author: WALLER, Chief Justice, DICKINSON, Presiding Justice, KITCHENS, Justice,

text:
    Joseph Patrick BROWN v. STATE of Mississippi.
    No. 2010-CA-01246-SCT.
    Supreme Court of Mississippi.
    March 22, 2012.
    Rehearing Denied May 31, 2012.

      James W. Craig, attorney for appellant.
    Office of the Attorney General by Marvin L. White, Jr., attorney for appellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. In 1994, Joseph Patrick Brown (a.k.a. Peanut Brown) was convicted of capital murder for shooting a convenience-store clerk to death on August 8, 1992, during the commission of an armed robbery. Brown was sentenced to death by lethal injection. His conviction and sentence were affirmed by this Court in Brown v. State, 682 So.2d 340 (Miss.1996). Pamela Farrington and Donald Ogden represented Brown at trial and on direct appeal. On March 17, 1998, Brown filed an application for post-conviction relief, which this Court granted, in part, for the sole purpose of determining whether Brown’s trial counsel was ineffective for failing to seek an independent psychological evaluation of Brown for use as mitigation evidence. Brown v. State, 749 So.2d 82, 93 (Miss.1999). A special judge, appointed to hear the matter, denied Brown’s petition for post-conviction relief, and Brown now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following statement of facts is taken from this Court’s opinion in Brown v. State, 682 So.2d 340, 343-44 (Miss.1996):

[Djuring the late evening hours of Friday, August 7, 1992 and the early morning hours of Saturday, August 8, 1992, Brown and his girl-friend at the time, Rachel Walker (“Walker”), were cruising the area of Natchez, Mississippi, looking for drugs. Brown and Walker bought and smoked crack cocaine at several locations during that time period.
In the early hours of August 8, Brown turned the vehicle he was driving into the lot of the Charter Food Store located on Highway 61 South in Natchez, Mississippi, and stopped the vehicle next to the gas pumps. Walker, remaining in the vehicle, observed Brown pump gas into the vehicle and then walk into the store. While Brown was inside the store, Walker observed him walk around briefly and then approach the counter where the cash register and clerk were located. While Brown was at the counter, Walker observed the clerk, Martha Day (“Day”), grab her chest, turn and fall to the floor. Walker didn’t see Day again. It was later to be discovered that Day was killed during an apparent robbery at approximately 2:45 a.m. Day was shot four times — once in the head, once through the heart, and twice in the back.
Walker observed Brown exit the store carrying a cash register among other items. Brown returned to the vehicle and placed the cash register and a handgun on the front seat. Upon entering the vehicle, Brown allegedly told Walker, “You better not move, and you better not say anything. If you love me you won’t say anything.” Brown started the vehicle and Brown and Walker headed into town.
Throughout the morning of August 8 and continuing that day and the next, Walker, an eye-witness to the robbery, made several calls to the Natchez Police Department attempting to tell them about the incident at Charter Food Store. Within twenty-four hours of the robbery, the police received information that a .22 caliber handgun had been pawned by Walker; and approximately forty-eight hours after the robbery, the police recovered a two-dollar bill with a serial number matching that of the one kept in the cash register at the Charter Food Store. The serial number had been noted in an effort to aid police in their investigation in case of a robbery at the store. Walker proved to be the source of that two-dollar bill. With this information, the police began searching for Walker and Brown. On August 11, 1992, they were spotted; both Walker and Brown attempted to elude police by fleeing and hiding. When confronted by the police, Brown blurted out, ‘You got me for driving the car.” Brown and Walker were arrested and charged with the murder of Day.
While incarcerated in the Adams County Jail, Brown allegedly confided to a fellow inmate, Larry Bernard (“Bernard”), that he took the cash register from the Charter Food Store and that he shot Day three or four times. Bernard notified the Adams County Sheriffs Department of Brown’s communication. Testimony revealed that Bernard received no favorable treatment or special consideration for his testimony at trial.
Walker, an ex-girlfriend, eye-witness and accessory after the fact, testified for the State. Through her testimony, the cash register, two-dollar bill and handgun were linked to Brown. Walker’s testimony also placed Brown at the scene of the crime as the triggerman. Walker’s testimony was corroborated by a fellow inmate of Brown and the State’s ballistics expert, in addition to Brown’s own incriminating statements made in writing to Walker while incarcerated. A jury ... found Brown guilty as charged and returned a verdict that Brown suffer death.

Brown, 682 So.2d at 343-44. At the sentencing phase of the trial, Brown’s attorneys presented a case in mitigation by calling four witnesses and submitting a 1984 report from the Louisiana Juvenile Reception and Diagnostic Center which characterized Brown as a nonviolent individual with emotional problems. At defense counsel’s request, the trial court had ordered Brown evaluated at the Mississippi State Hospital at Whitfield specifically for the purpose of developing mitigating evidence pursuant to Mississippi Code Section 99-19-101(6) (Rev.2007). Defense counsel later reported that “[t]he Defendant was evaluated at Whitfield for the purposes of mitigation defense. On the basis that the staff at Whitfield could not assist in any mitigation defense, no written reports were ever submitted.” At the con-elusion of evidence, Brown was sentenced to death by lethal injection. Id. at 344.

¶ 3. On direct appeal, this Court affirmed Brown’s conviction and sentence. Id. at 357. Brown then filed an application with this Court for leave to file a petition for post-conviction relief. This Court granted Brown’s application, in part, only as to the issue of ineffective assistance of counsel, based on counsel’s alleged failure to seek an independent mental evaluation to be used for mitigation. Brown v. State, 749 So.2d 82, 93 (Miss.1999). This Court appointed Judge Isadore W. Patrick to hear the matter. On November 20, 2009, Judge Patrick issued an opinion denying Brown’s petition for post-conviction relief, holding that Brown’s trial counsel had not acted deficiently so as to satisfy a claim of ineffective assistance. Brown now appeals this decision.

ISSUES

¶ 4. Brown raises two issues on appeal:

I. Whether the circuit court erred by not granting Brown’s motion for discovery under Mississippi Rule of Appellate Procedure 22.
II. Whether the circuit court erred by finding that Brown’s trial counsel’s failure to secure an expert report and/or expert mental health testimony on mitigating circumstances did not constitute “deficient performance” under Strickland v. Washington, 466 U.S. 668,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny.

STANDARD OF REVIEW

¶ 5. ‘When reviewing a lower court’s decision to deny a petition for post conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Doss v. State, 19 So.3d 690, 694 (Miss.2009). This Court reviews discovery matters for abuse of discretion. Ford Motor Co. v. Tennin, 960 So.2d 379, 390 (Miss.2007); see also Howard v. State, 945 So.2d 326, 361 (Miss.2006) (reviewing trial court’s denial of post-conviction petitioner’s discovery request for abuse of discretion).

DISCUSSION

1. Brown was not improperly denied dis-covenj.

¶ 6. Brown claims he was denied discovery under Mississippi Rule of Appellate Procedure 22(c)(4)(h). This rule says that, upon appointment of counsel to represent the petitioner, or upon the petitioner retaining private counsel, the petitioner’s trial and appellate counsel shall make available their complete files relating to the conviction and sentence. M.R.A.P. 22(c)(4)(h). It also requires the State to make available “the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed and the prosecution of the petitioner.” Id. Brown says that he never received these files, and that the trial court erred in denying his motion for their production.

¶ 7. Section (c)(4) of Rule 22 governs matters “Preliminary to Proceedings in the Supreme Court.” M.R.A.P. 22(4). Section (c)(4)(h) of Rule 22 is intended to allow a petitioner to gather information to support an application to the Supreme Court for leave to file a motion for post-conviction relief in the tidal court. See Russell v. State, 819 So.2d 1177, 1178-79 (Miss.2001). If this Court grants such an application and directs its filing in the trial court, the proceedings are then governed by Mississippi Code Sections 99-39-13 through 99-39-23. Miss.Code Ann. § 99-39-27(7)(b) (Rev.2007). And under Section 99-39-15, a petitioner is allowed discovery “available under the Mississippi Rules of Civil Procedure or elsewhere in the usages and principles of law if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.” Miss. Code Ann. § 99-39-15 (Rev.2007) (emphasis added); see also Roland v. State, 666 So.2d 747, 751 (Miss.1995) (stating that a petitioner is entitled to discovery under Section 99-39-15 “upon good cause shown and in the discretion of the trial judge”) (quoting Fleming v. State, 553 So.2d 505 (Miss.1989)).

¶ 8. Once this Court granted, in part, Brown’s application, Section (c)(4)(h) of Rule 22 no longer provided the mechanism for discovery. After remand to the trial court for an evidentiary hearing, Brown could seek discovery pursuant to only Section 99-39-15. This section gives the trial judge discretion in granting or denying a petitioner’s request for discovery, and says that the judge may grant such a request “for good cause shown.” Miss.Code Ann. § 99-39-15 (Rev.2007). Accordingly, the question before this Court is whether the trial court abused its discretion in denying Brown’s request. Roland, 666 So.2d at 751.

¶ 9. This Court granted Brown’s application for the sole purpose of examining whether Brown’s trial counsel was ineffective for failing to seek an independent mental evaluation. Brown, 749 So.2d at 93. The Court denied Brown’s application in all other respects. Id. Accordingly, the post-conviction hearing was limited to this single issue. After a date for the eviden-tiary hearing was set, the State requested that the trial court order the release of all medical records concerning Brown’s evaluation at Whitfield. Furthermore, the State subpoenaed both of Brown’s trial attorneys as well as Reb McMichael, M.D., and Criss Lott, Ph.D., both of whom were involved in Brown’s evaluation at Whitfield.

¶ 10. In his motion to the trial court, filed five days before the hearing, Brown stated that, without discovery, he “[could not] be adequately prepared for the evidentiary hearing required by the Supreme Court.” Brown did not say why he could not prepare adequately without the requested discovery, nor did he address why access to his medical records, access to the doctors who evaluated him, and access to his trial counsel were not sufficient to prepare him for a hearing on whether his counsel was ineffective for failing to seek an independent medical evaluation. As such, Brown did not show “good cause” for why his discovery request should be granted.

