text:
    Kelvin McKNIGHT, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00682-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2011.
    Rehearing Denied April 24, 2012.
    Certiorari Denied Aug. 9, 2012.

      Leslie S. Lee, Jackson, Phillip Broad-head, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., ROBERTS and MAXWELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Kelvin McKnight was convicted of murder. On appeal, McKnight argues that: (1) the prosecutor did not have a good-faith basis for certain questions he asked a defense witness on cross-examination; (2) the prosecutor used as substantive evidence a videotape that was admissible solely for impeachment purposes; (3) the prosecutor gave improper advice to the jury about the jury instructions during closing arguments; (4) there was insufficient evidence to support his conviction or, alternatively, that the verdict is against the overwhelming weight of the evidence; and (5) his attorney was ineffective and thereby deprived him of his constitutional right to counsel. We find no reversible error; therefore, we affirm the circuit court’s judgment and McKnight’s conviction.

FACTS

¶ 2. On August 28, 2008, McKnight traveled from his home in Jackson to Louise, Mississippi, where his brother Larry McKnight (“Larry”) lived. McKnight arrived at Larry’s house at approximately 3:00 p.m. The two brothers went to the car wash, which was a popular hangout in Louise, where they met Larry’s friend Roderick Langston.

¶ 3. At approximately 7:00 p.m., Larry went to work at a local fish farm. Larry returned to the car wash at approximately 8:45 p.m., while Larry was on his lunch break.

¶ 4. According to Larry and McKnight, they then drove in Larry’s work truck with Langston to Larry’s house. Larry and McKnight sat in the truck while Langston went inside. Larry testified that Lang-ston returned to the truck with a handgun. Larry also testified that McKnight was in the back seat and could not see the gun.

¶ 5. According to Larry and McKnight, they dropped Langston off at the car wash. They then went to the Fountain Club, a bar located a few blocks away. They pulled up to the club in Larry’s truck. Three witnesses for the State testified that Langston was with Larry and McKnight. Larry and McKnight testified that they were alone.

¶ 6. At the club, Larry got into an altercation with Herbert Broomfield and Jessica Amons. Broomfield and Amons were dating. The altercation was over an earlier affair between Larry and Amons. Amons hit Larry over the head with a beer bottle, and then several people starting punching and kicking Larry while Broom-field held him in place. At the same time, McKnight and Langston got into a fight.

¶ 7. Anneice Hoskins was an eyewitness who testified that McKnight tried to help Larry, but Langston restrained him. Amons testified that she saw McKnight and Langston fight, but she did not know what it was about. McKnight testified that when he tried to help Larry, Lang-ston grabbed him and started punching him. The owner of the club then yelled at everyone to stop fighting and kicked everyone out of the club.

¶ 8. Amons testified that she got in her car, and as she was driving away, she heard a gunshot. Broomfield testified that he had already left the club on foot and was en route to his house, which is near the club, when he heard a gunshot.

¶ 9. Hoskins testified that McKnight yelled at the crowd in the parking lot: “When you see that weak-ass ni* *er Roderick Langston, tell him I’m going to deal with him in the street!” Then, Langston emerged from the crowd and said, “I’m right here.” Hoskins then heard a gunshot and saw Langston fall forward.

¶ 10. Roy Montgomery testified that McKnight yelled: “Roderick Langston, you bitch-ass ni* *er, next timé I see you I’m going to deal with you!” Langston replied: “Here I am.” According to Montgomery, McKnight then pulled out a gun and shot Langston.

¶ 11. Larry testified that he was hunched over by his truck in a significant amount of pain when he heard someone say: “[Langston], don’t do that!” Then, he heard a gunshot, and seconds later he saw McKnight run toward the truck.

¶ 12. McKnight testified that he had found a gun on the floor of the club during the fight. In the parking lot, he heard someone say: “[Langston], don’t do that!” He turned around and saw Langston “coming from behind his back with it in his hand.” He then tried to fire a warning shot into the air but accidentally struck Langston.

¶ 13. A bullet penetrated Langston’s skull, lodged in his brain, and caused his death. After Langston’s death, Larry and McKnight fled the scene in Larry’s truck. Larry dropped McKnight off at the car wash. McKnight got in his car and left town. Larry went to the fish farm where he worked. Larry was arrested there later that night. McKnight turned himself in a few days later.

¶ 14. McKnight was charged with murder under Mississippi Code Annotated section 97-3-19(1) (Rev.2006). The jury found him guilty, and he was sentenced to life. His appeal was deflected to this Court for review.

ANALYSIS

1. Whether it was plain error for the prosecutor to ask questions to Larry without a good-faith basis for the questions.

¶ 15. After his arrest, Larry gave a videotaped statement to the police. The defense called Larry as a witness at trial. On cross-examination, the prosecutor tried to impeach Larry’s testimony with prior inconsistent statements contained on the videotape. The prosecutor did not play the tape at that time, but he did play the tape later during his rebuttal and again during his closing argument.

¶ 16. McKnight claims that several of the questions the prosecutor asked Larry were not supported by the videotape. McKnight argues that it was error to allow these questions because the prosecutor had no good-faith basis for the questions. Because McKnight’s trial attorney did not make a contemporaneous objection at trial, McKnight must rely on the plain-error doctrine on appeal.

¶ 17. The Mississippi Rules of Evidence do not require that a cross-examiner first produce proof of a witness’s prior inconsistent written or oral statement. M.R.E. 613. Nevertheless, although no proof is required, the cross-examiner must have a good-faith basis for his questions. Flowers v. State, 773 So.2d 309, 326 (¶ 58) (Miss.2000). The cross-examiner must have some legitimate reason to believe that the witness did in fact make the prior inconsistent statement.

¶ 18. The following exchange occurred between the prosecutor and Larry:

Q. Isn’t it true that you' told the law enforcement officer when he was videotaping you that [McKnight], your brother, went to the club before you did? I mean, excuse me. Went to the truck before you did?
A. No. He — no, sir.
Q. And isn’t it true you told the officer that your brother got the pistol from the truck and he turned around and made the statements about he was going to do to [Lang-ston] on the street — about what he was gonna do to him on the street? Isn’t it true you told that in the videotape?
A. I don’t recall.
Q. Isn’t it true that you told the officers that [Langston] overheard [McKnight] talking about him and that [Langston] stepped off the steps of the club and started walking to [McKnight]?
A. No, sir, I didn’t.
Q. And isn’t it true that you told the officers when [Langston] got a few feet from him, [McKnight] pulled out his gun and shot [Langston] immediately?
A. No, sir, I didn’t.

¶ 19. The videotape revealed that Larry told the police that, after the owner of the club had yelled at everyone to get out, a large crowd moved toward the exit. Larry was in the back of the crowd and could not see very much. Larry heard McKnight and Langston were fighting. Larry then heard Langston say: “Shit, you can get it too!” He saw Langston, Broomfield, and a couple other “young bucks” move toward where he thought McKnight was. He heard a gunshot and saw Langston fall. He saw McKnight and told him, “Let’s get out of here.” They got in the truck together and left. On the tape, Larry did not say that: McKnight went to the truck first to get a gun; McKnight said that he was going to do something to Langston on the street; or he saw McKnight shoot Langston.

¶ 20. After a review of the videotape, it appears that the prosecutor did not have a good-faith basis to ask the questions that he asked Larry. These questions could be considered error. However, because McRnight’s attorney did not raise a contemporaneous objection at trial, this issue is procedurally barred from appellate review unless it constitutes plain error. Morris v. State, 963 So.2d 1170, 1178 (¶ 27) (Miss.Ct.App.2007).

¶ 21. Only an error that affects the defendant’s substantial rights rises to the level of plain error. Taylor v. State, 754 So.2d 598, 603 (¶11) (Miss.Ct.App.2000) (citation omitted). “To determine if plain error has occurred, this Court must determine if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.” Cox v. State, 793 So.2d 591, 597 (¶ 22) (Miss.2001) (citations omitted).

¶ 22. We conclude that any error based on this issue does not constitute plain error for at least two reasons. First, we do not find that the error affected the outcome of the trial. The testimony of both Hoskins and Montgomery was compelling evidence that supported the jury’s verdict. Their testimonies were not affected by the prosecutor’s exchange with Larry. Second, the videotape was played to the jury. The prosecutor played the tape during his rebuttal and again during his closing argument. The jury twice heard for itself what Larry had told the police. To the extent the prosecutor might have misled the jury with his questions, the jury actually heard what Larry said on the videotape. The jury was not misled about what Larry said on the videotape. Because we do not find plain error present, we find this issue has no merit.

2. Whether it was plain error for the prosecutor to use the videotape, which was admissible solely for impeachment purposes, as substantive evidence.

