author: BARNES, J.,

text:
    Lawanda DILLON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01228-COA.
    Court of Appeals of Mississippi.
    Nov. 23, 2010.
    Rehearing Denied March 1, 2011.
    Certiorari Granted Dec. 1, 2011.
    Certiorari Dismissed as Improvidently Granted Dec. 1, 2011.

      Lawanda Dillon, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court:

¶ 1. On June 20, 2008, Lawanda Dillon pleaded guilty in the Lincoln County Circuit Court to manslaughter and was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with six years suspended and five years of post-release supervision. The circuit court denied Dillon’s subsequent motion for post-conviction relief, and she now appeals. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On November 17, 2006, Dillon was fighting with Boris Jackson, her boyfriend. This was not the couple’s first altercation; Jackson was frequently controlling and abusive toward Dillon. Jackson grabbed Dillon, choked her, and yelled at Dillon’s daughter. Jackson released Dillon, verbally threatened her, and shut himself in the bedroom. Dillon left her house and went to the nearest police station to obtain assistance. A police officer accompanied Dillon back home, but Jackson had already-left the home on foot to go to his sister’s house. Fearing that Jackson might return, Dillon put her three children, all from, prior relationships, into her vehicle and proceeded to leave the home. She claimed that she was on her way to her aunt’s house.

¶ 8. However, while driving down the road, Dillon encountered Jackson walking, and she stopped the car to talk to him. She claims that he threw a brick through the car’s window on the passenger side, causing the glass to shatter onto her daughter who was seated there. As she drove away, Dillon hit Jackson with her ear and ran into a stop sign. Dillon then backed her car up and ran over Jackson a second time. She claimed that she never saw him. Yet a witness later told law enforcement that Dillon’s car came onto the grass where Jackson was walking and that Dillon’s actions looked deliberate. Another witness told the police that she heard a -window break and a voice say: “Go on, you have hit me one time.” A third witness saw Dillon’s car hit Jackson the second time, and the State claimed at the sentencing hearing that the witness would have testified that “it looked deliberate to her.” Dillon left the scene of the accident, and Jackson died as a result of his injuries. Dillon turned herself in to the police a few hours later.

¶ 4. On April 5, 2007, a Lincoln County grand jury indicted Dillon on a charge of murder. In response to a motion submitted by Dillon’s counsel, the circuit court ordered a psychiatric evaluation of Dillon on May 12, 2008. At a hearing on June 17, 2008, Dillon pleaded guilty to a lesser charge of manslaughter, and the indictment was amended to reflect this change. On June 20, 2008, a sentencing hearing was held, with testimony given on behalf of both Dillon and the victim, Jackson. The circuit court sentenced Dillon to twenty years in the custody of the MDOC, with six years suspended and five years of post-release supervision.

¶ 5. Dillon filed a motion for post-conviction relief on February 1, 2009, which the circuit court denied. She now appeals the denial of her motion. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. We will not disturb a circuit court’s denial of a motion for post-conviction relief unless the court’s findings “are found to be clearly erroneous.” Jordan v. State, 21 So.Sd 697, 700 (¶ 6) (Miss.Ct.App.2009) (quoting Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). “However, where questions of law are raised, the applicable standard of review is de novo.” Id.

I. Whether Dillon’s guilty plea was voluntarily and intelligently made.

¶ 7. A guilty plea is considered binding only if it is entered voluntarily and intelligently. Elliott v. State, 41 So.3d 701, 705 (¶ 11) (Miss.Ct.App.2009) (citing Myers v. State, 583 So.2d 174, 177 (Miss.1991)). In our determination of whether a guilty plea is voluntarily given, we look to whether “the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.” Id. at 705 (¶ 11) (quoting Wilson v. State, 577 So.2d 394, 397 (Miss.1991)). However, if a guilty plea is “induced by fear, violence, deception, or improper inducements^]” it will not be considered voluntary. Wilbanks v. State, 14 So.3d 752, 755 (¶ 6) (Miss.Ct.App.2009) (quoting URCCC 8.04(A)(3)).

¶ 8. Dillon argues that facing the possibility of a life sentence if she went to trial on the charge of murder “destroyed [her] ability to think and balance the risk and benefits of going to trial.” Thus, she claims that her plea was not voluntarily or intelligently given. We find no merit to this argument. “While a defendant is free to collaterally attack a guilty plea, there is a strong presumption of validity to ‘solemn declarations made in open court.’ ” Id. (citing Hannah v. State, 943 So.2d 20, 25 (¶ 11) (Miss.2006)). At the plea hearing, the circuit court thoroughly explained to Dillon what rights she would be waiving and her possible sentence. Then, when asked if she understood the waiver of rights and possible sentence, Dillon said stated that she did. The circuit court also asked Dillon: “Has anyone threatened, abused, or promised you anything to cause you to want to plead guilty?” Dillon answered, “No, sir.” Thus, we find Dillon’s guilty plea was voluntarily and intelligently given.