¶ 11. In Hubanks v. State, 952 So.2d 254 (Miss.Ct.App.2006), the Court of Appeals upheld the denial of a post-conviction petitioner’s motion for discovery. The trial judge had denied the request because, inter alia, the discovery requests would not reveal evidence pertinent to the matter at issue on PCR. Id. at 256. The judge held that there was not “good cause” to grant the discovery request. Id. at 257. The Court of Appeals recognized that “the decision whether or not to allow discovery rests fully within the discretion of the trial judge.” Id. at 256. The Court held that the judge’s reasoning was sound and affirmed the denial of the discovery request. Id. at 257.

¶ 12. Like the petitioner in Hubanks, Brown has not shown why his discovery request would reveal evidence relevant to the matter at issue on PCR—whether his counsel was ineffective for failing to seek an independent medical evaluation for mitigation. Accordingly, Brown has not shown “good cause” for why his discovery request should be granted. Keeping in mind the sole issue for which Brown’s application was granted, we cannot say that the trial court abused its discretion in denying Brown’s discovery request.

II. Brown’s trial coimsel’s performance was not deficient.

¶ 13. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on an ineffective-assistance-of-counsel claim, a defendant must first prove that his counsel was deficient, which requires showing that “counsel made errors so serious that [he or she was] not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Secondly, a defendant must prove that the “deficient performance prejudiced the defense,” which requires showing that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. Absent both showings, a defendant may not prevail on his claim that his counsel was ineffective. Id.

¶ 14. A reviewing court must “strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy.” Liddell v. State, 7 So.3d 217, 219-20 (Miss.2009). And even where professional error is proven, this Court must determine if there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991).

¶ 15. Consideration of relevant mitigating evidence is generally required at the sentencing phase because the imposition of the death sentence should reflect a reasoned, moral response to the defendant’s background and character and the crime. Russell v. Collins, 998 F.2d 1287, 1291 (5th Cir.1993). This Court has held that “[i]t is critical that mitigating evidence be presented at capital sentencing proceedings.” State v. Tokman, 564 So.2d 1339, 1342 (Miss.1990) (citing Leatherwood v. State, 473 So.2d 964, 970 (Miss.1985)). The Court recognized in Tokman that “counsel has a duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case.” Tokman, 564 So.2d at 1342.

¶ 16. This Court granted Brown’s application for leave to file a petition for post-conviction relief for the purpose of determining “whether trial counsel was ineffective in failing to seek other expert assistance when the State Hospital examination produced no report and whether such inaction resulted in any prejudice to his case at sentencing.” Brown, 749 So.2d at 91. However, in the trial court and now on appeal, Brown has focused his ineffectiveness argument almost exclusively on trial counsel’s decision to forego presenting an expert report on Brown’s psychological evaluation and testimony from the State Hospital doctors. He claims that his counsel was deficient by preventing this evidence from being presented as mitigation, and that he was prejudiced by such deficiency.

¶ 17. It is clear from the record that Brown’s attorneys, after discussing Brown’s psychological evaluation with the State doctors, decided not to have the doctors produce a report after determining that such report would be more harmful than helpful. At the post-conviction evi-dentiary hearing, Dr. Lott, former director of the Outpatient Forensics Unit of the State Hospital, testified that such course of action was not unusual:

Whenever we evaluate someone at this stage, the mitigation stage, and I do it in capital — well, several capital cases, I always will discuss my results with the counsel, the attorney. The attorney then decides whether or not they want me to develop a report, which they would subsequently use in trial. And I give them my impression. I give them my understanding of the diagnosis and how I see the facts — or the case as it applies to my psychological evaluation. In some cases it’s advantageous and in some cases it’s not. I’ve probably been asked more times than not to not generate a report. Or if I generated a report, more times than not, it’s not been used in trial, because the report was not advantageous.

With regard to Brown’s condition, Dr. Lott further testified, “I’m not saying there’s not any mitigation. There is, though, a significant amount of information that might be damaging, might be harmful.” Both of Brown’s trial attorneys, Pamela Farrington and Dan Ogden, testified at the hearing. Farrington stated that she would have asked that a report be generated had there been any hope that such a report would be more beneficial than harmful. Similarly, Ogden testified, “to make it real clear: It’s not that they wouldn’t submit it; they would have submitted a report, but we asked them not to write a report, to put it in writing.” When asked if this decision was based on trial strategy, Ogden replied affirmatively that it was. The other doctor involved, Dr. McMichael, testified that, based on his review of the records, a mitigation report would not have been helpful.

¶ 18. Mississippi Code Section 99-39 — 9(e) (Rev.2007) requires that an application for post-conviction collateral relief be supported by the affidavits of witnesses who will prove the petitioner’s claims. Brown has not shown just what mitigation evidence might have been developed through the production of a psychological report, nor has he shown what would have been garnered from an additional psychological evaluation. Brown has offered neither evidence nor testimony from other experts as to any failings or omissions by the doctors retained by Brown’s trial attorneys. Although he had the opportunity to do so, Brown never asked Drs. Lott and McMichael just what issues might have been pursued that might have made a difference to a jury.

¶ 19. Brown’s trial attorneys were not responsible for the doctors’ findings as to the lack mitigation evidence. This is not a case where no mitigation evidence was presented; it is simply a case where a conscious decision was made to go forward with certain witnesses but not others. The record here does not reflect that the decision of Brown’s attorneys constitutes a professional error. Their decision was calculated to best serve Brown’s interests at trial. See Spicer v. State, 973 So.2d 184, 192 (Miss.2007) (decision not to use defendant’s mental evaluation as mitigation presumed strategic); see also Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (strong presumption that counsel’s conduct constitutes “sound trial strategy”).

¶ 20. Furthermore, Brown has made no showing that additional psychological evaluation would have been beneficial in mitigation. A defendant “cannot demonstrate that his trial counsel was deficient or any resulting prejudice from mere undeveloped assertions that another expert would have been beneficial.” Jordan v. State, 912 So.2d 800, 817 (Miss.2005). Brown therefore suffered no deprivation of effective counsel under the Sixth Amendment. This issue is without merit.

CONCLUSION

¶ 21. The trial court did not abuse its discretion in denying Brown’s motion for discovery, as Brown failed to show “good cause” for his request. Furthermore, Brown has not demonstrated that his trial counsel acted deficiently in not introducing, as mitigation, a report of Brown’s psychological evaluation or in further investigating Brown’s psychological state. We therefore affirm the trial court’s decision to deny Brown’s petition for post-conviction relief.

¶ 22. AFFIRMED.

CARLSON, P.J., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. DICKINSON, P.J., JOINS IN PART.

DICKINSON, Presiding Justice,

Dissenting:

¶23. Under Mississippi Rule of Appellate Procedure 22(c)(4)(ii), Brown unquestionably was entitled to the files and discovery he requested. But because a procedural statute conflicts with the rule, the majority says the statute must control. I do not believe the Legislature has the authority to pass procedural rules in the first place; and I certainly do not agree that procedural statutes should control over a conflicting Court rules. The majority is of a different view, so I respectfully dissent.

CHANDLER, J., JOINS THIS OPINION.

KITCHENS, Justice,

dissenting:

¶ 24. I am unable to agree with the majority’s finding that the trial court did not abuse its discretion in denying Brown’s discovery request. Brown argues that he is entitled to all records pertaining to his conviction and sentence, as well as the investigation and prosecution of his case, pursuant to Mississippi Rule of Appellate Procedure 22(c)(4)(ii). The majority finds that Rule 22(c)(4)(ii) is inapplicable because it pertains to matters “Preliminary to Proceedings in the Supreme Court,” and because the rule is intended to allow a petitioner to gather information to support an application to this Court for leave to file a motion for post-conviction relief in the trial court. Maj. Op. at ¶ 7. Thus, the majority finds that, once Brown was granted leave by this Court to file his application for post-conviction relief pursuant to Mississippi Code Sections 99-39-13 through 99-39-23, he was required to show good cause in order to obtain discovery pursuant to Mississippi Code Section 99-39-15. Maj. Op. at ¶ 8. I agree with the majority’s analysis of Rule 22(c)(4)(ii) and its applicability to matters before this Court; however, I am persuaded that Brown has shown good cause under Section 99-39-15 for the discovery of all files pertaining to his conviction and sentence, as well as flies from the investigation and prosecution of his case. Without these files, Brown is without the means to develop an evidentiary basis to prove his claim of ineffective assistance of counsel. Accordingly, the majority is remiss in concluding that Brown failed to show that he received ineffective assistance of counsel, given that he did not have available to him all of the information that pertained to this case for possible development of that claim.

¶ 25. Brown was granted leave of this Court, in part, to appeal on the issue of whether his lawyers’ failure to seek an independent mental evaluation constituted ineffective assistance of counsel. Brown v. State, 749 So.2d 82, 93 (Miss.1999). This Court directed Brown to file all discovery requests with the trial court. Id. In the interim, Rule 22(c)(4)(h) was revised in 2000 to include its present-day language, which provides:

Upon appointment of counsel, or the determination that the petitioner is represented by private counself,] the petitioner’s prior trial and appellate counsel shall make available to the petitioner’s post-conviction counsel their complete files relating to the conviction and sentence. The State, to the extent allowed by law, shall make available to post-conviction counsel the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed and the prosecution of the petitioner.

(Emphasis added.) Pursuant to this rule, Brown filed a motion with the trial court seeking discovery of all the files of his trial counsel, as well as the complete flies of law enforcement and prosecutorial agencies involved in the investigation and prosecution of the capital murder charge against him. Brown’s motion was denied by the trial court.

¶ 26. Because Brown did not have benefit of the current version of Rule 22(c)(4)(ii) at the time he applied for leave of this Court to file an application for post-conviction relief with the trial court, even if Rule 22(c)(4)(ii) does not apply at this stage of the proceedings, I believe Brown has shown good cause for discovery pursuant to Section 99-39-15, as he has never received the complete files related to his conviction and sentence. The majority reasons that, since the case was remanded on the issue of whether counsel was ineffective in failing to obtain an independent mental health expert, then Brown was entitled to his mental health records only. However, without benefit of one hundred percent of the files pertaining to the investigation, prosecution, conviction, and sentencing of the charged crime of capital murder, Brown did not have access to essential material with which to attempt to develop and assert his claim of ineffective assistance of counsel.

