author: CONERY, Judge'.

text:
    STATE in the Interest of C.C.
    No. 13-417.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.
    Annette Fuller Roach, Louisiana Appellate Project, Charles, LA, for Defendant/Appellant, C.C.
    Jimmy Dale Long, Jr., Assistant District Attorney, Van Hardin Kyzar, District Attorney, Natchitoches, LA, for Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   CONERY, Judge'.

_[jA sixteen-year-old juvenile, C.C., appeals her secure confinement disposition on the petition of delinquency filed against her. The petition charged her with second degree robbery, a violation of La.R.S. 14:64.4. The trial court held an adjudication hearing on November 13, 2012, and found that C.C. had committed the charged offense and adjudicated C.C. a delinquent. The trial court ordered a Pre-Dispositional Investigation (PDI). The trial court conducted a dispositional hearing on February 4, 2013, and ordered C.C. to secure confinement until her twenty-first birthday for oral reasons assigned.

On appeal, C.C. challenges her disposition as excessive pursuant to the Eighth Amendment to the United States Constitution, which prohibits the imposition of cruel and unusual punishment. In addition, she objects to her disposition under Article 901(B) of the Louisiana Children’s Code, which requires that “the court should impose the least restrictive disposition ... consistent with the circumstances of the case, the needs of the child, and the best interest of society.” Finding no abuse of discretion, we affirm the adjudication and disposition and remand for correction of errors patent.

FACTS

At approximately 8:00 p.m.- on August 21, 2012, C.C., her twelve-year-old brother, and Demarius Manning, an adult male, went to thé victim’s home in Campti, Louisiana. At the time of the incident, Ms. Jackson was a ninety-three-year-old woman who had lived for fifty years in the same house, living alone for the last thirty years. For the past twenty years, she sold snacks out of her home to |2the neighborhood children. C.C., her, brother, and Manning went to Ms. Jackson’s home to buy ice cream. Ms. Jackson answered the door for the children and when her back was turned, -C.C. allegedly struck her in the head with a. glass vase.' Ms. Jackson was knocked unconscious and fell to the floor. C.C.’s fingerprints were found on the vase. C.C. later told police that she thought Ms. Jackson was dead, until she saw her move just before C.C. left the Jackson residence. C.C. did not attempt to help Ms. Jackson or call for medical assistance.

Ms. Jackson suffered a concussion from the blow and fall, plus a scratched cornea, a fractured jawbone, bruised ribs and neck, and a laceration to her face requiring nine stitches. She was transported to the emergency room where she spent the rest of the night. Ms. Jackson required treatment the following day by an eye specialist in Shreveport, Louisiana, for her right eye, which was swollen shut.

After brutally striking the ninety-three-year-old victim and leaving her for dead, C.C., her brother, and Manning stole sodas and about thirty dollars from Ms. Jackson. Based on the evidence presented at the adjudication hearing, the trial court found that C.C. was the perpetrator and adjudicated her a delinquent juvenile on the charge of second degree robbery in violation of La.R.S. 14:64.4. Following a disposition hearing, C.C. was ordered to secure confinement until her twenty-first birthday.

ERRORS PATENT

Although the Louisiana Children’s Code is silent as to whether a juvenile criminal proceeding is entitled to an error patent review, this court has found that such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. In this case, there are several errors patent, all of which are discussed below.

IsFirst, the court minutes reflect that C.C. was not advised of her rights when she appeared to answer the allegations of the delinquency petition as required by La.Ch.Code art. 855, which states, in pertinent part:

A. When the child appears to answer the petition, the court shall first determine that the child is capable of understanding statements about his rights under this Code.
B. If the child is capable, the court shall then advise the child of the following items in terms understandable to the child:
(1) The nature of this delinquency proceeding.
(2) The nature of the allegations of the petition.
(3) His right to an adjudication hearing.
(4) His right to be represented by an attorney, his right to have counsel appointed as provided in Article 809, and his right in certain circumstances authorized by Article 810 to waive counsel.
(5) His privilege against self-incrimination.
(6) The range of responses authorized under Article 856.
(7)The possible consequences of his admission that the allegations are true, including the maximum and minimal dispositions which the court might impose pursuant to Articles 897 through 900....

Prior to C.C.’s court appearance to answer the allegations of the petition, a continued custody hearing was held. The court minutes of that proceeding indicate that C.C. was apprised of her right to an adjudication hearing, the right to be represented by an attorney, and the right to have counsel appointed. The remaining rights required by La.Ch.Code art. 855 are not mentioned in the court minutes. However, any error in failing to apprise C.C. of her rights pursuant to La.Ch.Code art. 855 is harmless, as she was represented by counsel and entered a plea of not Lguilty to the allegations contained in the petition at the answer hearing. See State in the Interest of C.P., 12-192 (La.App. 3 Cir. 6/6/12), 91 So.3d 1273.

Second, C.C.’s disposition hearing was not held. within thirty days of the adjudication proceeding. C.C. was adjudicated delinquent by the court on December 6, 2012. At the close of the proceeding, the disposition hearing was set for January 29, 2013, beyond the time limitation of La.Ch.Code art. 892, which requires:

Prior to entering a judgment of disposition, the court shall conduct a disposition hearing. The disposition hearing may be conducted immediately after the adjudication and shall be conducted within thirty days after the adjudication. Such period may be extended for good cause.

The original date set for the disposition hearing was the trial court’s regular January juvenile court date, January 29, 2013, beyond the thirty day time limitation of La.Ch.Code art. 892. It is clear from the record that C.C.’s counsel participated in and agreed to the date.

On January 29, 2018, at the request of C.C.’s'counsel, the disposition hearing was continued to February 4, 2013. The fact that the original disposition hearing date was set beyond the thirty day time limitation, in the absence of evidence of good cause for the delay, is an issue that has been recognized by this court as an error patent:

In State v. Johnson, 363 So.2d 458 (La.1978), the supreme court, without determining the unreasonableness of the delay between trial and sentencing, held that since the defendant sustained no prejudice by the delay, he was not entitled to have his conviction and sentence set aside. In the ease sub judice, there was a delay beyond that which is allowed under the statute. However, the delay was only three days and we find no prejudice from the delay given that defendant is going to be given credit for time served from the time of adjudication to the time of disposition. Furthermore, defendant does not allege any prejudice resulting from the delay. Therefore, we conclude that the drastic remedy of divesting the trial court of its |spower to sentence is unwarranted under the facts of this case. Accordingly, we conclude that the delay of three days was harmless.

State in the Interest of T.T., 96-6, p. 5 (La.App. 3 Cir. 5/8/96), 677 So.2d 466, 469.

In the present case, the twenty-three-day delay was substantially longer than the three-day delay at issue in State v. Johnson. However, C.C. does not allege any prejudice resulted from the delay. Accordingly, this error is harmless.

Third, the record before this court does not indicate that the trial court gave C.C. credit for time spent in secure detention prior to the imposition of disposition as required by La.Ch.Code art. 898(A). In State in the Interest of J.F., 03-321, p. 8 (La.App. 3 Cir. 8/6/03), 851 So.2d 1282, 1287, this court explained, in pertinent part:

[W]e note that the trial court failed to give J.F. credit for predisposition time served in a secure detention facility. Louisiana Children’s Code Article 898(A) provides, in pertinent part, that “[t]he court shall give a child credit for time spent in secure detention prior to the imposition of disposition.” While we recognize that the 1997 amendment to La.Code Crim.P. art. 880 releases us from recognizing the trial court’s failure to give credit for time served as an error patent in adult criminal cases, we also recognize that the legislature did not amend La.Ch.Code art. 898(A). Consequently, we find it necessary to continue to recognize as an error patent the trial court’s failure to give credit for time served in juvenile cases.

Therefore, this court amends C.C.’s disposition to give her credit for time served in secure detention prior to the imposition of disposition. Further, we instruct the trial court to note the amendment in the custody order and in the court minutes.

Fourth, this court finds C.C. was given insufficient information regarding the time delay for filing an application for post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8 allows a defendant two years after the judgment of conviction and sentence have become final to apply for post-conviction relief. | ^Although no provision similar to La.Code Crim.P. art. 930.8 exists in the Children’s Code, this court has previously held such notice should be given in a juvenile case. State ex rel. J.F., 03-321 (La.App. 3 Cir. 8/6/03), 851 So.2d 1282. The trial court informed C.C. she had “two years to file for post-conviction relief,” but she was not told when the period would begin to run.

Accordingly, the trial court is directed to inform C.C. of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to C.C. within ten days of the rendition of this opinion and to file written proof in the record that C.C. received the notice.

ASSIGNMENT OF ERROR

C.C. asserts her sentence is excessive, and that the trial court failed to impose the least restrictive disposition.