II. Whether Dillon’s counsel rendered ineffective assistance.

¶ 9. In her claim for ineffective assistance of counsel, Dillon contends that her defense counsel conspired with the State to assist in securing a guilty plea by using a frivolous indictment for murder. Dillon states that her counsel should have objected to the indictment as “the evidence did not support murder or grounds to indict for such a crime.” Second, she claims that counsel’s failure to investigate and interview witnesses, who would have given mitigating circumstances that Dillon was acting in self-defense, was ineffective assistance. Finally, she argues that defense counsel should have submitted a motion for a competency hearing.

¶ 10. To succeed on an ineffective assistance of counsel claim, “a defendant must satisfy the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Davis v. State, 17 So.3d 1149, 1154 (¶25) (Miss.Ct.App.2009) (citing Stringer v. State, 627 So.2d 326, 328 (Miss.1993)). First, a defendant must show that his counsel’s performance was deficient; second, he must show that the deficient performance prejudiced his defense. Id. (citing McQuarter v. State, 574 So.2d 685, 687 (Miss.1990)). “In the case of a guilty plea, the second prong of prejudice is shown by proving that the ineffective assistance of counsel affected the outcome of the plea process.” Wilson v. State, 21 So.3d 572, 578 (¶ 16) (Miss.2009) (citing Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

¶ 11. Nothing in the record indicates that the indictment against Dillon was frivolous and meant to coerce a guilty plea for manslaughter from Dillon. It is undisputed that Dillon ran over Jackson multiple times with her car, causing his death. There were witnesses available to testify at trial that Dillon’s actions were perceived to be deliberate. The State’s reason for agreeing to the lesser charge of manslaughter was not because the evidence did not support a murder charge; rather, it was because the State was concerned that a jury might be partial to Dillon due to the history of abuse that she had suffered from Jackson. At the sentencing hearing, Joey Norton with the District Attorney’s Office stated:

The concession to manslaughter in this case was made because of the extreme likelihood that a jury would be willing to excuse the defendant, at least partially, based upon the evidence of past physical abuse by Boris Jackson and the evidence that supported her claim that he had broken out her car window just a minute before she ran over him.

Therefore, we cannot find that defense counsel’s failure to object to the indictment constitutes deficient performance.

¶ 12. Next, Dillon claims that counsel did not sufficiently obtain testimony that would have presented the circuit court -with mitigating circumstances to her actions. She is referring to the testimonial statements given by her three children, which were submitted with her motion for post-conviction relief. In their statements, they reiterate Dillon’s claim that Jackson threw a brick at the car, shattering the window, and that she ran over Jackson “out of defense for herself and her children!.]”

¶ 13. A defense counsel’s failure “to interview potential witnesses and make an independent investigation of the facts and circumstances of a case” will not, by itself, “give rise to ineffective assistance of counsel.” Oliver v. State, 20 So.3d 16, 24 (¶ 23) (Miss.Ct.App.2009) (citing Reed v. State, 918 So.2d 776, 778 (¶ 5) (Miss.Ct.App.2005)). “[F]or an attorney’s ‘failure to investigate to rise to the level of ineffective assistance of counsel, the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome.’ ” Id. (citing Johnson v. State, 987 So.2d 501, 504 (¶ 15) (Miss.Ct.App.2008)). In other words, Dillon must show that she would not have entered her guilty plea except for the attorney’s alleged failure. She has not done so. Dillon claims that this testimony would have provided reasonable doubt for a jury. However, in a document entitled “Know Your Rights Before Pleading,” Dillon was asked: “Are you satisfied that the State can prove beyond a reasonable doubt that you are guilty of the crime or crimes to which you are pleading guilty?” Dillon answered affirmatively. The children’s testimonies do not demonstrate that Dillon did not commit the crime of manslaughter, for which she pleaded guilty. Thus, Dillon fails to show how counsel’s actions in not presenting this evidence resulted in any prejudice or how this testimony would have altered the outcome.

¶ 14. Finally, there was no evidence presented that Dillon was incompetent to enter a guilty plea. As we have already noted, Dillon’s guilty plea was given voluntarily and intelligently. Although we will discuss the matter of Dillon’s competence in greater detail in Issue IV, we find that counsel’s failure to file a motion for a competency hearing does not constitute ineffective assistance of counsel.

¶ 15. Dillon has not provided any evidence that defense counsel’s performance was deficient. When queried by the circuit judge, Dillon testified at the plea hearing that she was satisfied with her attorney’s services. Moreover, Dillon has not shown that, without the alleged deficient performance by counsel, the outcome would have been different. This issue is without merit.

III. Whether Dillon was deprived of due process by the circuit court’s failure to inform her of the right to appeal her sentence.

¶ 16. Under Mississippi Code Annotated section 99-35-101 (Rev.2007), a defendant may not directly appeal his guilty plea; but he “may pursue a direct appeal asserting the illegality of the sentence imposed pursuant to his guilty plea.” Oliver, 20 So.3d at 21 (¶ 12) (quoting Flowers v. State, 978 So.2d 1281, 1285 (¶ 11) (Miss.Ct.App.2008)). Citing Trotter v. State, 554 So.2d 313 (Miss.1989), Dillon claims that the circuit judge was obligated to inform her that she had the right to appeal her sentence. However, this Court has clarified that a circuit court “is not required to inform a defendant who pleads guilty of his right to appeal the resultant sentence.” Cook v. State, 990 So.2d 788, 793 (¶ 11) (Miss.Ct.App.2008) (citing Coleman v. State, 979 So.2d 731, 733 (¶ 6) (Miss.Ct.App.2008)). Therefore, although the circuit judge did not mention Dillon’s right to appeal her conviction and sentence at trial, we cannot find this constitutes reversible error. This issue is without merit.

