text:
    Gary LEWIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-01752-COA.
    Court of Appeals of Mississippi.
    May 25, 2010.
    Rehearing Denied Sept. 14, 2010.
    Certiorari Denied Dec. 2, 2010.

      Gary Lewis, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. On May 12, 2003, Gary Lewis was indicted by a Pike County grand jury for one count of sale of cocaine and one count of conspiracy to sell cocaine. The offenses were alleged to have occurred in April and June 2002, respectively. On January 6, 2004, Lewis pleaded guilty to the conspiracy count, and the sale of cocaine charge was dropped pursuant to a plea agreement. On the conspiracy count, the circuit court sentenced Lewis to twenty years in the custody of the Mississippi Department of Corrections. The sentencing order was filed and the conviction entered on January 7, 2004.

¶2. At the sentencing hearing, Lewis was sentenced on three additional counts of conspiracy to sell cocaine, for which he was sentenced to twenty years imprisonment on each count. Lewis was also sentenced to twenty-five years imprisonment for a single count of sale of cocaine. All four conspiracy sentences were ordered to be served concurrently to each other, but the sentence on the sale count was ordered to be served consecutively to the sentences on the conspiracy counts. The circuit court ordered the final twenty-eight years of the total sentence suspended, with five years’ post-release supervision.

¶ 8. On January 17, 2008, Lewis filed the instant motion for post-conviction relief, asserting that: his guilty plea was not voluntary or sufficient; he received ineffective assistance of counsel; and the circuit judge should have recused himself from taking Lewis’s guilty plea. On February 18, 2008, the circuit court dismissed Lewis’s motion without an evidentiary hearing. Lewis subsequently filed a motion for an out-of-time appeal, which the circuit court granted on September 29, 2008.

STANDARD OF REVIEW

¶ 4. “A trial court’s decision to dismiss a motion for post-conviction relief is insulated from appellate review unless it is determined that the trial court’s decision was clearly erroneous.” Dyson v. State, 996 So.2d 172, 173 (¶ 3) (Miss.Ct.App.2008) (citing Willis v. State, 904 So.2d 200, 201 (¶ 3) (Miss.Ct.App.2005)). A trial court may dismiss a motion for post-conviction relief “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2009).

DISCUSSION

1. Statute of Limitations

¶5. Although the circuit court addressed the merits of Lewis’s motion in its order of dismissal, we are compelled to note that Lewis’s motion was filed more than four years after the entry of his conviction and sentence. Mississippi Code Annotated section 99-39-5(2) (Supp.2009) states that a motion for post-conviction relief “in case of a guilty plea, [shall be made] within three years after entry of the judgment of conviction.” The statute enumerates certain exceptions to this statute of limitations:

(a)(i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or
(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.
(b) Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Id. Nothing in the record indicates that any of these exceptions are applicable to this case. However, “errors affecting fundamental constitutional rights” may be excepted from this procedural bar. Ivy v. State, 731 So.2d 601, 603 (¶ 13) (Miss.1999). Nevertheless, “the mere assertion of a constitutional right violation is not sufficient to overcome the time bar. There must at least appear to be some basis for the truth of the claim before the limitation period will be waived.” Stovall v. State, 873 So.2d 1056, 1058 (¶ 7) (Miss.Ct.App.2004). “[Djouble jeopardy, ineffective assistance of counsel, involuntary guilty pleas, and speedy trial challenges all have been held to be time-barred.” Dyson, 996 So.2d at 173 (¶ 5) (citations omitted). We find the time bar generally applicable to Lewis’s petition; however, we shall briefly address the merits of the claims made.

2. Factual Basis

¶ 6. Lewis argues that his guilty plea lacked a sufficient factual basis because he made no admissions during the guilty plea colloquy that: he had “knowingly” conspired to commit the sale of cocaine; he had known that “such actions” were illegal; or his criminal acts had been committed within the jurisdiction of the Pike County Circuit Court. Because the trial court must determine the existence of a factual basis for a guilty plea before accepting the plea, we shall address this issue notwithstanding the time bar. Boddie v. State, 850 So.2d 1205, 1209 (¶ 16) (Miss.Ct.App.2002) (citing URCCC 8.04).

¶ 7. Lewis’s argument that he was required to admit that he subjectively knew, at the time of the conspiracy, that his actions were illegal is without merit because subjective knowledge of the illegality of such acts is not required to support a conviction for conspiracy. Mississippi Code Annotated section 97-1-1(1) (Supp.2009) states, in pertinent part, that conspiracy may be proven where “two ... or more persons conspire ... to commit a crime ... or [t]o accomplish any unlawful purpose, or a lawful purpose by any unlawful means.... ” There is no requirement that Lewis must have subjectively known that either the conspiracy or the underlying crime of sale of cocaine was illegal to support a conviction for conspiracy.

¶ 8. Lewis’s remaining arguments regarding the factual basis are also without merit. Lewis argues that he did not admit during the plea colloquy that he had “knowingly” entered the conspiracy or that the events had occurred within the jurisdiction of the circuit court. During the plea colloquy, Lewis acknowledged that he was pleading guilty to conspiracy to sell cocaine and stated that he was pleading guilty because he was guilty and for no other reason. Lewis admitted that he had reviewed the State’s discovery material with his attorney and that he was satisfied that the State could have proven him guilty of conspiracy beyond a reasonable doubt. Lewis is correct that he did not explicitly state that he had “knowingly” conspired or that the crime had occurred within the jurisdiction of the circuit court. Nonetheless, failure to fully establish a factual basis during the plea colloquy is not necessarily reversible error; we look to the entire record to determine whether a factual basis exists. Drake v. State, 828 So.2d 593, 594 (¶ 5) (Miss.Ct.App.2002) (citing Corley v. State, 585 So.2d 765, 767-68 (Miss.1991)). This Court has held that “if sufficiently specific, an indictment or information can be used as the sole source of the factual basis for the plea.” Id. at (¶ 6) (quoting United States v. Hinojosa-Lopez, 130 F.3d 691, 695 (5th Cir.1997) (overruled on other grounds)). The indictment appears in the record, and it alleges both that “Lewis ... did wilfully, unlawfully, feloniously and knowingly conspire and agree ... to commit the crime of unlawful sale of cocaine .... ” and that this occurred “in Pike County, Mississippi, and within the jurisdiction of this court....” These arguments are without merit.

3. Voluntary Plea

¶ 9. Regarding Lewis’s argument that his guilty plea was not voluntarily entered, he asserts only that the trial court failed to advise him of his right to appeal his sentence through a direct appeal. We find this issue procedurally barred by the statute of limitations.

¶ 10. Lewis’s argument fails on the merits as well. At the time that Lewis pleaded guilty, section 99-35-101 of the Mississippi Code Annotated (Rev.2007) denied appeal from the circuit court to the supreme court “in any case where the defendant enters a plea of guilty.” However, this section was not interpreted to deny the defendant the right to appeal the sentence given as a result of that plea. See Trotter v. State, 554 So.2d 313, 315 (Miss.1989) (“an appeal from a sentence imposed pursuant to a guilty plea is not equivalent to an appeal from the guilty plea itself’). Nonetheless, we have previously held that a trial court is not required to inform the defendant of his right to direct appeal his sentence after he enters a guilty plea. Cook v. State, 990 So.2d 788, 793 (¶ 11) (Miss.Ct.App.2008).

4. Recusal

¶ 11. In his motion for post-conviction relief, Lewis argues that the circuit judge who presided over his guilty plea, the Honorable Keith Starrett, was illegally appointed to the case after the original circuit judge, the Honorable Mike Smith, recused. Lewis asserts that only the Mississippi Supreme Court could appoint a replacement judge after Judge Smith re-cused himself. Lewis also argues that Judge Starrett himself had a conflict of interest that precluded him from presiding over the case, although Lewis does not explain what this alleged conflict of interest was. Lewis asserts only that Judge Starrett had recused from a “companion case” involving another defendant and that Judge Starrett and Judge Smith were colleagues. Lewis’s allegations provide little more detail and are unsubstantiated except by his own affidavit. Furthermore, it appears that Lewis waived the recusal issue because he made no contemporaneous objection to Judge Starrett’s presiding over his guilty plea. Wilcher v. State, 863 So.2d 776, 794 (¶ 21) (Miss.2003). Because nothing in the record suggests any merit to either of these claims, we find the recu-sal issue without merit, waived by failure to make a timely objection, and barred by the statute of limitations.

5. Ineffective Assistance of Counsel

¶ 12. This issue is also barred by the statute of limitations. Dyson, 996 So.2d at 173 (¶ 5). Notwithstanding the procedural bar, it is also without merit. Lewis’s principal complaint alleging ineffective assistance of counsel is his counsel’s failure or refusal to object to Judge Star-rett’s presiding over the guilty plea. Lewis’s motion is, again, only supported by his own affidavit. In post-conviction-relief cases, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

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

LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.

      . From the record, it appears that there were a total four indictments, Pike County Circuit Court cause numbers 03-181, 03-182, OS-185, and 03-190. Each indictment consisted of one count of sale of cocaine and one count of conspiracy to sell cocaine. It is unclear how Lewis came to be convicted under both counts of the first indictment, 03-181, but Lewis pleaded guilty to the remaining three counts of conspiracy to sell cocaine. The three counts of sale of cocaine were then dismissed pursuant to a plea agreement. The instant motion for post-conviction relief was addressed only to a single count of conspiracy to sell cocaine, under cause number 03-182.

      . The motion and an attached affidavit from Lewis slate that they were sworn on January 9, 2008.

      . It is unclear whether Lewis’s argument is that he never admitted to knowing it was illegal to sell cocaine or to conspire to sell it.

