text:
    STATE of Louisiana v. Tommie C. MOLETTE.
    No. 11-KA-384.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|2On October 9, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Tommie C. Molette, with one count of possessing a weapon while in possession of marijuana in violation of LSA-R.S. 14:95(E) (count 2), one count of possession of marijuana with intent to distribute in violation of LSA-R.S. 40:966(A) (count 3), and one count of possession of cocaine in violation of LSA-R.S. 40:967(C) (count 6). On October 13, 2009, defendant was arraigned and pled not guilty to the charges.

On March 3, 2010, the trial court denied defendant’s motion to suppress statement and motion to suppress evidence. Defendant filed a supervisory writ application with this Court seeking review of the trial court’s denial of his motion to suppress evidence. On May 20, 2010; this Court denied relief. State v. Molette, 10-377 (La.App. 5 Cir. 5/20/10) (unpublished writ disposition). The Louisiana Supreme Court subsequently denied defendant’s application for supervisory writs. State ex rel. Molette v. State, 10-1332 (La.11/5/10), 50 So.3d 811.

|sOn November 15, 2010, defendant withdrew his pleas of not guilty and pled guilty to each of the three charges pursuant to State v. Crosby, 338 So.2d 584 (La.1976), thereby reserving his right to seek appellate review of the trial court’s denial of his motion to suppress evidence. That same day, the trial court sentenced defendant to concurrent sentences of 5 years at hard labor on each of the 3 counts, with the sentence on count 2 to be served without benefit of parole, probation, or suspension of sentence. Id. On November 29, 2010, the trial court granted defendant’s motion for appeal.

FACTS

In August 2009, Agent Chris Morris of the Narcotics Division and Major Crimes Task Force of the Jefferson Parish Sheriffs Office was investigating the shooting death of Roshad Smith, which had occurred on August 9, 2009. Morris received information from a confidential informant (“Cl”) that Smith’s assailant was Byron Videau. The informant also advised that Videau could be found at a certain address in a black Pontiac Grand Am, that he sells marijuana, and that he would be in possession of one of the murder weapons. Pursuant to this information, Morris, along with the informant, surveyed the location and observed a black Pontiac Grand Am backed into the driveway with occupants inside the vehicle. A black male, who the informant immediately identified as Vi-deau, then exited the residence and entered the front passenger seat of the Grand Am. At this point, Morris dismissed the informant and he and Detective Raymond Vite established surveillance of the vehicle. It was around 3:30 in the afternoon. For the next fifteen minutes, the car just sat there with nobody entering or exiting the vehicle. During this time, though, the rear passenger side window was rolled down 2 to 3 inches for about a minute and then the front passenger window was rolled down a couple of inches. Morris testified that with the windows rolled down, the | interior cabin of the car became illuminated just enough for him to determine that there appeared to be an occupant in the driver’s seat, one in the front passenger seat, and one in the rear passenger seat. Morris also testified that rolling down the windows is “very common with subjects smoking marijuana in a car. They usually like to leave the windows up to the let the smoke all fill in the car, and get high.” Morris also noted that this occurred in August when the weather is very hot — 90 degrees — and the air conditioner did not appear to be running.

As Morris continued to keep surveillance on the vehicle, another vehicle pulled up and parked next to the Grand Am in a church parking lot which is immediately adjacent to the driveway in which the Grand Am was parked. Morris then observed Videau exit the Grand Am, proceed to the driver’s window of the second vehicle, converse with the driver for a minute or two, open up the back door and lean into the car toward the front for about thirty seconds, and then return to his car where he re-occupied the passenger seat. The second vehicle then left and Morris, believing he had just witnessed a hand-to-hand narcotics transaction, attempted to follow it, but lost the vehicle in heavy traffic. He returned to the scene to reestablish surveillance of the Grand Am and, believing he now had enough to make an investigatory stop, contacted other officers for assistance.

For officer safety, the officers approached the vehicle from three different directions. With weapons drawn, Morris and Detective Vite approached the passenger side of the vehicle while another unit of officers approached the driver’s side. As Morris approached the vehicle, he observed four individuals inside who were all fixated on the police approaching from the driver’s side. Morris observed Videau in the front passenger seat leaning forward while stuffing something under his seat with his right hand. He then observed a semi-automatic pistol jammed between the console and the driver’s seat with only about two inches of the barrel factually stuck between the seat and console, leaving most of the weapon exposed and easily accessible. Morris then commanded the occupants to show their hands. All complied, but as Morris approached closer, he stated that he observed Videau glance at the gun in the console and lower his right hand. Morris then grabbed Videau by the shirt and pulled him to the ground. The other occupants were extracted from the vehicle as well.

A search of the vehicle was conducted for officer safety. In addition to the handgun stuffed between the seat and the console, the search revealed another handgun underneath the front passenger seat where Videau had been sitting, 9 grams of prepackaged marijuana for street sales under the same seat, 30 grams of pre-packaged marijuana for street sales in plain view on the driver’s floorboard, and a plastic bag in plain view in the ashtray containing 0.4 grams of a white powder. Further, Agent Morris testified that he detected the odor of marijuana, but not burnt marijuana, nor did he find a joint or any other evidence of burning marijuana.

After the occupants had been removed from the vehicle, they were all advised of their Miranda rights and handcuffed based on the presence of the gun in plain view. It was determined that the person in the driver’s seat was defendant, that the house in front of which the car was parked was where defendant resided, and that the car was registered in defendant’s family’s name. Defendant was placed under arrest for possession of a stolen firearm, possession of a firearm with a controlled substance, possession of cocaine, and possession of marijuana.

Agent Morris then proceeded to the residence where he advised defendant’s mother of the contraband found in the vehicle and sought consent to search her residence. He presented her with a consent to search form, which she executed. | r,Agent Morris presented the same form to defendant, who also signed it and stated that he had a bedroom in the house. A search of defendant’s bedroom was then conducted which revealed over 100 grams of marijuana and T-shirts and photographs with gang-related images.

In his sole assignment of error, defendant argues that the trial court erred in denying the motion to suppress the evidence because the police did not have probable cause to make an arrest, nor a reasonable suspicion to make a stop. Conversely, the State argues that the police did have a reasonable suspicion to approach the vehicle and that once contraband was observed in plain view; they had probable cause to make an arrest.

An investigatory stop may be conducted when a police officer has a reasonable articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 82-2061, 82-2120 (La.11/28/83), 441 So.2d 1195, 1198, cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The Terry standard, as codified in La. C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. State v. Dickerson, 10-672, p. 5 (La.App. 5 Cir. 4/26/11), 65 So.3d 172, 176.

Reasonable suspicion is something less than probable cause to arrest, though it is more than an officer’s mere unparticularized suspicion or hunch of criminal activity. State v. Massey, 03-1166 (La.App. 5 Cir. 1/27/04), 866 So.2d 965, 968. State v. Williams, 10-51, p. 6 (La.App. 5 Cir. 7/27/10), 47 So.3d 467, 471, writ denied, 10-2083 (La.2/18/11), 57 So.3d 330. In making the determination of whether a police officer had reasonable suspicion, a reviewing court must take into consideration the totality of the circumstances and give deference to the inferences |7and deductions of a trained police officer that might elude an untrained person. State v. Burns, 04-175, p. 5 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1076. Factors that may support a reasonable suspicion for an investigatory stop include an officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidence of crimes. State v. Martin, 99-123, p. 6 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 102.

Whether an informant’s tip creates a reasonable suspicion necessary to conduct an investigatory stop is determined under the totality of the circumstances. State v. Francois, 04-1147, p. 6 (La.App. 5 Cir. 3/29/05), 900 So.2d 1005, 1010. This Court has held that a tip by an informant can supply reasonable suspicion if it accurately predicts future conduct in sufficient detail to support a reasonable belief that the informant had reliable information regarding the illegal activity. State v. Melancon, 03-514 (La.App. 5 Cir. 10/28/03), 860 So.2d 225, 229, writ denied, 03-3503 (La.4/23/04), 870 So.2d 297. The informant’s ability to predict the person’s future behavior goes to the informant’s reliability because it demonstrates inside information and a special familiarity with the person’s affairs. Id. In addition, the tip must be corroborated. Francois, supra.

In the instant case, the confidential informant advised when and where Byron Videau would be found, the type of car in which he would be found, and that he would be in possession of a weapon and marijuana. The surveillance corroborated the time, place, and car details; and the subsequent arrests and search confirmed the presence of weapons and marijuana. Additionally, the surveillance revealed the suspicious activity of the occupants sitting in the car with the windows rolled up on a hot August day and periodically lowering the windows only a few inches, which, based on his six and one half years of experience as a narcotics officer, Agent Morris found to be indicative of smoking marijuana. Further, Agent |sMorris observed what experience told him was a hand-to-hand narcotics transaction.

We find that the tip from the confidential informant in the instant case contained predictive information from which the officers could reasonably determine that the informant had “inside information” or a “special familiarity” with defendant’s affairs. We conclude that this corroborated information from the Cl, in conjunction with Agent Morris’s observations on the scene, were sufficient to provide the officers with the requisite reasonable suspicion to justify the officers’ approach of the parked vehicle.

