author: COOKS, J.

text:
    Markel DOMINO v. CROWLEY CITY POLICE DEPT., et al.
    No. 10-1244.
    Court of Appeal of Louisiana, Third Circuit.
    May 25, 2011.
    Thomas R. Galloway, Jr., Britney L. Hebert, Galloway Jeffcoat, L.L.P., Lafayette, LA, for Markel Domino.
    James L. Pate, Sara B. Rodrigue, La-borde & Neuner, Lafayette, LA, Thomas K. Regan, Crowley, LA, for City of Crowley, Lynette Nickel and Glenn Deville.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and ELIZABETH A. PICKETT, Judges.
   COOKS, J.

_JjFACTS AND PROCEDURAL HISTORY

In response to a 911 emergency call from Ms. Shameka Johnson (Johnson) on June 20, 2004, two Crowley city police officers, Wayne Perry (Officer Perry) and Donald Vail (Officer Vail), were dispatched to her residence. Johnson made the call because she and her boyfriend, Mr. Markel Domino (Plaintiff), were engaged in a verbal altercation and he refused to leave the residence. Johnson requested police help because she feared Plaintiff might become physically violent, though she informed the police Plaintiff was not being physically violent at that time. Upon being dispatched in response to the 911 call, Officer Perry requested a warrant check on both Johnson and Plaintiff and was advised of an outstanding warrant against Plaintiff for failure to appear in court on a charge of simple battery. Upon arrival at the residence, Officer Perry observed Johnson and Plaintiff embroiled in a heated argument. He spoke to Johnson who then took the children outside. Officer Perry informed Plaintiff he was placing him under arrest as a result of an outstanding arrest warrant. Plaintiff protested claiming he had a receipt showing the warrant was dismissed. Officer Perry did not believe Plaintiff because the warrant had just come in to the city police station that morning. In the midst of an emotionally charged situation and faced with Plaintiff screaming, yelling, and refusing to calm down, the officer did not allow Plaintiff to leave the room in order to produce the alleged documentation. Because these events occurred on a Sunday, the officer could not call in to find out whether the warrant was recalled.

Officer Perry advised Plaintiff he was placing him under arrest and attempted to take Plaintiff into custody. Plaintiff physically shoved and pushed him away in an effort to evade arrest. As Plaintiff turned to flee, Officer Perry grabbed him around | ¡¡the waist from behind and tackled him to the floor. Officer Vail arrived upon the scene at the same time that Plaintiff pushed Officer Perry. Observing this action, Officer Vail rushed forward to assist Officer Perry and helped to subdue Plaintiff. Officer Vail held Plaintiff with his arm around Plaintiffs neck. As Plaintiff continued to physically resist, Officer Vail used his pepper spray from a close range in order to subdue Plaintiff and effectuate the arrest. Plaintiff was given water to rinse his eyes at the scene and then transported to the Crowley Police Department. He was booked and then transferred to the custody of the Acadia Parish Sheriffs Office Correctional Facility. On Monday morning, Plaintiff received routine medical attention at the correctional facility. Following a seventy-two-hour hearing, Plaintiff was released on bond posted by Johnson.

At the seventy-two hour hearing it was determined that the outstanding arrest warrant had in fact been recalled by the district judge before Plaintiffs arrest but the Crowley City Clerk’s Office had failed to follow through by removing the warrant from the active list. Officer Perry testified he did not make any inquiry as to whether the arrest warrant upon which he acted had been recalled. After turning Plaintiff over to the custody of the Sheriffs Office, Officer Perry and Officer Vail had no further contact with Plaintiff and performed no further duties regarding Plaintiff.

Plaintiff filed an action for damages on March 4, 2005, against the City of Crowley, alleging the arresting officers used excessive force and alleging false arrest because the warrant had been recalled pri- or to his arrest. Plaintiff amended his suit on May 16, 2007, adding as a defendant the Crowley City Clerk of Court, Ms. Lynette Nickel (Nickel), in her official capacity, alleging she and/or her employees negligently failed to recall the arrest warrant. Plaintiff again amended his suit on July 17, 2009, adding as defendants the Crowley City Marshall, Mr. Glen Deville |s(Deville), in his official capacity, alleging he and/or his employees negligently failed to recall the arrest warrant.

The trial court granted the defendants’ motion for summary judgment on the issue of the validity of the arrest, finding the arrest made pursuant to the recalled warrant was valid. The remaining issues were fixed for trial, and the court subsequently granted a directed verdict dismissing Nickel and Deville, finding they were judicially immune from suit for the conduct alleged. The trial court rendered judgment in favor of the other defendants, finding they were not liable because Plaintiff resisted a lawful arrest made pursuant to an ostensibly valid warrant and caused his own injuries. It further found the officers did not use excessive force under the circumstances but in fact used reasonable force to affect the arrest of Plaintiff who was physically resisting restraint.

Plaintiff alleges three assignments of error asserting the trial court erred in: (1) granting summary judgment on the issue of the legality of the arrest; (2) finding the officers did not use excessive force; and (3) finding Plaintiffs actions in resisting a lawful arrest were the cause in fact of his injuries.

SUMMARY JUDGMENT

We review motions for summary judgment de novo. Hollander v. Days Inn Motel, 98-1361 (La.App. 3 Cir. 5/1/99) 739 So.2d 238, writ granted in part, reversed in part on other grounds, 99-1733 (La.10/1/99), 747 So.2d 1133.

Appellate courts review summary judgment de novo, applying the same criteria that govern a trial court’s determination of a motion for summary judgment. Louisiana’s Code of Civil Procedure [Article 966(B) ] states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” We are required to construe factual inferences that are reasonably drawn from the evidence presented in favor of the party opposing the motion: all doubt is to be resolved in the non-moving 14party’s favor.
We also are to remain cognizant of the mover’s and non-mover’s burdens of proof. Although the burden of proof on a motion for summary judgment remains with the moving party, the mover’s burden changes depending upon whether he or she will bear the burden of proof at trial on the matter that is the subject of the motion for summary judgment:
[I]f he or she will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La.Code Civ. P. art. 966(C)(2).

Covington v. McNeese State Univ., 08-505 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, 671-72, writ denied 09-69 (La.3/6/09), 3 So.3d 491, quoting McClaff, Inc. v. Arch Ins. Co., 07-1182, pp. 7-8 (La.App. 3 Cir. 2/27/08), 978 So.2d 482, 487-88.

The trial court ruled on summary judgment that the arrest of Plaintiff in this case based upon a recalled search warrant was a valid arrest. The judgment is valid if there were no material issues of fact in dispute regarding the police officer’s reliance on the outstanding arrest warrant later shown to have been recalled prior to Plaintiffs arrest. Our de novo review of the record reveals there is no dispute that an arrest warrant was validly issued by a trial judge for Plaintiffs failure to appear in court to answer to a charge of simple battery. The record also reveals there is no dispute that the arrest warrant was recalled by the trial judge but the clerk of court failed to process the recall. It is also undisputed that the police had no responsibility for recalling the warrant and that the arresting officer, having been called to the scene by Johnson who feared Plaintiff might become physically violent, had no knowledge that the warrant had been recalled. Officer Perry testified that the warrant had just ^appeared on his desk that morning and that this was the reason he gave no credibility to Plaintiffs claim in the midst of the emotionally charged and heated encounter. It is also undisputed that because this occurred on a Sunday the officer could not call the clerk’s office to inquire as to whether the warrant had been recalled. There is no evidence that the officer acted in bad faith.

There were no genuine issues of material fact to resolve regarding the validity of the arrest. The officer, in good faith, relied on a validly issued arrest warrant. The Louisiana Fourth Circuit Court of Appeal recently considered a case where the officer arrested a suspect based on a warrant which the computer system showed was outstanding but which was subsequently found to be invalid. Relying on the United States Supreme Court decision in Herring v. U.S., 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496, (2009) the Fourth Circuit held that where the officer acted in good faith “based on the information available to him at the time” evidence seized as a result of the arrest would not be excluded. State v. Johnson, 08-1551, p. 2 (La. App. 4 Cir. 2/5/09), 6 So.3d 195, 196 citing Herring and U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), in which the United States Supreme Court enunciated the “good faith” rule. In Herring, the U.S. Supreme Court considered admissibility of evidence seized pursuant to an arrest which was based upon a previously recalled arrest warrant, finding that the evidence would not be suppressed absent “allegations of deliberate falsehood or of reckless disregard for the truth.” Id. p. 703. The court therein further stated:

These principles are reflected in the holding of Leon: When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted ‘in objectively reasonable reliance’ on the subsequently invalidated search warrant. 468 U.S. at 922, 104 S.Ct. 3405. We (perhaps confusingly) called this objectively reasonable reliance “good faith.” Ibid., n. 23, 104 S.Ct. 3405. In a companion case, Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), we held that the exclusionary | firule did not apply when a warrant was invalid because a judge forgot to make “clerical corrections” to it.

Id. at 701.

