author: ROBERTS, J.,

text:
    John JOHNSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KP-00661-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2008.
    Rehearing Denied March 3, 2009.
    Certiorari Denied May 21, 2009.

      John Johnson, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., IRVING, ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. John Johnson (Johnson) was convicted of armed robbery in the Sunflower County Circuit Court and sentenced to thirty years in the custody of the Mississippi Department of Corrections. He appeals pro se, asserting: (1) he was denied his right to a speedy trial; (2) the verdict was not supported by sufficient evidence; (3) the circuit court allowed presentation of improper photographic identification testimony; (4) the circuit court improperly allowed the prosecution to amend the indictment; (5) the prosecution made an improper closing argument; (6) he received ineffective assistance of counsel; and (7) cumulative error warrants reversal. Finding no error, we affirm.

FACTS

¶ 2. On January 7, 2003, Leroy Dan-dridge was working in Drew, Mississippi at Hack’s Produce, an establishment that sold produce and maintained “poker machines” in a separate room in the back of the store. Dandridge testified that he was inside the store with Terry Thurman and a man identified as Mr. Henry when “[t]wo young men came in ... and one of them asked where they uncle at [sic].” Dan-dridge recognized the speaker — Johnson-—■ as the nephew of James Johnson, an individual who sold hamburgers and pork chops out of a truck in the parking lot. However, he did not recognize the second man, who was later identified as Curtis McIntosh. Dandridge told Johnson that he had not seen his uncle that day, and Johnson asked if his uncle had left any wine for him. Dandridge replied in the negative, but offered Johnson samples of homemade wine. Johnson then produced a handgun, and demanded Dandriclge’s money. Dandridge gave Johnson two hundred and seventy dollars from his wallet.

¶ 3. Johnson told Dandridge to go back into the room where the poker machines were kept. The man who was with Johnson, but whom Dandridge did not know, said “come on let’s go; say, you got — you done got what you came for.” Johnson ignored his companion and ordered the two bystanders, Thurman and Henry, to get on the floor. He ordered Dandridge to open the poker machines. Dandridge complied, but he was unable to state if, or how much, money was taken from them. Johnson told his accomplice to pull out the telephone cord, which the accomplice did, and then the two men left the building and fled the parking lot in “a gray-looking car.” Dandridge reported the crime, identified Johnson by name, and identified Johnson’s accomplice as a taller man wearing “dog tags.”

¶ 4. One day later, officers with the Drew Police Department stopped a primer gray Buick, driven by McIntosh, who was wearing dog tags; Johnson and three females were passengers in the car. A nine-millimeter pistol was found in the car.

¶ 5. Dandridge testified that shortly after he reported the crime, he was shown a photograph of a man whom he identified as the robber. The photograph was of Johnson. As will be discussed in more detail in the last assignment of error, Chief Burner Smith testified that he showed Dandridge a group of photographs, rather than a single photograph. At any rate, there is no doubt that Dandridge picked out Johnson’s photograph prior to trial and identified him as the robber.

¶ 6. At trial, Dandridge said his eyesight prevented him from clearly identifying Johnson in person. He testified that he had not had his glasses on the day he was robbed, but the robber had “a lot of hair up on his head.” Further, he only picked out Johnson’s photograph because of “the hair.” Chief Smith testified that when Johnson was ultimately arrested, he wore his hair “more so in an Afro-type setting,” rather than in “braids,” as he had on the day of the trial. Despite this confusion due to Dandridge’s eyesight, there is no doubt that Johnson is, in fact, the nephew of the man who sold hamburgers outside of Hack’s Produce.

¶7. McIntosh testified for the State. His testimony was consistent with Dan-dridge’s. He and Johnson stopped at Hack’s Produce because Johnson was hungry. Once inside the store, Johnson produced a pistol that McIntosh had not been aware Johnson was carrying. Johnson then committed the crime, as described by Dandridge, ordering McIntosh to cooperate. McIntosh identified the pistol found in his car as belonging to Johnson. McIntosh testified in exchange for his charges being dropped. From the record, it also appears that illegal narcotics were found in the vehicle when it was stopped. As discussed later in this opinion, this drug matter also went to trial prior to the disposition of the armed robbery charges against Johnson and McIntosh. However, no mention of the other charges was made during Johnson’s trial.

ANALYSIS

I. SPEEDY TRIAL

¶ 8. Johnson asserts violations of both his statutory right to a speedy trial, as secured by Mississippi Code Annotated section 99-17-1 (Rev.2007), and his constitutional right to a speedy trial, as secured by the Sixth and Fourteenth Amendments to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution of 1890. However, Johnson never made a written or an ore tenus motion, that his trial should have been barred on speedy trial grounds. Further, Johnson’s motion for a new trial did not allege a speedy trial violation. When a defendant fails to file such a motion, and thereby obtain specific findings of fact going to an alleged deprivation of the right to a speedy trial, the issue is barred from appellate review unless an appellate court finds plain error. Sanders v. State, 678 So.2d 663, 670-71 (Miss.1996). The supreme court reiterated that this procedural bar arises when a defendant fails to move for dismissal, holding that in order to show plain error, a defendant must show that the denial of a speedy trial so impacted an accused’s rights that it “generate® a miscarriage of justice.” Dora v. State, 986 So.2d 917, (¶ 19) (Miss.2008) (quoting Morgan v. State, 793 So.2d 615, 617(¶ 9) (Miss.2001)). In considering a speedy trial claim for plain-error analysis, an appellate court looks to whether there is a trial court error that impacted a fundamental right resulting in a miscarriage of justice. Sanders, 678 So.2d at 670. Although we conclude the speedy trial issue is procedurally barred and the plain-error doctrine inapplicable, for the sake of discussion, we will briefly address the merits of this issue.

A. CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL

¶ 9. The constitutional right to a speedy trial attaches at the time of arrest. An alleged violation of the constitutional right to a speedy trial is subject to the four-part test announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors are as follows: (1) the length of the delay, (2) the reason for delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant by the delay. Id. at 530, 92 S.Ct. 2182. No one factor is dispositive. Skaggs v. State, 676 So.2d 897, 900 (Miss.1996). Rather, an appellate court looks to the totality of the circumstances. Herring v. State, 691 So.2d 948, 955 (Miss.1997).

1. LENGTH OF DELAY

¶ 10. The supreme court presumes that the accused has been prejudiced if there has been a delay of eight months or more between the date the right to a speedy trial attached and the date of the trial. Simmons v. State, 678 So.2d 688, 686 (Miss.1996). In this case, more than 600 days elapsed between Johnson’s arrest and his trial, well beyond the eight-month threshold for a presumption of prejudice.

2. REASON FOR THE DELAY

¶ 11. Johnson was arrested on January 8, 2003. The record shows that McIntosh was arraigned on September 15, 2003, regarding the indictment for armed robbery with Johnson as his co-defendant. Johnson, however, had been released from jail on bond and could not be found for arraignment. A warrant for his arrest was issued, and sureties were called on his bond on September 16, 2003. Johnson was re-arrested on October 28, 2003. Johnson’s and McIntosh’s initial trial setting was scheduled for October 29, 2003.

¶ 12. The record shows that witnesses for the State were subpoenaed for trial set for October 29, 2003. However, Johnson’s co-defendant, McIntosh, moved for a continuance, and the trial was continued to June 16, 2004.

¶ 13. Johnson filed a demand for a speedy trial on February 5, 2004, but there was no motion to sever his case from McIntosh’s case. Immediately after Johnson’s demand for a speedy trial, the trial court advanced Johnson’s scheduled trial date from June 16, 2004, back to February 18, 2004. The State again subpoenaed its witnesses.

¶ 14. The record is not entirely clear, but it appears that the trial was bumped because of another trial already in progress on February 18 and 19, 2004. On motion by the State, the trial court found good cause to continue the case and no prejudice to the defendant. The case was then scheduled to be tried on June 16, 2004.

¶ 15. On June 16, 2004, the State made a motion to continue the trial because it had been unable to locate Dandridge, the victim and an essential witness, after a diligent search. Therefore, the trial court found good cause — Dandridge being an essential witness and a diligent search — and no prejudice to the defendant. There also appears to have been a motion for a continuance dated June 17, 2004, stating that Dandridge did in fact appear on June 17, 2004, but he became ill and had to leave the courthouse. The case was rescheduled for the next court term.

¶ 16. During the next court term, it appears that Johnson was tried on the drug charge. A subsequent motion for a continuance filed by McIntosh stated that he testified against Johnson, but a hung jury resulted in a mistrial. If Johnson had been tried for the drug charge, good cause for a continuance existed, because obvious prejudice would occur if the same jury of veniremen were voir dired on two separate charges against Johnson.

¶ 17. The case was reset for the next term of court to be tried on October 26, 2004. On October 25, 2004, McIntosh’s counsel filed another motion for a continuance, apparently based on his desire to retry the drug charge before the armed robbery charge. McIntosh’s attorney thought that the district attorney had no objection to retrying Johnson’s mistried case first. The trial judge granted the motion on October 25, 2004. Again, Johnson filed no motion to sever. Ultimately, the trial was held two weeks later on November 9, 2004.

¶ 18. It appears from the record before us that approximately 678 days expired between the time of Johnson’s arrest until his trial. The record shows at a minimum that Johnson jumped his appearance bond for approximately 43 days. The record clearly shows that the State had subpoenaed witnesses and stood ready to select a jury on the day after Johnson’s rearrest, October 29, 2003, and Johnson acquiesced to McIntosh’s continuance until he filed his motion for a speedy trial, approximately 99 days later, on February 5, 2004.

