author: ROBERTS, J., KING, C.J.,

text:
    Anthony Terrell BOOKER a/k/a Robert Booker, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02143-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2008.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General, by W. Daniel Hinchcliff, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

ROBERTS, J.,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this modified opinion is substituted in lieu of our previous opinion.

¶ 2. Anthony Terrell Booker was arrested on January 6, 2003, for the murder of Dorian Johnson. He was indicted on October 9, 2003 by the Jackson County grand jury for capital murder. Convicted in a jury trial, which commenced on May 17, 2004, Booker was sentenced to life imprisonment without the possibility of parole. Aggrieved, Booker appeals and asserts the following issues, which we quote verbatim:

1. BARELY SIXTEEN YEARS [OLD] AT THE TIME OF THE CRIME HE WAS CHARGED WITH, AND LIKELY RETARDED, MR. BOOKER WAS DENIED CONSIDERATION FOR A TRANSFER HEARING TO YOUTH COURT. THE STATUTES PERMIT IT AND IT WAS ERROR UNDER GARY V. STATE FOR THIS OPTION NOT TO BE CONSIDERED;

2. THE PROSECUTORS BLATANTLY VIOLATED BATSON BY MISREPRESENTING FACTS TO THE COURT AND WHEN THE TRIAL COURT WAS MADE AWARE OF THIS IT ERRED IN NOT GRANTING MR. BOOKER A NEW TRIAL;

3. MR. BOOKER WAS DENIED HIS RIGHT TO A SPEEDY TRIAL UNDER THE MISSISSIPPI AND UNITED STATES CONSTITUTIONS;

4. THE TRIAL COURT ERRED IN DENYING MR. BOOKER’S MOTION TO SUPPRESS HIS STATEMENT AS IT WAS SECURED IN VIOLATION OF THE MISSISSIPPI AND UNITED STATES CONSTITUTIONS;

5. THE TRIAL COURT ERRED IN PERMITTING DR. MCGARRY TO RENDER IRRELEVANT AND HIGHLY PREJUDICIAL OPINIONS OUTSIDE HIS EXPERTISE AND NOT TENDERED IN DISCOVERY, THIS DESPITE A COURT ORDER SPECIFICALLY DESIGNED TO PREVENT THIS EVIDENTIARY BREACH;

6. THE TRIAL COURT ERRED IN ADMITTING THE PHOTOGRAPHS IN STATE’S EXHIBITS EIGHT AND NINE; AND

7. MR. BOOKER’S JURY WAS NOT SWORN WITH THE CAPITAL PETIT JURORS OATH AND HIS VERDICT IS UNLAWFUL AND UNCONSTITUTIONAL AS PER MISSISSIPPI SUPREME COURT DECISIONS.

Finding no error, we affirm.

FACTS

¶ 3. On December 30, 2002, Booker, Shawn Davis, Mary Searbough, and Desmond Shields were involved in the beating death of Dorian Johnson. At the urging of Scarbrough, Booker, Davis, and Scarb-rough met Johnson at a park where they began beating and kicking him. After the beating, the trio placed Johnson in the back of his Jeep and transported him to Vancleave. There the trio, now joined by Shields, continued the beating and took Johnson’s Jeep and wallet. After being reported missing by his family, Johnson was found in Vancleave on January 6, 2003. Johnson’s principal cause of death was determined to be severe blunt injuries to the head, although contributing causes included several severe cuts to his face and neck, broken ribs, and fluid buildup in his lungs. Booker, Davis, Scarbrough, and Shields were arrested on January 6, 2003, and charged with Johnson’s death. After filing a motion for severance on March 4, 2004, Booker was tried for his crime on May 17, 2004, and convicted and sentenced on May 20, 2004.

DISCUSSION

1. Whether the trial coivrt erred in not transferring Booker’s case.

¶ 4. Booker was sixteen years old at the time of Johnson’s death and his indictment for capital murder. Booker was seventeen years old when convicted of capital murder. Booker claims that because he had not reached the age of majority, had a low IQ score, and did not use a firearm in Johnson’s murder, his case should have been transferred to youth court. However, Booker’s trial counsel failed to raise this issue before the trial court. A trial judge cannot be held in error for an issue that has not been presented to him for a decision at the trial level. Milano v. State, 790 So.2d 179, 189(¶ 47) (Miss.2001) (citing Howard v. State, 507 So.2d 58, 63 (Miss.1987)). The appellate courts of Mississippi have no original jurisdiction and can only hear questions tried and passed on by the court from which the appeal has been taken. Id. (citing Patterson v. State, 594 So.2d 606, 609 (Miss.1992)). For this reason, this issue is not properly before this Court.

¶ 5. Even if the issue was not procedurally barred, it is without merit. Pursuant to Mississippi Code Annotated Section 43 — 21—151(l)(a) (Rev.2004), the circuit court has original jurisdiction over a child charged with capital murder. That section reads:

(1) The youth court shall have exclusive jurisdiction in all proceedings concerning a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child except in the following circumstances:

(a) Any act attempted or committed by a child, which if committed by an adult would be punishable under state or federal law by life imprisonment or death, will be in the original jurisdiction of the circuit court.

¶ 6. Because the circuit court had original jurisdiction over Booker, it was not required to consider alternative sentencing. Flowers v. State, 805 So.2d 654, 659(¶ 14) (Miss.Ct.App.2002). Therefore, this issue is without merit.

2. Whether the trial court erred in permitting the prosecution’s use of its peremptory strikes.

¶ 7. Booker, who is African American, claims that the trial court erred in accepting as race-neutral the reasons offered by the State for two of its four peremptory strikes against African-American on the venire. Pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a defendant must establish a prima facie case of purposeful discrimination by proving:

1. that the defendant is a member of a cognizable racial group;

2. that the prosecution exercised peremptory challenges to remove from the venire members because of the defendant’s race; and

3. that these facts and other relevant circumstances raise an inference that the prosecutor used that practice to exclude veniremen from the petit jury on account of their race.

Id. at 96, 106 S.Ct. 1712. Once the defendant has established a prima facie case of discrimination, the State must provide a race-neutral reason for each strike. Id. at 98, 106 S.Ct. 1712. The trial court then determines whether the defendant has established purposeful discrimination. Id.

¶ 8. Because four of the State’s peremptory strikes were exercised against four of the five African American veniremen, the trial court found that Booker had established a prima facie case of discrimination, and ordered the State to offer race-neutral reasons for each of the strikes. The two strikes with which Booker finds particular fault are those against Jurors 14 and 20.

¶ 9. Regarding Juror 14, Chauncey Thompson, the facts are entirely undisputed. After Booker raised his Batson objection, the district attorney and the assistant district attorney offered purported non-pretextual race-neutral reasons for exercising a peremptory challenge on Thompson. To be specific, the exchange between the prosecution and the trial judge proceeded as follows:

[PROSECUTOR]: Judge, the first Bat-son challenge arises with Juror Number 14 Chauncey Thompson. The State’s race neutral reason, Judge, is that, in checking the names of our jurors, we found that he has a marijuana conviction, a driver’s licence violation, an insurance violation, a seat belt violation in Pascagoula. He was convicted on 2/5/03. And on those bases, especially the marijuana conviction, Judge, we didn’t want a convicted marijuana holder on our jury.
THE COURT: And that information was verified through what source?
[PROSECUTOR]: Through the Pasca-goula City Court.
[DEFENSE ATTORNEY]: We’d like a copy of it. Judge, he’s a 29-year-old black male that works at Sears, Roebuck and Company and has a college education, and they want to kick him off. He was born and raised in this county.
THE COURT: Well, I find that the existence of that prior criminal history is sufficiently race-neutral to justify a peremptory challenge, a peremptory strike.
[DEFENSE ATTORNEY]: Judge, I’d like to see it.
THE COURT: If that information is available, Mr. Jones?
[PROSECUTOR]: Yes, sir. It’s a matter of record with the Pascagoula Municipal Court. His conviction date is February the 5th, 2003. You can go get it.
[DEFENSE ATTORNEY]: Well, I mean, I don’t have access to the Pasca-goula Police Department.
[DISTRICT ATTORNEY]: We just called, Your Honor. That’s how we got it, over the telephone.
[PROSECUTOR]: And I assure you we’re not making that up, Judge.

