text:
    Derrick T. WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KP-00859-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Rehearing Denied April 17, 2012.
    Certiorari Denied Aug. 2, 2012.

      Derrick T. Williams, appellant, pro se.
    Office of the Attorney General By Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Lauderdale County Circuit Court found Derrick T. Williams guilty of capital murder, armed robbery, and theft of a motor vehicle. For his armed robbery conviction, the circuit court sentenced Williams to twenty years in the custody of the Mississippi Department of Corrections (MDOC). For capital murder, the circuit court sentenced Williams to life in the custody of the MDOC without the possibility of parole or probation. The circuit court ordered Williams’s sentence for armed robbery to run concurrently with Williams’s sentence for capital murder. For theft of a motor vehicle, Williams was sentenced to serve ten years in the custody of the MDOC, with the sentence to run consecutively to his sentences for armed robbery and capital murder. Aggrieved, Williams appeals and raises eight issues. After careful consideration, we find that Williams’s armed-robbery conviction, which was the basis for elevating the murder charge to capital murder, is contrary to the Fifth Amendment’s prohibition against double jeopardy. We, therefore, reverse and render as to Williams’s conviction for armed robbery. However, we find no merit to Williams’s other issues. Accordingly we affirm in part and reverse and render in part.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the morning of August 20, 2008, Sandra Grace went to a BP gas station adjacent to 1-20 in Meridian, Mississippi. Because Grace routinely visited the store, she noticed some things were out of the ordinary before she went inside. As she looked through the door, Grace realized the coffee pot, pizza machine, and store sign were on, but the store clerk was not at the counter. Grace went across the street and asked someone at another store whether she had seen the store clerk who was typically in the gas station. When she heard that no one had seen the store clerk that morning, Grace went outside and used a pay phone to call law-enforcement authorities.

¶ 3. Officer Otha Sanders with the Meridian Police Department responded to the call. He met Sergeant David Ladin and Grace at the BP gas station. Officer Sanders also saw that the coffee pot was on, but there was no coffee in it. Additionally, he saw that the pizza machine was on. He later testified that it was unusual for a gas station to serve pizza at that time of the morning. When he and Sergeant La-din realized the door to the gas station was locked, they called a locksmith.

¶ 4. Once the locksmith unlocked the door, Officer Sanders and three other officer went inside the gas station. After going inside the men’s restroom, Officer Sanders’s superior officer ordered everyone to leave the gas station. The officers had discovered Mohammed Alnazaili’s body in the restroom. In an extraordinarily bloody crime scene, Alnazaili’s hands and feet had been bound with duct tape. The officers secured the perimeter of the gas station and waited for additional officers to arrive.

¶ 5. During the subsequent investigation, authorities discovered that the cash register had been left open, and there was no paper money inside it. Authorities also found a computer monitor in a back room of the BP gas station. The computer contained a digital video feed of the BP gas station’s surveillance system. Detective Joe Hoadley, the lead investigator in the case, and other officers with the Meridian Police Department were able to watch the events that unfolded during the previous night on the video feed.

¶ 6. That night, Alnazaili was behind the counter when Izóla McMillon, who had been working as an employee at the gas station for a couple of weeks, came into the gas station and joined him behind the counter. McMillon and her boyfriend, Williams, had been staying with one of Williams’s relatives in Meridian for approximately one month. McMillon later explained that, on the same date that Alna-zaili was killed, Williams’s relative had informed the couple that they could no longer stay with him because they had not paid any rent. McMillon and Williams planned to return to Chicago, Illinois, but they did not have any money for their return trip.

¶ 7. The video-surveillance footage further showed that at approximately 10:00 p.m., Williams also went inside the gas station. Williams bought a pack of cigarettes from Alnazaili. However, Williams then removed a pistol from a bag he was carrying. The gas station’s video-surveillance footage clearly shows Williams hitting Alnazaili with the pistol. Alnazaili fell to the floor, and Williams went behind the counter. While McMillon locked the doors, Williams hit Alnazaili with the pistol at least two more times and dragged Alna-zaili to the men’s restroom. McMillon later testified that she could hear Alnazaili screaming while she mopped up his blood from the floor.

¶ 8. Williams left Alnazaili bound and screaming in the bathroom, where Alnazai-li bled to death. McMillon took $1,100 from the cash register. She also took Alnazaili’s car keys. After McMillon locked the store, she and Williams fled in Alnazaili’s car.

¶ 9. McMillon and Williams made it to Chicago. Authorities in Chicago discovered a burned car that was later identified as Alnazaili’s. McMillon and Williams were eventually arrested and extradited to Mississippi, where they were indicted for capital murder, armed robbery, and theft of a motor vehicle. Williams pled not guilty to all three charges. To avoid trial, McMillon pled guilty to manslaughter and armed robbery. She also agreed to testify against Williams.

¶ 10. At trial, the prosecution called six witnesses: Grace; Officer Sanders; Detective Hoadley; Detective Robert McVicker of the Chicago Police Department; McMil-lon; and Dr. Adele Lewis, the forensic pathologist who performed the autopsy on Alnazaili’s body. The prosecution also submitted the video-surveillance footage into evidence. Williams chose not to testify. He rested without calling any witnesses. As previously mentioned, the jury found him guilty of capital murder, armed robbery, and theft of a motor vehicle. Williams appeals pro se.

ANALYSIS

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 11. Williams claims he received ineffective assistance of counsel. Specifically, he claims his attorney “failed to investigate the case and summon all witnesses who could have given critical testimony from personal knowledge of the events.” However, Williams fails to name one witness that he asked his attorney to call. Similarly, Williams fails to discuss how any such witness would have aided his case.

¶ 12. We address the merits of an ineffective-assistance-of-counsel claim on direct appeal only when “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration- of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). The parties have not stipulated that the record is adequate. Williams’s claim would require his trial attorney’s explanation as to whether Williams informed him that there were witnesses who could aid his defense. In the event that Williams did inform his trial attorney of witnesses on his behalf, Williams’s trial attorney should have an opportunity to explain his reasoning as to why he chose not to call those witnesses. Williams’s trial attorney has not had either opportunity. Accordingly, the record is not adequate to adjudicate Williams’s claim on direct appeal. Under the circumstances, we must affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. Stated differently, Williams may raise this claim in a motion for post-conviction relief, if he so chooses.

II. INDICTMENT

¶ 13. Next, Williams claims the capital-murder indictment was defective because it did not list the “underlying elements of armed robbery under that count.” Williams’s argument is based on State v. Berryhill, 703 So.2d 250, 258 (¶ 34) (Miss.1997), in which the Mississippi Supreme Court held that an indictment for capital murder based on the commission of burglary during the murder must “assert with specificity” the particular acts comprising the burglary. We are mindful that whether or not an indictment is defective is a question of law which we must review de novo. Gilmer v. State, 955 So.2d 829, 836 (¶ 24) (Miss.2007) (citation omitted).

¶ 14. The supreme court has “declined to extend the holding in Berryhill to capital crimes undergirded by robbery.” Milano v. State, 790 So.2d 179, 186 (¶ 29) (Miss.2001) (citing Turner v. State, 732 So.2d 937, 948 (¶ 40) (Miss.1999)). All of the essential elements comprising an armed robbery need not be elaborated upon in an indictment charging capital murder because, unlike burglary, armed robbery does not include an essential element of an intent to commit some other crime. Id. at 187 (¶ 29). Accordingly, we find no merit to this issue.

III. DOUBLE JEOPARDY

¶ 15. Williams claims his conviction for both armed robbery and capital murder violate his Fifth Amendment prohibition against double jeopardy because armed robbery was the underlying felony that elevated the murder charge to capital murder. Commendably, the State admits concern that Williams’s argument has some merit. After careful consideration, we agree that Williams’s conviction and sentencing for both armed robbery and capital murder with armed robbery as the underlying felony qualifies as a violation of Williams’s Fifth Amendment right against double jeopardy.

¶ 16. Williams did not raise this issue at trial. Even so, the prohibition against double jeopardy is a fundamental constitutional right that “may be excepted from procedural bars which would otherwise prohibit their consideration.” Fuselier v. State, 654 So.2d 519, 522 (Miss.1995) (quoting Luckett v. State, 582 So.2d 428, 430 (Miss.1991)). See also Rowland v. State, 42 So.3d 503, 508 (¶¶ 13-14) (Miss.2010) (expressly overruling prior Mississippi cases which held that a double-jeopardy claim may be procedurally barred if not raised at trial). Consequently, Williams’s failure to raise the issue at trial does not bar our consideration of the issue on appeal.

¶ 17. An “initial conviction and sentence for both felony murder and the underlying felony violatefs] the third aspect of the Double Jeopardy Clause, the protection against ‘multiple punishments for the same offense’ imposed in a single proceeding.” Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989). The indictment against Williams accused him of murdering Alnazaili “while engaged in the commission of the felony crime of [ajrmed [rjobbery.” Because Williams was also convicted of and sentenced to twenty years for armed robbery—the underlying felony that elevated the murder charge to capital murder— Williams has been subjected to a double jeopardy violation.

¶ 18. That Williams’s sentences for capital murder and armed robbery were set to run concurrently is of no moment. As the Supreme Court has stated, “the second conviction, even if it results in no greater sentence, is an impermissible punishment.” Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). The proper remedy is to vacate Williams’s conviction and sentence for armed robbery while leaving his conviction and sentence for capital murder intact. See Jordan v. State, 728 So.2d 1088, 1100 (¶58) (Miss.1998).