Furthermore, we find that the police were justified in approaching the vehicle with their guns drawn in light of the facts that they had been informed that one of the occupants was involved in a murder, that he would be armed, that he sells marijuana, and this Court’s recognition that guns, drugs, and violence often go together. See United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 684, 83 L.Ed.2d 604 (1985) (finding the use of a drawn weapon was permissible in an investigatory stop when the suspects had been reported to be armed and dangerous); State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, 1284 (investigatory stops may be accompanied by features normally associated with an arrest, e.g., use of drawn weapons and handcuffs).

Having determined that the officers had a reasonable suspicion to justify their approach with weapons drawn, the next issue is whether the facts were sufficient to elevate the officers’ reasonable suspicion to probable cause in order to justify the arrests of the occupants and the search of the vehicle.

IgA warrantless arrest must be based on probable cause. Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonable trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed or is committing a crime. State v. Bazley, 09-358, p. 28 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 25, writ denied, 11-0282 (La.6/7/11), 63 So.3d 1039.

Prior to even approaching the vehicle, Agent Morris had already corroborated some of the information provided by the Cl, had observed the suspicious activity of the occupants sitting in the car with the windows rolled up on a hot August day, and had observed what he believed to be a hand-to-hand narcotics transaction. As he neared the vehicle, Agent Morris then observed one of the occupants stuffing something under his seat and a semi-automatic pistol jammed between the console and the driver’s seat. Once he observed the gun in plain view in the vehicle, Agent Morris’s reasonable suspicion of criminal activity ripened into probable cause that a crime had been or was being committed. See, State v. Hunt, 09-1589, p. 10 (La.12/1/09), 25 So.3d 746, 754.

After extracting the occupants from the vehicle and detaining them for officer safety, Agent Morris detected the odor of marijuana, and observed in plain view pre-packaged marijuana on the driver’s floorboard and a plastic bag of cocaine in the ashtray. We find that these pieces of evidence were properly seized pursuant to the plain view doctrine, which provides that police may seize evidence when there is prior justification for an intrusion into the protected area, and it is immediately apparent, without close inspection, that the items seized are evidence or contraband. State v. Tate, 09-619, p. 12 (La.App. 5 Cir. 2/9/10), 33 So.3d 292, 300-01.

IiqAs to the second gun and marijuana found under the front passenger seat, we find that these pieces, of evidence were lawfully seized pursuant to the automobile exception. This Court has recognized that the Fourth Amendment allows police to search a vehicle absent a warrant if a car is readily mobile and probable cause exists to believe it contains contraband. State v. Francois, 04-1147, p. 11 (La.App. 5 Cir. 3/29/05), 900 So.2d 1005, 1013; accord State v. Long, 03-2592, p. 10 (La.9/9/04), 884 So.2d 1176, 1183 n. 6, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005).

Here, defendant’s vehicle was readily mobile, as it was backed into the driveway, and the officers had probable cause to believe contraband was contained inside because they had already discovered other contraband in plain view in the vehicle. Thus, we find that the search of the vehicle was justified under the automobile exception and the evidence seized as a result was likewise legally obtained.

As to the marijuana and other items seized from defendant’s bedroom, we also find that these were lawfully seized. Consent to search is one of the recognized exceptions to the warrant requirement, where the consent is freely and voluntarily given by a person who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected. State v. Nicholas, 06-903, p. 8 (La.App. 5 Cir. 4/24/07), 958 So.2d 682, 687. Consent may be given orally or in writing. State v. Gomez, 06-417, p. 7 (La.App. 5 Cir. 11/28/06), 947 So.2d 81, 86. The State has the burden of proving the consent was given freely and voluntarily when it relies on consent to justify a warrantless search. Nicholas, 06-903 at 8, 958 So.2d at 688. Voluntariness is a question of fact to be determined by the trier-of-fact under the totality of the circumstances. Id.

|T1In the instant case, both defendant and his mother voluntarily signed a consent to search form, consenting to a search of the residence. As a result, we find that the contraband in defendant’s bedroom was lawfully seized.

It is well-settled that if evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Williams, 10-51 at p. 5, 47 So.3d at 471. Because the evidence in this case was obtained as a result of a lawful search and seizure, we determine that it was properly admitted at trial. Therefore, since the trial court is afforded great discretion when ruling on a motion to suppress and its ruling will not be disturbed absent an abuse of its discretion, State v. Rogers, 09-13, p. 9 (La.App. 5 Cir. 6/23/09), 19 So.3d 487, 493, writ denied, 09-1688 (La.4/9/10), 31 So.3d 382 (citations omitted), we find that the trial judge did not abuse his discretion in denying defendant’s motion to suppress the evidence. This assignment lacks merit.

ERROR PATENT DISCUSSION

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990) regardless of whether defendant makes such a request. Upon review of the record, we have discovered no error patent which requires corrective action.

DECREE

Accordingly, for the reasons assigned herein, the conviction and sentence of defendant Tommy Molette, are affirmed.

AFFIRMED

      . Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

      . See State v. Thomas, 08-521, p. 9 (La.App. 5 Cir. 1/27/09), 8 So.3d 646, 653, writ denied, 09-0391 (La.12/18/09), 23 So.3d 928.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cedric D. REED.
    No. 2011-K-1026.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 2011.

      Richard Bourke, Louisiana Capital Assistance Center, New Orleans, LA, for Cedric Reed.
    Leon Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge PAUL A. BONIN).
   PATRICIA RIVET MURRAY, Judge.

liThe defendant, Cedric Reed, seeks review of the district court’s summary denial of his motion to correct an illegal sentence. Mr. Reed contends that the sentence imposed upon him as a habitual offender pursuant to La. R.S. 15:529.1 is an illegal sentence, subject to challenge at any time under La.C.Cr.P. art. 882, because the sole predicate offense relied upon for the habitual offender adjudication was a misdemeanor. He argues, therefore, that the district court erred in denying his motion without affording him a hearing, and requests a remand for a hearing. We agree, reverse the district court’s ruling, and remand this matter for a hearing on Mr. Reed’s motion.

STATEMENT OF THE CASE

In April 1999, Mr. Reed pleaded guilty to attempted armed robbery and admitted to the multiple bill of information. In accordance with a negotiated plea agreement, the district court sentenced Mr. Reed as a multiple offender to twenty-five years at hard labor with credit for time served without benefit of parole, probation, or suspension of sentence. Mr. Reed did not appeal his conviction and sentence.

pin June 2011, Mr. Reed filed his motion to correct an illegal sentence pursuant to La.C.Cr.P. art. 882, alleging that the predicate offense used to multiple bill him was not a felony conviction as required by La. R.S. 15:529.1 A. Without a hearing, the district court denied Mr. Reed’s motion, reasoning that the twenty-five year sentence Mr. Reed received as a habitual offender was within the sentencing range for the crime of attempted armed robbery to which he pled guilty. This application for supervisory writ to review that ruling was timely filed.

DISCUSSION

In ruling on a motion to correct an illegal sentence, a district court is required to decide if the motion states a valid claim. Because the twenty-five year sentence imposed upon Mr. Reed as a habitual offender was within the sentencing range that could have been imposed for the underlying crime, the district court ruled that his was not an illegal sentence and denied the motion for failing to state a claim.

As noted by the district court, Mr. Reed could have been sentenced to forty-nine and one-half years for attempted armed robbery, the underlying offense to which he pled guilty. La. R.S. 14:27 and 14:64. However, Mr. Reed was not sentenced under those statutes. He was sentenced under the habitual offender statute, which imposes conditions on a sentence beyond the number of years to be served. Consequently, the sentence imposed upon Mr. Reed as a habitual offender carries with it consequences that would not have flowed had he been sentenced to the same twenty-five years for the underlying crime. The district court’s reliance Ron the number of years imposed in summarily denying his motion to correct an illegal sentence was misplaced.

Mr. Reed contends that the predicate offense for which he was sentenced as a habitual offender was a misdemeanor rather than a felony as required by statute, and, therefore, his sentence, imposed under the habitual offender statute, is illegal. He relies upon State ex rel. Wilson v. Maggio, 422 So.2d 1121 (La.1982), which he contends is on all fours with this case, to support his contention.

In Wilson, the Louisiana Supreme Court held that the use of a misdemeanor as a predicate offense to multiple bill a defendant as a habitual offender resulted in the imposition of an illegal sentence. The predicate offense in the Wilson case was a federal felony conviction that was only a misdemeanor under Louisiana law. Because the habitual offender statute requires that a federal conviction be classified as a felony under Louisiana law to be used as a predicate offense, the Supreme Court held that the district court had erroneously considered the federal offense as a predicate offense. The Supreme Court further concluded that because of its decision to vacate the federal offense as a predicate offense the newly calculated cleansing period required that the other predicate offense be vacated. The Supreme Court still further concluded that because of its decision to vacate both of the relator’s predicate offenses the “relator should not have been adjudicated a multiple offender and the resulting fifteen year sentence was illegal.” Wilson, 422 So.2d at 1124. Dismissing the relator’s seven year delay in raising the issue and |4the denial of his prior writ application raising the same issue, the Supreme Court reasoned that “an illegal sentence may be corrected at any time.” Id. at 1125 (citing La.C.Cr.P. art. 882).

In this case, as in the Wilson case, Mr. Reed’s motion to correct an illegal sentence is based on the district court’s erroneous consideration of a misdemeanor offense as a predicate offense. As in the Wilson case, if the predicate offense is vacated, Mr. Reed’s sentence as a habitual offender is illegal. As in the Wilson case, Mr. Reed properly raised this claim under La.C.Cr.P. art. 882; and his twelve year delay in raising this claim therefore is of no moment.

