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    Timothy Joseph PATTERSON a/k/a Timothy Patterson, Jr. a/k/a Timothy J. Patterson a/k/a Timothy Patterson, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00293-COA.
    Court of Appeals of Mississippi.
    May 14, 2013.
    Rehearing Denied Aug. 20, 2013.
    Certiorari Denied Jan. 9, 2014.

      Jerry L. Bustin, Forest, Kelly Lee Stri-bling, Sebastopol, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Scott County Circuit Court found Timothy Joseph Patterson guilty of murder. The circuit court sentenced Patterson to life in the custody of the Mississippi Department of Corrections (MDOC). Patterson appeals and claims: (1) the circuit court erred when it denied his request for a manslaughter instruction; (2) he had ineffective assistance of counsel; (3) the circuit court erred when it held that he would not be permitted to claim as a defense that he was insane, because he had not timely notified the prosecution of his intent to raise a defense based on insanity; (4) the circuit court erred when it held that he was competent to be tried; (5) there was insufficient evidence to convict him of murder; (6) the jury’s verdict is contrary to the overwhelming weight of the evidence; and (7) he should be awarded a new trial based on the cumulative effect of the circuit court’s errors. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Patterson graduated from Belhaven University on May 8, 2010. That night, he met with some of his friends from high school, who had planned to watch a pay-per-view fight at a “barn” that Jim Marler owned in Scott County. Approximately twelve to fifteen people went to Marler’s bam. Most of the attendees were drinking. By 2:30 a.m. the following morning, there were still a few people remaining. Marler, Patterson, Luke Baugh, Kevin Gordon, and Michael Guy drove to a couple of different locations to socialize, one of which was Tracy Arinder’s farm. They did not stay at Arinder’s farm long, because Marler and Arinder began to argue. According to Marler, he was walking away from Arinder when Arinder hit him from behind. Arinder caused Marler to hit his head on the running board of his truck. Guy did not leave with Marler’s group. There was some indication that Guy did not approve of Marler’s disagreement with Arinder.

¶ 3. Marler, Patterson, Kevin Gordon, and Baugh drove back to Marler’s barn. Gareth Henry and Kevin Gordon’s brother, Ken Gordon, arrived at Marler’s barn sometime around 3:00 a.m. Patterson was holding a semi-automatic pistol that Mar-ler owned. Marler testified that Patterson must have taken the pistol out of Marler’s truck, but Patterson later disputed that. In any event, witnesses testified that Patterson was not behaving aggressively at that time. A short time later, Patterson fired Marler’s pistol into the air. Because Patterson was inebriated, Baugh took the pistol from Patterson, removed the magazine from the pistol, ejected an unfired round from the pistol’s chamber, and left the pistol on a table. The magazine changed hands, but it was eventually hidden away from Marler’s pistol.

¶4. In the meantime, Guy got a ride back to Marler’s barn. Patterson had picked up Marler’s pistol again, and he somehow found the hidden magazine. Five eyewitnesses testified that without any provocation from Guy or any indication of a dispute between Guy and Patterson, Patterson suddenly shot Guy in the head at point-blank range. Patterson then turned around toward a group of bystanders and fired the pistol once in their general direction. Fortunately, Patterson did not hit any of the bystanders, who quickly scattered out of Marler’s barn. However, Patterson then turned back around, stood over Guy, and shot Guy in the head again.

¶ 5. Meanwhile, Henry ran to his truck and armed himself with his own pistol while trying to call 911. Marler ran to his brother’s house and also called 911. Patterson had tucked Marler’s pistol into the waistband of his shorts. As Patterson walked toward Henry, Henry warned Patterson to stay where he was. As Henry kept his pistol aimed at Patterson, Ken Gordon removed Marler’s pistol from Patterson’s waistband. Patterson reportedly said that he wanted to kill himself. Henry kept Patterson in one spot until law-enforcement officers were able to respond to the scene.

¶ 6. Deputy Sheriff Brad Ellis of the Scott County Sheriffs Department was the first responder at the scene, although other law-enforcement officers arrived shortly after Deputy Ellis. Deputy Ellis and Officer Jimmy Scott Thompson of the Morton Police Department took Patterson into custody. Investigator Willie Anderson swabbed Patterson’s hands for gunshot residue. Jacob Burchfield of the Mississippi Crime Laboratory later found that particles of gunshot residue were present on the samples that Investigator Anderson had taken. Additionally, Patterson’s fingerprints were retrieved from Marler’s 9mm pistol.

¶ 7. Patterson was indicted for murder. He pled not guilty and opted for trial. Four days before Patterson was scheduled to go to trial, Patterson’s trial attorney submitted notice that Patterson intended to claim that he had been insane when he shot Guy. And just before Patterson’s trial commenced, his trial attorney moved for a continuance based on the concept that Patterson was incompetent to be tried. The events that transpired during Patterson’s competency hearing will be discussed later. Suffice it to say, the circuit court denied Patterson’s motion for a continuance based on the circuit court’s conclusion that Patterson was competent to be tried. The circuit court also granted the prosecution’s motion to preclude Patterson from raising a defense based on insanity because Patterson had provided insufficient notice of his intent.