¶ 19. McIntosh’s two motions for continuances accounted for approximately 110 days, and beyond question, these days cannot be attributed to the State. Johnson never made a motion to sever his case from McIntosh’s case, and the record does not indicate any reason the State might have had to oppose any motion to sever, if one had been made. However, the scant record before us shows that the delays attributable to the State were for good cause, i.e., a sick material witness, a crowded trial docket, and trial of Johnson and McIntosh for the drug charges.

¶ 20. We do not mean to say that a defendant waives his speedy-trial rights when he jumps an appearance bond and fails to instruct his attorney to obtain the earliest possible trial, nor does he waive his speedy-trial rights when he acquiesces to a co-defendant’s motions for time. However, these factors must be weighed in the totality of circumstances. This is particularly true in a case such as this one, where the record shows the State was in good faith attempting to try Johnson before he jumped his bond and, belatedly, asserted his right to a speedy trial. Moreover, a delay for good cause is not counted as heavily as is delay without good-cause. Johnson failed to present this issue to the trial court, which deprives us from knowing exactly what delay would have been attributed to the State and how much weight such delay would have been given. Nevertheless, it is clear that both Johnson and the State were responsible for delay, and while the record shows good cause for all delay attributable to the State, the record does not show good cause present for the delay attributable in all, or in part, to Johnson.

3. JOHNSON’S ASSERTION OF HIS RIGHT TO A SPEEDY TRIAL

¶ 21. There is no doubt that Johnson asserted his right to a speedy trial by filing his demand for a speedy trial on February 5, 2004. However, an assertion of the right via a demand for a speedy trial is separate and distinct from a motion to dismiss for failure to provide a speedy trial. Perry v. State, 637 So.2d 871, 875 (Miss.1994). A demand for a speedy trial seeks trial, while a motion to dismiss seeks a dismissal of the charges. Id. A demand for a speedy trial is an assertion of a defendant’s constitutional rights, but it is the motion to dismiss that requires a circuit court to determine whether a denial of these rights requires the dismissal of charges. Guice v. State, 952 So.2d 129, 141(¶ 26) (Miss.2007).

4. PREJUDICE TO THE DEFENDANT

¶ 22. In order to prevail on a motion to dismiss the charges against him for failure to provide a speedy trial, a defendant is not required to affirmatively show prejudice; however, “an absence of prejudice weighs against a finding of a violation” of constitutional rights. Murray v. State, 967 So.2d 1222, 1232(¶30) (Miss.2007) (quoting Atterberry v. State, 667 So.2d 622, 627 (Miss.1995)). Prejudice may arise from a denial of liberty or actual prejudice in defending against charges brought by the State, and of these two forms of prejudice, actual prejudice is given more weight. Id. In this case, both types of prejudice weigh against Johnson.

¶ 23. The reason Johnson was incarcerated while awaiting trial was because he illegally absented himself from the circuit court, thereby necessitating the instanter capias and his re-arrest. He has only himself to blame for his denial of freedom pending the actual trial.

¶ 24. In weighing actual prejudice, the Barker Court expressly cautioned courts to note the potential defense advantage of delay, stating:

Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. Thus, unlike the right to counsel or the right to be free from compelled self-inerimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.

Barker, 407 U.S. at 521, 92 S.Ct. 2182. In this case, the record shows that the passage of time allowed Johnson to alter his appearance, making Dandridge’s identification of him even more uncertain. Conversely, while Johnson claims that, but for the delay, he would have been able to call witnesses who were no longer willing to testify, he not only fails to state what this testimony may have been, he also fails to even name the purported witnesses. Therefore, we find that the record before us shows that the factor of prejudice must weigh against Johnson.

¶ 25. In viewing Johnson’s claim under the totality of the circumstances, Johnson’s claim that the charges against him should have been dismissed for a denial of a speedy trial, we cannot find plain error arising to a miscarriage of justice. To be sure, the delay was substantial. However, the record shows that had Johnson actually sought a speedy trial by bringing a motion to sever, the State was ready and willing to provide him with one as early as October 29, 2003. Moreover, the record also shows that Johnson’s denial of freedom arose from his own absence while on bond, and the State’s case was weakened by the passage of time. Therefore, manifest injustice and plain error cannot be shown. This issue is without merit.

B. STATUTORY RIGHT TO A SPEEDY TRIAL

¶ 26. Mississippi Code Annotated section 99-17-1 requires trial to occur within 270 days from arraignment absent good cause for delay and a continuance granted. In this case, the record shows that Johnson was never arraigned. He was absent from the arraignment, and an instanter capias was issued. The date of September 15, 2003, was set for arraignment, but Johnson was not re-arrested until October 28, 2003. Therefore, the statutory clock never began to tick. This issue has no merit.

II. INSUFFICIENT EVIDENCE

¶27. Johnson asserts pro se that because the only eyewitness to testify against him, aside from his alleged accomplice, could not identify him at trial, the circuit court erred in denying his motion for a directed verdict. • In considering whether the evidence is sufficient to sustain a conviction in the face of a motion for a directed verdict or for a judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)).

¶28. Dandridge was the eyewitness who testified in this case. While the record does not disclose Dandridge’s age, it is clear that he was elderly and had a vision deficiency. Dandridge testified that when the robber entered the store, he identified himself as the nephew of the man who sold hamburgers and pork chops in the parking lot of Hack’s Produce. Dandridge testified that he recognized the robber as being the man he had seen “maybe twice previously)” with his uncle. However, at the time of the trial, Dandridge could not make an in-court identification of Johnson. This failure was due either to Dandridge’s age and eyesight or Johnson changing his appearance by changing from a natural to a braided hairstyle or a combination of both. However,, there is no dispute that Johnson is, in fact, the nephew of the man who sold hamburgers and pork chops in the parking lot of Hack’s Produce. Moreover, Dandridge’s identification of Johnson was supported by McIntosh’s testimony, which not only identified Johnson as the perpetrator, but also was factually consistent with Dandridge’s testimony in reciting the events of the armed robbery. Therefore, sufficient evidence existed for the jury to find that Johnson took two hundred and seventy dollars from Dandridge while threatening him with a pistol. This issue is without merit.

III. IMPROPER PHOTOGRAPHIC IDENTIFICATION TESTIMONY

¶ 29. Johnson asserts that Chief Smith should not have been allowed to testify about a photographic-lineup identification from which Dandridge identified Johnson as the robber. However, this testimony was elicited by Johnson during cross-examination. A defendant may not argue that evidence was erroneously introduced when he himself was responsible for its introduction. Pruitt v. State, 807 So.2d 1236, 1241(¶ 14) (Miss.2002). Johnson also asserts that his counsel was not present when Dandridge identified his photograph. An accused does not have the right to counsel during a photographic lineup. Wilson v. State, 574 So.2d 1324, 1326 (Miss.1990). There is no merit to this assignment of error.

IY. IMPROPER AMENDMENT OF THE INDICTMENT

¶ 30. Johnson asserts that the State was impermissibly allowed to amend the indictment to reflect that the two hundred and seventy dollars taken from Dan-dridge’s wallet actually belonged to the owner of Hack’s Produce, rather than to Dandridge. The indictment originally alleged that the stolen money belonged to Dandridge, but at trial, Dandridge testified that the money actually belonged to his employer. An indictment may be amended at trial to conform to the evidence so long as the change is one of form and not substance and there is no prejudice to the defendant. Hampton v. State, 815 So.2d 429, 431(¶ 7) (Miss.Ct.App.2002) (citing Miss.Code Ann. § 99-17-13 (Rev.2007)). No prejudice could have occurred to Johnson simply from correcting the statement of ownership of the money he took at gunpoint. There is no merit to this assignment of error.

Y. IMPROPER CLOSING ARGUMENT

¶ 31. Johnson asserts that the State impermissibly urged the jury to reach a “compromise verdict” by finding him guilty, but not to affix a sentence of life imprisonment. Jury instruction number nine tracked the statutory language of Mississippi Code Annotated section 97-3-79 (Rev.2006) in requiring that if the jury chose to return a guilty verdict, the jury should either affix a penalty of life imprisonment or state that it was unable to do so. During closing arguments, the State argued it “was not asking the jury to sentence him to life.” Johnson did not object to this argument. Failure to make a contemporaneous objection to closing argument bars consideration of the issue on appeal. Rushing v. State, 711 So.2d 450, 455(¶ 14) (Miss.1998). Moreover, assuming the issue were not barred, which we do not find, Johnson does not cite any authority for the proposition that the State should not urge a jury to affix a more lenient sentence than the maximum allowed by law.

VI. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 32. In order to succeed on a claim of ineffective assistance of counsel, a defendant must overcome the familiar two-prong inquiry established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must first demonstrate that his attorney’s “representation fell below an objective standard of reasonableness.” Hannah v. State, 943 So.2d 20, 24(¶ 6) (Miss.2006) (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). If the defendant overcomes the first hurdle, “the defendant must show there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 694,104 S.Ct. 2052).

¶ 33. Johnson asserts that his counsel’s performance was deficient in not pursuing a speedy trial. We have found that the scant record fails to show error so plain that a miscarriage of justice appears, at least not on the face of what is before this Court. This Court has held:

We should reach the merits on an ineffective assistance of counsel issue on direct appeal only if “(1) the record affirmatively shows 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.”

Pittman v. State, 836 So.2d 779, 787(¶ 39) (Miss.Ct.App.2002) (quoting Colenburg v. State, 735 So.2d 1099, 1101(¶5) (Miss.Ct.App.1999)). There has been no such stipulation, and the record does not affirmatively show ineffectiveness of constitutional dimensions. Rather, the state of the record renders it impossible for us to sufficiently consider Johnson’s allegations.

¶ 34. Nevertheless, ineffective assistance of counsel claims are often raised in a petition for post-conviction collateral relief, where a defendant has an opportunity to expand upon the affidavits and other evidence unavailable at trial or in the record. Accordingly, we dismiss this issue without prejudice. Assuming he follows the requirements of the Mississippi Post-Conviction Collateral Relief Act, Johnson may raise his ineffective assistance of counsel claim in a post-conviction relief proceeding, if he so chooses.