IV. SUFFICIENCY OF THE EVIDENCE

¶ 19. Williams claims the evidence against him is insufficient to convict him of armed robbery and- capital murder. We have already reversed Williams’s armed-robbery conviction based on double jeopardy. Accordingly, we restrict our analysis to Williams’s conviction of capital murder.

¶ 20. Williams last challenged the sufficiency of the evidence in his motion for a judgment notwithstanding the verdict (JNOV). “A motion for a [JNOV] is a challenge to the sufficiency of the evidence.” Gilbert v. State, 934 So.2d 330, 335 (¶ 9) (Miss.Ct.App.2006). As the Mississippi Supreme Court has stated:

in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a] directed verdict or for [a JNOV], the 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; and where the evidence fails to meet this test it is insufficient to support a conviction.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point 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, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine there was sufficient evidence to sustain the jury’s verdict if the evidence was “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof' standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. (internal citations and quotations omitted).

¶ 21. “The killing of a human being without the authority of law by any means or in any manner shall be murder ... [wjhen done with deliberate design to effect the death of the person killed, or of any human being.” Miss.Code Ann. § 97-3 — 19(l)(a) (Rev.2006). “The killing of a human being without the authority of law by any means or in any manner shall be capital murder ... [wjhen done with or without any design to effect death, by any person engaged in the commission of the crime of ... robbery_” Miss.Code Ann. § 97-3-19(2)(e). Williams argues there is insufficient evidence to convict him of capital murder because McMillon testified that they did not plan to kill Alnazaili. According to Williams, the evidence was only sufficient to convict him of manslaughter. We disagree.

¶ 22. As the State notes, malice is not a necessary element of capital murder as set forth in section 97-3-19(2)(e). “There is nothing about [section 97-3-19(2)(e) ] which requires any intent to kill when a person is slain during the course of a robbery. It is no legal defense to claim accident, or that it was done without malice.” Griffin v. State, 557 So.2d 542, 549 (Miss.1990). Viewing the evidence in the light most favorable to the prosecution, the jury heard testimony that Williams and McMillon needed money to return to Chicago because they no longer had any place to live in Meridian. McMillon testified that they went to the BP gas station to try to get money so they could return to Chicago. The video-surveillance footage showed Williams buying a pack of cigarettes from Alnazaili. The video-surveillance footage also showed Williams removing a pistol from a bag that he had brought into the BP gas station. The jury saw Williams hit Alnazaili with that pistol. Williams then went behind the counter and used the pistol to hit Alnazaili two more times. Williams dragged Alnazaili to the restroom, while McMillon locked the doors to the BP gas station and took the money out of the cash register. The video-surveillance footage also showed Williams rifling through the area of the cash register. After Williams and McMillon left in Alna-zaili’s car, Alnazaili bled to death in the restroom. McMillon testified that Williams told her to take the keys to Alna-zaili’s car.

¶ 23. Although there was no direct evidence that Williams and McMil-lon expressly intended to rob Alnazaili, intent can also be demonstrated by a defendant’s actions and the surrounding circumstances. Moody v. State, 841 So.2d 1067, 1093 (¶ 77) (Miss.2003). Williams brought a pistol into a BP gas station and beat Alnazaili so badly that he bled to death. The jury heard evidence that the couple needed money. The jury could infer that Williams incapacitated Alnazaili for the purpose of removing an obstacle to the money that the couple needed. Furthermore, McMillon testified that Williams told her to take Alnazaili’s keys. “[I]t is well established that ‘any person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an ‘aider and abettor’ and is equally guilty with the principal offender.’ ” Sneed v. State, 31 So.3d 33, 41 (¶ 24) (Miss.Ct.App.2009) (quoting Jones v. State, 710 So.2d 870, 874 (¶ 15) (Miss.1998)). Viewed in the light most favorable to the prosecution, reasonable people could certainly conclude that the prosecution proved every necessary element beyond a reasonable doubt to convict Williams of capital murder because he killed Alnazaili during the commission of an armed robbery. We find no merit to this issue.

V. WEIGHT OF THE EVIDENCE

¶ 24. Next, Williams claims that the jury’s verdict is contrary to the overwhelming weight of the evidence. As we review the circuit court’s decision to deny a motion for a new trial, 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) (citation omitted). The supreme court has further instructed that when reviewing a trial court’s decision to deny a motion for a new trial:

The motion ... is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, ... the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (footnote, internal citations, and quotations omitted).

¶ 25. For the reasons discussed in our analysis of the sufficiency of the evidence, we conclude that the jury’s verdict is not contrary to the overwhelming weight of the evidence. That is, viewing the evidence in the light most favorable to the jury’s verdict, it would not sanction an unconscionable injustice to allow the jury’s verdict to stand. We find no merit to this issue.

VI. JURY INSTRUCTIONS

¶ 26. Williams laments that the circuit court “either denied each instruction submitted by [Williams] or convinced [his] defense counsel to withdraw such instruction.” He specifically notes the circuit court refused “the first [four] instructions” that Williams submitted. According to Williams, he was not allowed to submit “one single jury instruction setting out his theory of the case.” According to Williams, “[t]he jury was instructed on the [circuit] court’s theory of the case rather than on [his own] theory.” Our standard of review is as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case[;] however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Agnew v. State, 783 So.2d 699, 702 (¶ 6) (Miss.2001) (citing Humphrey v. State, 759 So.2d 368, 380 (Miss.2000)).

1127. The record reflects that Williams’s defense counsel submitted twenty-seven prospective jury instructions. There is no evidence the circuit court “convinced” Williams’s defense counsel to withdraw any of those twenty-seven prospective jury instructions. Instead, the record indicates that Williams’s defense counsel withdrew twenty of those twenty-seven jury instructions with no prompting by the circuit court.

¶ 28. The circuit court refused Williams proffered jury instruction designated as D-l because it was a peremptory instruction. The circuit court gave Williams’s jury instruction that was designated as D~ 4, which reads as follows:

The Court instructs the Jury that the indictment in this case is nothing more than a formal accusation or charge against the accused and is [sic] it is not any evidence whatsoever of the guilt of the accused. You must not consider the indictment as any evidence of the alleged guilt of ... Williams, or draw any inference of guilt from it. As I told you earlier, the accused’s innocence is always presumed!,] and this presumption continues unless overcome by the evidence, which convinces you of the guilt of the accuse beyond a reasonable doubt.

Additionally, the circuit court gave Williams’s jury instructions designated as D-8 and D-13. Instruction D-8, which was re-designated as instruction C-12, instructed the jury that the “strength or weakness of the evidence ... is not measured by the number of witnesses called to testify.” Instruction D-13, re-designated as instruction C-13, instructed the jury that it was not permitted to draw any unfavorable inferences from the fact that Williams chose not to testify. Accordingly, Williams’s claim that the circuit court refused every jury instruction that his attorney submitted is patently incorrect.

¶ 29. The circuit court refused proffered jury instruction D-5 because it attempted to define reasonable doubt. Proffered jury instruction D-5 reads:

The Court instructs the Jury that that [sic] you are bound, in deliberating upon this case, to give ... Williams, [sic] the benefit of any reasonable doubt that arises out of the evidence or lack of evidence in this case. There is always reasonable doubt of the defendant’s guilt when the evidence simply makes it probable that ... Williams is guilty. Mere probability of guilt will never call for you to convict ... Williams. It is only when, after examining the evidence on the whole, you are able to say on your oaths, beyond a reasonable doubt, that ... Williams is guilty that the law will permit you to find him guilty. You might be able to say that you believe beyond a reasonable doubt, that he is guilty, and yet, if you are not able to say on your oaths, beyond a reasonable doubt, that ... Williams is guilty, it is your sworn duty to find ... Williams, “Not Guilty.”

“It is a long-standing rule that defining ‘reasonable doubt’ for the jury is improper.” Colburn v. State, 990 So.2d 206, 217 (¶ 35) (Miss.Ct.App.2008). Proffered jury instruction D-5 clearly attempts to define reasonable doubt, stating: “There is always reasonable doubt of the defendant’s guilty when the evidence simply makes it probable that ... Williams is guilty.” “The Mississippi Supreme Court has repeatedly and consistently asserted that reasonable doubt defines itself.” Lett v. State, 902 So.2d 630, 638 (¶ 27) (Miss.Ct.App.2005) (citations and quotations omitted). Instructions that attempt to define reasonable doubt are prohibited because, among other reasons, such instructions tell “jurors that they should be able to state a reason why they have a doubt ... [; however], in our jurisprudence, jurors are never required to articulate any explanation of their decision.” Id. at (¶ 28).

¶ 30. The circuit court refused proffered jury instruction D-16 because it was cumulative of jury instruction D-4. Proffered jury instruction D-16 reads:

The Court instructs the Jury that your verdict should be based solely upon the evidence presented in this trial and the law as stated to you by this Court. You must not allow yourselves to be biased against ... Williams because of the fact that he has been arrested and charged with the offenses of murder, armed robbery, and auto theft; or because an indictment has been filed against him or because he is standing trial today. None of these facts [are] evidence, and you are not permitted to infer or to speculate from any or all of them that he is more likely to be guilty or innocent.