¶27. Because discovery was withheld from Brown, I cannot agree that his ineffective assistance of counsel claim can be decided on its merits. The appropriate disposition for the instant case is a remand to allow for discovery, followed by a new evidentiary hearing on the issue of ineffective assistance of counsel, as it relates to a lack of mitigating evidence via an independent mental health expert of Brown’s choosing.

KING, J., JOINS THIS OPINION. DICKINSON, P.J., JOINS THIS OPINION IN PART.

      . Although Brown's brief lists three issues on appeal, his third issue- — whether the circuit erred in denying him post-conviction relief— is wholly covered in the second issue-whether Brown’s trial counsel provided ineffective assistance.

      . While the record does not contain a specific order of the court denying Brown’s discovery request, the court, at the hearing, made references to "preliminary rulings” on an outstanding motion and declared that the case was ready to be heard. Both Brown and the State argue on appeal under the assumption that the discovery request was denied.


source: Caselaw Access Project

author: DICKINSON, Presiding Justice, KITCHENS, Justice,

license: Public Domain

text:
    Charles Timothy WEST, West Quality Food Services, Inc., Coastal Express, Inc., West Leasing Company, West Brothers Leasing Company, West Family Leasing Company and West Investments, LLC v. Deborah Gayle Thornton WEST. Deborah Gayle Thornton West v. West Quality Food Services, Inc., Coastal Express, Inc., West Leasing Company, West Brothers Leasing Company, West Family Leasing Company and West Investments, LLC. Deborah Gayle Thornton West v. Charles Timothy West, West Quality Food Services, Inc., Coastal Express, Inc., West Leasing Company, West Brothers Leasing Company, West Family Leasing Company, KT of Baton Rouge and West Investments, LLC.
    Nos. 2008-CA-01700-SCT, 2009-CA-01877-SCT, 2010-CA-00316-SCT, 2002-IA-01158-SCT.
    Supreme Court of Mississippi.
    March 22, 2012.
    Rehearing Denied May 31, 2012.

      Terry L. Caves, Jerry D. Sharp, Mark A. Nelson, James Robert Sullivan, Jr., Jared W. Eastlack, attorneys for appellants.
    Patrick F. McAllister, attorney for ap-pellee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. A judgment creditor served writs of execution on two corporations whose restricted stock was owned by the judgment debtor, who then sold his stock back to the corporations. The chancellor dismissed the writs, holding that the sale of stock rendered them moot.

¶ 2. We hold today that statutory restrictions on the transfer of restricted shares of corporate stock apply to both voluntary and involuntary transfers of the shares; that — after a judgment creditor serves a corporation with a writ of execution regarding one of its shareholders— repurchasing the shareholder’s shares will not excuse the corporation from responding to the writ of execution by filing the statutorily required sworn statement; and that the judgment creditor may — to the extent allowed by Mississippi statutes and other applicable law — execute on all benefits due the judgment debtor by the corporation, including the purchase price of the judgment debtor’s stock.

¶ 3. These three consolidated appeals— all springing from a divorce granted in 1994 — present thirty-eight issues including one of first impression. Because we are reversing the chancellor on three issues and remanding for a new trial; and because the chancellor’s resolution of those issues may affect the outcome of others, we hold that all issues not specifically resolved in this opinion may be presented by the parties to the chancellor for adjudication.

BACKGROUND FACTS AND PROCEEDINGS

¶ 4. When Charles Timothy West (“Tim”) and Deborah Gayle Thornton West (“Debbie”) divorced in November 1994, their property settlement agreement (“Agreement”) required Tim to pay child support and to make “bi-weekly periodic payments of one-half of [his] income” as alimony. Debbie was also “entitled to and shall be vested with one half (½) of all existing marital assets.”

¶ 5. At the time of the divorce, Tim was employed by West Quality Food Services, Inc. (“West Quality”); he owned stock in West Quality and Coastal Express, Inc. (“Coastal”); and he held limited partnership interests in West Leasing Company, West Brothers Leasing Company, and West Family Leasing Company (“the West Leasing Companies”). All of these entities (“West Entities”) are closely-held family businesses.

WEST I

¶ 6. After five years had passed, relying on advice of counsel, Tim reduced his alimony payments according to calculations provided by West Quality’s accounting firm, Horne, LLP. Debbie filed a contempt action, and Tim counterclaimed, arguing that the Agreement’s alimony and property-division provisions were ambiguous and unenforceable; and that — because the Agreement did not define the term “marital assets” — Debbie was not entitled to an ownership interest in half of his business assets.

¶ 7. On April 30, 2002, the chancellor entered an interlocutory judgment, finding that Tim and Debbie never actually had reached an agreement on alimony and division of property, and that the issue should be presented to the court anew. Debbie filed an interlocutory appeal, arguing the trial court erred in (1) holding the provisions of the Agreement null and void; (2) failing to determine that $411,000 in corporate loans to Tim were actually distributions, in which she was entitled to share; (3) failing to determine that Tim breached his obligations under a predivorce death-benefit agreement. Debbie also argued that she was entitled to attorneys fees, and that — absent the parties’ consent — the chancellor had no jurisdiction or authority to void the Agreement and start over. Finally, Debbie argued that the chancellor had erred in quashing her subpoena for certain West Quality documents.

¶ 8. We granted Debbie’s application for interlocutory appeal. We held that the portion of the Agreement titled “Support and Division of Income for Wife” was ambiguous, and we resolved the ambiguity by finding it awarded Debbie periodic alimony. And because Tim had reduced his payments, we remanded for a determination of whether there had been a material change in circumstances that warranted the reduction. We also held that the property settlement portion of the Agreement was not ambiguous.

WEST II

¶ 9. After we remanded, Debbie filed an amended complaint, adding the West Entities as defendants, claiming they had conspired with Tim to deprive her of her portion of distributions to Tim by disguising the distributions as “loans” from Coastal Express and West Quality. Following extensive discovery, the chancellor dismissed the West Entities as parties and, finding Debbie had no reasonable basis to pursue a claim against West Entities, ordered Debbie to pay their attorneys’ fees.

¶ 10. At the conclusion of the trial, the chancellor issued an extensive, fifty-two-page opinion and final judgment, in which he found that:

1) the November 1994, judgment of divorce was enforceable;
2) Debbie was entitled to one-half of the marital assets; that the law of the case prohibited Tim from relitigating what this Court already had decided; and that Debbie was entitled to a one-half interest in the West Entities, but only if certain transfer restrictions contained in the West Quality stock agreement were lifted;
3) Debbie was entitled to $570,792 in past-due alimony with an interest rate of seven percent, and that all future alimony payments should be calculated using the “Horne” method;
4) the money transferred from West Quality to Tim was in the form of loans and not distributions;
5) Tim was in civil contempt for refusing to comply with the Agreement obligations;
6) Tim breached his duty to keep Debbie informed about financial information, and he must provide Debbie with certain financial documents;
7) Tim breached his obligation to maintain certain life-insurance policies;
8) Tim’s alleged violation of an insurance-policy-death-benefit agreement was moot;
9) Debbie was not entitled to any interest in West Investments;
10) Tim was not entitled to a modification of his alimony obligations;
11) Tim was entitled to child support;
12) Debbie was entitled to attorneys’ fees totaling $262,468.53; and
13) the West Entities were entitled to attorneys’ fees.

¶ 11. From the chancellor’s order, both Tim and the West Entities appealed, and Debbie cross-appealed.

WEST III

¶ 12. While the appeal of West II was pending, Debbie filed discovery requests on the issue of the West Entities’ attorneys’ fees. Then, on June 9, 2009, after holding a hearing, the chancellor entered an order stating that “West Entities were wrongfully made parties to the action,” and they were “entitled to attorneys’ fees and expenses.” He ordered Debbie to pay $41,063.71 in attorneys’ fees. He later reduced the amount to $33,366.71, from which Debbie has filed a separate appeal.

WEST IV

¶ 13. On November 18, 2008, Debbie attempted to collect her judgment for past-due alimony and attorneys’ fees by filing a writ of execution on Tim’s distributions from, and shares of stock in, West Quality and Coastal. Tim and West Quality responded with motions to stay, dismiss, or quash the writ, pointing out the prohibitions in the West Quality bylaws and stock agreement. The chancellor stayed the writ of execution and requested briefs on the effect of the restrictions.

¶ 14. Meanwhile, the corporation demanded repayment of the loans they had made to Tim. Tim responded that he would have to sell his stock to pay the loans, so he sold his West Quality stock back to West Quality for $1,552,804, and his Coastal stock to back Coastal for $87,953. West Quality retained the bulk of the stock-sale proceeds-$l,172,205-in satisfaction of Tim’s debt. The corporations satisfied the balance of the purchase price of Tim’s stock by executing separate promissory notes at 2.96% interest, payable in annual installments.

¶ 15. As a result of the stock sale, the chancellor denied Debbie any relief on her writ of execution, finding it was nullified by his previous stay order and the stock sale. Debbie appealed this decision. We have consolidated all of these appeals.

ANALYSIS

¶ 16. Our standard of review for the issues we address today is well-understood: We will affirm a chancellor’s findings of fact when they are supported by substantial evidence, unless the chancellor abused his or her discretion, was manifestly wrong, was clearly erroneous, or applied an erroneous legal standard. It is a chancellor’s duty to determine the weight and credibility due a witness’s testimony. We review questions of law de novo.

The chancellor applied an erroneous legal standard regarding Tim’s request for a reduction in periodic alimony.

¶ 17. In considering the alimony issue initially, the chancellor expressed understandable frustration with the Agreement’s unusual alimony provisions. He held they were ambiguous and void. But for reasons stated in West I, we reversed and remanded, finding that the provisions were enforceable, and that the alimony was periodic.

¶ 18. Upon remand (West II), Tim argued a reduction in his income justified a corresponding reduction in alimony. But the chancellor refused to consider any reduction in alimony, stating:

This court would like to grant Tim’s request for modification because the agreement is cumbersome, it is extremely difficult to calculate what he owes in alimony, and because the complex nature of the agreement does nothing but encourage never-ending litigation. However the Supreme Court [in West I ] has made it clear that the agreement should be enforced.