This reasoning regarding application of the good faith rule of Leon is applicable to the good faith actions of Officer Perry in arresting Plaintiff pursuant to a validly issued arrest warrant which he, in good faith, did not know had been recalled.

in Kyle v. City of New Orleans, 353 So.2d 969 (La.1977), (citations omitted) the Louisiana Supreme Court addressed a claim for false imprisonment, false arrest and the use of excessive force in the arrest of the plaintiffs noting:

False arrest and imprisonment occur when one arrests and restrains another against his will without a warrant or other statutory authority. Simply stated, it is restraint without color of legal authority. Thus, if police officers act pursuant to statutory authority in arresting and incarcerating a citizen, they are not liable for damages for false arrest and imprisonment. The law exempts the officers from liability even if the statute upon which they rely is later declared unconstitutional as long as the officers reasonably believed it valid at the time they acted.

Id. at 971. This earlier decision by our state supreme court is in line with the “good faith” reasonable standard applied by the U.S. Supreme Court in Leon and Herring. The Louisiana Code of Criminal Procedure Article 217 provides in pertinent part:

A peace officer, when making an arrest by virtue of a warrant, shall inform the person to be arrested of his authority and of the fact that a warrant has been issued for his arrest, unless he flees or forcibly resists before the officer has an opportunity to inform him, or unless the giving of such information would imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest....

Officer Perry testified he informed Plaintiff he was placing him under arrest by virtue of an outstanding warrant for his arrest. The officer acted in good faith “pursuant to statutory authority” executing an arrest warrant validly issued without any knowledge that it had been recalled. The trial court properly granted summary judgment on this issue.

|7EXCESSIVE FORCE

The Louisiana Code of Criminal Procedure Article 220 provides:

A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.

The Louisiana State Supreme Court explained the “reasonable force” test of Article 220 in Kyle, 353 So.2d at 972-73(cita-tions omitted):

The use of force by officers must be tested by the “reasonable force” standard established by this article [La.Code Crim. P. art. 220] The test precludes “clearly inappropriate force.” LSA-C.Cr.P. Art. 220, Official Revision Comment(b).
The use of force when necessary to make an arrest is a legitimate police function. But if the officers use unreasonable or excessive force, they and their employer are hable for any injuries which result. LSA-C.C. Art. 2320; Pi-cou v. Terrebonne Parish Sheriffs Office, La.App., 343 So.2d 306 (1977), writ refused, La., 345 So.2d 506 (1977); Cheatham v. Lee, La.App. 277 So.2d 513 (1973); Bourque v. Lohr, La.App., 248 So.2d 901 (1971); Taylor v. City of Baton Rouge, La.App., 233 So.2d 325 (1970).
Whether the force is reasonable depends upon the totality of the facts and circumstances in each case. A court must evaluate the officers’ actions against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers. The degree of force is a factual issue. As such, the trial coui't’s finding is entitled to great weight. Canter v. Koehring Co., La. 283 So.2d 716 (1973).
Several factors to be considered in making this determination are the known character of the arrestee, the risks and dangers faced by the officers, the nature of the offense involved, the chance of the arrestee’s escape if the particular means are not employed, the existence of alternative methods of arrest, the physical size, strength, and weaponry of the officers as compared to the arrestee, and the exigencies of the moment.

Our review of the record demonstrates no manifest error in the trial court’s finding of fact in this regard. Officer Vail testified Plaintiff kept trying to extricate himself from Officer Perry’s hold by “pushing, fighting, kicking” and that he struggled the whole time the officers were trying to subdue him. He further testified | Rhe was in fear of receiving injury from Plaintiff who continued struggling with him. He additionally testified, “I knew if I didn’t do something, one of us was going to get hurt sooner or later. It just wasn’t ending.” According to Officer Vail, Plaintiff did not stop struggling with the officers until he pepper-sprayed him. Johnson testified that when the police arrived, Plaintiff was screaming and yelling and that it was “a pretty emotionally charged situation.” She also testified that the reason she called police was that she feared Plaintiff was going to get physical with her. As the police were aware, Plaintiff had been previously charged with simple battery which was the charge upon which the arrest warrant for Plaintiffs failure to appear in court was based. The trial court stated it did not find Plaintiffs testimony credible but believed the officers’ version of events. As we must accord great weight to the trier of facts factual findings on this issue, we do not find the record supports our second-guessing the trial court’s factual determination that the officers did not use excessive force but instead acted reasonably under these facts and circumstances.

Because we find no error in the trial court’s rulings that the arrest was a valid arrest and that the officers’ did not use excessive force in arresting Plaintiff, the remaining assignments of error are rendered moot. All costs of this appeal are assessed against Plaintiff.

AFFIRMED


source: Caselaw Access Project

author: CHANDLER, Justice, KITCHENS, Justice,

license: Public Domain

text:
    Curtis Wayne GAUSE v. STATE of Mississippi.
    No. 2010-KA-00127-SCT.
    Supreme Court of Mississippi.
    June 23, 2011.

      Office of Indigent Appeals by Justin Taylor Cook, attorney for appellant.

      Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. Curtis Wayne Gause was indicted on Count I, the capital murder of Jeffrey Swords with the underlying felony of burglary, and on Count II, the attempted aggravated assault of Tracy Gause. On Count I, the jury was instructed on capital murder with the underlying felony of burglary with the intent to commit an assault therein, murder, manslaughter, and burglary. A Pontotoc County jury found Gause guilty of manslaughter and burglary, and not guilty of attempted aggravated assault. The Circuit Court of Pontotoc County sentenced Gause to twenty years for manslaughter, and to twenty-five years for burglary, -with fifteen years suspended and five years on post-release supervision, to run consecutively, all in the custody of the Mississippi Department of Corrections.

¶ 2. Gause appeals, raising three issues: (1) whether the trial court erred when it allowed the jury to consider a verdict on burglary; (2) whether the trial court erred by refusing to allow Gause to voir dire the State’s expert, Dr. Steven Hayne; and (3) whether the trial court erred by dismissing venire persons based on prior jury service, rather than allowing them to excuse themselves if desired. We affirm Gause’s conviction of manslaughter. We reverse and render Gause’s conviction of burglary.

FACTS

¶ 3. Gause and Tracy Gause were married on December 10, 1983, and had two children, Brittany Catledge, who was twenty-one years old at the time of the trial, and Cora Beth Gause, who was fifteen. Numerous persons testified that the marriage was tumultuous, and that for years, Gause and Tracy had a pattern of repeatedly separating and getting back together. In March 2007, Tracy and Cora Beth moved to a trailer on Old Swords Lane in Ecru, Mississippi, to live with Tracy’s paramour, Jeffrey Swords. Brittany lived in a trailer steps away from Tracy’s with her husband, Samuel Cat-ledge. Gause lived with various family members when he was not with Tracy, and occasionally visited Tracy and their children at her trailer. Gause did not have a key to the trailer.

¶4. In February 2008, Swords moved out of the trailer he had shared with Tracy. Tracy testified that, after Swords moved out, Gause spent the night at the trailer on two occasions, and that she had sex with Gause once, but she never had intended to get back together with Gause. On March 21, 2008, Tracy told Gause she was planning to have a yard sale the next day. That afternoon, Tracy came to the home of Gause’s sister, Amy Wages, where Gause was staying. Tracy talked to Gause and picked up items to sell at the yard sale. They talked about Gause coming to Tracy’s trailer the next morning to help set up for the yard sale, although it was disputed whether that plan was made final. Wages’s husband, Roy Wages, Jr., testified that Gause gave $40 to Tracy and that he heard Tracy and Gause tell each other “I love you” before Tracy left.

¶ 5. Tracy testified that she decided to go out with a friend at about 7:00 p.m. Tracy stated that when Gause called her at about 9:14 p.m., she told him she was not going to have the yard sale the next day because she was out that night. Tracy testified that she had not expected to see Gause the next morning, she had stayed up all night drinking, and she had met Swords at approximately 1:30 a.m. They went back to her trailer, where they talked to Cora Beth and her friend, Audrey Jami-son, who was spending the night. At about 4:00 a.m., Tracy and Swords went to the restaurant where Tracy worked to open it for another employee. They left the restaurant at about 5:10 a.m. and returned to Tracy’s trailer at about 5:15 a.m. After talking to the girls, Swords and Tracy retired to Tracy’s bedroom, and the girls went to Cora Beth’s bedroom.

¶ 6. Early that morning, Gause walked from his sister’s house to Tracy’s trailer, a distance of 3.2 miles. Gause testified that when he saw Swords’s truck and Tracy’s truck parked outside Tracy’s trailer, he “saw red.” He began smashing the trucks, which awakened Cora Beth, Audrey, Brittany, and Samuel. According to Gause, he saw a nightlight on inside Tracy’s bedroom, peeked in the bedroom window through a space the curtain did not cover, and witnessed Tracy performing a sexual act on Swords. Gause broke in the front door of Tracy’s trailer, went to her bedroom, and opened the door. Gause, armed with a knife, stabbed Swords five times. Tracy, Cora Beth, and Brittany all witnessed Gause stabbing Swords. According to the forensic pathologist, Dr. Steven Hayne, Swords died from a stab wound to the neck that severed his left carotid artery; the other stab wounds were nonlethal.