The State’s contention that State v. Merschal, 499 So.2d 360 (La.App. 4th Cir. 1986), dictates a different result is misplaced. In Merschal, this court distinguished the Wilson case on the basis that the defendant in Merschal, unlike the relator in Wilson, effectively pled guilty to being a multiple offender. As a result of that guilty plea, this court held that the defendant could not raise on appeal the issue of the sufficiency of the evidence to support the multiple offender finding. In a footnote, this court reserved the defendant’s right to challenge the multiple offender finding in an application for post-conviction relief. Merschal, 499 So.2d at 362, n. 2. This court in Merschal, however, never addressed the applicability of La.C.Cr.P. art. 882.

This case is distinguishable from one in which a defendant who should have been adjudicated a third offender is adjudicated a fourth offender, and the sentence imposed is within the sentencing range for either a third or fourth offender. Under that scenario, if one of the predicate offenses is vacated, the defendant is still .[¿correctly sentenced as a habitual offender. Addressing that scenario, the Louisiana Supreme Court in State ex rel. Carthan v. State, 10-2199 (La.10/7/11), 71 So.3d 299, denied the relator’s writ application reasoning that “[bjecause the statutes in effect at the time he committed the underlying offense authorized a life sentence based on relator’s status as a third or fourth offender, his sentence was not rendered illegal as a result of the vacation of one of the predicate convictions upon which his habitual offender adjudication rested.” Id. (citing La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. Cf. La. C.Cr.P. art. 882; State v. Singleton, 09-1269, pp. 1-2, (La.4/23/10), 33 So.3d 889, 889-90).

For the forgoing reasons, the defendant’s writ application is granted. The district court’s ruling summarily denying the motion to correct an illegal sentence is reversed. This matter is remanded to the district court for a hearing on the motion. Appointed counsel, Richard Bourke, is relieved from further representation of the defendant; and the district court is instructed on remand to appoint counsel for the defendant.

WRIT GRANTED AND REMANDED WITH INSTRUCTIONS

      . As Mr. Reed points out, the additional consequences that flow from being sentenced under the habitual offender statute include the following:
      • La. R.S. 15:529.1 G providing that "[a]ny sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence.”
      • La. R.S. 15:571.3 C providing that ”[d]im-inution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if any of the following apply: (1) The inmate has been sentenced as an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1.”
      • La. R.S. 15:574.22 G providing that the following persons shall not be eligible for review by a Risk Review Panel: "(4) A person sentenced as a habitual offender under R.S. 15:529.1 where one or more of the crimes for which the person was convicted and sentenced under R.S. 15:529.1 is a crime of violence defined or enumerated in R.S. 14:2(B)."


author: KING, Justice,

text:
    Brian HOLLIMAN v. STATE of Mississippi.
    No. 2010-KA-00397-SCT.
    Supreme Court of Mississippi.
    Dec. 1, 2011.
    Rehearing Denied Feb. 23, 2012.
    Steven E. Farese, Sr., Ashland, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory Scott Stuart, attorneys for appellee.
    Before DICKINSON, P.J., CHANDLER and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. This is an appeal from the Circuit Court of Lowndes County, in which Brian Holliman was convicted of the murder of his wife, Laura-Lee Holliman, and sentenced to life in the custody of the Mississippi Department of Corrections. Aggrieved, Brian appeals to this Court. Finding that the prosecutor made an impermissible golden-rule argument to the jury and that the trial court failed to instruct the jury to disregard the argument, we reverse and remand for a new trial consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Brian and Laura were married in December 2005. On October 25, 2008, Laura died in her home from a single shotgun wound to the left side of her face. On October 29, 2008, a warrant was issued for Brian’s arrest, and on February 2, 2009, he was indicted for Laura’s murder. On November 30, 2009, Brian’s trial began.

¶ 8. The State first called Freda Stacy, Laura’s grandmother, to testify. Stacy testified that Laura suffered from a variety of medical problems, including migraine headaches. According to Stacy, on October 21, 2005, she took Laura to a chiropractor, who treated the tension associated with the headaches. Stacy testified that, on the way to the chiropractor, Laura told her that she had planned to divorce Brian, and she had filed “some sort of papers,” but Brian had thrown them away. According to Stacy, while they were leaving the chiropractor’s office, Brian had called Laura continuously, and the two had argued during each call. Stacy testified that when they arrived back at Laura and Brian’s home, the couple continued to argue. Shortly after arriving home, Laura left to take her sister to cheerleading practice. Stacy testified that she stayed and spoke with Brian, who told her that he thought Laura was cheating on him.

¶ 4. Lee Ann Bradford, a close friend of Laura’s, was the State’s second witness. Bradford also testified that Laura had been unhappy in her marriage. According to Bradford, Laura explained that she and Brian had been fighting; one fight had resulted in bruising along her arm, and another fight had resulted in Brian locking her in a closet. Bradford testified that she had seen Laura at a cheerleading event on the morning of her death, and Laura had said that she had given Brian divorce papers that morning. Bradford testified that Brian, who was sitting in the stands, continuously called Laura from his cell phone during the event. Bradford testified that Laura had returned home after the cheer-leading event, and that they had made plans for later that evening.

¶ 5. The State called Steven Hatcher, a lieutenant with the Lowndes County Sheriffs Office, as its next witness. Lieutenant Hatcher and town marshal Ben Kilgore were the first responders to the emergency call reporting a suicide at the Holliman residence. Lieutenant Hatcher testified that, upon arrival, he saw Laura lying in a large pool of blood outside her bedroom closet; a wood-frame-pump shotgun lay beside her. Both Hatcher and Kilgore testified that Brian had told them that he had been outside with the couple’s children when he heard a gun shot, went inside, and discovered Laura had committed suicide.

¶ 6. Eli Perrigin, a detective with the Lowndes County Sheriffs Office, also testified. Perrigin had arrived at the Holli-man house shortly after Hatcher and Kil-gore. Perrigin also testified to seeing Laura lying in a pool of blood outside her bedroom closet door. During Perrigin’s testimony, the State introduced photographs of the injuries suffered by Laura. Perrigin testified that he had observed two injuries to Laura-a shotgun wound on the left side of her face, and one of her fingers was blown backwards and attached by a piece of skin. According to Perrigin, there was soot along both injuries consistent with the choke, or vents, on the particular shotgun found near Laura’s body. Perri-gin testified that the particular shotgun is vented, and when the gun was fired, hot air and gas were expelled through the vents and created a specific pattern of soot.

¶ 7. After evaluating the scene, Perrigin had asked Brian to come to the sheriffs office and provide a statement whenever it was most convenient. Perrigin had offered Brian a ride to the sheriffs office, and Brian, along with his brother, had accepted. Brian had provided a statement to Perrigin and described Laura’s death as a suicide.

¶ 8. Perrigin testified that, on October 28, 2008, he was notified that the pathologist had completed the autopsy, and the results suggested that Laura’s death was a homicide. According to Perrigin, he requested that Brian return to the sheriffs office to give another statement. Perrigin testified that, on October 29, 2009, he was present when Brian gave his second statement. During the second statement, Brian stated that Laura’s death was the result of an accident. Brian explained that he had entered his bedroom, observed that the shotgun had been removed from its usual place, and found Laura in the closet on her cell phone. Brian explained that he had picked up the gun in an effort to prevent Laura from committing suicide. Brian’s statement reads: “In the process of talking, I was bringing the gun down leveling it off with both hands pointed towards [Laura]. The barrel touched her upper body, and she grabbed hold of the barrel. She pushed the barrel away from her, and the gun went off.” Brian then admitted to placing the gun near Laura’s body to make her death appear to be a suicide. Perrigin testified that Brian was allowed to leave the sheriffs office after he had provided his statement.

¶ 9. On October 29, 2008, a warrant was issued for Brian’s arrest. Perrigin testified that, once Brian was arrested and escorted to the office, he was given his Miranda rights. Brian signed a waiver of his rights and provided the officers with a third statement. Perrigin testified that, in Brian’s third statement, Brian admitted: “On purpose I pointed the gun at Laura to scare her ... she hit the gun and I was jarred and the gun went off.”

¶ 10. Perrigin was questioned regarding whether Laura’s death could have been the result of an accident. Perrigin responded and stated, “... a gun just don’t go off ... you got to have your finger on the trigger, and the gun has to be loaded, and the trigger had to be pulled.” According to Perrigin, that particular type of shotgun would not fire without a round in the chamber. This would require an individual to inject the round into the chamber, pull the port end down, and pull it back up. Perrigin testified that only one round had been loaded into the chamber.

¶ 11. The State then called Lisa Funte, medical examiner for Shelby County, Tennessee’s Regional Forensic Center, who testified that Laura’s autopsy revealed two prominent injui'ies — a gunshot wound to the left side of her face and an injury to her right-hand ring finger. Funte testified that the finger was fractured and almost completely amputated, with gray-black discoloration, consistent with soot. Funte testified that the wound to Laura’s hand was “consistent with an injury to the finger from gas and gunshot residue emitted from the muzzle of the gun at the time the gun was shot.” According to Funte, the injury most likely occurred when Laura “was pushing or slapping the gun away.”

