the outcome of the trial would have been different.

¶ 13. On appeal, Robert maintains Williams’s representation of him was deficient and prejudiced the outcome of the trial. We are mindful that these alleged errors must be measured within the totality of the circumstances as to whether they prejudiced Robert. See Hiter, 660 So.2d at 965. We shall discuss the deficiencies and prejudices Robert raises on appeal in turn.

1. Witnesses

¶ 14. Robert argues Williams’s performance was deficient for either failing to subpoena, call, or adequately examine several witnesses at trial whom Robert claims would have placed a reasonable doubt into the jurors’ minds as to whether Robert shot and killed Cross.

¶ 15. First, Robert claims Williams’s performance was deficient for failing to request a continuance so that eyewitness Cedric Boyd could be located, served a subpoena, and testify at trial. Robert claims Cedric would have testified that someone other than Robert shot Cross; thus, the jury would not have convicted Robert for the crime. Robert further argues that even if Cedric were unavailable, Williams should have filed a notice of intent to use a prior statement by an unavailable declarant, pursuant to Mississippi Rules of Evidence 804(b)(5), the general hearsay exception, in order to have Cedric’s identification of a different shooter other than Robert admitted into evidence.

¶ 16. At the post-conviction relief evi-dentiary hearing, Williams testified he did issue a subpoena on April 21, 2000, for Cedric to appear at trial, but it was never served, as Williams learned that Cedric was in the military and stationed in Germany. In Cedric’s statement to Deputy Milton Orr in April 1999, which is a part of Robert’s record of his motion for post-conviction relief proceedings before the circuit court, Cedric stated he was at the club during the shooting, and had been shown a photographic lineup of four individuals, including Robert, as well as Glass and Ruffin, the unindicted co-conspirators. Cedric identified Glass as Cross’s shooter in this statement to law enforcement. Additionally, the night of the incident, Cedric gave another statement to law enforcement — that a man with “Don King hair,” or “wild hair,” shot Cross. However, Williams said, at the evidentiary hearing, to his knowledge Robert did not have wild hair at the time in question.

¶ 17. Robert also complains that Debra, Cedric’s mother, who was a disinterested bystander at the club on the evening of the shooting, was not thoroughly examined by Williams at trial. Debra, in her statement to Deputy Orr which was taken in April 1999, stated she was behind the bar when the fighting started on the dance floor and the shots were fired. Debra had previously given a statement to law enforcement identifying Ruffin from photographs as the shooter, but at trial, she was unwilling to specifically identify a shooter. Robert claims Williams should have raised Debra’s prior inconsistent statement during his examination of her— that she had identified a shooter other than Robert — and then the jury would not have convicted Robert.

¶ 18. Robert does not meet his burden of proof in explaining how calling Cedric to testify or further examining Debra would have changed the outcome of the trial. Since Cedric and Debra were not called to testify at the post-conviction relief eviden-tiary hearing, neither Robert nor this Court can speculate as to exactly what their testimonies would have been. On the stand, Cedric may have changed his testimony from his prior statement, and it may not have been favorable to Robert. At trial, while Debra was not examined about her prior statement identifying Ruffin as the shooter, Williams did have her silently reread the statement she made to the police to refresh her memory. Then, when Williams asked her which male she had described in her statement shot Cross, she responded, “I didn’t really see the person that shot [Cross].” She added that: several men were fighting with chairs; the lights went out; and over six gunshots were fired. When Williams asked if she could identify anybody in the courtroom as the person whom she thought may have had either a gun or a flashlight in his hand, Debra could not. At this time Rhone and Robert were in the courtroom. Williams later admitted that he did not press Debra on identifying a shooter because he thought it sufficient that she did not identify Robert as the shooter. We agree with the trial court that Williams’s decision not to examine Debra about her previous identification of another shooter was trial strategy.

¶ 19. Second, Robert claims Williams’s cross-examination of the State’s witness, Charlotte, was deficient, and that her testimony should have been impeached by calling another witness. Charlotte, who is a friend of Robert’s wife, Mary Ann, rode with Mary Ann to the club. Charlotte gave incriminating testimony on the stand, stating that before the shooting, she saw Robert, Rhone, and Glass come outside the club to a parked vehicle. Charlotte saw Robert retrieve a black gun from the trunk and heard him say he was going to “close the club down” because Cross “told something on them.” Five minutes later, Charlotte heard numerous shots fired inside the club and saw people exiting it. Robert, who at that point was in a different vehicle that was blocked in, got out of that vehicle and got into his wife’s vehicle, which could exit the parking lot faster. When they were leaving the club, Robert bragged about shooting Cross, and he boasted that his gun held ten bullets, but they were all gone.