IV. Whether the circuit court denied Dillon due process by failing to conduct a competency hearing pursuant to Rule 9.06.

¶ 17. Dillon claims that the circuit court had a duty to conduct an eviden-tiary hearing regarding her mental and emotional well-being, prior to accepting her guilty plea. Rule 9.06 of the Uniform Rules of Circuit and County Court provides that:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.

(Emphasis added). As this Court has noted, Rule 9.06 is also applicable “to a defendant’s entry of a guilty plea.” Smith v. State, 831 So.2d 590, 593 (¶ 11) (Miss.Ct.App.2002). Although she admits that the circuit court ordered an independent psychiatric evaluation by Dr. Christopher Lott, Dillon contends that the results of that evaluation were not sufficient.

¶ 18. “The standard of competency necessary to enter a plea of guilty is the same as that for determining competency to stand trial.” Id. (quoting Page v. State, 812 So.2d 1039, 1041 (¶ 6) (Miss.Ct.App.2001)). The key phrase in Rule 9.06 in determining whether a competency hearing is required is “reasonable ground to believe that the defendant is incompetent.” The circuit judge is in the best position view the evidence and to “observe[ ] the demeanor and behavior of the defendant.” Id. (quoting Richardson v. State, 722 So.2d 481, 486 (¶24) (Miss.1998)).

¶ 19. Dillon offered no evidence at her plea hearing that she was incompetent. The circuit judge asked Dillon if she understood the rights that she was waiving and her possible sentence; Dillon stated that she understood. Furthermore, at the sentencing hearing, Dr. Lott testified on Dillon’s behalf and stated that Dillon “was very calm and collected” during his evaluation and that he did not “see anything that would suggest that she has a major mental disorder.” The circuit court specifically asked Dr. Lott if Dillon was considered sane under the M’Naughten test, and Dr. Lott answered affirmatively. He stated that Dillon had no problem distinguishing between right and wrong. Additionally, a separate evaluation by Dillon’s expert, Dr. Keith Caruso, was submitted for the record immediately prior to Dillon’s plea hearing. In that report, Dr. Caruso said that:

Ms. Dillon was evaluated for competency to stand trial previously by Dr. Christopher Lott, a psychologist. She was deemed competent to stand trial. She has never been on psychotropic medication or in psychotherapy. She has no history of suicide attempts or psychosis.

Accordingly, we find no error in the circuit court’s failure to conduct a formal competency hearing as there was no “reasonable ground” presented that Dillon was incompetent to enter her guilty plea. This issue is without merit.

Y. Whether the circuit court erred in accepting Dillon’s Alford plea.

¶ 20. At the plea hearing, Dillon entered an Alford guilty plea as she contended that she could not remember the events leading up to Jackson’s murder. An “Alford plea,” also known as a “best-interest” guilty plea, is based on the United States Supreme Court’s decision in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In that case, Henry Alford pleaded guilty to a lesser charge of second-degree murder, rather than face the possibility of the death penalty if he went to trial on a first-degree-murder charge. Id. at 26-37, 91 S.Ct. 160. The Supreme Court held that, although Alford continually denied committing the murder, he “intelligently conclude[d] that his interests require[d] entry of a guilty plea and the record before the judge contain[ed] strong evidence of actual guilt.” Id. at 37, 91 S.Ct. 160.

¶ 21. Dillon claims that she received no favorable outcome by pleading guilty, assuming that the charge at trial would also be manslaughter. However, the indictment was amended only after Dillon agreed to plead guilty to manslaughter. There is no evidence that the State would not have pursued the murder charge had Dillon not pleaded guilty. The sentence for murder is life imprisonment. See Miss. Code Ann. § 97-3-21 (Rev.2006). Furthermore, there was strong evidence of Dillon’s guilt; it was undisputed that she ran over Jackson with her car more than once, killing him. Thus, we cannot agree with Dillon’s assertion that she was “factually innocent.”

¶ 22. We find that the circuit court, in questioning Dillon and her defense counsel, sufficiently ascertained that Dillon entered her Alford plea with a full understanding that it was in her best interest to do so.