¶ 23. The prosecutor played the videotape of Larry’s interrogation during closing arguments. While playing the tape, the prosecutor commented on Larry’s physical appearance in the video. He argued that Larry’s appearance in the video did not support his earlier testimony that he had been severely beaten at the club. Indeed, the only injury to Larry visible in the video, which was made on the night of the incident, was some slight swelling under his left eye.

¶ 24. On appeal, McKnight claims that the prosecutor impermissibly used the tape, which was admissible solely to impeach Larry’s testimony, as substantive evidence during closing arguments. He argues that the prosecutor used the tape as evidence that McKnight had “used excessive force, or, for reasons other than self-defense, shot the deceased — two material issues of fact in the case.” Again, because defense counsel did not raise a contemporaneous objection at trial, McKnight relies on the plain-error doctrine on appeal.

¶25. We find that the prosecutor did not use the tape as substantive evidence. Larry had testified that he had been savagely beaten at the club. During closing arguments, the prosecutor argued that Larry’s physical appearance in the video was not consistent with a man who, just a few hours before the video was recorded, had been savagely beaten. Thus, the prosecutor used the tape to impeach Larry’s testimony, not as substantive evidence. Further, even if the prosecutor had used the tape as substantive evidence, we find that the use of the videotape did not affect McKnight’s substantial rights and, as such, did not amount to plain error. Taylor, 754 So.2d at 603 (¶ 11). Therefore, this issue is without merit.

3. Whether the prosecutor’s comments on the jury instructions during closing arguments amount to plain error.

¶ 26. McKnight raises four issues that concern the jury instructions and the prosecutor’s comments about the instructions during closing arguments. Once again, because timely objections were not made at trial, McKnight relies on the plain-error doctrine on appeal.

¶ 27. The circuit court gave a jury instruction on the lesser-included crime of manslaughter. The manslaughter instruction reads, in part, as follows:

If you should find the State has failed to prove all the essential elements of Murder beyond a reasonable doubt, you will then proceed with your deliberations to decide whether the State has proved beyond a reasonable doubt all of the essential elements of the lesser crime of Manslaughter.

During closing arguments the prosecutor stated: “ ‘If you find the State has failed to prove an essential element of the charge of murder’ — You’re not gonna find that, which means that instruction has no application.” McKnight now claims that the prosecutor impermissibly instructed the jury to disregard the manslaughter instruction.

¶ 28. The circuit court also instructed the jury on self-defense. The instruction read, in part, as follows:

There must be something shown in the conduct of [Langston], the victim, at or about the time of the killing indicating a present intention to kill [McKnight], or to do him some great personal injury [.]

(Emphasis added). During closing arguments, the prosecutor stated self-defense would not apply if “a reasonable person would not have had the belief that [Lang-ston], at or about the time of the killing, was indicating a present intention to kill [McKnight].” On appeal, McKnight argues the prosecutor, in his restatement of the self-defense instruction, deliberately omitted the phrase “or to do him some great personal injury,” and as a result, the jury was misled about self-defense.

¶ 29. The circuit court also instructed the jury on its duty to determine the credibility or believability of the witnesses. The prosecutor chose not to mention that instruction during his closing argument. On appeal, McKnight complains, while the prosecutor mentioned other instructions, the prosecutor did not mention that one.

¶ 30. Finally, the original typewritten self-defense instruction used the word “murder.” The word “murder” was struck through and the word “killing” was handwritten above it. Obviously, a “killing” may be justifiable, while a “murder” is, by definition, not justifiable. On appeal, McKnight complains that the word “murder” was still visible on the jury instruction.

¶ 31. Each of these issues are procedurally barred because defense counsel failed to make a contemporaneous objection at trial. The contemporaneous-objection rule serves a vital role in our judicial system, and only errors that affect substantial rights will cause this Court to circumvent that rule. Taylor, 754 So.2d at 603 (¶ 11). Further, we find that none of these concerns with the jury instructions constitute plain error. Accordingly, we find no merit to this issue.

A Whether there was sufficient evidence to support the conviction and whether the verdict is against the overwhelming weight of the evidence.

¶ 32. McKnight’s counsel moved for a judgment notwithstanding the verdict or, alternatively, a new trial. McKnight renews these arguments on appeal. He claims that the prosecutor failed to present sufficient evidence to sustain a conviction of murder; therefore, a judgment notwithstanding the verdict should have been granted. He also claims that the jury’s verdict is against the overwhelming weight of the evidence; therefore, a new trial should have been granted.

¶ 33. When reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to the State to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). When reviewing a claim that the verdict is against the overwhelming weight of the evidence, “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. at 844 (¶ 18) (citation omitted).

¶ 34. Here, there was more than enough evidence to support the jury’s findings that McKnight killed Langston with deliberate design and not in self-defense. The testimonies of Hoskins and Montgomery supported the jury’s findings. Hos-kins testified that, in the parking lot of the club, McKnight said, “When you see that weak-ass ni* *er Roderick Langston, tell him I’m going to deal with him in the street!” Similarly, Montgomery testified that McKnight said: “[Langston], you bitch-ass ni* *er, next time I see you, I’m going to deal with you!” According to both Hoskins and Montgomery, Langston then emerged from the crowd and said, “Here I am.” Montgomery testified that McKnight then pulled out a gun and shot Langston in the head.

¶ 35. The only real issue was whether McKnight had acted in self-defense. According to Montgomery, Langston was merely walking toward McKnight when McKnight shot him. Montgomery testified: “[Langston] didn’t break a run like he was fixing to do nothing. He just was like, ‘Here I am’ and started walking toward[] him. And [McKnight] pulled out the pistol and shot him.” Montgomery further testified that Langston was not threatening McKnight in any way.

¶ 36. After a thorough review of the record, we find there was sufficient evidence to support McKnight’s conviction. We also find that the jury’s verdict is not against the overwhelming weight of the evidence. Accordingly, these issues are without merit.

5. Whether defense counsel provided ineffective assistance.

¶ 37. McKnight argues that he was deprived of his constitutional right to counsel by his trial attorney’s deficient performance. On this basis, McKnight argues that he is entitled to a new trial.

¶ 38. To prove ineffective assistance of counsel, McKnight must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with McKnight to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,104 S.Ct. 2052.

¶ 39. The merits of an ineffective-assistance-of-counsel claim on direct appeal should be addressed only when: “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). If this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record. Id. at 1102 (¶ 6).

a. Failure to File Pretrial Motions

¶ 40. McKnight argues that his attorney was deficient because he failed to file a single pretrial motion, with the exception of a motion for continuance. He claims that the attorney “failed to file a single motion for discovery, suppression of evidence, or any other action that could have helped his client develop the theory of self-defense at trial.” He claims that discovery could have produced a bloody towel that was found in the club by an investigating police officer. He claims that the blood on the towel could have belonged to Larry, and if so, the towel could have somehow supported McKnight’s self-defense theory. He also claims that discovery could have produced Larry’s medical records, which could have supported Larry’s testimony that he was severely beaten at the club that night.

¶41. This discovery would not have affected the outcome of the trial. The question facing the jury was whether, at the time of the shooting, Langston presented a threat of death or serious bodily harm to McKnight. We are not convinced that the bloody towel or Larry’s medical records would have factored into the jury’s decision, let alone changed its verdict. As for the attorney’s failure to file a motion to suppress evidence, McKnight fails to state exactly which piece of evidence could or should have been suppressed.

¶ 42. This Court has held that: “[T]he mere fact that the attorney did not file a motion for discovery is not sufficient to raise an ineffective assistance of counsel claim.” Graham v. State, 861 So.2d 1053, 1056 (¶ 16) (Miss.Ct.App.2003) (quoting Powell v. State, 536 So.2d 13, 16 (Miss.1988)). Accordingly, this issue is without merit.

b. Failure to Subpoena Witnesses, Interview Witnesses, or Conduct a Pretrial Investigation

¶ 43. Next, McKnight argues that his attorney was deficient because he failed to subpoena a single witness, interview any witnesses, or conduct a reasonable factual investigation. McKnight, however, does not state exactly who should have been subpoenaed and what they would have testified to had they been subpoenaed. As result, this Court has no basis to conclude that the attorney’s failure to subpoena witnesses affected the outcome of the trial.