The trial court accepted the prosecution’s representation as race-neutral and allowed the prosecution to strike Thompson from the jury.

¶ 10. On August 13, 2004, the trial court conducted a hearing on Booker’s motion for a new trial. During that hearing, Booker, for the first time, produced an affidavit from Rhonda Diehl, the Pasca-goula City Court Clerk. According to Diehl’s affidavit, on the morning of May 17, 2004, she informed Investigator Scott Mcllrath of the District Attorney’s office that Thompson had been charged with the four misdemeanors, but Thompson had not been convicted of those four charges. Diehl indicated that she told Mcllrath that those charges had been dismissed because Thompson was not the person who had committed the offenses.

¶ 11. Confronted with this fact during the hearing on Booker’s motion for new trial, Anthony Lawrence, the district attorney, explained that, even had he been aware that the charges against Thompson had been dismissed, he still would have exercised a peremptory challenge against Thompson. Lawrence explained that Booker could have claimed misidentification as a defense, and if Booker had, he would not have wanted Thompson on the jury. Lawrence was of the opinion that Thompson, a victim of mistaken identity, would be sympathetic to Booker because Booker may claim misidentification as a defense. Lawrence also thought Thompson might harbor ill will against the prosecution.

¶ 12. The trial court found that Lawrence was not intentionally dishonest. The trial court stated:

In regard to the Batson challenges, I have not seen anything that would leave this Court to believe that the State of Mississippi at trial engaged in any conduct that would discriminate against the constitutional rights of a potential juror to serve as a juror in a criminal case here in the state of Mississippi. The reasons offered, I think — and I suppose, you know, there may be quibbling that we could do as to the particulars of each of those challenges, but the substance of the reason offered by the State of Mississippi at the time the challenge was made and the objection heard by the Court, the substance of those rulings I find to be substantiated by the affidavits and the exhibits that have been introduced here. You may quibble about the details but I find no evident untruths or dishonesty at all involved on the part of the State of Mississippi. The reasons submitted are essentially the reasons that were given at trial to exclude these particular jurors.... But your subsequent investigation as evidenced by these affidavits that you’ve submitted as exhibits don’t indicate to me any basis for believing, as you stated, that these were lies told by the State of Mississippi. I don’t find that to be accurate characterization at all.

Therefore, the trial court declined to grant Booker’s motion for a new trial. That is, the trial court was not convinced that the prosecution’s actions were pretextual. Booker argues that the trial court erred. We disagree.

¶ 13. Precedent dictates that we give great deference to the circuit court’s determinations under Batson because such findings are largely based on credibility. Flowers v. State, 947 So.2d 910, 917(¶8) (Miss.2007) (Flowers III). In reviewing a claim of a Batson violation, we will not overrule a circuit court unless the record indicates that the circuit court’s decision was clearly erroneous or contrary to the overwhelming weight of the evidence. Id. Here, we cannot conclude that the trial court’s decision was clearly erroneous or that it was contrary to the overwhelming weight of the evidence.

¶ 14. The State originally struck Thompson on the basis that Thompson had been convicted of four misdemeanors. There is no question that, had that information been correct, that would have been a sufficient race-neutral reason for exercising a peremptory challenge. Id. at 919-20(¶ 13) (“a juror’s prior criminal activity has been upheld as a race-neutral reason for exercising a peremptory challenge”). However, Thompson had not been convicted of four misdemeanors. Thompson had been arrested for the four indicated offenses, but he had not been convicted. Instead, the charges against him apparently were dismissed due to a case of mistaken identity.

¶ 15. In Flowers III, a prosecutor offered race-neutral reasons where the prosecutor challenged a potential juror on the basis that he had talked to “numerous officers,” and in so doing, the prosecutor learned that those numerous officers “had • pretty verbal run-ins with [the potential juror] about his resentment with the law.” Id. at 922(¶ 25). The potential juror also ’ had an outstanding warrant for contempt of court. Id.

¶ 16. The Mississippi Supreme Court held that, regardless of the reason the bench warrant was issued or the potential juror’s knowledge of it, the fact remained that there was an outstanding warrant for the potential juror at the time of trial. Further, the supreme court held that a juror’s criminal history is a valid race-neutral reason for exercising a peremptory strike. Id. at (¶ 26).

¶ 17. The supreme court also upheld a challenge of a potential juror on the basis that the potential juror’s son had been arrested on drug charges. Id. at 932 (¶ 54-56). The supreme court noted that the circuit court did not err when it did not require evidence of the potential juror’s son’s arrest. Id. The supreme court also noted that it had declined to set any limits on the use of any legitimate informational source available to a prosecutor regarding potential jurors. Further, the supreme court explained that a prosecutor does not have to question a juror in open court regarding such information before using it as a racially neutral ground for a peremptory strike. According to the supreme court, such peremptory strikes are permissible as long as the source of the information and the practice itself are not discriminatory. Id. Here, there is no evidence that the source of Lawrence’s information or the practice at issue was discriminatory.

¶ 18. In Johnson v. State, 875 So.2d 208, 210(¶ 5) (Miss.2004) (quoting Snow v. State, 800 So.2d 472, 479-81 (Miss.2001)), Justice Kay Cobb, writing for a unanimous Court, referenced Hatten v. State, 628 So.2d 294, 302 (Miss.1993) and stated, “Hatten does not require literal truth in the reason proffered. It only requires that there be some basis in fact sufficient to allow the court to make a reasonable judgment that it is not contrived.” In the case presently before us, there was sufficient basis in fact for the circuit court’s decision that the prosecutor’s stated reason was neither contrived nor improperly racially motivated.

¶ 19. To be entirely clear, this opinion is not to be construed as encouraging false justifications for the exercise of peremptory challenges. What is more, this opinion is not intended to suggest that there is ample potential to abuse the principles in Batson. The principal difficulty in Batson objections is that trial judges are essentially asked to read an attorney’s mind to determine the true motive behind a peremptory strike. It is impossible that a trial judge truly knows whether an attorney’s reason for a strike is a mere pretext for eliminating a juror for a constitutionally prohibited reason.

¶ 20. This case clearly illustrates why United States Supreme Court Justice Thurgood Marshall and former Mississippi Supreme Court Justice Mike Sullivan believe that peremptory strikes should be relegated to history. It is also quite apparent just why the Mississippi Supreme Court has recently stated, “While we neither abolish peremptory challenges, nor adopt a limited voir dire rule, nor make any specific changes to our peremptory challenge system, we are inclined to consider such options if the attorneys of this State persist in violating the principles of Batson by racially profiling jurors.” Flowers III, 947 So.2d at 939(¶ 72). As Justice James Graves stated, “While the Batson test was developed to eradicate racially discriminatory practices in selecting a jury, prosecuting and defending attorneys alike have manipulated Batson to a point that in many instances the voir dire process has devolved into an exercise in finding race neutral reasons to justify racially motivated strikes.” Id. (internal quotations omitted).

¶ 21. However, the current state of the law requires that we give great deference to the trial judge, and we cannot conclude that the circuit court abused its discretion. This is particularly so when it is quite apparent that, if district attorney Lawrence had accurate information at the time of his peremptory strike of Thompson, such factually accurate information was clearly still sufficient to establish a non-pretextual race-neutral reason for the strike.

¶ 22. As for Juror 20, Alden Earl Stallworth, the State’s reason for striking Stallworth was that the prosecutor once had a contentious civil matter involving members of the Stallworth family. It was later discovered that the Stallworth on the venire panel was not a part of the Stallworth family that the prosecutor once represented. Nonetheless, the trial court found this to be a valid race-neutral reason. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed as race neutral. Gibson v. State, 731 So.2d 1087, 1096(1127) (Miss.1998). This issue is without merit.

3. Whether Booker denied the right to a speedy trial contrary to the Mississippi and United States Constitutions.

¶ 23. Booker claims that the trial court erred in denying his Motion to Dismiss for Failure to Grant a Speedy Trial on September 29, 2003. Booker argues that the period in excess of more than sixteen months between his arrest and date of trial, infringed upon his constitutional rights. The Supreme Court, in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), set forth a balancing test to analyze whether or not the state has violated the right of an accused to a speedy trial. That balancing test requires consideration of the following factors: (1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the defendant was prejudiced by the delay. Id. at 530, 92 S.Ct. 2182. These factors are closely related and must be considered together. Id. at 533, 92 S.Ct. 2182.