¶ 19. Tim appeals, arguing that the chancellor should have considered and applied the Armstrong factors to his request for reduction of alimony.

¶ 20. We indeed held in West I that the Agreement’s alimony provisions were enforceable. But that holding was not based on contract law. It was based on the fact that, in his decree granting Tim and Debbie a divorce, the chancellor stated that the Agreement was “confirmed, approved and adopted by as a part of the Final Judgment.” And while it is true that property-settlement agreements are, in many respects, enforceable contracts, they do not trump a chancellor’s obligation to decide alimony, property-division, and child-support issues based on established legal principles.

¶ 21. In this case, the Agreement’s alimony provision—which this Court determined in West I to be periodic alimony— served as a guideline for the chancellor to determine appropriate alimony. But when the Agreement was incorporated into the final divorce decree, its alimony provisions became an enforceable court award of periodic alimony, subject to modification upon a proper showing of a material change in circumstances.

¶ 22. Periodic-alimony awards are based on need and ability to pay—not contract law. And while our decision in West I did preclude any modification of the Agreement’s alimony provision based on ambiguity, it did not prevent Tim from seeking a modification based on a material change in circumstances. Indeed, we stated in West I that, on remand, the chancellor was to “consider ... whether there was a material change in circumstances which clearly resulted in an inability to pay....”

¶23. For the reasons stated, we reverse the chancellor and remand for a determination of whether a material change in circumstances exists and, if so, whether it merits a change in the chancellor’s award of periodic alimony. And we instruct the chancellor to apply the Armstrong factors to make the determination.

The chancellor did not err in finding that Debbie West was entitled to one-half of all distributions paid to Tim West.

¶ 24. Under the Agreement’s “Division of Marital Property” language, Tim agreed—and the chancellor approved—the following provision:

It is the intention of the Husband and the Wife to benefit and to share equally the employment and business income of Husband.... Husband acknowledges, and it is the intention of both parties to make a present transfer to Wife of a one-half (½) vested equitable ownership interest in said properties [referring to marital assets, including, but not necessarily limited to, stocks, limited partnerships and business assets] as a division of marital assets, while married, and this Agreement constitutes an existing equitable lien to the Wife of one-half (½) of said properties.

¶ 25. Unlike periodic alimony, this provision divided the Wests’ property as it existed at the time of the divorce. It is not subject to change.

¶ 26. Tim argues that, because the provision does not include or mention the word “distribution,” the chancellor erred by finding that Debbie was entitled to half of his distributions from the entities that existed at the time of the divorce. We disagree.

¶ 27. Tim cannot credibly argue that he did not intend to transfer to Debbie an equitable interest in all of the business interests he held at the time the agreement was signed. These business interests included his stock and his ownership in the limited partnerships. An equitable title provides a “beneficial interest” in property, meaning an interest in the benefits. A “beneficial interest” can be nothing less than an interest in the benefits. And since distributions to stockholders and owners are a benefit, we cannot say the chancellor was manifestly wrong in holding that Debbie was entitled to her share of the distributions.

¶ 28. The Agreement provided that Tim would share with Debbie all benefits, including distributions, that resulted from his ownership interest in the stock and partnerships that existed at the time the agreement was signed. Tim’s salary, on the other hand, was not a benefit of his ownership interest, but rather his pay for work. His salary — and any change in Debbie’s financial condition — may certainly be considered in evaluating Tim’s ongoing periodic-alimony obligation. But Debbie was awarded an equitable interest in Tim’s stock and other business interests — as they existed at the time the Agreement was signed. And we cannot say the chancellor erred in this regard.

The chancellor did not err in failing to void the provisions of the Agreement concerning Debbie’s interest in Tim’s stock due to the shareholder and partnership restrictions on transfer agreements.

¶ 29. Tim argues that, because of transfer restrictions, the chancellor should have voided the Agreement’s provisions that purported to transfer to Debbie an interest in his stock. His brief is riddled with such statements as: “The chancellor should have voided the provision of the Agreement whereby [he] attempted to transfer and lien his interest in West Quality ...,” and “The West Quality shareholder agreement provides that a shareholder may not dispose of his stock nor can the shareholder lien his interest in the stock,” and “a transferee acquires no right in the shareholder’s stock absent compliance with this agreement.”

¶ 30. We have carefully reviewed Debbie’s arguments before the trial court, her writs of execution, and her briefs before this Court; and we do not find that she attempted to acquire title to, nor place a lien on, Tim’s stock. Instead, she claims her equitable interest in the stock entitles her to share in the benefit. For reasons discussed later in this issue, as it affects distributions going forward, is now moot.

¶ 31. The Agreement clearly recognized that Tim would remain the legal owner of the stock, but it just as clearly announced Tim’s intent to grant Debbie half of every benefit that resulted from his ownership interests in the businesses. This is consistent with the Agreement’s specific language: “Husband acknowledges, and it is the intention of both parties, to make a present transfer to Wife of a one-half (⅛) vested equitable ownership interest in said properties as a division of marital assets, while married.... ” The chancellor found this agreement to be reasonable when he granted the divorce and incorporated the property-settlement agreement into the decree.

¶ 32. Tim now argues that the provision is void because his stock was restricted. But he provides us no reason why the restricted nature of his stock prevents him from dividing the financial benefits of the stock with whomever he pleases. Because Debbie’s claim is to an equitable interest in — not legal title to — Tim’s stock and business interests, we hold that Tim’s transfer of an equitable interest in his business holdings was valid, binding, and enforceable; and this issue is without merit.

The chancellor did not err in finding that Tim breached the provisions of the Agreement by failing to pay life-insurance premiums.

¶ 33. The Agreement, referencing a life-insurance policy with Franklin Life Insurance Company, provides that Tim and Debbie would each pay half of the $260 monthly premium. Tim stopped paying the premiums and allowed the accumulated cash value to pay the premiums. Also, Debbie withdrew some cash value without Tim’s consent. These decisions were contrary to a provision in the Agreement that prohibited use of cash value, absent agreement of both parties.

¶ 34. The chancellor mistakenly held that — because the Agreement did not provide what would happen if one party withdrew cash value without the consent required by the Agreement — Debbie did not violate the Agreement by withdrawing cash value without Tim’s consent. In this regard, the chancellor overlooked the fact that, when he incorporated the property-settlement agreement into the divorce decree, its provisions regarding child support, property settlement, and alimony ceased being contractual in nature and became part of an enforceable court order.

¶ 35. We find, however, that both parties violated the provision, and the chancellor fashioned a reasonable and equitable remedy whereby Tim is required to obtain a term-life policy with the same premium required by the Agreement. We do not find the chancellor’s decision was an abuse of discretion, and we affirm the chancellor on this issue.

The chancellor should have found Debbie in contempt and in breach for withdrawing the cash value from the life-insurance policies.

¶ 36. Tim argues that chancellor should have held Debbie in contempt for withdrawing part of the life-insurance cash value without his consent, as required by the Agreement/court order. While we hold the chancellor incorrectly found Debbie did not violate the Agreement by withdrawing cash value, we find the chancellor’s remedy was fair and equitable. As stated above, both Debbie and Tim violated the Agreement by wrongfully withdrawing cash value. The chancellor may, at his discretion, revisit this issue on remand.

The chancellor erred in finding that Tim breached the provisions of the Agreement requiring him to furnish certain financial information to Debbie.

¶ 87. The chancellor stated in his findings of fact that “Tim has the duty to keep Debbie informed of his financial status as required by the Agreement and that he has breached that duty.” Tim argues that the chancellor provided no basis for this statement and holding. We agree. We find nothing in the chancellor’s findings of fact or orders that establishes when or how Tim breached his duty to provide financial information.

¶ 38. Although the chancellor did not hold Tim in contempt, Tim is entitled to know what facts support a finding that he breached his obligation under the Agreement. We reverse the chancellor’s finding that Tim was in breach of the Agreement for failing to provide financial information to Debbie. If necessary, the issue may be presented to the chancellor anew on remand.

The chancellor did not abuse his discretion in finding that the loans and “113 account” advances to Tim were legitimate loans.

¶ 39. Debbie claims that her equitable interest in Tim’s stock entitled her to half of certain constructive distributions West Entities made to Tim, or for his benefit. These distributions were made in three forms: First, West Quality made direct loans to Tim. Second, West Quality loaned Tim money which he, in turn, loaned to Coastal. Third, West Quality paid various expenses for Tim, including income taxes and attorneys’ fees, which it carried on its books as an account receivable. The parties refer to this account receivable as the “113 account.”

¶ 40. In West I, we remanded Debbie’s constructive-transfer issue with instructions to the chancellor to decide if $411,000 in transfers from West Quality to Tim were loans or constructive distributions. On remand, Debbie made a new claim that, in order to deprive her of her equitable interest in Tim’s corporate distributions, and in addition to the loans discussed in West I, the West Entities fraudulently transferred nearly $800,000 to Tim in the form of 113 account advances.

¶ 41. On remand, the chancellor held that these transfers to Tim were legitimate loans — not distributions. As we suggested in West 1, the chancellor applied the Al-terman factors and examined all the evidence, including testimony from three lay witnesses about the transfers and their legitimate purpose, as well as the testimony of a certified public accountant who provided unrebutted evidence of the companies’ financial practice and history of making similar loans — a practice whose origin predated the divorce by several years, eliminating the possibility that the loans were manufactured to deprive Debbie of her interest — an interest not created until years later.

¶ 42. Absent an abuse of discretion or clearly erroneous findings, we decline to disturb the chancellor’s decision, which, on this issue, was supported by substantial evidence. So on this issue, we affirm the chancellor’s finding that the transfers to Tim were legitimate loans.

The chancellor erroneously held that Tim’s sale of his stock mooted Debbie’s writ of execution and erroneously denied Debbie’s Rule 52 motion for findings of fact and conclusions of law.

¶ 43. On November 19, 2008, in an attempt to collect judgments in excess of a million dollars for past-due alimony, attorney fees, and interest, Debbie served West Quality and Coastal with writs of execution “upon the stock, shares, or interest of [Tim].” Rather than responding to the writ with a sworn statement setting forth the value of Tim’s “stock, shares, or interest” as required by statute, West Quality and Coastal filed motions to quash the writs. Tim filed a motion to stay the writs, and for an injunction, claiming that his stock was “subject to liens of the corporation, and restrictions on transfer.”