¶ 12. Two witnesses, Heather Cole and Sara Holliman, were called in Brian’s defense. Cole, Brian’s friend, testified that Laura was depressed because of her medical problems and had become withdrawn from friends and family. Cole testified that, on the morning of Laura’s death, Laura had asked Cole to make sure the cheerleaders were taken care of for the rest of the year. Sara, Brian’s mother, also testified that Laura had seemed depressed and withdrawn.

¶ 13. In rebuttal, the State introduced testimony from Laura’s co-workers and friends, and each denied the claims that Laura was depressed. Angela Jones, Laura’s friend, testified that, on the day of Laura’s death, Laura had told her that she had given Brian divorce papers. According to Jones, Laura had called her later that day and said that she was in the closet because she was upset with Brian. Katie Godfrey, Laura’s sister, testified that Laura was not depressed, but that Laura and Brian had been having problems. At the time, Katie was living with Laura and Brian. During the week preceding Laura’s death, Katie had witnessed an argument between the couple. According to Katie, Laura was trying to leave the house and Brian had yelled at Laura and locked her in the bedroom closet.

¶ 14. On December 4, 2009, the jury returned the following verdict: “We, the jury, find the Defendant guilty of murder.” Brian was sentenced to life in prison. On January 15, 2010, Brian filed a motion for judgment of acquittal notwithstanding the verdict or in the alternative, a new trial. On March 3, 2010, the trial court denied the motion. On March 10, 2010, Brian filed his notice of appeal.

DISCUSSION

¶ 15. Brian appeals the following issues for this Court’s review: (1) whether the verdict is supported by sufficient evidence, (2) whether the trial court erred in denying his motion for change of venue, (3) whether the jury was properly instructed, (4) whether the prosecutor made an impermissible golden-rule argument, (5) whether the trial court erred by admitting post mortem photographs into evidence, (6) whether the trial court erred in admitting his two written statements into evidence, and (7) whether the trial court erred in failing to quash the indictment. Finding reversible error as to issue four, we decline to address the other issues, as issue four is dispositive of this appeal.

Golden-Rule Argument

¶ 16. Brian argues that the trial court erred in allowing the prosecution, over objection, to make an impermissible golden-rule argument to the jury. Specifically, Brian indicates the following argument was impermissible:

In the statement that [Brian Holliman] gave on October 29th ... this defendant admitted — I believe the exact words in the statement are: I purposely pointed my shotgun at Laura-Lee Holliman. He purposely pointed a loaded shotgun with the safety off and his finger on the trigger at another human being.
I grew up with guns. And I’m not one to play with them. If I did not have the respect with them that I do, then perhaps it would have been a dramatic thing for me to take that shotgun over there, open the breach, and walk in front of the jury and point it at each and every one of you. What would you have felt if I had done that, Ladies and Gentlemen?
[Brian’s counsel objected and was overruled.]
Let’s change that a little bit. Let’s say that I took a round and put it in the chamber and then walked before you, once again pointing it at each and every one of you, with the safety off and my hand not on the trigger, how would you feel? Would you squirm? You think you might duck?
Let’s suppose that I take that loaded shotgun, I point it at you in your face, and I knock the safety off. I still don’t have the finger on the trigger.
[Objection was continued by Brian’s counsel, and again, overruled.]
How would you feel then? Would you feel threatened, Ladies and Gentlemen? Would you think that I was irresponsible or worse? Would you feel the danger and the presence of it?
Let’s say that I put the round in the gun, and I take the safety off, and I put my finger on the trigger, and I point it at you as I come down this line. You’d be outraged. And you should be. Because what I’m doing when I do that is creating a situation that fatal consequences may very likely occur.

¶ 17. The trial court ordinarily is in the best position to determine if an alleged improper comment had a prejudicial effect; and therefore, absent an abuse of that discretion, the trial court’s ruling will stand. Outerbridge v. State, 947 So.2d 279, 285 (¶ 20) (Miss.2006) (citation omitted).

¶ 18. A golden-rule argument, in which an attorney asks the jurors to put themselves in the place of one of the parties, is prohibited. Wells v. State, 698 So.2d 497, 507 (Miss.1997). This Court previously has held:

[Cjourts of this country have uniformly held that human beings are unreliable judges of their own affairs; that it is expecting too much of a man to weigh his own case fairly and impartially, since most humans want their own cases to be decided in their favor. It follows, therefore, to advise jurors to decide a case as they would want it decided if they or them loved ones were the litigants is to establish a false standard for the basis of judgments.

Danner v. Mid-State Paving Co., 252 Miss. 776, 173 So.2d 608, 611 (1965).

¶ 19. In this case, the prosecutor erred in repeatedly asking the jurors how they would feel to have a loaded shotgun pointed in their faces. The prosecutor essentially requested that each juror put himself or herself in the place of Laura during the fatal altercation, which was an egregious display of prosecutorial misconduct. This Court previously has determined that the use of a golden-rule argument is reversible error. Id. at 788, 173 So.2d 608. In the case at hand, the prosecutor’s argument was a blatant violation, and the trial court erred in overruling both objections from Brian’s counsel. Accordingly, the prosecutor’s error is fatal, and this Court reverses the trial court’s judgment and remands for a new trial.

¶ 20. The transgression of this long-stated rule by counsel is of particular concern. Accordingly, this Court feels it appropriate to restate its admonition to counsel set forth in Stringer v. State, 627 So.2d 326, 330 (Miss.1993):

We take this opportunity to caution the bench and bar of a growing number of reversals caused by inefficient, ineffective or unprofessional conduct by counsel. Retrials of criminal proceedings are extremely costly to the taxpayers of this State. It is not beyond the authority of this Court to assess the entire costs of a new trial to the attorney whose conduct made the trial necessary in those cases where this occurs. Personal liability for this cost may well be imposed by this Court in the future and it will be done with an even hand, applied both to the private attorney and the attorney representing the State. This Court is increasingly unwilling to cast the burden of incompetence on innocent taxpayers and considers this notice to the bench and bar that in the future we may not do so.

Id.

¶21. While this Court has been cautious about the imposition of such sanctions, that caution should not be taken by counsel as an unwillingness to do so.

CONCLUSION

¶ 22. Because the prosecutor made an impermissible golden-rule argument to the jury, we reverse the judgment of the trial court and remand this case for a new trial.

¶ 23. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

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


author: CARLSON, Presiding Justice,

text:
    Damien ANDERSON a/k/a Damien Wise v. STATE of Mississippi.
    No. 2010-KA-01052-SCT.
    Supreme Court of Mississippi.
    Feb. 2, 2012.

      Adrienne Annett Hooper-Wooten, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Damien Anderson, also known as Damien Wise, was convicted of murder by the Circuit Court of Holmes County, Mississippi, in an action arising from the homicide of Darnell “Sporty” Smith. Anderson contends that the circuit court erred when it refused to grant a jury instruction on the lesser-included offense of manslaughter. Anderson states that the trial court improperly forced the defense to choose between manslaughter and self-defense instructions. However, because no reasonable jury could have found the defendant guilty of the lesser-included offense, we find no error and affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On the night of August 16, 2009, Smith and Anderson were present at the Barnyard Club located on Bowling Green Road in Durant in Holmes County. Whether Smith and Anderson engaged in a verbal altercation is in dispute. Whether Smith gestured as if he were going to reach for a gun is also in dispute. Smith was then shot several times and died of the wounds received. In a statement to Durant police, Anderson confessed to at least some of these shootings. Both Smith and Anderson were legally intoxicated at the time of Smith’s death.

¶ 3. On or about December 8, 2009, Anderson was indicted for the murder of Smith. The case was tried on May 10-11, 2010. Several witnesses testified, but the defense called only one witness, Tiffany Owens. Owens was not cooperative with defense counsel, and the defense moved for Owens to be treated as a hostile witness, but this request was denied. In addition, Anderson, who did not testify at trial, submitted to questioning from Durant police following his arrest and after being read his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Captain Sam Chambers of the Holmes County Sheriffs Department read portions of his statement at trial.

¶ 4. Police interviewed Anderson on August 19, 2009. In that interview, Anderson contradicted himself repeatedly. Initially, Anderson said that, as patrons departed the club to watch a fight, Smith bumped into him, went for a gun, and then “he got shot.” Anderson denied shooting Smith. When asked if he and Smith had had a longtime vendetta against each other, Anderson responded, “something like that, yeah.” Captain Chambers noted at trial that he had asked Anderson about a “vendetta” with Smith because of “something going on between Goodman and Durant, young men.” He explained of these two groups of men, “[t]he ones that I don’t have in jail, they’re in prison. The ones that are not in prison is [sic] paralyzed.”

¶ 5. In the same interview, Anderson admitted to having shot Smith one time. Shortly thereafter, however, Anderson claimed that he never shot Smith, and that his admission had been a mistake. Pressed further, Anderson said, “I shot one time. I don’t know how many times I shot. I’m gone [sic] say it like that. I don’t know how many times.” Anderson then commented that he “was just shooting toward his way.” Anderson claimed that Smith had pulled a gun on him at the Barnyard before and that he “can’t take it from him no more,” and then revealed a history of mutual antagonism between the two of them that arose when Smith got into a fight with Anderson’s cousin, in Chicago.

¶ 6. Anderson was asked how many guns he saw, and he indicated “a bunch of guns,” and when asked to clarify, answered, “I’ll just say his, I guess.” Anderson said he didn’t know what type of gun he had used to shoot Smith, since he “got the gun off the ground.” Anderson said that he was brought to the club by a female, but that because he was tipsy, his memories were blurry, and he did not remember the female’s identity. Anderson then claimed to have shot Smith four times.