VII. CUMULATIVE ERROR

¶ 35. Johnson brings an omnibus assignment of cumulative error. Having found there was no error in previous assignments, this issue is without merit.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

KING, C.J., LEE AND MYERS, P.JJ, CHANDLER, GRIFFIS, ISHEE AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. BARNES, J., CONCURS IN PART AND IN THE RESULT.

      . The supreme court denied rehearing on August 7, 2008.

      . It appears from the record that McIntosh and Johnson were both indicted in cause number 2003-0106-K for possession of narcotics found in the primer gray Buick when they were arrested on January 8, 2003.

      . This opinion discusses Johnson's assertion of ineffective assistance of counsel in the last assignment of error, in which we find the paucity of the record makes this issue best left for possible post-conviction relief. However, Johnson also contends that his counsel's performance was defective in failing to delve into inconsistencies in Dandridge's identification of him. For the sake of clarity, we note that Johnson’s counsel fully developed inconsistencies in Dandridge's and Chief Smith's testimony. Counsel also elicited testimony suggesting that Chief Smith influenced Dan-dridge’s identification, although Chief Smith adamantly denied doing so. At any rate, this testimony was fully elicited and argued in closing arguments.


source: Caselaw Access Project

author: ISHEE, J., GRIFFIS, J.,

license: Public Domain

text:
    Kathy Virginia RAY, Appellant v. BLOCKBUSTER, INC., a Delaware Corporation, and Crystal Adams, Individually, Appellees.
    No. 2007-CA-00744-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2008.
    Rehearing Denied Feb. 24, 2009.
    Certiorari Denied May 14, 2009.

      Michael Richard Brown, Flowood, Ro-gen K. Chhabra, Jackson, attorneys for appellant.
    Rebecca B. Cowan, Edward J. Currie, Denise Wesley, Jackson, attorneys for ap-pellees.
    Before MYERS, P.J., CHANDLER, BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. The Circuit Court of Hinds County entered summary judgment in favor of Blockbuster, Inc., and Crystal Adams. The circuit eoui’t found that Kathy Virginia Ray had presented no material facts on the issue of duty regarding her claim of negligence against Blockbuster and Adams. Aggrieved, Ray appeals. She argues that the circuit court erred in relying on Brookhaven Funeral Home, Inc. v. Hill, 820 So.2d 3 (Miss.Ct.App.2002) as authority in issuing its ruling and, therefore, erred in granting summary judgment.

¶ 2. Finding that the circuit court was in error when it granted summary judgment to Blockbuster and Adams, we reverse the judgment of the circuit court and remand the case for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3. In April 2002, Ray exited a Blockbuster video store franchise in Clinton, Mississippi. While she was stepping down from the curb that separated the walkway in front of the franchise from the parking lot, she fell into a pothole, injuring herself. Ray subsequently filed a negligence claim against the owner of the franchise — Crystal Adams; the parent company of the franchise where she was injured — Blockbuster, Inc.; and the company that managed the development where the franchise was located — Madison Development (Madison).

¶ 4. Madison settled with Ray during the early stages of litigation, leaving only Blockbuster and Adams as defendants. Before trial, Blockbuster filed a motion for summary judgment in the circuit court, arguing that it lacked any legal duty to warn Ray of the pothole because it lacked the necessary possession and control over the parking lot needed to give rise to liability.

¶ 5. Ray responded to the motion for summary judgment, claiming that she presented issues of material fact and citing the lease between Madison and Blockbuster in support of her position. Specifically, she refers to paragraph ten, which reads as follows:

Lessee agrees to and does hereby indemnify and save Lessor harmless against any and all claims, demands, damages, costs and expenses, including reasonable attorneys’ fees for the defense thereof, arising from the conduct or management of the business conducted by Lessee in the demised premises, or from any breach or default on the part of Lessee in the performance of any covenant or agreement on the part of Lessee to be performed, pursuant to the terms of this lease, or from any act or negligence of Lessee, its agents, contractors, servants and employees, in or about the demised premises, the sidewalks adjoining same and the other areas of the shopping center used by Lessee in common with others. In the event any action or proceeding is brought against Lessor by reason of any such claim, Lessee covenants to defend such action or proceeding.

The lease also required Blockbuster to maintain general liability insurance “for the benefit and protection of Lessor in an amount not less than $200,000.00 for injuries to any one person, and not less than $500,000.00 for injuries to more than one person ... arising out of any one accident or occurrence.” The insurance policy was to cover “the demised premises, the sidewalks adjoining the same[,] and other areas of the shopping center.” Ray pointed out that the lease contemplated that Blockbuster’s customers would use the parking lot. Also, she argued that according to an answer to her requests for admission, Blockbuster knew about the defect for over a month, and it admitted that there were no signs warning about the defect.

¶ 6. The circuit court found that there was no genuine issue of material fact on the issue of duty, but the court did not make any other findings. The circuit court granted Blockbuster’s motion for summary judgment, citing Brookhaveu in support of its judgment. It is from that judgment that Ray now appeals.

STANDARD OF REVIEW

¶ 7. We review a lower court’s grant of summary judgment de novo. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶9) (Miss.2002). In reviewing a grant of summary judgment, we view the evidence in the light most favorable to the nonmoving party, and examine all evidentiary matters before the lower court at the time the judgment was granted. Id. at 1177(¶ 9). If no genuine issue of material fact exists upon review, then a grant of summary judgment in favor of the moving party is appropriate. Id.

DISCUSSION

¶ 8. The only issue that Ray currently presents on appeal is whether the circuit court erred in granting summary judgment in favor of Blockbuster and Adams. She argues that the circuit court erred in relying on Brookhaven when instead the court should have looked to Wilson v. All-day, 487 So.2d 793 (Miss.1986) when ruling on the motion.

¶ 9. In this case, we are confronted with a question concerning under what circumstances, if any, a lessee may potentially be held liable to a third party for injuries sustained on property incidental to, but not on, the leased property. Here, the leased property consists of the building space leased by the Blockbuster franchise; the incidental property consists of the parking lot where Ray was injured. The third party in this case is Ray, a business invitee.

¶ 10. The prevailing law in this state is that liability can be imposed on a lessee for injuries sustained by invitees, regardless of the contractual relationship between the lessor and the lessee, so long as the lessee exercised some degree of possession and control over the property. Wilson, 487 So.2d at 797. In Wilson, a woman leaving a grocery store was injured when her shopping cart became caught in a pothole in the parking lot. Id. at 795. The grocery store shared the parking lot with other businesses, and the lease agreement between the grocery store (as lessee) and the owner of the development (as lessor) specified that the owner of the development would keep the parking lot in good repair. Id. at 794-95.

¶ 11. In holding that the grocery store could potentially be held liable for injuries sustained by its customers in the parking lot, the Wilson court stated that: “If the lessee’s use of the premises was tantamount to possession and control, then the lessee owed a duty of ordinary and reasonable care to its invitees upon the premises. Whether there was a breach (notice, dangerous conditions, etc.) [then] becomes a question of fact.” Id. at 797. However, “if the lessee’s use of the lot did not constitute control, there would be no duty owed and[,] therefore[,] no cause of action.” Id. The Wilson court found that “a tenant may be responsible for the condition of approaches and stairways, or a parking area.” Id. (quoting 52 C.J.S. Landlord & Tenant, § 436 (1966)). In summarizing its holding, the Wilson court stated:

It would appear that a tenant/lessee/occupier of premises owes a duty of reasonable care to its invitees for the demised property and such necessary incidental areas substantially under its control (as the parking lot) and which he invites the public to use, notwithstanding a maintenance agreement with the landlord. While such agreement may serve as the basis for recovery against the lessor, it does not absolve the lessee of his duty to his invitees under the circumstances.

Id. at 798. Of importance in the supreme court’s ruling was the fact that the grocery store in Wilson had constructed a shopping cart corral in the parking lot, which the store expected its customers to use and which its employees visited at least twelve times a day. Id. at 797. Aside from the shopping cart corral, the only other fact supporting the grocery store’s possession and control of the parking lot in Wilson was the fact that the store invited its customers to park in the lot. Id.

¶ 12. The facts of the present case comport well with those of Wilson. In this case, Blockbuster leased space in a retail development from Madison. The development contained a parking lot, which was made available for use by the patrons and employees of the several businesses leasing space in the development, including Blockbuster. The lease agreement between Blockbuster and Madison provided that Madison was responsible for the maintenance and upkeep of the parking lot. However, an amendment to the lease also provided Blockbuster with a right to erect a sign in the parking lot. Additionally, the lease required Blockbuster to carry its own insurance covering accidents or occurrences on “the demised premises, the sidewalks adjoining the same[,] and other areas of the shopping center.” Blockbuster was further required to defend suits arising from its acts or negligence stemming from its rights in the parking lot and from suits “arising from the conduct or management of the business conducted by [Blockbuster].” According to the lease, Blockbuster’s duty to defend also applied “in or about the demised premises, the sidewalks adjoining same and the other areas of the shopping center used by [Blockbuster] in common with others.”

¶ 13. Furthermore, the accident did not occur in a remote area of the parking lot. The Appellees admitted in response to the requests for admission that the defect in the parking lot, which Ray alleged was just at the edge of the sidewalk, existed within twenty feet of the store. The Appellees also admitted that the defect had existed in front of the store for over a month. However, they claimed that they had notified Madison, which, according to the lease, was responsible for repairing any defects in the parking lot. A lessor’s duty to repair defects may, of course, serve as the basis for recovery against the lessor; however, the lessee may also have a duty to its invitees concerning any incidental areas substantially under its control. Wilson, 487 So .2d at 798; see also Doe v. Cloverleaf Mall, 829 F.Supp. 866, 870 (S.D.Miss.1993).