¶ 8. At trial, the prosecution presented numerous eyewitnesses who testified that Patterson had shot Guy. Those eyewitnesses also testified that Patterson and Guy had not been arguing or acting in any way that could have provoked Patterson’s behavior. The prosecution also called numerous law-enforcement officers and expert witnesses who testified regarding their involvement in the investigation that followed.

¶ 9. Patterson called several character witnesses, who all testified that Patterson was a peaceful, honest person. Additionally, Patterson took the stand. He testified that he could not remember shooting Guy. According to Patterson, he had only met Guy that night, but they had gotten along well. However, he remembered that Guy did not leave Arinder’s barn with Marler because Guy had sided with Arinder. Patterson admitted that he had been drinking that night. He could not confirm or deny that he had killed Guy, but he speculated that someone could have possibly drugged one of his drinks.

¶ 10. The jury found Patterson guilty of murder. The circuit court sentenced Patterson to life in the custody of the MDOC. Following unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOY) or a new trial, Patterson appeals.

ANALYSIS

I. MANSLAUGHTER INSTRUCTION

¶ 11. Patterson claims the circuit court erred when it refused his request to instruct the jury that it could find him guilty of manslaughter. Patterson submitted a two-page proposed jury instruction designated as D-6. The circuit court gave the first page of instruction D-6. However, the circuit court refused the second page of instruction D-6, which stated:

If the State has failed to prove beyond a reasonable doubt that ... Patterson acted willfully, with malice aforethought[,] and with premeditated design, then you are to not find [Patterson] guilty of murder; however you should continue your deliberations to consider elements of the crime of manslaughter.
If you find from the credible evidence in this case beyond a reasonable doubt th[at] ... Guy was a living person and that ... Patterson did kill ... Guy but without malice or premeditated design, by the use of a deadly weapon, not in necessary self-defense[,] at a time when he had the mental capacity to know right from wrong, and without authority of law, then you may find ... Patterson[ ] guilty of manslaughter.
If the State has failed to prove any one or more of the elements of manslaughter beyond a reasonable doubt, then you shall find [Patterson] not guilty of manslaughter.

The circuit court refused the second page of instruction D-6 because there was no evidence to support a manslaughter instruction. Patterson claims the circuit court’s decision prohibited him from presenting his defense theory that he lacked deliberate design to kill Guy.

¶ 12. Whether to give or refuse proposed jury instructions is within the sole discretion of the circuit court. Victory v. State, 83 So.3d 370, 373 (¶ 12) (Miss. 2012) (citation omitted). An appellate court reviews the circuit court’s decision according to the abuse-of-discretion standard. Id. Additionally, we review the jury instructions as a whole, without singling out one individual instruction. Id. “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id. (citation omitted). “If the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id.

¶ 13. On appeal, Patterson does not indicate which manslaughter theory his instruction was intended to address. That is, Patterson does not argue that the evidence warranted an instruction that he acted in the heat of passion. See Miss. Code Ann. § 97-3-35 (Rev.2006) (“The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.”) Similarly, Patterson does not claim that he acted with culpable negligence when he killed Guy. See Miss. Code Ann. § 97-3-47 (Rev.2006) (“Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter”). Patterson seems to argue that he was entitled to a manslaughter instruction because the jury could have found that he did not kill Guy with malice aforethought or deliberate design.

¶ 14. “Lesser-included offense instructions should be given if there is an evidentiary basis in the record that would permit a jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater offense.” Hobson v. State, 730 So.2d 20, 26 (¶ 22) (Miss. 1998) (citation omitted). There was no evidentiary basis that would have allowed the jury to find Patterson guilty of manslaughter but not guilty of murder. Five eyewitnesses testified that they saw Patterson shoot Guy in the head without any provocation. Five eyewitnesses also testified that Patterson then stood over Guy and shot him in the head again. Patterson testified that he did not remember shooting Guy. There was no evidence that Patterson acted in the heat of passion, with culpable negligence, or in any manner of self-defense. Under the circumstances, if the jury would have found that Patterson did not kill Guy with malice aforethought or deliberate design, the proper resolution would not have been to find that Guy was guilty of manslaughter. Under those circumstances, the jury should have found that Guy was simply not guilty of murder. Because there was not an evidentiary basis to support a manslaughter instruction, we find that the circuit court acted within its discretion when it denied Patterson’s request. It follows that there is no merit to this issue.

II. INSANITY DEFENSE

¶ 15. Patterson’s trial was scheduled for Tuesday, January 18, 2011. A state holiday fell on the Monday before Patterson’s trial. On Friday, January 14, 2011, Patterson filed a motion for a continuance based on the concept that he was not competent to stand trial. The circuit court heard Patterson’s motion the same day that Patterson filed it. During that hearing, Patterson’s defense team never mentioned any intent to rely on an insanity defense.