      . Section 99-35-101 of the Mississippi Code Annotated has been amended, effective July 1, 2008, to provide that "where [a] defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.” Miss.Code Ann. § 99-35-101 (Supp.2009) (emphasis added).

      . We note that when Lewis pleaded guilty, Keith Starrett was a duly-elected circuit judge for Pike County, Mississippi.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Derek Brandon CONWAY, Appellant v. STATE of Mississippi, Appellee. Derek Brandon Conway, Appellant v. State of Mississippi, Appellee.
    Nos. 2009-CA-00886-COA, 2003-CT-02807-COA.
    Court of Appeals of Mississippi.
    June 1, 2010.
    Rehearing Denied Aug. 31, 2010.
    Certiorari Denied Dec. 2, 2010.

      Edwin Lloyd Pittman, Jonathan Michael Farris, attorney for appellant.

      Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Derek Conway was convicted of murder in the Circuit Court of Forrest County. He appealed his conviction, which was considered by this Court. After reviewing the issues presented, we ultimately affirmed Conway’s conviction. See Conway v. State, 915 So.2d 521, 527 (¶ 28) (Miss.Ct.App.2005). Conway received leave from the supreme court to file his motion for post-conviction relief (PCR) in the trial court. Conway subsequently filed a PCR motion in the Circuit Court of Forrest County in which he argued that he had received ineffective assistance of counsel at both the trial and appellate level as well as arguing other matters. Following the trial court’s denial of Conway’s PCR motion, he appeals and raises the following issues, which we have restated for the purpose of clarity and concision:

I. WHETHER CONWAY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING HIS CRIMINAL TRIAL;
II. WHETHER CONWAY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE APPEAL OF HIS CONVICTION OF MURDER;
III. WHETHER CONWAY WAS DENIED A FAIR TRIAL; and
IV. WHETHER CONWAY WAS DENIED PROCEDURAL DUE PROCESS.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. The facts surrounding Conway’s shooting of Kenneth Ray Mooney were set out in Conway as follows:

Derek Brandon Conway was a friend of Joseph Jansen. Jansen became aware that Conway and his wife, Christina, had separated. Heather Es-sary, an ex-girlfriend of Conway’s, contacted Conway and told him that Christina and Jansen were using Es-sary’s cell phone to communicate with each other. Conway called Christina and accused her of seeing Jansen, an accusation Christina denied. Conway told Christina that he would fight Jansen when Jansen returned from Alabama. Jansen called Conway and asked him why he was being accused of sleeping with Christina. Conway said nothing in reply, and the conversation was ended.
After the telephone conversation, many of Conway’s friends informed him that Jansen and Christina were sleeping together. Conway again called Jansen and accused him of sleeping with his wife. Jansen again denied the allegations. According to Jansen, they talked the situation over and Conway eventually told Jansen that he believed him.
On the afternoon of July 4, 2002, Conway and two of his friends, Michael Smith and Paul Ingram, went to Conway’s mother’s house. They ingested crystal methamphetamine and remained at Conway’s mother’s house until the evening. At approximately 8:00 p.m. Conway, Smith, and Ingram drove to Bud’s and Sud’s Car Wash to wash Smith’s car. Next to Bud’s and Sud’s is the Kangaroo store. Ingram was shopping for something to drink. As Conway and Smith were vacuuming the car, Conway saw Anthony Thames’[s] truck pull up at the Kangaroo store. Thames was driving, Kenneth Ray Mooney was in the passenger’s seat, and Jansen was in the middle.
Ingram came out of the Kangaroo store and spoke to Jansen. Ingram told Jansen that Conway and Smith were at the car wash. Jansen, Thames, and Mooney drove to the car wash and stopped in front of Conway. The three of them began staring at Conway and laughing.
Conway reached in Smith’s car, took out a [Maglite] and walked over to the truck. Jansen tried to get out of the truck, but Mooney would not let him out. Conway hit Mooney in the head with the [maglight] twice.
Jansen and Thames testified that none of the occupants in the truck had a weapon. Conway testified that he attacked Mooney because he “was scared that they were all fixing to do something to him” and that “he didn’t give them a chance” for the boys in the truck to harm him. According to Conway, Mooney attempted to strike him in the head with a beer bottle. No other witnesses testified that Mooney displayed any acts of physical aggression.
After Conway hit Mooney in the head with a [Maglite], Conway and Jansen argued about whether Jansen was sleeping with Conway’s wife. Conway pulled out a gun from his back pocket and shot Mooney. Conway then ran back to Smith’s car and drove away, saying, “I didn’t mean to; I’m sorry.” Thames and Jansen took Mooney to Forrest General Hospital, where he died later that night. Conway turned himself in to the police the next day. The jury found Conway guilty of first[-]degree murder.

Conway, 915 So.2d at 523-24 (¶ ¶ 3-9).

¶ 3. Following the hand-down of Conway on November 29, 2005, and subsequent issuance of the mandate on December 20, 2005, Conway’s appellate counsel filed a motion for an enlargement of time to file a motion for reconsideration with this Court. The motion was denied by this Court. Conwajfs current counsel filed a motion for reconsideration of this Court’s denial of the motion for an enlargement of time, which was also denied. Conway subsequently filed a petition for writ of certiora-ri review with the supreme court. This motion was treated as a motion to suspend the rules by the supreme court, and it was denied.

¶ 4. Conway then filed an application in the supreme court to proceed in the trial court for post-conviction relief pursuant to Mississippi Code Annotated section 99-39-27 (Rev.2007). The supreme court granted Conways motion, and he subsequently filed a PCR motion on November 6, 2007, in the Circuit Court of Forrest County. In its brief, the State claims that the trial court summarily dismissed Conway’s motion. However, the record shows that there were two notices of hearing, setting a hearing date on November 20, 2007, and March 21, 2008, respectively, as well as a re-notice of hearing. Further, in its May 6, 2009, order nunc pro tunc denying Con-ways motion, the trial court stated that “this matter [was] previously heard by the Court on October 3, 2008....” On September 12, 2008, the State through the district attorney’s office filed an answer to Con-ways PCR motion. The answer was quite detailed and specific. Although there is no transcript of the hearing in the record, these facts suggest that a hearing on the matter did take place. Further justifying this assumption is the fact that Conway’s initial notice of appeal of the trial court’s denial of his PCR motion was filed on January 9, 2009. After reviewing Con-ways claims of error, we find that they are without merit and affirm the trial court’s denial of his PCR motion.

DISCUSSION

I. WHETHER CONWAY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING HIS CRIMINAL TRIAL.

¶ 5. Conway first argues that he was denied his Sixth Amendment right to effective assistance of counsel. Specifically, Conway assigns the following errors of his trial counsel on appeal: (1) failed to adequately prepare for Conway’s trial; (2) failed to renew his motion to exclude evidence provided by the State; (3) failed to move for a mistrial after learning that a juror had failed to inform the court that she knew Conway’s mother; and (4) failed to object to the qualifications of the State’s expert witness.

¶ 6. The standard of review for a claim of ineffective assistance of counsel is a well-settled, two-pronged principle of law. The supreme court has stated:

In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Witcher v. State, 479 So.2d 710, 713 (Miss.1985); Stringer v. State, 454 So.2d 468, 477 (Miss.1984). [A reviewing court] looks at the totality of circumstances to determine whether counsel’s efforts were both deficient and prejudicial. Carney v. State, 525 So.2d 776, 780 (Miss.1988); Read v. State, 430 So.2d 832, 839 (Miss.1983). “Judicial scrutiny of counsel’s performance [is] highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. There is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Carney, 525 So.2d at 780; Gilliard v. State, 462 So.2d 710, 714 (Miss.1985). Only where it is reasonably probable that but for the attorney’s errors, the outcome of the trial would have been different, will we find that counsel’s performance was deficient. Dickey v. State, ,662 So.2d 1106, 1109 (Miss.1995); Reed v. State, 536 So.2d 1336, 1339 (Miss.1988).

Holly v. State, 716 So.2d 979, 989 (¶37) (Miss.1998).

¶ 7. Furthermore, the appellant bears “the burden of proving that counsel’s performance was deficient and prejudicial.” Branch v. State, 882 So.2d 36, 52 (¶ 26) (Miss.2004) (citing Hansen v. State, 649 So.2d 1256, 1258 (Miss.1994)). Additionally, there is no constitutional right to errorless counsel. Id. (citing Stack v. State, 860 So.2d 687, 696 (¶ 20) (Miss.2003)); Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991).