¶ 14. On the other hand, the situation in this case is distinguishable from the one presented in Brookhaven, which was the only authority the circuit court relied on in granting summary judgment. In Brook-haven, the accident occurred on a sidewalk adjacent to a funeral home. Brookhaven, 820 So.2d at 4(¶ 2). This Court found that the plaintiff did not present sufficient evidence that the funeral home exercised any possession or control over the sidewalk. Id. at 7(¶ 19). The sidewalk in Brookha-ven was in no way connected to the funeral home other than the fact that it was adjacent to the building. Id. Furthermore, the fact that the funeral home offered to pay for the concrete to create steps on the dangerous portion of the sidewalk and also received permission from the city to install a handrail after the accident did not show that the funeral home exercised any possession or control over the sidewalk. Id. at 6-7(¶ 16). To the contrary, this Court found that those facts proved that the City solely possessed and controlled the sidewalk. Id. at 7(¶ 16).

¶ 15. As the supreme court found in Wilson, we find that Ray presented sufficient evidence to create a question of material fact for a jury to determine whether Blockbuster exercised the requisite possession and control over the parking lot to create a duty to warn its customers of a known dangerous condition in the parking lot directly in front of the store’s entrance. This is not to say that Ray has proved that Blockbuster exercised any possession and control over the parking lot, merely that she presented sufficient evidence to create an issue of material fact. Summarized, the facts that Ray presented included the following: (1) the lease provisions requiring Blockbuster to maintain insurance and to defend claims arising out of incidents on the leased premises and surrounding areas, (2) Blockbuster’s right to erect a sign in the parking lot, (3) the close proximity of the parking lot defect to the store’s entrance, (4) the fact that the defect existed in front of the store for more than a month without any attempt to repair it, and (5) the fact that Blockbuster’s customers and employees were permitted to use the parking lot. We find that these facts, when taken together, were sufficient to create a question of material fact as to whether the Appellees owed any duty to Ray to warn about the allegedly dangerous condition stemming from them interest in the parking lot.

¶ 16. We conclude that Ray presented sufficient evidence of the Appellees’ possession and control of the parking lot to survive the motion for summary judgment; therefore, the circuit court erred in granting summary judgment in favor of Blockbuster and Adams. Accordingly, we reverse the judgment of the circuit court and remand this case for further proceedings consistent with this opinion.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER AND BARNES, JJ„ CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS AND CARLTON, JJ.

GRIFFIS, J.,

dissenting.

¶ 18. Because I believe the majority has misconstrued Wilson v. Allday, 487 So.2d 793 (Miss.1986), I respectfully dissent.

¶ 19. The majority cori*ectly states the holding of Wilson. However, the opinion fails to correctly apply the law to the facts. First, the Wilson court framed the issue as follows:

whether a lessee would be liable to a third party for injuries received on property incidental to (but not on) demised property (common area-parking lot) which lessor had agreed to maintain in good repair. An examination of the relevant law would indicate that the liability of the lessee would depend on whether or not the lessee exercised control of the premises in question.

Wilson, 487 So.2d at 795 (emphasis added). The court then held that:

If the lessee’s use of the premises was tantamount to possession and control, then the lessee owed a duty of ordinary and reasonable care to its invitees upon the premises. Whether there was a breach (notice, dangerous conditions, etc.) becomes a question of fact. Conversely, if lessee’s use of the lot did not constitute control, there would be no duty oived and therefore no cause of action.

Id. at 797 (emphasis added). The opinion ends with the following holding:

If the lessees occupied and controlled the premises in question, then there toas a duty concurrent with both the lessee and lessor to repair the dangerous condition or to warn invitees coming onto the premises. The judge was correct in submitting this issue to the jury for determination. The jury apparently concluded that the store controlled the property and therefore owed a duty to the appellant.

Id. at 798 (emphasis added).

¶ 20. Here, the parking lot was not part of Blockbuster’s leasehold. Thus, Blockbuster could have only breached a duty owed to business invitees if it controlled the portion of the parking lot where Ray fell. The majority finds that “Ray presented sufficient evidence to create a question of material fact for a jury to determine whether Blockbuster exercised the requisite possession and control over the parking lot to create a duty to warn its customers of a known dangerous condition in the parking lot directly in front of the store’s entrance.”

¶ 21. The majority’s conclusion that Blockbuster presented sufficient evidence of possession and control is based on five factual statements:

1. The lease provision requiring Blockbuster to maintain insurance and to defend claims arising out of incidents on the leased premises and surrounding areas,
2. Blockbuster’s right to erect a sign in the parking lot,
3. The close proximity of the parking lot defect to the store’s entrance,
4. The fact that the defect existed in front of the store for more than a month without any attempt to repair it, and
5. The fact that Blockbuster’s customers and employees were permitted to use the parking lot.

¶ 22. Only the first two factual statements-that the lease (1) required Blockbuster to maintain insurance and to defend claims arising out of incidents on the leased premises and surrounding areas and (2) provided Blockbuster the right to erect a sign in the parking lot-could possibly support a claim against Blockbuster. However, neither of these facts indicate possession and control over the parking lot.

¶ 23. The last three statements simply do not evidence “possession and control” over the parking lot. Clearly, the parking lot where Ray fell was at a location both owned and controlled by Madison regardless of how close it was to Blockbuster. The lease agreement granted Blockbuster only the rights of control and possession over the interior portion of the store. The lease expressly refused to extend Blockbuster any control of the adjacent parking lot. The parking lot was made available for use by the patrons and employees of several businesses located in the development. None of these factual statements evidence “possession and control” over the parking lot. Further, none of these facts are sufficient to establish an issue of material fact to allow a claim against Blockbuster to survive summary judgment.

¶ 24. In Wilson, like here, the lessor of the grocery store was required, under the terms of the lease agreement, to maintain the parking lot for the use of the lessees and the lessees’ customers. Wilson, 487 So.2d at 796. However, the supreme court found that there was evidence that the grocery store exercised possession and control of the parking lot when it constructed a cart corral on the parking lot. Id. at 797. In other words, the construction of the cart corral indicated that the grocery store invited its customers to take carts into the parking lot and use the cart corral; therefore, the grocery store could be liable for the dangers that were associated with the use of grocery carts in the parking lot. The court held that these facts were sufficient to allow the jury to determine whether the grocery store had possession and control of the parking lot. Id. at 798. Such was not the case here; there is no evidence that Blockbuster exercised possession and control of the parking lot.

¶ 25. There are two other cases that are instructive here. First, in Brookhaven Funeral Home, Inc. v. Hill, 820 So.2d 3, 4(¶ 1) (Miss.Ct.App.2002), Deborah Hill fell on a sidewalk that was located in front of Brookhaven Funeral Home. The sidewalk was owned by the City of Brookhaven. Id. She brought an action for her injuries against the funeral home. Id. at 5(¶ 5). The jury awarded a verdict in favor of Hill for $75,000. Id.

¶ 26. This Court, in an opinion written by Presiding Judge Leslie Southwick, reversed the jury verdict and held that Hill failed to prove the funeral home’s ownership or control of the sidewalk where she fell. Id. at 7 (¶¶ 19-20). The Court reasoned that in order for the funeral home to be liable, “the defect must be to premises for which the funeral home has sole or shared legal responsibility, not just to property in the vicinity of the funeral home.” Id. at 5(¶ 9). Thus, the case was decided on “whether there was evidence to make a jury question of the funeral home’s responsibility for defects in the segment of sidewalk on which Hill fell.” Id. at 6(¶ 12). The Court then determined that:

[Tjhese are the items of evidence that arguably created a fact question about the funeral home’s ownership, possession or control of the sloping sidewalk.
1) The funeral home notified the City after Hill’s fall that improvements should be made.
2) The funeral home agreed to pay for the concrete if the City would construct steps to replace the sloping sidewalk.
3) The funeral home gained permission from the City to add a handrail.
4) The sidewalk is adjacent to the funeral home.
We find nothing in these facts to create an issue for the jury. Municipal sidewalks will be adjacent either to private property or to other governmental property. Proximity is the unavoidable reality of sidewalks and does not by itself create a fact issue on ownership or control. Post-injury efforts to improve the walk were consistent with the City’s ownership and control over the property; all the funeral home did was offer to pay for the concrete as an incentive for the discretionary action of the City. The post-accident handrail is similarly ineffective to prove the funeral home’s liability.
Since the funeral home’s occupation or ownership of the sidewalk was never shown, we reverse and enter judgment for Brookhaven Funeral Home....

Id. at 7 (¶¶ 18-20).

¶ 27. Hill, just as the instant case, involved a question of ownership and control of the property where the plaintiff was injured. Blockbuster is in a similar position to that of the funeral home in Hill. Here, Ray did not offer any evidence that Blockbuster actually owned the parking lot where she fell. Instead, the lease clearly established that Madison had ownership, control, and possession of the parking lot. The evidence also revealed that Madison, not Blockbuster, made the repairs to the parking lot when Ray fell. There was no evidence that Madison relinquished its legal control of the parking lot to Blockbuster.

¶ 28. The second case is Doe v. Cloverleaf Mall, 829 F.Supp. 866 (S.D.Miss.1993) — a case that was removed to federal court. In Doe, the questions before the court were: (1) whether the defendants were fraudulently joined and (2) whether the case should be remanded to state court jurisdiction. Id. at 869. The court had to consider the substantive law as it applied to the resident defendants.

¶ 29. In Doe, the plaintiff brought an action against Cloverleaf Mall, its management company, and five tenants of the Cloverleaf Mall. The tenants were J.C. Penney Company, Inc.; K & B Mississippi Corporation; Morrison, Inc.; McCrory Corporation; and McRae’s, Inc. Id. at 868. The plaintiff was abducted at gunpoint from the parking lot of the Cloverleaf Mall on the east side of J.C. Penney’s. Id. The plaintiff filed the action to recover the damages that resulted from the abduction. Id.