¶ 7. While Gause attacked Swords, Tracy first tried to kick the knife out of his hand. Then, Swords told Tracy to go, and she ran to Brittany’s trailer, where they called 911. Brittany had come outside, and she briefly witnessed Gause stabbing Swords. Then, Tracy ran back to her own trailer to be with Swords. Gause had run into the woods behind the trailer. Tracy testified that Gause returned and began beating her. She got away and ran outside. Gause came out and yelled to Tracy and Cora Beth “I told y’all I was going to get that son-of-a-bitch.” Gause inflicted further damage on the trucks. Brittany testified that her father was behaving “like he had a demon in him.” Tracy testified that she had believed Gause was going to kill her when he had come into the bedroom.

¶ 8. When the police arrived, Gause walked up to a patrol car and was arrested. Two days later, after signing a waiver of his Miranda rights, he gave a typed statement, which he signed, and an audio-taped statement. Both statements were admitted into evidence. In the typed statement, Gause stated that, when he saw Swords’s truck at the trailer, he “saw red,” stabbed the trucks’ tires with his pocket knife, and broke the trucks’ windows with a metal pole he found in the back of one of the trucks. Then, he kicked in the trailer door, saw Tracy and “started to kill her first” but then saw Swords and “went crazy on him.” He threw the knife in the woods and waited for the police.

¶ 9. In the audiotaped statement, Gause stated that he had gone to Tracy’s to help with a yard sale. He said that he had thought everything would be fíne if Swords was not there. But when he saw Swords’s truck, he “saw red.” He stabbed the truck tires with his pocket knife, broke the truck window, and then broke into the trailer. When he saw Swords and Tracy in bed, he began stabbing Swords with the pocket knife. He stated that he did not kill Tracy because Cora Beth was there. He said that, after the stabbing, he threw the knife into the woods behind the trailer and waited on the police.

¶ 10. At the trial, Gause testified that, in February and March 2008, he and Tracy had talked about resuming their relationship. This was corroborated by Clay Warren, who testified that Tracy had told him she and Gause were trying to reconcile, and by Roy Wages, Jr. Gause testified that he had stayed at Tracy’s trailer a dozen times during this period and that they had been intimate. Prior to that time, Tracy had dated Swords. Gause testified that Swords had threatened to kill him in the past and, on numerous occasions, had taunted Gause about the fact that Swords was sleeping with his wife. Cora Beth also testified that Gause and Swords had argued previously.

¶ 11. Gause testified that he walked to Tracy’s trailer on the morning of March 22, 2008, to help with the yard sale. When he saw Swords’s truck, he “saw red” and “snapped.” He smashed the truck windows, looked inside the trailer, saw Tracy performing a sexual act on Swords, and broke into the trailer and the bedroom inside. Contrary to Gause’s prior statements, he testified that he and Swords began fighting and he cut Swords accidentally during the fight. He denied any intent to kill Swords or Tracy. He also denied having beaten Tracy after the stabbing.

¶ 12. On Count I, capital murder, the trial court instructed the jury on capital murder with the underlying felony of burglary with the intent to commit an assault therein, murder, manslaughter, and burglary. On Count II, the court instructed the jury on the attempted aggravated assault of Tracy. The jury found Gause guilty of manslaughter and burglary, and not guilty of attempted aggravated assault.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY ALLOWING THE JURY TO CONSIDER A VERDICT ON BURGLARY WHEN BURGLARY IS NOT A LESSER-INCLUDED OFFENSE OF CAPITAL MURDER.

¶ 13. Gause was indicted in a two-count indictment for the crimes of capital murder with the underlying felony of burglary and aggravated assault. The trial court granted the State’s jury instruction that if the jury did not find Gause guilty of capital murder, they were to consider the charge of murder; if they did not find murder, they were to consider manslaughter; and if they found him guilty of manslaughter, then they were to consider whether he was also guilty of burglary with the intent to commit an assault. Gause objected to this instruction at the jury-instruction conference, arguing that burglary is not a lesser-included offense of capital murder. The State argued that burglary is a lesser-included offense of capital murder with the underlying felony of burglary. After considering the arguments of both sides, the trial court granted the instruction. Gause renews his arguments on appeal.

¶ 14. Mississippi Code Section 99-19-5(1) provides for the instruction of the jury on lesser-included offenses:

On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose.

Miss.Code Ann. § 99-19-5(1) (Rev.2007). “[A] lesser-included offense ⅛ one in which all its essential ingredients are contained in the offense for which the accused is indicted, but not all of the essential ingredients of the indicted offense. An accused could not be guilty of the offense for which he is indicted without at the same time being guilty of the lesser-included offense.’” Thomas v. State, 48 So.3d 460, 472 (Miss.2010) (quoting Brazzle v. State, 13 So.3d 810, 815 (Miss.2009)). As explained in a specially concurring opinion by Chief Justice Armis Hawkins, “[a]n accused could not be guilty of the offense for which he is indicted without at the same time being guilty of the lesser included offense. The lesser included crime is encompassed within the crime for which the accused is indicted.” State v. Shaw, 880 So.2d 296, 301 (Miss.2004) (quoting Porter v. State, 616 So.2d 899, 910 (Miss.1993) (Hawkins, C.J., specially concurring)). “To constitute a lesser-included offense, every one of the essential ingredients must also constitute essential ingredients of the more serious crime of which the accused is indicted.” Id. In order to grant a lesser-included-offense instruction, there must be evidence supporting the lesser-included offense. Sanders v. State, 479 So.2d 1097, 1108 (Miss.1985). As discussed below, there is a crucial difference between a jury instruction on a lesser-included offense, which either the State or the accused may request, and an instruction on a lesser offense, which only the accused may request.

¶ 15. We begin by noting that it is undisputed that Gause was entitled to a heat-of-passion manslaughter instruction, based on the evidence. Miss.Code Ann. § 97-3-35 (Rev.2006). By statute, manslaughter is a lesser-included offense of capital murder, and the jury may be instructed on manslaughter upon request of any party or upon the court’s own motion, where the instruction is supported by the evidence, “consistent with the wording of the applicable manslaughter statute.” Miss.Code Ann. § 99-19-5 (Rev.2007); see also Miss.Code Ann. § 97-3-19(3) (Rev. 2006) (“[a]n indictment for murder or capital murder shall serve as notice to the defendant that the indictment may include any and all lesser included offenses thereof, including, but not limited to, manslaughter”).

¶ 16. Gause argues that the jury should not have been given a pure burglary instruction, because he was not indicted for burglary, and burglary is not a lesser-included offense of the indicted crime of capital murder with the underlying felony of burglary. Gause contends that this Court has held that the underlying felony that supports a capital-murder charge is not a lesser-included offense of capital murder. In his argument, Gause posits that manslaughter in the course of a burglary would be capital murder because capital murder does not require intent to kill, but only that a killing have occurred during the commission of an enumerated felony. Miss.Code Ann. § 97-3-19(2)(e) (Rev.2006). Therefore, he argues, the instruction that permitted the jury to find both manslaughter and burglary was erroneous. Gause argues that, because he was indicted for capital murder with the underlying felony of burglary, he could not be convicted of burglary alone. Gause contends that the burglary conviction was improper and must be dismissed. The State argues that the capital-murder indictment placed Gause on notice of the burglary charge.

¶ 17. Gause correctly argues that this Court has held in several cases that “the underlying felony in a felony-murder case is not a lesser included offense.” Doss v. State, 709 So.2d 369, 378 (Miss.1996) (underlying felony of robbery not a lesser-included offense to charged capital murder); Ballenger v. State, 667 So.2d 1242, 1252-55 (Miss.1995) (underlying robbery not lesser-included offense to charged capital murder); Gray v. State, 472 So.2d 409, 417 (Miss.1985) (overruled on other grounds) (underlying kidnapping not lesser-included offense to capital murder); Cannaday v. State, 455 So.2d 713, 724-25 (Miss.1984) (underlying kidnapping not lesser-included offense to capital murder); In re Jordan, 390 So.2d 584, 585 (Miss. 1980) (underlying kidnapping not lesser-included offense to capital murder).

¶ 18. In In re Jordan, the defendant was indicted for capital murder with the underlying felony of kidnapping. In re Jordan, 390 So.2d at 585. The Court held that he was not entitled to a lesser-included-offense instruction on kidnapping because, while the indictment charged murder during the commission of a kidnapping, the indictment did not charge Jordan with kidnapping or set out the elements of the crime of kidnapping. Id. In Doss, the defendant, who was charged with capital murder with the underlying felony of robbery, argued that he was entitled to a lesser-included offense instruction on robbery. Doss, 709 So.2d at 378. This Court rejected Doss’s argument, because robbery is not a lesser-included offense or a component of capital murder or of murder. Id. The Court stated that

... the most recent restatement of the law in this State, regarding whether or not the underlying felony in a felony-murder case is a lesser-included offense entitling the defendant to a separate instruction, clearly states that a defendant is not entitled to such an instruction as the language from previous cases used as the basis for such an argument has been held to be mere dicta.

Id.

¶ 19. The previously mentioned cases hold that the underlying felony is not a lesser-included offense of capital murder. The State argues that, because there was an evidentiary basis for a pure burglary instruction, the instruction was proper. This argument implicates the standard for granting a lesser-offense instruction, as opposed to a lesser-included-offense instruction. This Court has recognized the crucial distinctions between a lesser-included offense and a lesser offense. As previously stated, all the elements of a lesser-included offense are contained in the offense for which the defendant was indicted. Thomas, 48 So.3d at 472 (quoting Brazzle, 13 So.3d at 815). Because an indictment provides notice to the defendant of any lesser-included offenses, the State is entitled to a jury instruction on any lesser-included offenses for which there is an evidentiary basis.