¶ 7. Lastly, Anderson claimed that he and Smith had had “a few words” outside the club, and that after this confrontation, Anderson had shot Smith because he thought Smith was about to shoot him. Captain Chambers stated at trial that he calculated that Anderson had changed his story “[t]hree or four times” during the interview.

¶ 8. Dr. Annie Gruszecki, a forensic pathologist, testified at trial that Smith had died of ten gunshot wounds. While she indicated that some of the shots, especially one to the brain and another to the abdomen, were especially likely to have been fatal, she indicated that all ten of the gunshot wounds “[were] potentially fatal, some more immediately so than others.” One of those wounds was surrounded by soot. Dr. Gruszecki testified that this meant the bullet was fired at Smith from no more than two inches away, and as close as actual contact. One of the shots was a medial shot, which indicated that either the shooter was standing above Smith or Smith was lying down when that shot was fired. Dr. Gruszecki also testified that Smith had a high blood-alcohol content at the time of his death.

¶ 9. An eyewitness, Kelcey Winters, who was called for the State, testified that he was standing outside the club and saw someone hand Anderson a gun. When Smith exited the club, Winters observed Anderson “just [run] on and [start] shooting.” Winters noted that just before this incident, an unrelated commotion had occurred outside. Winters said that Anderson was about two or three feet from Smith when he first pulled the trigger. To Winters, it appeared that Smith “had threw [sic] his hands up as to say like ‘stop’ or ‘hold, wait.’ And [Anderson] shot him[.]” Thereafter, Winters ran for cover, but “heard rapid fire, just like numerous shots[.]” Winters said that Smith did not have a weapon, and that the club from which Smith had just exited had checked patrons for weapons by patting them down. Winters heard no conversation or argument between Anderson and Smith before the shooting, and did not see any apparent exchange of words, although he was looking at them.

¶ 10. Another eyewitness called by the State, Nathaniel Foster, had a slightly different perception of events. In contrast to Winters, Foster observed Smith outside the club before the shooting and saw Anderson coming out of it. He saw Smith and Anderson “having words with each other.” When asked if cursing or screaming was involved, Foster said “[i]t looked like ... [Smith] was kind of backing up, and they were still talking to each other.” Foster testified that he turned away before the shooting began “[b]ecause it looked like something just wasn’t going right,” and that he wanted to alert others. Foster testified that he “had been around too many things. Well, people get to moving around, and I can tell something ain’t right.” Afterward Foster heard gunshots. The next time Foster saw Smith, his body was slumped over. When asked if he knew whether Smith and Anderson got along, Foster, who characterized himself as Smith’s best friend, stated “I guess not.”

¶ 11. Donald Lee Winters (Donald) accompanied Nathaniel Foster to the Barnyard Club. Donald observed Smith and Anderson “arguing ... having words as we walked up to the building.” He continued: “And I think [Foster] had brought to my attention that something was going on, because I really didn’t think it was anything serious, and the next thing I know, I saw the gun shoot.” Donald later characterized this incident as an “argument, conversation, I mean heated argument, I guess. I don’t know.” Donald saw the shooter and identified him as “the young man ... who I later found out was the defendant.” Donald believed that Anderson was three to five feet away from Smith when he began shooting. He heard “maybe about eight, nine” gunshots and characterized the them as rapid-fire. As the shooting began, Donald saw Smith “motionf ] like he was ducking and trying to run.” Donald did not believe that Smith exhibited any conduct indicating that he was carrying a weapon.

¶ 12. Another eyewitness, Jerry Bank-head, Jr., testified that he saw Anderson shoot Smith. Asked about Smith’s behavior during the incident, Bankhead testified that it “look[ed] like he was backing up, trying to get back.” When asked whether any arguing took place prior to the shooting, Bankhead responded “[n]ot that I know of. That’s why I didn’t think nothing [sic] was going on. I didn’t see nobody [sic] arguing.” Bankhead did admit that Smith “looked like he had been drinking.” Bankhead ran when the shooting began, but heard “a shot. And then it was like a pause and a couple of more shots.” After Bankhead’s memory was refreshed with his interview with Durant police, Bank-head recalled describing the shooting in this way: “He walked dead up on him and shot him.” Bankhead recalled the first shot being “[i]n the face. Right in the face. I know that it had to have been in the face, because he had pointed it dead in his face when he first shot.”

¶ 13. The defense called only one witness at trial, Tiffany Owens. Defense counsel requested the trial court to allow the defense to treat Owens as a hostile witness, but the request was denied. While it is difficult to judge Owens’s tone from the transcript, defense counsel stated to the court that, “due to her attitude when I’m asking her these questions, it’s obvious that she has a problem responding to my questions.” Smith was the alleged father of Owens’s child. However, at the time of his death, Smith had denied paternity of this child. Owens was asked by police not to attend Smith’s funeral since “[she] and [Smith’s] baby’s mama got in a fight.” Owens was also Anderson’s cousin.

¶ 14. Owens testified at trial that Smith and Anderson “passed a couple of words; [Smith] was reaching but he never put his hand in his pocket or nothing [sic].” Asked to clarify her comment as to the “reaching,” Owens elaborated: “[h]e was reaching. I didn’t say he was reaching for a gun in my statement. He was just reaching down. He never pulled anything out.” The defense attempted to impeach Owens with her own statement. In her statement, Owens said that “[Anderson] and [Smith] had words. It didn’t last long. [Smith] kept acting like he was fixing to reach for a gun, but he never pulled it out. So [Anderson] shot first.” On redirect, Owens added that she had “never known him to carry no [sic] gun.”

DISCUSSION

¶ 15. The sole issue before us on appeal is whether the trial court erred in denying D-9 and D-10, the defense’s proposed lesser-included-offense jury instructions for manslaughter on Anderson’s murder charge.

[An] instruction should be granted unless the trial judge — and ultimately this Court — can say, taking all the evidence in the light most favorable to the accused and considering all reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge.)

Mease v. State, 539 So.2d 1324, 1330 (Miss.1989) (citation omitted). In reviewing the record,

[W]e initially are to ascertain whether “some” evidence existed to support the instruction requested.... If this Court is able to identify some evidence in support of the instruction, this Court is not called upon to weigh this evidence with regard to the jury’s verdict.... Rather, when viewing this evidence, this Court must find that an evidentiary basis existed for the instruction unless “taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences that may be drawn from the evidence in favor of the accused, that no hypothetical jury could find the fact as the accused suggests.”

Williams v. State, 53 So.3d 734, 741 (Miss.2010), reh’g denied Feb. 24, 2011 (citing Anderson v. State, 571 So.2d 961, 964 (Miss.1990)) (citations omitted).

¶ 16. Where there exists a claim that a defendant “was entitled to a lesser-included offense instruction, we conduct de novo review, as this is a question of law.” Downs v. State, 962 So.2d 1255, 1258 (Miss.2007).

¶ 17. An indictment for murder includes the lesser-included charge of manslaughter. State v. Shaw, 880 So.2d 296, 304 (Miss.2004). See also Miss.Code. Ann. § 99-7-37(2) (Miss.2007). However, a manslaughter instruction should be refused when the evidence supports only a verdict of murder. Ruffin v. State, 444 So.2d 839, 840 (Miss.1984). Manslaughter is defined as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.... ” Miss.Code Ann. § 97-3-35 (Rev.2006).

¶ 18. Heat of passion is defined as “[pjassion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.” McCune v. State, 989 So.2d 310, 319 (Miss.2008) (citing Agnew v. State, 783 So.2d 699, 703 (Miss.2001)). Nevertheless, “[m]ere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter.” Phillips v. State, 794 So.2d 1034, 1037 (Miss.2001) (citing Gates v. State, 484 So.2d 1002, 1005 (Miss.1986)). Allegations of self-defense do not necessarily negate the applicability of the lesser-included-offense instruction of manslaughter. Hester v. State, 841 So.2d 158, 160 (Miss.Ct.App.2002).

¶ 19. In today’s case, in denying the proposed lesser-included manslaughter instructions, the trial judge stated, “I take it that you are-I granted the self-defense instruction, so I take it you are going with self defense.... Or do you want to go with manslaughter?” Anderson correctly points out that allegations of self-defense do not negate the applicability of the lesser-included-offense instruction of manslaughter. This Court has determined that the options of whether a defendant was “completely exonerated because of a legitimate threat to him, or whether his reaction to events was still criminal but lessened by the heat-of-passion, are not self-cancelling....” Hester, 841 So.2d at 161. It has been and remains the law in this state that manslaughter and self-defense instructions are not mutually exclusive, and trial courts should not imply otherwise. Nevertheless, we still must determine whether there was sufficient evidence, when viewed in the light most favorable to the accused and considering all reasonable inferences which may be drawn in favor of the accused, for a reasonable jury to find the defendant guilty of the lesser-included offense, but not of the principal charge. See Mease, 539 So.2d at 1330.

¶ 20. Anderson alleges that the trial court erred when it refused to grant a lesser-included-offense instruction for manslaughter on the murder charge, since he claims that three witnesses testified that Anderson and Smith had engaged in a heated argument prior to the shooting. Two witnesses did testify to some verbal altercation before the shooting. Donald Winters observed the two “pass a couple of words,” and Foster observed the two having “a word, a verbal altercation with each other.” Owens testified that the two “passed a couple of words.” In addition, Anderson gave a statement to police, parts of which were read at trial by Captain Chambers, also alleging that he and Smith had “a few words” prior to the shooting. However, this Court has long held that “mere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter.” Gates, 484 So.2d at 1005.