¶ 16. After the hearing, Patterson filed a notice of intent to present an insanity defense. The prosecution filed a motion in opposition and argued that Patterson should not be allowed to present an insanity defense. The prosecution noted that Patterson had failed to comply with the notice requirements of Rule 9.07 of the Uniform Rules of Circuit and County Court. The prosecution further noted that it had several conversations with Patterson’s defense team to determine whether Patterson intended to rely on an insanity defense. According to the prosecution, in December 2010, Patterson’s defense team had indicated that Patterson would not rely on an insanity defense. Finally, the prosecution noted that because the following Monday was a state holiday, the prosecution would have no time to rebut Patterson’s insanity defense. Ultimately, the circuit court held that Patterson would not be allowed to present an insanity defense because Patterson had failed to provide timely notice of his intent to do so.

¶ 17. Patterson claims the circuit court erred. According to Patterson, the prosecution had more than ten days’ notice that Patterson intended to present an insanity defense, because sometime between Christmas 2010 and New Year’s Eve, Patterson had informed the prosecution that he intended to call Dr. Mark Webb as a witness. Patterson also argues that the circuit court should have considered some lesser sanction other than preclusion of his insanity defense, although Patterson does not suggest an appropriate lesser sanction. Regardless, Patterson argues that the circuit court’s decision violated his Sixth Amendment right to compulsory process and his Fifth Amendment due-process right to present his defense theory to the jury.

1118. Rule 9.07 provides, in part:

If a defendant intends to rely upon the defense of insanity at the time of the alleged crime, the defendant shall, within the time provided for filing pretrial motions or at such later time as the court may direct, serve upon the prosecuting attorney and the clerk of the court a written notice of the intention to offer a defense of insanity. If there is a failure to comply with the requirements of this subsection, the court may use such sanctions as it deems proper, including:
1. Granting a continuance, and, in its discretion, assessing costs against the appropriate attorney or party;
2. Limiting further discovery of the party failing to comply;
3. Finding the attorney failing to comply in contempt; or
4. Excluding the testimony of appropriate witnesses.
The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.
Within ten days thereafter, but in no event less than ten days before the trial unless the court otherwise directs, the defendant shall serve upon the prosecuting attorney the names and addresses of the witnesses upon whom the defendant intends to rely to establish the defense of insanity.

Patterson’s trial attorney gave the prosecution notice of Patterson’s intent to rely on an insanity defense on the Friday before Patterson’s trial, which began on a Tuesday following a state holiday. Furthermore, Patterson’s trial attorney later explained that although he consulted with a psychiatrist and a psychologist, both experts had opined that Patterson did not have a viable insanity defense. However, shortly before Patterson’s trial was scheduled to commence, psychiatrist Dr. Mark Webb met with Patterson and concluded that Patterson was legally insane at the time of Guy’s death based on the volume of alcohol Patterson had consumed. Patterson’s trial attorney filed his insanity-defense notice “just in case,” but Patterson’s trial attorney later explained that he did not think that Patterson had a viable insanity defense because Dr. Webb’s opinion was based on voluntary intoxication, which is not an acceptable defense in Mississippi. “It is well established that voluntary intoxication is not a defense in Mississippi.” Adams v. State, 62 So.3d 432, 441 (¶ 31) (Miss.Ct.App.2011) (citing Smith v. State, 445 So.2d 227, 230-31 (Miss.1984)).

¶ 19. Additionally, sometime between the previous Christmas and New Year’s Eve, Patterson had given the prosecution notice of his intent to call Dr. Webb as a witness. However, Patterson never elaborated on the scope of Dr. Webb’s anticipated testimony. It was certainly not within the time contemplated in Rule 9.07 when Patterson finally indicated that Dr. Webb was anticipated to testify that Patterson was legally insane at the time that he killed Guy. Based on the foregoing, we do not find that the circuit court erred when it prohibited Patterson from relying on an insanity defense. It was within the circuit court’s discretion to do so, considering Patterson’s last-minute notice. Furthermore, the circuit court’s decision did not prejudice Patterson because Patterson’s insanity theory was based on his voluntary intoxication, which is not a legitimate defense in Mississippi. Therefore, there is no merit to this issue.

III. COMPETENCY

¶ 20. Prior to Patterson’s trial, the circuit court conducted a hearing to determine whether Patterson was competent to stand trial. During that hearing, Dr. Webb testified that Patterson perceived and understood the nature of the proceedings that he faced. Dr. Webb also testified that Patterson was capable of consulting with his attorneys with a degree of rational understanding. According to Dr. Webb, Patterson had no psychiatric problems. Regardless, Dr. Webb testified that Patterson was not competent to stand trial because Patterson claimed that he could not remember shooting Guy. Dr. Webb opined that Patterson’s claimed memory loss was due to Patterson’s consumption of alcohol on the night that Guy was killed.