¶ 30. The district court determined that the issue was “whether the resident defendants had a duty to maintain the mall parking lot in a reasonably safe condition for mall patrons.” Id. at 870. The court, citing Wilson, summarized Mississippi law as follows:

Generally speaking, under Mississippi law, a tenant may be liable for injuries occurring on those parts of the premises which are part of the leasehold; that is, a tenant’s duty to invitees extends to those parts of the premises which are actually leased by the tenant. A tenant’s duty also extends to areas of the premises not within the leasehold but as to which the tenant has covenanted to maintain and repair, and to areas as to which the tenant exercises actual possession or control. And in the latter instance, that duty of care to invitees devolves upon the tenant even though the lessor has contracted to maintain and repair those parts of the premises.

Id. at 870 (emphasis added). The court held that the Mississippi Supreme Court followed this rule in Wilson to find that the tenant had control over the parking lot, but the facts in Wilson were distinguishable from those in the claim against Cloverleaf Mall and its tenants. The court also provided a list of factors that would not reflect a tenant’s possession or control over a parking lot:

The mere use of the parking lot, however, even though this use resulted in economic benefit to these tenants, is not “tantamount to possession and control.” See Catherman v. United States, No. 90-CV-576 [1992 WL 175258], U.S. Dist. LEXIS 11120 (N.D.N.Y. July 21, 1992) (mere fact that defendant’s patrons used entrance for access to leased space in building could not reasonably be asserted as divestment of landlord’s possession and control of entryway); Craig v. A.A.R. Realty Corp., 576 A.2d 688, 696 (Del.Super.Ct.1989) (economic benefit standing alone will not be sufficient to create duty on part of landlord where record otherwise lacks evidence of control); St. Phillips v. O’Donnell, 137 Ill.App.3d 639, 92 Ill.Dec. 354, 484 N.E.2d 1209, 1212 (1985) (mere use of parking lot along with customers does not show actual control of parking lot); Hall v. Quivira Square Dev. Co., 9 Kan.App.2d 243, 675 P.2d 931 (Kan.App.1984) (lessor liable for failure to maintain leased area retained for common use of lessor’s tenants where tenants and their customers merely entitled to use common area); Leary v. Lawrence Sales Corp., 442 Pa. 389, 275 A.2d 32 (1971).
A tenant’s reservation of the right to make repairs or provide security should the landlord fail to do so, where the tenant never exercises that right, cannot give rise to a duty to make such repairs or provide such security. See Catherman v. United, States, No. 90-CV-576, [1992 WL 175258, at *13] U.S. Dist. LEXIS 11120, at *39 (citing DeLong v. United States, No. 82-CV-1104, slip op. at *4 (N.D.N.Y.1983)) (right-to-repair clause in lease “does not provide any support” for contention that tenant is in control of that area of premises); Dopico-Fernandez v. Grand Union Supermarket, 841 F.2d 11, 14 (1st Cir.), cert. denied, 488 U.S. 864, 109 S.Ct. 164, 102 L.Ed.2d 135 (1988) (reservation unto tenant of right to perform landlord’s obligations upon landlord’s failure to do so could not be read to impose any obligation on tenant); Craig v. A.A.R. Realty Corp., 576 A.2d 688 (Del.Super.Ct.1989) (neither right to inspect premises, nor reservation of right to inspect coupled with right to retake control under certain circumstances amounted to control); Tu Loi v. New Plan Realty Trust, [1992 WL 392617, at *3] 1992 U.S. Dist. LEXIS 19279, at *8-9 No. 91-7273 (E.D.Pa. Dec. 15, 1992) (rejecting plaintiffs contention that landlord’s retention of right to repair was tantamount to control over premises); Underhill v. Shactman, 337 Mass. 730, 151 N.E.2d 287 (1958) (where landlord was to maintain passageways and parking area for benefit of stores in shopping center and control over these areas remained in landlord, tenant had no duty with respect to those areas, even though tenant had right to supply extra parking attendants and duty to carry insurance covering persons injured “in or about the [demised] premises”).

Doe, 829 F.Supp. at 872-73. Hence, the court concluded:

In this case, no facts have been alleged in support of plaintiffs allegation of possession and control by the tenant defendants. In Catheman v. United States, [1992 WL 175258] 1992 U.S. Dist. LEXIS 11120, No. 90-CV-576, (N.D.N.Y. July 21, 1992), the court, in granting summary judgment for the defendant tenant where there was a lack of any proof that the defendant took any action constituting control of the common area in which the plaintiff was injured, appropriately stated:
The defendant must have taken specific action constituting control of the ... area in order to assume a duty to plaintiff upon which liability for his accident may be premised. None of the evidence before the court indicates that defendant took any action with respect to the [area] which could be construed as an exercise of control, nor does plaintiff suggest any evidence he would like to discover which might indicate that defendant exercised control over the ... area.
See also Gladman v. Reveo Discount Drug Centers, Inc., 669 S.W.2d 677 (Tenn.Ct.App.1984) (judgment for tenant defendant for injury resulting from fall in parking lot where parking lot remained in control of lessor under lease agreement and tenant was not shown to have exercised control over parking lot); Garcia v. Arbern Realty Co., 89 A.D.2d 616, 452 N.Y.S.2d 665 (2d Dept.1982) (tenant had no duty to warn patron of defective condition in common stairway where tenant did not lease stairwell and did not exercise any control over it); Torres v. Piggly Wiggly Shop Rite Foods, Inc., 93 N.M. 408, 600 P.2d 1198 (N.M.Ct.App.1979) (judgment for lessee where lease agreement did not require that tenant care for parking lot and there was no showing that tenant actually had or assumed control over parking lot); Kiser v. A.J. Bayless Markets, Inc., 9 Ariz.App. 103, 449 P.2d 637 (1969) (where parking lot on which plaintiff was injured was not part of premises leased by defendant tenant and responsibility for maintaining parking lot was upon lessor, plaintiffs failure to come forward with sufficient proof to show duty warranted entry of judgment for tenant); Snyder v. I. Jay Realty Co., 30 N.J. 303, 153 A.2d 1 (1959) (judgment for tenant where landlord retained control over common passageways and tenant exercised no measure of control over such passageways); compare Coyle v. Gerritsen Ave. Shopping Center, Inc., 176 A.D.2d 232, 574 N.Y.S.2d 57 (2d Dept. 1991) (summary judgment denied in parking lot slip and fall where defendant tenant had occasionally cleaned drain into which plaintiff fell); Farrar v. Teicholz, 173 A.D.2d 674, 570 N.Y.S.2d 329 (2d Dept.1991) (issue of fact as to control where defendant tenant regularly inspected parking lot and notified landlord of defects or hired contractor to perform repairs).
Inasmuch as the plaintiff here neither alleged nor presented any facts which could reasonably be found to demonstrate possession and control by the resident tenant defendants of the mall parking lot, the court must conclude that there is no factual basis for her allegation of possession and control by the resident defendants. Hence, there is no reasonable possibility that the resident defendant could be held liable and' they are therefore due to be dismissed from this action. The court will, therefore, reverse the magistrate judge’s order of remand and dismiss the resident defendants.

Id. at 873-74.

¶ 31. Here, as in Hill and Doe, there is simply no evidence that Blockbuster had possession and control of the parking lot. Therefore, there is no factual basis to support a claim against Blockbuster. I find that summary judgment was correctly granted in favor of Blockbuster. Accordingly, I would affirm the judgment of the circuit court.

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


author: LEE, P.J.,

text:
    Taurus CALDWELL a/k/a Taurus L. Caldwell, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00150-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2008.
    Rehearing Denied May 19, 2009.
    Taurus Caldwell (Pro Se).
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., CHANDLER and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Taurus Caldwell was found guilty by a jury in the Circuit Court of Leflore County of possession of marijuana with intent to distribute. He was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections. Caldwell appealed his conviction, which was affirmed by this Court. See Caldwell v. State, 938 So.2d 317, 321(1119) (Miss.Ct. App.2006). Caldwell next filed a motion with the supreme court for leave to proceed with a motion for post-conviction relief. The supreme court denied his application, finding that his claims were either procedurally barred or without merit. He filed another motion with the supreme court, which was denied as a successive writ.

¶ 2. Despite his motion for leave being denied, Caldwell filed a motion with the trial court to reduce his sentence. The trial court noted that the supreme court had denied his motion for leave and dismissed the motion based on a lack of jurisdiction.

¶ B. Caldwell now appeals, asserting the following issues: (1) his sentence was disproportionate to the crime with which he was charged, and (2) the trial court erred in failing to conduct an evidentiary hearing. Finding that we lack jurisdiction to hear this case, we dismiss this appeal.

STANDARD OF REVIEW

¶ 4. In reviewing a trial court’s decision to deny a motion for post-conviction relief, the standard of review is clear. “The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). When issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

¶ 5. Caldwell concedes that his appeal is procedurally barred since the supreme court denied his motion for leave to proceed in the trial court. However, he argues that both of his issues constitute plain error and should be reviewed.

¶ 6. When a case is affirmed on direct appeal, Mississippi Code Annotated section 99-39-7 (Rev.2007) mandates that permission be obtained from the supreme court to seek post-conviction relief from the trial court. “This procedure is not merely advisory, but jurisdictional.” Doss v. State, 757 So.2d 1016, 1017(¶ 6) (Miss.Ct.App.2000).

¶ 7. Because the supreme court denied Caldwell permission to proceed with his motion, the trial court lacked jurisdiction to entertain his request for post-conviction-relief. Likewise, this Court lacks jurisdiction to entertain an appeal of that action.