¶ 20. In contrast, a lesser offense, also called a lesser-nonincluded offense or a lesser-related offense, arises from the same nucleus of operative fact as the charged offense, but its elements are not necessarily contained in the charged offense. “[T]he defendant may request an instruction regarding any offense carrying a lesser punishment if the lesser offense arises out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment.” Phillipson v. State, 943 So.2d 670, 672 (Miss.2006) (quoting Adams v. State, 772 So.2d 1010, 1016 (Miss.2000)). Stated differently, “[i]f a lesser offense, as opposed to a lesser-included offense, arises from the same operative facts and has an evi-dentiary basis, we have held the defendant is entitled to an instruction for the lesser charge the same as if it were a lesser-included charge.” Moore v. State, 799 So.2d 89, 91 (Miss.2001) (citing Griffin v. State, 533 So.2d 444, 447-48 (Miss.1988)). “An accused is entitled to a lesser-offense instruction only where there is an eviden-tiary basis in the record.” Thomas v. State, 48 So.3d 460, 472 (Miss.2010) (citing McGowan v. State, 541 So.2d 1027, 1028 (Miss.1989)). Because the defendant’s request of a lesser-offense instruction operates as a waiver of the notice requirement, only the accused, and not the State, may obtain a lesser-offense instruction. Griffin, 533 So.2d at 448 n. 2.

¶21. The State cites Richardson v. State, 767 So.2d 195 (Miss.2000), to support its argument that the trial court properly granted its request for a jury instruction on burglary. Richardson was indicted for capital rape. Id. at 200. The trial court denied his request for a jury instruction on the lesser offense of gratification of lust. Id. On review, this Court found that evidence supported the requested instruction. Id. The Court distinguished lesser-offense instructions, which may be obtained by the accused only, from lesser-included offense instructions, which may be obtained by either party, stating “it is those [jury instructions] offered by the State which must pass fair notice muster under the due process clauses of our state and federal constitutions.” Id. at 201 (citing Hailey v. State, 537 So.2d 411, 419 (Miss.1988) (Robertson, J., concurring)). However, the Court found that Richardson had been entitled to the instruction because the indictment specifically had stated the elements of gratification of lust, and for that reason, either Richardson or the State could have requested the instruction. Id.

¶ 22. Richardson is plainly distinguishable from this case. In Richardson, this Court held that the defendant was entitled to a lesser-offense instruction because the indictment actually set out the elements of that lesser offense. In this case, Gause’s indictment did not charge him with the elements of burglary. And, under this Court’s precedent, burglary is not a lesser-included offense of capital murder. Doss, 709 So.2d at 378; Ballenger, 667 So.2d at 1252-55; Gray, 472 So.2d at 417; Cannaday, 455 So.2d at 724-25; In re Jordan, 390 So.2d at 585. The State was not entitled to a lesser-offense instruction, because only the accused may request that the jury be instructed on a lesser offense, which operates as a waiver of notice in the indictment. Griffin, 533 So.2d at 448 n. 2. The trial court clearly erred by granting the State’s request for an instruction on burglary, because burglary is not a lesser-included offense of capital murder, and because the State was not entitled to a lesser-offense instruction. We reverse and render Gause’s conviction of burglary.

II. WHETHER THE TRIAL COURT ERRED BY NOT ALLOWING DEFENSE COUNSEL TO VOIR DIRE THE STATE’S EXPERT, DR. STEVEN HAYNE, ON HIS QUALIFICATIONS.

¶ 23. Gause argues that the trial court abused its discretion by prohibiting his voir dire of Dr. Steven Hayne, the forensic pathologist who performed the autopsy of Swords. Before the State called Dr. Hayne, the following occurred:

Mr. Shelton: Judge, it’s my understanding that they’re going to attempt to call Dr. Steven Hayne. I guess I have an objection, or at least a request of voir dire of his qualifications prior to him being allowed to take the stand in front of the jury. We’d object to him, not only on discovery basis, but on the grounds that he is not a board certified pathologist. It’s my understanding that that’s what he would be here to give testimony to. I think that he is not the director of the state board there in Jackson; that there’s been some serious questions as to his, I guess his qualifications to serve as an expert witness in recent years from the evidence in case of others and would object to him being a witness on those grounds.
The court: Your objection will be overruled, Mr. Shelton. The Supreme Court of the state has ruled that Dr. Hayne is perfectly qualified to testify as a pathologist. I don’t know where this nonsense got started about him not being qualified to serve or to testify as a pathologist. Tyler Edmond[s]’s case never suggests that. As a matter of fact, that’s where they said he was qualified.

Dr. Hayne took the witness stand, and the prosecutor questioned him about his qualifications as a forensic pathologist. Then, this exchange occurred:

The court: Counsel, excuse me just one moment. You’ve tendered as an expert. If is, [sic] do you have questions of voir dire?
Mr. Shelton: No, Your Honor. It’s my understanding that the court has already ruled on that.
The court: All right. Very well.
Mr. Farris: That’s exactly what I was functioning on.
The court: You may proceed to question him as an expert.

¶ 24. Gause argues that the trial court refused to permit him to voir dire Dr. Hayne. He argues that this ruling was an abuse of discretion, because not only did the ruling deprive Gause of his right to voir dire Dr. Hayne, but, without voir dire, the trial court had lacked sufficient information to assess Dr. Hayne’s qualifications. Gause claims the ruling prejudiced him, because Dr. Hayne’s testimony about Swords’s wounds impacted his defense of self-defense.

¶ 25. As the trial court correctly recognized, this Court held in Edmonds v. State, 955 So.2d 787, 792 (Miss.2007), that “Dr. Hayne is qualified to proffer expert opinions in forensic pathology.” However, the Court also stated that “a court should not give such an expert carte blanche to proffer any opinion he chooses.” Id. In Ed-monds, this Court excluded Dr. Hayne’s testimony on a two-shooter theory because it was scientifically unfounded. Id. Justice Oliver Diaz filed a specially concurring opinion that questioned Dr. Hayne’s credentials to testify as a forensic pathologist. Id. at 802.

¶ 26. In Nelson v. State, 10 So.3d 898, 903 (Miss.2009), Nelson argued that the trial court had erred by preventing his voir dire of Dr. Hayne. Citing the specially concurring opinion in Edmonds, Nelson objected to Dr. Hayne’s qualifications after Dr. Hayne had testified to his work and educational background. Id. The trial court overruled the objection because Dr. Hayne had not yet given an opinion in the case. Id. After Dr. Hayne testified about his physical findings in the autopsy, the trial court offered to allow Nelson to voir dire Dr. Hayne on his qualifications, but Nelson declined. Id. at 903-04. Later, Nelson objected to Dr. Hayne’s anticipated testimony that drag marks indicated the victim had been kidnapped, but decided to wait until Dr. Hayne had rendered that opinion to challenge its reliability. Id. at 904. Following cross-examination, the trial court gave Nelson another opportunity to voir dire Dr. Hayne as to his qualifications, but Nelson declined. Id. This Court held that:

We find that the trial court did not err by not allowing Nelson to voir dire Dr. Hayne. As the record reflects, the trial court initially denied Nelson’s objection to Dr. Hayne’s qualifications because he had not yet testified to his opinion in the case. Thereafter, the trial court gave Nelson numerous opportunities to voir dire Dr. Hayne on his opinions. However, Nelson declined to voir dire Dr. Hayne on a few occasions, and following cross-examination of the doctor, Nelson withdrew his request. Accordingly, this assignment of error is without merit.

Id. at 905.

¶ 27. Gause argues that Nelson is distinguishable, because he never declined to voir dire Dr. Hayne. However, the record reflects otherwise. Gause’s initial voir dire request was coupled with a challenge to Dr. Hayne’s ability to testify. The trial court’s ruling shows the court rejected Gause’s challenge to Dr. Hayne’s ability to testify. The trial court correctly found that Edmonds had declared Dr. Hayne qualified to testify as a forensic pathologist in the courts of this state. After the State elicited testimony from Dr. Hayne that established his education and work history, the trial court expressly afforded Gause an opportunity to voir dire Dr. Hayne as to his qualifications. However, Gause refused on the ground that his understanding of the court’s earlier ruling was that voir dire would not be permitted. Instead, Gause either could have taken advantage of the trial court’s offer of voir dire, or asked the trial court to clarify its earlier ruling. As in Nelson, Gause was given, but declined, the opportunity to voir dire Dr. Hayne. Therefore, this assignment of error is without merit. Moreover, on the basis of this Court’s holding in Edmonds, the trial court did not err by accepting Dr. Hayne as an expert in the field of forensic pathology. See Edmonds, 955 So.2d at 792.

III. WHETHER THE TRIAL COURT ERRED BY DISMISSING VENIRE PERSONS BASED ON PRIOR JURY SERVICE RATHER THAN ALLOWING THESE VENIRE PERSONS TO EXCUSE THEMSELVES IF DESIRED.