Length of delay

¶ 24. The constitutional right to a speedy trial attaches at the time of arrest. Smith v. State, 550 So.2d 406, 408 (Miss.1986). Booker was arrested on January 6, 2003, and trial began on May 17, 2004. Any delay in excess of eight months is considered presumptively prejudicial and requires a consideration of the other Barker factors. Id. Because there was a total of sixteen months between Booker’s arrest and date of trial, this delay is presumptively prejudicial and requires a consideration of the remaining Barker factors.

Reasons for the delay

¶ 25. The record does not reflect that any portion of the delay was caused by Booker. The State gives as the reasons for the delay the unavailability of the court and the time required to conduct an effective investigation. The State contends that the delay was due to the submission of evidence to the Mississippi Crime Lab for analysis and the delay in receiving the completed reports. This Court has previously stated:

The inability to procure evidence vital to a proper completion of a criminal prosecution, as long as the evidence is pursued with some sort of reasonable measure of diligence, does not tend to establish the sort of bad faith delay tactics that call for the enforcement of the constitutional protections given under the Sixth Amendment.

Moore v. State, 837 So.2d 794, 798(119) (Miss.Ct.App.2003). The State has the obligation to bring a defendant to trial. For this reason we weigh this factor ever so slightly against the State.

Whether the defendant asserted his right to a speedy trial

¶ 26. A defendant’s assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether he is being deprived of that right. Barker, 407 U.S. at 531-32, 92 S.Ct. 2182. Before his indictment, Booker filed a motion to dismiss on September 3, 2003, which the trial court denied on September 29, 2003. However, motions to dismiss do not qualify as demands for speedy trial. Perry v. State, 637 So.2d 871, 875 (Miss. 1994). After his indictment, Booker made two demands for a speedy trial: one on February 10, 2004, and another on February 20, 2004, approximately eight months after he was indicted. Because Booker did make a demand for a speedy trial, this factor weighs ever so slightly in his favor.

Prejudice

¶ 27. Booker claims to have been prejudiced by the State’s delay in bringing him to trial. Among the specific instances of prejudice claimed by Booker are (1) he was incarcerated at age sixteen, (2) he slept on the floor of a cell block with some six or seven adults, and (3) he was not allowed to attend school. The responsibility to bring a defendant to trial rests upon the State. Therefore the burden of persuasion is on the State to show that any delay did not prejudice the defendant. Anderson v. State, 874 So.2d 1000, 1008 (¶ 34) (Miss.Ct.App.2004). However, absent a showing of actual prejudice, this prong cannot weigh heavily in favor of the defendant. Id. Prejudice resulting from incarceration alone is not enough reason to find actual prejudice. Jefferson v. State, 818 So.2d 1099, 1108(¶22) (Miss.2002). “Generally, proof of prejudice beyond incarceration may include such matters as the loss of evidence, death of witnesses, or staleness of the investigation.” Moore, 837 So.2d at 799(¶ 13). The possibility of impairment of the defense is the most serious and important consideration in determining whether the defendant suffered actual prejudice. Id. There is nothing in the record before this Court which even remotely suggests any impairment of Booker’s defense. None of the witnesses for either the State or Booker were unavailable due to the delay in his trial. There was also no claim of loss of evidence. Other than complaints of prejudice stemming from his incarceration, Booker has no claim of actual prejudice. Therefore, this factor weighs in favor of the State.

¶ 28. Based on this Court’s weighing of the Barker factors, we find that this issue is without merit.

A Therefore the trial court erred in admitting Booker’s confession.

¶ 29. Booker argues that the trial court erred in admitting the videotaped confession which he gave to Sergeant Ken McClenic shortly after his arrest. Booker argues that the confession should not have been admitted because his statements were the result of promises from the officers and were given because of his limited learning capacity. Confessions are admissible only if they are voluntarily given and are not the result of promises, threats, or inducements. Edwards v. State, 856 So.2d 587, 594(¶24) (Miss.Ct. App.2003) (citing Horne v. State, 825 So.2d 627, 639(¶ 43) (Miss.2002)). Whether there has been an intelligent, knowing, and voluntary waiver of the right not to incriminate oneself is a factual issue to be determined by the trial judge from the totality of the circumstances. Neal v. State, 451 So.2d 743, 753 (Miss.1984) (citing Edwards v. Arizona, 451 U.S. 477, 486, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). The prosecution bears the burden of proving beyond a reasonable doubt that the confession was voluntary by introducing testimony from an officer, or other person having knowledge of the facts, that the confession was made without threats, coercion, or offer of reward. Edwards, 856 So.2d at 594(¶ 24). Once the trial court has determined that the confession is admissible, the defendant bears a heavy burden of trying to overturn that decision on appeal. Id. (citing Greenlee v. State, 725 So.2d 816, 826(¶ 26) (Miss. 1998)).

¶ 30. After signing a “waiver of rights” form read to him by Sergeant Richard Rader and Lieutenant Kim Versiga on January 6, 2003, Booker began to describe the events leading up to Johnson’s death. After finishing another confession, Sergeant McClenic then had Booker follow him into another room to have his confession videotaped. During the suppression hearing, Booker testified that Sergeant Rader promised him treatment as a youthful offender if he told the truth about what happened to Johnson. Sergeants Rader and McClenic, and Lieutenant Versiga all testified that Booker gave his confession voluntarily, and he was not promised anything for his truthfulness. After questions arose about Booker’s limited learning capacity, all three again testified that Booker did not seem to have any problems understanding his rights; and he signed the waiver of rights form willingly after his rights were read to him. At the hearing, Booker was able to read aloud for the court each right listed on the waiver. Although he claimed to not remember where he lived, or any of his teachers’ names, he acknowledged initialing the waiver in front of the officers.

31. All of the officers testified that no promises were made to Booker. Although Booker did offer evidence proving that he had a limited learning capacity, a confession will not be excluded merely because the person giving the confession is mentally weak. Neal, 451 So.2d at 756 (quoting Williamson v. State, 330 So.2d 272, 276 (Miss.1976)). Until it is shown that a weak-minded person has been overreached to the end that he has divulged that which he would not have divulged had he not overreached, his voluntary confession is admissible. Id. Given the totality of the circumstances, this Court cannot say that the trial court erred in admitting Booker’s videotaped confession into evidence.

5. Whether the trial court erred in permitting Dr. McGarry to express an opinion as to the victim’s pain.

¶ 32. Booker argues that because the death penalty was not sought in his case, testimony about the pain that the victim suffered was irrelevant and highly prejudicial. Dr. Paul McGarry, a forensic pathology expert for the State, testified as to Johnson’s cause of death. When asked whether Johnson suffered a painful death, Dr. McGarry testified Johnson became unconscious sometime before his death, but that during the infliction of the injuries, Johnson was “very much aware of what was going on, and in great pain.” The supreme court has previously held that discussion of pain by a forensic pathologist is admissible. Davis v. State, 743 So.2d 326, 345(¶ 53) (Miss.1999). Therefore, the trial court did not err in admitting that testimony.

¶ 33. Booker also claims that the testimony was in violation of discovery rules. The Uniform Circuit and County Court Rule 9.04(A)(4) requires that the prosecution disclose to the defendant and his attorney a copy of any reports, statements, or opinions of experts. Prior to the beginning of trial, the court ordered the prosecution to supplement discovery as to any of Dr. McGarry’s opinions not fully contained within the autopsy report. Booker claims that Dr. McGarry’s testimony about Johnson’s pain was not included in the report, and should be excluded as a discovery violation. Although there is no indication that Dr. McGarry’s testimony was outside the scope of his report, discovery violations are only reversible when there is a clear showing of prejudice. McCoy v. State, 811 So.2d 482, 483(¶ 15) (Miss.Ct.App.2002). Because Dr. McGar-ry’s statements were otherwise admissible, and Booker offers no proof of any real discovery violation, this issue is without merit.