¶ 8. This Court accordingly dismisses this case for lack of jurisdiction.

¶ 9. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


text:
    Johnny Wayne WALLACE a/k/a Johnny Spencer, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-01275-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2008.
    Rehearing Denied Feb. 24, 2009.
    Certiorari Denied May 21, 2009.

      John D. Watson, Southhaven, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.

      . During the trial, Detective Lance testified that Buford saw a photograph and identified Wallace as the shooter several days after the shooting. However, during a pretrial suppression hearing, Buford testified that he identified Wallace from the photograph approximately five to six months after the shooting.

   ROBERTS, J.,

for the Court.

¶ 1. In June 2007, Johnny Wayne Wallace was convicted in the Circuit Court of Tate County of attempted armed robbery and conspiracy to commit armed robbery. Following the denial of his motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, Wallace now appeals and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE VICTIM TO MAKE AN IN-COURT IDENTIFICATION.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE’S REQUEST FOR WALLACE TO SHOW THE JURY HIS GOLD TEETH.

III. WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT TO FIND WALLACE GUILTY.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the night of September 9, 2004, Lacie Lloyd, Antonio Boyce, Marrieo Love, and Wallace were on their way to Ollie L. Buford’s home with the intent to rob him. According to Lloyd, the plan was to drop Boyce, Love, and Wallace off in front of Buford’s house and then come back in fifteen or twenty minutes to pick them up. She did as she was told, and once Wallace, Love, and Boyce were dropped off, they knocked on Buford’s front door. According to plan, Love explained to Buford that his girlfriend left them stranded and asked if he could use the telephone. Love and Boyce testified that both Wallace and Boyce had guns when they went in Buford’s house. The plan further called for Love to ask Buford for money once they reached the telephone, which was upstairs, but when Buford escorted him to the telephone, he failed to do so. While they were upstairs, Boyce and Wallace waited downstairs. Love claimed that on the way back downstairs, Wallace asked him if he had gotten the money. When Love responded in the negative, Wallace pulled a pistol from his waistband and shot Buford. Love testified that at this point the three would-be robbers ran out the front door. However, this was the last time he saw Boyce that night.

¶ 3. When Lloyd returned, an ambulance was outside Buford’s house. When she stopped, Wallace and Love jumped in the car, but Boyce was nowhere to be found. Prior to dropping the trio off, Lloyd did not see a gun; however, after she returned, she noticed that Wallace had a gun. At the behest of her passengers, Lloyd drove away from the scene. While driving, Lloyd overheard Love and Wallace talking about the botched robbery. According to Lloyd, they were upset that they did not get any loot, and at one point, Wallace exclaimed that he “shot [Buford] at least four or five times.” At the end of the trio’s escape they ended up outside Love’s sister’s house on Smart Road. Love and Wallace got out of the car and walked over to a couch on the side of the house. Love lifted the couch, and Wallace placed the gun underneath it.

¶ 4. After hiding the pistol, Lloyd, Love, and Wallace went to Boyce’s house, which is also on Smart Road, and waited for him to return. When Boyce did not show up, the trio went to Wallace’s aunt’s house. Love convinced Wallace that if his aunt would drive them to the Sardis police station, they would concoct a story and leave him out of it. Both Lloyd and Love testified that once they arrived at the police station, they told an officer that the man that shot Buford was outside in the car, referring to Wallace. During subsequent questioning by Tate County Sheriffs Department personnel, Love and Lloyd followed through on the plan to make up a story; however, both eventually told law enforcement of the plan to rob Buford and of Wallace’s involvement in it.

¶ 5. Chief Deputy Brad Lance with the Tate County Sheriffs Department was called to the scene of the crime on the night of the shooting. He processed Buford’s house for evidence and discovered multiple projectiles, fragments, and a casing. From his discussion with Buford and the first responders, Detective Lance determined that Love and an individual named “Steve” were involved in the shooting. Subsequently, Detective Lance interviewed Love. Although Love ultimately gave two versions of events, “Steve” was not mentioned in either. Detective Lance testified that Love eventually told him of the conspiracy among himself, Lloyd, Boyce, and Wallace. Additionally, Love led Detective Lance to where the pistol used in the shooting was hidden. It was later determined that the projectiles found in Buford’s home were fired from the pistol found under the couch. Detective Lance also interviewed Wallace. Although he admitted to being with Lloyd, Love, and Boyce on the night of September 9, 2004, Wallace denied any involvement in or knowledge of the robbery or the shooting.

¶ 6. Detective Lance also interviewed Boyce. Detective Lance stated that during that interview, Boyce admitted to being with everyone, but denied any knowledge of the robbery. He also claimed that he did not have a weapon that night. However, during his testimony at trial, Boyce testified that the plan was to rob Buford at gunpoint, and both he and Wallace had pistols. He stated that when Love and Buford came back downstairs, Wallace asked where the money was and then started shooting at Buford.

¶ 7. Buford testified to the events of that night as follows: He stated that he knew Love very well because he was a member of his church, participated in missionary work with him, and was his distant cousin. According to Buford, Love rang his doorbell on the night of September 9, 2004, and asked if he could make a telephone call because his girlfriend left him without a ride. Buford let him in, but Love was not alone. Two other individuals accompanied Love into Buford’s house. Buford knew one individual as Antonio Boyce, but he did not know the other man.

¶ 8. Once inside the house, Love again asked Buford to use the telephone. Less than a minute after the men arrived at his home, Buford escorted him to the upstairs telephone, while Boyce and Wallace sat in the living room downstairs. Buford stayed with Love as he made his telephone call and then escorted him back downstairs. On the way down, Love stated that he could not reach anyone. Buford explained that they could use his telephone to make another call, but he could not drive them anywhere. With that news, the trio began to leave; however, Buford’s guests were not done yet.

¶ 9. As they approached the front door, one of the men pulled a gun, shouted something that Buford did not understand, and began firing at Buford. As soon as he saw the weapon, Buford defensively put up his hand and attempted to flee the scene. However, Buford did not escape unscathed. He was shot a total of five times. Buford stated that he saw the man who shot him when the three men came into his house, and he identified Wallace as the shooter some time after the shooting and again at trial. Buford received medical treatment and was released from the hospital the following evening.

¶ 10. Buford remembered speaking to a police officer while waiting on an ambulance, but stated that he was “out of it” that night as a result of the events that took place and his injuries. Nevertheless, Buford testified that he told an officer that a man named “Steve” shot him. However, Buford clarified that he referred to Wallace when he identified “Steve” as his assailant. Buford stated that he distinctly-remembered that Wallace had gold teeth; however, during the investigation, he was unable to give other specifics.

¶ 11. Wallace, along with Boyce, Lloyd, and Love, were indicted for conspiracy to commit armed robbery, armed robbery, and aggravated assault. Boyce and Love subsequently pled guilty to attempted armed robbery, and Lloyd pled guilty to conspiracy to commit armed robbery. Wallace’s first trial ended in a hung jury. Wallace’s second trial began in June 2007. At the conclusion of his second trial, the jury found him guilty of conspiracy to commit armed robbery and armed robbery, but not guilty of aggravated assault. The trial court subsequently sentenced Wallace to a five-year term of imprisonment on his conviction for conspiracy to commit armed robbery and a twelve-year term of imprisonment on his conviction for armed robbery, all in the custody of the Mississippi Department of Corrections. The trial court further ordered that the above sentences were to run consecutively to each other, but concurrently to a sentence Wallace was currently serving in the State of Wisconsin for a conviction of intimidating a witness. Following the denial of Wallace’s motion for a new trial or, alternatively, a judgment notwithstanding the verdict, he now appeals his conviction.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE VICTIM TO MAKE AN IN-COURT IDENTIFICATION.

¶ 12. Prior to trial, Wallace filed a motion to suppress Buford’s out-of-court identification and potential in-court identification of Wallace. At the conclusion of a hearing on the issue, the trial court noted the factors established by Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and held that any mention of the out-of-court identification would be improper, but the trial court found that the photograph of Wallace was not impermissi-bly suggestive as to taint an in-court identification. Additionally, the trial court held that the State would be allowed to question Buford as to the general description of his shooter and whether he could identify Wallace as the shooter. Wallace argues that the trial court erred in determining that the out-of-court identification was not so impermissibly suggestive so as to preclude Buford from making an in-court identification.

¶ 13. In making the determination as to the reliability of the out-of-court identification, a trial court must employ the Biggers factors, which include:

a. the opportunity of the witness to view the criminal at the time of the crime;
b. the witnesses] degree of attention;
c. the accuracy of the witnesses] prior description of the criminal;
d. the level of certainty demonstrated by the witness at the confrontation; and
e. the length of time between the crime and the confrontation.

McDowell v. State, 807 So.2d 413, 418-19(¶ 12) (Miss.2001) (citing Biggers, 409 U.S. at 199, 93 S.Ct. 375). The supreme court has stated that “an impermissibly suggestive pre-trial identification does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure unless: (1) from the totality of the circumstances surrounding it, (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Lattimore v. State, 958 So.2d 192, 199(¶ 16) (Miss.2007) (quoting Nicholson v. State, 523 So.2d 68, 72 (Miss.1988)). After viewing the totality of the circumstances, “[w]e will support a trial court’s finding that an in-court identification was not tainted unless there is no substantial credible evidence supporting such a conclusion.” Id. (citing Outerbridge v. State, 947 So.2d 279, 282(¶ 8) (Miss.2006)).

A. Opjooriunity to View the Accused

¶ 14. Buford testified that he saw all three individuals who came into his home that night, Love, Boyce, and Wallace, when they entered his illuminated living room. However, it was for less than a minute. Buford further stated that as the men began to leave, he was able to see Wallace again. He testified that he saw Wallace draw1' his gun and begin shooting.