The circuit court correctly held that proffered jury instruction D-16 was cumulative of jury instruction D-4, which the circuit court gave. As quoted above, jury instruction D-4 was substantially the same as proffered jury instruction D-16. It was within the circuit court’s discretion to refuse a jury instruction that was “covered fairly elsewhere in the instructions.” Agnew, 783 So.2d at 702 (¶ 6).

¶ 31. Finally, the circuit court refused proffered jury instruction D-26, which reads:

The Court instructs the jury that the strength or weakness of the evidence offered in this case is not measured by the number of documents, items[,] or things offered into evidence. You must consider the evidence as a whole and determine what credibility, if any, you will give to each and every piece of evidence.

The circuit court refused proffered jury instruction D-26 because it was cumulative of other jury instructions that were given. Jury instruction C-l informed the jury that it was its “exclusive province ... to determine what weight and credibility will be assigned [to] the testimony and supporting evidence of each witness.” As stated above, jury instruction D-8, which was re-designated as jury instruction C-12, instructed the jury that the “strength or weakness of the evidence ... is not measured by the number of witnesses called to testify.” Consequently, the substance of proffered jury instruction D-26 was covered by other jury instructions.

¶ 82. Reviewing each of the proffered jury instructions the circuit court refused, we find no merit to Williams’s claims. Williams’s assertion the circuit court refused all of his proffered jury instructions is patently false. Moreover, in each instance that the circuit court refused one of Williams’s jury instructions, the circuit court acted well within its discretion to do so. We find no merit to this issue.

VII. SENTENCING

¶ 38. In this issue, Williams claims the circuit court erred when it sentenced him to life without the possibility of parole without first conducting a sentencing hearing. According to Williams, the circuit court should have considered sentencing Williams to life with the possibility of parole instead of life without the possibility of parole. Williams bases his argument on the following statutory language:

Upon conviction ... of guilt of a defendant of capital murder ... the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death, life imprisonment without eligibility for parole, or life imprisonment. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a jury to determine the issue of the imposition of the penalty.... In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitutions of. the United States or of the State of Mississippi. The [S]tate and the defendant and/or his counsel shall be permitted to present arguments for or against the sentence of death.

Miss.Code Ann. § 99-19-101(1) (Rev.2007).

¶ 34. Mississippi Code Annotated section 97-3-21 (Rev.2006) provides:

Every person who shall be convicted of capital murder shall be sentenced (a) to death; (b) to imprisonment for life in the State Penitentiary without parole; or (c) to imprisonment for life in the State Penitentiary with eligibility for parole as provided in [Mississippi Code Annotated section] 47-7~3(l)(f) [ (Rev. 2011) ].

However, section 47-7-3(l)(f) sets forth that “[n]o person shall be eligible for parole who is charged, tried, convicted[,] and sentenced to life imprisonment under the provisions of [s]ection 99-19-101.” According to the supreme court, “although under the relevant code provisions, while there is the apparent necessity of a choice between death, life, and life without parole, in reality there is really only a choice between death and life without parole in the capital case in this context.” Pham v. State, 716 So.2d 1100, 1103 (¶21) (Miss.1998).

¶ 35. In this case, the prosecution did not seek the death penalty. “Obviously, if the State is not seeking the death penalty, the only possible sentence for conviction of capital murder committed after July 1, 1994, the effective date of [section] 47-7-3, is life without parole.” Id. The supreme court went on to hold that, under the circumstances, a circuit court “may impose the only possible sentence without formally returning the matter to the jury for sentencing.” Id. Consequently, we find that the circuit court did not err when it sentenced Williams to life without the possibility of parole — the only possible sentence Williams could have received because the prosecution did not seek the death penalty. Accordingly, we find no merit to this argument.

VIII. CUMULATIVE ERRORS

¶ 36. Finally, Williams claims that the cumulative errors in this case require that this Court reverse his convictions and remand this matter for a new trial. Williams is correct that “individual errors, not reversible in themselves, may combine with other errors to make up reversible error.” Wilburn v. State, 608 So.2d 702, 705 (Miss.1992) (citing Hansen v. State, 592 So.2d 114, 142 (Miss.1991)). We have found that Williams’s armed-robbery conviction is a violation of the Fifth Amendment’s prohibition against double jeopardy because it was the underlying felony that undergirded his capital murder conviction, and we reverse and render on that count. However, we have found no other errors in this case. It follows that there is no merit to this issue.

CONCLUSION

¶37. We affirm Williams’s convictions for capital murder and theft of a motor vehicle. However, we reverse Williams’s conviction for armed robbery and render a judgment of acquittal regarding the armed-robbery charge.

¶ 38. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT II, CAPITAL MURDER, AND SENTENCE OF LIFE WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND COUNT III, THEFT OF A MOTOR VEHICLE, AND SENTENCE OF TEN YEARS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. THE JUDGMENT OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF TWENTY YEARS TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT II IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . McMillon testified that she expected to be sentenced to two consecutive twenty-year sentences after Williams's trial.

      . We are mindful of the six-substantive-jury-instruction rule found in Rule 3.07 of the Uniform Rules of Circuit and County Court, which provides:
      At the conclusion of testimony, the attorneys must select no more than six jury instructions on the substantive law of the case from the instructions prefiled and present them to the judge. The court, for good cause shown, may allow more than six instructions on the substantive law of the case to be presented.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Robert SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01150-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Rehearing Denied May 1, 2012.
    Certiorari Denied Aug. 2, 2012.

      Robert Smith, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J, ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. This case comes before the Court on appeal from a judgment dismissing Robert Smith’s motion for post-conviction relief (PCR). Aggrieved with the circuit court’s judgment, Smith appeals, asserting eight assignments of error: (1) whether Smith’s due-process rights were violated by the failure to afford him a preliminary revocation hearing, (2) whether the circuit court erred in finding no prejudice by the delay between Smith’s arrest and the date of his final revocation hearing, (3) whether the circuit court erred in finding Smith had received sufficient notice of his alleged charges warranting revocation of his probation, (4) whether Smith’s due-process rights were violated by the circuit court’s failure to allow him to present evidence and witnesses in his favor at the revocation hearing, (5) whether the circuit court erred in failing to appoint Smith counsel to assist at his revocation hearing, (6) whether the circuit court erred in failing to grant Smith relief after Smith claimed his probation officer withheld exculpatory evidence from the court during the revocation hearing, (7) whether the circuit court erred in denying Smith’s PCR motion when Smith asserted that the probation officer revoked Smith’s probation solely because of Smith’s change of residence, and (8) whether the circuit court erred in denying Smith relief after Smith claimed he did not commit any crime while on probation. Finding no error, we affirm.

FACTS

¶ 2. On February 5, 2001, the Sunflower County Circuit Court found Smith guilty of armed robbery and subsequently sentenced Smith to ten years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended. The five-year suspension was based on Smith’s compliance with five years of post-release supervision.

¶ 3. Smith was arrested on August 20, 2009, due to his failure to comply with the terms of his post-release supervision, and he was placed in the Bolivar County Jail. On the violation-report form, Smith’s probation officer, Linda Jett-Smith, listed the following parole violations committed by Smith: failure to report to his parole officer, failure to pay supervision fees, failure to submit to a chemical analysis, and failure to pay court-ordered costs. Jett-Smith also noted that Smith no longer lived at his mother’s house. On August 20, 2009, Smith was transferred to the Sunflower County Jail.

¶ 4. On August 27, 2009, Smith signed a waiver in which he waived his right to a preliminary probation revocation hearing. On October 2, 2009, the Sunflower County Circuit Court held a revocation hearing wherein the circuit judge determined that Smith had violated the terms of his post-release supervision. The circuit judge ordered Smith to serve five years in the custody of the MDOC.

¶ 5. Smith filed a motion for reinstatement of probation, which the circuit court treated as a PCR motion, seeking to have the court set aside its revocation order and place Smith back on post-release supervision. The circuit court dismissed Smith’s motion on May 28, 2010. This appeal followed.

STANDARD OF REVIEW

¶ 6. The standard of review for a dismissal of a PCR motion is well stated: “The findings of the trial court must be clearly erroneous in order to overturn a lower court’s dismissal of a post-conviction relief motion.” Willis v. State, 904 So.2d 200, 201 (¶ 3) (Miss.Ct.App.2005) (citing McClinton v. State, 799 So.2d 123, 126 (¶ 4) (Miss.Ct.App.2001)). However, when issues of law are raised, the proper standard of review is de novo. Byrom v. State, 978 So.2d 689, 690 (¶ 5) (Miss.Ct.App.2008) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

DISCUSSION

I. Preliminary Hearing

¶ 7. As his first assignment of error, Smith asserts that his due-process rights were violated by the revocation of his post-release supervision because the circuit court denied him a preliminary hearing for the revocation of his post-release supervision. A defendant facing revocation of probation is constitutionally entitled to a preliminary hearing in which a hearing officer determines whether probable cause exists to hold the defendant for a final decision concerning revocation; however, the defendant may waive the right to a preliminary hearing and elect to proceed to the final revocation hearing. Grayson v. State, 648 So.2d 1129, 1133 (Miss.1994); Riely v. State, 562 So.2d 1206, 1210 (Miss.1990).

¶ 8. The State argues Smith waived his right to a preliminary revocation hearing to be held prior to his formal revocation hearing because he signed a waiver wherein he relinquished this right. Smith acknowledges that he signed a waiver document, but he claims that JetWSmith coerced him into signing the document. Smith also claims he failed to read the document, and he states that he was unaware of what he was signing.