STANDARD OF REVIEW

In State ex rel. A.B., 09-870, pp. 4-5 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012, 1015-16, this court set forth the applicable law when reviewing a juvenile’s disposition, stating in pertinent part:

With regard to disposition, La. Ch. Code art. 901 provides, in pertinent part:
A. In considering dispositional options, the court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.
B. The court should impose the least restrictive disposition authorized by Articles 897 through 900 of this Title which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society.
17Additionally, this court, in State ex rel. M.N.H., 01-1218, pp. 8-9 (La.App. 3 Cir. 2/6/02), 807 So.2d 1149, 1154-55, writ denied, 02-1041 (La.5/24/02), 816 So.2d 857, stated:
When an excessive disposition is complained of in a juvenile proceeding, the record must be reviewed to determine whether the juvenile court imposed the least restrictive disposition consistent with the circumstances of the case, the child’s needs, and the best interest of society. State ex. rel. K.H., 98-632 (La.App. 5 Cir. 12/16/98); 725 So.2d 583; State in Interest of T.L., 28,564 (La.App. 2 Cir. 5/8/96); 674 So.2d 1122. In any review for excessiveness, the appellate court must first ascertain whether the lower tribunal took cognizance of the general guidelines provided for juvenile cases in Louisiana Children’s Code Article 901, and whether the record reflects an adequate factual basis for the commitment imposed. State in Interest of T.L., 674 So.2d 1122. “Following that determination, the reviewing court need only explore for constitutional excessiveness in light of the circumstances of the case and the background of the juvenile.” Id. at 1124. “[Ajbsent a showing of manifest abuse of the wide discretion afforded in such cases, a disposition will not be set aside as constitutionally excessive.” Id.

Louisiana Revised Statutes 14:64.4 provides the following penalty: “Whoever commits the crime of second degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years.”

Louisiana Children’s Code Article 897 provides in pertinent part:

A. After adjudication of any felony-grade delinquent act other than those described in Article 897.1, the court may:
(1) Reprimand and warn the child and release him into the custody of his parents either unconditionally or subject to such terms and conditions as deemed in the best interests of the child and the public.
(2) Reprimand and warn the child and release him into the custody of some other suitable person either unconditionally or subject to such terms and conditions as deemed in the best interests of the child and the public. The court shall, whenever practicable, select a person of the same religious faith as the child or his parents.
|s(3) Place the child on probation in the custody of his parents or other suitable person.
C.Except as provided for in Article 897.1, the court may commit the child to the custody of a private or public institution or agency. When commitment is to be made to a private institution or agency, the court shall:
(1) Select one that has been licensed under state law, if licensure is required by law for such an institution or agency.
(2) Whenever practicable, select an agency or institution of the same religious faith as the child or his parents.
D. Except as provided in Article 897.1, the court may commit the child to the custody of the Department of Public Safety and Corrections, with or without a recommendation that the child be placed in alternative care facilities through the department’s client placement process, or be referred to appropriate placement resources in the state available through other public or private agencies.
E. Except as provided for in Article 897.1, the court may impose but suspend the execution of the whole or part of any order of commitment and place the child on probation subject to any of the terms and conditions authorized under Paragraph B of this Article.

ANALYSIS

At the disposition, the trial court carefully reviewed all of the requirements of La.Ch.Code art. 901. In so doing, the trial judge stated specific and detailed reasons for imposing the disposition that C.C. be placed in the custody of the Department of Public Safety and Corrections, specifically the Office of Juvenile Justice, until her twenty-first birthday.

A psychological evaluation by Robert L. Krenek, Jr., Ph.D., and a PDI conducted by Chris Wyatt of the Office of Juvenile Justice (OJJ) were introduced into evidence. C.C. argues that the trial court failed to follow the recommendations of each that non-secure care with specialized training, counseling, and education |9would be sufficient to address C.C.’s problems with anger, impulse control, and decision making.

The trial court rejected both the recommendation of non-secure care, as well as the plea agreement reached between the prosecution and the defense. C.C. urges the trial court placed too much emphasis on the harm to Ms. Jackson and the victim’s wish that C.C. be punished to the fullest extent of the law. Additionally, C.C. argues the trial court erred in considering as aggravating factors her one prior misdemeanor offense of theft and C.C.’s previous removal from her mother’s home, which she argues was not based on C.C.’s behavior. C.C. urges that neither of these factors suggested that C.C. is incorrigible or beyond the help that could be provided in a non-secure environment.

In making its decision that secure care until the age of twenty-one was the least restrictive disposition and in the best interest of the child, the trial court did thoughtfully consider all of the evidence, including the recommendation of Dr. Kre-nek, Jr. Ph.D. and the PDI prepared by OJJ. The trial court clearly articulated reasons that non-secure care would not be sufficient in the case of C.C.:

This child does have a history of delinquent acts and has been uh, uh, removed from the home once by DCFS but has a history of delinquent acts. Those all appear in the staffings and in the investigative report. Now the recommendation of Dr. [Krenek] who was the evaluator did not include one word about this particular act and that is, that is most significant to me and that is that this juvenile went into this elderly woman’s home, a person that she knew, a person that was familiar in the neighborhood, went into this lady’s home who had been kind and given to the, provided snacks and uh, sold things so that the kids could have that available to them. She went into that home, into her home and she hit the woman in the head with a vase, knocked her to the ground and she believed she had killed her and she walked off and has not showed any sign of remorse in front of this Court or any time at all that I’m aware of. That was noted by the Department uh, of OJJ, not noted at all by Dr. [Krenek.] Uh, I’ve looked at this carefully and I believe that this child needs treatment and I think she can only get the kind of treatment that I think she needs in correctional treatment or in 1 ina custodial environment. Because I think she needs a lengthy process because I believe that someone normally and that, that, that we look around us and live with us would have some sense of guilt or remorse after doing this to this elderly lady and this elderly lady was severely injured. This was not a small injury and hospitalized. So this Court does believe that the, that the uh, appropriate thing to do in this case and that the least restrictive under these circumstances is to remove the child from the home and place her in the custody of the Department of Public Safety and Corrections who particularly is the Office of Juvenile Justice, which is a division of the Department of Public Safety and Corrections.

The PDI recommended non-secure care based on the fact that this incident was C.C.’s first felony offense and that her only other previous offense was a theft of less than $800.00 in January of 2011, for which she was counseled and warned.

The PDI also listed as a basis for non-secure care, “C.C. acted under provocation from the adult male.” The “adult” male, Manning, was seventeen, only one year older than C.C. Moreover, the record does not support this contention, as it was C.C. who actually struck Ms. Jackson with the vase. This court also finds it of interest that C.C. brought along her twelve-year-old brother, who was known to Ms. Jackson. His presence may have been the determining factor in Ms. Jackson opening her door to the three at eight o’clock at night, which was not her usual practice. The PDI further expressed “that C.C. would respond positively to a non-secure placement where both she and the family could receive counseling and support.” However, the trial judge noted that C.C. had an apparent lack of guidance from her mother, which the court noted was evident at the disposition hearing, and did not support OJJ’s conclusion that C.C. would respond to family counseling in a non-secure environment. Thus, there was a reasonable basis for the trial court to reject the non-secure recommendation of Dr. Krenek and OJJ’s recommendation in the PDI.

|nThe State responds that the trial court should be afforded wide discretion and its disposition should not be disturbed absent manifest abuse of discretion. The State correctly points out the trial court has discretion to modify the disposition at any time pursuant to La.Ch.Code art. 909, which provides in pertinent part:

Except as provided for in Article 897.1, after the entry of any order of disposition, the court retains the power to modify it, including changing the child’s legal custody, suspending all or part of any order of commitment, discharging conditions of probation, or adding any further condition authorized by Article 897(B) or 899(B). It may also terminate an order of disposition at any time while it is still in force.

The State further explains in brief, “Unlike adult courts, juvenile courts retain jurisdiction, can monitor the child’s progress, and can change a disposition. The juvenile may file a motion to modify at any time. [La.Ch.Code] art. 910. The Department of Corrections may also request modification to a less restrictive disposition at any time. [La.Ch.Code] art. 911.”

C.C.’s disposition of secure confinement until she is twenty-one amounts to five years of secure confinement. This sentence is well within the sentencing range had the crime been committed by an adult, which is not less than three and no more that forty years imprisonment. Thus, the question is whether the juvenile court imposed the least restrictive disposition that is consistent with the circumstances of the case, the child’s needs, and the best interest of society.

The trial court, who was privy to all the evidence at the hearing, and had the first hand opportunity to observe C.C. and her mother, found that the circumstances of the crime, as well as C.C.’s significant lack of remorse or empathy for the victim, warranted secure care as the least restrictive disposition considering the circumstances, the needs of the child, and the best interest of society.

112Based on the disposition ruling of the trial court, which extensively addresses the guidelines contained in La.Ch.Code art. 901, this court finds that the trial court did not abuse its vast discretion in imposing secure confinement until C.C. is twenty-one years old. As noted by the State, under La.Ch.Code art. 909, the Court retains the power to modify or terminate the disposition on motion of the juvenile (art. 910), or OJJ (art. 911).

DISPOSITION

C.C.’s disposition is affirmed. However, this court amends C.C.’s disposition to give her credit for time served in secure detention prior to the imposition of disposition in accordance with La.Ch.Code art. 898(A) and further instructs the trial court to note the amendment in the custody order and in the court minutes. The trial court is also directed to inform C.C. of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to C.C. within ten days of the rendition of this opinion and to file written proof in the record that C.C. received the notice.

AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.

      . The PDI indicates Mr. Manning was seventeen years old at the time of the incident and is considered an adult under La. Ch. Code art. 804(1), despite being only one year older than C.C.


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    Johnny Ray MAGEE v. STATE of Mississippi.
    No. 2010-CT-01611-SCT.
    Supreme Court of Mississippi.
    Oct. 24, 2013.