¶ 44. At a hearing on the motions, the chancellor — after hearing lengthy arguments from counsel concerning whether Debbie could execute on restricted stock— said:

My question is, does anybody have any law on the subject? At first blush, when you have a closely-held corporation such as you have in this case and the shareholders have restricted their stock by agreement with the corporation and among themselves, I don’t think that a judgment creditor can come in and take that stock and sell that stock at a sheriffs sale with those restrictions on it.

¶ 45. The chancellor then stated that he was abating execution on the writs “[t]o give [Debbie’s counsel] an opportunity to submit some authority to the Court on the question-and law on the question.” One of Coast Entities’ counsel requested, and was granted, an opportunity to respond to the brief to be submitted by Debbie’s counsel. With respect to the West Entities’ motions to quash the writs, the chancellor entered an order on December 1, 2008, finding that “the Writ of Execution is stayed and abated until further order of this Court.” On December 15, 2008, he entered a similar order with respect to Tim’s motion to stay the writs.

¶46. The chancellor ordered briefing, with Tim’s brief (after an extension was granted) due on February 6, 2009. But a few days before his brief was due, Tim sold his West Quality and Coastal stock back to the respective companies. Rather than paying Tim the $1,552,804 purchase price for its stock, West Quality applied $1,172, 205 to satisfy Tim’s loans and other debts to the company, and gave him a promissory note for the $380,599 balance. Coastal gave Tim a promissory note for the entire $87,953 purchase price of its stock. Then, rather than providing briefs on the question of whether Debbie could execute on restricted stock, West Quality and Coastal filed answers to Debbie’s writ of execution, claiming the writs were mooted by their purchases of Tim’s stock.

¶ 47. On October-20, 2009, the chancellor held a hearing on the issues surrounding Debbie’s writs of execution. His order, entered the following month, held that the motion to quash the writ of execution was moot because

the Court nullified and abated the subject Writs of Execution in its order, entered December 1, 2008. Accordingly, the subject property at issue in the Writs of Execution was free from any encumbrance resulting from the Writs of Execution at the time the stock transfer occurred, and [West Quality and Coastal] were free to acquire the stock at issue under the transactions of February 1, 2009.

¶ 48. After the chancellor entered the order, Debbie moved for Rule 52 findings of fact and conclusions of law, arguing that the appellate court would have no way to know the basis of the order. The chancellor denied the motion.

¶ 49. It is uncontested that, when she served the writs of execution on West Quality and Coastal, Debbie held a valid, enrolled judgment against Tim for which no supercedeas bond was filed. So at the time the writs were served, Debbie was a judgment creditor. And according to law, upon service of the writs on West Quality and Coastal,

[t]he stock, shares and interest of the defendant in the corporation or company, including all dividends that may accrue after such levy, shall be bound by the lien of the execution or attachment.

¶ 50. So when Debbie served the writs, she was entitled to execute on Tim’s “stock, shares and interest” in both West Quality and Coastal, and her right to the proceeds to satisfy her judgment was and is a matter of the law of priority of liens. This issue was never addressed by the trial court.

¶ 51. Upon receipt of service of the writs, West Quality and Coastal had the statutory duty to deliver “a written statement in writing, under oath, of the particulars demanded by the officer, and of the value of the defendant’s stock, shares, or interest.” They never did. Instead, they filed motions to quash the writs, and then purchased Tim’s stock, paying in excess of $1.6 million, all of which they continued to hold during the proceedings.

¶ 52. So, prior to the stock sale, West Quality and Coastal had an obligation to report Tim’s stock holdings. After the sale, they had a duty to report that they were holding the proceeds, and to make them available to Tim’s creditors, according to the rules of priority of liens. This they did not do. We therefore must remand this matter for the chancellor to review the facts and apply the law of priority of liens.

Debbie was entitled to prejudgment interest on the award of past-due alimony.

¶ 53. On remand, the chancellor awarded Debbie $570,792 in past-due alimony and simple interest at seven percent per annum. Tim appeals, arguing that the chancellor should not have granted Debbie prejudgment interest on her alimony award, because the amount was disputed. He cites Microtek Medical, Inc., v. 3M Co. in which this Court stated that the trial judge has the discretion to award prejudgment interest if the damages amount is fixed and liability is undisputed, but the court will deny interest when there is a bona fide dispute concerning the amount of damages and the liability.

¶ 54. Debbie correctly points out that we recently clarified the Microtek holding, making clear that “prejudgment interest may be allowed in those cases where the amount due is liquidated when the claim is originally made or where the denial of a claim is frivolous or in bad faith.” Additionally, “[i]t is settled beyond question by the decisions of this Court that, after alimony has accrued, there is a vested right thereto, and that interest is allowed thereon.” Under these holdings, it is clear that Debbie is entitled to an award of prejudgment interest on the past-due alimony, and we affirm the chancellor’s ruling.

The chancellor did not commit error in dismissing West Entities.

¶ 55. During the hearing on the West Entities’ motion to dismiss, the chancellor asked Debbie’s counsel to explain the specific things the West Entities did or failed to do that caused them to be a party to a fraudulent conveyance. Debbie’s counsel answered, “They loaned the money. They gave the money.” Her attorney went on to say that “[w]hat we alleged in the amended complaint, and the relief we sought relating to [the fraudulent conveyance count] is a determination that those sums are in fact a fraudulent conveyance.” The chancellor granted the motion to dismiss, explaining that “[t]he fact that a corporation loaned money to a stockholder in and of itself would be insufficient for the Court to determine that they’ve participated in a fraudulent conveyance.”

¶ 56. On appeal, Debbie argues that the chancellor erred in granting the West Entities’ motion to dismiss and their motion for attorneys’ fees. Reviewing these issues de novo, we affirm the dismissal of the West Entities and the award of attorneys’ fees to be paid by Debbie.

Appeal No. 2009-CA-01877

¶ 57. Debbie asserts that the chancellor erred in awarding fees for services prior to the filing of her complaint against them, and that he failed to consider the McKee factors. We affirm the chancellor’s award because it was not manifestly wrong.

¶ 58. Debbie filed her amended complaint — ¡joining the West Entities as defendants and asserting the transfers between them and Tim were fraudulent conveyances — on April 21, 2006. The chancellor’s award of attorneys’ fees included services rendered from August 2005. We disagree that the chancellor erred in awarding fees for services performed before Debbie filed or served the complaint officially joining the Entities as parties, because the West Entities incurred attorneys’ fees for producing numerous documents in response to subpoenas issued by Debbie in 2005, and they continued to incur fees because of Debbie’s motion to amend her complaint in September 2005. Although the trial judge did not include an analysis of the McKee factors in his judgment, his award was not unreasonable, so we affirm.

All other issues are remanded.

¶ 59. The parties have raised numerous other issues. We find that all issues raised which are not specifically adjudicated in this opinion are remanded for presentation to the chancellor anew. The chancellor’s determination of these issues will necessarily depend, to some degree, on his determination of the priority issue with respect to Debbie’s writs of inquiry, and on Tim’s issue with respect to alimony.

CONCLUSION

¶ 60. We affirm in part, reverse in part and remand for a new trial. The parties may present to the chancellor — for a decision on the merits — any issue not specifically resolved by this opinion. We reverse and remand for the chancellor to determine whether a material change in circumstances merits a change in Tim’s periodic-alimony obligation. We affirm the chancellor’s decision finding that Debbie is enti-tied to half the distributions from the entities that existed at the time of the divorce; we hold the chancellor did not err in failing to void the provisions of the Agreement concerning Debbie’s interest in Tim’s stock due to the shareholder and partnership restrictions. We affirm the chancellor’s decision requiring Tim to obtain a term-life policy with the same premium required by the agreement. We reverse and remand the chancellor’s finding that Tim breached his duty to keep Debbie informed of his financial status. We affirm the chancellor’s finding that the loans and “113 account” advances to Tim were legitimate loans. We reverse the chancellor’s finding that Tim’s sale of his stock mooted Debbie’s writs of execution. We find the chancellor abused his discretion in failing to make Rule 52 findings of fact and conclusions of law, as requested by Debbie. We affirm the chancellor’s award to Debbie of prejudgment interest. We affirm the chancellor’s award of attorneys’ fees to West Entities.

¶ 61. AS TO 2008-CA-01700-SCT: ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED IN PART AND REMANDED. ON CROSS-APPEAL: AFFIRMED IN PART; REVERSED IN PART AND REMANDED. AS TO 2009-CA-01877-SCT: AFFIRMED. AS TO 2010-CA-00316-SCT: REVERSED AND REMANDED.

CARLSON, P.J., LAMAR, PIERCE AND KING, JJ., CONCUR. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND CHANDLER, J. RANDOLPH, J., NOT PARTICIPATING.

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 62. I respectfully disagree with the majority’s reversal of the periodic alimony award. In West I, 891 So.2d 203, 213 (Miss.2004), this Court held that the following provision in the property settlement agreement should be considered periodic alimony:

[Article] II.
SUPPORT AND DIVISION OF INCOME FOR WIFE
It is the intention of the Husband and the Wife to benefit and share equally the employment and business income of Husband without regard to the marital status of the parties to each other or to a third party. Husband shall pay to Wife bi-weekly periodic payments of one-half of husband’s income, which at present is $1,458.54 ($4500.00 gross, less deductions of $1,582.92 = $2,917.08 -r 2), beginning May 1, 1994, and one-half of net monthly Director’s fee which is $500.00, and continuing until the earliest to occur of the death of either or if the parties should divorce then this support would become fixed, lump sum installment alimony based upon the present amount together with one-half of increases, payable until Wife’s seventh [sic] (70) birthday, which payments will not be terminated, reduced or otherwise affected by the remarriage of either party but will terminate upon the death of the Wife, if prior to age seventy (70).
The bi-weekly payments shall increase or decrease annually in accordance with the Husband’s total salary to provide for bi-weekly payments equal to one-half (½) of Husband’s monthly salary from West Quality Food Service, Inc. or substituted business/employer. For purposes of this agreement, Husband’s “monthly salary” shall be defined as the gross taxable salary or wages paid to husband from West Quality Food Service, Inc., or substituted business/employer, less amounts withheld from such salary or wages for payment of premiums on insurance covering the minor children of the parties. Adjustment of the amount of the bi-weekly support payments to wife where there are changes in the Husband’s “monthly salary” shall be made as of June 1 each year, beginning June 1,1995, prior to dissolution of marriage (at which time it will be treated as lump sum installment alimony), and shall be based on the average amount of monthly salary paid to Husband during the immediately preceding twelve (12) months by dividing Husband’s total “monthly salary” by twelve (12). However, any bonus paid to Husband shall be divided promptly, and Husband shall pay to wife as additional periodic support/alimony one-half (½) of such bonus. Husband and Wife are to each bear the responsibility for payment of all federal and state taxes out of their respective shares of the income.