¶ 44. The allegations that defense counsel did not interview any witnesses or conduct a factual investigation appear to be only speculation and conjecture. Because our review is confined to the record, we cannot engage in speculation about what the attorney might or might not have done to prepare for trial. We also disagree with McKnight’s assertion that “the record strongly supports an inference” that the attorney failed to interview witnesses or conduct an investigation. Based on the record before us, it appears that the trial counsel was competent, made strategic decisions, and performed in a reasonable, although not perfect, manner in a difficult case.

c. Angela Jones’s Testimony

¶45. At trial, McKnight’s attorney called a witness who initially identified herself as Angela Jones. Angela testified that she was at the club on the night of the incident. She stated that she had gone to the club to meet a man. As she was standing outside waiting on the man, she saw Langston and McKnight exit the club. She testified that Langston had a gun in his hand. Then she heard someone shout, “[Langston] don’t do that!”

¶ 46. Angela later confessed to the sheriff that she had made it all up. The prosecutor called her to the stand in his rebuttal. She admitted that her name is really Angela McKnight and that she is McKnight’s cousin. She further admitted that she was not at the club that night and that she and McKnight’s sister, Gwendolyn McKnight, had conspired to fabricate her earlier testimony. She testified that she did not know whether McKnight was aware of their plan or not.

¶ 47. This turn of events undoubtedly put McKnight’s attorney in a difficult position. He chose not to move for a mistrial. Instead, he attempted to repair his and McKnight’s credibility. On cross-examination of Angela, defense counsel elicited from her that she had never discussed her plans to give false testimony with McKnight or McKnight’s attorney. During closing arguments, he profusely apologized to the jury for having unwittingly put on false testimony. He pointed out that there was no reason to believe that McKnight was aware of Angela’s plans. And then, he tried to refocus the jury’s attention on the central issue in the case, which was whether McKnight had acted in self-defense.

¶ 48. On appeal, McKnight argues that his attorney’s decision to call Angela to the stand constituted deficient performance. He claims that the attorney clearly had not interviewed Angela prior to her testimony and that a competent attorney would have detected her fraud earlier. When her fraud was discovered, McKnight argues that his attorney should have moved for a mistrial.

¶ 49. Because our review is confined to the record, we do not have any evidence to indicate whether the attorney interviewed Angela or not. We do not know what steps the attorney took to ascertain the truthfulness of Angela’s expected testimony. It is entirely possible that the attorney had no reason to believe that Angela was a perjurer and that he had done everything a reasonably competent attorney would have done under the same circumstances. Thus, we cannot conclude that the attorney’s performance was deficient in this respect. This issue is clearly better suited for consideration in a motion for post-conviction collateral relief.

¶50. As for the contention that the attorney should have moved for a mistrial, we find that his decision to proceed with the trial and attempt to repair his and his client’s credibility falls within the ambit of trial strategy. See Berry v. State, 882 So.2d 157, 165-66 (¶ 29) (Miss.2004) (holding that it was trial strategy not to move for a mistrial after the prosecution’s discovery violation). Further, it is not clear that the circuit court would have granted the motion had the attorney made it, especially since it was the conduct of the defense that had established the alleged ground for a mistrial. Circuit courts have discretion to grant or deny motions for a mistrial, and this Court reviews the courts’ decisions under an abuse-of-diseretion standard. McDonald v. State, 881 So.2d 895, 902 (¶ 28) (Miss.Ct.App.2004).

¶ 51. We cannot say that the attorney’s decision to not move for a mistrial was deficient, nor can we say, to a reasonable probability, that the motion would have been granted had it been made. Accordingly, this issue is without merit.

d. Failure to Advance the Self-defense and Defense-of-others Theories

¶ 52. McKnight argues that his attorney failed to advance two meaningful theories of defense — defense of others and self-defense. He argues that, at the time of the shooting, Langston could have posed a threat of death or serious bodily harm to either Larry or McKnight, either of which would have justified McKnight in killing Langston, yet the attorney failed to pursue those theories.

¶ 58. First, defense of others was not a viable theory of defense. Indeed, the jury was not instructed on the theory because the evidence did not support it. There was no evidence that, at the time of the shooting, Langston posed any threat to Larry. Larry’s own testimony was that, at the time of the shooting, he was hunched over by his truck. None of the witnesses testified that Langston was anywhere near Larry when the shot was fired.

¶ 54. Second, McKnight’s attorney zealously pursued the self-defense theory. He called Larry and McKnight to the stand. Larry testified that Langston had retrieved a handgun from Larry’s house earlier that night and that, in the parking lot of the club, Larry heard someone yell, “[Langston], don’t do that!” McKnight testified that he heard the same thing, and then he saw Langston “coming from behind his back with it in his hand.” In addition to eliciting that testimony, in his closing argument, McKnight’s attorney made a well-reasoned and articulate argument that McKnight had acted in self defense. Here, the attorney’s performance was clearly not deficient.

e. Failure to Subject the. Prosecutor’s Case to Adversarial Testing

¶ 55. Finally, McKnight makes a broad, sweeping argument that his attorney, more or less, allowed the prosecutor to run roughshod over the defense.

¶ 56. McKnight argues that his attorney failed to make a single objection to the prosecutor’s evidence. The only specific instance he cites is the attorney’s failure to object to the prosecutor’s use of Larry’s videotaped statement. Conceivably, the attorney could have objected to the admission of the tape on the ground that it constituted inadmissible hearsay. See M.R.E. 801, 802. In response to such objection, the prosecutor might have responded that he was using it as extrinsic evidence of Larry’s prior inconsistent statement for impeachment purposes. See M.R.E. 618(b). If the circuit court had allowed the tape to be admitted on that basis, McKnight’s attorney might have requested a limiting instruction, instructing the jury not to use the tape as proof of the matter asserted.

¶ 57. However, even if McKnight’s attorney had succeeded in suppressing the videotape or obtaining a limiting instruction, this Court is not persuaded that the outcome of the proceeding would have been different. It is quite clear that the testimony of Hoskins and Montgomery heavily influenced the jury, and their testimonies were unaffected by the issues surrounding the videotape.

¶ 58. McKnight also argues that his attorney failed to cross-examine the prosecutor’s witnesses meaningfully, which left contradictions in their testimonies unexamined. He cites Montgomery’s testimony as an example. Montgomery testified that McKnight was standing by Larry’s truck when he stated: “Roderick Langston, you bitch-ass ni* *er, next time I see you I’m going to deal with you!” Langston was standing by the club’s entrance and said, “I’m right here,” and walked toward McKnight. McKnight then pulled out a gun and shot Langston. According to Montgomery, McKnight then stepped over Langston’s body and got in the truck.

¶ 59. On appeal, McKnight argues that Montgomery’s narrative is physically impossible, because if Langston was by the club’s entrance then there is no way that McKnight would have had to step over Langston’s body to enter the truck. However, as Montgomery testified, the entrance to the club was very close to where the truck was parked. It is entirely possible that as Langston walked toward McKnight, Langston got close enough to the truck so that when he fell forward after being shot, his body ended up on the ground by the truck.

¶ 60. McKnight further argues that his attorney was deficient because he did not make an opening statement. He acknowledges that failure to make an opening statement is not per se ineffective assistance. Golden v. State, 968 So.2d 378, 388 (¶ 38) (Miss.2007). But he argues, when considered along with the totality of the attorney’s alleged errors, it suffices for ineffective assistance of counsel in this case. However, he fails to show how an opening statement would have affected the outcome of the trial. As it is his burden to show both Strickland prongs, this Court is unmoved. We also note that, while the attorney made no opening statement, he presented a lengthy and cogent closing argument that more than adequately summarized the defense’s theory of the case.

¶ 61. This Court has thoroughly reviewed the record. We are not able to determine that McKnight received ineffective assistance of counsel. Since we find no reversible errors, we affirm the judgment of conviction and sentence. However, we do so without prejudice to McKnight’s right to renew his ineffective assistance of counsel claims in a motion for post-conviction collateral relief, should he choose to file such a motion.

¶ 62. THE JUDGMENT OF THE HUMPHREYS COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HUM-PHREYS COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. MYERS, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Pursuant to a motion filed with this Court, third-year law students from the University of Mississippi School of Law Criminal Appeals Clinic were appointed special counsel for McKnight. Kristen E. Boyden and Ginevera E.N. Reaves II prepared McKnight's brief. Brad Baskin and Jacob D. Curtis presented oral argument. Professor Phillip Broadhead provided supervision and is the attorney of record.


source: Caselaw Access Project

author: GRIFFIS, P.J., CARLTON, J.,

license: Public Domain

text:
    Matthew MILLER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00901-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2011.
    Rehearing Denied March 13, 2012.

      Marcie Tanner Southerland, Vicksburg, Branan P. Southerland, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Matthew Miller was convicted of the aggravated assault and forcible rape of Abby, his girlfriend’s sixteen-year-old daughter. Miller was sentenced to twenty years for the assault and thirty years for the rape, all in the custody of the Mississippi Department of Corrections. The sentences were ordered to be served consecutively. Miller appeals from that judgment, raising five issues. Finding no reversible error, we affirm.