      Johnny Ray Magee, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   ON WRIT OF CERTIORARI

CHANDLER, Justice,

for the Court:

¶ 1. In 1987, Johnny Ray Magee was convicted of robbing a liquor store and sentenced to a term of life imprisonment as a habitual offender. We affirmed his conviction in 1989 and dismissed his motion for post-conviction relief (“PCR”) in 1992. In 2010, however, we granted Ma-gee’s request to amend his PCR on the basis of his claim of newly discovered evidence of juror misconduct. The Marion County Circuit Court held an evidentiary hearing to consider this new evidence. The judge found that, when the prospective jurors were asked whether any of them had family or close friends in law enforcement, a juror’s failure to disclose her belief that a local deputy sheriff was her fourth cousin did not amount to juror misconduct and did not prejudice jury selection. The Court of Appeals affirmed the circuit court’s denial of the amended PCR petition. We granted certiorari on the issues of whether the circuit court erred in finding no juror misconduct and whether the circuit court violated Rule 9.04 of the Uniform Rules of Circuit and County Court by allowing the last-minute testimony of a witness at the evidentiary hearing. We affirm the circuit court’s denial of post-conviction relief, holding that no juror misconduct occurred and that, even if a violation of Rule 9.04 occurred, the error was harmless and the issue was waived due to lack of a defense request for a continuance or mistrial.

FACTS

¶ 2. After serving more than twenty years of a life sentence without the possibility of parole, Johnny Ray Magee learned that Judy Ann Echols, a member of the jury that convicted him, was a somewhat distant cousin to the late Thomas Echols, the deputy sheriff who served Ma-gee his indictment and conducted his arrest. During jury selection, Judy Ann did not respond to any of the following questions asked by Magee’s attorney:

(1)And these first few questions apply to you yourself, your family, and the people you consider to be your close friends. Are any of you or the other people that I have mentioned presently employed as any sort of law enforcement officer, whether it be local, state, or federal? Is anybody in that position at this time?
(2) What about in the past, has anybody in your experiences in life so far ever been employed in law enforcement personally? What about your family members or close friends in the past?
(3) Have you yourself or any of your close friends ever been members of any kind of law enforcement association such as the State Sheriffs Association or the National Rifle Association or any other group like that?

Two jurors responded that they had brothers-in-law in law enforcement. Both of those jurors were empaneled without objection from the defense.

¶ 3. When asked at the evidentiary hearing why she did not respond to these questions, Judy Ann answered that she did not understand the questions and was not sure how to conduct herself, as it was her first time in court. She stated she believed Thomas to be her fourth cousin. Thomas lived five minutes from Judy Ann and they attended the same church. She “knew of’ him but did not “know” him. She testified she had never discussed law enforcement matters with him. Judy Ann also “knew of’ both Magee and Thomas because all three were in close (but not the exact same) grades of school together growing up. Testimony from other family members was admitted to show Thomas was likely a closer degree of kinship to Judy Ann than fourth cousin, but in no case closer than a second cousin.

¶4. Magee also testified at the eviden-tiary hearing. He learned about Judy Ann’s kinship to Thomas after Magee’s daughter married Judy Ann’s nephew. Magee claimed that Judy Ann told a prison-mate of his that Thomas had told her Magee was guilty. Magee also alleged he called Judy Ann from prison to confront her, that she had admitted to talking with Thomas about the case before jury selection, but that she would not volunteer to testify because she did not want “to lose her freedom.” Magee did not question Judy Ann about this alleged conversation at the evidentiary hearing or put on any evidence to corroborate his hearsay assertions.

¶ 5. The State’s only witness was Cass Barnes, who had served with Judy Ann on the jury that convicted Magee. Barnes currently serves as the Chancery Clerk of Marion County. The State made a last-minute decision at the close of Magee’s witnesses to call Barnes to testify. Barnes was not subpoenaed to be present for the hearing. Over Magee’s objection, the judge called an hour and a half recess, during which the State arranged for Barnes to appear. The record does not explicitly reflect whether the defense interviewed Barnes during this recess. Barnes testified that, while he had a difficult time remembering a trial that happened so long ago, he did not remember any member of the jury making improper comments or referencing outside information. He stated that if he had, he would have reacted by informing the circuit judge.

DISCUSSION

¶ 6. We apply the “clearly erroneous” standard of review to a trial court’s finding that a jury was fair and impartial. “It is ... a judicial question as to whether a jury is fair and impartial and the court’s judgment will not be disturbed unless it appears clearly that it is wrong.” Odom v. State, 355 So.2d 1381, 1383 (Miss.1978). The same standard applies generally to denial of post-conviction relief after an evi-dentiary hearing. Johns v. State, 926 So.2d 188, 194 (Miss.2006).

I. THE TRIAL COURT DID NOT CLEARLY ERR IN APPLYING THE ODOM TEST.

¶ 7. Magee argues he is entitled to a new trial because Judy Ann’s failure to answer the voir dire questions had a prejudicial effect ón jury selection. Under Mississippi Code Section 13-5-69, a defendant has the right to question prospective jurors directly “with reference to challenges for cause, and for peremptory challenges.” Miss.Code Ann. § 13-5-65 (Rev. 2012). We have held that “[t]he failure of a juror to respond to a relevant, direct, and unambiguous question leaves the examining' attorney uninformed and unable to ask any follow-up questions to elicit the necessary facts to intelligently reach a decision to exercise a peremptory challenge or to challenge a juror for cause.” Odom, 355 So.2d at 1383.

¶ 8. When deciding on a motion for a new trial based on a juror’s failure to respond during voir dire, the trial court should first “determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited.” Odom, 355 So.2d at 1383. Second, “[i]f the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond.” Id. The defendant deserves a new trial if such prejudice can be reasonably inferred. Id. We also emphasized in Odom that “no firm, unbending rule can be laid down that would control every situation that might arise on the voir dire of prospective jurors. Therefore, each case must be decided on an ad hoc basis considering the facts before the court.” Id.

¶ 9. Magee argues that the first step of the Odom test has been met, because the questions were relevant and unambiguous, and Judy Ann had “knowledge of the information sought to be elicited.” It is undisputed that the questions were relevant and unambiguous. At issue is whether Judy Ann’s knowledge that a somewhat distant cousin of hers was a local deputy sheriff can reasonably be considered within “the information sought to be elicited.” We hold that, in this circumstance, the degree of kinship was too distant for the juror to have been expected to respond.

¶ 10. Similar cases, where we have found the Odom test satisfied and ordered a new trial, involved a much closer degree of relation. In Odom, a juror failed to reveal that his brother was a law-enforcement officer. Odom, 355 So.2d at 1382. That brother turned out to be directly involved in the investigation of Odom’s case. Id. In Laney v. State, a juror failed to disclose that she had two brothers and a nephew in law enforcement. Laney v. State, 421 So.2d 1216, 1216-17 (Miss.1982). In that case, a death-penalty sentence was returned as punishment for the capital murder of a local law-enforcement officer. Here, as in those cases, the questions asked at voir dire focused on discovering whether jurors had “family and close friends” in law enforcement. But, unlike in those cases, Judy Ann’s kinship to Thomas was simply too distant to be reasonably considered within the scope of the questions, especially given that, in practicality, the two did not appear to have an ongoing friendship or any significant level of interaction.

¶ 11. Magee argues that the prejudice prong of the Odom test has been met, because we can reasonably infer he would have exercised a strike on Judy Ann had he known she was related to the arresting officer. The lawyer who defended Magee at trial submitted an affidavit for the evi-dentiary hearing, stating that, while he did not remember this case specifically, his general practice in a similar situation would be that:

[if a juror] had answered in the affirmative during voir dire that she was related by blood or marriage to a police officer involved in the investigation of the case, a challenge to the trial judge to strike her for cause and/or a peremptory strike, if any remained available to the defense during jury selection, would have been made to remove her from the venire panel.

In Laney, where a law-enforcement officer had been murdered, we found “the fact that [the juror] was related to three law enforcement officers would, under the circumstances, be a very crucial issue. Defense counsel would certainly have exercised a challenge to her service on the jury.” Laney, 421 So.2d at 1218 (emphasis added). And in Odom, as mentioned above, the juror’s brother was directly involved in the. investigation of the defendant. Odom, 355 So.2d at 1383.

¶ 12. Under the circumstances of this case, we cannot find that the trial judge clearly erred in concluding that Judy Ann would not have been struck as a juror had the defense known she was a somewhat distant cousin of the arresting officer. Two other jurors with brothers-in-law in law enforcement were selected for Magee’s jury without objection. The victim of the crime was not law enforcement. Thomas and- Judy Ann were significantly more distantly related than a brother, brother-in-law, or nephew. Not only did they not have a close relationship or talk about law-enforcement affairs, no evidence was presented at the hearing that Thomas had been involved in the substantive investigation of Magee’s case. Thomas’s role apparently was limited to serving the indictment and conducting the arrest.

¶ 13. We emphasize, as we originally did in Odom, that circumstances like these must be decided on a case-by-case basis. The degree of kinship, connection, and knowledge required to be present before prejudice can be inferred will vary depending on the facts of each case. Given both the constitutional right to be tried in the locale of the crime and the fact that many communities are small and close-knit, it is not unusual for jury members to have some level of connection with or knowledge of the case. See Dubose v. State, 22 So.3d 340 (Miss.Ct.App.2009); Archer v. State, 986 So.2d 951 (Miss.2008); Wright v. State, 9 So.3d 447 (Miss.Ct.App.2009). This is why attorneys follow up affirmative responses to voir dire questions by asking the juror if he or she can be impartial regardless of the connection or knowledge. Juries would be difficult to empanel otherwise.