¶ 21. In addition to the alleged argument, the only evidence Anderson presents to support his manslaughter contention is the allegation that Smith drew a gun on him. This was the core of the self-defense claim that failed to persuade the jury. Only two witnesses testified that Smith attempted to pull a gun before Anderson shot, and both of these witnesses contradicted themselves. Anderson claimed at various points in his statement that Smith had pulled a gun on him the night of the shooting; that Smith had pulled a gun on him on a previous night; that several people had pulled guns on him before the shooting; and, when pressed as to how many guns he saw, responded “I’ll just say [Smith’s], I guess.” This evidence supports a claim of self-defense, and the trial court granted a self-defense instruction.

¶ 22. Owens was impeached with her prior statement, in which she claimed that “[Smith] kept acting like he was fixing to reach for a gun, but he never pulled it out.” However, she declined to repeat this testimony at trial and testified that Smith never carried a gun. No other witnesses to the shooting testified that Smith had attempted to draw a weapon on Anderson. Anderson admitted to the police that he used had a firearm, and all eyewitnesses, including the sole defense witness, Owens, also alleged that Anderson had used a firearm. “We have held that ‘malice, or deliberate design, may be inferred from use of a deadly weapon.’ ” Phillips, 794 So.2d at 1037 (citing Carter v. State, 722 So.2d 1258, 1263 (Miss.1998)).

¶ 23. Anderson compares his case to Ruffin v. State, in which this Court found reversible error where the trial court failed to give a lesser-included-offense instruction after two independent witnesses testified that they had observed the defendant and victim arguing prior to the shooting. Ruffin, 444 So.2d at 840. However, this reliance is misplaced. The Court in that case based its reversal on Martin v. State, 112 Miss. 365, 73 So. 64, 65-66 (1916), which held that, where the occurrence was in the nature of a fight between two persons in a heated atmosphere, and one is killed by the other, the accused is entitled to permit the jury to consider the lesser-included charge of manslaughter. Martin, 73 So. at 65-66. In Ruffin, the defendant and victim did more than argue; the defendant testified that the victim slapped him and attempted to take his firearm. Ruffin, 444 So.2d at 840. That case is not analogous to the present situation.

¶ 24. Therefore, the trial court’s failure to grant a manslaughter jury instruction was not error. Mere words, however provocative, will not reduce an intentional and unjustifiable homicide from murder to manslaughter. Phillips v. State, 794 So.2d at 1037. Malice, a necessary element of murder but not of manslaughter, may be inferred from the use of a deadly weapon. Id. The evidence that Smith drew a gun on Anderson could not persuade the trial jury that Anderson acted in self-defense. The only witnesses who claimed that Smith had pulled a gun were Anderson himself (though he contradicted himself in the same statement), and Owens, in a statement that she contradicted in her trial testimony. Given these facts, taking all the evidence in the light most favorable to the accused and considering all reasonable inferences which may be drawn in favor of the accused from the evidence, we find that no reasonable jury could have found Anderson guilty of manslaughter rather than murder.

¶ 25. For the reasons discussed, the sole issue before us has no merit.

CONCLUSION

¶ 26. This Court’s longstanding precedent that self-defense and manslaughter instructions are not self-cancelling remains correct and binding. However, the evidence that Anderson was guilty of manslaughter, rather than murder, even when viewed in the light most favorable to the accused and considering all reasonable inferences, was insufficient to persuade any reasonable jury, and therefore did not mandate the granting of a manslaughter instruction. Mere words will not suffice to reduce murder to manslaughter, and malice may be inferred by Anderson’s use of a deadly weapon. As a result, the trial court did not err in denying instructions D-9 and D-10, the defense’s proposed lesser-included-offense jury instructions.

¶ 27. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, 33., CONCUR.


author: LAMAR, Justice,

text:
    Arturo Aquirre MORENO v. STATE of Mississippi.
    No. 2009-CT-01001-SCT.
    Supreme Court of Mississippi.
    Feb. 9, 2012.

      Arturo Aquirre Moreno, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   LAMAR, Justice,

for the Court:

¶ 1. On March 16, 2009, Arturo Aquirre Moreno filed with this Court a motion to proceed in the trial court with his third petition for post-conviction relief. This Court granted Moreno leave to proceed solely on the issue of ineffective assistance of counsel, and the trial court held a hearing only on that issue. However, we conclude that this Court improperly exercised authority to consider Moreno’s motion and thus should not have remanded for an evidentiary hearing. Jackson v. State, 67 So.3d 725, 730-31 (Miss.2011). The trial court was the proper forum to consider the petition, since Moreno had pleaded guilty to DUI manslaughter and mayhem and could not directly appeal those convictions. Id. Notwithstanding this Court’s error, we affirm the trial court’s denial of relief on the ineffective-assistance claim. To reverse based on the procedural error would be futile, as the result is the same: the trial court was the first (and therefore proper court) to pass on the merits of that claim.

¶ 2. Further complicating matters, Moreno appealed from the trial court’s denial of relief but also asserted claims of double jeopardy and venue, neither of which Moreno argued before the trial court. However, the Court of Appeals addressed all of Moreno’s claims and denied relief. Moreno v. State, 79 So.3d 511, 514-16 (Miss.Ct.App.2011). Moreno then petitioned for certiorari, raising yet another claim not argued before the trial court or the Court of Appeals. We find the Court of Appeals erroneously considered Moreno’s double-jeopardy and venue claims, which were raised for the first time on appeal. We further decline to address Moreno’s additional claim raised for the first time in his petition for writ of certiorari.

Facts and Procedural History

¶ 3. On July 11, 2004, Moreno was driving under the influence of alcohol when he was involved in a two-vehicle accident in Hattiesburg, Mississippi. As a result of the accident, he was indicted for one count of DUI manslaughter and two counts of DUI mayhem on March 3, 2005. On August 5, 2005, he pleaded guilty to all three counts. He was sentenced to twenty-five years for DUI manslaughter, with fifteen years suspended, and twenty-five years on each count of DUI mayhem, with twenty years suspended on each count, all to run consecutively.

¶ 4. On September 20, 2006, Moreno filed his first petition for post-conviction relief with the trial court. Moreno raised several issues in his petition, including double jeopardy and ineffective assistance of counsel. Moreno v. State, 967 So.2d 701, 702 (Miss.Ct.App.2007). Specifically, he argued that driving while intoxicated constituted one offense, and thus the indictments for DUI manslaughter and the two counts of DUI mayhem violated the double-jeopardy clause. Id. at 702-703. He also claimed ineffective assistance of counsel, arguing his attorney failed to assist him in receiving a speedy trial and failed to advise him of the minimum and maximum sentences. Id. at 703-704. The Court of Appeals affirmed the trial court’s dismissal of Moreno’s first petition for post-conviction relief. Id. at 704.

¶ 5. On August 1, 2008, Moreno filed a second petition for post-conviction relief with the trial court, and in this petition he argued improper venue and a new claim of double jeopardy. Regarding double jeopardy, he argued that the subsequent conviction and sentences of DUI manslaughter and DUI mayhem violated the double-jeopardy clause, since he previously had pleaded guilty to DUI first offense for the same incident. The trial court summarily dismissed Moreno’s petition on August 7, 2008. Moreno did not appeal the trial court’s dismissal of this second petition.

¶ 6. On March 16, 2009, Moreno filed with this Court a motion for permission to proceed in the trial court on a claim of ineffective assistance of counsel after we handed down an opinion disciplining his trial attorney. See Mississippi Commission on Judicial Performance v. Pittman, 993 So.2d 816 (Miss.2008). This Court granted the motion and ordered the trial court to conduct an evidentiary hearing on Moreno’s claim. The trial court conducted the hearing solely on the claim of ineffective assistance of counsel and denied relief.

¶ 7. Moreno appealed the trial court’s denial of his ineffective-assistance claim but also reasserted the venue and double-jeopardy claims that he had failed to appeal after the trial court denied his second petition for post-conviction relief in 2008. The Court of Appeals denied relief on the venue issue, after ruling it had authority to review such claims of “jurisdiction.” Moreno, 79 So.3d at 514-15. It also addressed the double-jeopardy claim. Id. at 515. The Court of Appeals held that Moreno previously had asserted that claim before the trial court in his first petition for post-conviction relief and that its denial had been affirmed on appeal; thus the claim was barred from further review. Id. It also rejected Moreno’s claims that his attorney was ineffective for allegedly: “fail[ing] to communicate the difference between consecutive and concurrent sentences, failing] to appear in court, failing] to present certain evidence regarding Moreno’s theory of defense in court, and failing] to explain the consequences of a guilty plea.” Id. at 515-16.

¶ 8. Following the Court of Appeals’ March 1, 2011, decision, Moreno petitioned this Court for certiorari. In his petition for certiorari and supplemental brief, Moreno’s argument focuses entirely on double jeopardy. Moreno asserts that he pleaded guilty to DUI first offense before he pleaded guilty to DUI manslaughter and mayhem. And for the first time, he now argues his counsel was ineffective for failing to recognize and argue a double-jeopardy violation. While Moreno makes no argument about venue in his certiorari petition, we address that issue as the “record and briefs previously filed in the Court of Appeals” are subject to review. Miss. R.App. P. 17(h). We find the Court of Appeals’ analysis and holding of the ineffective-assistance claim should be affirmed and warrants no further discussion.