6. Whether the trial court erred in admitting gruesome photographs of the victim.

¶ 34. Booker argues that the trial court erred in admitting into evidence two rather gruesome photographs. He claims that the photographs were prejudicial, and they had no real probative value. Admissibility of gruesome crime scene photographs is within the sound discretion of the trial court. Randolph v. State, 852 So.2d 547, 566(¶ 62) (Miss.2002) (citing Chatman v. State, 761 So.2d 851, 854(¶ 11) (Miss.2001)). Reversal of the trial judge’s decision will only occur where there is a clear abuse of discretion. Id. The decision to admit gruesome photographs “runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Id. (citing Spann v. State, 771 So.2d 883, 895(¶29) (Miss. 2000)). Photographs are deemed to have evidentiary value if admitted to: (1) aid in describing the circumstances of the killing, (2) aid in describing the location of the body and cause of death, and (3) supplement or clarify witness testimony. Id.

¶ 35. In this case, Booker claims that the photographs were prejudicial and were only introduced to inflame the jury because they showed the mutilated back of Johnson’s head, as well as Johnson’s mutilated face. In admitting the photographs, the trial court cited to their relevancy to the cause of Johnson’s death and the crime scene investigation. Such a decision is not error. Therefore, this issue is without merit.

7. Whether the trial court erred by not giving the capital petit jurors’ oath to the jurors after voir dire.

¶ 36. Booker claims that the jurors did not receive the proper capital petit jurors’ oath. Although the record does not state that an oath was given, the sentencing order states that the jury was duly sworn. This Court has previously held that when the record does not show that the jurors were sworn, but the sentencing order reads that jurors were sworn, a rebuttable presumption exists that the trial judge properly performed his/her duties. Stewart v. State, 881 So.2d 919, 923(¶13) (Miss.Ct.App.2004). Furthermore, when no objection is made by the defendant about failing to specially swear in the jury until after a verdict has been rendered, the issue cannot be heard on appeal. Id. Therefore, this issue is both procedurally barred and without merit.

¶ 37. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

LEE, P.J., CHANDLER AND GRIFFIS, JJ., CONCUR. KING, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, J. MYERS, P.J., IRVING, ISHEE AND CARLTON, JJ., NOT PARTICIPATING.

KING, C.J.,

Dissenting:

¶ 38. I agree that Booker’s conviction should be affirmed. However, I write separately because the majority misses the mark as it wrongly overlooks and dismisses the issue of possible wrongdoing in jury selection. There is no question but what the trial court was given false information regarding the peremptory challenge used against Juror 14, Chauncey Thompson. There is no question but what that false information was relayed to the trial court by the prosecution.

¶ 39. During voir dire, the only discussion of the peremptory challenge as to Chauncey Thompson, is the following:

[PROSECUTOR]: Judge, the first Bat-son challenge arises with Juror Number 14 Chauncey Thompson. The State’s race neutral reason, Judge, is that, in checking the names of our jurors, we found that he has a marijuana conviction, a driver’s licence violation, an insurance violation, a seat belt violation in Pascagoula. He was convicted on 2/5/03. And on those bases, especially the marijuana conviction, Judge, we didn’t want a convicted marijuana holder on our jury.
THE COURT: And that information was verified through what source?
[PROSECUTOR]: Through the Pasca-goula City Court.
[DEFENSE ATTORNEY]: We’d like a copy of it. Judge, he’s a 29-year-old black male that works at Sears, Roebuck and Company and has a college education, and they want to kick him off. He was born and raised in this county.
THE COURT: Well, I find that the existence of that prior criminal history is sufficiently race-neutral to justify a peremptory challenge, a peremptory strike.
[DEFENSE ATTORNEY]: Judge, I’d like to see it.
THE COURT: If that information is available, Mr. Jones?
[PROSECUTOR]: Yes, sir. It’s a matter of record with the Pascagoula Municipal Court. His conviction date is February the 5th, 2003. You can go get it.
[DEFENSE ATTORNEY]: Well, I mean, I don’t have access to the Pasca-goula Police Department.
[DISTRICT ATTORNEY]: We just called, Your Honor. That’s how we got it, over the telephone.
[PROSECUTOR]: And I assure you we’re not making that up, Judge.

¶ 40. The trial court accepted the State’s representations, and struck Thompson from the jury. On August 13, 2004, Booker for the first time presented evidence which established that the State’s representations regarding Thompson were false. Booker produced an affidavit from Rhonda Diehl, the Pascagoula City Court Clerk, which stated that on the morning of May 17, 2004, she had informed Investigator Scott Mcllrath of the District Attorney’s office that Chauncey Thompson, (Juror 14) had been charged with the four misdemeanors, as stated by the prosecution. However, Diehl’s affidavit stated that she also told Mcllrath that all of the charges had been dismissed by the City because Thompson was not the person who had committed the offenses. Diehl’s affidavit stated:

That on the morning of May 17, 2004, Investigator Scott Mcllrath, of the District Attorney’s Office, Pascagoula, Mississippi called your Affiant and made inquiry as to any criminal record that the potential juror, Chauncey D. Thompson, may have had with said Police Department; that your Affiant ran the name given to her by the Investigator and advised that the potential juror had been charged with four (4) misdemeanor crimes, they being Simple Possession of Marijuana, No Driver’s License, No Liability Insurance and a Seat Belt Violation; that your Affiant further advised said Investigator that all of these charges had been dismissed by the City for the reason that said potential juror was not the person who committed said four alleged misdemeanors crimes. Attached hereto is a copy of a print-out that was used by said Affiant when she furnished said Investigator with the information.

¶ 41. At trial, the prosecution informed the trial court that its check with the Pascagoula Municipal Court indicated that Chauncey Thompson had been convicted of four misdemeanor charges on February 5, 2003. Attached to Diehl’s affidavit was a document titled “Priors Report.” Diehl stated this was the document which she used on May 17, 2004 to respond to Investigator Scott Melnrath’s inquiry regarding any criminal history of Chauncey Thompson, and informed him that the charges had been dropped. That document listed four charges against an individual named Chauncey Deontae Thompson. For each of those four charges, that report indicated the disposition as “Nolle Pros By Prosecution The Judgement Date Is 2/05/2003 Wrong Person.” The date, February 5, 2003, upon which these charges were dismissed, is the same date the prosecution represented to the trial court to be the date of actual convictions of Thompson. The prosecution’s representation that Chauncey Thompson had been convicted of four misdemeanor offenses in the Pasca-goula Municipal Court was clearly false.

¶42. Investigator Mcllrath, who obtained the information from the Pascagou-la Municipal Court was not some freelance investigator, who worked independently of the prosecutor. He was a very significant part of the prosecution team. This fact is clearly indicated by the district attorney’s remarks at trial, as he describes how he obtained the information on Thompson. He said, “we just called Your Honor. That’s how we got it, over the telephone.” Because Investigator Mcllrath is a significant member of the prosecution team, he is held to the same standard of conduct as the district attorney.

¶ 43. Rule 5.3(b) of the Rules of Professional Conduct, provides, “With respect to a non-lawyer employed or retained by or associated with a lawyer: (b) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” Under Rule 5.3(b) the district attorney had an obligation to reasonably insure that Investigator Mcll-rath observed the requirements of Rule 3.3 of the Rules of Professional Conduct, which requires: “Candor Toward The Tribunal.” Rule 3.3(a)(1) provides, “A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal.” The record is clear that the statements made regarding Chauncey Thompson were false. The record is clear that the statements regarding Chauncey Thompson were material. What is not clear is whether the false statements were knowingly made.

¶44. The record before this Court is insufficient to allow it to determine whether these false statements were deliberate or inadvertent. Diehl’s affidavit states that on the morning of May 17, 2004, she informed Investigator Mcllrath that the charges against Thompson had been dismissed due to mistaken identity. However, in the argument on the motion for new trial, the prosecution stated that it was unaware on May 17, 2004, that the charges against Thompson had been dismissed. The prosecution’s claim that on May 17, 2004, it was unaware that the charges against Chauncey Thompson had been dismissed is clearly contradicted by the affidavit of Diehl.

¶45. The majority’s mere dismissal of this matter creates the potential for great mischief. Under the position taken by the majority, a prosecutor need only stick his head in the sand like the ostrich, while claiming a lack of knowledge of the actions taken by his subordinates. That position is contrary to the obligations placed upon attorneys under the Rules of Professional Conduct.

¶46. However, the potential for mischief is enhanced when this Court abdicates its responsibility, and likewise emulates the ostrich by sticking its collective head in the sand. The majority justifies its emulation of the ostrich by saying (1) that Batson is difficult to enforce in that it requires the ability to read minds, and (2) this Court is required to defer to the trial judge. Under the facts of this case, it may be convenient to embrace those statements, but mere convenience does not provide validation for doing so.