¶ 28. Gause argues that the trial court committed reversible error by excusing two potential jurors because they had served on a jury in the past two years, rather than permitting those jurors the discretion to decide whether or not to serve. During jury qualifications, the trial court asked the venire if any person had served on a jury in the past two years. Two venire persons responded that they had served on a jury together in the Circuit Court of Pontotoc County in the previous year. The trial court told each juror “You’ll be excused. You’ll be free to go.” Gause argues that the trial court erred by excusing the potential jurors, because Mississippi Code Section 13-5-25 provides a personal privilege for persons who have served within the past two years that must be claimed by the potential juror.

¶29. Mississippi Code Section 13-5-1 sets out who is competent to serve on a jury:

Every citizen not under the age of twenty-one years, who is either a qualified elector, or a resident freeholder of the county for more than one year, is able to read and write, and has not been convicted of an infamous crime, or the unlawful sale of intoxicating liquors within a period of five years and who is not a common gambler or habitual drunkard, is a competent juror. No person who is or has been within twelve months the overseer of a public road or road contractor shall, however, be competent to serve as a grand juror. The lack of any such qualifications on the part of one or more jurors shall not, however, vitiate an indictment or verdict. Moreover, no talesman or tales juror shall be qualified who has served as such talesman or tales juror in the last preceding two years, and no juror shall serve on any jury who has served as such for the last preceding two years. No juror shall serve who has a case of his own pending in that court, provided there are sufficient qualified jurors in the district, and for trial at that term.

Miss.Code Ann. § 13-5-1 (Rev.2002). According to Mississippi Code Section 13-5-23, “[a]ll qualified jurors shall be liable to serve as jurors, unless excused” for cause. Miss.Code Ann. § 13-5-23 (Supp.2010). Mississippi Code Section 13-5-25 provides that certain jurors are exempt from jury service as a personal privilege. Miss.Code Ann. § 13-5-25 (Supp.2010). The statute states, in pertinent part:

Every citizen over sixty-five (65) years of age, and everyone who has served as a grand juror or as a petit juror in the trial of a litigated case within two (2) years, shall be exempt from service if the juror claims the privilege. No qualified juror shall be excluded because of any such reasons, but the same shall be a personal privilege to be claimed by any person selected for jury duty. Any citizen over sixty-five (65) years of age may claim this personal privilege outside of open court by providing the clerk of court with information that allows the clerk to determine the validity of the claim.

Miss.Code Ann. § 13-5-25 (Supp.2010).

¶ 30. This Court has held that each potential juror must assert the exemptions provided in Section 13-5-25. Spires v. State, 10 So.3d 477 (Miss.2009) (quoting Adams v. State, 537 So.2d 891, 894 (Miss.1989)). In order for a potential juror to be excused, the individual juror must assert the privilege and ask to be excused. Id. Thus, it is improper for a trial court automatically to exclude potential jurors on the basis of their prior jury service within the past two years. Rather, a potential juror who has served on a jury within the past two years must claim the privilege. Miss.Code Ann. § 13-5-25 (Supp.2010).

¶ 31. It is error for a trial court automatically to excuse jurors on the basis of their prior jury service. Miss.Code Ann. § 13-5-25 (Supp.2010). However, this issue is procedurally barred because “a party who fails to object to the jury’s composition before it is empaneled waives any right to complain thereafter.” Myers v. State, 565 So.2d 554, 557 (Miss.1990). Gause did not contemporaneously object to the composition of the jury, and he raises this issue for the first time on appeal. In Spires, this Court held that the trial court’s erroneous disqualification of two potential jurors based on prior jury service was procedurally barred for failure to object at trial. Spires, 10 So.3d at 483. Notwithstanding the procedural bar, the Court found that the error was harmless, because Spires had not claimed any constitutional violation or that he was in any manner prejudiced by the dismissal of the potential jurors. Id.; see also Trevillion v. State, 26 So.3d 1098, 1102 (Miss.Ct.App. 2009). Similarly, Gause makes no claim of constitutional error, nor does he explain how he was prejudiced by the dismissal of the two potential jurors. Accordingly, we find that this issue is procedurally barred and, notwithstanding the procedural bar, the error was harmless.

CONCLUSION

¶ 32. The trial court erred by granting the State’s request for a jury instruction on burglary. Burglary is not a lesser-included offense of capital murder with the underlying felony of burglary, and only the accused, not the State, may request a lesser-offense instruction. Gause’s other issues are without merit. We affirm Gause’s conviction of manslaughter; we reverse and render Gause’s conviction of burglary.

¶ 33. CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. CONVICTION OF BURGLARY OF A DWELLING WITH INTENT TO COMMIT AN ASSAULT THEREIN AND ACCOMPANYING SENTENCE, REVERSED AND RENDERED.

WALLER, C.J., CARLSON AND DICKINSON, P JJ, RANDOLPH, LAMAR, PIERCE AND KING, JJ, CONCUR. KITCHENS, J, SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J, CARLSON AND DICKINSON, P JJ, RANDOLPH, LAMAR AND PIERCE, JJ.

KITCHENS, Justice,

Specially Concurring:

¶ 34. While I agree with the result reached by the majority, I write separately to express additional concerns regarding the qualification of expert witnesses and the conflicts in our law regarding the practice of excludingfexempting from juries those who have served within the preceding two years.

Qualification of Experts

¶ 35. Given the equivocal and inarticulate manner in which defense counsel sought, outside the jury’s presence, to prevent Dr. Steven Hayne’s testifying as an expert witness, it cannot be said that the trial judge was in error for not having sustained the extremely inartful objection, even though the judge apparently based his ruling on an understanding that this Court, in an entirely different and unrelated case, “... has ruled that Dr. Hayne is perfectly qualified to testify as a pathologist.” While it is true that this Court did make such an observation in one case, that should not be taken as eternal, no-nexpiring judicial anointment of Dr. Hayne as an expert pathologist for all of time and in every case in which he might thereafter be tendered to offer expert testimony in accordance with Mississippi Rule of Evidence 702. “[I]t would be absurd to conclude that one can become an expert simply by accumulating experience in testifying.” Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989). See also Tokio Marine & Fire Ins. Co. v. Grove Mfg. Co., 958 F.2d 1169, 1175 n. 3 (1st Cir.1992) (extensive experience as an expert witness “is not an automatic qualification guaranteeing admission of expert testimony”).

¶ 36. Notwithstanding this Court’s recognition of Dr. Hayne’s qualifications as an expert as they appeared in the record before this Court in Edmonds v. State, 955 So.2d 787 (Miss.2007), this witness was not thereby awarded lifetime certification as an expert in the field of pathology, or in the subspecialty of forensic pathology. Rather, each and every time that he is tendered as an expert, his credentials must be proven anew, if not stipulated by all parties, and the party or parties adverse to the litigant sponsoring Dr. Hayne, and any other proposed expert tendered by a litigant, must be given the opportunity to voir dire (in this context, cross-examine) him on his proffered qualifications as presented through the direct examination by the sponsoring party. This in-court process must have been completed before the trial judge renders a decision, in the presence of the jury, on the question of whether the witness may testify as an expert.

¶ 37. In this case, the State called Dr. Hayne to the witness stand and, after he had been sworn, the prosecutor proceeded to question him at length, in the presence of the jury, concerning his medical education and licensure, his professional affiliations, an explanation of pathology and its branches, and his experience in the field of pathology. In short, the attorney for the State conducted a rather standard examination of Dr. Hayne about his qualifications; and, although the prosecutor stopped short of actually tendering the witness as an expert in anything at all, no defense objection occurred, and the following exchange ensued between defense counsel and the trial judge:

THE COURT: Counsel, excuse me just one moment. You’ve tendered as an expert. [] If is, do you have questions of voir dire ? []
MR. SHELTON: [] No, Your Honor. It’s my understanding that the Court has already ruled on that.
THE COURT: All right. Very well. MR. FARRIS: [] That’s exactly what I was functioning on.
THE COURT: You may proceed to question him as an expert. []

(Emphasis added.)

¶ 38. Although the State neglected to tender Dr. Hayne as an expert in any field, the trial judge seemed to recognize from the contextual circumstances that this was what the prosecutor had meant to do, as evidenced by the judge’s statement, apparently to the prosecutor, “[y]ou’ve tendered as an expert.” Then, the judge correctly offered defense counsel an opportunity to examine, or voir dire, Dr. Hayne, in the jury’s presence. At that point, the witness had not been asked about anything other than his qualifications in the medical specialty of pathology; so, it was clear that the trial judge was affording defense counsel his client’s right to question Dr. Hayne in that regard, the very thing about which counsel had awkwardly attempted to object a short time earlier. However, either for want of understanding, or for some other unfathomable reason, counsel chose not to question Dr. Hayne about his qualifications. Moreover, he did not object to Dr. Hayne’s testifying as an expert pathologist when he had not been explicitly tendered by the State or accepted by the court as an expert in that field. It is elementary that defense counsel effectively waived his client’s right to voir dire Dr. Hayne on his qualifications as an expert in the field of pathology; and, similarly, he waived objection to the lack of the trial court’s formal acceptance of Dr. Hayne as an expert in any particular field. M.R.E. 103(a).