¶ 9. This Court addressed a similar issue in Crowell v. State, 801 So.2d 747, 750-51 (¶¶ 10-11) (Miss.Ct.App.2000), wherein Kelvin Crowell signed a waiver of his right to a preliminary revocation hearing. This Court found that since Crowell signed the waiver and was a afforded a petition setting forth his probation violations, Crowell had received notice of his alleged violations. Id. The Crowell court also held that Crowell had an opportunity to defend himself against the charge. Id. This Court ultimately found that no violation of Cro-well’s due-process rights occurred, acknowledging that Crowell had signed a waiver and, therefore, had waived his rights to a preliminary revocation hearing. Id.; see also Williams v. State, 4 So.3d 388, 394-95 (¶¶ 24-27) (Miss.Ct.App.2009) (This Court found no denial of due-process rights wherein Anthony Williams signed a waiver to a revocation hearing; the Court found that Williams had received notice and an opportunity to be heard.).

¶ 10. In the present case, the record reflects that Smith indeed signed a waiver wherein he waived his right to a preliminary probation-revocation hearing. The State argues Smith makes no claim that he lacked the ability to read or that the signature on the waiver form was not his signature. Additionally, the record reflects no evidence of coercion by Jet1>-Smith. We thus find Smith voluntarily waived his right to a preliminary hearing and that there was no violation of Smith’s due-process rights. This issue is without merit.

II. Written Notice

¶ 11. Smith next claims that under Riely, 562 So.2d at 1210, he was entitled to receive . written notice of the alleged charges against him warranting the revocation of his post-release supervision. In Riely, the supreme court set forth the minimal due-process requirements for probation-revocation hearings, which include:

(a) written notice of the claimed violations of probation or parole; (b) disclosure to the probationer or parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact[-]finders as to the evidence relied on and reasons for revoking probation or parole.

Id.; see also Miss.Code Ann. § 47-7-37 (Rev.2011) (The procedures associated with the revocation of probation also apply to the revocation of post-release supervision.).

¶ 12. This Court recognizes that the State must give prior notice of the grounds upon which it contends post-release supervision should be revoked, and the notice must be specific and timely so as to allow an individual to mount a defense and the opportunity to gather and present any evidence tending to show that revocation is improper. See Edmond v. Miss. Dep’t of Corrs., 783 So.2d 675, 679 (¶ 14) (Miss.2001). Smith claims he did not receive written notice of the charges against him; thus, he claims his constitutional rights were violated due to the circuit court’s failure to provide him with sufficient notice. However, as the circuit judge acknowledged in his order denying Smith’s PCR motion, the document Smith signed, wherein he waived his right to a preliminary revocation hearing, also set forth the allegations against Smith. Thus, we find that the record reflects that Smith received proper notice of the charges against him. This issue is without merit.

III. Prejudice by Delay

¶ 13. Smith next claims the circuit court erred in failing to find that Smith was prejudiced by the-delay between his arrest and the date of the revocation hearing. Smith argues he was arrested on July 21, 2009, and held until October 2, 2009, without any hearing on the matter. Smith contends the circuit court erroneously stated in its judgment that Smith had been arrested on August 20, 2009. Smith explains that he was arrested by a U.S. Marshal on July 21, 2009, and taken to the Bolivar County Jail. Smith states that he was then transferred to the Sunflower County Jail on August 20, 2009.

¶ 14. The record indeed reflects that Smith was incarcerated in the Bolivar County Jail from July 21, 2009, and then transferred to the Sunflower County Jail on August 20, 2009, where he was held until his revocation hearing. This amounts to a seventy-seven day time period between the date of his arrest and the date of the hearing. The record reflects that the Sunflower County Circuit Court term of court ended July 10, 2009, and the next court term began the first week of October 2009. The record also reflects that the State assured the circuit judge that Smith had received a hearing at the start of the October 2009 court term, which was the next available term in Sunflower County after Smith’s arrest. We do not find the delay between Smith’s arrest and the date of his revocation hearing to be so excessive that it warrants setting aside the revocation. See Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (Revocation hearing “must be tendered within a reasonable time after the parolee is taken into custody”; a lapse of two months would not appear to be unreasonable.). Additionally, we find the misstatement made by the circuit judge inconsequential.

IV. Revocation Hearing

¶ 15. Smith also claims the circuit court failed to advise him that he was allowed to present evidence and witnesses in his favor at the revocation hearing. As a result, Smith claims his due-process rights were violated by his inability to present evidence and witnesses in his favor at the hearing.

¶ 16. We find no evidence in the record showing the circuit judge prevented Smith from calling witnesses or presenting evidence at his revocation hearing. The transcript from the revocation hearing reflects that the circuit judge afforded Smith the opportunity to respond to the charges against him, but Smith failed to do so. This issue is -without merit.

V. Right to Court-appointed Counsel

¶ 17. Smith argues the circuit court denied him his constitutional right to court-appointed counsel at his revocation hearing. Smith claims he contacted the office of Howard Davis Jr., his public defender, seeking Davis’s representation at the revocation hearing. Smith states that Davis’s secretary assured him that Davis would get back in touch with Smith, but Smith claims Davis failed to contact him. Smith claims that due to his mental disorder, he lacked the ability to defend himself of the charges against him. Smith submits that an attorney would have been able to present evidence proving Smith’s mental incompetence.

¶ 18. This Court has recognized that defendants do not necessarily have a right to counsel at probation-revocation hearings. Riely, 562 So.2d at 1209 (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). However, when the issues relevant to the hearing are complex or difficult to develop, the court should appoint counsel for the defendant. Id.

¶ 19. In his order denying Smith’s PCR motion, the circuit judge stated that the issues relevant to the revocation of Smith’s post-supervision release were neither complex nor difficult to present, and the judge held that Smith did not have a right to court-appointed counsel. As the State points out, the decision to revoke Smith’s probation turned simply on whether or not he had committed the violations of which he was accused.

¶ 20. As to Smith’s claim that he lacked mental competency, we note that according to the revocation-hearing transcript, Jett-Smith stated that Smith was disabled. Also, Smith attached the following documents to his appellate brief: his application for social security disability benefits, the discharge instructions from Bolivar Medical Center, and a MDOC Sick Call Request Form. In his application for social security disability benefits, Smith states that he has been disabled since 2001, and he claims that he has problems holding jobs due to his “attitude.” On Smith’s sick call request form, he claims: “I am having a problem and its [sic] getting worse. I feel that I am about to hurt someone. Need help ASAP.” However, Smith fails to provide any affidavits or actual proof that he lacked mental competence during the time he failed to comply with the terms or conditions of his post-release supervision or that he lacked mental competency at his probation-revocation hearing. See Vanwey v. State, 55 So.3d 1133, 1136 (¶ 6) (Miss.Ct.App.2011).

VI. Misrepresentation by Probation Officer

¶21. For the purposes of efficiency and clarity, we will combine Smith’s next two issues and address them together. Smith argues that Jett-Smith, his probation officer, withheld exculpatory evidence from the circuit court and misrepresented facts during his revocation hearing. Smith claims he informed Jett-Smith of his appointment with the social security office to determine whether he would be approved for social security disability benefits. Smith also claims that due to his incarceration, he missed the opportunity to see if he would be approved for the benefits. Smith asserts Jett-Smith revoked his probation solely because Smith had changed his residence without notifying Jett-Smith. Smith argues that he informed Jett-Smith that he would like to change his residence, and Smith claims that Jett-Smith approved the move. Smith claims the circuit judge revoked his post-release supervision based solely on the fact that Smith’s residence had changed.

¶ 22. After reviewing the transcript from the revocation hearing, we find no evidence in the record to substantiate Smith’s allegations that Jett-Smith withheld evidence or misrepresented facts. Other than his assertions listed in his PCR motion, Smith provided no evidence to show that Jett-Smith had approved his change of residence or that she possessed awareness of his plans to move. It is clear from the transcript that Jett-Smith advised the circuit judge that Smith failed to pay his court-ordered fees and also failed to report to her. Additionally, as previously stated, the transcript from the revocation hearing reflects the circuit judge afforded Smith the opportunity to respond to the charges against him, but Smith failed to do so. Mathis v. State, 882 So.2d 798, 800 (¶¶ 3-7) (Miss.Ct.App.2004). This issue is without merit.

VII. Additional Crimes

¶ 23. For his last assignment of error, Smith cites to United States v. Rodgers, 588 F.2d 651, 654 (8th Cir.1978) and submits that he did not commit an additional crime while on post-release supervision. Smith thus claims he should have been entitled to consideration of an alternative to incarceration. In Rodgers, the United Starts Court of Appeals, Eighth Circuit expressed its concern that the district court failed to consider a lesser penalty where the appellant had fully complied with the conditions of his original sentence, except for the reporting requirement. Id.

¶ 24. In the present case, however, the record is clear that Smith violated other probation requirements besides his failure to report to Jett-Smith. We once more acknowledge that the waiver of Smith’s right to a preliminary hearing provided Smith with written notice of the multiple alleged probation violations charged against him. Also, during the revocation hearing, Jett-Smith informed the circuit judge, with Smith present, of the Smith’s alleged probation violations. The transcript from the hearing also reflects that when considering a sentencing recommendation for Smith, Jetfl-Smith stated: “We really only have two options that I know of — unless the court knows something to do with him — that’s prison or extended probation. He’s demonstrated that he’s not going to comply with the terms of his probation in the past.”