BY THE COURT: I understand. For the record, this plea is being rendered pursuant to Alford v. North Carolina. It is my understanding that it is the Defendant’s contention that she does not remember the series of events.
BY MS. OWEN: Correct.
BY THE COURT: Have you reviewed the State’s discovery material with your attorney?
BY MS. DILLON: Yes, sir.
BY THE COURT: Based upon the evidence that the State of Mississippi has and all that you’ve seen and heard in this case, do you believe that it is in your best interest to enter a guilty plea to the offense of manslaughter at this time?
BY MS. DILLON: Yes, sir.
BY THE COURT: And that’s pursuant to Alford v. North Carolina, is that correct, Ms. Owen?
BY MS OWEN: Yes, sir.
BY THE COURT: And are you satisfied that you’ve had enough time to discuss Alford v. North Carolina with your client, explain to her the law as set forth by the U.S. Supreme Court in that case?
BY MS. OWEN: Yes.
BY THE COURT: Are you satisfied that if your case went to trial that the State could prove beyond a reasonable doubt that you’re guilty of the crime to which you’re pleading guilty?
BY MS. DILLON: Yes, sir.
BY THE COURT: The Court finds that Lawanda Dillon has knowingly, willingly, freely, voluntarily, and intelligently entered her guilty plea pursuant to Alford v. North Carolina; that there exists a factual basis for the plea....

We find this issue is without merit.

VI. Whether cumulative error requires the reversal of Dillon’s conviction and sentence.

¶ 23. Having found no individual errors in the specific issues raised by Dillon, we cannot find that cumulative error exists. As the circuit court’s findings were not “clearly erroneous,” we affirm the denial of Dillon’s motion for post-conviction relief.

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

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

      . Later testimony by law enforcement was that no brick was found near the scene of the accident. However, it was confirmed that the car's window on the passenger side had been shattered.

      . This statute was amended on July 1, 2008, to provide that a defendant who enters a guilty plea and is sentenced shall not be allowed a direct appeal "from the circuit court to the Supreme Court[.]” Miss.Code Ann. § 99-35-101 (Supp.2008). However, as Dillon entered her plea and was sentenced prior to the amendment, the revised statute is not applicable.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Marvin BERRY, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-02092-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Rehearing Denied Aug. 23, 2011.
    Certiorari Denied Dec. 1, 2011.

      Julie Ann Epps, Canton, E. Michael Marks, Jackson, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   KING, C.J.,

for the Court:

¶ 1. A jury sitting in Hinds County found Marvin Berry guilty of possession of cocaine. Berry was sentenced as a habitual offender and received a life sentence without the benefit of parole or early release. Subsequently, Berry filed a motion for a new trial and/or a judgment notwithstanding the verdict. The trial court denied the motion, and Berry has appealed raising the following issues: (1) whether the trial court erred in granting the State’s motion, which prevented any mention of the informant’s identity and/or the informant’s failure to testify, (2) whether the court erred in admitting hearsay testimony of the informant, (3) whether the trial court erred in denying Berry’s motion for a continuance in order to secure new counsel, (4) whether the trial court erred in admitting testimony regarding business records without authentication, (5) whether the State provided sufficient evidence in support of Berry’s habitual offender status, (6) whether the prosecution committed reversible error in the cross-examination of witnesses and/or closing arguments, and (7) whether the prosecution committed reversible error in questioning a witness about inconsistent statements without producing extrinsic evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3 On March 15, 2007, the Hinds County Sheriffs Department organized a drug sting at the Best Value Hotel in Jackson. The sheriffs department, through a confidential informant, arranged to have Berry deliver drugs to the informant at the motel. Berry was arrested for possession of cocaine when he approached the designated hotel room.

¶ 4. During trial, the State first presented testimony from Ricky Barner, one of the arresting officers on the scene the evening of the drug sting. Barner testified that a confidential informant had arranged for Berry to bring drugs to the hotel room, and that once Berry arrived, officers attempted to apprehend him and Berry dropped a prescription pill bottle. Barner testified that he retrieved the prescription pill bottle, which was issued to Berry, and that it contained a rock-like substance. The State then called Chancey Bass, a forensic scientist, who tested the contents of the bottle and testified that the rock-like substance contained cocaine. The State then produced Officers Robert Mahaffey and Kevin Swinney; both testified that they were the only officers within the hotel room when Berry arrived.

¶ 5. Berry testified in his own defense and insisted that he went to the hotel room in order to meet an old girlfriend. Berry’s brother-in-law, Gary Thompson, also testified that Berry was going to see a girlfriend. Thompson claimed he went to the hotel with Berry because he intended to borrow Berry’s vehicle during the visit. Both defense witnesses suggested that there were approximately twenty officers at the hotel, and that the twenty officers physically beat Berry upon his arrival.

¶ 6. The State produced two witnesses in rebuttal. Tammy Gaines, booking lieutenant for the Hinds County Detention Facility, testified that Berry’s booking records revealed that Berry had no injuries upon arrival. Officer Barner then took the stand again, and testified that there were only two officers inside the hotel room, and a maximum of six officers outside of the room but within the hotel perimeter.

¶ 7. The jury returned a verdict finding Berry guilty of possession of cocaine. Berry then filed a motion for a judgment notwithstanding the verdict, or in the alternative, a new trial. The post-trial motions were denied, and the sentencing hearing was scheduled. During the sentencing hearing, the State produced evidence of Berry’s previous convictions, which resulted in Berry being sentenced as a habitual offender.