Prior Jury Service as an Exemption

¶39. The majority rightly recognizes the case law which clearly holds that a potential juror who has served on a jury within the past two years is not automatically exempt. Maj. Op. ¶ 30 (citing Spires v. State, 10 So.3d 477 (Miss.2009)) (quoting Adams v. State, 537 So.2d 891, 894 (Miss. 1989)). These cases rely on the plain language of Mississippi Code Section 13-5-25 (Supp.2009) that “everyone who has served as a grand juror or as a petit juror in the trial of a litigated case within two (2) years, shall be exempt from service if the juror claims the privilege.” (Emphasis added.)

¶40. Equally plain, however, is the mandatory language of Mississippi Code Section 13-5-1 (Rev.2002) that “no juror shall serve on any jury who has served as such for the last preceding two years.” In a footnote, the Spires opinion stated that “[t]his language applies only to the outdated practice of using tales jurors for circuit court juries.” Spires, 10 So.3d at 482 n. 4. I respectfully do not share the same understanding of Section 13-5-1, and, like the trial judge in the present case, read Section 13-5-1 automatically to disqualify venire members for such prior jury service. He and I are not alone. As one practitioner recently noted:

A[n] interesting item exists in the scheme enacted by the Legislature regarding jury selection. Potential jurors who have actually served in a completed jury trial are not qualified to serve on a jury within two years. In addition, they also have an exemption that they may claim when called to serve within two years of their last jury trial. These two situations appear mutually incompatible. Trial judges surely approach this situation differently based on their local practices. Be aware of this legal incongruity when engaging in jury selection; you never know when you may be able to use it to make a situation work to your advantage.

John Helmert, Going to Trial (Now What Do I Do?): Jury Selection in Mississippi Trial Courts, 28 Miss. C.L.Rev. 231, 236-37 (2009) (comparing Mississippi Code Sections 13-5-1 and 13-5-25) (footnotes omitted).

¶41. Nevertheless, in examining the legislative history, we find that, in 1976, the legislature effectively repealed Section 13-5-1’s language that “no juror shall serve on any jury who has served as such for the last preceding two years.” As explained in Adams, 537 So.2d at 893-94:

In the face of repeated opinions from this Court to the effect that our jury selection laws were directory and not mandatory, see, e.g., Rhone v. State, 254 So.2d 750, 752 (Miss.1971), the legislature in 1976 amended Section 13-5-25 “to clarify the personal privilege for exemption of a juror who has served within two years; and for related purposes.” Miss. Laws, ch. 464 (1976). This amendment added to Section 13-5-25 a sentence which reads:
No qualified juror shall be excluded because of any such reasons [being over sixty-five or having served on a jury within two years], but the same shall be a personal privilege to be claimed by any person selected for jury duty.
The statute makes clear that neither the circuit court — and certainly not the deputy circuit clerk — ha[s] authority to act unilaterally and strike from the jury list persons over sixty-five and who have served within the past two years.

Adams did not mention the contradictory language of Section 13-5-1; but, as the latest pronouncement of the legislature’s will, Section 13-5-25 controls. See Belk v. Bean, 247 So.2d 821, 826-27 (Miss.1971) (explaining the doctrine of “implied amendments”) (citations and quotations omitted). Thus, to clarify, venire members shall not be excused automatically from jury service for having served on a jury within the last two years. That statute is no longer in effect, and instead, prior jury service is an exemption that must be claimed by the individual venire member under Mississippi Code Section 13-5-25.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR AND PIERCE, JJ., JOIN THIS OPINION.

      . Some ambiguity surrounded the knife Gause used to stab Swords. Brittany identified a black-handled knife recovered from the woods in the trailer park as the one Gause had used to stab Swords. This knife was located in a different area from where witnesses had seen Gause go after the stabbing to throw the knife away. But Brittany stated she also had seen Gause with a silver-handled knife. Gause testified that he had used his pocket knife, which he always carried on his person, not the black-handled knife. Gause's confessions support his use of the pocket knife. Although the black-handled knife was tested by the crime laboratory, no forensic evidence linked it to Gause. Thus, evidence before the jury cast doubt on the State's theory that Gause had arrived at the trailer armed with the black-handled knife rather than with the pocket knife he habitually carried.

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

      . Another juror responded that she had served on a grand jury within the last year, and the trial court excused that juror. Gause does not complain on appeal of this juror’s exclusion.

      . The judge seems to have been addressing the prosecutor at this point.

      . This question apparently was asked of defense counsel, and indeed, it was he who responded to it.

      . Defense attorney.

      . Prosecutor.

      . Without objection, the prosecutor proceeded to do so.

      . The lawyer’s statement to the court that, "I guess I have an objection ... [to] I guess his qualifications,” certainly did not convey a "specific ground of objection.” M.R.E. 103(a)(1).


author: IRVING, P.J., GRIFFIS, P.J.,

text:
    Perry OSBORNE, Appellant v. G. Rives NEBLETT, Real Estate Investor/Developer and Glenn H. Williams, Attorney and Trustee for G. Rives Neblett, Appellees.
    No. 2009-CP-01312-COA.
    Court of Appeals of Mississippi.
    June 7, 2011.
    Perry Osborne, appellant, pro se.
    Glenn H. Williams, attorney for appel-lees.
   IRVING, P.J.,

for the Court:

¶ 1. G. Rives Neblett foreclosed a deed of trust that had been granted to him by Perry Osborne. On the day of the foreclosure sale, Osborne unsuccessfully sought injunctive relief in the Chancery Court of Bolivar County. He later sought, via a Rule 60(b) motion, reconsideration of the court’s denial of injunctive relief. This effort was likewise unsuccessful. Feeling aggrieved, Osborne appeals and raises several assignments of error; however, only the issue of whether the chancery court erred in ratifying a foreclosure sale warrants discussion, since it is dispositive of this case.

¶ 2. Because the chancery court ratified a foreclosure sale that did not comply with the publication requirements of Mississippi Code Annotated section 89-1-55 (Rev. 1999) for lands sold under mortgages and deeds of trust, we reverse and render the judgment of the chancery court.

FACTS

¶ 3. On June 80, 2000, Osborne executed a promissory note in favor of Neblett in the amount of $18,000 to purchase land in Alligator, Mississippi. In order to secure payment of the note, Osborne executed a deed of trust on the land in favor of Neb-lett. The note was to be repaid in thirty-six monthly payments of $300 and one balloon payment of $11,566.22, which was due on September 1, 2003.

¶ 4. Osborne defaulted on the note when he failed to make the final balloon payment in 2003. Neblett began foreclosure preparation by posting a notice of trustee sale at the Bolivar County Courthouse; he also delivered a notice of trustee’s sale to the Bolivar Commercial for publication. The notice was published in the November 18, 25, and December 2, 2008, issues of the paper, and the trustee’s sale was held on December 4, 2008, at 1:00 p.m. On the same day of the sale, Osborne filed a complaint in the Bolivar County Chancery Court seeking to enjoin Neblett from foreclosing on the property.

¶ 5. On February 5, the chancery court held a hearing on Osborne’s complaint. Following the conclusion of the hearing, the chancery court ratified the foreclosure sale and ordered Osborne to vacate the property within sixty days. Osborne did not appeal this decision. On March 16, 2009, Osborne filed a motion for reconsideration and requested relief under Rule 60(b) of the Mississippi Rules of Civil Procedure. In his motion, Osborne raised, for the first time, the issue of deficient publication of the foreclosure sale. The chancery court denied Osborne’s motion for reconsideration, finding that he had waived the issue of deficient publication by failing to raise it in his complaint or at the hearing on his complaint.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶7. A Mississippi appellate court employs a limited standard of review on appeals from chancery court. Corp. Mgmt. v. Greene County, 23 So.3d 454, 459 (¶ 11) (Miss.2009). As such, we “will not disturb the factual findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, [or his findings were] clearly erroneous[,] or [he] applied an erroneous legal standard.” Id. (quoting Biglane v. Under The Hill Corp., 949 So.2d 9,13-14 (¶ 17) (Miss.2007)). However, questions of law are reviewed de novo. Id.

¶ 8. Osborne argues that the chancery court erred when it validated the foreclosure sale, which did not comply with the publication requirements found in section 89-1-55. This section provides in pertinent part:

All lands sold at public outcry under deeds of trust or other contracts ... shall be advertised for three consecutive weeks preceding such sale, in a newspaper published in the county, or, if none is so published, in some paper having a general circulation therein, and by posting one notice at the courthouse of the county where the land is situated, for said time, and such notice and advertisement shall disclose the name of the original mortgagor or mortgagors in said deed of trust or other contract. No sale of lands under a deed of trust or mortgage, shall be valid unless such sale shall have been advertised as herein provided for, regardless of any contract to the contrary. An error in the mode of sale such as makes the sale void will not be cured by any statute of limitations, except as to the ten-year statute of adverse possession.

(Emphasis added). Section 89-1-55 clearly requires three weeks between the first publication and the foreclosure sale. Furthermore, failure to comply with the statute’s publication requirements renders a foreclosure sale void. In this case, Neblett sold Osborne’s land on December 4, 2008, when only sixteen days had passed since the first publication. The sale could not have been legally held until December 9, 2008, twenty-one days after the initial publication. Because the sale did not comply with the publication requirements of section 89-1-55, the sale is void.