A. Whether Conway received ineffective assistance of counsel as a result of his trial counsel’s being unprepared.

¶ 8. At the beginning of Conway’s trial, his counsel moved the trial court for examination and testing of physical evidence and for a continuance. However, the motions were denied. On appeal, Conway argues that the record shows that Conway’s trial counsel was deficient in his preparations for trial and that “[t]he deficiencies prejudiced Conway’s defense because [his trial] counsel was unprepared for trial; was unable to obtain separate verification of the existence and placement of the fingerprints on the bottles found in the truck; and was unable to obtain separate verification of the accuracy of the enhanced videotape.... ”

¶ 9. Based on the record before us, and the colloquy between Conway’s attorney, the assistant district attorney, and the trial court concerning the above-mentioned motions, we find that Conway has failed to show deficient performance by his trial-counsel which prejudiced his case. The following colloquy, although lengthy, occurred during the hearing on Conway’s motions and illustrates Conway’s trial attorney’s level of preparation:

MR. PRICE [Conway’s attorney]: Your Honor, on behalf of Mr. Conway, I have filed a motion for examination and testing of physical evidence and for a continuance. The reason for that, Your Hon- or, is in reviewing the discovery which is still being provided to us as of today, I have some problems still with not having some of it. In reviewing what I had as of last Friday when I filed the motion, I did not have anything pertaining to some items of evidence which were seized or taken from the pickup truck in which the victim was located at the time of the shooting. My client’s defense in this case, Your Honor — the charge is murder. It appears from the facts and circumstances that I have seen in reviewing the various witness statements that my client has possible defenses of accident. He has possible defenses of lesser[-]included defenses of manslaughter and he possibly has a defense of self-defense. And that’s because some of the witnesses and Mr. Conway, himself, put three gentlemen approaching his location. There was sort of an ongoing dispute between him and one of the gentlemen. And Mr. Conway stated in his own statement that one or more of the occupants was picking up — or had picked up a beer bottle or some type of bottle within the truck and swung that item at him in an attempt to injure him prior to the gun going off. When I saw from the discovery in the case — and, honestly, I had thought we were going to be able to possibly work this matter out on a plea, and when the State said, no, we were not going to work it out on a plea, I examined the file carefully and saw that there was no forensic testing done on bottles which were found in and near the truck[;] therefore[,] I filed the motion. And I asked in that we be allowed to examine that and ask that those objects be sent to the crime lab for examination. Mr. Saucier has provided us subsequently with documentation that Mr. Byrd at the Hattiesburg Police Department has done a fingerprint analysis of these items that I’m talking about in that there were, you know, in their parlance no fingerprints or prints of any value, which is sort of what I was asking for but not entirely. We just inquired of Mr. Saucier whether or not there were photographs taken of the prints or anything that would be subject to further examination that we could look at, and as far as photographs, his response was, no, there are no photographs. I don’t know the state of the evidence as it exist now, but we would still like to have the opportunity to have someone at the crime lab with more expertise than Mr. Byrd examine these items to determine whether or not they might be helpful in proving these items of defense that are possible for Mr. Conway. And that’s, you know, basically the basis of the motion, Your Honor.
THE COURT: Mr. Saucier.
MR. SAUCIER [Assistant District Attorney]: Your Honor, I think I need to give the Court a bit of information for clarification. Discovery was provided to counsel opposite on July 11 of this year. That’s been three months. The discovery at that particular point in time was as it is now except for the fingerprint examination. Counsel waited until one week before the trial to decide that it would be important for his defense that he have an examination made of a squeeze bottle, which is a soft plastic strawberry drink bottle, and a beer bottle. We provided that information through Mr. Byrd, who did a Super Glue test where you enhance it with gun powder. And this test showed differently from what counsel told the Court. There was no fingerprints on the beer bottle. No fingerprints on the Maglite, but there was a partial palm print on the plastic squeeze bottle for whatever purpose that would be. The most important thing in this is that I have received zero discovery from counsel opposite whatsoever. No requests were made for anything until a week before trial. We have scrambled around and tried to provide that. We have tried to provide color photographs instead of black and white photographs which were not acceptable, and I agree they’re not acceptable. Now, counsel stated that I said there were no photographs of this process. I haven’t talked to counsel, but I talked to his assistant and I told him I did not know if there were any photographs because nobody had asked for them and nobody had told me. I simply got the report. It’s still boils down to this. You have three months of discovery and you wait a week before trial and all of a sudden this is deemed important. That cannot be. And it’s not going to change the defense at all. It’s not going to change the defense as to whether or not he says that somebody was coming at him with a bottle or not because, for example, the Maglite, everybody is going to agree that the defendant had the Maglite in one hand, yet, there are no fingerprints on it. So is that going to discount something? No, because the testimony is going to still to say that the defendant had the Maglite. The fingerprints are not that important for another reason and that is the events have been caught on video camera. And I will tell the Court that the video camera is one of these stop-and-still type of video cameras that doesn’t run constantly in actual time. It’s about every four seconds. To enhance this, I discovered that there was not a machine here in this area but there is a machine in Biloxi, and I’m going to have that particular exhibit sent down to Biloxi and it’s supposed to be back by five o’clock tomorrow afternoon •with an enhanced and also complete frame-by-frame depiction of the events that occurred. The unfortunate situation, and I think in this case for the defendant, is that this event was captured on videotape. This event — you can say anything you want, that he was about to hit me with a bottle, but the facts are going to remain that the three individuals that were in the truck stayed in the truck. They could have very well have had a beer bottle or beer bottles and done exactly what the defendant said. They may not even be the same beer bottles. We have no evidence that this beer bottle or this soft drink bottle was involved in this incident. The reason that they were photographed and taken into evidence is because they were at the scene of the incident.
Now, does that change his defense? Not at all. They could of all three have had a beer bottle. They could have long neck beer bottles and could have been about to hit his client but they may not be the same beer bottles but that doesn’t mean he doesn’t have that defense. And even if they are the same bottles, the question is so what. And I simply say that this is nothing but a subterfuge for a continuance. So, now, after we’ve done the test on the beer bottle, no prints on it at all, to come up and say now we need photographs of what you did, I don’t know if Jeff Byrd did that as a processor, but I will tell the Court that the only thing that came off the Maglite, the strawberry soft drink squeezy bottle, and the beer bottle was one palm print on the squeezy bottle. But that doesn’t change any defenses nor does it change the fact that maybe his client was threatened by a beer bottle. It doesn’t change a thing because every single person is going to tell you that the three men in the truck, including the deceased, had just bought beer and they had just bought ice to put the beer in. So I don’t think anybody is going to deny that there were beer bottles and ice in that truck. So it gets down to the question of did anybody threaten or gesture to the defendant. And that’s just going to be a case of who the jury believes, eyewitness testimony. Fingerprints on the beer bottles are not going to prove or disprove anything because my people are going to say there was beer in that truck and there was ice in that truck.
With that, Your Honor, we have done everything that we could, but it’s becoming habit forming for us to get a week before trial and then all of a sudden, I need such and such. There have been three months where counsel could have asked for it if he felt like it was important, and, yet, we wait a week before trial. And I submit to the Court that we have done just everything possible to try to accommodate these last minute requests. And we have done it again with the fingerprints. And we’d ask the Court to allow us to go forward Monday.
THE COURT: Mr. Price.
MR. PRICE: Your Honor, I’m used to being accused of waiting until the last minute, but I’d like to point out to the Court this case occurred on July 4 of 2002. We’re sitting here today, and Mr. Saucier is admitting — he is stressing that we have a very, very important piece of evidence that’s going to tell everything, a videotape from the location. Yet, today Mr. Saucier doesn’t have that tape. I don’t have that tape. I was provided with that tape over a week ago in a totally nonviewable form. I have a tape that is being presented to me purporting to be a videotape of capturing this crime. The Hattiesburg Police Department has still not provided that to the district attorney’s office so that the district attorney could provide it to me. This tape may be wonderful. It may be great for the State. It may be great for me. I don’t know. But the point is, Judge, the Hattiesburg Police Department is who has sat around and not done anything. They did not test these items of evidence when my client gave a statement to them voluntarily back at the time of the crime and said to them, “They were trying to hit me in the head with a beer bottle.” They knew at that point in time right after the crime occurred that the beer bottle was important evidence and they didn’t do a test, Your Honor. What I’ve been provided with — and, by the way, I was in Laurel this morning. I came into my office about 12:15 and for the first time I saw this letter from Mr. Saucier that says, “The videotape quality remains the same. The courtroom equipment should improve the quality to a viewable condition.” Well, that’s just great. I get to see it just as the jury does and plan my defense. “Kindly be advised that Jeff Byrd tested the items of evidence for latent prints.” Judge[,] I had a motion filed before this Court asking that these items be sent to the Mississippi Crime Lab for examination. And now we can’t do that, Judge. I don’t know this particular method. I asked my investigator. He told me a little bit about it, but I suspect it’s a one-time deal. I want the evidence to be provided to the crime lab for further examination to see whether Mr. Byrd discovered all that could be discovered. I’m not asking, Your Hon- or, do these fingerprints belong to this guy; do they belong to that guy. It’s important to me to know if there are partial prints, what part of the bottle were they on, do they indicate something consistent with a person holding the bottle in the normal fashion to drink or do they indicate, for example, someone turning the bottle around in a normal fashion to hit somebody over the head with. That’s what’s important about this evidence not whether there are latent prints of value for identification purposes.
You know, I would further point out just for the benefit of this record for my client in this particular case, that I am a part-time public defender, that I have worked for the first six months of this year with a case load of 200 cases that I have bent over backwards to try to accommodate the State and the Court in every case possible by doing everything I could. I’ve tried to be at the beck and call of this Court. We have three judges. We have five district attorneys and assistant district attorneys, and I have held up the best I could against every one of them, Your Honor. I cannot be expected to perform — I have no staff. I have a part-time secretary that works, perhaps, three hours a day. My investigator is helpful to me but, as I said, our case load has gone from about sixty to seventy to two hundred cases. I just finished very recently another murder trial which was done on change of venue which took me eight days to try with a break for Sunday. It took me two weeks to prepare for that. I have a private practice. I have to maintain that private practice. I have lost money all year long trying to appease the former district attorney’s office. And I’ve tried to work with this D.A.’s office, and we do work well together. But I resent the implication and I want the supreme court or the court of appeals reviewing this to understand that Mr. Conway has not had the benefit of counsel that’s been able to devote a whole lot of attention to his case up until it became apparent that the State intended to carry this case to trial. You know, I would expect, Your Honor, that simply based on the videotape, which apparently I’m not going to get to see in a viewable condition until trial or, perhaps, later this afternoon, you know, is evidence enough. I think I’m entitled to have the crime lab examine this. I think my client is entitled to have a fair trial. He’s on trial for his life. It’s a very serious crime. And, you know, the fact that the Hattiesburg Police Dependent didn’t do their job is not my fault certainly, and it’s not Mr. Saucier’s fault.
This Court is well aware — and I can provide the Court with documentation and I’d like the opportunity to do so to supplement this record — that I have had numerous cases that have resulted in mistrials or not going to trial and getting continuances because of the failure of the Hattiesburg Police Department to properly do testing on evidence and provide that in a timely manner to counsel before trial.
THE COURT: Mr. Price, we’ve all been busy. And I think much of what you just said is simply for self-serving purposes. This case was set on June 24 and is scheduled to go to trial on Monday. The items you’re asking to examine, you haven’t demonstrated to me any importance for these items; however, it’s my understanding this matter is on videotape and it will be in a viewable posture — tomorrow afternoon or this afternoon?
MR. SAUCIER: Your Honor, there is a little misstatement. It’s actually viewable now. And I invited Tommy to come over and watch it at the Hattiesburg PD. But what you have to do is you have to manually do it frame by frame. And what I want to be able to do is have them a good copy where they can just stick it in there and go. So it’s not been that they haven’t been given an opportunity to see it. Its just the way the mechanism is set up. They’re going to get a copy by tomorrow afternoon at 5:00 which they’re not going to have to manually do anything to. They can just stick it in and watch it.
THE COURT: If there is anything contained in that video that you think you need to renew this motion, I’ll hear that Friday morning. But, other than that, I’m going to deny your motion.
MR. PRICE: Yes, Your Honor.