¶47. If there was a deliberate false statement by any member of the prosecution team which impacted the process of jury selection, then sanctions are appropriate. I would therefore remand to the trial court the issue of (1) whether the misinformation regarding Chauncey Thompson was a deliberate dissemination of misinformation, (2) if it was a deliberate dissemination of misinformation, then who was the responsible party, and (3) if the dissemination was by a person associated with the prosecution, what, if any, sanctions should be imposed upon the prosecution for what the record now clearly reflects was a false statement.

BARNES, J., Joins this Opinion.

      . The affidavit from the Pascagoula City Court Clerk, Rhonda Diehl, indicates that the charges against Thompson, simple possession of marijuana, no driver's license, no liability insurance, and a seat belt violation, had been nol pressed by the prosecution because the "wrong person” was charged. Although not necessarily relevant to the issue, it does seem quite extraordinary, if not impossible, that law enforcement could charge a "wrong person” with failure to have a driver's license, failure to have liability insurance, and a seat belt violation. The only possible explanation is that Thompson has an identical twin.

      . When the U.S. Supreme Court handed down Batson, Justice Marshall wrote a concurring opinion and stated, ''[m]erely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge.” Batson, 476 U.S. at 105, 106 S.Ct. 1712 (Marshall, J., concurring). According to Justice Sullivan, the proper remedy is elimination of peremptory challenges. Thorson v. State, 653 So.2d 876, 896 (Miss. 1994).


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Earsel Rayburn POPE, Deceased. Juanita Sharp Anderson Allen Pope, Appellant v. Cathy White, Judy O’Berry and Teresa Williamson, Appellees.
    No. 2007-CA-00199-COA.
    Court of Appeals of Mississippi.
    May 20, 2008.
    Rehearing Denied Dec. 9, 2008.
    Certiorari Denied March 26, 2009.

      James A. Williams, attorney for appellant.
    Walton Wade White, Philadelphia, Terry L. Jordan, Steven Detroy Settlemires, Philadelphia, attorneys for appellees.
    Before MYERS, P.J., GRIFFIS, ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the court.

¶ 1. This case involves the contest of the will of Earsel Rayburn Pope (Earsel). The contestants, Cathy White, Judy O’Berry, and Teresa Williamson (collectively, “the Contestants”), are the natural daughters of Earsel. The proponent of the will is Juanita Sharp Anderson Allen Pope (Juanita), who was married to Earsel at the time of his death and was named as the sole beneficiary under the purported will. On November 3, 2006, the Chancery Court of Neshoba County entered a judgment in favor of the Contestants pursuant to a jury verdict finding that the will was not the true last will and testament of Earsel.

¶ 2. Aggrieved, Juanita appeals and argues that the chancellor erred in denying her motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. We find that the record contains substantial evidence supporting the jury’s verdict. Therefore, we find no error and affirm.

FACTS

¶ 3. Earsel passed away on March 29, 2004. He was survived by the Contestants and his wife, Juanita. Before marrying Juanita, Earsel was married to Elizabeth Earlene Vincent Pope (Earlene) for over fifty years, until she passed away in March 2001. The Contestants were born into the marriage between Earsel and Earlene. At the time of Earlene’s passing, Earsel was seventy-three years old and suffered from leukemia, Alzheimer’s, dementia, heart problems, diabetes, arthritis, and shoulder problems. Earsel’s medical condition rendered him dependent on the assistance of others. He took more than twenty-one pills a day and was under hospice care. After Earlene’s passing, the Contestants jointly cared for Earsel by helping him with such tasks as: driving, cooking, laying out his medicine, and administering his insulin shots. Although the record is unclear, it appears that sometime during 2002, Earsel moved in with Williamson, who became his primary caregiver. In May 2003, Earsel executed a power of attorney in Williamson.

¶4. Williamson would occasionally hire others to sit with Earsel when she and her husband were unable to do so. In approximately September 2003, Williamson first contacted Juanita to sit with Earsel. It is unclear how many times Juanita sat with Earsel; however, Williamson testified that she contacted Juanita at least twice. Although Juanita denied ever being paid to sit with Earsel, she admitted that she had received money from Williamson on two occasions. On one of these occasions, Juanita received a check for $100, which was dated September 18, 2003, and contained a notation that the check was made for “sitting.” Juanita and Earsel began dating in August 2003, at which time, Juanita moved in with Earsel and became his primary caregiver. After a brief courtship, Juanita married Earsel on October 9, 2003. According to the Contestants, Juanita would not allow them to be alone with Earsel when they came to visit him both during Juanita and Earsel’s courtship and after their marriage.

¶ 5. A few days after the marriage, Juanita called attorney Robert Thomas and set an appointment to discuss preparing a will for Earsel. On October 13, 2003, the day of the appointment, Juanita drove Earsel to Thomas’s law office and accompanied him inside. According to Thomas, Juanita began asking him about the law in Mississippi regarding the disinheritance of children. Regarding this conversation, Thomas stated that:

When they came in, [Juanita] was with him; and they sat down. She started asking me some questions about the law and — and what could be done with regard — primarily, I think she was concerned or she had knowledge of the law in Texas and Louisiana and what could be done with regard to children and that sort of thing in Mississippi. I advised her that I didn’t need to talk with her, that I needed to talk with [Earsel]. I excused her, and she went outside. Then [Earsel] and I talked, and he advised me that he wanted to do [sic] the will leaving everything to [Juanita] and her as executor and revoke the power of attorney [in Williamson], and that’s what I did.

Although Thomas testified that Earsel expressed a desire to leave Juanita his entire estate, he stated that no discussion was had as to whether Earsel understood that he was leaving nothing to his daughters. After Juanita and Earsel left, the will was prepared.

¶ 6. The following day, October 14, 2003, Juanita transported Earsel to Thomas’s office to execute the will. Juanita was not present in the room when Earsel signed the will; she was standing outside the door. Earsel signed the will in the presence of Heather Irby and Susan Alford, legal assistants in Thomas’s law office. Alford recalled that “[h]e was very quiet. He just-[w]e gave it to him and asked him to read over it, and he did so and then asked us to watch him sign it.” Irby stated that Earsel did not ask anyone to watch him. The will was executed naming Juanita as the sole beneficiary. The document revoking the power of attorney in Williamson was dated October 16, 2003; it is unclear from the record if this document was also executed on October 14, 2003. Although the record is unclear, it appears that the will was given to Earsel at Thomas’s office. However, Juanita testified that she placed the will in a locked safe at her house when she and Earsel returned home from Thomas’s office.

¶ 7. Also, the week after the marriage, Terrell Flint, Earsel’s financial advisor, met with Earsel and Juanita to remove $50,000 out of an annuity Earsel kept with New York Life. Later, on December 18, 2003, Flint again met with Earsel and Juanita concerning the annuity. On this date, the remaining balance was withdrawn — approximately $200,000. As Flint left this meeting, he asked Juanita if she could use his services to reinvest the money in another account. Flint testified that “she said, no, she was going to put the money somewhere it couldn’t be found.”

¶ 8. After Earsel’s passing, O’Berry and White filed a caveat against probate in common form. Juanita filed a petition to probate the will and requested a jury trial, which was held from October 16, 2007, to October 18, 2007. At the close of the evidence, the jury returned a verdict in favor of the Contestants, finding that the will was not the true last will and testament of Earsel. Juanita’s post-trial motions were denied. She now appeals.

DISCUSSION

Whether the chancellor erred in denying Juanita’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

A. Standard of Review

¶ 9. We review the denial of a motion for judgment notwithstanding the verdict (NOV) de novo. Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 64(24) (Miss.2004). We “consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that reasonably may be drawn therefrom.” Id. at 63(21). This Court must reverse and render “[i]f the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict....” Id. at (22) (quoting Corley v. Evans, 835 So.2d 30, 37(19) (Miss.2003)). However, we will affirm “if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions....” Id. at (23).

¶ 10. We review the trial court’s denial of a motion for new trial under the abuse of discretion standard of review. Miss. Transp. Comm’n v. Highland Dev., LLC, 836 So.2d 731, 734(10) (Miss.2002) (citing Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 723(40) (Miss.2001)). On appeal, “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(18) (Miss.2005) (citation omitted).