¶ 20. At the post-conviction relief hearing, however, Robert’s counsel brought out that there was a conflicting statement from Bertha Cooper, Rhone’s girlfriend, which would indicate Charlotte had lied on the stand. In Cooper’s statement to police investigator Danny Knight, which was provided to the defense in discovery, Cooper stated that she, Robert, and Mary Ann left the club in her vehicle, not Mary Ann’s, and Charlotte was not present. Cooper, however, was not called to testify at trial, nor was she subpoenaed by the defense. Because Williams did not impeach Charlotte’s testimony on cross-examination with Cooper’s contradictory statement, Robert claims his defense was prejudiced. However, Cooper was not called to testify at the post-conviction relief hearing as to what she would have stated at trial if called as a witness.

¶ 21. After reviewing the trial transcript, we find Williams adequately examined Charlotte on cross and attempted to impeach her testimony about Robert’s “admitting” that he had shot Cross. Williams elicited from Charlotte that Robert never stated to her that he had shot Cross a certain number of times, just that he had fired his gun. We cannot conclude that a more detailed cross-examination by Williams would have changed the outcome of the trial.

¶ 22. Robert has not proven that these alleged omissions by Williams regarding the trial witnesses, in and of themselves, would have substantially changed the result of the trial. Williams admitted at the hearing that it is difficult to predict what a witness will do on the stand at trial. We find no merit to Robert’s contentions.

2. Ballistics Evidence

¶ 23. Robert also argues that Williams’s performance was deficient in failing to have the shell casings found at the club and the bullet found in the victim’s body sent to the Mississippi Crime Laboratory for ballistic comparison tests. Additionally, Robert claims that Williams should have objected at trial to allowing the testimony of Dr. Steven Hayne, a forensic pathologist, who testified about the victim’s cause of death. Robert claims Dr. Hayne testified outside of his area of expertise about the type of bullet recovered from Cross’s body. Robert admits, though, that these omissions, in and of themselves, would not have swayed the jury’s verdict, but taken cumulatively, they could have impacted the trial’s outcome.

¶ 24. Robert claims a ballistic comparison would have shown whether or not the shell casings were all fired from the same weapon, and the caliber and brand of ammunition used. He states the test results might have eliminated his handgun, a nine millimeter, as the lethal weapon, if all the casings were found to be a different caliber. However, Officer Knight testified all of the shell casings he found were nine millimeter and were at the crime lab. While Robert speculates as to what additional examination might have revealed, this is insüfficient to establish ineffective assistance of counsel. Robert has to prove by a preponderance of evidence that tests would have revealed these differences, and he did not. Since the shell casings are apparently no longer available, he cannot meet this burden.

¶ 25. Robert also claims Williams should have objected to Dr. Hayne’s testimony on direct examination that the fatal shots were fired with a “Black Talon” bullet, which is the kind of bullet Robert told law enforcement he had in his firearm that night. Robert speculates that if the bullet in Cross’s body was determined not to be a nine millimeter or a “Black Talon” bullet, it would have rendered his statement about the bullets inconsistent, and he would have been acquitted.

¶ 26. We do not agree that these contentions, taken either individually or cumulatively, would have resulted in a “not guilty” verdict. Whether or not to have certain tests done on evidence, especially in ballistics, is a tactical decision. It may have been better for Williams not to know this information, because if the ballistics test results came back matching the shell casings or the bullet to Robert’s handgun, it could have greatly undermined Robert’s defense. Apparently, the State found the shell casings were from a nine millimeter firearm; so any testing ordered by Williams would have not aided his defense.

¶27. Further, we do not find Dr. Hayne’s testimony on the ballistics prejudiced Robei’t to the extent that he was denied a fair trial. Williams adequately cross-examined Dr. Hayne about his ballistics statements. At the hearing, Williams admitted that Dr. Hayne would have undoubtedly seen a wound made from a “Black Talon” bullet in his prior extensive experience as a forensic pathologist, and this issue would fall under his area of expertise.

¶ 28. Accordingly, we affirm the trial court’s detei'mination that Robert has failed to prove by a preponderance of the evidence that his defense counsel’s inac-tions resulted in a prejudicial outcome to his trial.