¶ 10. It is clear that although Conway’s trial attorney stated that he had not “been able to devote a whole lot of attention to his case up until it became apparent that the State intended to carry this case to trial,” he did not proclaim that he was totally unprepared to go to trial. In fact, the argument during the colloquy indicates otherwise. Conway’s trial attorney stated that he had reviewed the evidence against Conway and developed various defenses to the State’s charge of murder. While it could be argued that waiting such a short period of time before trial to move the trial court for a continuance or to further examine evidence is not preferred, it is apparent that Conway suffered no prejudice as a result. The trial court stated that the motions were being denied not because of their timing, but because the trial court had not been convinced of a sufficient legal justification for granting them. Furthermore, in his direct appeal from his murder conviction, Conway argued that the trial court erred in denying both motions. Conway, 915 So.2d at 523 (¶ 1). Finding no merit to either issue, this Court stated the trial court did not abuse its discretion in denying the motion to further examine and test the physical evidence. Id. at 525 (¶ 13). Additionally, in regard to Conway’s motion for a continuance, we did not speak to whether the trial court abused its discretion, but nonetheless affirmed as “Conway offerfed] no proof that his attorney at trial was unprepared or that [Conway] was prejudiced from his attorney’s [alleged] lack of preparation.” Id. at 525 (¶ 15). We again find that Conway has failed to show prejudice from his trial counsel’s alleged lack of preparation. Accordingly, this issue lacks merit.

B. Whether Conway received ineffective assistance of counsel as a result of his trial counsel’s failing to renew his motion to exclude evidence provided by the State.

¶ 11. As quoted above, at the conclusion of the hearing the trial court stated, “[i]f there is anything contained in that video that you think you need to renew this motion, I’ll hear that Friday morning. But, other than that, I’m going to deny your motion.” Conway argues that because this Court found the admission of the videotape to be error, the fact that his trial counsel did not renew his motion for a continuance after viewing the videotape amounts to ineffective assistance of counsel. We cannot agree.

¶ 12. While it is true that in Conway we found the admission of the videotape to be error, we concluded that given the overwhelming weight of the evidence against Conway, the error of admitting the videotape was harmless. Conway, 915 So.2d at 526 (¶ 20). Therefore, even if Conway could show that his trial counsel was deficient in failing to renew his motion for a continuance, a conclusion the record does not support, Conway cannot show that he suffered any prejudice as a result as the admission of the videotape was harmless error.

¶ 13. Furthermore, this Court’s finding in Conway that admission of the videotape was error was not based upon any substantive flaw in the videotape itself that could have been objected to prior to the videotape’s admission into evidence, but upon a violation of Mississippi Rule of Evidence 901 when authentication of the videotape was attempted. Id. at (¶ 19). Conway’s trial counsel did, in fact, object to the admission of the videotape for this precise reason. Therefore, as Conway cannot show that his trial counsel’s failure to renew his motion for a continuance satisfies either prong of Strickland, this issue is without merit.

C. Whether Conway received ineffective assistance of counsel as a result of his trial counsel’s failing to move for a mistrial after learning that a juror failed to inform the court that she knew Conway’s mother.

¶ 14. Cleta Zeller was seated as a juror in Conway’s trial. During voir dire, all potential jurors were asked if they knew any of the individuals expected to be called as witnesses during Conway’s trial. One such potential witness was Deborah Sumrall, who is Conway’s mother. Although Zeller responded that she knew a different potential witness, she did not indicate that she knew Sumrall. In an affidavit attached to Conway’s brief, Sumrall stated that she has known Zeller for years and that the two women were co-workers. Sumrall stated that she saw Zeller in the courthouse during the trial, but she did not realize Zeller was a juror until Conway’s sentencing hearing. She claimed to have sent a letter to the trial court judge about Zeller being on the jury, but she states that she never received a response from the trial court judge. Conway argues that Sumrall’s affidavit proves that she told Conway’s trial counsel that Zeller knew Sumrall, but Zeller failed to disclose that fact during voir dire. Conway argues that his trial counsel’s failure to object to Zel-ler’s silence was ineffective assistance of counsel.

¶ 15. Despite Conway’s argument that SumraH’s affidavit proves that his trial counsel had knowledge of Zeller’s alleged relationship with Sumrall as an acquaintance, Sumrall’s affidavit simply does not indicate that she told Conway’s trial counsel that she knew Zeller. Conway’s trial counsel’s failure to object to a relationship that was not disclosed and was not brought to his attention can hardly be called deficient performance. Therefore, as Conway cannot pass the threshold inquiry of Strickland, this issue is without merit.

D. Whether Conway received ineffective assistance of counsel as a result of his trial counsel’s failing to object to the qualifications of the State’s expert witness.

¶ 16. Conway’s last allegation of his trial counsel’s ineffective assistance centers around the State’s expert witness, Dr. Stephen Hayne. Dr. Hayne performed the autopsy on the body of the victim. He testified as to the trajectory of the bullet that killed the victim and the possible position of the shooter and victim at the time of the shooting. Conway argues that based upon the supreme court’s discussion of Dr. Hayne in Edmonds v. State, 955 So.2d 787 (Miss.2007), Conway’s trial counsel’s failure to object to Dr. Hayne’s proffer as an expert, and also object to his subsequent testimony regarding the posture of the victim, was ineffective assistance of counsel.

¶ 17. In Edmonds, the supreme court found that the trial court erroneously allowed the testimony of Dr. Hayne as it was based on opinion rather than scientific methods and procedures. Edmonds, 955 So.2d at 792 (¶ 8). Further, the Edmonds court stated that this state’s standards regarding expert testimony required that the State make a proffer of the “scientific testing performed to support Dr. Hayne’s” theory in Edmonds. Id. The supreme court ultimately found that Dr. Hayne’s testimony (and lack of proof of testing to support it) affected Tyler Edmonds’s substantial rights and that this “error was magnified when Dr. Hayne’s testimony was the only evidence — other than [Ed-mondsj’s contested confession — to support the State’s theory of the case.” Id. at (¶ 9). However, the Edmonds court nonetheless found that “Dr. Hayne is qualified to proffer expert opinions in forensic pathology.” Id. at (¶ 8).

¶ 18. In the present case, Dr. Hayne testified that Mooney was shot in the “mid-upper chest wall at a point 14 inches below the top of the head, 1-1/2 inches to the right. The bullet traveled in three dimensions going from left to right, going from the top toward the bottom, and also traveling from front to back.” Furthermore, it was Dr. Hayne’s opinion that if the shooter was within ten feet of Mooney and on level ground, the approximate location of the weapon would have been seven to eight feet off the ground. When asked by the State if Mooney’s gunshot wound would be more consistent with a “smaller person” shooting “an individual ... seated in a Toyota Tundra pickup truck,” Dr. Hayne then stated that that scenario was more probable. However, on cross-examination, Dr. Hayne testified that the trajectory of the bullet that killed Mooney was also possible if you have one five-feet-eight-inch-tall person standing within close proximity to another five-feet-eight-inch-tall person. He stated: “Very simply. If the decedent rotates slightly toward the shooter, you’d have a bullet going in. When we look at him in a recumbent position, we have the bullet going down.”

¶ 19. As to Conway’s trial counsel’s allegedly deficient inaction in failing to object to Dr. Hayne’s expert status, Conway offers this Court nothing in the way of evidence or other support, save for a citation to Edmonds, showing that an objection would have been justified, let alone successful. Indeed, the Edmonds court stated that Dr. Hayne was an expert in forensic pathology. That is not to say that once an individual has been deemed an expert in one courtroom he is always an expert, but, as mentioned, we have been shown nothing to indicate that Conway’s trial counsel’s decision not to object during Dr. Hayne’s voir dire was nothing more than trial strategy. Generally, the decision to make certain objections falls -within the realm of trial strategy and is not grounds for a claim of ineffective assistance of counsel. Spicer v. State, 973 So.2d 184, 203 (¶ 69) (Miss.2007). Following the State’s voir dire of Dr. Hayne, we can hardly fault Conway’s trial counsel for choosing not to further question Dr. Hayne as to his extensive qualifications. Therefore, we cannot find that Conway’s trial counsel was deficient in failing to object to Dr. Hayne’s expert status.