¶ 14. We also clarify an aspect of the circuit court’s written findings on Odom after the evidentiary hearing. The court found Judy Ann did not have “substantial knowledge of the information sought to be elicited” in part because she did not “understand” the questions she was asked and was nervous and confused about how to conduct herself in court. But a juror’s nervousness, failure to understand the voir dire questions, or confusion about the process cannot be grounds for denying a defendant the right to non prejudicial jury selection. The important question is whether prejudice in jury selection occurred as a result of the failure to respond, and prejudice potentially can occur regardless of a juror’s reason for remaining silent.

II. THE ADMISSION OF A LAST-MINUTE WITNESS AT THE EV-IDENTIARY HEARING DID NOT RESULT IN A MISCARRIAGE OF JUSTICE.

¶ 15. Magee argues he is entitled to a new trial because the judge allowed a last-minute witness to testify at the post-conviction-relief hearing in violation of Rule 9.04(I)(l)-(2) of the Uniform Rules of Circuit and County Court, which states:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.

URCCC 9.04(I)(l)-(2). At the close of Magee’s witnesses, the record reflects the following exchange:

THE COURT: The State wants to call the Chancery Clerk of Marion County, Cass Barnes, who I understand is going to a time prior to him being Chancery-Clerk. He was actually a member of the jury that tried this particular case, and would have knowledge of any impropriety in the jury room. And the State has talked to and I guess it’s safe to say the State feels like the State needs to go into any possible contamination with the jury deliberations.
MR. SWEATT [PROSECUTOR]: He would honestly tell us, assuming he remembers, if there was any. I think he would remember if there were tainting. He might not remember.
THE COURT: Well, whatever. All right.
MR. KUYKENDALL [DEFENSE COUNSEL]: Your Honor, for the record I object. We’re here today and had an opportunity to subpoena him and have him here for this morning for hearing. He’s not here now and we’d object to any continuance.
THE COURT: Since we’re here to try to find out what the truth of the matter is, I’ll overrule the objection and we’ll just recess until 1:15 ... Are you going to call Mr. Barnes to have him here at 1:15?
MR. SWEATT: Yes, sir.
THE COURT: We’ll be ready at that time....
(COURT PLACED IN RECESS AT 12:08 P.M. OFF RECORD)
(PROCEEDINGS CONTINUE AS FOLLOWS AT 1:41 P.M.)

¶ 16. The record does not explicitly reflect whether the defense had a reasonable opportunity to interview Barnes during this recess as required by Rule 9.04(I)(1) or whether proceedings resumed without such an interview taking place. Proceedings resumed at 1:41 p.m. with the State directly examining Barnes. At that time, the defense did not claim unfair surprise or undue prejudice and seek a continuance or mistrial as required under Rule 9.04(I)(2). Magee’s cross-examination of Barnes very effectively highlighted the vagueness of Barnes’s memory of the trial.

¶ 17. We have stated that “[a] violation of Rule 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice.” Ben v. State, 95 So.3d 1236, 1249 (Miss.2012) (quoting Payton v. State, 897 So.2d 921, 942 (Miss.2003)); see also Ross v. State, 954 So.2d 968, 1000-01 (Miss.2007) (stating that the key question is whether the violation of Rule 9.04 prejudiced the defendant). Additionally, failure to request a continuance or mistrial when faced with an undisclosed witness or evidence results in waiver of the rule violation. See Comby v. State, 901 So.2d 1282 (Miss.Ct.App.2004), cert. denied, 901 So.2d 1273 (Miss.2005); Jackson v. State, 910 So.2d 658 (Miss.Ct.App.2005).

¶ 18. While not irrelevant, Barnes’s testimony was in no way disposi-tive of the outcome of the hearing. An Odom analysis focuses on the defendant’s right to be free from prejudice at jury selection. Prejudice warranting reversal can occur at voir dire even without additional evidence of overt misconduct at trial. Our decision, like the trial court’s, is based primarily on the relatively distant degree of kinship and interaction between the juror and the law-enforcement officer, as well as the fact that the law enforcement officer was only tangentially involved with Magee’s case. Even if the court violated Rule 9.04 by not allowing sufficient opportunity for the defense to interview the new witness, Barnes’s testimony about what occurred at trial did not result in a miscarriage of justice and is not grounds for ordering a new evidentiary hearing. Moreover, Magee waived the issue by failing to request a continuance or mistrial.

CONCLUSION

¶ 19. Under the factual circumstances present here, we cannot find that the trial judge clearly erred in holding that no juror misconduct occurred. The distant degree of kinship and the attenuated level of interaction between Judy Ann and Thomas place their relationship outside the scope of the particular voir dire questions asked. The trial court did not clearly err in finding Magee was not prejudiced by Judy Ann’s failure to disclose her kinship to Thomas. If the trial court violated Rule 9.04, the result was harmless error. Ma-gee also waived the issue. We therefore affirm the judgment of the Court of Appeals as well as the trial court’s denial of Magee’s amended motion for post-conviction relief.

¶ 20. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . See Miss.Code Ann. § 99-19-83 (Rev.2007).

      . See Magee v. State, 542 So.2d 228 (Miss.1989).

      . Thomas Echols passed away some time before the instant proceedings.

      . The testimony was that Judy Ann's father and Thomas’s father were first cousins.

      . The appropriate relief actually would be a new evidentiary hearing, rather than reversal of Magee’s original conviction.


author: MAXWELL, J.,

text:
    Johnny Ray MAGEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01611-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied May 7, 2013.

      Johnny Ray Magee, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Over twenty years after being convicted of robbery and sentenced to life imprisonment as a habitual offender, Johnny Ray Magee claimed to have discovered new evidence entitling him to post-conviction relief (PCR). He argues he recently learned his trial had been tainted because a juror had failed to disclose during voir dire her familial relationship with a law enforcement officer allegedly involved in his arrest. The Marion County Circuit Court held an evidentiary hearing and found Magee was not prejudiced by the juror’s failure to divulge that a person she believed to be her fourth cousin was a sheriffs deputy. The circuit judge also determined the juror had no extraneous knowledge about the case. Magee challenges these findings and also contests several of the circuit judge’s evidentiary rulings from the hearing. Finding no reversible error, we affirm.

Facts and Procedural History

¶2. In 1986, a Marion County grand jury returned an indictment charging Ma-gee with armed robbery. The jury found Magee guilty of the lesser-included offense of robbery. Based on his separate prior convictions for burglary and robbery, he was sentenced as a habitual offender to life imprisonment without the possibility of parole. The Mississippi Supreme Court affirmed Magee’s conviction and sentence. See Magee v. State, 542 So.2d 228, 237 (Miss.1989). In 1992, the supreme court dismissed his PCR motion. But in 2009, Magee moved to amend his PCR motion, claiming newly discovered evidence of juror misconduct.

¶ 3. In 2010, the supreme court granted Magee’s motion to amend and directed the circuit court to conduct an evidentiary hearing on Magee’s juror-misconduct claim. The crux of Magee’s post-conviction argument was that he had been denied a fair trial because Judy Ann Echols, a member of the jury at his robbery trial, had not disclosed her familial relationship with a law enforcement officer, despite Magee’s attorney posing the following relevant questions to the venire:

(1) And these first few questions apply to you yourself, your family, and the people you consider to be your close friends. Are any of you or the other people that I have mentioned presently employed as any sort of law enforcement officer, whether it be local, state or federal? Is anybody in that position at this time?
(2) What about in the past, has anybody in your experiences in life so far ever been employed in law enforcement personally? What about your family members or close friends in the past?
(3) Have you yourself or any of your close friends ever been members of any kind of law enforcement association such as the State Sheriffs Association or National Rifle Association or any other group like that?

¶ 4. Though two jurors responded to the questions, Judy Ann did not. Over twenty years later at the evidentiary hearing, Judy Ann testified she believed she was the fourth cousin of Deputy Thomas Echols, who had served as a Marion County Sheriffs Deputy at the time of Magee’s indictment and trial. Judy Ann admitted she had known Deputy Echols and had attended Church with him prior to his death, but she denied ever discussing Ma-gee’s case with him at any time before, or during, Magee’s trial. Judy Ann explained she had not disclosed her relation to Deputy Echols during voir dire because she had misunderstood defense counsel’s questions and was not sure how to conduct herself.

¶ 5. Magee also testified at the eviden-tiary hearing. He believed Deputy Echols and Judy Ann were second, not fourth, cousins. Magee’s sister, Shirlee McLendon, offered similar testimony. Magee further claimed a fellow inmate had recently told him that Judy Ann had learned from Deputy Echols that Magee had robbed the store. Afterwards, Magee maintained that he had called Judy Ann to confront her about the statements. He claimed that during their conversation Judy Ann had admitted discussing his case with Deputy Echols before serving on the jury. Yet notably, Magee did not question her about this alleged conversation during the hearing.

¶ 6. Cass Barnes, the State’s only witness at the evidentiary hearing, had served on the jury with Judy Ann. He testified that he did not recall any improper reference or conduct on Judy Ann’s part during the jury’s deliberations. According to Barnes, there were no improprieties during deliberations and “everything went ... smoothly.” Barnes testified that had any of the jurors acted improperly, he would have advised the circuit judge.

¶ 7. After applying the test articulated in Odom v. State, 355 So.2d 1381, 1383 (Miss.1978), the circuit judge found that Judy Ann had lacked substantial knowledge and understanding of the information sought to be elicited during her voir dire examination and that Magee had suffered no prejudice from her failure to respond. Having found Magee received a fair and impartial trial, the circuit judge denied Magee’s PCR motion. Magee now appeals.