Discussion

¶ 9. Moreno argues that he pleaded guilty to DUI first offense and various traffic offenses on July 12, 2004, well before being indicted and pleading guilty to DUI manslaughter and mayhem. The Court of Appeals erred by saying that Moreno had set forth that argument in his first petition. While Moreno argued a double-jeopardy violation in his first petition, its basis was completely different. See supra ¶ 2.

¶ 10. The Court of Appeals also incorrectly included in its statement of facts that “[o]n July 12, 2004, Moreno appeared before Judge Edwin Pittman, Jr. in the Hattiesburg Municipal Court and pled guilty to traffic citations for driving under the influence, driving without a license, driving without proof of insurance, and leaving the scene of an accident.” Id. at 513. As urged by the State, there is no proof in the record that Moreno pleaded guilty to those charges, and that issue was not argued before the trial court in Moreno’s third petition. Therefore, Moreno improperly raised that issue in this current appeal, and the Court of Appeals improperly considered and denied it.

¶ 11. The Court of Appeals also improperly considered and denied Moreno’s claim of improper venue. The Court of Appeals held that it could address venue, reasoning it is “jurisdictional” and can be raised for the first time on appeal. Id. at 514-15. While it is true that venue in criminal cases may be raised for the first time on direct appeal, we could find no caselaw where it was raised and considered for the first time on appeal from a trial court’s denial of post-conviction relief. Therefore, we find the Court of Appeals erred in considering Moreno’s arguments of double jeopardy and improper venue.

Conclusion

¶ 12. We affirm the trial court’s denial of post-conviction relief on Moreno’s ineffective-assistance-of-counsel claim. We vacate the Court of Appeals’ judgment relating to Moreno’s claim of double jeopardy and improper venue, as those issues were not first argued before the trial court.

¶ 13. THE JUDGMENT OF THE COURT OF APPEALS IS VACATED IN PART; AFFIRMED IN PART. THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT IS AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J„ NOT PARTICIPATING.

      . The Court of Appeals erroneously stated that Moreno was sentenced to serve twenty-five years. Moreno v. State, 79 So.3d 511, 513-14 (Miss.Ct.App.2011). He was sentenced to serve a total of twenty years.

      . The State readily admits if proof does exist, then "it would have little choice but to acknowledge that double jeopardy violation occurred when Moreno subsequently pleaded guilty to DUI manslaughter and DUI mayhem based on the very same DUI he allegedly had already pleaded guilty to.”

      . Gillett v. State, 56 So.3d 469, 502 (Miss.2010).


author: KING, C.J.,

text:
    Arturo Aquirre MORENO, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01001-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Rehearing Denied June 21, 2011.

      Arturo Aquirre Moreno, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   KING, C.J.,

for the Court:

¶ 1. Arturo Moreno was indicted by Lamar County Circuit Court for one count of DUI manslaughter and two counts of DUI mayhem. Moreno pled guilty to all charges. Subsequently, Moreno filed two motions for post-conviction relief; both were denied. After Moreno’s trial counsel was reprimanded by the Mississippi Commission on Judicial Performance, Moreno petitioned the Mississippi Supreme Court for leave to proceed in the trial court on a claim of ineffective assistance of counsel. The supreme court granted the motion and ordered an evidentiary hearing. At the conclusion of the evidentiary hearing, the trial court ruled that Moreno had received effective assistance of counsel and denied his third motion for post-conviction relief. Moreno appealed that denial of relief raising three issues: (1) whether the trial court lacked jurisdiction over Moreno’s case, (2) whether Moreno’s sentence was in violation of the double-jeopardy clause, and (3) whether the trial court erred in finding that Moreno had received effective assistance of counsel.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On July 11, 2004, Moreno was driving while under the influence of alcohol and collided with a vehicle in the intersection of Westover Drive and Hardy Street in Hattiesburg, Mississippi. Moreno was apprehended by officers with the Hatties-burg Police Department. Moreno was taken to the Forrest County Regional Jail and given a Breathalyser. The passengers of the other vehicle involved in the collision, Benjamin Berry, Kattilla Hakimza-keh, and Brandon Marshall, were taken to Forrest General Hospital to be treated for injuries resulting from the accident. As a result of the accident, Berry and Hakimza-keh suffered serious injuries, and Berry later died.

¶ 4. On July 12, 2004, Moreno appeared before Judge Edwin Pittman Jr. in the Hattiesburg Municipal Court and pled guilty to traffic citations for driving under the influence, driving without a license, driving without proof of insurance, and leaving the scene of an accident. After Moreno’s municipal court appearance, Moreno was transported to the Lamar County Jail. On July 16, 2004, Judge Pittman issued an arrest warrant in Forrest County for Moreno on the charge of DUI manslaughter.

¶ 5. On March 3, 2005, Moreno was indicted in Lamar County for one count of DUI manslaughter and two counts of DUI mayhem. On August 5, 2005, Moreno entered a guilty plea to all counts and was sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections. Moreno was represented by Edwin Pittman Jr. during the plea hearing and sentencing.

¶ 6. On September 20, 2006, Moreno filed a motion for post-conviction relief alleging ineffective assistance of counsel and double jeopardy. The trial court addressed and dismissed the issues, and this Court affirmed the decision. Moreno v. State, 967 So.2d 701 (Miss.Ct.App.2007).

¶ 7. On August 1, 2008, Moreno filed a second petition for post-conviction relief alleging lack of subject-matter jurisdiction and double jeopardy. The trial court addressed and denied the motion. Moreno never appealed the denial of the second motion for post-conviction relief.

¶ 8. On October 2, 2008, the Mississippi Supi-eme Court adopted the Mississippi Commission on Judicial Performance’s recommendation that Pittman be reprimanded for representing Moreno after having signed an arrest warrant and order setting bond in the same matter in his capacity as municipal court judge. Miss. Comm. On Judicial Performance v. Pittman, 993 So.2d 816 (Miss.2008).

¶ 9. On March 16, 2009, Moreno requested that the Mississippi Supreme Court grant his motion for leave to proceed in the trial court. The supreme court granted the motion and ordered an evidentiary hearing to determine whether Moreno had received effective assistance.

¶ 10. The evidentiary hearing was held on September 4, 2009. The trial court found that Moreno had entered his plea against the advice of counsel, and Moreno had failed to produce evidence to support that his counsel was deficient or that any such deficiency resulted in prejudice to him. Therefore, Moreno’s third motion impost-conviction relief was denied by the trial court. Moreno appeals.

ANALYSIS

¶ 11. “In reviewing a trial court’s decision to deny a motion for post-conviction relief, the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. However, when reviewing issues of law, this Court’s proper standard of review is de novo.” Heafner v. State, 947 So.2d 354, 356 (¶ 2) (Miss.Ct.App.2007) (internal citations omitted).

I. Jurisdiction

¶ 12. Moreno argues that the indictments were issued in violation of Mississippi Code Annotated section 99 — 11— 3 (Rev.2007), which states local jurisdiction of all offenses is in the county where they were committed. Moreno argues that Lamar County is an improper venue because the automobile accident, and a passenger’s subsequent death, occurred in Forrest County. The State’s sole argument is that Moreno’s claim of improper venue is not properly befox-e this Court; therefore, the merits should not be addressed. The State is mistaken in its argument. In a criminal case, venue is jurisdictional, must be proven, and may be x-aised for the first time on appeal. McBride v. State, 934 So.2d 1033, 1035 (¶ 10) (Miss.Ct.App.2006) (citing Hensley v. State, 912 So.2d 1083, 1086 (¶ 12) (Miss.Ct.App.2005)). Accordingly, we find it proper to address the merits.

¶ 13. This Court has recently held that a petitioner’s claim of improper venue will fail unless supported by sufficient evidence within the l-ecord. See Williams v. State, 31 So.3d 69, 80 (¶34) (Miss.Ct.App.2010). Moreno points to the traffic citations issued as a result of the accident as proof that Lamar County is an improper venue. The ti-affic citations Moreno refei-ences in support of his argument were issued by the Hattiesburg Police Department. The City of Hattiesburg lies within both Forrest and Lamar Counties. On the citations issued to Moreno, both counties are listed, but “Forrest” is circled to identify the county in which the specific violations occurred.

¶ 14. Moreno also argues that he was taken into custody and held at the Forrest County Regional Jail until Lamar County prosecuted him. However, Moreno was never indicted in Forrest County and was transported to the Lamar County Jail on the day after the accident. Moreno was indicted by a grand jury in Lamar County on two counts of DUI mayhem and one count of DUI manslaughter.

¶ 15. Moreno simply makes a blanket assertion that the trial court failed to make a determination that it had proper jurisdiction and venue in this matter. Moreno fails to point to any evidence in the record that might support the claim that the intersection in which the accident occurred lies within Forrest County, Mississippi. Accordingly, this issue is without merit.