3. Preparation

¶ 29. Robei’t complains that Williams failed to conduct the minimum amount of investigation requii’ed for rendering competent assistance during the initial investigative and discovery stage of his case. He cites Payton v. State, 708 So.2d 559, 561 (¶ 7) (Miss.1998) for the proposition that “counsel has a duty to interview potential witnesses and to make independent investigation of the facts and circumstances of the case.”

¶ 30. Robei't claims Williams never questioned him about the entire circumstances surrounding the shooting, and if Williams had spent more time interviewing him, Williams would have uncovered key pieces of evidence that would have resulted in a “not guilty” vei’dict. Also, Williams did not redact portions of the statement Robert gave to law enforcement, which was entered into evidence, that contained references to Robert’s gang affiliation and the previous crimes by the victim. Finally, Robert argues Williams failed to subpoena certain key witnesses until the day of the trial, which shows Williams’s total lack of preparation for trial.

¶ 31. Robert analogizes the instant case to Johns v. State, 926 So.2d 188, 190 (¶ 2) (Miss.2006), where the supreme court reversed and remanded the defendant’s conviction for a new trial because Oliver Johns did not receive constitutionally effective assistance of counsel. Both the State, at the post-conviction relief hearing, and the circuit court, in its opinion, distinguished Johns from Robert’s case. We agree with the circuit court that while there are some factual similarities between Johns and the instant case, the cases are quite different.

¶ 32. In Johns, the attorney at issue did very little preparation or discovery in the short time he had before trial (an omnibus hearing set trial less than a month away, and it was forty-nine days from the indictment to the verdict). Id. at 193 (¶ 19), 195 (¶ 33), 197 (¶ 42). Counsel filed no pretrial pleadings. Id. at 195 (¶ 34). Johns’s primary argument was that his counsel failed to interview alibi witnesses that were provided to him before trial. Id. at 196 (¶ 38). The morning of the trial was the first time Johns found out that his counsel was not going to call any witnesses in his defense. Id. at 195 (¶ 26). Johns’s parents were so disappointed at his counsel’s performance at trial that they attempted to find another attorney midway through the trial. Id. at 195 (¶ 28). The supreme court concluded that counsel’s failure to investigate the case prejudiced Johns because the testimony of the alibi witnesses, coupled with the fact there was no physical evidence to convict Johns, could have changed the outcome of the trial. Id. at 200 (¶ 54).

¶ 33. In the instant case, Williams admitted he was very hopeful about Robert’s case until the jury reached its verdict. Then, Williams “was very upset at the verdict.... I doubted they were fair.... I just felt like it needed to come to this [post-conviction relief].” But the record indicates Williams investigated the case and was prepared for the trial. Williams had eight to nine months to prepare for trial. He testified, during his cross-examination, that he felt prepared by the May 2000 trial date. The evidence presented during the post-conviction relief hearing shows Williams’s adequate preparation: he interviewed numerous potential witnesses, took pages of pretrial notes on the case, visited the scene of the crime, did what he could to try to obtain the photographic lineup from law enforcement, researched the legal issues, attempted to issue subpoenas on all appropriate witnesses, and met with his client.

¶ 34. Specifically, Williams attempted to find Debra and other witnesses to testify in Robert’s defense by hiring a private investigator. While perhaps Williams should have done more “in person” investigating, we find this potential deficiency did not change the outcome of the trial. Williams did personally visit the crime scene and attempted to obtain a copy of the photographic lineup used by law enforcement, but he was told the officers could not locate it.

¶ 35. Williams met with Robert prior to trial in order to prepare, not to solicit payment for his services, as in Johns. While Williams did not subpoena Glass or Rhone until the day of trial, the trial judge accepted them as witnesses. Williams had subpoenas issued for two other witnesses prior to trial, including Cedric. Also, Williams submitted to the court a list of witnesses that included thirteen individuals. Williams additionally filed a post-trial motion for a new trial or, in the alternative, a judgment notwithstanding the verdict, listing sixteen points of error.

¶ 36. The first day of the trial, Williams filed a motion to suppress certain statements made by Robert and his wife to law enforcement officers who were investigating the case. While the motion was denied, Williams argued that the statements were involuntary. He made numerous objections during the hearing on the motion. Also, Robert had no alibi witnesses in his defense to call, unlike the situation in Johns; instead, Williams called Rhone, Debra, and another individual to testify. Rhone and Debra were at the crime scene and were adequately examined about their versions of the incident. During direct examination by the defense, Rhone testified that prior to the fight, Glass had warned that if Cross kept on “messing with [him],” he was going to have to “steel him,” or start a fight with him. Based on the foregoing, we cannot find Williams was incompetent regarding his preparation in this case.