¶ 21. Officer Thompson also testified during Patterson’s competency hearing. Officer Thompson testified that when he arrived at the scene, Patterson said, “Oh, God, what have I done?” Officer Thompson further testified that Patterson said, “I shot him.” According to Officer Thompson, Patterson told him where he could find Marler’s pistol. Dr. Webb testified that he was unaware of Patterson’s statements to Officer Thompson when Dr. Webb concluded that Patterson was not competent to stand trial. Dr. Webb admitted that Patterson’s statements to Officer Thompson “would tend to go against what Mr. Patterson has been saying.” Dr. Webb further admitted that Patterson’s statements to Officer Thompson did “draw into question” whether Patterson’s claimed loss of memory was genuine or feigned.

¶ 22. The circuit court held that Patterson was competent to stand trial. Patterson claims that the circuit court erred. According to Patterson, his “inability to recall the shooting severely hampered his ability to assist his counsel in his defense.” Patterson also argues that his claimed loss of memory “obviously impaired his ability to testify in his own defense.” Patterson concludes that the circuit court’s decision that he was competent to stand trial resulted in the denial of his rights to due process.

¶ 23. The Mississippi Supreme Court has held:

It is a denial of due process and contrary to public policy to try a defendant when it appears to the trial court that there is a probability that [the] defendant is incapable of making a rational defense. When the competency of [the] defendant to stand trial is raised, the trial court should conduct a hearing pri- or to the trial to determine whether there is a probability that the defendant is incapable of making a rational defense. If the trial court finds that there is not sufficient proof to show a probability that [the] defendant is incapable of conducting a rational defense, he should make such finding a matter of record. The case may then proceed to trial on the merits. [An appellate court] may not overturn that finding unless [it] was manifestly against the overwhelming weight of the evidence. The evidence must show more than a possibility that the defendant is incompetent to stand trial.

Bridges v. State, 807 So.2d 1228, 1230 (¶ 10) (Miss.2002) (citations and quotations omitted).

¶24. Patterson is a college graduate. There was no evidence that he had any psychological or psychiatric disorders that would have prevented him from “conducting a rational defense.” Patterson’s lack-of-competency argument is based entirely on the premise that although he could remember the night of Guy’s death until near the moment Guy was killed, he could not remember whether he had actually killed Guy. Furthermore, Patterson claimed his loss of memory was related solely to his voluntary alcohol consumption.

¶ 25. This is an issue of first impression in Mississippi, as neither this Court nor the Mississippi Supreme Court has addressed this precise question. However, the Fifth Circuit has declined “to hold that amnesia per se constitutes incompetency to stand trial.” United States v. Swanson, 572 F.2d 523, 526 (5th Cir.1978). Instead, the Fifth Circuit held that “the fundamental fairness of trying an amnesiac defendant may vary depending on the crime and the circumstances surrounding the claimed loss of memory....” Id. Consequently, the Fifth Circuit held in Swanson that “the propriety of trying an amnesiac defendant is a question to be determined according to the circumstances of each individual case.” Id. “Because nonpathological amnesia may be difficult to ascertain, the [trial] judge is in the best position to make a determination between allowing amnesia to become an unjustified haven for a defendant and, on the other hand, requiring an incompetent person to stand trial.” Id.

¶ 26. In Swanson, the Fifth Circuit stated that a trial court should consider whether granting a continuance would impact an amnesiac defendant’s ability to testify at a later date. Id. Specifically, the Fifth Circuit said that “[granting a continuance to a defendant whose amnesia has been diagnosed as temporary may materially increase his ability to stand trial.” Id. However, “a presently competent defendant whose amnesia seems permanent would not benefit from a continuance ... because ... the recall of other witnesses would decrease, making it more difficult to give the amnesiac defendant a fair trial.” Id. at 526-27.

¶27. Prior to Patterson’s trial, Dr. Webb testified that he could not “state to a reasonable degree of certainty that [Patterson] would ... ever be able to recall those facts.” Dr. Webb added, ‘We’re now approximately eight months, nine months out. I don’t think they’re going to come back.” Stated differently, Dr. Webb opined that Patterson was unlikely to recollect his lost memories of the precise moment that Guy was killed. To reiterate, Patterson was able to remember much of the evening that Guy was killed, but he claimed that he could not remember the precise moment when Guy was killed. Patterson did not deny that he killed Guy. Patterson simply testified that he could not remember that moment. However, five other eyewitnesses were able to remember that moment. They all consistently testified that without provocation, Patterson shot Guy in the head. They all testified that Patterson then stood over Guy and shot him in the head again.

¶ 28. We note the following portion of the Rhode Island Supreme Court’s reasoning in a similar case:

Inevitably in this jurisdiction and others[,] persons will be charged with crimes for which they have no memory. The causes of their amnesia may vary from psychological or physical trauma to drug or alcohol-induced blackout.... [L]ack of memory in murder cases has been a common and frequent defense. Although the expressions differ, they all amount to the same thing. Cases abound with commonly used statements or testimony by a person accused of murder that “I don’t remember anything”; “my mind went blank”; “I blacked out”; “I panicked and don’t remember what I did or anything that happened.” Our criminal codes have been born of the societal interest in apprehending and punishing those who are guilty of serious crimes. We do not wish to provide a means of evading trial to those who are charged with criminal activity but cannot recall such activity owing to fortuitous circumstances or otherwise.