Standard of Review

¶8. We review the denial of a PCR motion after an evidentiary hearing for clear error. Poss v. State, 17 So.3d 167, 169 (¶ 5) (Miss.Ct.App.2009) (citing Johns v. State, 926 So.2d 188, 194 (¶ 29) (Miss.2006)). In doing so, we “must examine the entire record and accept ‘that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the [circuit] court’s findings of fact.’ ” Thorson v. State, 76 So.3d 667, 674 (¶ 18) (Miss.2011) (quoting Doss v. State, 19 So.3d 690, 694 (¶5) (Miss.2009)). Deference is given to the circuit judge as the “sole authority for determining credibility of the witnesses.” Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987). But we review questions of law de novo. Thorson, 76 So.3d at 674 (¶ 19) (citing Doss, 19 So.3d at 694 (¶ 5)). The burden of proof at an evidentiary hearing in post-conviction relief cases is on the petitioner to show “by a preponderance of the evidence” he or she is entitled to relief. Miss.Code Ann. § 99-39-23(7) (Supp.2012).

Discussion

¶ 9. On appeal, Magee claims the circuit judge erred in (1) applying the Odom test (2) allowing the State to ask Judy Ann leading questions, (3) limiting Magee’s testimony to relevant matters, (4) permitting Barnes to testify, and (5) allowing the State to ask Barnes a leading question on direct examination and permitting Barnes to offer speculative testimony.

1. The Odom Test

¶ 10. In Odom, 355 So.2d at 1383, the supreme court established a test for evaluating whether a juror’s failure to respond to a question during voir dire prejudices the defendant’s right to a fair trial:

[W]here ... a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion [a] for a new trial, determine [ (1) ] whether the question propounded to the juror was ... relevant to the voir dire examination; (2) whether [the question] was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered.

(Footnote omitted).

¶ 11. There is no “precise formula ... for answering these three questions, but rather the trial court must make an ad hoc determination based on the facts before it.” Sewell v. State, 721 So.2d 129, 137 (¶44) (Miss.1998) (citing Odom, 355 So.2d at 1383).

¶ 12. In Odom, the defense lawyer asked if any members of the venire were closely related to a law enforcement officer. Odom, 355 So.2d at 1382. One juror, in particular, remained silent. Id. Evidence at a post-trial hearing revealed that the silent juror’s brother was, in fact, a police officer in the community where the case had been investigated and tried. Id. On appeal, the supreme court found the juror’s failure to respond to the question had an adverse effect on the defendant’s right to challenge the juror peremptorily. Id.

¶ 13. Here, the circuit judge applied the test articulated in Odom' and found Magee had failed to satisfy its third prong. While the judge determined Ma-gee’s questions were relevant and unambiguous, he found it was not clear that Judy Ann had “substantial knowledge and understanding of the information sought” by defense counsel. As the judge put it, her understanding of “the degree of kinship” between herself and Deputy Echols “was distant to say the least.” The judge also noted Judy Ann’s testimony that she was somewhat unsure of “how to conduct herself.” The circuit judge distinguished Magee’s case from Odom because of “the vast differences in kinship between siblings and fourth cousins.” Based on the markedly different relationships, the judge reasoned “defense counsel in Odom would have been significantly more alerted” by a brother working in local law enforcement than Magee’s counsel would have been by a distant cousin. We find it worth mentioning that Magee’s attorney did not challenge, either peremptorily or for cause, two jurors who had disclosed their brother-in-laws were employed by law enforcement, one of whom worked for the local police department. Indeed, both of these venire members ultimately served on Ma-gee’s jury.

¶ 14. We also point out that “persons involved in law enforcement are not per se excluded from jury service.” Avera v. State, 761 So.2d 900, 906 (¶ 21) (Miss.Ct.App.2000); see also Walker v. State, 671 So.2d 581, 624 (Miss.1995); Mhoon v. State, 464 So.2d 77, 81 (Miss.1985); Porter v. State, 749 So.2d 250, 256 (¶ 19) (Miss.Ct.App.1999). While Magee provided an affidavit from his trial attorney attesting he would have sought to exclude Judy Ann had he known she was related by blood or marriage to an officer involved in the investigation, Magee offered no evidence at his post-conviction hearing of Deputy Echols’s actual involvement in his investigation. The circuit judge noted Judy Ann’s later testimony that “she had never discussed the nature of Deputy Echols’s work with him, let alone any details regarding [Magee’s] case.” And he determined that, had Judy Ann actually responded during voir dire similarly to her testimony at the evidentiary hearing, “there would have been no probability of her being excused.”

¶ 15. Considering the broad discretion given circuit judges in employing the Odom test, our supreme court has explained “no firm, unbending rule can be laid down that would control every situation that might arise on the voir dire of prospective jurors.” Odom, 355 So.2d at 1383. “It is, of course, a judicial question as to whether a jury is fair and impartial^] and the court’s judgment will not be disturbed unless it appears clearly that it is wrong.” Id. (citing Jones v. State, 133 Miss. 684, 711-13, 98 So. 150, 154-55 (1923)). After reviewing the record, we cannot say the circuit court’s decision to deny Magee’s motion was clearly wrong. There was evidence that Judy Ann perhaps misunderstood the questions during voir dire. And her misunderstanding was attributable, at least in part, to her belief (perhaps a mistaken belief) that Deputy Echols was her fourth cousin and, therefore, not a “family member” or “close Mend” for purposes of defense counsel’s questions.

¶ 16. We find the record supports the circuit court’s decision that Judy Ann’s failure to respond did not prejudice Ma-gee’s right to a fair trial. Judy Ann denied any conversations with Deputy Echols about the case or any knowledge of extraneous evidence. And Barnes, who now serves as Marion County Chancery Clerk, and who was also a member of Magee’s jury, testified that he did not recall Judy Ann making any inappropriate references during the deliberation process. He explained that if he had known of any misconduct, he would have reported it to the circuit judge. Magee offered no evidence to rebut Barnes’s testimony. Based on the evidence before the circuit court, we find the judge’s decision to deny Magee’s PCR motion was not clearly erroneous.

2. The State’s Leading Questioning of Judy Echols

¶ 17. Magee next argues the circuit court erred in allowing the State to ask Judy Ann leading questions on cross-examination.

¶ 18. A leading question is “one that suggests to the witness the specific answer desired by the examining attorney.” Tanner v. State, 764 So.2d 385, 405 (¶ 58) (Miss.2000) (quoting Clemons v. State, 732 So.2d 883, 889 (¶25) (Miss.1999)). “[T]he decision to allow leading questions rests within the sound discretion of the trial court....” Parks v. State, 930 So.2d 383, 387 (¶9) (Miss.2006) (citing McFarland v. State, 707 So.2d 166, 175 (¶ 30) (Miss.1998)). “Unless there has been a manifest abuse of discretion resulting in injury to the complaining party, we will not reverse the decision. This is because the harm caused is usually speculative[,] ... and only the trial court was able to observe the demeanor of the witness to determine the harm.” Mosby v. State, 749 So.2d 1090, 1093 (¶ 9) (Miss.Ct.App.1999) (citing Whitlock v. State, 419 So.2d 200, 203 (Miss.1982)).

¶ 19. Ordinarily, leading questions are “permitted on cross-examination.” M.R.E. 611(c). But the comments to Rule 611 indicate leading questions may not be proper when the cross-examination is in form only. See M.R.E. 611(c) cmt.; see also Walker v. State, 962 So.2d 39, 45 (¶ 23) (Miss.Ct.App.2006). For instance, when a party is cross-examined by his own counsel after being called by the opponent, the cross-examination is in form only. See M.R.E. 611(c) cmt.

¶ 20. Magee complains about the following questions asked during the State’s examination of Judy Ann:

Q: Ms. Echols, I just have a few questions for you. When you went back to the jury room to discuss this case about Johnny Ray Magee, did you tell any of the other fellow jurors that you were the fourth cousin of a sheriffs deputy?
A: No.
Q: Mr. Kuykendall asked you if you had occasion to talk with [Deputy Echols] about his law enforcement activities and you said no. Did you talk with [Deputy] Echols about this particular case involving Johnny Ray Magee?
A: No.
Q: Were you in the presence of [Deputy] Echols when he was discussing . the case and you overheard [sic] him say anything?
A: No.
Q: So you had no contact or communication with [Deputy] Echols about the Johnny Ray Magee case?
A: No.
Q: And you didn’t — whether or not you were kin to [Deputy] Echols, you didn’t bring that in to the jury and tell the other jury members that you were fourth cousin or distant relation or some relation to [Deputy] Echols?
A: No, I didn’t.
Q: Did anything about what you knew about Johnny Ray Magee that you knew at the time of the trial influence you so that you had some prejudice or bias in the case?
A: No.
Q: Either for Johnny Ray Magee or against him?
A: No.

¶ 21. When considering the propriety of these questions, we need not linger on whether the State’s examination of Judy was in form only, because Magee did not object to the State’s questioning of Judy Ann. Thus, he waived any challenge to the State’s method of inquiry. Still, while Magee’s waiver is undisputed, Mississippi’s evidentiary rules allow notice to be taken of “plain errors affecting substantial rights although they were not brought to the attention of the court.” M.R.E. 103(d). However, a legal error does not mandate reversal under plain-error review unless it is “so fundamental that it generates a miscarriage of justice.” Morgan v. State, 793 So.2d 615, 617 (Miss.2001) (quoting Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)).