¶ 25. Mississippi Code Annotated section 47-7-34(2) states, in part, that:

The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish. Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.

In the present case, the circuit court set out terms and conditions to which Smith was to adhere, and any violation of those conditions was a violation of his post-release supervision. A violation of these conditions gave the circuit court the authority to revoke Smith’s post-release supervision and remand him back into the custody of the MDOC to serve the remainder of his term. Therefore, despite Smith’s assertion that he did not commit an additional crime while on post-release supervision, we do not find that the circuit court erred in revoking Smith’s post-release supervision and ordering Smith to serve five years in the custody of the MDOC. See Williams, 4 So.3d at 392 (¶¶ 14-15). This issue is without merit.

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

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

      . Smith was released from his initial five-year term by the MDOC in December 2005; he then began his five-year term of post-release supervision.


text:
    Adrian WILLIARD a/k/a Adrian Willard, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00927-COA.
    Court of Appeals of Mississippi.
    April 3, 2012.
    Rehearing Denied Aug. 7, 2012.
    Virginia Lynn Watkins, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Adrian Williard appeals his conviction and sentence for capital murder and aggravated assault from the Hinds County Circuit Court. Williard was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). Williard appeals, claiming that the circuit court erred in denying his motion to suppress statements he allegedly made prior to receiving Miranda warnings. Finding no reversible error, we affirm.

FACTS

¶ 2. On March 16, 2008, Officer Samuel Gardner of the Jackson Police Department (JPD) arrested Williard in connection with the stabbing death of Janice Cotton and the alleged kidnapping and aggravated assault of Crystal Latham, Cotton’s daughter.

¶ 3. Responding to call for assistance regarding a possible violent altercation, Officer Gardner arrived at the home of Cotton and Latham in Jackson, Mississippi, in the early morning hours of March 16, 2003. Officer Gardner testified that when he arrived at the crime scene, he saw what appeared to be someone, whom he later identified as Williard, dragging a female, later identified as Latham, across the street. Officer Gardner testified that when he exited his vehicle and attempted to separate Williard from the female, Willi-ard immediately started talking to Officer Gardner and boasting that he harmed two people. Officer Gardner testified that Wil-liard told him “I got two of them.” Officer Gardner proceeded to handcuff Williard and transported him to the downtown headquarters of the JPD, located in the Standard Life Building.

¶ 4. Officer Carolyn Kirkland of the JPD testified that she arrived at the crime scene after Officer Gardner, and she found Latham lying in the street, covered in blood and having difficulty breathing. La-tham was subsequently transported to University Medical Center to receive treatment for her injuries. Upon entering Cotton’s residence, Officer Kirkland found Cotton’s body lying on the floor in the kitchen.

¶ 5. Officer James Roberts of the JPD testified that he proceeded to read Williard his Miranda rights once Williard arrived at the Standard Life Building. Officer Roberts testified that Williard acknowledged his understanding of his rights, and he voluntarily waived them by signing a Miranda waiver form and initialing the line for each of his rights. Officer Roberts also took Williard’s statement, in which Williard admitted to breaking into Cotton’s home, stabbing Cotton, and assaulting La-tham. Williard also admitted that he went to Cotton’s house with the intent to kill Latham, and that he stabbed her in an attempt to kill her.

¶ 6. A Hinds County grand jury indicted Williard for the murder of Cotton and for the kidnapping and aggravated assault of Latham. Prior to the commencement of Williard’s April 10, 2006 trial, the circuit judge held a suppression hearing regarding Williard’s statements to Officer Gardner upon Williard’s arrest. The circuit judge found that Williard had made the statements to Officer Gardner prior to being fully detained, arrested, or handcuffed. The circuit judge also denied Williard’s motion for a directed verdict at the conclusion of the State’s case-in-chief.

¶ 7. Williard testified in his own defense, claiming that Latham stabbed her mother. Williard also claimed that he accidentally stabbed Latham when trying to take the knife away from her.

¶ 8. The jury convicted Williard of capital murder pursuant to Mississippi Code Annotated section 97 — 3—19(2)(e) (Rev. 2006) and aggravated assault under Mississippi Code Annotated section 97-3-7(2) (Supp.2011), but the jury acquitted him of kidnapping. The circuit judge sentenced Williard to life without the possibility of parole for his murder conviction, and to twenty years for aggravated assault, to be served consecutively in the custody of the MDOC.

¶ 9. Williard filed a motion for new trial or, in the alternative, for a judgment notwithstanding the verdict (JNOV), which the circuit judge denied. Willard now appeals, claiming that the circuit judge erred in denying his motion to suppress due to the arresting officer’s failure to give Miranda warnings.

STANDARD OF REVIEW

¶ 10. When this court reviews a trial court’s ruling on a motion to suppress, we must determine whether the trial court’s finding are supported by substantial evidence considering the totality of the circumstances. Reid v. State, 825 So.2d 701, 702 (¶ 5) (Miss.Ct.App.2002); Nicholson v. State, 523 So.2d 68, 71 (Miss.1988) (An appellate court may disturb suppression hearing findings made by the circuit court “only where there is an absence of substantial credible evidence supporting [them].”). The admissibility of evidence lies within the trial court’s discretion and the trial court will only be reversed for an abuse of discretion. Wade v. State, 583 So.2d 965, 967 (Miss.1991); Lewis v. State, 573 So.2d 719, 722 (Miss.1990).

¶ 11. In determining whether a confession was freely and voluntarily given the circuit court sits as the factfinder. The circuit judge first must determine whether the accused has been adequately warned, and, under the totality of circumstances, the court then must determine if the accused voluntarily and intelligently waived his privilege against self-incrimination. McCarty v. State, 554 So.2d 909, 911 (Miss.1989). On the issue of voluntariness, the standard of proof for admissibility is beyond a reasonable doubt. Davis v. State, 551 So.2d 165, 169 (Miss.1989).

DISCUSSION

¶ 12. On appeal, Williard submits that the circuit judge committed reversible error in denying his motion to suppress statements he made after Officer Gardner handcuffed him, because Officer Gardner’s failed to read Williard his rights as required by Miranda, 384 U.S. at 444-45, 86 S.Ct. 1602. Williard contends that he was “in custody,” for the purposes of Miranda, from the moment Officer Gardner arrived at the crime scene and exited his patrol car with his gun drawn and aimed at Willi-ard. Williard claims that as Officer Gardner handcuffed him, Officer Gardner asked why Williard had “done it.” Williard argues that the circuit judge erred in admitting his statements in response to Officer Gardner’s alleged interrogation, and Willi-ard asserts this error requires reversal.

¶ 13. In Miranda, 384 U.S. at 444-45, 86 S.Ct. 1602, the United States Supreme Court established that during a criminal trial:

[T]he prosecution may not use statements, whether exculpatory or incul-patory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

(Footnote omitted).

¶ 14. The record reflects that at the suppression hearing, Officer Gardner testified that when he arrived at the crime scene after responding to an emergency call, he exited his vehicle and drew his weapon. Officer Gardner testified that Williard raised both of his hands in the air, and Officer Gardner made Williard get on the ground so that Officer Gardner could arrest Williard and put handcuffs on him. Officer Gardner testified that “right off the bat [Williard] confessed.” Officer Gardner explained that immediately after he arrived on the scene, Williard started talking to him about the circumstances surrounding the incident. Williard told Officer Gardner: “I got both of them.” Officer Kirkland, as well as a neighbor who witnessed the violent altercation, testified that Williard began “bragging” about harming the two women and discussing the circumstances regarding the crime once Officer Gardner arrived on the scene. Officer Gardner transported Williard to the JPD for further questioning. He testified that Williard continued to talk incessantly during the car ride, discussing the events and making derogatory and threatening comments about Latham.

¶ 15. However, Williard claims that as Officer Gardner approached him to place him under arrest, Officer Gardner asked him “Why [did] you do that?” At trial, Officer Gardner denied questioning Willi-ard and stated that he instructed Williard to “be quiet.” Officer Gardner also admitted that he did not give Williard his Miranda warnings before transporting him to detectives at the JPD. However, Officer Gardner explained that no reason existed to give Williard his Miranda warnings at that time since Officer Gardner did not intend to, nor did he, question Williard before transporting him to the JPD.

¶ 16. After hearing testimony from both Williard and Officer Gardner, the circuit judge ruled that “the motion to suppress those statements made voluntarily by [Williard] will be denied,” finding “no basis to believe that those responses were invoked or promoted by the officer who had [Williard] in custody.” We again note that admission of testimony is subject only to an abuse-of-discretion review. Tatum v. Barrentine, 797 So.2d 223, 230 (¶ 29) (Miss.2001) (citation omitted).

¶ 17. Williard cites to Carpenter v. State, 910 So.2d 528, 532 (¶ 12) (Miss.2005), in support of his argument that the circuit court incorrectly determined that all statements made after Williard was taken into custody prior to receiving his Miranda warnings were admissible. In Carpenter, the Mississippi Supreme Court reversed and remanded Vernell Carpenter’s conviction for business burglary due to the arresting officer’s testimony regarding statements elicited prior to the Miranda warnings. The circuit judge had earlier determined such statements were inadmissible, finding that once Carpenter was apprehended and handcuffed, Carpenter was in custody, and “such custody triggered Carpenter’s Fifth and Sixth Amendment rights.” Id. at 53B (¶ 17). The supreme court held that “[a]ny information gained from questioning before advising an accused of his Miranda warnings is inadmissible at trial.” Id. However, the State argues that Carpenter is distinguishable from the facts of this case, pointing out that here, credible independent corroboration exists to support Officer Gardner’s testimony that upon his arrival on the scene, Williard spontaneously admitted to killing Cotton and harming Latham.