State v. Peabody, 611 A.2d 826, 832 (R.I. 1992) (footnote and citations omitted). Facing a similar question, the Texas Court of Criminal Appeals has stated that “no case yet reported has held that the inability to recall the event charged because of amnesia constitutes mental incapacity to stand trial.... ” Morris v. State, 301 S.W.3d 281, 292 (Tex.Crim.App.2009). Consequently, the Morris court compared “a defendant’s amnesia ... to ‘missing’ evidence.” Id. at 293. According to the Morris court:

In his plight, the amnesiac differs very little from an accused who was home alone, asleep in bed, at the time of the crime or from a defendant whose only witnesses die or disappear before trial. Furthermore, courts, of necessity, must decide guilt or innocence on the basis of available facts even where those facts are known to be incomplete, and the amnesiac’s loss of memory differs only in degree from that experienced by every defendant, witness, attorney, judge, and venireman. How much worse off is a generally amnesic defendant on trial for murder, for example, than one who remembers all but the dispositive fact: who struck the first blow?

Id. Ultimately, the Morris court held that “there was ample evidence that [the] appellant was competent to stand trial because he had (1) a sufficient present ability to consult with the lawyer with a reasonable degree of rational understanding; and (2) a rational as well as factual understanding of the proceedings against him.” Id. at 294.

¶ 29. We do not find that the circuit court’s decision that Patterson was competent to stand trial was manifestly against the overwhelming weight of the evidence. The circuit court heard Dr. Webb’s expert testimony that Patterson perceived and understood the nature of the proceedings that he faced. Dr. Webb also testified that Patterson, a college graduate, was capable of consulting with his attorneys with a degree of rational understanding. Patterson had no psychiatric problems. Additionally, Dr. Webb testified that Patterson’s claimed loss of memory was unlikely to change. That is, Dr. Webb testified that Patterson was unlikely to recover the memories that he claimed to have lost. There is no merit to this issue.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 30. Patterson claims his three retained trial attorneys — Thomas Royals, Thomas Mayfield, and Constance Slaughter-Harvey — rendered ineffective assistance for multiple reasons. In general, we should address the merits of an ineffective-assistance-of-eounsel claim on direct appeal only when “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Robinson v. State, 68 So.3d 721, 723 (¶ 10) (Miss.Ct.App.2011) (citation omitted). However, Patterson’s appellate counsel called Royals as a witness during the hearing on Patterson’s post-trial motions. The record contains Royals’s explanations regarding his strategy during Patterson’s trial. In any event, on direct appeal, “[rjeview ... of an ineffective-assistance-of-counsel claim is confined strictly to the record.” Id.

¶ 31. Patterson must prove: (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In so doing, Patterson faces the “strong presumption that counsel’s performance falls within the range of reasonable professional assistance.” Robinson v. State, 68 So.3d at 723 (¶ 9). To overcome that presumption, Patterson “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

¶ 32. “When determining if both prongs of the Strickland test have been met, deficient performance and resulting prejudice from those deficiencies, this Court must look to the totality of the circumstances.” Payton v. State, 708 So.2d 559, 563 (¶ 12) (Miss.1998).

A.Admission that Patterson Shot Guy

¶ 33. According to Patterson, during closing arguments, Royals was ineffective because he admitted that Patterson shot Guy. Patterson claims Royals essentially conceded that Patterson was guilty of murder. Patterson’s argument is based on the following portion of Royals’s closing argument:

Here, what you have is a world of explanations, a world of reasons to believe that there has not been a murder here. Something else caused ... Patterson’s behavior. Not meanness, not a spirit to kill, not a robbery, not hate, not jealousy; something that we don’t know about that maybe somebody put a trick on him, dropped something in his drink. He went crazy, he started shooting.

¶ 34. We disagree that Royals conceded Patterson’s guilt. Royals argued that Patterson did not kill Guy with deliberate design. Consequently, Royals argued that Patterson was not guilty of murder. There is no merit to this allegation.

B. Involuntary-Intoxication Instruction

¶ 35. Next, Patterson argues that his trial attorneys-were ineffective in that they did not request an involuntary-intoxication instruction. Patterson speculated that someone could have possibly put some drug in one of his drinks to cause him to shoot Guy. But there was no evidence that Patterson was involuntarily intoxicated. Consequently, there was no evidence to support an involuntary-intoxication jury instruction. A circuit court may refuse a jury instruction that has no foundation in the evidence. Victory, 83 So.3d at 373 (¶ 12). Patterson’s trial attorneys’ decision not to pursue a jury instruction that had no evidentiary basis did not prejudice Patterson. There is no merit to this issue.