¶ 22. Though several of the complained-of questions could be classified as leading, the circuit judge has some discretion to allow leading questions, particularly when the manner of inquiry is not challenged. And even if it was technically error to allow some of the challenged questions, we do not find the manner of examination resulted in a miscarriage of justice or in any way denied Magee a fair and impartial hearing.

3. Limiting Magee’s Testimony to Relevant Matters

¶ 23. Magee next argues the circuit judge abused his discretion by limiting the scope of his testimony. Magee cites no authority supporting this assignment of error. And there is no factual support in the record to find in his favor.

¶24. Mississippi Rule of Evidence 611(a) allows a court to exercise reasonable control over the presentation of evidence to avoid needless consumption of time. The circuit judge allowed Magee to testify at length during the hearing. He intervened only to limit Magee’s testimony to relevant matters and to instruct Magee not to rehash every argument within his petition. We find the circuit judge’s actions were reasonable and are unable to say he abused his discretion in limiting Magee’s testimony to relevant matters.

4. Allowing Barnes to Testify

¶25. Magee also suggests the circuit court erred in allowing Barnes to testify. As support, Magee cites Rule 9.04(I)(l)-(2) of the Uniform Rules of Circuit and County Court, which provides:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness ...; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continu-anee or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.

Magee concedes he did not preserve an objection by claiming unfair surprise. And once more he asks this court to invoke the plain-error rule.

¶ 26. The record indicates that while Magee’s post-conviction counsel knew the State might call Barnes as a witness and did not claim unfair surprise, he did object to the lack of a subpoena and the court granting a brief recess before Barnes’s testimony. But our review shows Magee had sufficient opportunity to prepare to cross-examine Barnes. Thus, we find the circuit court’s decision to allow Barnes to testify did not affect Magee’s substantial rights.

5. The State’s Questioning of Barnes

¶ 27. Magee finally argues the circuit court erred in allowing the State to ask Barnes a leading question and permitting him to give speculative testimony. Magee objected when the State asked Barnes: “Do you recall whether anybody said, “Well, I’m related the sheriffs deputy on that case[,] and I know all about it[,]’ or anything of that sort?” The circuit court overruled Magee’s objection and allowed Barnes to respond.

¶ 28. Although the question is arguably leading, “[t]rial courts are given great discretion in permitting the use of such questions. ...” Tanner, 764 So.2d at 405 (¶ 58). The circuit court was in the best position to judge the necessity of the question, and we do not find he abused his discretion in allowing it.

¶ 29. Lastly, Magee insists the circuit court erred in overruling his objection to the State’s question about what Barnes would have done if he had become aware of an impropriety during jury deliberations:

Q: What would you as a member of the jury have done if one of the members of the jury had done something improper like mak[ing]e an improper reference to a relationship to a deputy or having special knowledge about the case, what would you as a jury [member] have done?
Mr. Kuykendall: Your Honor, I want to object. It’s calling for speculation on the witness’s behalf, something that he [would] have done 28 years ago.
The Court: I’ll overrule. You can cross examine him.

¶ 30. We again note the Mississippi Rules of Evidence afford circuit courts broad discretion with respect to witness testimony and the admissibility of evidence. While this particular inquiry called for speculation, Magee had alleged juror misconduct, which the question clearly touched on. Based on the circuit court’s discretion in handling evidentiary matters, we do not find Magee is entitled to reversal on this ground.

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

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


text:
    Robert J. RAY a/k/a Robert Ray a/k/a Robert Ray, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CA-00336-COA.
    Court of Appeals of Mississippi.
    March 19, 2013.
    Rehearing Denied Aug. 20, 2013.
    Certiorari Denied Oct. 24, 2013.
    James A. Williams, attorney for appellant.
    Justin Miller Cobb, Lauderdale County Prosecuting Attorney, Meridian, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Perfecting an appeal from a justice-court criminal conviction requires filing a notice of appeal and two bonds — (1) a “cost bond” to secure estimate costs, and (2) an “appearance bond” conditioned on the defendant’s appearance pending the appeal’s conclusion. Because of the distinct purposes for each bond, failure to file either is grounds for dismissal. Following Robert J. Ray’s conviction of simple assault in justice court, Ray filed with the county court a notice of appeal and a single “appeal bond.” Both the county court and circuit court dismissed Ray’s appeal, finding that while his “appeal bond” satisfied the cost-bond requirement, it did not satisfy the separate appearance-bond requirement. We agree and affirm.

Background Facts

¶ 2. The Lauderdale County Justice Court found Ray guilty of simple assault and fined him $40, plus costs and assessments of $191.50, for a total of $231.50. Within thirty days of his conviction, Ray filed a “Notice of Appeal” with the county court. He also filed an “Appeal Bond,” which stated:

Ray ... does hereby file with the Court the costs of perfecting his appeal in the amount of one hundred thirty eight dollars ($138.50) which the undersigned is hereby bound.
The condition of the bond is that, if the undersigned, Robert J. Ray, shall prosecute this appeal and if for any reason the appeal is dismissed, the costs as posted shall be forfeited.

¶ 3. Upon the county prosecutor’s motion, and after a hearing, the county court dismissed Ray’s appeal. The county court found that, while Ray had filed a written notice of appeal and cost bond, which Ray had labeled “appeal bond,” Ray failed to perfect his appeal under Uniform Rule of Circuit and County Court 12.02 by also filing the required appearance bond. Ray appealed to the circuit court, which agreed that Ray’s “appeal bond” was only a cost bond. And because Ray failed to also file the required appearance bond, the circuit court affirmed the dismissal.

¶4. Ray further appeals to this court. On appeal, we apply a de novo standard of review for two reasons. First, we review all grants of motions to dismiss de novo. E.g., Spencer v. State, 880 So.2d 1044, 1045 (¶ 6) (Miss.2004). And second, dismissal was based on failure to perfect an appeal— and whether a court obtained appellate jurisdiction is a question of law, reviewed de novo. Reeves v. City of Crystal Springs, 54 So.3d 322, 324 (¶ 6) (Miss.Ct.App.2011) (reviewing de novo whether an appeal from municipal court was perfected).

Discussion

¶ 5. Under Uniform Rule of Circuit and County Court 12.02(A)(1):

Any person adjudged guilty of a criminal offense by a justice or municipal court may appeal to county court or, if there is no county court having jurisdiction, then to circuit court by filing simultaneously a written notice of appeal, and both a cost bond and an appearance bond (or cash deposit) as provided herein within 30 days of such judgment with the clerk of the circuit court having jurisdiction.

Rule 12.02(B) describes both cost-bond and appearance-bond requirements. To satisfy the cost-bond requirement, “every defendant who appeals under this rule shall post a cash deposit, or bond with sufficient resident sureties (or licensed guaranty companies) to be approved by the circuit clerk, for all estimated court costs, incurred both in the appellate and lower courts[.]” URCCC 12.02(B)(2). To satisfy the appearance-bond requirement, “a cash deposit, or bond with sufficient resident sureties (or licensed guaranty companies), to be approved by the circuit clerk, shall be given and conditioned, on appearance before the county or circuit court from day to day and term to term until the appeal is finally determined or dismissed.” URCCC 12.02(B)(1).

¶ 6. The question before this court is whether a single bond-or single cash deposit — satisfied both bond requirements. Based on the language of Rule 12.02 and this court’s precedent, we find it did not.

I. Interpreting Rule 12.02

¶ 7. Ray filed only one cash deposit of $138.50, which he labeled an “appeal bond.” Though he asks us to look at the language of his “appeal bond” and find that it operated as both a cost bond and appearance bond, a cost bond and appearance bond are not the same. A cost bond “secures estimated costs” and is governed by Rule 12.02(B)(2), while an appearance bond “is conditioned on the appellant’s appearance until the appeal is concluded” and is governed by Rule 12.02(B)(1). Mitchell v. Parker, 804 So.2d 1066, 1069 (¶ 10) (Miss.Ct.App.2001). “The natural reading is that the two different purposes of the two different paragraphs are satisfied by two different bonds.” Id.

¶ 8. In fact, in 2007, Rule 12.02 was amended to reflect that filing only one bond does not perfect an appeal. While the old version stated that the “written notice of appeal and posting cost bond perfects the appeal,” the current version makes clear that the “written notice of appeal and posting of the cost bond and the appearance bond or cash deposit perfects the appeal.” URCCC 12.02(A)(1) (emphasis added); see also Nelson v. State, 72 So.3d 1038, 1041-42 (¶ 11) (Miss.2011) (citing URCCC 12.02(A)(1)). So it is not just an appellant’s filing of written notice of appeal and posting a bond (or cash deposit) that perfects the appeal — it is his filing of the written notice and posting two separate bonds (or cash deposits) that perfects the appeal. Indeed, under Rule 12.02(C), it is only “[u]pon the filing with the circuit clerk of the notice of appeal and bonds or cash deposits required by this rule, unless excused therefrom with the clerk, [that] the prior judgment of conviction shall be stayed.” (Emphasis added). And “[t]he failure to post any bond or cash deposit required by this rule shall be grounds for the court, on its own motion or by motion of another, to dismiss the appeal with prejudice and with costs.” URCCC 12.02(A)(1).