¶ 18. In Watson v. State, 835 So.2d 112, 118 (¶ 17) (Miss.Ct.App.2003), this Court affirmed the circuit court’s denial of a motion to suppress, finding no reversible error in the circuit court’s determination that the defendant’s incriminating statements were voluntarily made. The Watson court acknowledged that with regard to spontaneous statements:

Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege [against self-incrimination] while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. Volunteered statements of any kind are not barred by the Fifth Amendment.

Id. at (¶ 16) (citing Alexander v. State, 736 So.2d 1058 (¶ 11) (Miss.Ct.App.1999)).

¶ 19. In addition, the Mississippi Supreme Court established that:

[A] confession or statement relating to culpability may be admitted into evidence if it is given freely and voluntarily, and without the influence of promises or threats.... A volunteered statement, voiced without prompting or interrogation, is admissible in evidence if made prior to the warning and of course if it were voluntarily and spontaneously made subsequent to [the Miranda warning], it would remain admissible in evidence. Furthermore, this Court has said an officer is not required to turn a “deaf ear” to such statements. This Court will not reverse a trial court’s finding regarding the admission of a [culpable statement] unless it is manifestly wrong.

Ricks v. State, 611 So.2d 212, 214 (Miss.1992) (internal citations and quotations omitted); see also Stallworth v. State, 797 So.2d 905, 912 (¶ 23) (Miss.2001) (“Volunteered, unprompted statements are admissible, even if the Miranda advice has not been first given.”).

¶ 20. We find that the record contains substantial, credible evidence to support the circuit judge’s determination that no improper questioning by law enforcement occurred, and that Williard voluntarily made the statements to Officer Gardner regarding his guilt without interrogation or coercion. Nicholson, 523 So.2d at 71. We find no abuse of discretion in the circuit court’s denial of Williard’s motion to suppress; therefore, we affirm. See Wade, 583 So.2d at 967. This issue is without merit.

¶ 21. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE OR PROBATION; COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In the record, Cotton is alternately referred to as Cotton’s aunt. However, at trial, La-tham identified Cotton as her mother.


author: LEE, C.J.,

text:
    SWEET VALLEY MISSIONARY BAPTIST CHURCH a/k/a Hub Community Baptist, Appellant v. ALFA INSURANCE CORPORATION a/k/a Alfa General Insurance Corporation a/k/a Alfa Mutual General Insurance Company a/k/a Alfa Specialty Insurance Corporation, Appellee.
    No. 2010-CA-01807-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.
    Marc L. Frischhertz, David Lee Brewer, attorneys for appellant.
    Toby Justin Gammill, WTiitney Warner Gladden, Jackson, attorneys for appellee.

      Before LEE, C.J., ISHEE and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This case concerns the Marion County Circuit Court’s decision to grant Alfa Insurance Corporation’s motion to dismiss due to the expiration of the applicable statute of limitations. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. This case arises from property damage sustained by Sweet Valley Missionary Baptist Church a/k/a HUB Community Baptist Church as a result of Hurricane Katrina. Sweet Valley’s insurance carrier, Alfa, paid benefits on October 14, 2005, in the amount of $9,951.89. On August 29, 2008, Sweet Valley filed its first complaint in the Marion County Circuit Court against Alfa, alleging a breach-of-contract cause of action. After issues with discovery, including problems with one of Sweet Valley’s attorneys, Marc Frischhertz, being admitted pro hac vice, the trial court dismissed Sweet Valley’s case without prejudice on June 29, 2009. The trial court found Sweet Valley failed to cooperate in discovery, to adhere to the scheduling order, and to appear at the scheduled hearing on the matter.

¶ 3. On July 8, 2009, Sweet Valley filed a motion to set aside the judgment or for a new trial. After a hearing on the matter, the trial court denied Sweet Valley’s motion to set aside the judgment. On the same day its motion was denied, January 1, 2010, Sweet Valley filed a new complaint against Alfa. Alfa subsequently filed a motion to dismiss, claiming the three-year statute of limitations had expired. The trial court agreed and granted Alfa’s motion to dismiss.

¶ 4. Sweet Valley now appeals asserting the trial court erred in granting Alfa’s motion to dismiss.

STANDARD OF REVIEW

¶ 5. When reviewing a trial court’s grant or denial of a motion to dismiss, this Court applies a de novo standard of review. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (¶ 6) (Miss.2006). “When considering a motion to dismiss, the allegations in the complaint must be taken as true[,] and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. (quoting Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (¶ 7) (Miss.1999)).

DISCUSSION

¶6. In its only issue on appeal, Sweet Valley contends the trial court erred in granting Alfa’s motion to dismiss based upon the expiration of the statute of limitations. Specifically, Sweet Valley argues its complaint is not time-barred because the statute of limitations was tolled when its motion to set aside the judgment was filed on July 8, 2009. Sweet Valley claims its motion was filed pursuant to Mississippi Rule of Civil Procedure 59. This particular motion is not included in the record, but since the motion was filed within ten days of the June 29, 2009 dismissal and called into question the correctness of the judgment, we presume the motion was filed under Rule 59(e) as a motion to alter or amend the judgment.

¶ 7. Regardless of how the motion was styled, Sweet Valley can offer no cases directly supporting its position. The cases Sweet Valley cites discuss Rule 59 motions staying the thirty-day time period to appeal, not the statute of limitations. See Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991).

¶ 8. The three-year statute of limitations began to run on August 29, 2008, when Sweet Valley filed its complaint. The complaint was filed approximately forty-six days prior to the expiration of the statute of limitations, which would have expired on October 14, 2008. The filing of the complaint tolled the statute of limitations until the case was dismissed on June 29, 2009. At that point the statute of limitations began to run again until it expired on August 16, 2009. We note the trial court determined the statute of limitations expired on August 14, 2009. Regardless of whether the statute of limitations expired on August 14 or 16, Sweet Valley filed its new complaint on January 29, 2010, well after the statute of limitations had expired. We find the new complaint filed by Sweet Valley was time-barred; thus, we affirm the trial court’s decision to grant Alfa’s motion to dismiss.

¶ 9. Sweet Valley further argues the savings statute, Mississippi Code Annotated section 15-1-69 (Rev.2003), applies to this matter. Section 15-1-69 states as follows:

If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein, and his executor or administrator may, in case of the plaintiffs death, commence such new action, within the said one year.

(Emphasis added). Sweet Valley contends the savings statute applies because the original complaint was dismissed as a matter of form. The Mississippi Supreme Court previously has ruled section 15-1-69 applies to cases “[wjhere the plaintiff has been defeated by some matter not affecting the merits, some defect or informality, which [the plaintiff] can remedy or avoid by a new process.... ” Hawkins v. Scottish Union & Nat’l Ins. Co., 110 Miss. 23, 31, 69 So. 710, 713 (1915) (citations omitted). Matters of form have been found to include failure to adhere to notice requirements and lack of subject matter jurisdiction. See Arceo v. Tolliver, 19 So.3d 67, 75 (¶ 39) (Miss.2009); Marshall v. Kan. City S. Rys. Co., 7 So.3d 210, 216 (¶28) (Miss.2009). However, Sweet Valley’s first complaint was dismissed due to its failure to cooperate in discovery, to adhere to the scheduling order, and to appear at the scheduled hearing on the matter. These are matters affecting the merits and not the result of “some defect or informality.” We find the savings statute to be inapplicable in Sweet Valley’s case.

¶10. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. IRVING, P. J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: ROBERTS, J.,

text:
    GULFPORT SHOPPING CENTER, INC., H. Dewayne Williams, John M. Hill, Michael V. Shannon, David L. Strobel, and C. Hadley Weaver Jr., Appellants v. William H. DURHAM, Appellee.
    No. 2011-CA-00304-COA.
    Court of Appeals of Mississippi.
    July 17, 2012.

      Luther T. Munford, Benjamin Lyle Robinson, Jackson, attorneys for appellants.
    Mark A. Nelson, Hattiesburg, Walter Jerome Blessey IV, attorneys for appellee.
    Before IRVING, P.J., BARNES, ROBERTS, and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Gulfport Shopping Center Inc. (GSC) and five of its six shareholders— namely John M. Hill, Michael V. Shannon, David L. Stroebel, C. Hadley Weaver, and Dewayne Williams (the accused shareholders) — appeal the Harrison County Chancery Court’s decision to award GSC’s sixth shareholder, William H. Durham, a judgment of $263,988.89. Durham sued GSC and the accused shareholders after Durham had agreed to assume GSC’s financial liabilities during a failed attempt to acquire all of GSC’s stock incident to an option agreement. The chancellor found that GSC and the accused shareholders acted in bad faith when they neglected to inform Durham that GSC had received income during the term of Durham’s option. The chancellor found no merit to GSC’s counterclaim for $110,000 in rental income received during Durham’s option. Aggrieved, GSC and the accused shareholders appeal. After careful consideration, we find that the cháncellor committed reversible error when he awarded a judgment to Durham in the amount of the bankruptcy proceeds. However, we affirm the chancellor’s decision to deny GSC’s counterclaim for $110,000 in rental income received during Durham’s option. Accordingly, we affirm in part and reverse and render in part.