C. Untimely Notice of Patterson’s Insanity Defense

¶ 36. Finally, Patterson claims his trial attorneys were ineffective because they did not timely put the prosecution on notice that Patterson would rely on an insanity defense. However, during the hearing on Patterson’s motion for a JNOV, Royals explained his decision not to pursue an insanity defense. Royals testified that he did not pursue an insanity defense for multiple reasons. Specifically, Royals explained:

First of all, Dr. Webb, as you notice from his report, never identified any major mental illness in [Patterson] which would have compromised his capacity to distinguish right from wrong or to impair his competency to stand trial. Secondly, Dr. Webb’s conclusion was that he was basically suffering from an alcoholic blackout. I have dealt with insanity defense[s] before, and I do know that in Mississippi!!,] voluntary intoxication is neither a defense nor a mitigator. So I was aware of that. But, as you said, I gave the notice just in case....
... I think in addition to the notice issue, ... [the trial judge] would have had an alternative reason for excluding the testimony — his testimony, that being that voluntary intoxication is not a defense to a criminal action in Mississippi.
And I’m also not sure that had it come to that, that I could have — as an officer of this [c]ourt[,] that I could have asserted [an insanity] defense with a straight face[,] to be honest with you.
Because, first of all, Dr. Webb didn’t identify ... what the psychiatrists call [a] major mental disorder. He didn’t identify that. And, secondly, his conclusion was that the reason [Patterson] could not recall [shooting Guy] was because [Patterson] was in a blackout induced by voluntary ingestion of alcohol.
[I did not pursue an insanity defense b]ecause I’ve seen those defenses before where the [defendant forgets what happened or tries to use alcoholism or something as an insanity defense. That just do[es]n’t work. You’re going to get convicted when you’re using that defense. ... I’ll tell you, the two best trial strategies I know after [forty] years [of experience] is they have to prove beyond a reasonable doubt and that there’s the presumption of innocence. And I always use those two strategies and try to show that the defendant did not commit the crime, if I can.

¶ 37. Royals clearly explained that he did not pursue an insanity defense as a matter of trial strategy. Dr. Webb’s opinion was based entirely on the premise that Patterson was essentially insane due to the volume of alcohol that he had consumed. “It is well established that voluntary intoxication is not a defense in Mississippi.” Adams, 62 So.3d at 441 (¶ 31) (citation omitted). We find that Patterson’s trial attorneys’ tactical decision not to pursue an extremely weak, if not nonexistent, insanity defense in lieu of a relatively stronger defense did not prejudice Patterson. There is no merit to this issue.

V. SUFFICIENCY OF THE EVIDENCE

¶ 38. Patterson claims there was insufficient evidence to support the jury’s verdict. The Mississippi Supreme Court has stated:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a] directed verdict or for [a JNOV], the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction .... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 886, 843 (¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine that there was sufficient evidence to sustain the jury’s verdict if the evidence was “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense....” Id. (citations and quotations omitted).

¶ 39. According to Patterson, there was insufficient evidence that he shot Guy with deliberate design to kill him. “[U]nless one expresses his intent, the only method by which intent may be proven is by showing the acts of the person involved at the time, and by showing the circumstances surrounding the incident.” Boyd v. State, 977 So.2d 329, 335 (If 23) (Miss.2008) (citation omitted). Furthermore, one’s “intent to do an act or commit a crime is ... a question of fact to be gleaned by the jury from the facts shown in the case.” Id. Five eyewitnesses testified that Patterson shot Guy in the head from close range. One witness testified that Patterson “just walked back in the barn and walked straight up to [Guy], facing him, and just pulled the gun up and fired it.” Furthermore, Ken Gordon testified that as he was running from Marler’s barn, he looked back and saw Patterson standing over Guy “with the gun pointed down.” Ken Gordon testified that he yelled, “Joe, don’t do it!” According to Ken Gordon, Patterson looked at him “and then [Patterson] just looked back down and shot [Guy] again.” Because there was undisputed testimony that Patterson shot Guy once in the head, and then stood over Guy and shot him in the head a second time, there was sufficient evidence for the jury to conclude that Patterson deliberately killed Guy. There is no merit to this issue.

VI. WEIGHT OF THE EVIDENCE

¶ 40. Next, Patterson claims the jury’s verdict is contrary to the overwhelming weight of the evidence. Patterson’s reasoning in this issue is the same as his reasoning in his issue regarding the sufficiency of the evidence. That is, Patterson claims the overwhelming weight of the evidence supports the conclusion that he did not kill Guy with deliberate design.

¶ 41. This Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). The supreme court has further instructed that when reviewing a trial court’s decision to deny a motion for a new trial:

The motion ... is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, ... the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (footnote, internal citations, and quotations omitted).

¶ 42. Viewing the evidence in the light most favorable to the verdict, the jury could have reasonably concluded that Patterson had deliberate design to kill Guy. Allowing the jury’s verdict to stand would not sanction an unconscionable injustice. Therefore, we find no merit to this issue.