¶ 37. Further, we find Williams’s failure to redact Robert’s statement about his gang affiliation did not prejudice the outcome of his trial when considered under the totality of the circumstances. In an interview with Officer Knight, Robert admitted he was a Crip, but not an active member. He stated that he did not know, until after the murder, that Cross was a member of a rival gang, the Vice Lords. Additionally, Robert said in his statement that the two gangs were “alright”; that is, they were not in conflict at the time. We cannot find that this statement so prejudiced the defense so as to affect the outcome of the case.

¶ 38. Interestingly, there is no evidence Robert was in any way dissatisfied with his counsel’s performance until the filing of the instant motion, unlike in Johns. In fact, by all of the evidence, Robert appeared to be quite pleased with Williams’s representation, and he even wrote Williams unsolicited letters from prison naming other possible clients. Robert kept Williams as counsel on his direct appeal. Moreover, even after losing his direct appeal, the evidence shows Robert wanted to keep Williams as his counsel for a post-conviction relief challenge. Robert stated in this regard, in a letter from prison, “I don’t think there is anyone more qualified for the job.” The record shows Robert’s family paid Williams to draft, and Williams admitted he did draft, the necessary application for post-conviction relief filed with the supreme court, as well as the post-conviction relief motion itself before the circuit court wherein he claimed his own ineffectiveness, even though the motion was entitled “pro se.”

¶ 39. Based on the foregoing, we cannot conclude that the trial court erred in finding that Williams’s alleged deficiencies in his investigation of the case and preparation for trial did not affect the outcome of his case.

CONCLUSION

¶ 40. We find the evidence supports the findings of fact made by the circuit court judge. Robert did not prove his claim of ineffective assistance of counsel. While Williams may have made some mistakes, Robert received constitutionally effective assistance of counsel at trial and on direct appeal, as we cannot find that any of Williams’s alleged errors or deficiencies substantially affected the outcome of Robert’s trial. An unexpected jury verdict is not grounds for ineffective assistance of counsel. Accordingly, we affirm the circuit court’s denial of Robert’s motion for post-conviction relief.

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

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

      . Robert v. State, 821 So.2d 812 (Miss.2002).

      . Ruffin exercised his Fifth Amendment right not to testify at Robert’s trial. See U.S. Const. amend. V.

      . Williams testified at the hearing that: a complaint was filed against him with the Mississippi Bar for these actions; it was resolved; and he was disciplined by the Bar, but there is no further information in the record about this matter.

      . We note the record was inadequate on appeal; both Robert and the State erred in this regard. Robert only designated the order denying his motion to reconsider his post-conviction relief motion, his notice of appeal, an original and corrected sentencing mandate from the supreme court, and the direct examination of Williams. We find that, pursuant to Mississippi Rule of Appellate Procedure 10(b)(2), this designation was inadequate. Since Robert is contending that the court's ruling was contrary to the evidence, he should have designated the "transcript of all evidence relevant to such finding,” not just the evidence favorable to his position. Not in-eluded in the record was Robert's post-conviction relief motion with Williams's attached affidavit enumerating his incompetence, any response by the State to the motion, Williams’s cross-examination at the remainder of the hearing, and the twenty-six exhibits entered into evidence at the hearing. The State made no effort to correct the record to include these matters pursuant to Rule 10(b)(5) or 10(e). This Court did so on its own initiative. Further, this Court had the original trial transcript from the direct appeal available for review and relied upon all of these materials in thoroughly reviewing the issues before the Court.

      . In his brief, Robert does not discuss several of the alleged deficiencies he raised at the evidentiary hearing before the circuit court. Accordingly, these allegations are deemed abandoned. Holloman v. State, 656 So.2d 1134, 1141 (Miss.1995) (citing Magee v. State, 542 So.2d 228, 234 (Miss.1989)).

      . Debra purposefully had been avoiding service of the subpoena, supposedly because she was "afraid.” Williams was finally able to locate her, and she was properly served a subpoena three weeks before trial, according to the trial transcript. Debra was not at the courthouse when the defense called her initially, but she did testify on the second day of trial.

      . Rhone testified for the defense, but Glass did not.