B. Buford’s Degree of Attention

¶ 15. Buford testified that he knew Love well, and he recognized Boyce. He further stated that he did not know who Wallace was at the time, but he immediately noticed Wallace’s distinctive gold teeth. Therefore, it is not unreasonable to infer that Buford’s attention would have been drawn more to an individual he did not know who had distinctive dental work.

C. Accuracy of Buford’s Prior Description of the Accused

¶ 16. Buford was unable to give law enforcement any description of his shooter on the night of the attack other than that his attacker was a black male. Although, during the suppression hearing, Buford testified that the shooter was shorter than the other two men. Additionally, he stated that the man who shot him was named “Steve”; however, he clarified at trial that he was referring to Wallace as the person he thought was named Steve.

D. Buford’s Level of Certainty at the Confrontation

¶ 17. Exactly how Buford came to see the photograph of Wallace is unclear, as Detective Lance’s and Buford’s version of events were quite different. According to Detective Lance, several days after the shooting, he visited Buford at his place of employment. Buford identified Wallace as the shooter. Detective Lance explained that he went to Buford’s place of business that day in an attempt to rule out a “Steve” who had surfaced during the investigation. He stated that Love and Boyce had already identified Wallace as the shooter, but Detective Lance wanted to show Buford a picture of Steve Mang-rum to rule him out. He intended on showing Buford only one photograph of Mangrum; however, when Detective Lance opened the file folder containing the picture, Buford saw a picture of Wallace and identified him as the shooter. Detective Lance stated that he had several photographs, but they only depicted Wallace and Mangrum. Additionally, Detective Lance testified that he never laid out any photographs.

¶ 18. According to Buford, Detective Lance showed him three to five photographs. Buford stated that he could not recall the incident very clearly, but he thought that it was approximately five or six months after the shooting when Detective Lance came to his shop, laid out several photographs of different people on a counter, and told him, “we think we’ve identified the shooter.” Buford stated that once he saw “the facial structure and the gold that he had in his mouth,” he identified Wallace’s picture.

E. Length of Time Between the Robbery and the Confrontation

¶ 19. As noted above, Buford stated that he identified Wallace approximately five to six months after the shooting, while Detective Lance claimed that it occurred several days after the shooting. However, regarding any taint that may have accompanied Buford’s photo identification of Wallace, we note that Buford’s in-court identification occurred approximately two years later.

¶ 20. Based upon the totality of the circumstances, we find that the trial court did not err in allowing Buford to make an in-court identification of Wallace. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE’S REQUEST FOR WALLACE TO SHOW THE JURY HIS GOLD TEETH.

¶21. The entirety of Wallace’s second argument states as follows:

The State requested that the Appellant be required to open his mouth and show his teeth to the jury. Appellant objected. Appellant concedes that the existing law according to Porter v. State, 519 So.2d 1230 (Miss.1988), states that compelling a [defendant to show a body characteristic does not violate his right against self[-]incrimination[,] and this ruling has been affirmed in numerous other cases.

¶ 22. Although Wallace raises this issue on appeal, he simultaneously concedes that it is without merit. We agree.

III. WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT TO FIND WALLACE GUILTY OF ATTEMPTED ARMED ROBBERY.

¶ 23. While Wallace’s third argument is titled, “whether the verdict was against the overwhelming weight of the evidence or the evidence was insufficient to support the verdict,” he only argues that the evidence against him was insufficient to satisfy the elements of armed robbery. Specifically, he claims error only for the trial court’s denial of his motion for a judgment notwithstanding the verdict, and concludes his argument by stating, “[a]p-pellant contends that the armed robbery count should be reversed and rendered due to the fact that there was no testimony that Buford was placed in fear.” Therefore, we will restrict our review to the sufficiency of the evidence presented at trial against Wallace.

¶ 24. A motion for a directed verdict and a motion for a judgment notwithstanding the verdict both question the sufficiency of the evidence. Bush, v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). On review of a trial court’s denial of such motions, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test[,] it is insufficient to support a conviction.’ ” Id. (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). That is not to say that this Court should ask itself whether it agrees with the conclusion of guilt; rather, the inquiry is “whether, after 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.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 25. If, after reviewing the facts presented at trial under the above standard, we find that “reasonable men could not have found beyond a reasonable doubt” every element of the charged offense, our proper course of action is to reverse and render the case. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). However, if the reverse is true, and at the conclusion of this Court’s review of the evidence we find that “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the sufficiency of the evidence will be deemed satisfactory, and the conviction will stand. Id. (quoting Edwards, 469 So.2d at 70).

¶ 26. Wallace’s amended indictment alleged, in part, that he:

willfully, unlawfully!,] and feloniously, [took] or attempted to take from the presence or person of Ollie Buford certain personal property, to wit: cash money, being the personal property of Ollie Buford, against the will of Ollie Buford, by putting Ollie Buford in fear of immediate injury to his person by the exhibition of a deadly weapon, to wit: a pistol....

(Emphasis added). The jury subsequently returned a verdict against Wallace finding him guilty of attempted armed robbery. In order for the jury to return such a verdict, they must have found beyond all reasonable doubt that the evidence presented against Wallace satisfied the elements of Mississippi Code Annotated section 97-3-79 (Rev.2006), which states:

[e]very person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....

(Emphasis added). As is evident from the portion of the indictment quoted above, the State limited the charge against Wallace to only include the element of fear of immediate injury. As noted above, Wallace argues that there was insufficient evidence to support the jury’s implied finding that Buford was put in fear of immediate injury so as to satisfy that element of armed robbery. However, “[i]t is well settled in Mississippi that an attempt to commit a crime consists of three elements: (1) an intent to commit a particular crime; (2) a direct ineffectual act done toward its commission; and (3) the failure to consummate its commission.” Spann v. State, 771 So.2d 883, 891(¶ 18) (Miss.2000).

¶ 27. We find that the facts of this case satisfy the elements of an attempted armed robbery. Regarding the requisite intent, Wallace discussed robbing Buford and developed a plan to do so. He then concealed a weapon prior to entering Buford’s home. Regarding an overt act, once Wallace discovered that Love failed to complete the robbery, he brandished his weapon, which caused Buford to run in fear, and then shot him. The jury could have easily inferred that the only reason that the robbery was not completed was because Wallace’s cohorts fled the scene once the shooting began.

¶ 28. The supreme court faced a similar set of circumstances in Spann. In Spann, three individuals decided to go to a convenience store to “get cigarettes, and ... rob the store.” Spann, 771 So.2d at 891(¶ 18). Two of the robbers, including Spann, armed themselves, masked their faces, and entered the store. Id. Spann and his accomplice then opened fire on the two clerks inside, killing one and injuring the other. Id. at 886-87(¶ 2). All three robbers immediately fled the scene as a customer simultaneously drove up. Id. at 887, 892 (¶¶ 2, 20). Spann was found guilty of capital murder with the underlying crime being armed robbery. Id. at 888(¶ 7). The supreme court affirmed the jury's verdict, holding that the facts above satisfied the elements of armed robbery and that the jury was “free to infer that the only reason no robbery was consummated was that [the customer] entered the parking lot.” Id. at 892(¶ 20).

¶ 29. Additionally, the supreme court upheld a conviction for armed robbery in Greenwood v. State, 744 So.2d 767, 771(1121) (Miss.1999). There, Greenwood exclaimed that while he and a friend were riding around Madison County, he was talking about robbing John Axtell. Id. at 770(¶ 9). His plan was to knock on Ax-tell’s door and place a gun to his head when he opened the door; however, when Axtell answered the door, Greenwood only stated that his car was out of gasoline and asked Axtell if he could borrow some gasoline. Id. The State introduced a statement made by Greenwood in which he admitted that after leaving Axtell’s doorstep, he eventually threw a rock through a plate glass door and shot Axtell through a window. Id. at 770(¶ 10). Once Axtell realized he had been hit with a projectile, he retrieved his rifle and returned fire. Id. at 769(¶ 3). At this point, Greenwood and his cohorts fled the scene. Id. The supreme court found that although Greenwood did not carry out his plan to rob Axtell while holding him at gunpoint, his actions were clearly sufficient overt acts to support his conviction. Id. at 770(¶ 11). The supreme court noted that the jury was free to infer that the only reason no robbery was consummated was because the victim returned gunfire. Id.

¶ 30. In the instant case, Lloyd, Love, and Boyce all testified that they, including Wallace, talked about robbing Buford well before they arrived in front of his house. They developed a plan in order to effectuate their collective intent that included Lloyd dropping the trio off close to Buford’s home and gaining access to Buford’s home by telling him that Love’s girlfriend abandoned them. Their plan worked, and on the night of September 9, 2004, Love, Boyce, and Wallace entered Buford’s home with the intent to rob him. Both Boyce and Wallace had pistols to facilitate their intent. Once inside, Love asked to use the telephone; however, he did not go through with the plan to rob Buford.

¶ 31. As he and Buford headed back downstairs, Wallace asked, “did you get the money?” When Love said “no,” Wallace removed his pistol from his waistband and began firing at Buford. Buford stated that he then “began to turn and run. And I guess I throwed [sic] up this hand and that’s when he shot me though this finger here. And then he began, you know, continually shooting.” Buford further stated, “[w]ell, after I then, you know, I just ran to dodge the bullets. And I ran back up into the den area[,] and I fell over the coffee table.” On cross-examination, he reiterated his testimony by saying, “[h]e stated some type of words and when I seen [sic] the gun I just, you know, turned to flee from the gun. That’s when he began shooting.” Boyce and Love also ran at the sound of the gunshots. Considering all of the evidence in the light most favorable to the prosecution, it cannot be said that reasonable and fair-minded jurors could not find that Wallace had attempted to commit the crime of armed robbery.