B. Undue Influence

¶ 11. A presumption of undue influence arises “where a confidential relation exists between a testator and a beneficiary under his will, and the beneficiary has been actively concerned in some way with the preparation or execution of it....” Croft v. Alder, 237 Miss. 713, 722-23, 115 So.2d 683, 686 (1959); see also, Smith v. Averill, 722 So.2d 606, 612(18) (Miss.1998) (“Suspicious circumstances surrounding the creation of the will also raise the presumption.”) (citing Pallatin v. Jones, 638 So.2d 493, 495 (Miss.1994)); Genna v. Harrington, 254 So.2d 525, 529 (Miss.1971) (In order for a presumption of undue influence to arise against a testator’s spouse, “it must be shown that the devisee spouse used undue methods for the purpose of overcoming the free and unrestrained will of the testator.... ”). The party asserting the existence of a confidential relationship bears the burden of proving it by clear and convincing evidence. Mullins v. Ratcliff, 515 So.2d 1183, 1191-92 (Miss.1987). A confidential relationship “arises when a dominant, overmastering influence controls over a dependent person or trust justifiably reposed.” Murray v. Laird, 446 So.2d 575, 578 (Miss. 1984) (citing Hendricks v. James, 421 So.2d 1031, 1041 (Miss.1982)). The factors to be considered in determining whether a confidential relationship exists are:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

Holmes-Pickett v. Holmes-Price, 961 So.2d 674, 680(17) (Miss.2007) (quoting Wright v. Roberts, 797 So.2d 992, 998(18) (Miss.2001)).

¶ 12. Juanita argues that the Contestants failed to prove by clear and convincing evidence that there was a confidential relationship so as to raise a presumption of undue influence. However, she fails to cite any authority in support of this argument. Therefore, we need not address this issue on appeal. Boutwell v. Boutwell, 829 So.2d 1216, 1223(29) (Miss. 2002) (“Failure to cite authority in support of claims of error preludes this Court from considering the specific claim on appeal.”) (quoting Pickering v. Industria Masina I Traktora, 740 So.2d 836, 848(55) (Miss.1999)).

¶ 13. However, notwithstanding the procedural bar, we find substantial evidence to support a finding that a confidential relationship existed between Juanita and Earsel. In the two months preceding the will’s execution, Juanita cared for, became romantically involved with, and married Earsel, an individual of advanced age and declining physical and mental health, which rendered him dependent on the care of others. Moreover, the evidence clearly established that Juanita actively participated in the will’s preparation. She called to make the initial appointment and drove Earsel to Thomas’s office on both the day of the initial appointment and the day of the will’s execution. Accordingly, we find that a presumption of undue influence arose.

¶ 14. Juanita next argues that she presented evidence sufficient to rebut the presumption of undue influence. Once a presumption of undue influence is established, the burden of proof shifts to the beneficiary to rebut the presumption with clear and convincing evidence of:

(1) Good faith on the part of the grantee/beneficiary;

(2) Grantor’s full knowledge and deliberation of his actions and their consequences; and

(3) Advice of (a) competent person, (b) disconnected from the grantee and (c) devoted wholly to the grantor/testator’s interest.

Murray, 446 So.2d at 578 (citations omitted). The third prong of Murray has been redefined to require that the proponent establish “that the grantor/testator exhibited independent consent and action.” Mullins, 515 So.2d at 1193. In Mullins, the court explained:

[The three prongs of Murray ] should not be understood as entirely separate and independent requirements that ought be rigidly exacted in every case. Undue influence is a practical, non-technical conception, a common sense notion of human behavior. As helpful as Murray may be to identify factors that ought be considered, common sense counsels against rigid, inflexible multi-part tests, particularly as the parties our law saddles with proof of the negatives are laymen, not legal technicians. Better that the scope of equitable principles be imperfectly defined than that justice be overborne by the weight of artificial rules.

Mullins, 515 So.2d at 1194. The Mississippi Supreme Court has recently instructed that “the testimony of the proponents or interested parties is not sufficient to rebut the presumption of undue influence.” Holmes-Pickett, 961 So.2d at 681(19) (citing Pallatin, 638 So.2d at 495).

1. Good Faith

¶ 15. In determining whether the beneficiary acted in good faith, the following factors are considered: (a) who initiated procurement of the will, (b) where the will was executed and in whose presence, (c) the consideration paid, (d) who paid the consideration, and (e) the secrecy or openness of the will’s execution. Smith, 722 So.2d at 612(22) (citing Pallatin, 638 So.2d at 495-97).

¶ 16. In the instant case, the substantial weight of the evidence supports the conclusion that Juanita did not act in good faith. Juanita initiated the will’s procurement; she contacted Thomas and set an appointment to discuss preparing a will for Ear-sel. Juanita also drove Earsel to Thomas’s law office twice, once to discuss the terms of the will, and a second time to execute the will. The record is unclear as to who paid for the will’s execution. As to secrecy, the record reveals that the Contestants found out about the will shortly after its execution; however, the means by which the Contestants became aware of the will are unclear. Further, Juanita locked the will in a safe in her own house.

2. Knowledge and Deliberation

¶ 17. In determining whether the testator acted with full knowledge and deliberation of his actions and the consequences of those actions, the following four factors are considered:

(a) his awareness of his total assets and their general value,
(b) an understanding by him of the persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would legally affect that prior will or natural distribution,
(c) whether non-relative beneficiaries would be excluded or included and,
(d) knowledge of who controls his finances and business and by what method, and if controlled by another, how dependent is the grantor on him and how susceptible to his influence.

Murray, 446 So.2d at 579.

¶ 18. The record contains little evidence bearing directly on the above-mentioned factors. Regarding Earsel’s awareness of his assets and their value, the Contestants point out that Earsel suffered from leukemia, Alzheimer’s, and dementia, among other things. Regarding Earsel’s understanding of the will’s effect on natural distribution, we again look to Thomas’s testimony that “[Earsel] and I talked, and he advised me that he wanted to do [sic] the will leaving everything to [Juanita] and her as executor and revoke the power of attorney [in Williamson], and that’s what I did.” However, Thomas also stated that he did not question Earsel as to his understanding that he was leaving the Contestants nothing. After learning of the will, White asked Earsel why the Contestants’ names were not in the will, to which Ear-sel responded, “Well, Sis, we’ll change that.” O’Berry testified that in a similar conversation Earsel said, “Sis, I have a lot of faith in [Juanita]; and I think she’ll do the right thing by y’all.” The evidence suggests that Juanita exercised a degree of control over Earsel’s finances. Again the record is unclear, but it appears that Juanita’s name was added to several of Earsel’s accounts. Earsel was clearly de-pendant on Juanita, and the testimony suggests that he was susceptible to her influence.

3. Independent Consent and Action

¶ 19. Juanita testified that Thomas “was [her] attorney, too; and he was a friend of [hers].” Thomas had also known Earsel for a long time and had previously performed legal work for him, including the power of attorney in Williamson. Once again relevant is Thomas’s testimony that “[Earsel] and I talked, and he advised me that he wanted to do [sic] the will leaving everything to [Juanita] and her as executor and revoke the power of attorney [in Williamson], and that’s what I did.” Beyond this, the record contains no details of the discussions between Earsel and Thomas; although, Thomas did admit that there was no discussion directly on the topic that the Contestants would receive nothing under the will. This Court has previously stated that “ ‘[t]he participation of the beneficiary/grantee, or someone closely related to the beneficiary, arouses suspicious circumstances that negate independent action.’ ” Dean v. Kavanaugh, 920 So.2d 528, 537(46) (Miss.Ct.App.2006). To this end, Juanita’s participation weighs against a finding that Earsel exercised independent consent and action.

CONCLUSION

¶ 20. From our review of the record, we find that there was substantial evidence supporting the jury’s determination that Earsel’s will was the product of undue influence on the part of Juanita. We note that Juanita requested a jury trial, over the course of which, the jury was presented with a voluminous amount of evidence for their consideration. After hearing the evidence and judging its weight and the credibility of the witnesses, the jury returned a verdict against Juanita. We find the jury’s verdict is supported by sufficient evidence in the record, and it is not against the overwhelming weight of the evidence. Therefore, we find that the chancellor did not err in denying Juanita’s motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial.