¶ 20. Conway also argues that his trial counsel was deficient in failing to object to Dr. Hayne’s testimony regarding Mooney’s position at the time of the shooting. However, the record is clear that when the State began to illicit testimony from Dr. Hayne concerning the positions of Mooney and Conway at the time of the shooting, Conway’s trial counsel did voice an objection. Conway’s trial counsel stated:

Your Honor, I’m going to object to the relevance of this unless there’s some determination made that the relationship of Dr. Hayne and [the prosecutor] is what it was in this case. And I think it’s very obvious to me that it’s not. So unless they can lay the proper foundation, I would object....

However, the trial court ultimately overruled the objection. We cannot say that Conway’s trial counsel was deficient in failing to make an objection that was, in fact, voiced and argued to the trial court.

¶ 21. Assuming arguendo that Conway’s trial counsel was deficient as argued by Conway, he still cannot show the requisite prejudice. Although the Edmonds court found that allowing Dr. Hayne’s testimony was error which infringed upon Edmonds’s substantial rights, the facts and circumstances surrounding Dr. Hayne’s testimony in the instant case are markedly different. In Edmonds, Dr. Hayne stated that he could not exclude the defense’s theory of the case, but he favored the State’s theory as it was more consistent with the victim’s injuries. Edmonds, 955 So.2d at 791 (¶ 7). In the present case, Dr. Hayne stated that it was more probable that Mooney was shot while sitting in a truck rather than standing straight up and facing the shooter. However, during cross-examination, he also stated, without showing favor to either theory, that the trajectory of the bullet that struck Mooney could have occurred if Mooney had rotated toward the shooter while they were both standing. Furthermore, unlike in Edmonds where “Dr. Hayne’s testimony was the only evidence — other than [Edmondsj’s contested confession — to support the State’s theory of the case,” in the instant case, there was substantial testimony from several eyewitnesses as to their recollection of the events that led to the shooting of Mooney. As such, we cannot say that Conway’s trial counsel was deficient in regard to his actions pertaining to Dr. Hayne’s voir dire or testimony, let alone that Conway suffered any prejudice. This issue is without merit.

II. WHETHER CONWAY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE APPEAL OF HIS CONVICTION OF MURDER.

¶ 22. Conway’s counsel during his direct appeal was different from his trial counsel. Following this Court’s hand-down of our decision in Conway’s direct appeal, Conway’s appellate counsel chose not to file a motion for rehearing. Motions were filed by Conway’s current attorney requesting an enlargement of time to file for rehearing and reconsideration; however, they were denied. Additionally, a petition for writ of certiorari was filed, but it too was denied. Conway argues that his appellate counsel’s failure to file post-appeal motions amounts to ineffective assistance of counsel.

¶ 23. Conway argues that there were two errors committed by this Court in Conway that, if argued on a motion for rehearing, would have resulted in a different outcome. First, Conway claims that .this Court “did not follow the law when examining the harmlessness of [allowing the surveillance video into evidence.]” He further claims that “[w]hile the [Court of Appeals] correctly recited the test for harmless error, the opinion does not even address the prejudice done to the defendant by the enhanced videotape’s admission into evidence.” Additionally, Conway cites Rule 103(a) of the Mississippi Rules of Evidence as support for the statement that “[t]he Mississippi Rules of Evidence indicate the harmless-error test must include an examination of the effect the evidence had on the substantial rights of the defendant.” We cannot agree to either proposition.

¶ 24. In resolving the issue of whether admission of the videotape was reversible error, we stated:

“No trial is free of error; however, to require reversal the error must be of such magnitude as to leave no doubt that the appellant was unduly prejudiced.” Busick v. St. John, 856 So.2d 304, 308 (¶ 9) (Miss.2003) (citing Davis v. Singing River Elec. Power Ass’n, 501 So.2d 1128, 1131 (Miss.1987); Parmes v. Illinois Cent. Gulf R.R., 440 So.2d 261, 268 (Miss.1983)). When the weight of the evidence against the defendant is overwhelming, such error is harmless. Moss v. State, 727 So.2d 720, 725-26 (¶ 24) (Miss.Ct.App.1998). Based on this Court’s review of the record and the evidence against Conway, we find that the evidence against Conway is overwhelming.

Conway, 915 So.2d at 526 (¶ 20). Further, we specifically examined the evidence against Conway in the following issue concerning whether the jury’s verdict was contrary to the weight of the evidence. Id. at 526-27 (¶¶ 21-22). In finding that the evidence against Conway was overwhelming, we implicitly found that any prejudice he may have suffered as a result of the admission of the videotape was not worthy of reversal of his conviction. An on-the-record recitation of such prejudice was simply not required. See generally, Genry v. State, 735 So.2d 186, 198 (¶58) (Miss.1999) (finding an erroneous admission of evidence harmless error given the overwhelming weight of the evidence against the defendant); Carter v. State, 722 So.2d 1258, 1262 (¶14) (Miss.1998); Sims v. State, 928 So.2d 984, 990-91 (¶ ¶ 33-34) (Miss.Ct.App.2006); Harper v. State, 887 So.2d 817, 829 (¶ 57) (Miss.Ct.App.2004).

¶ 25. Conway’s second point of error, which he argues would have justified a motion for rehearing, stems from this Court’s finding that the trial court’s denial of Conway’s motion to examine and test the physical evidence was not error. Conway argues that part of this Court’s basis for finding no error in the denial of his motion was due to the evidence contained on the videotape. Conway continues that our finding that the admission of the videotape was error, albeit harmless error, calls into question the validity of our finding that the denial of his motion to examine and test the physical evidence was not error.

¶ 26. In Conway, we reviewed the bases argued by the prosecutor in support of the State’s position that the motion should be denied. Conway, 915 So.2d at 524-25 (¶ ¶ 10-11). These included: (1) that the presence of fingerprints on the bottle and Maglite were irrelevant to the issue of self-defense because of the other testimonial evidence and (2) that the presence of fingerprints on the bottle and Maglite were irrelevant because the event was captured on the videotape. Id. In resolving the issue, we stated:

The circuit court has considerable discretion in matters pertaining to discovery, and its exercise of discretion will be set aside only if there is an abuse of discretion. Gray v. State, 799 So.2d 53, 60 (¶ 26) (Miss.2001). The circuit court judge agreed with the prosecutor that the presence of fingerprints on the beer bottle and [Maglite] were irrelevant as to whether Conway acted in self-defense. Only relevant evidence is admissible. M.R.E. 401. The question of whether evidence is relevant is within the discretion of the trial judge. Federal Land Bank of Jackson v. Wolfe, 560 So.2d 137, 140 (Miss.1989). The circuit court judge did not abuse his discretion in denying Conway’s motion for discovery.

Id. at 525 (¶ 13). Our identification of the admission of the videotape as error notwithstanding, the trial court had another legitimate basis for exercising its discretion to deny the motion, to-wit, that the presence of fingerprints on the items was irrelevant given the eyewitness testimony expected. Thus, it is clear that while the admission of the videotape may have influenced the trial court’s decision to deny Conway’s motion to examine and test the physical evidence, it was not the only reason cited in its denial. This Court, again, cannot say that denying Conway’s motion was an abuse of discretion. Therefore, as Conway has failed to show that there was an arguable basis upon which to file a motion for rehearing, he can neither demonstrate that his appellate counsel was deficient, nor that he suffered any prejudice as a result. As such, this issue is without merit.

III. WHETHER CONWAY WAS DENIED A FAIR TRIAL.

¶ 27. Conway argues that he was denied a fair trial as a result of witness and juror misconduct. First, he claims that after the affirmance of his conviction in Conway, he discovered that some witnesses did not abide by Rule 615 of the Mississippi Rules of Evidence. Second, Conway argues that Zeller’s failure to respond during voir dire that she knew Conway’s mother was juror misconduct that denied him his right to a fair trial. We find that neither issue raised by Conway has merit.

¶28. As evidence of the alleged witness misconduct, Conway attached affidavits from four individuals to his appellate brief. The affidavits generally state that the witnesses for both sides were able to, and did, converse with each other during the trial. However, what is lacking from the affidavits is any mention of what was discussed, if it pertained to Conway’s trial, or any indication, other than Conway’s unsupported claim of prejudice, that there was any possibility that what the witnesses discussed affected the outcome of Conway’s trial, or they had anything to do with it whatsoever. “A technical violation of the rule is harmless where the violation did not adversely affect the defendant.” Conley v. State, 790 So.2d 773, 789 (¶ 55) (Miss.2001). Assuming arguen-do that the affidavits are accurate, Conway has failed to show such an adverse affect.

¶29. Conway next argues that Sumrall’s statement in her affidavit that she and Zeller were acquaintances for several years prior to Conway’s trial proves that Zeller was not forthright during voir dire, which denied Conway of his right to a fair and impartial jury and a fair trial. Sumrall’s affidavit stated:

I have known Cleta Zeller for years and have worked with her at Mississippi Auction. Since that time I have had contact with her when I called Mississippi Auction for business reasons. I spoke to Cleta in the hallway during the trial. I did not realize she was on the jury. I was in the witness room and did not see the jury.
I feel Cleta Zeller should have been excused from the jury since it was my son who was on trial.
I realized she was on the jury when I was taken into the courtroom for the sentencing of Derek Conway, my son. I sent a letter or fax to Judge Helfrich and told him about this. I never received a response.

As stated above, when Zeller was asked during voir dire if she knew any of the potential witnesses, which included Sum-rall, she did not admit to knowing Sumrall.

¶ 30. The Mississippi Supreme Court held in Odom v. State, 355 So.2d 1381, 1383 (Miss.1978), that when a potential juror in a criminal case does not respond to a relevant, direct, and unambiguous question during voir dire, although the requested information is known to the juror, it must be determined whether the question asked of “the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited.” If these initial inquires are answered in the affirmative, then “the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond.” Id.