FACTS

¶ 2. On the evening of January 27, 2008, a Sunday, Miller and Abby were alone at Abby’s mother’s home. Miller had been staying in the home for about eight years. Abby regarded Miller as her stepfather. That night, he asked her to help him capture a horse that had gotten away. Abby agreed, and they left in Miller’s vehicle, a Ford Explorer.

¶ 8. After a brief stop at his mother’s house, Miller drove Abby to an isolated area near his grandmother’s house, off Newman Road in Hinds County, Mississippi. Miller became silent. He left the road, cut off the lights, and turned the vehicle around so it faced the road. Miller got out, and Abby followed. She began to doubt that Miller was really looking for a horse. Abby sent her aunt the following text message: “I’m in a[sic] dark woods with Matthew like where his grandma stays just in case something happens.”

¶4. Shortly thereafter, Miller struck Abby on the top of the head, from behind, with a 2x4 he kept in his vehicle to hold its hatch open. Abby was taken by surprise, and she was dazed by the blow. When she recovered, she heard Miller yelling at her and acting “crazy.” She cried and tried to talk to him, but he hit her again, this time in her jaw with his fist. Miller told Abby to “shut up” and took her cell phone. Eventually, Miller told Abby he was afraid he would get in trouble for hitting her, and he said she would have to prove she would not tell her mother.

¶ 5. Miller then gestured to Abby’s breasts. She understood this as a command to expose herself to him, which she obeyed. Miller said that was not enough, and Abby began crying again. Miller opened the door of his vehicle and told Abby sit on the edge of the seat. She complied. Miller then pointed to Abby’s groin and threatened to kill her. Miller told Abby to “hurry up,” and she pulled down her pajama bottoms. Miller then stood between Abby’s legs and had sex with her.

¶ 6. After Miller finished, he gave Abby a towel and told her to clean herself up, while he cleaned himself and her blood from the vehicle. Abby surreptitiously threw her towel onto the branches of a nearby tree, hoping someone would find it if she did not survive.

¶ 7. Miller began acting nervous. He told Abby he would leave her in the woods and that she should tell her mother she had been kidnapped. Abby was bleeding from her head and needed medical attention, so she said that would not work. Miller then let her back inside the vehicle. He began driving, but Abby realized Miller was taking them further away from home. She suspected he intended to kill her, so when Miller slowed the vehicle to round a curve, Abby jumped out and ran to a nearby house. Miller pursued, but the owners let Abby inside and alerted the authorities. Miller drove past the home a few times and left.

¶ 8. After Miller was arrested, he gave a statement to Hinds County Sheriffs Department. Miller admitted he had struck Abby with the board, but he could not explain why. He claimed they had mutually agreed to have sex to ensure Abby would not tell her mother he had hit her, as he would have something on her too. Miller denied the sex had been a rape.

¶ 9. At trial, Miller’s theory of the case was that Abby falsely accused him of rape to get back at her mother, who would not let Abby have boys over. In his testimony, Miller again claimed they had consensual sex, but he denied ever striking Abby. Instead, Miller contended that Abby had propositioned him and had been injured when she suddenly leapt from his vehicle.

¶ 10. Miller was convicted and sentenced. From this judgment, Miller appeals.

DISCUSSION

1. Recusal

¶ 11. Miller argues the trial judge erred in denying his ore tenus motion for the judge’s recusal, made four days before the trial. Miller claimed that Judge Malcolm Harrison must recuse himself because, before his appointment to the circuit court, Judge Harrison had served as the Hinds County prosecuting attorney. In that capacity Judge Harrison had appeared as a youth court prosecutor in the shelter hearing where Abby was removed from her mother’s care.

¶ 12. Miller’s argument on appeal has two distinct prongs. The first asserts an express ground for disqualification — the contention that because Judge Harrison held the position of Hinds County prosecuting attorney at the time of Miller’s indictment, he was required to disqualify himself from presiding over the trial. The second is more broadly addressed to all the circumstances of the case.

A. Express Disqualification

¶ 13. Mississippi Code Annotated section 9-1-11 (Rev.2002) forbids a judge from presiding “on the trial of any cause ... wherein he may have been of counsel, except by the consent of the judge and of the parties.” Likewise, the Mississippi Code of Judicial Conduct Canon 3(E)(1)(b) states: “Judges should disqualify themselves in proceedings in which ... the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter[J” Miller contends that the youth court action and Miller’s criminal prosecution were the same matter.

¶ 14. “The term ‘matter’ includes any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest[,] or other particular matter involving a specific party or parties.” James v. Mississippi Bar, 962 So.2d 528, 534 (¶ 23) (Miss.2007) (quoting M.R.P.C. 1.11(d)(1)). It “seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties.” ABA Formal Op. 342 (1975). Thus, two cases are the “same matter” when they involve the same parties, the same issues, and the same concerns. James, 962 So.2d at 534 (¶ 26).

¶ 15. The youth court action was initiated following the alleged assault and rape in the incident underlying Miller’s charges in the instant case. Miller points to a shelter order from the Hinds County Youth Court, which was entered on February 8, 2008, about ten days after the rape. The order recited that a shelter hearing had been held and that Judge Harrison had appeared as the youth court prosecutor, representing the State. Legal custody of Abby was awarded to the Mississippi Department of Human Services, with physical custody entrusted to her grandparents. The shelter order also recited that a no-contact order would be filed against Miller as the “alleged perpetrator,” and it instructed law enforcement and DHS to continue their investigations. Miller also produced an invoice for some of Abby’s medical records that had been billed to Judge Harrison, apparently when he was acting in his capacity as youth court prosecutor. This is the extent of Judge Harrison’s participation in the youth court case that is shown in the record.

¶ 16. In his motion, Miller contended that Judge Harrison’s participation in the youth court proceeding required his recu-sal from the criminal trial. Judge Harrison responded as follows:

[According to the Youth Court Act, everything that happens in youth court is of a civil jurisdiction, not criminal. Therefore, there would be no prosecution in civil court. [I]n my participation as ten years as the county prosecuting attorney in Hinds Countyt,] I am aware that what are called the abuse and neglect hearings are held for the sole purpose of determining what is in the best interest of the victim. There is no prosecution in youth court of any alleged perpetrator. So, therefore, these matters would not be the same. They would not be similar. This matter ... would deal solely with the victim and not with the defendant at all.

¶ 17. It is clear that Miller — because he had no right to custody of Abby — was not a party to the youth court proceeding. However, for the purposes of disqualification, “matter” can include an “investigation, charge, accusation, arrest[,] or other particular matter involving a specific party or parties.” Put another way, the rule is “[wjhere one actively engages in any way in the prosecution and conviction of one accused of a crime, he is disqualified from sitting as a judge in any matter which involves that conviction.” Banana v. State, 638 So.2d 1329, 1330 (Miss.1992).

¶ 18. Miller relies on Jenkins v. State, 570 So.2d 1191 (Miss.1990) to advance this argument. In Jenkins, the Mississippi Supreme Court held that a trial judge erred by not disqualifying himself when he had previously served as county prosecuting attorney and had “acted as a prosecutor during the indictment of Jenkins.” Id. at 1193. Miller also suggests that Jenkins required Judge Harrison to recuse himself solely because he held the office of county prosecuting attorney.

¶ 19. Miller’s reliance on Jenkins is misplaced. While there is some language in Jenkins suggesting the judge had erred because he had simply held the office of county prosecuting attorney at the time of the indictment, the supreme court has elaborated on the holding in subsequent decisions. In Banana v. State, 638 So.2d 1329, 1330 (Miss.1992), a decision rendered two years after Jenkins, the Supreme Court stated that disqualification is required “[w]here one actively engages in any way in the prosecution.” (emphasis added) (quoting Moore v. State, 573 So.2d 688, 689 (Miss.1990)). The Banana court noted that the judge in Jenkins was “the prosecuting attorney who indicted Jenkins.” Id. This is consistent with the general rule in other jurisdictions. See 48A C.J.S. Judges § 262 (2004) (“In order to disqualify a judge from presiding at a criminal trial on the ground of having been of counsel for the prosecution, the judge must have participated in the preparation of the case.”)

¶ 20. In the present case, Judge Harrison served as the county prosecutor for Hinds County at the time of Miller’s arrest and indictment. However, Miller’s criminal prosecution was handled by the district attorney’s office, not the county prosecutor. And while it is true that Judge Harrison did represent the State in the youth court proceedings, it has not been shown that this amounted to active participation in Miller’s prosecution.

¶ 21. We conclude that Judge Harrison did not serve as a lawyer in the matter in controversy, nor has it been shown that he actively participated in Miller’s prosecution.