¶ 9. Neblett contends that Osborne waived the notice issue when he failed to raise it in his initial complaint or at the February 5, 2009, hearing. However, as the statute clearly states, foreclosure sales that do not comply with section 89-1-55 are void, and Osborne’s failure to raise the issue is irrelevant because the sale is a nullity and unenforceable under the law. Furthermore, our supreme court has held that the publication requirements of section 89-1-55 may not be waived by the parties. Lee v. Magnolia Bank, 209 Miss. 804, 813, 48 So.2d 515, 517 (1950). As such, the chancery court erred in ratifying the foreclosure sale, and we reverse and render the court’s judgment. Nothing in this opinion shall be interpreted as preventing Neblett from initiating another foreclosure sale, assuming the underlying debt is still owed and a payment or payments due under the promissory note are in default.

¶ 10. THE JUDGMENT OF THE BOLIVAR COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

LEE, C.J., BARNES, ISHEE AND MAXWELL, JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, ROBERTS AND CARLTON, JJ. RUSSELL, J., NOT ■ PARTICIPATING.

GRIFFIS, P.J.,

dissenting:

¶ 11. In my opinion, the majority has confused the possibility of a void foreclosure with a void judgment.

¶ 12. We should consider whether the chancellor erred in the denial of relief to Perry Osborne under Mississippi Rule of Civil Procedure 60(b). I find that the alleged error was waived by Osborne because he failed to raise such claim before the chancellor. Therefore, Osborne is precluded from raising the issue for the first time in a post-trial motion.

¶ 13. The majority reviews the chancellor’s decision to ratify the foreclosure sale and finds that the notice was not sufficient under the statute; therefore, it was a void foreclosure. Since the foreclosure was void, the majority determines that it was error for the chancellor to ratify the foreclosure sale in the underlying judgment. The majority does not examine this appeal under Rule 60(b). Because I respectfully disagree with the majority’s legal analysis and holding, I dissent. I would affirm the chancellor’s July 9, 2009 judgment.

¶ 14. “Appellate review of Rule 60(b) motions is limited.” Jenkins v. Jenkins, 757 So.2d 339, 342 (¶ 5) (Miss.Ct.App.2000) (citing Stringfellow v. Stringfellow, 451 So.2d 219, 220 (Miss.1984)). “We will not reverse a trial court’s decision to deny relief under Rule 60(b) unless the trial court abused its sound discretion. Considerations (sic) of a Rule 60(b) motion requires a balancing between granting a litigant a hearing on the merits with the need to achieving finality in litigation.” Id. (citing Stringfellow, 451 So.2d at 220; Briney v. U.S. Fidelity & Guar. Co., 714 So.2d 962, 966 (¶ 13) (Miss.1998)). “Additionally, the allegations and indicated evidence should be such as would convince a court that what is sought is not simply an opportunity to litigate that which is already settled.” Id. (citing Askew v. Askew, 699 So.2d 515, 520 (¶ 22) (Miss.1997)).

¶ 15. On February 12, 2009, the chancellor executed a judgment based on the evidence presented at the trial of this action. This appeal is not an appeal of the February 12th judgment. However, the majority appears to review the February 12th judgment. The judgment on appeal is the chancellor’s order of July 9, 2009, which denied Osborne’s “Motion for Reconsideration, for Stay of Order and Other Relief (the “Motion”).”

¶ 16. On December 4, 2008, Osborne filed his complaint for injunctive relief. Osborne’s complaint asked for a permanent injunction that would enjoin the defendants from “granting parties a right of foreclosure until the merits and all issues of this case are resolved.” The complaint also asked: for the defendants to “show good cause that the defendant ... was justified in initiating the foreclosure proceeding,” for a determination of whether the defendant was “justified in initiating foreclosure proceedings based on the premise that an outstanding debt was owed,” for “an order for declaratory relief against the defendant,” for an “order requiring defendants ... to show cause why defendant should be granted right to foreclose,” and for “a declaration of the rights and duties of the parties.” Osborne’s lawsuit asserted claims regarding whether the defendants could properly foreclose on the subject property. The complaint was filed pro se.

¶ 17. On December 23, 2008, the defendants, G. Rives Neblett and Glenn H. Williams, answered the complaint. The answer included a denial to each paragraph. The defendants also asserted a counterclaim:

1.
That on December 4, 2008, the undersigned Glenn H. Williams, as Trustee, undertook to foreclose and did foreclose that certain Deed of Trust from Perry Osborne to Glenn H. Williams, as Trustee, for G. Rives Neblett, filed for record in Book N-422 at Page 291 in the office of the Chancery Clerk of Bolivar County, at Cleveland, Mississippi. Said Deed of Trust was foreclosed following the posting and publication of notice as required by law and personal notice given to the Debtor and Plaintiff in this action, Perry Osborne. G. Rives Neblett was the highest and best bidder at the foreclosure sale, and he did then and there on December 4, 2008, at 1:00 p.m. bid in the sum of $17,548.03. A Trustee’s Deed was subsequently prepared and executed by the undersigned Trustee, transferring title to G. Rives Neblett. A copy of said duly recorded Trustee’s Deed is attached hereto as Exhibit “A”, along with a copy of the affidavit of Publication, which is attached to the Deed. Therefore, title to the subject real property is now vested in G. Rives Neb-lett, pursuant to foreclosure of the Deed of Trust and the execution and filing of the attached Trustee’s Deed.
2.
That G. Rives Neblett has legal right to claim possession of the property described in the Substitute Trustee’s Deed, and the Plaintiff/Counter-Defendant, Perry Osborne, refuses to vacate the premise and wrongly deprives G. Rives Neblett possession of said property. Therefore, this Court should enter an Order requiring the Plaintiffi'Coun-ter-Defendant, Perry Osborne, to vacate the premises and awarding exclusive possession of the property to G. Rives Neblett.
WHEREFORE, PREMISES CONSIDERED, the Defendant/Counter-Plaintiffs pray that the Plaintiffs complaint be dismissed; and that the Court enter judgment in favor of the Defendant/Counter-Plaintiffs, directing the Plaintiff/Counter-Defendant, Perry Osborne, to vacate the subject property and awarding exclusive possession of the property to the Defendant/Counter-Plaintiff, G. Rives Neblett. Defendants/Counter-Plaintiffs pray that all costs and attorney’s fees be assessed to the Plaintiff/Counter-Defendant, Perry Osborne.
And Defendants/Counter-Plaintiffs pray for such other further and general relief as may be necessary and appropriate in the premises.

¶ 18. This responsive pleading and counterclaim asserted that not only can the defendants foreclose on the property but that they did properly foreclose on the subject property. The defendants clearly and expressly asked the chancellor to adjudicate the foreclosure, to award exclusive possession of the property, and to order Osborne to vacate the property. This pleading was properly served on Osborne. M.R.C.P. 5(b)(1).

¶ 19. Based on the pleadings, the issue of the validity of the foreclosure sale was placed in issue before the chancellor. The chancellor held a hearing on this case on February 5, 2009. There is no transcript that shows the testimony or documents admitted into evidence, the claims asserted by the parties, or the argument of counsel. It appears that there was no stenographic record made of the hearing.

¶ 20. By order dated February 12, 2009, the chancellor ruled:

THE ABOVE styled and number cause came on before the Court on February 5, 2009, on the Complaint for In-junctive Relief filed herein by the Plaintiff, Perry Osborne, and the Answer and Counter-Claim to said complaint filed herein by the Defendant, G. Rives Neb-lett; and the Court having received evidence and testimony from the parties and being otherwise advised in the premises, does hereby find and order as follows:
1. That this Court has jurisdiction over the subject matter and the parties.
2. That on June 30, 2000, Perry Osborne executed and delivered a Promissory Note and Deed of Trust to G. Rives Neblett in the original principal sum of $18,000.00; said Deed of Trust was duly filed of record in the office of the Chancery Clerk of Bolivar County, at Cleveland, Mississippi, on August 22, 2000, as evidenced by the recorded copy of same attached hereto as Exhibit “A”. Said Deed of Trust matured according to its terms on or about August 1, 2003, and it has never been satisfied and cancelled of record.
3. That upon maturity of the Deed of Trust in August, 2003, a balloon payment became due in the sum of $11,566.22, and the Plaintiff presented no evidence at the hearing to indicate that he had made any payments against the balance due under the Promissory Note since the date of its maturity in August 2003. Although Plaintiff disputes the amount of the balance existing under the Promissory Note, he admits there is a substantial balance which remains due and owing, and the Court additionally finds that real property taxes on the subject property have not been paid for two (2) to three (3) years. Therefore, there is no question that default existed under the Promissory Note and Deed of Trust prior to August 2008.
4. That on July 31, 2008, the Defendant undertook such actions as necessary to foreclose the Deed of Trust, including posting a notice at the Bolivar County Courthouse and delivering a Notice of Trustee’s Sale to the Bolivar Commercial for publication. However, upon being advised by the Plaintiff that he did not receive sufficient notice of the sale and that he wished to have an additional opportunity to determine the existing balance of principal and interest under the subject Promissory Note, counsel for the Defendant agreed to stop the foreclosure, prior to actually conducting the Trustee’s Sale of the property. The Defendant thereafter communicated with the Plaintiff in an attempt to provide the Plaintiff with all justly due credits, and an amortization schedule reflecting all credits was generated by the Defendant and provided to the Plaintiff, which indicated a balance of principal and interest as of August 31, 2008 in the sum of $17,140.93. This statement was provided to the Plaintiff, but he never issued any payment in partial or complete satisfaction of this balance.
5. That on November 13, 2008, the Defendant commenced a second foreclosure proceeding with regard to the subject property, by posting a Notice of Trustee’s Sale at the Bolivar County Courthouse and publishing notice in the Bolivar Commercial. The Notice of Trustee’s Notice of Sale set December 4, 2008 at 1:00 p.m. as the date and time of the sale, and the Plaintiff admitted at the hearing that he received a copy of the notice prior to the date of the sale. However, the Plaintiff made no attempt to issue any payment in complete or partial satisfaction of the indebtedness existing under the subject Promissory Note and Deed of Trust, and instituted no legal action to enjoin the Trustee’s sale prior to the date as set forth in the notice. The Trustee’s Sale proceeded as scheduled, and the property was struck off and sold at the Trustee’s Sale to the Defendant, he being the highest and best bidder, for the sum of $17,548.30.
6.On the date of the Trustee’s Sale but after the completion of the sale at 1:00 p.m. on December 4, 2008, the Plaintiff served the Complaint for Injunctive Relief filed in this cause. Because the Complaint for Injunctive Relief was served on the Defendant after the completion of the sale and because the Plaintiff did not attempt to obtain a Temporary Restraining Order or set a hearing prior to the date and time of the Trustee’s Sale, the filing of the Complaint had no effect on the validity of the Trustee’s Sale. The Court further finds that the Plaintiff has presented no facts or legal argument which would in any way support setting aside the Trustee’s Sale or the Trustee’s Deed executed and filed following the sale, and the Trustee’s Sale should be and it is hereby confirmed and ratified in all respects. The Defendant shall not be required to respond to the discovery requests filed by the Plaintiff two (2) days before the date set for the hearing, and the Plaintiffs complaint should be and it is hereby dismissed with prejudice.
7. That the Defendant/ C ounter-Plaintiff responded to the Plaintiffs Complaint for Injunctive Relief and filed a counter-claim asking the Court to enter an Order directing the Plaintiff to vacate the subject property, title to which is now vested in Defendant/Counter-Plaintiff, G. Rives Neblett. The Court finds the counter-claim to be well taken, and the Plaintiff/Counter-Defendant, Perry Osborne, shall vacate the property which is the subject of this proceeding within sixty (60) days from the date of this hearing. Otherwise, a Fiat shall issue to the Sheriff of Bolivar County, Mississippi, commanding him to forcibly eject the Plaintiff/Counter-Defendant, Perry Osborne, from the property which is the subject of this proceeding.
8. Each party shall bear his respective attorney’s fees and costs associated with this matter.

¶ 21. Contrary to the majority’s conclusion, I read paragraphs 5 and 6 of the judgment to rule that Osborne was given twenty-one days’ notice of the foreclosure sale. Nevertheless, the deadline for Osborne to appeal the February 12th order would have been extended until March 16, 2009, because the thirty-day appeal period actually expired on Saturday, March 14, 2009. Osborne did not appeal the February 12, 2009, order.

¶ 22. Instead, on March 16, 2009, an attorney entered an appearance on behalf of Osborne. That day, Osborne’s attorney filed a “Motion for Reconsideration, for Stay of Order and for Other Relief.” The motion asked the chancery court:

1. To reconsider its February 12, 2009 Order for the reasons stated above, to set said Order aside and allow Plaintiff to proceed on the merits of his complaint and such other amended and additional pleadings as are necessary to be filed;
2. To stay execution and enforcement of said Order under Miss. R. Civ. P. 62(b) until final consideration of this Motion;
3. Upon granting Plaintiffs Motion for Reconsideration, to allow counsel for Plaintiff to amend Plaintiffs Complaint to more clearly and artfully present the Plaintiffs claims herein, and to promptly reply to the Defendant’s Counterclaim; and
4. To grant Plaintiff such other and further relief, both general and specific, to which he might be entitled under the circumstances.

¶23. The Mississippi Supreme Court has held that “[a] motion to reconsider is treated as a motion to alter or amend judgment pursuant to Mississippi Rule of Civil Procedure 59(e).” Wilburn v. Wilburn, 991 So.2d 1185, 1191 n. 11 (Miss. 2008). Rule 59(e) requires that a motion to alter or amend judgment be filed within ten days after the entry of the judgment. As a motion to alter or amend the judgment, it was untimely filed. The chancellor did not grant relief under Rule 59. This was a correct decision.

¶ 24. Next, Osborne’s motion to reconsider cites Rule 60(b), once, in paragraph no. 12:

This Court is required to liberally construe Miss. R. Civ. P. 60(b) in deciding whether to grant Perry Osborne’s motion so that substantial justice can be achieved here. Further, Plaintiff would suggest that this motion is timely and made within a reasonable time following entry of the Court’s February 12th Order.

Rule 60(b) allows motions to be filed “within a reasonable time.” Thus, the chancellor could consider the Osborne’s motion as timely filed as a Rule 60(b) motion.

¶ 25. The chancellor determined that the issue raised in the motion to reconsider was procedurally barred. In the post-trial motion, Osborne raised for the first time that the publication of the notice of foreclosure sale failed to follow the requirement expressed by the supreme court in Donald v. Commercial Bank of Magee, 132 Miss. 578, 97 So. 12, 13 (1923), and Melchor v. Casey, 173 Miss. 67, 161 So. 692 (Miss. 1935). The chancellor specifically rejected this argument. The chancellor, in the July 9, 2009 order, ruled:

3. That the Plaintiff has presented no facts or legal arguments, not previously considered by the court, on which the Court finds it should reconsider, alter or amend the Order entered on February 12, 2009. While the Plaintiff suggests that there was a defect in the foreclosure proceedings with regard to the manner of publication, no such defect in the foreclosure proceeding was alleged in the complaint, and the issue was not raised at the hearing on Plaintiff’s complaint held on February 5, 2009. Therefore, this issue is not properly before the Court and/or all claims in this regard have been waived by the Plaintiff.

(Emphasis added).

¶ 26. Osborne’s complaint did not raise the issue that the notice of publication was defective or that the foreclosure sale was void for improper notice. In the record before this Court, this claim is first presented in the post-trial motion for reconsideration. It is fundamental that all issues be raised at the trial. In Barnett v. State, 725 So.2d 797, 801 (¶ 22) (Miss.1998), the supreme court held that issues may not be raised in a post-trial motion if the issue should have been made during the trial but was not. Issues raised for the first time after a judgment “is simply too late.” Id. In M.A.S. v. Mississippi Department of Human Services, 842 So.2d 527, 530 (¶ 12) (Miss.2003), the supreme court ruled:

“Rule 60(b) is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies.” City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So.2d 983, 986 (Miss.2001). “Further, Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984).

¶ 27. Here, the chancellor denied the motion to reconsider because he found that Osborne was procedurally barred from raising this issue for the first time in a post-trial motion or on appeal. I am of the opinion that the chancellor was within his discretion. I would affirm the chancery court’s denial of relief under Rule 60(b).

MYERS, ROBERTS AND CARLTON, JJ., JOIN THIS OPINION.

      . The Mississippi Supreme Court has held that "[t]he proper mode of computing time, where notice for a specific time is to be given before an act can be done, it [sic] to exclude the day on which the notice was given, and include the day fixed for the performance of the act." Donald v. Commercial Bank of Ma-gee, 132 Miss. 578, 583-84, 97 So. 12, 13 (1923) (quoting Hall v. Cassidy, 25 Miss. 48, 49 (1852)). Therefore, we have computed the requisite twenty-one days as starting on November 19, 2008, and ending on December 9, 2008.

      . “Pro se parties should be held to the same rules of procedure and substantive law as represented parties.” Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss. 1987). The supreme court weakened this rule in prisoner proceeds pro se appeals when it held that "we take that into account and, in our discretion, credit not so well pleaded allegations [so that a] prisoner's meritorious complaint may not be lost because inartfully drafted.” Moore v. Ruth, 556 So.2d 1059, 1061 (Miss. 1990). Then, the supreme court extended this same deference to pro se litigants in civil actions. Zimmerman v. Three Rivers Planning and Dev. Dist., 747 So.2d 853, 856 (¶ 6) (Miss.Ct.App. 1999).

      . There is no transcript that shows the testimony or documents admitted into evidence, the claims asserted by the parties, or the argument of counsel. In fact, Osborne’s complaint does not raise the issue that the notice of publication was defective or that the foreclosure sale was void for improper notice. In the record before this Court, this claim is first presented in the post-trial motion for reconsideration.
      Mississippi Rule of Appellate Procedure 10(c) provides that "the appellant may prepare a statement of the evidence or proceedings from the best available means.” This court has previously held that ”[a]bsent a record basis to determine otherwise, we presume the chancellor’s order ... was based on adequate evidence.” Thompson v. Miss. Dep't of Human Servs., 856 So.2d 739, 741 (Miss.Ct. App.2003). Osborne filed a supplemental record on appeal. Considering the entire record, there is no evidence before this Court to establish that the matter complained of on appeal was an issue before the chancellor at the February 5, 2009 hearing.

      . Osborne’s attorney moved to withdraw and was allowed to withdraw his representation by order dated August 11, 2009.