¶ 31. In this case, after naming the potential witnesses in Conway’s trial, including Sumrall, the trial court asked the jurors if they were “related by blood or marriage to any of the potential witnesses in this case? Do any of you know the potential witnesses in this case?” Zeller responded that she was a casual acquaintance of a different potential witness, but she could remain fair and impartial to both sides. Zeller did not identify any other potential witnesses she knew. It is clear that the question asked of Zeller was relevant and unambiguous, and assuming Sumrall’s affidavit is accurate, it can be assumed that the third inquiry was satisfied. That leads us to ask whether prejudice could be inferred from Zeller’s failure to respond. Though no transcript of a hearing before the trial court concerning Conway’s motion for post-conviction relief is in the record, it is clear from the record that a hearing was held on October 3, 2005. Given the trial court’s denial of Conway’s motion, it can be reasonably assumed that no prejudice was found as a result of Zeller’s failure to mention that she knew Sumrall. Nevertheless, each case involving the voir dire of prospective jurors must be decided on an ad hoc basis considering the facts then before the court, and a trial court’s judgment in this matter will not be disturbed unless it is clearly wrong. Id.

¶ 32. We can find no reasonable basis of prejudice as Conway argues to this Court. As we found in Conway’s direct appeal of his conviction, there was a vast amount of evidence supporting Conway’s guilt. Additionally, in her affidavit, Sumrall does not suggest that: she was at odds with Zeller; there was an animosity between the two women; or Zeller was negatively biased toward Conway. One would initially assume that a potential juror who knows, is acquainted with, or is a friend and past coworker of the accused’s mother would favor the accused as a trial juror. We can think of worse individuals to have on a jury than acquaintances with no identified malice toward the defendant. We cannot say that Zeller’s alleged failure to identify her familiarity with Sumrall, and subsequent selection as a juror, prejudiced Conway. This issue is without merit.

IV. WHETHER CONWAY WAS DENIED PROCEDURAL DUE PROCESS.

¶ 33. In his final point of error, Conway claims that the supreme court erred by “denying his Petition for Writ of Certiora-ri” as he was denied “his procedural due[-]process rights under federal and state law.” However, Rule 17(a) of the Mississippi Rules of Appellate Procedure states, in pertinent part, that “[rjeview on writ of certiorari is not a matter of right, but a matter of judicial discretion.” There simply is no right to review on a writ of certiorari. This issue is without merit.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST 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, BARNES, ISHEE AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

      . Additionally, although Conway argues that his trial counsel’s failure to renew his objection was not effective assistance, other than an argument under the broad statement that the videotape prejudiced him, Conway does not specify what his trial counsel could have based his renewed objection on.

      . It appears that Sumrall’s last name has changed to Bishop since Conway’s trial. However, for the sake of consistency we will continue to refer to Conway’s mother as Sum-rall.

      . Conway actually calls attention to Justice Diaz’s separate opinion in which Justice Diaz casts doubt on the Edmonds majority's characterization of Dr. Hayne as an expert, as well as Dr. Hayne’s overall qualifications.

      . Both Conway and Mooney were five feet eight inches tall.

        . Conway’s brief contains a letter dated December 29, 2005, from the Forrest County Public Defender's office informing Conway that his conviction and sentence had been affirmed, and no basis could be found upon which to file a motion for rehearing. The letter incorrectly states the date of this Court’s hand-down of Conway as December 13, 2005. This date was actually the deadline for filing a motion for rehearing of Conway’s appeal. Additionally, the letter incorrectly informed Conway that he had fourteen days from the date of the letter to file a motion for rehearing.


author: ISHEE, J.,

text:
    Derrick HAMPTON a/k/a Margie Boo and Kandrin Kordel Grace a/k/a Ken, Appellants v. STATE of Mississippi, Appellee.
    No. 2009-KA-00403-COA.
    Court of Appeals of Mississippi.
    Oct. 19, 2010.

      Richard B. Lewis, Clarksdale, Paul Thomas Lee, Jr., Erin Elizabeth Pridgen, attorneys for appellants.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This appeal proceeds from the Coa-homa County Circuit Court. After a jury trial held on January 26-27, 2009, Kandrin Kordel Grace was convicted of aggravated assault and sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and five years of post-release supervision. Grace’s co-defendant, Derrick Hampton, was convicted of attempted aggravated assault and sentenced to fifteen years in the custody of the MDOC, with five years suspended and five years of post-release supervision. After the denial of their post-trial motions, Hampton and Grace filed separate appeals to this Court. However, the two were tried together, and we address their allegations in the same opinion.

FACTS

¶ 2. On March 28, 2008, officers with the Clarksdale Police Department responded to a shooting at 515 Illinois Street in Clarksdale, Mississippi. The officers found the victim, Marcion Mason, with a gunshot wound to his leg. Following an investigation, Hampton was arrested and charged with attempted aggravated assault. Grace was arrested and charged with aggravated assault for shooting Mason. Both Hampton and Grace entered not-guilty pleas. Prior to trial, Hampton filed a motion to sever, which the trial court denied.

¶ 3. At the trial, Mason testified that he was visiting Arlanders Cole at Cole’s grandmother’s house at 515 Illinois Street on the day of the shooting. Mason stepped out onto the front porch of the house to smoke a cigarette. While on the porch smoking, Mason noticed that Grace had come into the front yard of the house at 515 Illinois Street. Hampton stood in the street in front of Cole’s grandmother’s house. Mason testified that Grace asked Mason why he was looking at him. Mason and Grace exchanged words. Mason testified that he never made any threatening gestures or statements to Grace. Further, Mason testified that he was unarmed.

¶ 4. According to Mason, Grace said: ‘You still looking at me. You must want to get shot.” Mason then told Grace to “go back across the street with that gun stuff.” At that time, Mason saw Hampton and Grace aim guns at him, and Mason attempted to go back into the house. As he attempted to retreat into the house, Mason was shot in the thigh. Mason testified that he heard three or four gunshots.

¶ 5. Cole testified that he heard six gunshots, but he did not see who had fired the shots. However, Cole testified that the first two shots he heard seemed to come from the street, where Hampton stood. The remaining shots seemed to come from the front yard, where Grace had been. Mason informed Cole when he got back into the house that Grace had shot him. Cole called the Clarksdale Police Department for help.

¶ 6. Police officers arrived at 515 Illinois Street and questioned Cole and Mason. Cole informed the responding police officer that the two men who had shot at Mason ran across the street to a house located at 512 Illinois Street. Officers investigating the shooting found a bullet hole in the front door of Cole’s grandmother’s house and another bullet hole in the wall by the front door. The officers did not find any shell casings.

¶ 7. Hampton’s cousin lived in the house at 512 Illinois Street. When police officers arrived at that address, Hampton’s girlfriend, Shatiya Grace (Shatiya) answered the door. Shatiya is also Grace’s aunt. Shatiya initially told officers that she was the only person in the house at the time. However, she allowed the officers to enter and search the house. The officers found Grace and Hampton in a back bedroom of the home.

¶ 8. Upon a search of the house at 512 Illinois Street, the officers found two loaded handguns and a shotgun in the attic. Investigators conducted gunshot-residue testing on both Grace and Hampton, and both men’s samples were positive for gunshot residue. Further, Grace gave a statement to the police officers in which he admitted shooting Mason, although he stated that he had shot Mason in self-defense.

¶ 9. A Coahoma County grand jury returned an indictment against Grace for aggravated assault and against Hampton for attempted aggravated assault. The two men were tried together, but they were represented by separate counsel. Both men were convicted. Hampton and Grace filed separate post-trial motions, which were denied. On appeal, Hampton argues that: (1) there is insufficient evidence to support the jury’s verdict; (2) the verdict is against the overwhelming weight of the evidence; and (3) the trial court erred in denying his motion for severance. Grace alleges on appeal that: (1) the trial court deprived him of his constitutional right to a fair and impartial trial through repeated use of extraneous and impious comments, which threatened the solemnity of the trial proceeding; and (2) the verdict is against the overwhelming weight of the evidence.

¶ 10. We find no error and affirm.

DISCUSSION

I. Whether the trial judge’s comments deprived Grace of his right to a fair and impartial trial.

¶ 11. In his first assignment of error, Grace alleges the trial court made repeated use of “jocular” and “impious” comments, thereby compromising the solemnity of Grace’s trial. Grace argues the jovial atmosphere created by the trial court is evident from the repeated indications of laughter in the trial record. Further, Grace finds error in the trial judge’s statements to potential jurors during voir dire, in which Grace contends the judge insinuated that potential jurors were being dishonest about their ability to remain unbiased. Grace argues the atmosphere created by the trial court encouraged the jury to treat the case in an “easy-going and carefree manner.”

¶ 12. Notably, Grace failed to make a contemporaneous objection to the trial judge’s statements during voir dire or to the occasional laughter, which could be heard in the courtroom. Generally, a failure to make a contemporaneous objection during trial waives an issue on appeal. McCain v. State, 971 So.2d 608, 612 (¶ 7) (Miss.Ct.App.2007). Despite his failure to object at trial, Grace urges this Court to review this assignment of error under the plain-error doctrine. In order to prevail under the plain-error doctrine, an appellant must show that there was an error in the trial court and that the error resulted in a “manifest miscarriage of justice.” Flora v. State, 925 So.2d 797, 811 (¶ 42) (Miss.2006) (quoting Williams v. State, 794 So.2d 181, 187 (¶ 23) (Miss.2001) (overruled on other grounds)). Furthermore, this Court may only apply the plain-error rule when the error complained of affects a defendant’s fundamental or substantial rights. Id. (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991)).