B. The “Reasonable Person” Test

¶ 22. For the purposes of this argument, Miller does not contend that Judge Harrison’s actions as the youth court prosecutor require disqualification under the express provisions of the code of judicial conduct, statute, or the Mississippi Constitution. Instead, Miller contends that Judge Harrison’s service as youth court prosecutor at the shelter hearing would cause a reasonable person to doubt his objectivity when presiding over the criminal trial. Miller argues that as the youth court prosecutor, Judge Harrison would have represented the State with the purpose of protecting Abby’s best interest. To that end, Judge Harrison would have had to investigate the allegations and would have presented a case to the youth court at the shelter hearing that probable cause existed that Abby had, in fact, been assaulted and raped. According to Miller, this would cause a reasonable person to doubt Judge Harrison’s objectivity presiding over the criminal trial.

¶23. The Mississippi Supreme Court has outlined our law on judicial recusal as follows:

The law surrounding the recusal of a judge in Mississippi is well settled. Under Canon 3 of the Code of Judicial Conduct, an appellate court, in deciding whether a judge should have disqualified himself from hearing a case uses an objective standard. A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality. The decision to recuse or not to recuse is one left to the sound discretion of the trial judge, so long as he applies the correct legal standards and is consistent in the application. This Court presumes that a trial judge is qualified and unbiased, and this presumption may only be overcome by evidence which produces a reasonable doubt about the validity of the presumption. When a judge is not disqualified under the constitutional or statutory provisions[,] the decision is left up to each individual judge and is subject to review only in a case of manifest abuse of discretion.

Tubwell v. Grant, 760 So.2d 687, 689 (¶ 7) (Miss.2000) (internal citations and quotations omitted).

¶ 24. It is helpful to examine what a shelter hearing is and what the State must prove. The shelter hearing must be held before a child can be held for longer than temporary custody (generally, forty-eight hours). See Miss.Code Ann. §§ 43-21-301, -303, -307, -309 (Rev.2009). At the shelter hearing, the youth court must determine whether there is probable cause that the youth court has jurisdiction and that custody is necessary. Miss.Code Ann. § 43~21-309(4)(a); U.R.Y.C.P. 16. Custody is necessary: “(1) when a child is endangered or any person would be endangered by the child; or to insure the child’s attendance in court at such time as required; or when a parent, guardian or custodian is not available to provide for the care and supervision of the child; and (2) there is no reasonable alternative to custody.” U.R.Y.C.P. 16(a)(4)(ii); Miss.Code Ann. § 43 — 21—301(3)(b). The youth court must also find:

the effect of the continuation of the child’s residing within the child’s own home would be contrary to the welfare of the child; the placement of the child in foster care is in the best interest of the child; and, unless the reasonable efforts requirement is bypassed under section 43-21-603(7)(c) of the Mississippi Code: (1) reasonable efforts have been made to maintain the child within his own home, but that the circumstances warrant his removal and there is no reasonable alternative to custody; or (2) the circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home, and there is no reasonable alternative to custody.

U.R.Y.C.P. 16(b)(4)(iii); Miss.Code Ann. § 43-21-309. The shelter hearing also features relaxed rules of evidence. All parties present may present evidence and cross-examine witnesses, but the youth court may limit the extent of both. Miss. Code Ann. § 43-21-309. Evidence may be accepted without regard to the formal rules of evidence; hearsay and opinion testimony may be heard. Id. Testimony may be presented in narrative form. Id.

¶ 25. In summary, the youth court shelter hearing is a civil action. The youth court prosecutor represents the State, not the victim; she was represented by her own attorney at the hearing. Miller was not a criminal defendant in the youth court, nor even a party. The hearing permitted relaxed rules of evidence, including hearsay; the shelter order reflects that the victim was not present at the hearing and did not testify there. Instead, it appears that testimony to advance the State’s case was offered by two DHS employees. The burden of proof for the State was only probable cause, and the contested issues, if there were any, likely related not to whether probable cause existed that Abby had been assaulted and raped, but whether it was in her best interest to be removed from her mother’s home until an adjudicative hearing could be held. All of these facts support the conclusion that Judge Harrison was not necessarily so involved in the case as to require his disqualification.

¶ 26. Our analysis of this issue is complicated by the limited record. While we know that Judge Harrison appeared at the shelter hearing and had requested some of Abby’s medical records, Miller offered no other evidence of his participation in the youth court case. Miller attributes this to the confidentiality of the youth court records, but he could have just asked Judge Harrison to elaborate on the extent of his personal participation in the case. Miller did not, and in our review we are limited to the facts shown in the record before us.

¶ 27. Miller asks us to speculate about what Judge Harrison could have done: he could have had more personal involvement in the case than is shown by the record, or he might have even personally participated in the investigation to the extent he could be said to have taken an active role in Miller’s prosecution. We concede this is possible, but the record is silent on the extent of Judge Harrison’s personal participation in the case.

¶ 28. There is a presumption of impartiality. A trial judge is presumed to be qualified and unbiased. Tubwell, 760 So.2d at 689 (¶ 7). The presumption can only be overcome by evidence that produces a reasonable doubt about its validity. Id. In order to reverse the trial judge’s decision not to recuse himself, there must be a manifest abuse of discretion — that is, the error must be clearly shown by the record. Id. A presumption cannot be overcome by the absence of evidence, particularly where it results from the appellant’s failure to make a record. A trial judge cannot be disqualified by speculation.

¶29. Miller also argues that various erroneous rulings by the trial judge evidenced a bias against him. He assigns these rulings as separate issues on appeal, which we address below.

¶ 30. Judge Harrison’s denial of the disqualification motion has not been shown to be an abuse of discretion. The presumption of his impartiality has not been overcome. We find that this issue is without merit.

2. Continuance

¶ 31. Next, Miller argues that the trial court erred in not granting a continuance for further testing of his mental capacity to voluntarily give a statement to the investigating officers. Miller gave the statement on January 28, 2008, and made numerous damaging admissions. More than two years later, on February 25, 2010, Miller made an amended motion to suppress the statement. In the amended motion, Miller contended that the statement was not voluntarily given because, among other things, he is mentally retarded. This was the first time Miller had made that claim. At the same time, Miller made a separate motion for a continuance, asking for more time to evaluate his mental capacity. After a hearing held the next day, both motions were denied. The trial began on March 1, 2010, as scheduled.

¶ 32. Miller’s presentation of this issue is somewhat confusing. Miller contends the trial court should have granted a continuance so he could collect evidence concerning the voluntariness of his statement, but he cites to Uniform Rule of Circuit and County Court 9.06 and Mississippi Code Annotated section 99-13-11 (Rev.2007) among his authorities. These provisions concern court-ordered examinations to test for competency to stand trial. The record reveals that Miller has not argued — in the trial court or on appeal — that he was incompetent to stand trial. Instead, he sought a continuance so he could be evaluated by his own expert, to the ultimate end of showing that the statement was not given knowingly and voluntarily. Although Miller never claimed he was incompetent to stand trial, the trial judge did appear to be concerned about his competency, asking several questions and making findings addressing that issue. It could be said that the trial court took Miller’s motion for a continuance as also alleging that he was incompetent to stand trial, but Miller has not made that argument on appeal. Therefore, we review this issue as Miller has framed it: whether the trial court erred in denying Miller’s motion for a continuance.

¶ 33. In support of his motion for a continuance, Miller’s attorneys stated they had recently come to believe that Miller was mentally retarded. During the course of their representation, the attorneys had repeatedly asked Miller about the statement he gave to law enforcement. Miller had always denied ever making such a statement.

¶ 34. On December 16, 2009, after a series of discovery disputes, the State produced a copy of the audio recording of the statement. On February 22, 2010, Miller’s attorneys confronted him with the recording, and his reaction caused them to doubt his mental competency. While the tape was played, Miller had a “blank look,” and he claimed he did not remember giving a statement. The attorneys stated that Miller appeared to “not know what [they were] talking about,” and they decided Miller needed to have his intelligence evaluated. With the trial scheduled to begin in a week, Miller only had time for preliminary evaluations. Lucy DeRossette, a psychometrist with a background in education, administered two tests, the Schubert General Ability Test and the Slosson Full-Range Intelligence Test. Miller’s scores placed him in the 17th and 14th percentiles, respectively. At the motion hearing, Miller offered an affidavit from DeRossette stating the test results, as well as an unsworn letter detailing her observations of Miller. The letter stated that Miller had dropped out of high school in the tenth grade. He could not read well and showed signs of “being more of an auditory and tactile learner,” who “needs things clearly explained to him and ... repeated often.”