ANALYSIS

¶ 8. Berry has appealed the trial court’s decision to deny the motion for a judgment notwithstanding the verdict, or in the alternative, a new trial. In considering whether the evidence is sufficient to sustain a conviction in the face of a motion for a judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). As for Berry’s request for a new trial, the inquiry turns to the weight of the evidence. Id. at 844 (¶ 18) (citation omitted). An appellate court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

1. Confidential Informant

¶ 9. During opening statements, the prosecutor objected to any reference to the confidential informant. The State orally moved to preclude the defense from cross-examining the witnesses on the informant’s identity or make any reference as to why the informant was not produced or called by the State to testify. The motion was granted, and Berry claims the trial court erred in granting the motion, because in doing so, the court denied him his constitutional right to confront and cross-examine each witness and his right to present a defense.

¶ 10. We will only reverse a trial court’s ruling on the admission or suppression of evidence if the trial court abused its discretion in making its decision. Culp v. State, 933 So.2d 264, 274 (¶ 26) (Miss.2005). On appeal, this Court should determine whether there was “substantial credible evidence to support the trial court’s findings.” Id.

¶ 11. We have previously held that it was not error for the trial court to determine that revealing the identity of the informant was unnecessary when the informant was not a material witness and not inclined to testify at trial. Peters v. State, 971 So.2d 1289, 1292 (¶8) (Miss.Ct.App.2008). The record does not suggest that the informant was a material witness. A material witness is one who participated in the crime or was an eyewitness to the offense. Breckenridge v. State, 472 So.2d 373, 377 (Miss.1985). The arresting police officers testified that the informant was kept within the bathroom of the hotel room for safety reasons and did not witness any of the events leading to Berry’s arrest. Furthermore, neither the State nor Berry indicated that they would call the informant at trial.

¶ 12. Berry claims that the trial court further erred in preventing cross-examination regarding the reasons why the informant was not produced or called by the State to testify. “[A] long line of cases establishes the proposition that the failure of either party in a criminal prosecution to call a witness equally accessible to both is not a proper subject for comment by either.” Doby v. State, 557 So.2d 533, 538-539 (Miss.1990). Holmes v. State, 537 So.2d 882, 885 (Miss.1988); Griffin v. State, 533 So.2d 444, 449 (Miss.1988); Brock v. State, 530 So.2d 146, 154-155 (Miss.1988); and Brown v. State, 200 Miss. 881, 887, 27 So.2d 838, 840 (1946). The record shows Berry was aware of the identity of the informant and considered the informant a girlfriend. Neither party was prevented from calling the informant to testify at trial. Therefore, questioning a witness regarding the failure to call the informant to testify is improper.

¶ 13. Accordingly, this issue is without merit.

2. Hearsay

¶ 14. Berry claims the trial court erred in admitting hearsay evidence. The State called Officer Barner to testify about the events that occurred concerning Berry’s arrest. Barner testified that, “I made a phone call to Mr. Berry. Informed him of what we wanted. He said he’d be there in approximately ten minutes.” Barner subsequently admitted that he did not make the phone call, and that the informant did.

¶ 15. Hearsay is defined as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). Hearsay statements are generally not admissible. However, “[t]o the extent necessary to show why an officer acted as he did, an informant’s tip is admissible.” Jenkins v. State, 993 So.2d 862, 864 (¶ 6) (Miss.Ct.App.2008) (citations omitted). “The admissibility of evidence is largely within the trial court’s discretion, and this Court will not disturb the trial court’s ruling absent a finding that the trial court abused its discretion.” Id.

¶ 16. In Jenkins, the facts were similar to the case at hand. Jenkins was arrested for possession of cocaine based on information that an informant provided to the police. Jenkins, 993 So.2d at 865 (¶ 10). During the trial, the arresting officer testified to the information provided by the informant. This Court held that Jenkins was not arrested, indicted, or convicted based upon the statement made by the informant. Id. Instead, Jenkins was convicted based upon the evidence the officers acquired during their pursuit of Jenkins. Id.

¶ 17. Just as in Jenkins, the arresting officer did testify during Berry’s trial as to the information provided by the informant. During Berry’s trial, the State presented numerous witnesses and various exhibits, including a prescription pill bottle containing cocaine, which was confiscated the evening of Berry’s apprehension. Therefore, Berry was convicted based upon evidence the officers acquired during their pursuit of Berry. Thus, we find that the trial court did not err in admitting the officer’s testimony regarding information obtained by the informant. This issue is without merit.

3. Denial of Continuance

¶ 18. After voir dire, counsel for Berry informed the trial judge that Berry wanted to obtain different counsel. Berry stated his reason to be that his current attorneys had failed to inform him that he was going to be arrested the previous day, during the first day of trial, on another indictment. The trial judge questioned Berry and his attorneys and determined that his counsel were unaware that Berry was going to be arrested. Berry continued to complain and expressed a general dissatisfaction with his attorneys’s efforts to investigate the case. The trial judge denied Berry’s request for a continuance, and explained to Berry that he could proceed with his current counsel or represent himself. Berry claims the court erred in denying the motion for continuance so that he could secure new counsel of his choice.