¶32. As in Spann and Greenwood, there is abundant proof that Wallace possessed the intent to rob Buford by placing him in fear through the exhibition of a deadly weapon. Further, similar to Spann entering the convenience store with his face masked and carrying a gun, and Greenwood knocking on Axtell’s door and subsequently shooting him through a window, Wallace’s actions of entering Buford’s home with a concealed pistol and shooting him once he learned that Love failed to complete the robbery more than satisfied the requisite showing of an overt act in furtherance of his intent to rob Buford. It is only because of his accomplices’ apparently unexpected flight, and Buford’s survival instincts, that Wallace was unable to complete the armed robbery. Thus, we find that this issue is without merit.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY OF CONVICTION OF COUNT I, CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCE OF FIVE YEARS, AND COUNT II, ATTEMPTED ARMED ROBBERY, AND SENTENCE OF TWELVE YEARS, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND WITH SENTENCES IN COUNTS I AND II TO RUN CONCURRENTLY WITH A FIVE-YEAR SENTENCE IN THE CUSTODY OF THE WISCONSIN DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR.

      . Lloyd stated on cross-examination that during her guilty plea hearing she told the trial court that she did not know that a robbery was planned.

      . During a previous hearing, Love testified that he was not sure who was driving the night of the shooting. Additionally, he previously testified that he was unsure who put the pistol under the couch.


author: MYERS, P.J.,

text:
    Robert Wade PRESLEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00455-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.

      Leslie S. Lee, Jackson, Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General By Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Robert Wade Presley was convicted in the Circuit Court of Monroe County of DUI-maiming and was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections, with five years suspended and five years of post-release supervision. Aggrieved, Presley appeals, arguing that the trial court erred in denying his motion to quash the venire. Finding no error, we affirm.

FACTS

¶ 2. At trial, Presley moved to quash the venire, arguing that its selection was nonrandom because it did not contain any potential jurors whose surnames began with the letters “T,” “U,” “V,” “W,” “X,” “Y,” or “Z.” Judy Butler, Circuit Clerk of Monroe County, testified that this resulted from the algorithm used by the County’s computer system. She explained that an order by the senior circuit judge directed her to add 8,000 names to the jury wheel for the year. The computer was programmed to randomly select every third name from a master list of registered voters, which was ordered alphabetically. However, because there were more than 24,000 names on the master list, the computer selected the 8,000th name approximately midway through the letter “S.” The circuit clerk testified that whether the computer utilized the entire alphabet depended on the number of names requested for the jury wheel, and it had failed to run through the entire alphabet in only one other year that the system had been in place.

¶ 3. The trial judge denied the motion, observing and finding:

I’ve had an opportunity this morning to seat the jury. The jury looked very diverse. I saw what appeared to be a[sic] equal number of minorities and whites, and I also saw a[sic] equal number of what appeared to be men and women.
Mr. Presley has failed to demonstrate any prejudice to him. And as far as the panel, I find that the panel is diverse, it does represent a cross-section of Monroe County and the motion will be denied.

Presley did not challenge the trial judge’s observations regarding the makeup of the venire. Presley was convicted and sentenced by the trial court. He now appeals, asserting that the trial court erred in denying his motion to strike the venire under both Mississippi law and the United States Constitution.

DISCUSSION

I. Whether the venire violated Presley’s constitutional right to a jury trial.

¶ 4. Presley argues that the venire violated his Sixth Amendment right to a jury trial because it did not represent a “fair cross[-]section of the community.” See Taylor v. Louisiana, 419 U.S. 522, 526, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The United States Supreme Court has placed the burden on the defendant to show that: (1) the alleged exclusion affects a “distinctive group”; (2) the representation of the group in the venire is unreasonable in proportion to their number in the community; and (3) this under-representation results from the “systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 489 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

¶ 5. While the United States Supreme Court has not precisely defined a “distinctive group” under the first prong of the test, it has stated that such may include “economic, social, religious, racial, political[,] and geographical groups.” See Thiel v. S. Pac. Co., 328 U.S. 217, 220, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); see also Witcher v. Peyton, 405 F.2d 725, 727 (4th Cir.1969) (“a cross-section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions.”)

¶ 6. Presley has failed to meet this prong of the test, as persons whose names begin with certain letters of the alphabet do not constitute a distinctive group. See, e.g., United States v. Puleo, 817 F.2d 702 (11th Cir.1987), cert. denied, 484 U.S. 978, 108 S.Ct. 491, 98 L.Ed.2d 489 (1987) (persons with last names “M-Z” not a distinctive group). Nor has Presley shown that excluding persons with surnames beginning with “T-Z” disproportionally affected any distinctive group in Monroe County. Accordingly, Presley has failed to meet his burden to show that the jury did not represent a fair cross-section of the community, and his claim under the Sixth Amendment fails. This assignment of error is without merit.

II. Whether the trial court erred under Mississippi law.

¶ 7. Presley alternatively argues that the venire should have been struck under Mississippi law because it was not “random” as required by Mississippi Code Annotated section 13-5-26 (Rev.2004). However, we need not determine whether Monroe County’s method of jury selection satisfies the statute, because as the supreme court held in De La Beckwith v. State, 707 So.2d 547, 597 (¶ 199) (Miss.1997):

The statutory method of selecting jurors is directory, not mandatory, and unless it is shown that the method used was fraudulent or such a radical departure from the method prescribed by the statute as to be unfair to the defendant or to prevent due process of law, this Court will not reverse.

(Citations omitted). The court continued, noting that “[t]he jury laws of this state are directory and the selection of the jury in an irregular manner does not render it illegal.” Id. at 597-98 (¶ 199) (citing Rhone v. State, 254 So.2d 750, 752 (Miss.1971)). It concluded that the determinative question is “whether the jury lists reasonably reflect a cross-section of the population.” Id. at 598 (¶ 199) (quoting Peterson v. State, 268 So.2d 335, 336 (Miss.1972)).

¶ 8. Like de la Beckwith, Presley has alleged no prejudice resulting from the trial court’s alleged noncompliance with the statute, and he has failed to show that persons whose surnames begin with “A” through “S” do not represent a “fair cross-section of the community.” See id. at (¶ 200). Instead, the only evidence in the record is the testimony of the circuit clerk and the trial judge’s observations — that notwithstanding the alleged error, the ve-nire was geographically, racially, and sexually representative of Monroe County. Accordingly, this assignment of error is without merit.

¶ 9. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT OF CONVICTION OF DUI-MAIMING AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

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


author: KING, C.J.,

text:
    Leslie J. CORTEZ a/k/a Leslie Cortez, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00581-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.
    Leslie J. Cortez, (pro se), appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    BEFORE KING, C.J., IRVING and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Leslie J. Cortez appeals the judgment of the Rankin County Circuit Court which dismissed his motion for post-conviction relief pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev.2007). Aggrieved, Cortez raises these issues on appeal: (1) whether the trial court abused its discretion by failing to grant a jury instruction on the lesser-included offense of trespassing; (2) whether the trial court’s response to a question from the jury during deliberation was an improper comment on the evidence; and (3) whether Cortez was denied a fair trial by the unprofessional actions of his trial counsel.

FACTS

¶ 2. Cortez was indicted in January 2001 by a Rankin County grand jury for burglary of a dwelling house pursuant to Mississippi Code Annotated section 97-17-23 (Rev.2006). Cortez was tried and convicted on July 16, 2002. On July 19, 2002, Cortez was sentenced as a habitual offender to serve twenty-five years in the custody of the Mississippi Department of Corrections. As a habitual offender, Cortez is ineligible for parole or probation pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007).

¶ 3. Cortez filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict on July 23, 2002, which was denied. Aggrieved, Cortez filed an appeal, but the judgment of the trial court was affirmed by this Court on December 2, 2003, in Cortez v. State, 876 So.2d 1026, 1032(¶ 30) (Miss.Ct.App.2003). Thereafter Cortez filed a motion for rehearing, which was denied by this Court.

¶ 4. On January 29, 2004, Cortez filed a petition for writ of certiorari, which was denied on July 6, 2004, by the Mississippi Supreme Court. On January 31, 2008, Cortez filed a motion to vacate his judgment of conviction and sentence. The trial court construed this motion as a motion for post-conviction relief and dismissed the motion on February 21, 2008, pursuant to Mississippi Code Annotated section 99-39-11(2). Section 99-39-11(2) provides that: “If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal!).]” Feeling aggrieved by the judgment of the trial court dismissing his motion for post-conviction relief, Cortez now appeals.

ANALYSIS

¶ 5. Cortez makes three arguments as to the trial court’s dismissal of his motion for post-conviction relief. However, because Cortez failed to seek permission from the supreme court to seek post-conviction relief, this Court lacks jurisdiction to decide Cortez’s appeal.

¶ 6. Where a criminal defendant’s case is affirmed on direct appeal, Mississippi Code Annotated section 99-39-7 (Rev.2007), mandates that he obtain permission from the Mississippi Supreme Court to seek post-conviction relief from the trial court. “This procedure is not merely advisory, but jurisdictional.” Doss v. State, 757 So.2d 1016, 1017(¶6) (Miss.Ct.App.2000). In this case, Cortez failed to obtain the required permission from the supreme court to seek relief; therefore, the trial court lacked jurisdiction to entertain Cortez’s motion for post-conviction relief and properly dismissed the motion for the lack of jurisdiction. If the circuit court did not have jurisdiction to address the defendant’s motion for post-conviction relief, the appellate court is also without jurisdiction. Wheeler v. State, 903 So.2d 756, 758(¶ 6) (Miss.Ct.App.2005). Because the Rankin County Circuit Court did not have jurisdiction to hear Cortez’s motion for post-conviction relief, we too are without jurisdiction to hear this appeal.

¶ 7. Therefore, we dismiss this appeal for lack of jurisdiction.

¶ 8. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.