¶ 63. In West I, 891 So.2d at 211, this Court clearly held that “the general purpose of the agreement was for Tim to provide one-half of his various forms of income to Debbie....” However, this Court directed the trial court to determine on remand “whether there was a material change in circumstances which clearly resulted in an inability to pay, justifying Tim’s refusal to pay periodic alimony to Debbie.” Id. at 219.

¶ 64. On remand, Tim argued that he should not be required to provide Debbie one-half of his income, based on his reduction in income and decrease in earning capacity. The chancellor rejected Tim’s argument, finding that the agreement was self-modifying. As an example, the chancellor noted that “while Tim’s income has been reduced by the elimination of payments for board fees, his obligation to Debbie has been equally reduced by virtue of the PSA which is based on a percentage of income rather than a set monthly amount.” Because Debbie’s alimony is based on a percentage of Tim’s income, a genuine reduction in his income would result in a reduction in his obligation to her; therefore Tim is attempting to relitigate issues already decided by this Court. I would affirm the chancellor’s periodic alimony award, and therefore concur in part and dissent in part.

WALLER, C.J., AND CHANDLER, J., JOIN THIS OPINION.

      . See Miss.Code Ann. § 79-4-6.27 (Rev.2009).

      . Miss.Code Ann. § 13-3-129 (Rev.2002).

      . West v. West, 891 So.2d 203, 213 (Miss.2004) ("West I’’).

      . Id. at 212.

      . Id. at 218-19.

      . West I, 891 So.2d 203 (Miss.2004), case number 2002-IA-00158, is a part of this consolidation for record purposes.

      . Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996).

      . Robison v. Lanford, 841 So.2d 1119, 1122 (Miss.2003).

      . Yelverton v. Yelverton, 26 So.3d 1053, 1056 (Miss.2010).

      . West I, 891 So.2d at 219.

      . The Armstrong factors are factors to be considered by chancellors when considering the appropriate award of periodic alimony. Steiner v. Steiner, 788 So.2d 771, 776 (Miss.2001) (citing Tilley v. Tilley, 610 So.2d 348, 353-54 (Miss.1992)); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

      . West I, 891 So.2d at 214.

      . West I, 891 So.2d at 212 (citing Taylor v. Taylor, 392 So.2d 1145, 1147 (Miss.1981)).

        . See Rogillio v. Rogillio, 57 So.3d 1246, 1250 (Miss.2011) (citing Brennan v. Brennan, 638 So.2d 1320, 1324 (Miss.1994)). See also East v. East, 493 So.2d 927, 931 (Miss.1986) ("The parties cannot by contract deprive, and it is doubtful if any court has the authority to deprive itself of the future authority to modify ordinary periodic alimony, or make it continue beyond the remarriage of the wife or the death of the husband.”) (citations omitted).

        .West I, 891 So.2d at 219.

      . Black’s Law Dictionary 1244 (8th ed.2004).

      . Id.

      .(Emphasis added.)

      . West I, 891 So.2d at 217-18.

      . Id.

        .Alterman Foods, Inc. v. United States, 505 F.2d 873, 877 n. 7 (5th Cir.1974).

      . Miss.Code Ann. § 13-3-129 (Rev.2002).

      . Miss. R. Civ. P. 52.

      . Miss.Code Ann. § 13-3-129 (Rev.2002).

      . Id.

      . Microtek Med., Inc. v. 3M Co., 942 So.2d 122, 132 (Miss.2006).

      . Upchurch Plumbing, Inc. v. Greenwood Utils. Comm’n, 964 So.2d 1100, 1117 (Miss.2009).

      . Lewis v. Lewis, 586 So.2d 740, 742 (Miss.1991) (quoting Rainwater v. Rainwater, 236 Miss. 412, 420-21, 110 So.2d 608, 610-11 (1959)).

      . McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

      . See e.g., Tupelo Redevelopment Agency v. Gray Corp., 972 So.2d 495, 521 (Miss.2007) (holding that a trial judge’s award of attorney fees will not be disturbed unless it is manifestly wrong).

        . McKee, 418 So.2d at 767.


author: DICKINSON, Presiding Justice, CARLSON, Presiding Justice, KITCHENS, Justice,

text:
    Shawn STATES v. STATE of Mississippi.
    No. 2010-KA-01033-SCT.
    Supreme Court of Mississippi.
    May 17, 2012.

      Office of the Public Defender, by Virginia Lynn Watkins, William R. Labarre, Aison Oliver Kelly, attorneys for appellant.
    Office of the Attorney General, by Lisa Lynn Blount, Scott Stuart, for attorneys for appellee.
    Before DICKINSON, P.J., RANDOLPH and PIERCE, JJ.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Shawn States was found guilty of capital murder for killing Justin Howard and Antoine Reece while in the commission of armed robbery. States brings three arguments on appeal: (1) the prosecution discriminated based on race and gender in its peremptory strikes; (2) the trial court failed to grant circumstantial-evidence instructions; and (3) the trial court improperly granted the prosecution a “flight” instruction. Because we find no reversible error, States’s conviction is affirmed.

BACKGROUND

¶2. Antoine Reece’s flaneé discovered his dead body at the bottom of the staircase in his apartment. Jackson police later discovered the body of Howard in Reece’s apartment as well.

¶ 3. At the crime scene, investigators found two guns, one projectile, and several spent shells. The Mississippi Crime Laboratory determined that two bullets the coroner found in the bodies — although not fired by either of the guns found at the scene — were fired from the same weapon. The gun that fired the fatal bullets was not recovered, and no forensic evidence linking States to the crime was found.

¶ 4. Police initially thought one of the bodies discovered in Reece’s apartment was States’s, but States’s mother quickly reached him by telephone. States told her he had flown to New York and was with a friend. To reach him, States gave his mother a phone number, but the police found that the phone number was registered to Arianna Torrenegra — States’s girlfriend — and had a Florida area code. A quick check confirmed that no person by the name of States had flown to New York that week.

¶ 5. Later, both Reece’s and Howard’s families notified police of activity on the mens’ credit cards, in and around the Miami, Florida, area. Miami police arrested States and Torrenegra in a black 1994 Jaguar registered to Reece. Jackson police then drove to Miami to interview States. At trial, the prosecution put the videotape and transcription of the interview into evidence.

¶ 6. During the interview, States claimed that a man named Jonathon Tarver had shown up at Reece’s apartment while he and Howard were there, and that Tarver wanted to rob Reece to recover money Reece owed him on a drug deal. States said he had agreed to the robbery because Reece owed him as well. States also admitted that he knew what was going to happen when Tarver went upstairs, so he turned up the volume on the television before Tarver killed Howard. States then told investigators that he and Tarver waited for Reece to return to the apartment, and that he was standing outside when Reece returned. According to States, Tar-ver shot Reece as Reece went upstairs to look for Howard, causing his body to fall down the stairs.

¶ 7. States told investigators that he and Tarver left Jackson around 6:00 p.m. in Reece’s Jaguar, heading for Florida. He said he dropped Tarver off in Jacksonville and drove to Miami to see Torrenegra, who was scheduled for deployment to Iraq in two weeks. States claimed he used the credit cards because they were in the Jaguar, and that Reece owed him a lot of money from an identity-theft scheme. He could not, however, explain why he had Howard’s credit cards. Jackson police eventually concluded that “Tarver” was fictitious, and that States was the actual shooter.

¶ 8. At trial, States recanted the statements made to investigators, claiming that he had made the statements because police had coerced him by threatening to charge Torrenegra. States admitted that Tarver was fictitious, but denied any knowledge of the murders. States also admitted that he had used the victims’ credit cards, but said that Reece had agreed to sell him the Jaguar, and that he already had paid $8,000 toward the purchase.

Voir dire

¶ 9. At States’s trial in the Hinds County Circuit Court, First Judicial District, during voir dire, the State struck seven consecutive African-American female venire-members. States — an African-American male — made a Batson challenge, arguing that on panel one, three people were excluded for cause, leaving nine potential jurors, and the State struck four from that panel, all of whom were African-American females, leaving five potential jurors remaining on panel one, four of whom were white. States challenged the strikes on the ground that they were systematically discriminatory on the basis of race and gender.

¶ 10. The State offered several arguments against States’s challenge. First, the State argued that it did not use all of its available strikes, and that the majority of the venire was female, many of whom were African-American. The State also stated that it had accepted three black females and three black males on the jury when it still had strikes remaining.

¶ 11. The trial judge looked at the totality of the strikes — not just at panel one— and stated that the occurrence could have been based on “happenstance.” After discussing the arguments, the court overruled the objection, finding that States had failed to establish a prima facie case of discrimination. Thus, the court did not require the State to come forward with any race-neutral or gender-neutral reasons for its peremptory strikes.

¶ 12. After the court’s ruling, the State struck two more veniremembers, but the record does not provide the race of the State’s final peremptory strikes. Neither the racial nor gender makeup of the venire and final jury are in the record.

Circumstantial-evidence instructions

¶ 18. States proposed three circumstantial-evidence jury instructions: D-2, D-4, and D-6. Instructions D-2 and D-6 were standard circumstantial-evidence instructions, and D-4 was a “two-theory” instruction.

¶ 14. The State argued that States was not entitled to a circumstantial-evidence instruction, because States had admitted that he had participated in the armed robbery and that the victims had died as a result. States, however, argued that, because he had recanted the statements, the trial court should not consider his admissions as direct evidence. After hearing both arguments, the trial court refused States’s proposed circumstantial-evidence instructions.