FACTS AND PROCEDURAL HISTORY

¶ 2. This litigation is the result of an unsuccessful attempt to establish a 6.2 acre, single-building commercial shopping center along Highway 49 in Gulfport, Mississippi. In 1994, Durham paid Williams $700,000 for an interest in approximately twenty-two acres of commercial property adjacent to GSC’s building and 2,450 shares of GSC — representing one-half of Williams’s stock in GSC and 24.5% of GSC’s total stock.

¶ 3. GSC maintained two mortgages on its building. Guardian Life Insurance Company of America (GLICA) held the first mortgage of approximately $2,200,000. As conditions of that mortgage, GLICA required that GSC’s shareholders act as personal guarantors of GSC’s mortgage. The City of Gulfport held GSC’s second mortgage, which was approximately one million dollars. As security against GSC’s second mortgage, GLICA required that GSC place $5,700 into an escrow account each month. Laureate Capital managed the escrow account.

¶ 4. GSC’s tenant, Bruno’s Inc., operated a Food World grocery store. GSC managed to pay its debts with the income from the Bruno’s lease. However, Bruno’s declared bankruptcy in 1998. When Bruno’s stopped paying on its lease, GSC could not pay its debts. GSC faced the possibility of foreclosure.

¶ 5. Durham requested an option to purchase all of GSC’s stock. In May 1998, Durham and the accused shareholders entered into an option agreement. The option agreement provided as follows:

1. Term of the [ojption to be 60 days.
2. Dr. Durham [will] bring all payments to [GLICA] current together with all late charges and attorney[’s] fees, in the amount of $58,534.50, and [will] keep the monthly payments current during the 60 day option period.
3. Dr. Durham will reach an agreement with [GLICA] to permit him to take over the corporation without creating an event of default. If permitted to take over the corporation, then Dr. Durham will deliver to [the other shareholders] letters of credit, totalling [sic] $200,000.00 for a term of 1 year, to protect them in the event of a default under the loan in which [GLICA] makes demand for payment under their [l]imited [g]uaranty in the amount of $300,000.00 or have [GLICA] accept Dr. Durham’s- [l]imited [g]uaranty and release the [guaranties of [the accused shareholders].
4. In the event Number 3 does not occur, Dr. Durham will pay off the loan with [GLICA],
5. Dr. Durham will pay off [the][n]ote in favor of Hancock Bank, in the principal amount of $25,000.00, ... the proceeds of which were used to pay [the] past year’s property taxes.
Dr. Durham may exercise his [o]ption to [p]urchase at any time within 60 days from [the] date by fulfilling the above conditions^] and all outstanding stock will be transferred to him at that time[;] Dr. Durham will then own 100% of [GSC’s] stock.

The accused shareholders delivered their stock certificates to Attorney Donnie Riley, who held them in escrow during Durham’s option.

¶ 6. Although Durham’s option had a stated term of sixty days, the parties acquiesced to extend it for approximately two years. During that time, Durham fulfilled his obligation to bring the GLICA mortgage current. Through March 2000, Durham paid approximately $648,000 toward that debt. Durham also paid for taxes, insurance, and maintenance on GSC’s building. Additionally, Durham paid off the $25,000 loan from Hancock Bank.

¶ 7. Meanwhile, Durham strived to find another tenant for GSC’s building. He temporarily leased some space to State Farm, which paid $110,000 in rental income. However, Durham’s primary focus was securing a lease with the Mississippi Space Commerce Initiative (MSCI). In March 1999, Durham sent a proposed lease agreement to MSCI. Durham v. Univ. of Miss., 966 So.2d 832, 834 (¶4) (Miss.Ct.App.2007). Durham later explained that he had an agreement with Larry Wygel and an entity identified as the Hammes Company. According to Durham, if MSCI had leased GSC’s building, the Hammes Company would have then paid Durham $9,000,000 for thirty-one adjacent acres of property that Durham personally owned. However, Durham’s attempt to secure a lease with MSCI was unsuccessful. Id. at (f 5). In March 2000, MSCI told Durham that it was “no longer interested in pursuing [the lease].” Id.

¶ 8. It appears that Durham became disheartened after MSCI declined to lease GSC’s building. In anticipation that MSCI would lease GSC’s building and then pay GSC’s ad valorem taxes, Durham did not pay GSC’s ad valorem taxes when they became due. Durham stopped making the GLICA payments after March 2000. Durham also allowed the requisite letters of credit to lapse. Additionally, Durham stopped funding the escrow account that GLICA required. On December 10, 1999, Laureate Capital wrote to Shannon to inform him that GSC’s mortgage with GLI-CA was in default for reasons that were not related to GSC’s failure to pay. On January 21, 2000, the attorney for the City of Gulfport informed GSC that an interest payment of approximately $33,600 had been due on July 30, 1999. Laureate Capital would not release the proceeds of the escrow account to Gulfport. Although the Laureate Capital escrow account contained roughly $350,000, GLICA took the position that the escrow account was part of its own collateral, so GLICA would not release any of the proceeds of the escrow account to the City of Gulfport. GLICA also refused to allow Durham to assume GSC’s mortgage debt without paying a one-percent transfer fee, which Durham never paid. On April 19, 2000, GSC’s lawyer contacted Riley and instructed him to return the accused shareholders’ stock certificates because they had formally terminated Durham’s option.

¶ 9. Meanwhile, Bruno’s bankruptcy proceeding had progressed. The record contains a release dated May 12, 2000, by which Hill agreed to accept $263,988.89-representing 30% of the money that Bruno’s owed GSC under its lease. On May 25, 2000, GSC received a check from Bruno’s bankruptcy proceedings, but the check referenced “Flynt’s Crossing Shopping Center.” Consequently, GSC returned that check.

¶ 10. Durham later approached the accused shareholders with a proposal regarding another potential lessee, IMIX, Inc. Durham requested another option to purchase all of the accused shareholders’ stock in GSC. On June 8, 2000, the accused shareholders gave Durham a second option, which contained the following terms:

If at the end of [the] 15-day time period, ... Durham satisfactorily performs all of [the] conditions, he will have the right to purchase all of [GSC’s] stock of the corporation for:
(1) If no money is recovered from Bruno’s bankruptcy, then for all sums paid by [GSC] from now and after June 8, 2000[,] in order to reinstate mortgage payments, taxes[,] and other corporate expenditures; but
(2) In the event funds are received from [Bruno’s] bankruptcy, then notwithstanding (1) above, the purchase price of the stock of all of the shares will be the gross amount of [the] funds (with 24.5% of [the] gross amount to remain in the corporation representing the 24.5% of all stock issued and outstanding which ... Durham now owns).

At some point during the telephonic board meeting, Durham became angry. He left the board meeting before it concluded. Thus, he was not present when the accused shareholders discussed the impending payment from Bruno’s bankruptcy proceedings. However, Durham’s attorney, Tom Starling, remained at the meeting.

¶ 11. On June 12, 2000, GSC received the corrected check from the Bruno’s bankruptcy proceedings. GSC had the proceeds placed in an escrow account. According to Durham, the other shareholders did not tell him that they had received the check. From the Bruno’s bankruptcy proceeds, GSC paid GLICA approximately $151,000. GSC also paid the Harrison County Tax Collector $68,000. Additionally, GSC paid its property-insurance agent and its lawyers. As of the time of trial, the escrow account contained approximately $21,000.

¶ 12. Durham did not fulfill the terms of his June 2000 option. In August 2000, Durham refused the accused shareholders’ invitation to make another offer to buy the remainder of GSC’s stock. To prevent foreclosure by the City of Gulfport, the accused shareholders gave Williams an option to purchase their stock in GSC. Despite Williams personally paying approximately $436,000 toward GSC’s debts and other expenses, GSC ultimately lost its property to foreclosure.

¶ 13. On April 10, 2001, Durham sued GSC and the accused shareholders. He sought “an accounting of [GSC’s] financial affairs and all [of its] corporate accounts.” He also requested an accounting of the escrow account in which GSC deposited the Bruno’s bankruptcy proceeds. Durham also sought to set aside Williams’s acquisition of GSC’s property. Additionally, Durham requested that the chancellor set aside GSC’s use of the Bruno’s bankruptcy proceeds for any purpose other than paying the GLICA mortgage. Durham also claimed he was entitled to reimbursement of the money he spent during the term of his option. GSC and the accused shareholders filed a counterclaim against Durham and sought the $110,000 that State Farm paid GSC while it rented a portion of GSC’s building. The chancellor dismissed most of Durham’s claims after GSC and the accused shareholders successfully moved for partial summary judgment. Nevertheless, Durham’s claims for reimbursement and an accounting remained viable.

¶ 14. On November 12, 2009, the parties went to trial on Durham’s remaining claims. On April 8, 2010, the chancellor entered his judgment. The chancellor held that GSC had received the Bruno’s bankruptcy proceeds on May 25, 2000. The chancellor also held that the accused shareholders failed to inform Durham that GSC had received money from Bruno’s bankruptcy proceedings. As for the money that Durham spent during the term of his option, the chancellor found that Durham “cannot ... complain that his bargain to pay corporate expenses was not what he intended to do [during the option].” Consequently, the chancellor found that Durham was not entitled to recover the money he spent during his option.