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

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

      . In this regard, O'Berry testified that "[Ear-sel] was capable of giving his own shot, but he wasn't always able to see well enough to draw his own insulin up.”

      . To be clear, the living arrangements of Juanita and Earsel were as follows: Prior to the marriage, Earsel lived in a trailer with Williamson and her husband; Juanita lived in a trailer in close proximity. When Juanita began "dating” Earsel, she moved into the Williamson's trailer where Earsel was residing. It appears that the Williamsons moved out of the trailer around this time. Juanita continued to live in Earsel's trailer after the marriage.

      . Williamson later joined as a contestant.


author: BARNES, J.,

text:
    Michael Wayne DAVIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CP-00264-COA.
    Court of Appeals of Mississippi.
    June 17, 2008.
    Rehearing Denied Oct. 7, 2008.

      Michael Wayne Davis (pro se), Attorney for Appellant.
    Office of the Attorney General by: Billy L. Gore, Attorney for Appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Michael Wayne Davis, proceeding pro se, appeals the dismissal of his motion for post-conviction relief by the Circuit Court of Harrison County. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 28, 2003, Davis was indicted as a habitual offender on one count of manufacture of methamphetamine, two counts of aggravated assault on peace officers, and one count of possession of methamphetamine. Davis was previously convicted of felony possession of a controlled substance, for which he was sentenced to three years in the custody of the Mississippi Department of Corrections (MDOC), and two counts of uttering a forgery, for which he was sentenced to seven years in the custody of the MDOC for each count. Davis pleaded guilty to manufacture of methamphetamine and two counts of aggravated assault. He was sentenced to five years on the manufacture of methamphetamine charge and thirty years on each of the aggravated assault on peace officers charges, with the latter to run concurrently with one another but consecutively to the five-year sentence.

¶ 3. Davis then filed a motion for post-conviction relief in the circuit court on the following grounds: (1) he received ineffective assistance of counsel when his lawyer coerced him into pleading guilty by telling him that he would receive only a five-year sentence; (2) his guilty plea was involuntary due to such coercion; and (3) his multi-count indictment was defective. The circuit court dismissed the motion. From this decision, Davis now appeals.

DISCUSSION

I. Whether Davis received ineffective assistance of counsel.

¶ 4. We note initially that in his brief submitted to this Court, Davis alleges numerous actions or inactions on the part of his attorney that he argues amounted to ineffective assistance of counsel. Most of these claims were not made in Davis’s original motion for post-conviction relief before the circuit court; therefore, they are procedurally barred from consideration by this Court. See Foster v. State, 716 So.2d 538, 540(¶7) (Miss.1998). Accordingly, our discussion below will focus only on those claims raised in Davis’s motion for post-conviction relief before the circuit court.

¶ 5. Davis argues that the circuit court erred in rejecting his claim that he received ineffective assistance of counsel. Davis contends that his attorney coerced him into pleading guilty by telling him that he would receive only a five-year sentence if he pleaded guilty, whereas if he went to trial, he was subject to capital punishment. He argues that his attorney told him that after he had completed two years of his sentence, the attorney would file an “appeal for a reduction of his sentence and ... all of his ‘Good Time’ earned would be put towards his reduced sentence.” Accompanying Davis’s motion were his own affidavit attesting to these allegations and that of Carol Redmond, who stated that she had a conversation with Davis’s attorney in June 2003 during which the attorney told her that Davis would not receive more than five years and also that the attorney would “get him back into court within (2) two years for a sentence reduction and all of his good time would be put on his new reduced sentence.”

¶ 6. The standard for proving a claim of ineffective assistance of counsel is well settled. “To prevail on a claim of ineffective assistance of counsel, a defendant must meet a two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Williams v. State, 971 So.2d 581, 591(¶ 34) (Miss.2007) (quoting Rankin v. State, 636 So.2d 652, 656 (Miss.1994)). The Mississippi Supreme states:

The Strickland test requires a showing that counsel’s performance was sufficiently deficient to constitute prejudice to the defense. The defendant has the burden of proving both prongs. A strong but rebuttable presumption, that counsel’s performance falls within the wide range of reasonable professional assistance, exists. The defendant must show that but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court.

Id. (citations omitted). “Stated differently, a defendant must show that his trial counsel’s performance was deficient and that he was prejudiced by the deficient representation.” Id.

¶ 7. “The rule regarding ineffective assistance of counsel in the context of a guilty plea is that when a convicted defendant challenges his guilty plea on grounds of ineffective assistance of counsel, he must show unprofessional errors of substantial gravity.” Buck v. State, 838 So.2d 256, 260(¶ 12) (Miss.2003). “Beyond that, he must show that those errors proximately resulted in his guilty plea and that but for counsel’s errors he would not have entered the plea.” Id. (citing Reynolds v. State, 521 So.2d 914, 918 (Miss.1988)). In short, where a defendant pleads guilty, the key issue is whether there was a reasonable probability that the defendant would not have pleaded guilty, but instead would have gone to trial, if counsel’s performance had been effective. Pleas v. State, 766 So.2d 41, 43(¶ 7) (Miss.Ct.App.2000) (citing Bell v. State, 751 So.2d 1035, 1038(¶ 14) (Miss.1999)).

¶ 8. In rejecting Davis’s ineffective assistance of counsel claim, the circuit court stated as follows:

[I]n the petition to enter plea of guilty, Davis clearly acknowledged that his sentence was up to the Court and that he could receive zero to ninety years imprisonment. Moreover, Davis indicated his satisfaction with his attorney’s advice and recognized that if he had been told by his lawyer that be might receive a lighter sentence this was merely a prediction and not binding on the Court.

We find no error in the circuit court’s holding in this regard. This Court has stated:

Great weight is given to statements made under oath and in open court during sentencing. The trial court is right to place great emphasis upon the statements under oath made ... in open court during the taking of ... guilty pleas and sentencing. There should be a strong presumption of validity of anyone’s statement under oath.

Sanchez v. State, 913 So.2d 1024, 1027(¶ 8) (Miss.Ct.App.2005) (internal citations omitted); Mowdy v. State, 638 So.2d 738, 743 (Miss.1994) (affirmed trial court’s denial of petitioners’ motion for post-conviction relief without a hearing because petitioners’ claims were contradicted by previous sworn statements). Here, as the circuit court found, Davis acknowledged under oath that he was aware of the possibility that he could receive up to ninety years in prison; that he was satisfied with the service of his lawyer; and that any promises by his lawyer of a lighter sentence were not binding on the court. See Young v. State, 731 So.2d 1120, 1122-23(¶ 10) (Miss. 1999) (“[Wjhere an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required.”) (citations omitted). Moreover, during the guilty plea hearing, Davis acknowledged that he was satisfied with the performance of his lawyer. Given that Davis’s current claims are contradicted by his sworn representations in his petition, we find that the circuit court did not err in denying Davis’s motion for post-conviction relief on such grounds. See Sanchez, 913 So.2d at 1027(¶ 8) (finding that the trial court did not err in dismissing motion for post-conviction relief based on the fact that Sanchez’s allegations that the sentence he received was in breach of plea agreement reached between his counsel and the district attorney were directly contradicted by his sworn representations in his guilty plea petition). Accordingly, this issue is without merit.

II. Whether Davis’s guilty plea was knowing and voluntary.

¶ 9. Davis next argues that his guilty plea was not knowing and voluntary based on his attorney’s coercion and misrepresentations as to what his sentence would be. With regard to his claim, the circuit court stated as follows:

[T]here is no evidence of coercion and no indication that Davis’fs] plea was involuntary. Additionally, in his petition to enter plea of guilty, Davis indicated he was not under the influence of any drugs or intoxicants and stated, “I offer my plea of guilty freely and voluntarily and of my own accord and with full understanding of all the matters set forth in the indictment and in this petition and in the certifícate of my lawyer which follows.” Upon review, this Court finds Davis’[s] plea was voluntarily entered.

Having reviewed the record, we find no error in the circuit court’s finding. This Court has stated:

Where erroneous legal advice on sentencing has been given to a defendant by his counsel and/or defendant relied on assertions or predictions made by his counsel, no error attaches if the record affirmatively shows the defendant was correctly advised of his peril by the sentencing court. In some cases, however, mistaken advice from counsel can vitiate a guilty plea. In Gardner [v. State, 531 So.2d 805 (Miss.1988) ], the court stated the thoroughness by which the lower court had interrogated Gardner at the time his guilty plea was tendered was the most significant evidence. The court then determined regardless of the instructions or advice defendant may have received from counsel, the thoroughness of the lower court’s questioning at the sentencing hearing was sufficient to render the plea voluntary.