Flight instruction

¶ 15. States also objected to the State’s S-5 “flight instruction.” The State argued that the flight instruction should be given because States did not give a reasonable explanation of his trip to Florida. States, however, argued that he gave adequate testimony that he went to Florida to see his girlfriend — not to flee a crime. The trial court looked at the totality of the situation — that States took the car belonging to one of the victims, along with many of the victim’s personal identifications, credit cards, military items, and so on. The court also noted that States had taken the car instead of flying to Miami as he originally had planned. Accordingly, the court ruled that the jury could find that States fled out of a conscious sense of guilt and allowed the State’s flight instruction.

Verdict

¶ 16. On May 21, 2010, a jury in Hinds County Circuit Court found States guilty of capital murder while in the commission of armed robbery. States was sentenced to two terms of life in prison, without the possibility of parole, to be served consecutively. The trial court denied States’s motion for a new trial.

¶ 17. On appeal, States argues that (1) the trial court erred in overruling his Bat-son challenge; (2) the trial court erred in refusing to grant his circumstantial-evidence instructions; and (8) the trial court erred in granting the prosecution’s flight instruction. Finding no error, we affirm.

ANALYSIS

¶ 18. This Court gives great deference to a trial court’s determination on a Batson challenge. And a trial court’s decision will not be overturned “ ‘unless the record indicates the ruling was clearly erroneous or against the overwhelming weight of the evidence.’ ” We review a trial court’s decision to grant or deny a jury instruction under an abuse-of-discretion standard.

The trial court did not err in overruling States’s Batson challenge.

¶ 19. Citing Batson v. Kentucky, States argues that the State exercised its peremptory strikes in a discriminatory manner. In Batson, the United States Supreme Court held that the prosecution may not use its peremptory strikes to discriminate. We analyze a Batson challenge using a three-part test:

First, the party objecting to the peremptory strike of a potential juror must make a prima facie showing that race was the criterion for the strike. Second, upon such a showing, the burden shifts to the State to articulate a race-neutral reason for excluding that particular juror. Finally, after a race-neutral explanation has been offered by the prosecution, the trial court must determine whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory strike, i.e., that the reason given was a pretext for discrimination.

¶ 20. Here, States made his Batson challenge when the State struck its first seven potential jurors, all of whom were African-American females. The trial court, however, found that States did not make a prima facie showing of discrimination; thus, the court did not require the State to come forward with neutral reasons for excluding the potential jurors.

¶ 21. To establish a prima facie case, defendants must establish that (1) they are members of a cognizable class, such as a racial group; (2) the prosecution used peremptory strikes to remove venire-members in that class; and (3) the facts and circumstances give rise to an inference that the prosecution used peremptory strikes to purposefully remove individuals of that class. The Fourteenth Amendment also prohibits discrimination based on gender. But in Powers v. Ohio, the Supreme Court modified that test. Under Powers, a defendant has standing to challenge the exclusion of a juror even if that juror is not of the defendant’s race.

¶ 22. When determining whether a defendant has established a prima facie case of discrimination, we must consider all relevant circumstances. And a defendant can establish a prima facie case by “demonstrating that the percentage of the State’s peremptory strikes exercised on members of the protected class was significantly higher than the percentage of members of the protected class in the veni-re.”

¶ 23. In Pitchford v. State, the racial makeup of the venire subject to peremptory strikes was fourteen whites (seventy-four percent) and five blacks (twenty-six percent). The prosecution, however, used fifty-seven percent of its strikes on African-Americans. Because of this difference, we upheld the trial court’s determination that the defendant had established a prima facie case of discrimination.

¶ 24. But the record here does not contain the percentage of African-Americans in the venire. And as this Court stated in Birkhead v. State, “[w]e cannot override the trial court when this Court does not even know the racial makeup of the venire or the jury.” In Birk-head, the first five jurors struck by the prosecution were African-American. We found the record insufficient to overturn the jury verdict.

¶ 25. Likewise, we decline to reverse the trial judge’s decision in this case when we do not know the race and gender of the venire, the race and gender of the final jury, or the race and gender of the other potential jurors struck by the State. The presumption is in favor of the trial court, and the burden is on the appellant to demonstrate reversible error. Thus, the trial court’s decision was not clearly erroneous.

The trial court did not err in refusing to grant States’s circumstantial-evidence instructions.

¶ 26. The trial court refused all three of States’s proposed circumstantial-evidence instructions, finding the numerous statements made by States to be direct evidence. Instructions D-2 and D-6 were standard circumstantial-evidence instructions, while instruction D-4 was a two-theory instruction. This Court, however, applies the same analysis to a two-theory instruction as it does all other circumstantial-evidence instructions.

¶ 27. When a case is based entirely on circumstantial evidence — as opposed to direct evidence — the jury is instructed that every other reasonable hypothesis, except that of guilt, must be excluded to convict. And circumstantial evidence is evidence that, “without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.” Further, this Court has stated that “examples of direct evidence include an admission or confession by the defendant to ‘a significant element of the offense,’ or eyewitness testimony ‘to the gravamen of the offense charged.’ ” But if any “serious doubt exists as to whether an instruction should be included, the doubt should be resolved in favor of the defendant.”

¶ 28. Here, no forensic evidence linked States to the crime, and no eyewitness testified. The question, then, is whether States’s statement to police was an admission or confession to a significant element of felony murder. In defining “confession” and “admission,” this Court has said:

A confession is an acknowledgment in express terms of the confessor’s guilt of the crime charged. An admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with other facts, to prove his guilt.

¶ 29. The grand jury indicted States under Mississippi Code Sections 97-3-19(2)(e) and 97-3-79 for killing Howard and Reece in the commission of armed robbery. Under Mississippi Code Section 97-3-19(e), the State was required to prove that States (1) killed Howard and Reece (2) without authority of law (3) while engaged in the commission of armed robbery. And for armed robbery, the State was required to prove that States (1) took or attempted to take (2) personal property (3) from the person of another (4) by violence or by putting such person in fear of immediate injury by exhibiting a deadly weapon.

¶ 30. States argues that he denied ever handling a gun and that he gave his taped statement only because the police threatened to charge his girlfriend with the murders. States also argues that his statement — which he recanted at trial — cannot be considered direct evidence. The State, however, says that States admitted to participating in the armed robbery and to capital murder: first, by confessing to being in the apartment with the intent to rob Reece; and second, by confessing that he turned up the volume on the television when Tarver (whom States admits to be fictitious) was about to shoot Howard. Although States later recanted these statements, the State says that recanting the statements does not make the evidence circumstantial — we agree.

¶ 31. In Lynch v. State, this Court held that the defendant’s case was not a “purely circumstantial case” where the defendant was convicted of acting in concert with another in killing a person in the course of a robbery. There, the defendant knew his accomplice was armed and was going to search for a car. Later, the two men cruised parking lots and followed a car to the owner’s home, where the defendant’s accomplice stole the car after shooting its owner. The defendant, though, said that he did not know that his accomplice was going to shoot the victim; but when police asked the defendant about the events leading up to the shooting and whether his accomplice was going to carjack someone, the defendant responded: “I think so. I don’t know.”

¶ 32. We found that the statement was “an admission against interest of the underlying felony.” Thus, the intent to rob, which is necessary to prove the underlying felony, could be “shown from the facts surrounding the crime.”

¶ 33. Although States did not confess or admit to handling a gun or personally shooting Howard and Reece, he admitted to turning up the volume on the television when the fictitious Tarver was going to shoot them. States, therefore, admitted that he was in the apartment when the murders occurred, and that he participated in the murders as well. Further, States admitted taking Reece’s vehicle after the murders, which supplied the underlying felony necessary for capital murder.

¶ 34. Although States said Tarver had murdered the two men, he later recanted the story and admitted that Tarver was fictitious. States cites no authority for the proposition that recanting an admission entitles a defendant to a circumstantial-evidence instruction. And where a defendant’s statement — recanted or not — is an admission or confession to a significant element of the crime charged, the statement remains as direct evidence.

¶ 35. States’s admission was “a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with other facts, to prove his guilt.” His admissions went to significant elements of murder and armed robbery. We therefore find that the trial court did not abuse its discretion when it refused States’s circumstantial-evidence instructions.

The trial court erred in granting the prosecution a jury instruction regarding unexplained flight.

¶ 36. Generally, evidence of flight “is admissible as evidence of consciousness of guilt.” But “ ‘an instruction that flight may be considered as a circumstance of guilt or guilty knowledge is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.’ ” We have adopted a two-prong test: (1) Only unexplained flight merits a flight instruction; and (2) flight instructions are to be given only in cases where that circumstance has considerable probative value. Neither prong of the test is met here.

¶ 37. The trial court looked at States’s actions immediately following the murders — that he took the car belonging to one of the victims, that he took many of the victim’s personal items, that he took the car instead of flying — and accepted the State’s flight instruction. But States provided an explanation for his trip to Miami — that he was going to see his girlfriend, Torrenegra, who was about to be deployed to Iraq; indeed, police arrested States while he was with Torrenegra. Also, driving the car to Miami in the absence of any evidence of a pursuit, or States’s belief that he was about to be discovered, renders a flight instruction almost void of any probative value in this case. Accepting the State’s argument, a defendant — in order to avoid a flight instruction — would be required to remain at the scene until police arrived.

¶ 38. However, in the context of the overwhelming evidence of States’s guilt, we And the trial court’s error in giving the flight instruction harmless. An error is harmless if “ ‘it is clear beyond a reasonable doubt that it did not contribute to the verdict.’ ” Here, States admitted that he was in the apartment when Howard and Reece were killed and that he took Reece’s car to Florida. He also admitted that Tarver did not exist — the person who States had said murdered Howard and Reece. Thus, according to States, he was the only person inside the apartment when Howard and Reece were killed. Accordingly, the trial court’s error did not contribute to the verdict.

CONCLUSION

¶ 39. The Hinds County Circuit Court did not commit clear error by not requiring the State to come forward with race-neutral or gender-neutral reasons for its peremptory strikes. Likewise, the court did not abuse its discretion in refusing States’s circumstantial-evidence instructions. The trial court erred in granting the State’s flight instruction, but the error was harmless. Accordingly, we affirm States’s convictions and sentences.