¶ 19. “The denial of a last minute request for a continuance to retain new counsel is within the trial court’s discretion.” Ousley v. State, 984 So.2d 996, 999 (¶ 7) (Miss.Ct.App.2007) (citation omitted). “This Court will not reverse a trial court’s decision to deny a motion for continuance unless it appears to have resulted in ‘manifest injustice.’ ” Id. “The burden of showing manifest injustice is not satisfied by mere conclusory allegations but by concrete facts that show particular prejudice to the defendant.” Id. Berry did not provide any information of what his counsel failed to investigate in regard to his defense nor did he show any action, or lack of, that resulted in “manifest injustice.” The trial court judge stated that Berry’s attorneys were competent and very familiar with Berry’s case. Because Berry failed to prove that he suffered any injustice, we find this issue to be without merit.

4. Admission of Evidence

¶ 20. Berry argues that the trial court committed reversible error in admitting into evidence a booking photograph of Berry, not produced during discovery, and in allowing the testimony of Tammy Gaines, a booking lieutenant from the Hinds County Detention Center, to testify to police department records without proper authentication. Berry argues that if the discovery violation was harmless error, the admission of the photograph and Gaines’s testimony was improperly admitted as rebuttal evidence.

a. Discovery Violation

¶21. Berry alleges that once he arrived at the hotel, he walked towards the room and more than twenty officers swarmed around him, brought him to the ground, and began beating and kicking him. In cross-examining Berry, the prosecutor presented Berry’s booking photograph and questioned Berry about whether or not it depicted him on the night of his arrest. Berry’s counsel objected to the prosecutor’s questioning concerning the photograph because the photograph had not been provided in discovery. Berry argues that the State failed to provide the photograph, despite his motion for discovery requesting any physical evidence including, but not limited to, photographs. Berry argues that this action constituted a discovery violation under Uniform Circuit and County Court Rule 9.04.

¶ 22. Rule 9.04 of the Uniform Circuit and County Court provides in part:

A. Subject to the exceptions of subsection “B”, below, the prosecution must disclose to each defendant or to defendant’s attorney, and permit the defendant or defendant’s attorney to inspect, copy, test, and photograph upon written request and without the necessity of court order the following which is in the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecution:
1. Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statement made by any such witness;
2. Copy of any written or recorded statement of the defendant and the substance of any oral statement made by the defendant;
3. Copy of the criminal record of the defendant, if proposed to be used to impeach;
4. Any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert;
5. Any physical evidence and photographs relevant to the case or which may be offered in evidence; and
6. Any exculpatory material concerning the defendant.

Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to the defense attorney as justice may require.

¶ 28. The Mississippi Supreme Court has repeatedly held that a violation of Rule 9.04 is considered harmless error “unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice.” Wyatt v. City of Pearl, 876 So.2d 281, 284 (¶ 10) (Miss.2004) (citing Payton v. State, 897 So.2d 921, 942 (¶ 67) (Miss.2003)). The trial judge admitted the photograph stating:

Regarding the matter of the objection by the defendant to the photograph, the evidence is that the State was surprised by the testimony relating to the beatings. Impeachment evidence, whether it’s strictly for impeachment, may be withheld — does not have to be produced in discovery. And this is what this was. Even if there were an error in admitting it, which the Court is — is of the opinion that'there was no error in admitting it, it’s harmless because there was substantial evidence of — by the State refuting the defendant’s claims of beating. So this was only a minor part in — in that particular issue.
And the defense counsel cross-examining the defendant brought out that he was not beaten around the face or the head, and this picture was the upper torso. He had a shirt on, so, really, the — in the opinion of the Court, the picture was harmless and was not prejudicial to the defendant.

Because the photograph was introduced during cross-examination of the defendant and only in response to his allegation of beatings, we agree that there is no discovery violation causing a “miscarriage of justice.”

b. Authentication of Records

¶ 24. Berry argues that the trial court erred in admitting the booking attendant Gaines’s testimony without proper authentication of police records. We find, however, that the defense never objected on this basis, and therefore, this issue was not properly preserved for appeal. A contemporaneous objection is required in order to preserve an issue for appeal. Davis v. State, 43 So.3d 1116, 1126 (¶ 35) (Miss.2010).

¶ 25. Procedural bar aside, Gaines testified to records of a regularly conducted business activity. The report is therefore admissible under the business records exception to the hearsay rule, Mississippi Rule of Evidence 803(6). The foundational requirements for admitting evidence under the business records exception are:

(1) the statement is in written or recorded form; (2) the record concerns acts, events, conditions, opinions or diagnoses; (3) the record was made at or near the time of the matter recorded; (4) the source of the information had personal knowledge of the matter; (5) the record was kept in the course of regular business activity; and (6) it was the regular practice of the business activity to make the record.

Flowers v. State, 773 So.2d 309, 331-32 (¶ 72) (Miss.2000).