¶ 35. DeRossette did not testify at the motion hearing. Miller instead offered Dr. Angela Koestler, a psychologist, who testified that although she had not examined Miller, the preliminary test results reported by the psychometrist indicated Miller could be mentally retarded. Koestler opined that further testing was warranted by the preliminary results. She also stated that someone who was mentally retarded may nonetheless have learned to hide his deficiency, explaining why Miller’s attorneys might not have suspected diminished intelligence through almost two years of representation. Miller’s attorneys added that Miller had said little during their trial preparations. He had always been accompanied by family members, who the attorneys had interacted with more than with Miller himself.

¶ 36. The trial court denied the motion, noting that Dr. Koestler had not examined Miller, Miller had been released on bond and represented by counsel for nearly two years, and continuances had already been granted to the defense. The court also eventually denied Miller’s motion to suppress his statement, which was admitted into evidence, and Miller testified in his own defense at the trial.

¶ 37. “The decision to grant or deny a continuance is left to the sound discretion of the trial court.” Stack v. State, 860 So.2d 687, 691 (¶ 7) (Miss.2003) (citations omitted). We will not reverse a trial court’s decision to deny a motion for continuance unless the decision appears to have resulted in manifest injustice. Mosely v. State, 4 So.3d 1069, 1073-74 (¶9) (Miss.Ct.App.2009). “Conclusory arguments alone are not sufficient to support a request for additional time[; r]ather, it is incumbent on the defendant seeking a continuance to show concrete facts that demonstrate the particular prejudice to the defense that will necessarily arise if a delay is not granted.” Id. (quoting Golden v. State, 736 So.2d 1076, 1077-78 (¶ 6) (Miss.Ct.App.1999)).

¶ 38. There are three major problems with Miller’s argument on this issue. The first two are interrelated: if Miller had been severely mentally retarded, it should have come to his attorneys’ attention sooner. Miller needed to show both that the continuance was necessary and that its denial was prejudicial, but a stronger case for one undermines the other. Moreover, the only specific instance of reduced capacity cited by Miller’s attorneys — that Miller denied giving a statement and later claimed not to remember it when confronted with an audio recording — is, to say the least, subject to another interpretation, particularly since Miller had no apparent difficulty discussing the interview and surrounding circumstances when he testified at trial. Dr. Koestler also admitted that the intelligence tests administered to Miller were preliminary and were not evidence, in and of themselves, of mental retardation. The trial court found Miller’s contentions unconvincing, and we cannot say this was an abuse of discretion.

¶ 39. The third problem with Miller’s argument also precludes reversal: Miller has not shown that the trial court’s denial of a continuance actually resulted in injustice to him. Miller argues he needed the continuance to be more thoroughly evaluated, but after the continuance was denied, Miller did not proceed with a mental evaluation. He now argues that he was prejudiced because that testing could, have given him evidence to support his motion to suppress his statement.

¶ 40. To preserve the denial of a continuance as an issue on appeal, a defendant must raise it in his post-trial motion for a new trial. Jackson v. State, 423 So.2d 129, 132 (Miss.1982). This is not an empty formality; the defendant must renew his motion because he is expected to continue to pursue the evidence or testimony, so he can show the court what he lost by having to go to trial without the continuance. The supreme court has articulated the defendant’s responsibilities as follows:

If the court declines to grant the continuance[,] [the defendant] should sue out the proper process for [the witnesses he seeks], and when the case is called for trial should renew his application, make such changes in his affidavit as the conditions then existing require. If the continuance is still refused, he should with unremitting diligence seek to secure their attendance pending the trial by the continued use of the process of the court; if tried and convicted he should still persist in his efforts to enforce their attendance before the expiration of the term, and on his motion for a new trial present them to the court for examination; if, with all of his efforts, he is unable to have the witnesses personally present, he should, if practicable, secure their ex parte affidavits, which should be presented for the consideration of the court, which, on the motion for a new trial, will review the whole case and correct any error prejudicial to the defendant which may appear in any part of the proceeding.

King v. State, 251 Miss. 161, 171-72, 168 So.2d 637, 641 (1964) (quoting Lamar v. State, 63 Miss. 265, 271 (1885)). Miller did include this issue in his post-trial motion, but he appears to have done nothing to advance the claim. Even on appeal, Miller offers no explanation of why he could not have had his mental capacity examined after the continuance was denied. “A defendant seeking review of a denial of a continuance may not rest on possibilities” if the evidence was available to him. Pilgrim v. State, 19 So.3d 148, 153 (¶ 15) (Miss.Ct.App.2009).

¶ 41. Miller has failed to show that the trial court abused its discretion in denying his motion for a continuance, and he has not shown that the denial resulted in an injustice. This issue is without merit.

3. Suppression of Miller’s Statement

¶ 42. Miller argues that the trial court erred in denying his motion to suppress the incriminating statement he gave to the Hinds County Sheriffs Department. Miller contends that the totality of circumstances showed that the statement was not voluntarily given. He also alleges the trial court employed the wrong legal standard in reaching its decision.

¶ 43. The State bears the burden of proving that the defendant’s confession is voluntary. Scott v. State, 8 So.3d 855, 861 (¶ 24) (Miss.2008). “The burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward.” Id. “This makes out a prima facie case for the State on the question of voluntariness.” Id. The trial court must find beyond a reasonable doubt that the confession was voluntary and knowing and that the defendant was given his Miranda rights prior to any custodial interrogation. Id. at (¶ 23).

¶ 44. The Mississippi Supreme Court has outlined our standard of review as follows:

[A reviewing c]ourt can reverse a trial court’s denial of a motion to suppress only: if the incorrect legal principle was applied; if there was no substantial evidence to support a voluntary, knowing, and intelligent waiver of Miranda rights; and if the denial was a result of manifest error. The standard of manifest error is high, and this Court cannot reverse unless the trial judge’s ruling has gone against the substantial weight of the evidence.

Scott, 8 So.3d at 861 (¶ 22) (citations omitted).

¶ 45. Detective Latasha Holmes of the Hinds County Sheriffs Department testified at the suppression hearing. She stated that on January 28, 2008, the day after the incident, she met with Miller at the Raymond Detention Center. Detective Holmes offered Miller a “Warning and Consent to Speak” form, which she read along with him. The form recites the familiar Miranda warnings, and states:

I have read this statement of my rights and it has been read to me, and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

The form is signed by Miller and Detective Holmes. Miller wrote “11th” under his signature, at Detective Holmes’s request, to indicate that he had made it to the 11th grade in school. After Miller acknowledged his rights and agreed to give a statement, Holmes asked Miller if he would consent to recording the statement. Miller agreed, and she began recording. At the beginning of the recording, Detective Holmes asked Miller if he could read and write, and he replied that he could. Holmes then asked if she had read Miller his rights and he understood them; he answered in the affirmative.

¶ 46. Miller did not offer any testimony in support of the suppression motion. Instead, he relies on the circumstances surrounding the statement. Miller claims he is mentally retarded, but he offered no evidence to support this claim; Dr. Koestler, the psychologist, testified that she could not say Miller was retarded. Miller also contends that Detective Holmes did not read him the Miranda warnings, because she did not do so on the recording; but he cites no authority for the suggestion that Miranda warnings and waivers must be recorded. Instead, we have held: “[Recordings are] often beneficial to a court’s resolution of whether a confession was freely and voluntarily given to authorities. However, [they are] not required to withstand a defendant’s challenge to the validity of a confession.” Dobbs v. State, 726 So.2d 1267, 1271 n. 2 (Miss.Ct.App.1998). Miller also notes that the written waiver does not have a witness’s signature, other than that of Detective Holmes, but we likewise do not require a written waiver to admit a confession, much less one signed by two witnesses. See Armstead v. State, 978 So.2d 642, 648 (¶ 28) (Miss.2008). Finally, on appeal Miller points to his testimony at trial that he gave the statement because he had been denied a phone call and had been beaten by the other inmates. However, Miller did not offer this testimony in support of his motion to suppress. We will not consider evidence that was not presented to the trial court at the suppression hearing.

¶ 47. Miller’s challenge to the voluntariness of his statement fails because the trial court was entitled to rely on the testimony of Detective Holmes, the written waiver executéd by Miller, and his own admissions in the recorded statement. The State’s “burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward.” Scott, 8 So.3d at 861 (¶ 24). An appellate court “will not reverse the trial eourt[’s finding] on conflicting testimony as to whether coercion was used to obtain a confession.” Id. at (¶ 25). If we cannot reverse the trial court’s decision based on conflicting testimony, we surely cannot do so when the officer’s testimony is opposed only by conflicting inferences and the defendant’s insinuations. We find that substantial evidence supports the trial court’s decision admitting Miller’s statement.