¶ 13. Upon examination of the trial judge’s comments during voir dire and the references to laughter during the trial, this Court cannot find the judge’s remarks denied Grace a fair trial. The comments to the jurors took place during voir dire in an effort to assure that an impartial jury was selected. Likewise, the majority of the references to laughter throughout the record occurred during voir dire, before the trial began. The remaining references to laughter during the trial occurred outside the presence of the jury, with the exception of one instance. Moreover, the trial judge made no disparaging remarks regarding Grace or his co-defendant, Hampton.

¶ 14. In McKinney v. State, 26 So.3d 1065, 1071-72 (¶¶ 29-33) (Miss.Ct.App.2009), this Court addressed an identical argument involving the same trial judge. In that case, Robert McKinney argued the trial judge’s ad-libbed and “folksy” anecdotes during voir dire created a lighthearted atmosphere - in the courtroom, which prevented the jury from seriously considering the evidence in his case. Id. at 1071 (¶¶ 29-30). While acknowledging the supreme court’s holding in Roberson v. State, 185 So.2d 667, 670 (Miss.1966), in which the supreme court held that jocularity and humor are inappropriate in a criminal proceeding, this Court found that McKinney had received a fair trial. Id. at 1072 (¶ 32-33). This Court stated:

While we do not condone the apparent informality of some of the trial judge’s comments, we can find no instance where the trial court made light of the proceedings or joked at the defendant’s expense. Instead, the record reflects that the jury was made well aware of the importance of their role and their duty to conscientiously consider the evidence, apply the law, and reach a just verdict.

Id. at (¶ 33).

¶ 15. Grace has failed to show this Court that the trial judge’s occasional informality during the course of the proceedings deprived him of a fair trial. As in McKinney, the jurors in Grace’s trial received ample instructions regarding their duty as jurors to carefully consider the evidence and testimony presented at trial. The trial court’s statements fail to rise to the level of plain error. See id. at (¶ 33). This issue is without merit.

II. Whether the verdicts are against the overwhelming weight of the evidence.

¶ 16. Both Grace and Hampton argue in their separate appeals that their guilty verdicts are against the overwhelming weight of the evidence presented at trial; thus, the trial court should have granted them a new trial on that basis. This Court “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). In challenges to the weight of the evidence, this Court looks at the evidence presented at trial in the light most favorable to the verdict. Id. at 844-45 (¶ 19). Additionally, this Court gives the State the benefit of all favorable inferences that may be drawn from the evidence. Wilson v. State, 904 So.2d 987, 995 (¶ 22) (Miss.2004).

A. Kandrin Kordel Grace

¶ 17. Grace argues since the time of his arrest, he has maintained that he shot Mason in self-defense. Grace stated he shot Mason because he believed Mason was going to shoot him. Grace finds fault with the officers’ investigation of the shooting because they failed to perform gunshot-residue testing on Mason or Cole. Further, the police officers only searched portions of the house at 515 Illinois Street rather than searching the entire house for weapons.

¶ 18. Despite Grace’s contention that he shot Mason in self-defense, the evidence he presented at trial did not preponderate heavily against the verdict. See Bush, 895 So.2d at 844 (¶ 18) (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000)). Grace told police officers he heard that Mason and Cole had made threats against him and Hampton. Grace offered the following version of events in his statement to the police:

[Hampton] went outside and the next thing I knew he was coming in the house saying that Cole and [Mason] was [sic] sending threatening words to us talking about what they was gone [sic] do something to us. They was [sic] telling people last night that they was gone [sic] do something to us. I got my aunt’s gun (.380) off the table[,] and I went across the street to talk to my uncle ... and that’s when I saw [Mason] standing in the door with a gun it look like a 38 revolver. He started talking about yall better gone [sic] somewhere before one of yall get shot and I pulled out my gun which was a .380 and I started shooting at him. I shot at him first because I thought he was going to shoot me. I shot twice at [Mason] and then I went back in the house. [Hampton] was still in the house while all of this was going on. I took the gun back in house and put two more bullets in the magazine and then I put the gun in the attic because it be [sic] children in the house sometimes.

¶ 19. Shatiya testified at the trial that she could see Mason from the window of the house at 512 Illinois Street. Before the shooting occurred, she saw Mason standing on the front porch of Cole’s grandmother’s house holding something in his hand. She could not tell if the object was inside or outside of Mason’s pocket. Further, Shatiya could not identify the object because she was too far away.

¶ 20. Mason testified that he exchanged words with Grace. However, he denied that he was armed or that he made any threatening remarks or gestures toward Grace prior to the shooting. Cole also testified that he and Mason were unarmed at the time of the shooting.

¶ 21. Examining the evidence in the light most favorable to the verdict, we cannot find that the evidence presented at trial preponderated heavily against the verdict and in favor of Grace’s claim that he had acted in self-defense. The verdict is not contrary to the overwhelming weight of the evidence.

B. Derrick Hampton

¶22. Hampton argues the overwhelming weight of the evidence presented at trial established that he was not guilty of attempted aggravated assault. To support his argument, Hampton states that none of the witnesses actually saw him shoot a gun, and only one witness saw him point a weapon at Mason. Further, Hampton argues he did not test positive for gunshot residue; rather, he merely had particles indicative of gunshot residue on the palms of his hands.

¶ 23. The testimony and evidence presented at trial, when examined in the light most favorable to the verdict, support the jury’s guilty verdict. David Whitehead, a trace-evidence expert, testified at trial that he found particles indicative of gunshot residue on the palms of both of Hampton’s hands. The samples taken from the backs of Hampton’s hands were negative for gunshot residue. Whitehead testified that finding gunshot residue on someone’s hands indicates that they have fired a weapon recently, been in close proximity to someone who had fired a gun, or that they handled a gun that had been fired recently. Whitehead also testified that a person can remove gunshot residue through a number of everyday activities, including washing the hands, placing the hands in one’s pockets, or even running the hands through one’s hair. Finding the particles indicating gunshot residue on only the palms of Hampton’s hands does not lead to a conclusion that he did not fire a gun.

¶ 24. Cole testified that he saw Hampton with a gun prior to hearing the gunshots. Cole testified at trial that immediately prior to hearing the gunshots, he saw Hampton run across the street with a gun. Cole testified that the first shot sounded like it came from the street, where he had seen Hampton. Citing Ishee v. State, 799 So.2d 70, 73 (¶ 7) (Miss.2001), Hampton argues, at most, the evidence shows he pointed a gun at Mason and that pointing a gun is not an overt act sufficient for finding he attempted to commit aggravated assault against Mason. However, viewing the evidence in the light most favorable to the verdict, we find there is evidence to support the State’s assertion that Hampton actually fired the weapon.

¶ 25. Mason testified at trial that he saw Hampton run across the street with a gun in his hand, which he pointed at Mason. Cole testified that he saw Hampton point a gun at Mason and that he heard shots coming from Hampton’s direction. Further, Whitehead, the State’s trace-evidence expert, testified that he found particles indicative of gunshot residue on Hampton’s palms. Giving the State the benefit of all reasonable inferences to be drawn from the evidence, we do not find that the verdict is against the overwhelming weight of the evidence presented. The jury heard the conflicting testimony presented at trial and resolved it in favor of the State. It is the duty of the jury to resolve conflicting evidence and testimony at trial, and the jury has a right to believe or disbelieve the testimony it hears. Moore v. State, 969 So.2d 153, 156 (¶ 11) (Miss.Ct.App.2007) (citing Stephens v. State, 911 So.2d 424, 436 (¶38) (Miss.2005)). This issue is without merit.

III. Whether the evidence was legally sufficient to support Hampton’s conviction for attempted aggravated assault.

¶ 26. Hampton also argues the evidence against him was insufficient to support his guilty verdict for attempted aggravated assault. In challenges to the legal sufficiency of the evidence, the appellate court should examine the evidence in the light most favorable to the prosecution and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush, 895 So.2d at 843 (¶ 16). This Court will reverse a conviction only if, upon examination of the evidence, we find that the evidence “point[s] in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.” Id. (citation omitted). However, this Court will affirm even when the evidence is of such quality and weight that “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. In sum, a reversal on the ground of insufficient evidence means an acquittal was the only proper verdict for the defendant. Id. at 844 (¶ 18).

¶ 27. Considering all evidence presented at trial in a light most favorable to the State, we find that a rational trier of fact could have found Hampton guilty of attempted aggravated assault beyond a reasonable doubt. Both Mason and Cole testified that Hampton was in the street outside of the house at 515 Illinois Street. Both Mason and Cole testified that Hampton ran into the street with a gun. Cole testified that Hampton pointed the gun at Mason. Further, Cole testified that he heard gunshots coming from Hampton’s direction.

¶ 28. The State’s trace-evidence expert, Whitehead, testified that he found particles indicative of gunshot residue on the palms of both of Hampton’s hands. Hampton argues Whitehead’s findings indicate only that he handled a gun after it had been discharged. Otherwise, Hampton argues Whitehead would have found gunshot residue in the other samples taken from him after the shooting. However, Whitehead testified that gunshot residue could be easily removed through hand-washing and other everyday activities. Based on Whitehead’s testimony, coupled with the testimony from Cole and Mason, the jury could have inferred that Hampton had fired a gun recently.

¶ 29. Considering the evidence in the light most favorable to the State, we find that sufficient evidence was produced at trial from which the jury could determine that Hampton was guilty of attempted aggravated assault against Mason. Therefore, this issue is without merit.