¶ 9. Thus, we have no alternative but to reject Ray’s argument that his $138.50 “appeal bond” was sufficient to secure costs and his appearance — just as we rejected a similar argument in Mitchell. In that ease, a person appealing a municipal-court conviction filed a $950 “appeal bond.” Mitchell, 804 So.2d at 1068 (¶ 3). He argued he should not have had to pay an additional cost bond, in the form of filing fees, because his $950 bond was sufficient to satisfy both bond requirements. Mitchell, 804 So.2d at 1068-69 (¶¶ 5, 9).

¶ 10. This court disagreed, holding “there must be both a cost bond and an appearance bond[.]” Id. at 1069 (¶ 11). Looking at the plain language of Rule 12.02, as well as the two separate statutes on which the bond requirements were based, this court held that the $950 bond securing his appearance was not enough— the appellant still had to provide separate security to pay costs. Id. at 1069-71 (¶¶ 10-17).

¶ 11. Similarly, Ray’s $138.50 bond was not enough to stay his justice-court conviction and perfect his appeal. Looking at the language of Ray’s “appeal bond,” we agree with the county court and circuit court that Ray was filing a cost bond. Ray tendered the $138.50 as “the costs of perfecting his appeal.” But under Rule 12.02, Ray also had to secure his appearance through a separate appearance bond (or cash deposit), which he did not do. See Mitchell, 804 So.2d at 1071 (¶ 17). Ray argues that because he agreed to forfeit this money should the appeal be dismissed, it was an appearance bond. But under sections (B)(1) and (B)(2) of Rule 12.02, both a cost bond and an appearance bond may be forfeited. Ray also argues that because he partially paid his justice-court fines, he had already satisfied the cost-bond requirement. But this court has previously rejected the argument that paying a fine in the lower court rendered a cost-bond unnecessary. Hill v. City of Wiggins, 984 So.2d 1086, 1087 (¶4) (Miss.Ct.App.2008).

¶ 12. Ray suggests that dismissing his appeal because he filed only one piece of paper, versus two, places form over substance. However, as this court explained in Mitchell, the difference in the two bonds is material. Mitchell, 804 So.2d at 1069-71 (¶¶ 10-17). Rule 12.02 requires two separate bonds—or cash deposits— that serve two distinct purposes. Thus, dismissal was proper not simply because Ray filed one sheet of paper versus two, but because Ray only secured the payment of costs without separately securing his appearance. Because he did not file both bonds, his appeal was not perfected. See URCCC 12.02(A)(1). The judgment from the justice court was not stayed. See URCCC 12.02(C). And the county court properly granted the county prosecutor’s motion to dismiss. See URCCC 12.02(A)(1); see also Riley v. Town of Lambert, 856 So.2d 721, 723 (¶ 10) (Miss.Ct.App.2003) (holding the failure to post an appearance bond empowered the circuit court to dismiss the appeal).

II. Curing Deficiencies

¶ 13. Alternatively, Ray argues he should have been permitted to cure any deficiencies in his bond. But contrary to Ray’s assertion, this is not a case where Ray’s appearance bond was merely deficient—it was absent. In Dixon v. State, 528 So.2d 832, 832-33 (Miss.1988), the Mississippi Supreme Court held that the circuit court should have granted a defendant’s motion to amend his appearance bond, which had been filed without the signatures of the sureties. Ray relies on Dixon to argue he should have been permitted to correct any “technical” deficiencies in his appeal bond. But there is a distinction between a timely filed but technically imperfect bond and a bond that was never filed. Hill, 984 So.2d at 1088 (¶ 9). Here, Ray’s failure to file an appearance bond was not a mere technicality but a failure to comply with a substantive requirement of the rule necessary to stay the judgment from the justice court and vest the county court with appellate jurisdiction. See URCCC 12.02; Mitchell, 804 So.2d at 1070-71 (¶ 17). Further, unlike Dixon, when faced with the county prosecutor’s motion to dismiss for failure to comply with Rule 12.02, Ray did not ask the county court for permission to amend his “appeal bond.” See Dixon, 528 So.2d at 832 (holding circuit court should have granted Dixon’s motion to amend his appearance bond).

III. Perfecting an Appeal

¶ 14. Finally, Ray relies on language in Rule 12.02 to argue his bond was sufficient as both a cost bond and appearance bond because the circuit clerk accepted it as both. See URCCC 12.02(A)(1) (“The clerk of the court shall not accept, file and docket the written notice of appeal without the accompanying-cost bond and appearance bond or cash deposit, unless the court has allowed the defendant to proceed in forma pauperis.”). But Rule 12.02 makes plain that it is the appellant’s filing of the written notice and posting of both bonds that perfects the appeal, not the acceptance by the circuit clerk. See URCCC 12.02(A)(1). Hill involved a notice of appeal that had been accepted by the circuit clerk, despite the fact no bond was ever filed. Hill, 984 So.2d at 1087 (¶2). As with this case, the prosecution moved for a dismissal before trial based on Hill’s failure to comply with Rule 12.02. Dismissal was granted, and this court affirmed. Hill, 984 So.2d at 1087 (¶2), 1089 (¶ 15). Similarly, we affirm the dismissal of Ray’s appeal for failure to file the required bonds under Rule 12.02.

¶ 15. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.


author: FAIR, J.,

text:
    William H. LAMB, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00369-COA.
    Court of Appeals of Mississippi.
    April 2, 2013.
    Rehearing Denied Aug. 27, 2013.
    Certiorari Dismissed Oct. 24, 2013.

      William H. Lamb, appellant, pro se.
    Leslie S. Lee, Jackson, Justin Taylor Cook, Gary Goodwin, attorneys for appellant.
    Office of the Attorney General by Deirdre MeCrory, attorney for appellee.
    Before LEE, C.J., CARLTON, MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. William Lamb was confronted outside a gas station in Lowndes County, Mississippi, by undercover law enforcement officers acting on a tip from a confidential informant later revealed to be Lamb’s ex-wife. The informant had told authorities Lamb would be at the gas station with between 1.0 and 1.5 grams of methamphetamine. Lamb was sitting in his vehicle after the station had closed. When the officers approached, he put a plastic bag in his mouth and attempted to swallow it. The officers tried to stop him, but Lamb resisted violently. After he chewed the bag up and succeeded in swallowing it, Lamb relented, and he was arrested and taken to a local hospital where the contents of his stomach were removed. Samples of the contents, totaling about 80 grams, were later confirmed to contain methamphetamine. Lamb was prosecuted on the theory that the contents of his stomach were a controlled substance under Mississippi law, and he was convicted of possession of between two and ten grams with intent to distribute. Lamb was sentenced as a habitual offender to thirty-two years’ imprisonment. He appeals from that judgment.

DISCUSSION

1. Amendment of Indictment

¶ 2. After voir dire, but before opening statements and the presentation of evidence, the State moved to amend Lamb’s indictment to charge him as a habitual offender and a repeat drug offender. See Miss.Code Ann. § 99-19-81 (Rev.2007) (maximum sentence required after third felony conviction); Miss.Code Ann. § 41-29-147 (Rev.2009) (doubles maximum sentence for repeat drug offenders). The trial court granted the amendment. Its effect, if the required conditions were proven in the sentencing phase, was to require a thirty-two-year sentence. Had Lamb not been charged as a habitual offender and a repeat drug offender, he would have been sentenced to a minimum of four and a maximum of sixteen years’ imprisonment under Mississippi Code Annotated section 41-29-139(c)(l)(C) (Supp.2012).

¶ 3. On appeal, Lamb relies on Gowdy v. State, 56 So.3d 540, 546 (¶ 22) (Miss.2010), where the supreme court held that an indictment could not be amended when the motion to amend was made after the defendant was convicted. The court pointed out that Uniform Rule of Circuit and County Court 7.09 does not speak to the timing of an amendment, but permits it “only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” Id. at 545 (¶ 16).

¶ 4. Lamb’s case is distinguishable from Gowdy because the indictment was amended prior to conviction. As to the more general Rule 7.09, Lamb has made no specific claims of prejudice from the timing of the amendment; he has not shown any unfair surprise. Regarding Lamb’s ability to put on a defense, sentencing enhancements are determined by the court after the guilt phase of the trial. Charging Lamb as a habitual offender “did not affect the substance of the crime of which he was charged, but only the sentencing.” Adams v. State, 772 So.2d 1010, 1020 (¶ 49) (Miss.2000) (quotation omitted). The timing of the amendment relative to the guilt phase of the trial does not bear on Lamb’s ability to prepare a defense to the sentencing enhancement. See id. at 1020-21 (¶¶ 49-50).

¶ 5. We find no merit to this issue.

2. Weight and Sufficiency of the Evidence

¶ 6. Under the umbrella of this issue, Lamb challenges the weight and sufficiency of the evidence supporting his conviction for the possession of between two and ten grams of a controlled substance. The testimony at trial established that Lamb swallowed the methamphetamine after chewing up the plastic bag it was kept in. His stomach contents were then removed and samples, totaling 80 grams, were confirmed by laboratory analysis to contain methamphetamine. The technician who performed the analysis testified that methamphetamine is usually distributed in a powder mixture and that the powder had dissolved in Lamb’s stomach contents. The technician testified that he could not separate the powder containing methamphetamine from the rest of the stomach contents, only determine that the contents did, in fact, contain methamphetamine.

¶ 7. Mississippi Code Annotated section 41-29-115(A)(c)(l) provides that “[a]ny material, compound, mixture, or preparation which contains any quantity of ... [ajmphetamine” is a controlled substance. For the purposes of the statute, “[t]he weight set forth refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” Miss.Code Ann. § 41-29-139(c).