VII. CUMULATIVE EFFECT

¶ 43. According to Patterson, the cumulative effect of the errors committed during his trial requires that we reverse the circuit court’s judgment and remand this matter for a new trial. Patterson seems to suggest that there was some form of a conspiracy against him. Patterson claims that the trial judge was the college roommate of Marler’s father. However, the trial judge expressly denied that he and Marler’s father had ever been roommates. Patterson insinuates that the trial judge “hurried and rushed along” Patterson’s trial to mitigate the likelihood that Marler would have to pay Guy’s family damages incident to a civil trial. Patterson also seems to suggest that the circuit court should have transferred the venue of the trial and sequestered the jury. However, Patterson does not cite any legal authority to support his allegations. Issues unsupported by authority are procedurally barred from appellate review. Cantrell v. State, 830 So.2d 654, 657 (¶ 9) (Miss.Ct. App.2002). Moreover, Patterson’s allegations are not supported by the record. Our review must be confined to what appears in the record. Pulphus v. State, 782 So.2d 1220, 1224 (¶ 15) (Miss.2001).

¶ 44. We have found no errors. It follows that there can be no cumulative effect of errors that do not exist. Harrison v. State, 49 So.3d 80, 85 (¶18) (Miss.2010). There is no merit to this issue.

¶ 45. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Marler owned a large metal building that was equipped with electricity, running water, and satellite television. Marler did not house animals in the building. He used the building to store and repair outdoor equipment. However, the record indicates that witnesses consistently referred to Marler’s building as a "bam.”

      . For example, Patterson’s brief contains allegations that his "defense [was] usurped from underneath him by the trial judge under color of the usual courtroom drama and switche-roo, subject to games played behind the scenes by the good-ole-boy justice system.” Patterson also suggests that he was subjected to:
      the subliminal controls over courts by egotistical roustabouts who dictate the balance of power for courtroom justice by tipping the scales with their personal whims and caprice set into motion by a few good-ole-boy comrades with cocksure grins having connections that lay under protection of darkness and behind-the-scenes play, the interest and monies of a few who have an antithesis interest to the defendant.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Bettye LOGAN, Appellant v. KLAUSSNER FURNITURE CORPORATION d/b/a Bruce Furniture Industries and American Casualty Company of Reading, Pennsylvania, Appellees.
    No. 2012-WC-00429-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Rehearing Denied Sept. 3, 2013.
    Certiorari Denied Jan. 9, 2013.

      Roy O. Parker, Tupelo, attorney for appellant.
    Amy Lee Topik, attorney for appellees.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Bettye Logan was employed by the Klaussner Furniture Corporation d/b/a Bruce Furniture Industries (Klaussner). On October 9, 2003, Logan was injured when her foot became caught in some fabric fibers at work, and she fell. On the day of the accident, she saw Dr. Bruce Longest, who then referred her to Dr. Earnest B. Lowe Jr., an orthopedic surgeon.

¶ 2. On October 10, 2003, Logan visited Dr. Lowe. X-rays revealed that Logan had a fractured fibia and a spiral fracture of the tibia. Dr. Lowe treated Logan by putting a east on her left leg and foot. He noted that her injury would likely take at least three months to heal.

¶ 3. On November 14, 2003, Logan visited Dr. Kim Stimpson, another orthopedist. Dr. Stimpson recommended that Logan continue to wear the cast and return in a month. He also advised her to continue on non-weight-bearing status. On January 9, 2004, Dr. Stimpson recommended a fracture brace to replace the cast. Dr. Stimp-son found that Logan would be unable to return to work from January 20, 2004, through March 20, 2004.

¶ 4. Logan visited Dr. Stimpson again on March 26, 2004. Although the fracture was healing, Logan had some lower-extremity edema in her foot below the fracture base. Dr. Stimpson recommended the removal of the fracture brace, range-of-motion exercises for her knee and ankle, and progressive weight bearing on her right leg. He further opined that Logan was unable to return to work from March 26, 2004, through May 26, 2004.

¶ 5. In an April 23, 2004 visit, Dr. Stimp-son noted that Logan continued to have pain and swelling in her left leg. His report stated: “This appears to be some neuralgia and is most likely secondary to her fracture brace that was applied quite tightly as we noticed at her last visit.” At this time, Logan was ambulatory but still walked with a limp and had significant weakness. Dr. Stimpson returned Logan to limited-work duty, which he suggested should be sitting work only, from April 24, 2004, until May 30, 2004. He later extended the recommendation from May 25, 2004, until July 25, 2004. During this time, Logan was not permitted to work more than two hours at a time and could not lift or push more than ten pounds.

¶ 6. Per Dr. Stimpson’s evaluation, Logan returned to light-duty work for Klaussner in May 2004. In August 2004, the plant manager suggested she take a different position within the plant. However, a new position would have paid less than the $560 per week she was making prior to the injury. In addition, Logan only had experience in the cutting room. Therefore, she took a voluntary layoff. Logan began receiving Social Security disability benefits in May 2005. She applied for other positions in October 2005, but was unsuccessful in finding employment. She has not applied for any jobs since that time.

¶7. At Logan’s last appointment with Dr. Stimpson, she continued to have problems with her leg, which Dr. Stimpson noted was consistent with anterior tibial nerve injury. Dr. Stimpson found that Logan’s recovery was not within what would normally be expected. He recommended that Logan continue her work restrictions, but opined that Logan would be at maximum medical improvement (MMI) by October 2004.