IV. Whether the trial court erred in denying Hampton’s motion for severance.

¶30. In his final assignment of error, Hampton argues the trial court erred when it denied his motion for severance. In non-death-penalty cases, the decision to grant or deny a motion for severance lies in the sound discretion of the trial judge. Sanders v. State, 942 So.2d 156, 158 (¶ 10) (Miss.2006) (citing Uniform Rules of Circuit and County Court 9.03). This Court reviews a trial court’s denial of a defendant’s motion to sever under an abuse-of-discretion standard. Id.

¶ 31. The supreme court has held that “[defendants jointly indicted for a felony are not entitled to separate trials as a matter of right.” Id. (citing Price v. State, 336 So.2d 1311, 1312 (Miss.1976)). Furthermore, “[b]oth [the Mississippi Supreme Court] and the United States Supreme Court have recognized the appropriateness and importance of joint trials.” Id. (citing Cavett v. State, 717 So.2d 722, 727 (Miss.1998)). Under Duckworth v. State, 477 So.2d 935, 937 (Miss.1985), there are two factors a trial court should consider when determining whether to grant a defendant’s motion to sever. Sanders, 942 So.2d at 159 (¶ 15). The two factors are: “(1) whether the testimony of one co-defendant tends to exculpate that defendant at the expense of the other, and (2) whether the balance of the evidence tends to go more to the guilt of one defendant than the other.” Id. (citing Duckworth, 477 So.2d at 937). Lastly, “[t]he overarching consideration when evaluating these factors is whether the defendants would be prejudiced by a joint trial.” Id.

¶ 32. Hampton argues all of the above criteria are met. Hampton first argues he was found “guilty by association” because of the vast amount of evidence produced at trial implicating Grace. Further, Hampton argues there was no evidence presented at trial demonstrating his guilt. Finally, Hampton argues the balance of evidence against Grace resulted in undue prejudice to Hampton.

¶ 33. Hampton’s arguments fail. Neither defendant testified at trial, and neither defendant offered evidence or testimony through defense witnesses that would tend to exculpate one at the expense of the other. Grace called no witnesses in his defense. Hampton called Shatiya, whose testimony did not attempt to exculpate Grace at Hampton’s expense. Hampton’s defense was that he was not present at the shooting. Grace offered no testimony which undermined Hampton’s defense. Further, Grace’s argument that he acted in self-defense had no bearing on Hampton’s defense. Likewise, the balance of the evidence did not point to the guilt of one of the defendants more than the other. Grace and Hampton were charged with separate crimes. The evidence at trial showed that both men pointed and fired guns at Mason. Because Grace succeeded in shooting Mason, he was charged with aggravated assault. Hampton failed in his attempt to shoot Mason, so he was charged with attempted aggravated assault.

¶ 34. Moreover, Hampton has failed to show he was prejudiced by the trial court’s denial of his motion for severance, except to complain that he was found guilty. In Sanders, the supreme court held that a showing of prejudice was essential to obtain a reversal based on a trial court’s failure to sever a trial. The supreme court stated: “Significantly, even if this Court should find that each defendant had exculpated herself at the expense of the other, absent a showing of prejudice, there are no grounds to hold that the trial court abused its discretion.” Sanders, 942 So.2d at 162 (¶ 30) (citation and internal quotation omitted).

¶ 35. This issue is without merit.

¶ 36. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF KANDRIN KOR-DEL GRACE OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION; AND CONVICTION OF DERRICK HAMPTON OF ATTEMPTED AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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


author: LEE, P.J.,

text:
    Michael D. BROWN and Michael D. Barksdale, Appellants v. STATE of Mississippi, Appellee.
    No. 2009-KA-01847-COA.
    Court of Appeals of Mississippi.
    Oct. 26, 2010.

      Erin Elizabeth Pridgen, attorney for appellants.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. In 2009, Michael D. Brown, Michael D. Barksdale, and Jermaine Alston were indicted on two counts of burglary of a building other than a dwelling. Prior to trial, Brown and Barksdale filed a motion for severance in order to proceed to trial without Alston. This motion was denied. Alston did not appear for trial. A jury in the Attala County Circuit Court found Brown and Barksdale guilty of both counts. On Count I, Brown was sentenced to serve seven years in the custody of the Mississippi Department of Corrections (MDOC). On Count II, Brown was sentenced to seven years, with one day to serve and the remainder to be under post-release supervision. The sentence in Count II was ordered to run consecutively to the sentence imposed in Count I. Brown was also ordered to pay $3,562.50 in restitution, court costs, fees, and assessments.

¶ 2. On Count I, Barksdale was also sentenced to serve seven years in the custody of the MDOC. On Count II, Barks-dale was also sentenced to seven years, with one day to serve and the remainder to be under post-release supervision. The sentence in Count II was ordered to run consecutively to the sentence imposed in Count I. Barksdale was ordered to pay $3,562.50 in restitution, court costs, fees, and assessments.

¶ 3. Both Brown and Barksdale filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. The trial court denied both of these motions. Brown and Barksdale filed separate appeals but asserted the same issues as follows: (1) the evidence was legally insufficient, and (2) the verdict is against the overwhelming weight of the evidence.

FACTS

¶ 4. Doyle Dean Rone owned a home in rural Attala County. The house had been vacant since 1993, but it still contained personal belongings. As a result of previous break-ins, Rone had installed a motion-sensor camera overlooking the back porch. On April 14, 2009, the camera recorded three men entering his home through the back porch and carrying away several items. The camera recorded the same three men the next day entering the house again and carrying away more personal property. Some of these items included an air-conditioner unit, a metal detector, a saddle, a knife, a food processor, and copper wiring that had been stripped from appliances. Rone, who did not recognize any of the men, took the photographs to the police.

¶ 5. Brown, Barksdale, and Alston were eventually identified and arrested. Brown testified at trial that Alston had informed him that they had permission from Rone to haul away items from his property. Brown admitted that he had hidden the items taken from the property, but he only did so because he had learned that he did not have permission to be on Rone’s property. Randy Blakely, an investigator with the Attala County Sheriffs Department, interviewed both Brown and Barksdale. Blakely testified that, during questioning, neither Brown nor Barksdale informed him of their belief that they had permission to take the items from the property. Blakely testified that Brown said that he and Barksdale did not break into Rone’s house because the doors were already open.

DISCUSSION

I. INSUFFICIENT EVIDENCE

¶ 6. In their first issue on appeal, Brown and Barksdale argue that the evidence was legally insufficient. Specifically, they argue that the State did not prove that they had intended to steal Rone’s property. Our standard of review in regard to challenges to the sufficiency of the evidence is well settled. “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient. Id.

¶ 7. Brown and Barksdale were indicted under Mississippi Code Annotated section 97-17-33(1) (Rev.2006), which states that it is a crime to break into and enter a building other than a dwelling “with intent to steal therein or commit any felony.” Our supreme court has held that intent to do an act or commit a crime is “a question of fact to be gleaned by the jury from the facts shown in each case.” Shanklin v. State, 290 So.2d 625, 627 (Miss.1974). Furthermore, it is well-settled law that the jury determines the credibility of witnesses and resolves any conflicts in the evidence. Riley v. State, 11 So.3d 751, 754-55 (¶ 16) (Miss.Ct.App.2008).

¶ 8. The State showed that Brown and Barksdale were on Rone’s property without his permission. Neither Brown nor Barksdale told Blakely during their interviews that they had permission to be on Rone’s property. Brown admitted that he had hidden some of the items he had taken from Rone’s property. Furthermore, Blakely testified that one of the photographs showed what appeared to be Brown opening the door to the back porch with his right sleeve enclosing his hand. Blakely opined that Brown was trying not to leave fingerprints.

¶ 9. Barksdale told Blakely that they did not break into the house because the door to the house was open. It is unclear if Barksdale meant the door was unlocked or standing open. Regardless, opening an unlocked door and walking through an opened door have been found to be breaking under the burglary statutes. See Moore v. State, 933 So.2d 910, 922 (¶41) (Miss.2006); Chaney v. State, 802 So.2d 113, 115 (¶ 9) (Miss.Ct.App.2001).

¶ 10. The jury clearly found Brown’s and Barksdale’s versions of events to be less than credible and resolved any conflicts in the evidence in the State’s favor. Viewing the evidence in the light most favorable to the State, we find that reasonable, fair-minded jurors could have found Brown and Barksdale guilty of burglary. This issue is without merit.

II. OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 11. In their other issue on appeal, Brown and Barksdale argue that their guilty verdicts were against the overwhelming weight of the evidence. This Court 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, 895 So.2d at 844 (¶ 18).

¶ 12. The evidence presented by the State proved that Brown and Barksdale were guilty of burglary. We cannot find that allowing the guilty verdicts to stand would sanction an unconscionable injustice. This issue is without merit.

¶ 13. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT OF CONVICTION OF MICHAEL D. BROWN OF COUNT I, BURGLARY OF A BUILDING OTHER THAN A DWELLING, AND SENTENCE OF SEVEN YEARS AND COUNT II, BURGLARY OF A BUILDING OTHER THAN A DWELLING, AND SENTENCE OF SEVEN YEARS WITH ONE DAY TO SERVE AND THE REMAINDER UNDER POST-RELEASE SUPERVISION, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY $3,562.50 IN RESTITUTION, IS AFFIRMED.

¶ 14. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT OF CONVICTION OF MICHAEL D. BARKSDALE OF COUNT I, BURGLARY OF A BUILDING OTHER THAN A DWELLING, AND SENTENCE OF SEVEN YEARS AND COUNT II, BURGLARY OF A BUILDING OTHER THAN A DWELLING, AND SENTENCE OF SEVEN YEARS WITH ONE DAY TO SERVE AND THE REMAINDER UNDER POST-RELEASE SUPERVISION, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY $3,562.50 IN RESTITUTION, IS AFFIRMED.

¶ 15. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.

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