¶ 40. COUNT I — CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE, AFFIRMED. COUNT II — CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE, AFFIRMED. SENTENCES SHALL RUN CONSECUTIVELY TO EACH OTHER.

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

CARLSON, Presiding Justice,

specially concurring:

¶ 41. On at least three prior occasions over the past ten years, I have suggested that prosecutors tread on thin ice each time they persist in submitting a flight instruction. Sanders v. State, 63 So.3d 497, 509-10, ¶¶ 37-43 (Miss.2011) (Carlson, P.J., Specially Concurring, joined by Waller, C.J., and Lamar, J., joined in part by Kitchens, J.); Shumpert v. State, 935 So.2d 962, 973-76, ¶¶ 46-52 (Miss.2006) (Carlson, J., Specially Concurring, joined by Waller, P.J., and Diaz, Easley and Dickinson, JJ., joined in part by Graves, J.); and Randolph v. State, 852 So.2d 547, 567-68, ¶ 70 (Miss.2002) (Carlson, J., Specially Concurring, joined by Smith, P.J., and Waller and Cobb, JJ.).

¶42. I state again what I stated in Randolph:

[T]he use of the flight instruction in this state can be described in one word— “dangerous.” In my years of experience as a trial judge, the flight instruction was very seldom requested by the prosecution and almost never given. It simply is not needed. While evidence of flight might be relevant, no legitimate purpose is served by the jury receiving an instruction from the trial court (which heightens the importance of the evidence in the eyes of the jury) highlighting for the jury the fact that the jury can consider evidence of flight as “a circumstance of guilt or guilty knowledge” when “that flight is unexplained and somehow probative of guilt or guilty knowledge.” See Reynolds v. State, 658 So.2d 852, 856 (Miss.1995); Fuselier v. State, 468 So.2d 45, 57 (Miss.1985). The term “unexplained flight” is somewhat nebulous, anyway, and a trial court, by giving a flight instruction, simply puts itself in a position of possibly placing reversible error in an otherwise clean record. If a trial court persists in giving a flight instruction, I suggest that it do so with great caution.

Randolph, 852 So.2d at 567-68 (Carlson, J., Specially Concurring).

¶ 43. As Justice Dickinson correctly concludes in his majority opinion, there was overwhelming evidence of Shawn States’s guilt, which makes the prosecutor’s erroneous and ill-advised decision in this case to submit a flight instruction even more perplexing. But prosecutors should take note that, in today’s case, this Court has found error in the trial court’s grant of a flight instruction because (1) Shawn States’s flight was not unexplained and (2) evidence of Shawn’s flight did not have considerable probative value. (Maj. Op. at ¶ 37). See Randolph, 852 So.2d at 564-65 (citations omitted). The State escaped a reversal of two capital murder convictions and consecutive life-without-parole sentences, only because this error of granting a flight instruction was deemed harmless based on the record before us. A different record would have produced a different result.

¶ 44. In my opinion, with the prosecutors having been duly warned on multiple occasions about the danger of submitting flight instructions, there can be no legitimate hue and cry from the State in the future if this Court or the Court of Appeals reverses a criminal conviction based on the trial court’s improper grant of a flight instruction, which had been improvidently submitted by the prosecutor.

¶ 45. Without belaboring the point, having had my say once again on the issue of flight instructions, I concur with the majority opinion authored by Justice Dickinson.

WALLER, C.J., DICKINSON, P.J., LAMAR AND CHANDLER, JJ., JOIN THIS OPINION.

KITCHENS, Justice,

Dissenting:

¶ 46. I write separately to express my disagreement with the majority’s finding of harmless error respecting Shawn States’s third assignment of error, namely, whether the trial court erred in granting the prosecution’s jury instruction on unexplained flight.

¶ 47. “[Fjlight generally is admissible as evidence of consciousness of guilt.” Liggins v. State, 726 So.2d 180, 183 (Miss.1998) (citing Fuselier v. State, 702 So.2d 388, 390 (Miss.1997)). A flight instruction is “appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.” Id. (citing Fuselier v. State, 468 So.2d 45, 56-57 (Miss.1985)). As the majority aptly states, a flight instruction is given in the following instances: “(1) Only unexplained flight merits a flight instruction[;] (2) Flight instructions are to be given only in cases where that circumstance has considerable probative value.” Brown v. State 690 So.2d 276, 294 (Miss.1996) (quoting Banks v. State, 631 So.2d 748, 751 (Miss.1994); Pannell v. State, 455 So.2d 785, 788 (Miss.1984)). The majority concedes “[njeither prong of the test is met here.” Maj. Op. at ¶ 36.

¶ 48. The trial court allowed the flight instruction based on the following: After Justin Howard and Antoine Reece were shot, States took the car belonging to Reece, along with the credit cards of both Howard and Reece, and left for the Miami, Florida, area, where he was arrested at the home of Arianna Torrenegra. According to States, the purpose of the trip was to visit Torrenegra, his then-girlfriend, who was scheduled for an imminent military deployment to Iraq. Thus, States provided an explanation for his trip to Miami, Florida. Furthermore, as the majority acknowledges, “[Djriving the car to Miami in the absence of any evidence of a pursuit, or States’s belief that he was about to be discovered, renders a flight instruction almost void of any probative value in this case.” Maj. Op. at ¶ 37. Yet, despite the absence of a factual basis for the trial court’s having given the flight instruction, the majority finds this error to be harmless in light of “the overwhelming evidence of States’s guilt.” Maj. Op. at ¶ 38.

¶ 49. This Court “will set aside a jury’s verdict if the jury was improperly instructed, misled, confused, or ignores the weight of the evidence.” Jackson v. Daley, 739 So.2d 1031, 1039 (Miss.1999) (citing McKinzie v. Coon, 656 So.2d 134, 142 (Miss.1995)). “A new trial may be granted in a number of circumstances, such as when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath and its verdict is a result of bias, passion, and prejudice.” Poole ex rel. Wrongful Death Beneficiaries of Poole v. Avara, 908 So.2d 716, 726-27 (Miss.2005).

¶ 50. The majority holds that this jury was improperly instructed, yet affirms the jury’s verdict. It is impossible for this Court to know whether the jury was unduly influenced or confused by the erroneous flight instruction. To conclude that the defendant was not prejudiced as a result of the improper instruction is purely speculative. Accordingly, the proper disposition in the instant case is to reverse and remand the case for a new trial.

      . Batson v. Kentucky, 476 U.S. 79, 82-84, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Interestingly, the S-5 "flight instruction” is not in the record.

      . Berry v. State, 802 So.2d 1033, 1037 (Miss.2001) (citing McGilberry v. State, 741 So.2d 894, 923 (Miss.1999)). See Batson, 476 U.S. at 82-84, 106 S.Ct. 1712.

      . Thorson v. State, 721 So.2d 590, 593 (Miss.1998) (quoting Lockett v. State, 517 So.2d 1346, 1350 (Miss.1987)).

      . McInnis v. State, 61 So.3d 872, 875 (Miss.2011) (citing Davis v. State, 18 So.3d 842, 847 (Miss.2009)).

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Id. at 82-84, 106 S.Ct. 1712.

      . Pitchford v. State, 45 So.3d 216, 224 (Miss.2010) (emphasis added) (citing Flowers v. State, 947 So.2d 910, 917 (Miss.2007)).

      . Batson, 476 U.S. at 96, 106 S.Ct. 1712 (citations omitted).

      . J.E.B. v. Alabama, 511 U.S. 127, 146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

      . Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).

      . Id. at 416, 111 S.Ct. 1364.

      . Id. (quoting Batson, 476 U.S. at 96-97, 106 S.Ct. 1712).

      . Pitchford, 45 So.3d at 225 (citing Flowers, 947 So.2d at 935 (Miss.2007)).

      . Id.

      . Id.

      . Id. at 226.

      . Birkhead v. State, 57 So.3d 1223, 1230 (Miss.2011).

      . Id. at 1230.

      . Id.

      . Id. at 1231 (quoting Juarez v. State, 965 So.2d 1061, 1065 (Miss.2007)).

      . McInnis v. State, 61 So.3d 872, 876 (Miss.2011).

      . See Hughes v. State, 983 So.2d 270, 278 (Miss.2008) (citing Jones v. State, 797 So.2d 922, 927 (Miss.2001)).

      . Keys v. State, 478 So.2d 266, 268 (Miss.1985).

      . Kirkwood v. State, 52 So.3d 1184, 1187 (Miss.2011) (quoting Mack v. State, 481 So.2d 793, 795 (Miss.1985)).

      . Davis v. State, 18 So.3d 842, 847 (Miss.2009) (citing Stringfellow v. State, 595 So.2d 1320, 1322 (Miss.1992)).

      . Reed v. State, 229 Miss. 440, 91 So.2d 269, 272 (1956) (emphasis added) (citing Pringle v. State, 108 Miss. 802, 67 So. 455 (1915)).

      . Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2006).

      . Miss.Code Ann. § 97-3-79 (Rev.2006).

      . Lynch v. State, 877 So.2d 1254, 1265 (Miss.2004).

      . Id. at 1261.

      . Id.

      . Id. at 1265.

      . Id.

      . Id. at 1266.

      . See Reed, 91 So.2d at 272 (citing Pringle, 67 So. at 457).

      . Liggins v. State, 726 So.2d 180, 183 (Miss.1998) (citing Fuselier v. State, 702 So.2d 388, 390 (Miss.1997)).

      . Brown v. State, 690 So.2d 276, 294 (Miss.1996) (quoting Fuselier v. State, 468 So.2d 45, 57 (Miss.1985)) (emphasis added).

      . Randolph v. State, 852 So.2d 547, 564-65 (Miss.2002) (quoting Banks v. State, 631 So.2d 748, 751 (Miss.1994)).

        .Kolberg v. State, 829 So.2d 29, 51 (Miss.2002) (quoting Conley v. State, 790 So.2d 773, 793 (Miss.2001)).

      . It is noteworthy that the flight instruction, as given to the jury, does not appear in the record. Only the jury instructions refused or withdrawn appear in the record before this Court.