II. Double Jeopardy

¶ 16. Moreno argues that the indictments under Mississippi Code Annotated section 63-11-30 (Supp.2010) for DUI manslaughter and two counts of DUI mayhem subject him to double jeopardy because his driving while intoxicated only constituted one offense. Moreno raised this argument in his first motion for post-conviction relief; the trial court addressed and disposed of the issue; and this Court affirmed the decision, stating:

“[Djouble jeopardy applies to prevent three errors it protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction[;] and (3) multiple punishments for the same offense.” Brawner v. State, 947 So.2d 254, 266 (¶ 33) (Miss.2006) (citing Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994)). The [Legislature, in 2004, amended and made clear that one may be charged under Mississippi Code Annotated section 63-11-30 for multiple felonies arising from the same act of driving under the influence. See Miss.Code Ann. section 63-11-30(5) (effective May 4, 2004) (stating “[ejvery person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other limb, organ or member of another shall, upon conviction, be guilty of a separate felony for each such death, mutilation, disfigurement or other injury.” ([Ejmphasis added)). Each of the indictment’s counts were predicated upon separate felonies, one instance of manslaughter and two instances of mutilation or mayhem, in which Moreno committed as a result of his drunk driving. Therefore, no violations of double jeopardy have occurred here. Moreno’s argument has no merit[,] and we deny relief, accordingly.

Moreno, 967 So.2d at 703 (¶ 3).

¶ 17. All issues, both factual and legal, that have been previously decided at trial and/or on direct appeal are barred from review as res judicata. Miss.Code Ann. § 99-39-21(3) (Rev.2007). Accordingly, this Court finds that Moreno’s claim to relief under the double-jeopardy clause is barred from review as res judicata. This issue is without merit.

III. Ineffective Assistance of Counsel

¶ 18. Moreno argues that he had received ineffective assistance of counsel because Pittman failed to communicate the difference between consecutive and concurrent sentences, failed to appear in court, failed to present certain evidence regarding Moreno’s theory of defense in court, and failed to explain the consequences of a guilty plea. Moreno further claims that Pittman told him that if he was found guilty, Moreno would be deported to Mexico. Moreno wished to return to Mexico, and he claims he entered a guilty plea under the assumption he would be deported.

¶ 19. In order to prevail on a claim of ineffective assistance of counsel, Moreno must show that his defense counsel rendered deficient performance which resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner who has entered a guilty plea and claims ineffective assistance of counsel must show that trial counsel committed “unprofessional errors of substantial gravity,” without which he would not have pled guilty. Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss.Ct.App.2006).

¶ 20. After conducting the evidentiary hearing, the trial court held that Moreno failed to present any evidence to overcome the rebuttable presumption that the performance of his counsel fell within the spectrum of competent assistance. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

¶ 21. During the plea hearing, Moreno, through his translator, stated under oath that he had confidence in his attorney, and his attorney had explained the details of the charges against him and the consequences associated with entering a guilty plea. Great weight is given to statements made under oath and in open court during sentencing. Mowdy v. State, 638 So.2d 738, 743 (Miss.1994). The record is not clear as to when Pittman allegedly failed to appear in court, because Moreno testified in his evidentiary hearing that his counsel was present at both the plea hearing and sentencing hearing. Karen Austin, Moreno’s court-appointed translator during the plea hearing and sentencing hearing, testified during the evi-dentiary hearing that Moreno had entered a guilty plea against the advice of counsel. Austin stated that Moreno was encouraged by his counsel to go to trial. Because Moreno failed to demonstrate any deficiency on the part of Pittman, which resulted in prejudice, this issue is without merit.

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

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


author: ISHEE, J.,

text:
    John JOHNSON a/k/a John Edward Johnson, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00378-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Oct. 25, 2011.
    Certiorari Denied Feb. 9, 2012.

      George S. Shaddock, Pascagoula, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. John Edward Johnson (Johnson) was convicted in the Circuit Court of Jackson County, Mississippi, on March 5, 2008, of murder and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Johnson appealed, arguing there was insufficient evidence to support the verdict, and the verdict was against the overwhelming weight of the evidence. This Court reversed the murder conviction and remanded for re-sentencing on the lesser-included offense of manslaughter. The circuit court then re-sentenced Johnson for manslaughter to twenty years in the custody of the MDOC.

¶ 2. Johnson now challenges the twenty-year sentence, claiming that the circuit court committed reversible error by omitting the crime for which he was convicted in the sentencing order. He also contends that this Court should have ordered a new trial instead of remanding the case for re-sentencing under the lesser-included offense of manslaughter, and he maintains that the jury’s finding of guilt was improper. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 8. During an altercation on November 21, 2003, Johnson shot and killed his daughter’s boyfriend, Keith Franklin (Franklin). After a jury trial, Johnson was found guilty of depraved-heart murder on March 5, 2008, and sentenced to life in the custody of the MDOC.

¶ 4. Johnson appealed the conviction, arguing that there was insufficient evidence to support a verdict of depraved-heart murder, and the verdict was against the overwhelming weight of the evidence. Because he shot Franklin in the heat of passion, Johnson claimed that he was, at most, guilty of manslaughter. Johnson also contended that he shot Franklin in self-defense, and the State failed to prove that he did not act in self-defense.

¶ 5. This Court found that the verdict was against the overwhelming weight of the evidence and reversed the judgment. Using the “direct remand” rule, we remanded the case back to the circuit court to re-sentence Johnson for the lesser-included offense of manslaughter.

¶ 6. The circuit court held a re-sentencing hearing on January 14, 2010. Johnson was represented by counsel at the hearing. Pursuant to our ruling, the circuit court re-sentenced Johnson for manslaughter and ordered him to serve twenty years in the custody of the MDOC.

¶ 7. Johnson filed a motion for a new trial on February 3, 2010, claiming that: the circuit court’s re-sentencing order did not state that he was guilty of manslaughter, and this Court’s finding that he was guilty of manslaughter was void. On March 1, 2010, the circuit court overruled the motion for a new trial, and Johnson timely filed a motion to appeal his conviction for manslaughter with this Court. Johnson also filed a petition for rehearing on February 19, 2010, with this Court, which was denied because the petition was untimely filed under Mississippi Rule of Appellate Procedure 40.

¶ 8. In addition, Johnson also argues that a time sheet unfairly prejudiced him because it incorrectly listed the crime for which he was convicted. A time sheet from the MDOC on February 2, 2010, listed Johnson’s sentence as twenty years for the crime of “Homicide/Murder.” Johnson brought the error to the attention of the circuit court and requested that the court send an amended order to the MDOC to correct the charge to read “manslaughter,” instead of “Homicide/Murder.” The circuit court filed an order on March 24, 2010, which re-stated that Johnson was originally found guilty of depraved-heart murder, but he was re-sentenced to a term of twenty years for manslaughter.

DISCUSSION

¶ 9. Johnson argues that the sentencing order is invalid because the order omitted the crime for which he was convicted. Johnson is incorrect in this regard. The re-sentencing order filed on January 14, 2010, clearly states the following information in the heading: the case number, Johnson’s name, and “MANSLAUGHTER (AS PER COURT OF APPEAL’S [sic] RULING).” The order also notes that Johnson appeared with his counsel at the hearing and that Johnson was re-sentenced to a term of twenty years in the custody of the MDOC. Thus, Johnson’s argument is without merit.

¶ 10. In his reply brief, Johnson questions the jury’s verdict and requests a new trial because this Court “did not go far enough in correct [sic] the verdict of the Jackson County jury.” Johnson maintains that he acted in self-defense when he shot Franklin and that the evidence supporting his defense was “overlooked by the [j]ury in [his] trial, and as such, requires a new jury to determine Johnson’s true culpability.”

¶ 11. A jury found Johnson guilty of depraved-heart murder. This Court reversed the verdict and, under the direct-remand rule, remanded Johnson’s case back to the circuit court for re-sentencing under the lesser-included offense of manslaughter. Johnson v. State, 52 So.3d 384, 396 (¶ 37) (Miss.Ct.App.2009). An appellate court “may remand a case to the trial court for sentencing on a lesser-included offense where the greater offense was not proved, but the elements of the lesser-included offense were sufficiently met.” Id. at (¶ 36) (citing Shields v. State, 722 So.2d 584, 587 (¶ 7) (Miss.1998)). “A new trial is appropriate where the possibility of guilt still exists for both the principal and the lesser-included offense.” Id. (citing Wade v. State, 748 So.2d 771, 775 (¶ 14) (Miss.1999)).

¶ 12. In Johnson’s first appeal, this Court noted that Johnson lacked malice aforethought or wanton recklessness when he shot Franklin. Id. at (¶ 37). Thus, we held that the killing “was more appropriately a killing in the heat of passion or a situation of imperfect self-defense,” which warranted a guilty verdict for manslaughter instead of depraved-heart murder. Id. Because the elements of manslaughter were sufficiently met, this Court properly remanded the case to the circuit court for re-sentencing under the lesser-included offense.

¶ 13. In the present appeal, Johnson again maintains that he acted in self-defense when he shot Franklin and that the jury overlooked evidence to support his theory of self-defense. However, Johnson is procedurally barred from raising the same issues that have already been decided by this Court on direct appeal. Miss.Code Ann. § 99-39-21(3) (Rev.2007). The doctrine of res judicata prohibits one from raising the same issues on appeal that have already been decided at trial and on direct appeal, without demonstrating cause and actual prejudice. Id. Johnson has been afforded an opportunity to contest the verdict of his trial for murder, and this Court reversed his conviction and ordered him to be re-sentenced for manslaughter. He raises no new assignments of error on the present appeal. Therefore, Johnson is not entitled to relief, and his claims are barred from review by res judi-cata. Accordingly, this issue is procedurally barred.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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