¶ 48. Miller also contends that the trial court applied the wrong legal standard when it did not expressly state on the record that it found the State had proven Miller’s statement knowing and voluntary, beyond a reasonable doubt. Comprehensive on-the-record findings are preferable, but we have acknowledged that when the record reflects that the State met its burden, the trial court’s findings may be implicit or inferred from the judge’s comments. See Dobbs, 726 So.2d at 1271 (¶ 10).

¶ 49. We find no error in the trial court’s admission of Miller’s statement into evidence.

4. State’s Discovery Violations

¶ 50. In this issue, Miller contends that the trial court erred in not sanctioning the State for various delays in producing discovery to the defense. The case did not come to trial for more than two years. The prosecution admitted that the case had “fallen off its docket” for some time, and the trial was originally set for November 3, 2009. Discovery was not completed by the State and an agreed continuance pushed the trial date back to January 4, 2010. On December 16, 2009, the trial court granted another continuance to March 8, 2010, and ordered that the State complete discovery by December 18, 2009. Later, the State sought to admit several pieces of evidence that it failed to produce before that date. Miller made a motion on February 2, 2010, to exclude evidence that the State had not yet produced. The trial court found the State in contempt for its discovery failures, but it did not exclude all of the evidence cited by Miller.

¶ 51. At issue are the results of a DNA test on the board used in the assault (ultimately, no DNA was found), photographs of the victim and the crime scene taken shortly after the assault, and updated medical records of the victim that detailed follow-up treatment. The State stated that it had inadvertently overlooked the photographs and thought the board lost, preventing it from being more thoroughly tested. The trial judge found the State to be in contempt and excluded the medical records (which had no apparent evidentia-ry value) and the DNA-test results, but it allowed the photographs into evidence. The trial court stated that it would deal with alternative sanctions for the State’s conduct at a later time. When the DNA test was completed and no DNA was found, the trial court allowed Miller to use the results to bolster his defense at trial.

¶ 52. Essentially, the only evidence Miller challenges is the photographs. Some were taken by the attending nurses as part of the rape kit, showing the injuries to the victim. The prosecution stated that it had disclosed the existence of the rape kit to the defense, but it had not separately identified or copied the pictures; instead, it had made the rape kit available for Miller’s inspection. The pictures of the crime scene were taken the day after the attack, showing the scene generally, as well as where law enforcement found the board used in the assault, blood on the ground, and the towel Abby used to clean herself after the rape. The State had disclosed the existence of the scene photographs, but it had failed to produce copies to the defense until about a week before trial.

¶ 53. Rule 9.04(1) of the Uniform Rules of Circuit and County Court states in relevant part:

If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.

“We review alleged discovery violations according to the abuse of discretion standard.” Terrell v. State, 952 So.2d 998, 1006 (¶ 37) (Miss.Ct.App.2006). Thus, the trial court could potentially exclude late-produced evidence if “deemed just under the circumstances,” but the court is not required to do so. Instead, “an accused’s remedy for tardy disclosure of that to which he is entitled in pre-trial discovery is a continuance” to cure the prejudice resulting from the late disclosure. Dowbalc v. State, 666 So.2d 1377, 1385 (Miss.1996). Failure to request a continuance waives the objection to the late disclosure entirely. McGowen v. State, 859 So.2d 320, 338 (¶ 62) (Miss.2003).

¶ 54. In this case, Miller did not move for a continuance in response to the production of the photographs; he instead requested only the more severe sanction of exclusion. The fact that continuances had already been granted did not relieve Miller of his obligation to seek another one. It could be argued that Miller’s motion to suppress the photographs suffices to preserve the issue for appeal, but Miller has made no showing that he was prejudiced by the late production of the photographs, much less prejudice that could not be cured by a continuance. Consequently, we find that the trial court did not abuse its discretion in refusing to suppress the photographs. This issue is without merit.

5. Sufficiency of the Evidence

¶ 55. In his final issue, Miller contends that the State did not present sufficient evidence of rape or aggravated assault. In reviewing the sufficiency of the evidence, the relevant inquiry is whether “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 56. Miller details conflicting testimony, alleged contradictions in the evidence, and weaknesses in the State’s case against him to support this assignment of error. Miller’s argument is little more than a recitation of his theory of the case at trial. We find it unconvincing, but the question on appeal is not whether this Court believes the evidence at trial established guilt beyond a reasonable doubt; it is whether any rational trier of fact could have. Id. It is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 57. A reviewing court must view the evidence in the light most favorable to the prosecution. At issue is only whether there is evidence that “reasonable fair-minded men in the exercise of impartial judgment” could rely on to convict. Bush, 895 So.2d at 843 (¶ 16). Given the evidence we have previously discussed, we do not find the State’s proof “so lacking that a fair-minded juror could only find the defendant not guilty.” Williams v. State, 868 So.2d 346, 354 (¶ 26) (Miss.Ct.App.2003). It is well established that the testimony of the victim in a rape case is sufficient to sustain a rape conviction. Barker v. State, 463 So.2d 1080, 1082 (Miss.1985). This would be the case even if Abby’s testimony had been uncorroborated. Id. Abby’s testimony was heavily corroborated, and we can only conclude that sufficient evidence supports Miller’s convictions. This issue is without merit.

¶ 58. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF COUNT I, FORCIBLE RAPE, AND SENTENCE OF THIRTY YEARS; AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., BARNES, ISHEE, ROBERTS AND RUSSELL, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, P.J. MYERS, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 59. I respectfully dissent from the majority’s opinion as I find the trial judge manifestly abused his discretion in failing to disqualify himself due to his previous participation. The current trial judge previously acted as the county prosecutor in the shelter hearing wherein the youth court issued a signed order finding jurisdiction and removing the child, and involved the same abuse, victim, and perpetrator as now before the trial judge in the criminal abuse matter. See Miss. Constitution Art. 6, § 165 (“No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.”); Canon 3(E) of the Mississippi Code of Judicial Conduct; Miss.Code Ann. § 9-1-11 (Rev. 2002). The order signed by the youth court dated March 8, 2010, reflects that the youth court considered the merits of the matter at the shelter hearing, and the order sets forth the court’s findings.

¶ 60. Judges should recuse themselves in proceedings when impartiality might reasonably be questioned and also when necessary to avoid the appearance of impropriety. The exhibits introduced at the shelter hearing reflect that the current trial judge had previously served as a youth court prosecutor in the matter in controversy. The signed order from the shelter hearing shows various factual determinations made by the youth court based upon the petition filed and the evidence presented as to whether the abuse occurred as well as regarding who had perpetrated the offenses against the child. The trial judge’s error cannot be dismissed solely because the matter involved different cause numbers. Disqualifying prior participation occurs even in different cases if the underlying substantive matters in controversy were the same and involved the same parties. Disqualification due to participation in the same “matter” includes matters like other proceedings, investigations, and claims. It does not require the participation to be in the same case or cause number. See generally M.R.P.C. 1.12,1.13 cmts.

¶ 61. The shelter-hearing order in the record bears the current trial judge’s name as the prosecuting attorney at the shelter hearing. In that order, the youth court adjudicated that: the youth court possessed subject matter jurisdiction; the child was an abused child; and the child’s removal and placement of the child with a relative. The shelter order also contains a no-contact order against Miller pertaining to the child victim in this case, and the order shows that the youth court ordered the Department of Human Services to continue its investigation. The shelter-hearing exhibits in the record also include an invoice billed to the trial judge in this appeal in his capacity as the youth court prosecutor for the child’s medical records in the amount of $65.27; Miller’s Miranda waiver and consent form; and an affidavit from an individual that conducted an educational and intelligence test on Miller explaining the results.

¶ 62. Instructive to this analysis, this Court in J.N.W.E. v. W.D.W., 922 So.2d 12, 15-16 (¶¶ 10-18) (Miss.Ct.App.2005) found the signing of temporary orders while sitting as a chancellor constituted substantial participation in a matter that barred the chancellor from later serving as counsel for a party in ancillary litigation. The J.N.W.E. Court found that when counsel previously served as chancellor and signed the orders, such participation constituted substantial participation in the matter even though no evidence on the merits was heard. Id.