¶ 26. The record establishes that Gaines is a shift lieutenant in the booking department of the Hinds County Detention Facility in Raymond. Gaines testified that the records entered into evidence were official records from the department, and that the records were completed during the regular course of booking an individual within the facility. Therefore, the State established all of the foundational requirements necessary to admit into evidence the inspection report under the business records exception to the hearsay rule. In Flowers, the supreme court held that a person who is familiar with the contents, terms and meaning of a form is competent to give testimony regarding the foundational requirements of the business record exception. Id. at 332-33 (¶ 77). Gaines testified that she had more than ten years’ experience in the booking department and that she was familiar with the procedure and process. The trial court judge did not abuse his discretion in admitting Gaines’s testimony and the booking records,

c. Rebuttal Evidence

¶ 27. Berry further argues that the photograph and Gaines’s testimony were improperly admitted as rebuttal evidence. “The determination of whether evidence is properly admitted as rebuttal evidence is within the trial court’s discretion.” Rubenstein v. State, 941 So.2d 735, 771 (¶ 150) (Miss.2006) (citation omitted). The photograph was of Berry wearing a white polo shirt, with no apparent marks or bruising. Berry testified that the photograph was of him, but that he was not sure when the photograph was taken. After Berry testified, the State called Gaines. Gaines testified that the photograph of Berry was taken on the night of his arrest on the instant charges. During Gaines testimony, Gaines testified about Berry’s health screening report, documented by officers the night Berry was taken into custody, which indicated that Berry stated he had no injuries.

¶ 28. The record indicates that the defense introduced testimony of Berry’s claims of a physical altercation, and that both the photograph and the testimony of Gaines were introduced to rebut Berry’s claim that he was beaten upon arriving at the hotel. As to whether the evidence was properly admitted as rebuttal evidence, we find that it was and thus, find no error. Accordingly, this issue is without merit.

5. Habitual Offender Status

¶ 29. At Berry’s sentencing hearing, the State was required to meet the burden of proof in order to sentence Berry as a habitual offender. Mississippi Code Annotated Section 99-19-83 states as follows:

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

¶ 30. Berry argues that the State failed to prove his continuous incarceration for more than one year on two separate occasions within a state penitentiary. The State provided evidence to support that Berry was incarcerated on two separate convictions, for conspiracy to utter a forgery and armed robbery. Berry concedes that the State proved continuous incarceration for over one year in regard to the conspiracy to utter a forgery conviction.

¶ 31. As for the armed robbery conviction, the State offered records to prove the date that Berry began his incarceration and an offense report documenting that he started a fire while incarcerated. The offense report was dated over a year after Berry’s admittance date, but Berry claims that the State’s evidence is insufficient to prove continuous incarceration. We disagree. Besides the offense report, the record indicates that Berry was convicted of armed robbery, sentenced to serve twenty-five years in the Mississippi Department of Corrections, with twenty-two years suspended, three years to serve in the Hinds County Jail and five years on probation. Pursuant to Mississippi Code Annotated sections 47-5-139 (Rev.2004) and 47-7-3 (Supp.2007), Berry was required to serve three years for his armed robbery conviction because an inmate convicted of armed robbery must serve the mandatory time required for parole eligibility, and an inmate convicted of armed robbery is not eligible for parole unless the inmate is sentenced to a term of more than ten years. Therefore, the State adequately proved that Berry was continuously incarcerated for more than one year on two separate occasions.

¶ 32. As for Berry’s argument that the State failed to meet its burden because Berry was incarcerated within a county jail rather than a state penitentiary, the Mississippi Supreme Court has held this argument to be “utterly absurd.” Huntley v. State, 524 So.2d 572, 574-575 (Miss.1988). “[I]t would be utterly absurd for this Court to reach any other conclusion than that the Legislature intended time spent in a local or county jail to count towards the term of imprisonment provided for in a sentence.” Id.

¶ 33. The State met the burden of proof and the trial court was correct in ruling Berry to be an habitual offender. This issue is without merit.

6. Prosecutor’s Statements on Cross-Examination and Closing Argument

¶ 34. During cross-examination of both Berry and his brother-in-law, Gary Thompson, the prosecutor requested that each witness acknowledge that Berry and the State were presenting contradicting versions of the same event.

¶ 35. The questioning of Berry proceeded as follows:

PROSECUTOR: So every one of those police officers under oath lied, according to you; is that right?
BERRY: Pm not trying to call anybody a liar. I’m just stating what happened.
PROSECUTOR: Okay. Well, let’s put it this way: Either you’re right or they are, right?
BERRY: Right.

¶ 36. The questioning of Thompson then proceeded as follows:

PROSECUTOR: So the police, when they said that there was only two that came out of the room, they’re lying?
BERRY: They’re lying. It wasn’t no two of them....

¶ 37. The prosecutor further explained during his closing argument, “The bottom line is this: If you vote not guilty, then what you’re saying is those gentlemen are liars.... ”

¶ 38. Berry claims the State committed reversible error in asking the above questions, because the effect was requiring witnesses to call the police officers liars and was misstating the burden of proof during closing argument.

¶ 39. The defense counsel made no objection during the questioning or during closing argument and therefore, this issue was not properly preserved for appeal. Davis v. State, 43 So.3d at 1126 (¶ 35) (Miss.2010). Procedural bar aside, the State did not insist that either party was lying but merely acknowledged that two versions of events were presented to the jury. Therefore, the prosecutor merely informed the jury that they must decide which of the two versions of events they find most credible. This Court has consistently held that it is the responsibility of the jury to weigh and consider conflicting evidence, evaluate the credibility of the witnesses, and determine whose testimony should be believed. Ford v. State, 737 So.2d 424, 425 (¶ 8) (Miss.Ct.App.1999).