Lawrence v. State, 970 So.2d 1291, 1295(¶ 7) (Miss.Ct.App.2007) (internal citations omitted).

¶ 10. In this case, our review of Davis’s petition to enter guilty a plea and the transcript of his guilty plea hearing reveal that Davis was aware of the potential sentence he was facing and that his plea was knowing and voluntary. As was noted above, in his petition to enter a guilty plea Davis acknowledged under oath that he could be sentenced to up to ninety years in prison if he pleaded guilty and that any promises by his lawyer of a lighter sentence were not binding on the court. Moreover, as the circuit court found, Davis stated that his guilty plea was given “freely and voluntarily.” The certificate of counsel submitted by Davis’s counsel states that the maximum and minimum penalties for each count had been explained to Davis; that Davis was competent to understand the effect of his guilty plea; and that his guilty plea was “voluntarily and understanding^ made.” Finally, at the guilty plea hearing, the circuit judge questioned Davis as follows:

The court: Michael Wayne Davis, how far did you go in school?
Davis: 11th grade.
The court: Can you read and write?
Davis: Yes, sir.
The court: Did you read your petition before you signed it?
Davis: Yes, sir.
The court: Did you understand it?
Davis: Yes, sir.
The court: All right, sir. And you are charged in this indictment as a habitual felon, correct?
Davis: Yes, sir.
The court: That means whatever the sentence is [it] is day-for-day?
Davis: Yes, sir.
Mr. Lusk: He understands that, Your Honor.
The court: Do you understand that aggravated assault on a police officer which you’re pleading guilty to carries up to, is it 20 or 25 years?
Mr. Bourgeois (assistant district attorney): 30 years, Your Honor.
The court: 30 years?
Mr. Bourgeois: Yes, sir.
Davis: Yes, sir.
The court: Mr. Davis, it looks like to me that you probably would not have anything to lose by going to trial on these charges, because you’re looking at up to 90 years total, day-for-day. Have you got that much time left?
Davis: No, sir.
The court: Do you still wish to plead guilty to this charge?
Davis: Yes, sir.

¶ 11. Based on the foregoing consideration, we find that Davis was adequately questioned and advised by the circuit court of his potential sentence, and that his guilty plea was knowing and voluntary. His arguments in his motion for post-conviction relief are directly contradicted by the record in this case. Accordingly, this issue is without merit.

III. Whether Davis’s multi-count indictment was defective.

¶ 12. Davis argues that the portion of his indictment charging him as a habitual offender was improper given that he never “served any confined time” on his prior convictions. The indictment states:

And we, the GRAND JURORS, upon our oaths do further present, that he, the said Michael Wayne Davis, is a habitual criminal who is subject to being sentenced as such pursuant to Section 99-19-81, Miss.Code of 1972, as amended, in that he, the said Michael Wayne Davis, has been convicted at least twice previously of felonies or federal crimes upon charges separately brought and arising out of separate incidents at different times and has been sentenced thereon to separate terms of imprisonment of one year or more, to-wit....

The indictment then stated that Davis, on February 13, 1998, was convicted of one count of possession of a controlled substance and two counts of uttering a forgery. He was sentenced to three years in the custody of the MDOC on the possession charge and seven years in the custody of the MDOC for each count of uttering a forgery. Davis argues that these sentences were suspended, and he was sentenced to probation; therefore, because he was never actually incarcerated, he was not eligible to be sentenced as a habitual offender.

¶ 13. Davis was indicted as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007), which states as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Davis was convicted in February 1998 of one felony count of possession of a controlled substance and two felony counts of uttering a forgery. He was sentenced to three years in prison for the possession conviction and seven years for each count of the uttering a forgery conviction. Although these convictions took place on the same day, they were listed in two separate cause numbers. Therefore, as these convictions arose “out of separate incidents at different times,” they rendered Davis subject to being tried as a habitual offender.

¶ 14. The Mississippi Supreme Court and this Court have repeatedly held that an individual is not required to have actually served any prison time in order to be sentenced as a habitual offender. In Jackson v. State, 381 So.2d 1040, 1042 (Miss.1980), the supreme court, in response to the argument that section 99-19-81 requires not only that an individual be sentenced to terms of one year or more, but also that such sentences be “served through actual incarceration,” stated:

We reject this argument, because we think the statutory intention is satisfied where, as here, the accused has been twice previously adjudged guilty of distinct felonies upon which sentences of one year or more have been pronounced, irrespective of subsequent probation or suspension of the sentences.
We are of the opinion the statute is intended to cure the evil of recidivism. Enhanced punishment relates to the conduct underlying the previous convictions. Adjudication of guilt and consequent pronouncements of sentences merely accord those convictions finality. Subsequent suspension of the sentences or probation is a matter of grace only, arising from the hope that the prospects of rehabilitation of the guilty warrant leniency. Clearly that hope is defeated when the beneficiary of the indulgence perpetrates further felonies. The statute is suited precisely to this problem.

(Citations omitted); see also Hewlett v. State, 607 So.2d 1097, 1105 (Miss.1992) (“The fact that there was no actual incarceration does not affect the sufficiency of the sentences as evidence of habitual offender status.”); Green v. State, 802 So.2d 181, 183(¶ 14) (Miss.Ct.App.2001) (“Service of sentence through actual incarceration is not mandatory when considering habitual offender status under § 99-19-81.”) (citing Jackson, 381 So.2d at 1042); Anderson v. State, 766 So.2d 133, 136(¶ 9) (Miss.Ct.App. 2000). Therefore, for the purposes of habitual offender status pursuant to section 99-19-81, whether the individual actually served time in prison is irrelevant.

¶ 15. Davis also argues that his indictment was defective because multi-count indictments are not permitted in Mississippi. Mississippi Code Annotated section 99-7-2(1), however, states as follows:

Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.

Miss.Code. Ann. § 99-7-2(1) (Rev.2007). Here, the indictment stated that the offenses giving rise to the four counts with which Davis was charged were all part of a common scheme or plan; therefore, it was permissible for the State to charge Davis in a multi-count indictment. Accordingly, this issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Davis also submitted with his brief to this Court numerous affidavits sworn out by himself and Carol Redmond during July and August 2007, well after the circuit court denied Davis's motion for post-conviction relief. Accordingly, as these affidavits were not included in the record before the circuit court, they are not properly before this Court. See Brown v. State, 965 So.2d 1023, 1027(¶ 12) (Miss.2007) (“This Court will not consider matters that do not appear in the record, and it must confine its review to what appears in the record.”) (quoting Pulphus v. State, 782 So.2d 1220, 1224(¶ 15) (Miss.2001)).

      . In Young, the petitioner claimed that he was coerced into pleading guilty by the promise of a lesser sentence. Young, 731 So.2d at 1122(¶10). The court affirmed the trial court’s denial of Young's motion based on his assertions during the guilty plea hearing that his sentence was not induced by the promise of a lesser sentence. Id. at 1123(1111).

      . We note that during the guilty plea hearing, the circuit judge asked Davis if he actually served any time on his prior convictions, to which he responded, "I did a — I did some months, and then I got — that was suspended time for probation. I probably did six months, or something like that. I went to a drug rehab, Live Oaks.”

      . We note that Davis contends that his sentences on the prior felonies were suspended at the same time they were imposed; he apparently is attempting to distinguish those cases which say that "subsequent” suspension of a sentence is irrelevant. Given that it is the conduct of the underlying conviction that the habitual offender statute is intended to address, we can discern no reason why the timing of the suspension would affect Davis’s eligibility to be tried as a habitual offender. The Mississippi Supreme Court has made no such distinction. See Moore v. State, 631 So.2d 805, 806 (Miss. 1994) (affirmed habitual offender status where one of the primary convictions was “a three year suspended sentence”); Weaver v. State, 497 So.2d 1089, 1096 (Miss.1986) (the fact that prior conviction "resulted in a suspended sentence” did not render defendant ineligible for consideration as a habitual offender under section 99-19-81). Accordingly, this issue is without merit.