¶ 63. In applying precedent to determine whether the trial judge’s prior participation in this case was substantial, the exhibits from the shelter hearing and the youth court order show that the judge previously represented the county’s interest in the shelter hearing that the same victim, the same abuse and offenses, and the same perpetrator that are now before the trial court. See Smith v. State, 212 Miss. 497, 502-04, 54 So.2d 739, 741 (1951) (finding the judge that previously worked with the grand jury that brought about indictments in advising them as to the law and representing the State at that term of court was disqualified from later presiding over suspended-sentence revocation proceedings). See also U.R.Y.C.P. 2(b) (“Proceedings commence when a report or complaint of a child within the jurisdiction of the youth court requires an action by the youth court or by the chancery court or by a referee appointed pursuant to section 43-21-111 of the Mississippi Code or by a designee appointed pursuant to the Mississippi Youth Court Law when acting in a judicial capacity.”); 8(b) (child-protection proceedings); 8(c) (chancery court proceedings); Rule 8 cmt. (“Rule 8(c) is to assure, consistent with Rule 2 of these rules, that chancery court procedures for investigation charges of abuse or neglect are consistent with those applicable to youth court.... Upon the intake officer recommending that a petition be filed, and the court ordering that a petition be filed, the prosecutor must file the petition or request the court to dismiss the proceedings or to handle the cause informally.”). The youth court prosecutor prepares the petition and filings, unless someone else is designated to do so, and the issues therein must be adjudicated by the youth court. See U.R.Y.C.P. 20. See also U.R.Y.C.P. 14(b) (entry of appearance); 24(b)(4)-(5) (The court, at the adjudicatory hearing, verifies information, explains the parties’ rights, and requires an adjudication involving questions of fact and jurisdiction); 25(b) (providing the requirements for the content of the adjudication order).

¶ 64. Mississippi statutes and the Uniform Rules of Youth Court Practice also required the youth court at a shelter hearing to consider additional matters of its jurisdiction, necessitating in this case a factual determination of whether Miller served as a caregiver, and the youth court also possessed the additional consideration of whether removal served the child’s best interest. The trial judge’s appearance as county prosecutor at the shelter hearing, the signed order, and the shelter exhibits indicate that the trial judge had substantially participated as county prosecutor in the same substantive matters in controversy as asserted by the State in the current criminal prosecution against Miller. The contents of the signed youth court order show the youth court considered the merits of the matter before it. Therefore, due to that prior substantial participation by the trial judge in this matter, I find he possessed an interest in the matter which constitutes a violation of article 6, section 165 of the Mississippi Constitution.

¶ 65. In his ruling from the bench, the record shows that the trial judge herein felt recusal was inappropriate since he viewed the shelter hearing as confidential and pertained to only the issue of the child’s best interest. The trial judge further explained that since he had determined the shelter hearing concerned only the child’s best interest, then he viewed the current criminal prosecution of Miller and the prior shelter hearing as different cases. However, in accordance with precedent, we must look to the substantive matters in controversy to determine if the trial judge should be disqualified. Somewhat confusing, “matter” includes “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest[,] or other particular matter involving a specific party or parties.” James v. Miss. Bar, 962 So.2d 528, 584 (¶ 23) (Miss.2007) (quoting M.R.P.C. l.ll(d)(i)).

¶ 66. The trial judge erred in concluding the youth court only considers the best interest of the child. Mississippi statutes require youth courts to make various factual adjudications in child-protection proceedings, and the matters before the youth court in a shelter hearing for child protection concerns much more than just the issue of the child’s best interest. First and foremost, the youth court must find jurisdiction to exist, and jurisdiction existed in this case upon the determination of the child as an abused child in accordance with Mississippi Code Annotated section 43-21-105(m) (Supp.2011), which defines abused child as follows:

“Abused child” means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused upon the child sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury!,] or other maltreatment. However, physical discipline, including spanking, performed on a child by a parent, guardian!,] or custodian in a reasonable manner shall not be deemed abuse under this section.

Therefore, the very first issue the youth court was required to address in the shelter hearing went to the heart of the substantive issue of Miller’s guilt. Since he was a non-family member, for youth court jurisdiction to exist over the child as an “abused child,” the court had to determine if Miller was responsible for her care at any time and whether he abused her. After the court determined that the child fell within the court’s jurisdiction as an abused child at the hands of someone responsible for her care, then the youth court had to address whether it was in the child’s best interest to place her in foster care. Rule 16 of the Uniform Rules of Youth Court Practice specifies the various determinations required in child-protection shelter proceedings in order to take children into custody. Shelter hearings determine: probable cause the child is within the jurisdiction of the court, probable cause custody is necessary, whether the effect of the child continuing to reside within the child’s own home would be contrary to the welfare of the child, whether placement of the child in foster care is in the best interest of the child, and whether reasonable efforts to maintain the child in her own home fail to apply. See U.R.Y.C.P. 16(b)(4).

¶ 67. Since the shelter hearing involved the same victim, the same perpetrator, and the same abuse as prosecuted in the case before the circuit court, and currently before this Court on review, I find that the trial judge abused his discretion in failing to recuse himself. As judges should re-cuse themselves in proceedings when impartiality might reasonably be questioned and also when necessary to avoid the appearance of impropriety, I respectfully dissent. See Scott v. State, 8 So.3d 855, 859 (¶ 13) (Miss.2008) (“The standard of review to which this Court is bound on the issue of recusal is manifest error.”).

IRVING, P.J., Joins This Opinion.

      . We use an alias to protect the identity of minor victims of sexual abuse.

      . In his recorded statement, Miller stated he had "made it to” the 11th grade.

      . The board had been tested once before for blood, and none had been found on it. At issue is a subsequent test for DNA. The board was thought lost because it had been stored as part of the rape kit after the initial testing.

      . See West v. State, 553 So.2d 8, 18 (Miss.1989) (holding that a motion for a mistrial preserves the error for appeal).

      . The matter was raised in an ore tenus motion by defense counsel for Matthew Miller upon the Assistant District Attorney’s disclosure of an envelope of documents showing the trial judge’s prior participation in the matter as county prosecutor in the shelter hearings, which involved the same victim and charges of abuse in this case.

      . See also U.R.Y.C.P. 14(b) (entry of appearance); 16 (shelter hearing); 20(c)(1) ("All proceedings seeking an adjudication that a child is a neglected child or an abused child shall be initiated by the filing of a petition. Upon authorization of the youth court, the petition shall be drafted and filed by the youth court prosecutor unless the youth court has designated some other person to draft and file the petition.’’).

      . See generally Haralson v. Haralson, 483 So.2d 378 (Miss.1986); J.N.W.E. v. W.D.W., 922 So.2d 12 (Miss.Ct.App.2005).

      . See generally James v. Miss. Bar, 962 So.2d 528 (Miss.2007).

      . The record shows that the bills were paid out of the district attorney’s office despite the invoice being addressed to the current judge in his capacity as the previous prosecuting attorney for the county.

      . The orders required no adjudication on the merits. The orders stayed visitation rights, set the matter for trial, and extended the temporary order.

      . Canon 3(E)(1)(b) of the Code of Judicial Conduct provides that a judge should recuse if he participated as a lawyer in the matter in controversy or where such lawyer could be a material witness concerning the matter. See In Re Murchison, 349 U.S. 133, 137, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Terry v. State, 718 So.2d 1097, 1104-05 (¶¶ 35-38) (Miss.1998); Jenkins v. State, 570 So.2d 1191, 1191-93 (Miss.1990) (A judge who was a county prosecutor when defendant was indicted should have recused himself.).

      . See U.R.Y.C.P. 16(b).

      . See U.R.Y.C.P. 4 cmt. (stating "abused child” has the same meaning as provided by Mississippi Code Annotated section 43-21-105(m); "adjudication hearing” includes hearings to determine if a child is an abused child; “sexual abuse” has same meaning as in Mississippi Code Annotated section 43-21-105(n) (Supp.2011)). See also U.R.Y.C.P. 11(b)(2) (setting forth the requirements for temporary custody orders in child-protection shelter hearings); 16(b)(4) (providing requirements for child-protection proceedings for a child ordered into custody).

      . I note that the Mississippi Supreme Court in In re E.K., 20 So.3d 1216, 1220-22 (¶¶ 12-21) (Miss.2009), addressed a different issue pertaining to a youth court contempt case involving the issues of whether the matter in dispute was a civil contempt or a constructive criminal contempt, and whether the youth court judge maintained sufficient objectivity. However, the supreme court in In re E.K. recognized that Mississippi Code Annotated sections 43-21-151(1) (Supp.2011) grants youth court, jurisdiction in all proceedings involving abused children, and the court recognized further section 43-21-105(m) provides the definition of an abused child. Id. at ■ 1223 (¶ 23). The court then explained that in determining whether the victim in that case met the definition of an abused child, that youth court, like the youth court in the case before us, would necessarily have to determine the factual issue of whether the perpetrator was given responsibility for the child's care when the abuse occurred. Id. In the present case, in a shelter hearing, the youth court would have had to have made those factual findings in determining that the child met the statutory definition of an abused child and that the court, therefore, possessed jurisdiction in the proceeding to remove the child from her mother's custody. See generally Miss. Constitution Art. 6, § 177A (grounds for judicial misconduct includes abuses of power of office).