¶ 40. As for Berry’s claim about the statements made during closing argument, this Court will review allegations of misconduct to determine “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Sheppard v. State, 777 So.2d 659, 661 (¶ 7) (Miss.2001). Attorneys are afforded wide latitude in arguing their cases to the jury but are not allowed to employ tactics which are “inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Id.

¶ 41. This Court addressed a factually similar situation as to the one presented in this case in Wess v. State, 926 So.2d 930, 935 (¶ 24) (Miss.Ct.App.2005). There the prosecutor made the following statement during closing argument:

In order for you to go into that jury room and come back with a not guilty verdict, you know what you’ve go to do? You’ve got to go back in there and you’ve got to decide that George Ellis, that Johnny Nealy, that Mike Williams, that Mark Wilcher, every one of them, is a liar. That every one of them is so vicious and vile that they would come to court and try to make up a story like this and send an innocent man to the penitentiary.

Id.

¶ 42. In Wess, we held that although the prosecutor chose to use “strong connotations in making a point to the jury, his argument was nevertheless based upon testimony and evidence presented at trial,” and therefore the issue was without merit. Id. at 935 (¶ 26). In this case, Berry and the State provided testimony of two different version of events. The prosecutor’s statements were based on testimony from various police officers and evidence acquired on the evening of the arrest, and then, it merely informed the jury to decide which version to believe. Accordingly, we find this issue to be without merit.

7. Inconsistent Statements

¶ 43. The final issue Berry raises on appeal is in regard to the prosecutor’s cross-examination of his brother-in-law, Thompson. During the cross-examination, the prosecutor questioned Thompson about inconsistent statements regarding the alleged beating Berry suffered. Berry claims that the prosecutor committed reversible error in questioning Thompson regarding inconsistent statements without introducing proof of the alleged statements.

¶ 44. Again, the defense counsel made no objection based upon this issue during the questioning or during closing argument, and therefore, this issue was not properly preserved for appeal. Davis v. State, 43 So.3d at 1126 (¶ 35) (Miss.2010). Procedural bar aside, an appellate review of the admission or exclusion of evidence is to determine whether the trial court abused its discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936 (¶ 7) (Miss.2002).

¶ 45. The questioning of Thompson proceeded as follows:

PROSECUTOR: And you remember you told us that they steady beat on him for 20 minutes without letting up?
THOMPSON: No, I didn’t tell you that. I told you because you — because we had — we had cleared that before we left out the room. I told you — I said — I didn’t tell you that they constantly beat on him for 20 minutes.
PROSECUTOR: And I think what happened was, if you remember right — do you agree or disagree with this—
THOMPSON: I disagree that they were beating on him 20 minutes constantly.
PROSECUTOR: Okay. And what my— and at first, you admit that you did say that to us, right?
THOMPSON: No, sir. I didn’t — I didn’t admit that. I told you I got — told you they didn’t constantly beat on him 20 minutes. You were trying to get me to say that that’s what I said, but I know I didn’t say that.
PROSECUTOR: I think what happened was — and you can tell me if you agree or disagree with this — that I told you would you expect that this person would have gone to the hospital with these injuries, and that’s when you said, “Well, it really wasn’t a constant beating.” And that’s when you changed and started coming down off of how bad the beating was.
THOMPSON: No, I didn’t.
PROSECUTOR: And then I think also when I went further and said that he didn’t have any injuries, then you said, “Well, maybe it was ten minutes off and on.”
THOMPSON: No, I didn’t. You was trying to confuse me. That’s what you were trying to do to me.
PROSECUTOR: Okay. Am I confusing you now?
THOMPSON: No. You’re not confusing me, but I’m just telling you what you was trying to do, sir.
PROSECUTOR: Okay. But at that time, that’s what you had said earlier, regardless of — you did try to clear whatever you wanted to clear, right?
THOMPSON: I cleared it up. We cleared it up before we left out the room. I told you they was beating— they had him on the ground 15, 20 minutes. They was beating on him and hollering at him and cursing him out and everything, talking about where the drugs at and everything.

¶ 46. The final statement by Thompson is an admission of his prior inconsistent statements, and evidence that the conversation took place. Once a witness explains a prior inconsistent statement by admitting it, the statement cannot be admitted into evidence. Shelton v. State, 728 So.2d 105, 115 (¶47) (Miss.Ct.App.1998). Accordingly, we find this issue without merit.

¶ 47. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. GRIFFIS, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

      . Berry was sentenced for armed robbery in the Circuit Court of Hinds County on April 5, 1979. The 1980 session of the Mississippi legislature amended the statute which had not permitted parole to persons who had been convicted of armed robbery and had provided that such prisoners would be eligible for parole after serving ten years. Mississippi Code Annotated 47-7-3(d) (1972) was amended and became effective July 1, 1980.