¶ 8. Lamb acknowledges this authority. His contention on appeal is that water or saline could have been pumped into his stomach during the extraction of its contents, inflating the weight of the contents and thus increasing the penalty. Lamb points to the testimony that the Cl had told authorities he would be found with 1.0 or 1.5 grams of methamphetamine (presumably in its powder form). We find no merit to this argument as the question of how Lamb’s stomach contents were removed was not developed in the evidence before the jury. Lamb’s argument on appeal is supported by nothing but speculation that is, in fact, refuted in record evidence not presented to the jury.

¶ 9. Lamb additionally argues that the statute, as applied, is unfair or violative of legislative intent. This argument is poorly developed and lacks supporting authority. Lamb possessed at least two grams of a controlled substance as defined by statute. We have been presented with no basis in law to change that result.

¶ 10. In his pro se reply brief, Lamb contends his conviction is against the overwhelming weight of the evidence because no plastic bag was shown to have been recovered in his stomach contents. However, the testimony was that Lamb chewed the bag up and that the stomach contents that were closely examined had passed through pipettes that would not have picked up large debris. The fact that no bag remnants were identified in Lamb’s stomach contents goes to the weight of the evidence against him, but given that three officers each testified to personally observing Lamb chew up and swallow a plastic bag, it does not render the guilty verdict against the overwhelming weight of the evidence.

¶ 11. Lamb’s conviction is supported by substantial evidence and is not against the overwhelming weight of the evidence. This issue is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO SELL OR DISTRIBUTE AND SENTENCE AS A SUBSEQUENT DRUG OFFENDER AND A HABITUAL OFFENDER OF THIRTY-TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., IRVING AND, GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . The officers testified they approached Lamb suddenly in three different vehicles, all of which had high-beam headlights trained on Lamb's vehicle.

      . In McCain v. State, 81 So.3d 1055, 1060-61 (¶¶ 11-12) (Miss.2012), a four-judge plurality of the supreme court stated that the result in Gowdy was a product of unfair surprise based on the unique circumstances of that case, rather than any bright-line rule against amending the indictment after conviction. Since the present case is distinguishable from Gowdy, we do not need to address McCain.

      . The reason this defense was not advanced in the trial court appears obvious from medical records offered by the defense during the suppression hearing. They show that 2200 milliliters of saline was pumped into Lamb’s stomach and approximately 2300 milliliters of contents and saline was removed, leading to the conclusion that approximately 100 milliliters of stomach contents were removed (assuming all the saline was removed, which is not a given). The unadulterated contents of Lamb’s stomach clearly would have met the two-gram minimum for conviction under section 41 — 29—139(c)(1)(C).


text:
    Willie Lewis HENRY, Jr. a/k/a Willie Henry, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01750-COA.
    Court of Appeals of Mississippi.
    April 9, 2013.
    Rehearing Denied Aug. 20, 2013.
    Certiorari Denied Oct. 24, 2013.

      George T. Holmes, Jackson, Lisa D. Col-lums, Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., CARLTON, MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Willie Henry was convicted of aggravated domestic violence stemming from an altercation with his girlfriend, Robin Madden, and her adult daughter, Stacy Madden. Robin and Stacy testified that Henry hit Robin in the side of the head with an object. The blow fractured Robin’s skull around her right eye socket and caused her to permanently lose sight in that eye.

¶ 2. The basic outline of events is uncontested. In October 2007, Robin, Stacy, Henry, Stacy’s daughter, and two of Robin’s nephews were living in a “FEMA trailer” in Gulfport. Henry worked the evening shift at a local casino. When he got off work, at midnight, Robin failed to pick him up as had been previously agreed. Later that night, the two returned to the casino to pick up Stacy, who also worked there, and they consumed some alcohol. The altercation occurred around 4:00 a.m., approximately one hour after they returned home.

¶ 3. According to Robin and Stacy, Henry went to bed after they returned home from the casino. Robin and Stacy stayed up a little later, and when Robin joined Henry in the bed they shared, he began berating her. Robin could not remember what Henry said, but she believed he was angry because she had forgotten to pick him up from work. She became upset when he bit her on the wrist hard enough to break the skin. She responded by asking Henry to leave the trailer, and, eventually, by throwing a cell phone the two had shared onto the floor. When Stacy attempted to break up the argument, Henry hit Robin with an object, probably an alarm clock, causing her injuries.

¶ 4. Henry’s version of the events was different. He denied being upset over having to walk home from work since the distance was only about a mile. He characterized Robin as drunk and testified that she went to bed first. Henry, however, went to the emergency room at a local hospital because he was suffering from heart palpitations. After being told he was not a priority and would not be seen immediately, Henry went back home where he found Robin sleeping in their bed with Stacy’s six-year-old daughter. When he attempted to wake Robin to ask her to move over, she responded aggressively, shouting curses and ordering him out of the house. Henry, exhausted and worried about his heart, pled for calm and began undressing for bed. Robin responded by breaking his phone, and when he still refused to leave, called for Stacy. Robin challenged Henry and began physically menacing him, jabbing him in the stomach. Stacy arrived, and she tried to put herself between her mother and Henry, who was backing away. Robin tried to move past Stacy, and in the process, Stacy accidently struck her with an elbow.

¶5. On appeal, Henry contends his attorney was constitutionally ineffective for failing to call Henry’s mother to impeach Stacy with an alleged prior inconsistent statement about whether Stacy actually saw Henry strike Robin. Henry also contends the trial court erred in admitting “double hearsay” when one attending physician testified as to what medical records said Robin had told another physician at the hospital. We find no reversible error, so we affirm.

DISCUSSION

1. Ineffective Assistance of Counsel

¶6. In his first issue, Henry contends his counsel committed a prejudicial error by failing to lay a foundation to call an impeaching witness, Henry’s mother, to testify that Stacy had previously admitted she did not actually see Henry strike Robin. Mrs. Henry testified in a proffer that some time after the incident, she had encountered Stacy at a grocery store. When Stacy described the incident, she told Mrs. Henry she was standing between Robin and Henry and “didn’t see him hit her.” This contradicted Stacy’s testimony in court that she was standing to the side when she saw Henry lunge toward Robin and hit her.

¶ 7. Henry’s counsel did not question Stacy about the prior statement on cross-examination, leading the trial court to hold that Mrs. Henry could not testify to the prior inconsistent statement. See M.R.E. 613(b) (“Extrinsic evidence of a prior inconsistent statement ... is not admissible unless the witness is afforded an opportunity to explain or deny the same....”). Defense counsel attempted to call Mrs. Henry during the trial, and in the ensuing argument, admitted on the record the defense was aware of Mrs. Henry’s potential testimony well in advance of the trial.

¶ 8. Henry’s argument on appeal is that his trial counsel’s failure to lay a proper foundation for Mrs. Henry’s testimony amounted to constitutionally ineffective assistance of counsel. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), “[f]irst, the convicted defendant must show that counsel’s representation fell below an objective standard of reasonableness. Second, the defendant must show there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Hannah v. State, 943 So.2d 20, 24 (¶ 6) (Miss.2006) (citing Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052)).

¶ 9. The threshold question, however, is whether this issue should be addressed on direct appeal. Governing is Mississippi Rule of Appellate Procedure 22(b), which states in relevant part: “Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record.”

¶ 10. It may very well be that Henry’s attorney simply forgot to cross-examine Stacy on the alleged prior statement, but from the record we cannot say with any certainty that it was not deliberate strategy, guided by facts known to counsel but not disclosed in the record. See Rogers v. State, 85 So.3d 293, 297 (¶ 16) (Miss.2012) (“Counsel’s choice of whether to ask certain questions .... [is] presumed strategic....”). To decide this issue on the record alone, this Court would have to speculate on counsel’s motives, and when that is necessary, the question of ineffective assistance of counsel is properly left to post-conviction proceedings where additional evidence can be introduced. See Mitchell v. State, 90 So.3d 584, 596-97 (¶ 35) (Miss.2012). After due consideration, we conclude the facts upon which this assertion of error is based are not fully apparent from the record. We deny relief without prejudice.

2. Medical Records/Hearsay

¶ 11. Robin Madden was initially treated in the emergency room at Gulfport Memorial Hospital. Shortly thereafter she was transferred, with some haste, to the University of Mississippi Medical Center in Jackson. At UMC she was attended by Dr. James Jordan, a facial plastic surgeon, who ultimately performed the surgery to reconstruct her skull. In his remaining issue, Henry contends the trial court erred in allowing Dr. Jordan to testify to knowledge he obtained from medical records produced at Gulfport Memorial. Dr. Jordan testified the records indicated Robin had reported her injuries “result[ed] from being assaulted ... by her boyfriend.” According to Henry, this testimony was inadmissible hearsay within hearsay.

¶ 12. After reviewing the record, we do not think it is necessary to address whether the testimony was admissible. Mississippi Rule of Evidence 103(a) states that “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected....” Both Robin and Stacy testified that Robin was injured when she was struck by Henry. Moreover, another witness, Officer Julian Slaughter, who interviewed Robin at Gulfport Memorial a few hours after the incident, testified without objection that Robin had attributed her injury to an assault by Henry. Any error in admitting Dr. Jordan’s testimony to the same effect was harmless. We could not find reversible error on this point.

¶ 13. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED DOMESTIC VIOLENCE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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