¶ 15. However, the chancellor was “perplex[ed]” by “the timing of the Bruno’s bankruptcy funds.” According to the chancellor, Durham “was not made aware of the imminent payment of the funds when he was notified on May 19, 2000[J” that his option had been terminated. The chancellor went on to find that the accused shareholders “knew the funds had been received and ... couched the June 8, 2000 minutes with language that presupposed the funds were not on hand or may not even materialize.” The chancellor then concluded that GSC “realized” the Bruno’s bankruptcy proceeds during Durham’s option. The chancellor declined to find that the Bruno’s bankruptcy proceeds would have changed the outcome of Durham’s attempt to acquire all of GSC’s stock. Even so, the chancellor concluded that “good faith and fair dealing as is implied in every contract should have given [Durham] the knowledge of and benefit and use of those funds in his efforts during the time when he had assumed the corporate obligations.” Accordingly, the chancellor awarded Durham a judgment of $263,988.89. Additionally, the chancellor held that GSC and the accused shareholders were jointly and severally liable for that amount. The chancellor found no merit to GSC and the accused shareholders’ counterclaim. Following an unsuccessful motion to alter or amend the judgment, GSC and the accused shareholders appeal.

STANDARD OF REVIEW

¶ 16. “This Court will not disturb the chancellor’s findings when they are supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” In re Estate of Byrd, 749 So.2d 1214, 1218 (¶ 14) (Miss.Ct.App.1999) (citation omitted). “We consider the entire record before us and accept all those facts and reasonable inferences therefrom which support the chancellor’s findings.” Id. (citing Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993)). “The chancellor sits as fact-finder and his conclusions regarding witness credibility and what weight and worth to assign to the testimony of the various witnesses are entitled to substantial deference.” R.B.S. v. T.M.S., 765 So.2d 616, 619 (¶ 9) (Miss.Ct.App.2000) (citation omitted). “Only if, for reasons that we find persuasive, we are convinced that the chancellor was manifestly wrong or clearly erroneous in his findings may we intercede.” Id. (citing Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994)).

ANALYSIS

¶ 17. The chancellor held that the accused shareholders were liable to Durham because they breached their implied contractual duty of good faith and fair dealing. Stated differently, the chancellor held that the accused shareholders acted in bad faith when they concealed GSC’s receipt of the Bruno’s bankruptcy proceeds — which were realized during Durham’s option.

¶ 18. “All contracts contain an implied covenant of good faith and fair dealing in performance and enforcement.” Limbert v. Miss. Univ. for Women Alumnae Ass’n, 998 So.2d 993, 998 (¶ 11) (Miss.2008) (citing Morris v. Macione, 546 So.2d 969, 971 (Miss.1989)). “Bad faith has been defined ... as requiring a showing of more than bad judgment or negligence; rather, bad faith implies some conscious wrongdoing because of dishonest purpose or moral obliquity.” Id. (citations and internal quotations omitted).

¶ 19. There is no issue regarding whether the accused shareholders had the right to terminate Durham’s option. The chancellor did not find that the accused shareholders improperly terminated Durham’s option, and Durham did not cross-appeal the chancellor’s conclusion. The only issue on appeal is whether the accused shareholders acted in bad faith by concealing GSC’s receipt of the Bruno’s bankruptcy proceeds during Durham’s option.

¶ 20. First and foremost, the chancellor was manifestly incorrect when he found that GSC “realized” the Bruno’s bankruptcy proceeds during Durham’s option. The chancellor’s error may have been predicated on his incorrect finding that Durham’s May 1998 option had been terminated on May 19, 2000. During direct examination of Durham, Durham’s attorney referred to the date of termination as May 19, 2000. But Durham repeatedly and unequivocally testified that the accused shareholders terminated his option on April 19, 2000. Furthermore, the termination letter to Riley was dated April 19, 2000.

¶ 21. Acting on GSC’s behalf, Hill signed a release for the Bruno’s bankruptcy proceeds on May 12, 2000. And although GSC had received a check from the Bruno’s bankruptcy proceedings on May 25, 2000, GSC could not deposit that check because it had incorrectly been assigned to “Flynt’s Crossing Shopping Center.” GSC returned that check. In that sense, the chancellor was manifestly incorrect when he held that GSC received its portion of the Bruno’s bankruptcy proceeds on May 25, 2000.

¶ 22. The chancellor was also manifestly incorrect when he held that the accused shareholders had “couched” the minutes of the June 8, 2000 meeting “with language that presupposed [that] the [Bruno’s bankruptcy] funds were not on hand or may not even materialize.” The June 8, 2000 minutes contain a memorialization of the second option granted to Durham. That option contained two means by which Durham could acquire the accused shareholders stock in GSC. Those two means were contingent on whether GSC received money from Bruno’s bankruptcy proceedings. And one of those contingencies was based on the event that “no money is recovered from Bruno’s bankruptcy.” However, viewed in conjunction with a concurrent “resolution to authorize the chairman of the corporation to use corporate funds to bring mortgage loans current,” which was attached to the minutes as an exhibit, it is clear that the minutes were not couched to be misleading. The resolution stated that GSC “anticipate^] receiving a settlement from the bankruptcy court on behalf of Bruno’s in the amount of $263,988.89.” The only uncertainty was when GSC would receive those funds.

¶23. Moreover, Durham was at the June 8, 2000 meeting. • Although Durham became angry and left the meeting before it concluded, Durham’s attorney remained at the meeting for the duration. In other words, Durham’s agent attended the entire meeting. If Durham was uninformed that GSC anticipated receiving a check from Bruno’s bankruptcy proceedings, it was due to a lack of communication between Durham and his attorney, rather than the accused shareholders’ concerted effort to mislead Durham.

¶ 24. It is undisputed that GSC received a correctly drafted check from Bruno’s bankruptcy proceedings on June 12, 2000. The evidence indicated that all of the Bruno’s bankruptcy proceeds were used for proper corporate purposes. Durham takes issue with the fact that a portion of the Bruno’s bankruptcy proceeds went to attorneys to represent GSC and the other shareholders in this lawsuit. However, Durham had sued GSC as well as the accused shareholders. GSC is entitled to hire counsel when it is sued. There was no evidence that it was a conflict of interest for the same attorneys to represent GSC and the accused shareholders.

¶ 25. Durham took a risk when he agreed to assume GSC’s debts during the term of his option. According to Hill, Durham said he would “roll the dice” and attempt to secure a new tenant for GSC’s building. He agreed to pay GSC’s corporate expenses during his option because he had his own motivation to acquire a new tenant for GSC. Durham answered “yes” when asked whether securing a new tenant “would significantly increase the value of [his] property in the area.” Durham testified that he and Larry Wygel of the Ham-mes Company had an “arrangement” in that “once the [MSCI] lease was signed[,] and [MSCI] occupied [GSC’s] building, [the Hammes Company] would ... recruit synergistic companies for the building[;] and [it] would also purchase the adjacent thirty acres of mine to [GSC’s] building for nine million dollars.” In other words, Durham expected to sell his own property for $9,000,000 if he could finalize MSCI’s lease of GSC’s building.

¶ 26. As stated above, “[b]ad faith has been defined ... as requiring a showing of more than bad judgment or negligence; rather, bad faith implies some conscious wrongdoing because of dishonest purpose or moral obliquity.” Limbert, 998 So.2d at 998 (¶ 11) (citations and internal quotations omitted). There was no evidence that GSC or the accused shareholders acted in any way that implied “conscious wrongdoing because of dishonest purpose or moral obliquity.” We find that the chancellor committed reversible error when he concluded that GSC and the accused shareholders acted in bad faith. Consequently, we reverse that portion of the chancellor’s judgment and render judgment for GSC and the accused shareholders.

¶ 27. As for GSC and the accused shareholders’ counterclaim for $110,000, we do not find that the chancellor committed manifest error when he declined to award a judgment against Durham for that figure. The chancellor held that the State Farm rental income was “received by [Durham] during the option period when he had full fiscal responsibility of the corporate activities and [the rental income was] received in consequence of his performance under the option which precludes any claim thereto by the other shareholders.” Durham spent far more of his own funds than State Farm paid in rent. The option agreement was silent as to whether Durham had the right to use corporate income for corporate expenses. There was no evidence that Durham misappropriated the rental income. There was sufficient evidence for the chancellor to conclude that the State Farm rental income was essentially a setoff of the money that Durham spent during his option. Accordingly, we affirm that portion of the chancellor’s judgment.

¶ 28. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE SPLIT EQUALLY BETWEEN THE PARTIES.

LEE, C.J., IRVING AND GRIFFIS, P JJ., BARNES, ISHEE AND MAXWELL, JJ., CONCUR. CARLTON AND FAIR, JJ., CONCUR IN RESULT ONLY. RUSSELL, J., CONCURS IN PART AND IN THE RESULT.

      . It is unclear how Durham's $700,000 was allocated between the GSC stock and the interest in Williams's property.

      . Under an escrow agreement between GSC, GLICA, and the City of Gulfport, GSC did not have to start making payments on its second mortgage until October 1998.

      . State Farm operated a temporary claims center out of GSC’s building for approximately one year. Durham later testified that he kept GSC’s income from the State Farm lease.

      . Durham sued MSCI on November 27, 2001. Durham, 966 So.2d at 834 (¶ 6).

      . In his suit against MSCI, Durham also claimed that MSCI was liable for the money he spent toward GSC’s debt while he attempted to secure MSCI as a tenant of GSC’s building.