118. Dr. Stimpson then referred Logan to Cornerstone Rehabilitation to undergo an MMI evaluation and a functional capacity evaluation (FCE). On September 22, 2004, David Brick, an occupational therapist, conducted the FCE. He found there was no physical or functional reason that Logan could not perform the light-duty work required by Klaussner.

¶ 9. Hill Rehabilitation Services also performed an FCE on Logan since Logan had attended Hill Rehabilitation Services for physical therapy. She was discharged from physical therapy on September 7, 2004. However, she returned to Hill Rehabilitation Services for an FCE on February 28, 2005. The therapist performing the evaluation found that Logan still had problems with her leg; therefore, she was only suited for sedentary positions where she was allowed to sit constantly and elevate her left leg.

¶ 10. Logan first saw Dr. Rommel Chil-dress, an orthopedic surgeon, on August 1, 2006. He ordered magnetic resonance imaging (MRI) tests on her hip and knee. On Logan’s August 21, 2007 visit, Dr. Chil-dress had reviewed the MRIs and found that Logan had a tear in the medial meniscus. He recommended that she use a cane or crutch and suggested some exercises for her knee. Dr. Childress advised Logan that she would need surgery to repair the tear but that this could be done on an elective basis.

¶ 11. Per her employer’s request, Logan visited Dr. Cooper Terry on February 9, 2009. At the time, Logan still had complaints regarding her knee. Dr. Terry opined that the knee pain and meniscal tear were related to Logan’s work injury. He also recommended a left knee arthros-copy. Logan had the surgery on July 18, 2009. As of September 23, 2009, Dr. Terry deemed Logan to have reached MMI. He assessed a 4% left-lower-extremity impairment and gave her no permanent work restrictions.

¶ 12. Logan filed a petition to controvert with the Mississippi Workers’ Compensation Commission on December 9, 2004. A hearing was held on August 12, 2010. Logan testified at the hearing. She stated that after the accident she had trouble completing daily activities because of her injury. At the time of the accident, Logan was living with her ailing mother, but the accident left her unable to care fully for her mother. Logan’s daughter, Ginnie Graham, had to help her with things such as grocery shopping and driving to doctor’s appointments. Logan stated that when she went to the grocery store, she had to hold on to the shopping cart the entire time and even sit down and rest on occasion. She also is unable to drive long distances. Logan further testified that she now lives with her daughter because “she helps me do several things I can’t do by myself.” With regard to employment, Logan stated she is unable to stand and cannot sit for extended periods without her leg and foot going numb.

¶ 13. Logan’s daughter, Graham, also testified. She stated that after Logan’s accident, she had to begin taking care of her mother and grandmother, as her mother could no longer complete daily activities or care for her ailing mother. According to Graham, Logan still has pain in her leg and cannot sit upright for more than two or three hours before her leg begins to swell.

¶ 14. Two vocational-rehabilitation experts testified as well. Logan’s expert, C. Lamar Crocker, stated that Logan has a 100% loss in the labor market. However, Klaussner’s expert, Jennifer Oubre, found that Logan has transferable skills and remains employable. Oubre asserted that Logan could perform customer service and receptionist-type positions. Although Ou-bre never met with Logan, she based her opinion on Logan’s medical records. However, Oubre admitted, after hearing the testimony of Logan and Logan’s daughter, that “if [their] testimony is true, then, yes, I would have to consider those [statements].” When asked, if the testimony were true whether that would change her mind, Oubre answered in the affirmative.

¶ 15. On July 29, 2011, the administrative judge (AJ) entered an order. The AJ found that Logan had not suffered “any industrial loss of use of her left lower extremity because of her work-connected injuries[.]” The AJ further stated: “Although [Logan] has a permanent medical impairment of 4% to her left lower extremity, a preponderance of the evidence does not support a finding that she sustained any industrial loss of use of her left lower extremity because of the work-connected impairment.”

¶ 16. Logan then filed a petition for review before the full Commission. On February 6, 2012, the full Commission affirmed the decision of the AJ. Logan now appeals, arguing (1) she sustained a 100% permanent and total occupational disability; (2) the full Commission’s affirmance of the AJ’s opinion was against the overwhelming weight of the evidence; (3) the AJ disregarded the opinion of her vocational expert, Crocker, and failed to consider her limited education and special training; (4) the AJ improperly accepted Oubre’s opinion, which was based solely on her review of medical records; and (5) the full Commission erred by failing to find that she was 100% occupationally disabled and unable to return to her previous work. Although Logan cites five issues on appeal, essentially the sole question is whether the AJ and full Commission’s ruling that she had not sustained a 100% permanent and total occupational disability was supported by substantial evidence. Included within this issue is whether the AJ and full Commission considered the relevant testimony and evidence.

DISCUSSION

¶ 17. On appeal, when considering workers’ compensation cases, we must determine whether the decision of the Commission was supported by substantial evidence. Pearson v. Lighthouse Point Casino, 49 So.3d 637, 638 (¶ 7) (Miss.Ct.App.2010) (citation omitted). “Because our review is limited, this Court ‘will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.’ ” Id.

¶ 18. Mississippi Code Annotated section 71-3-7(1) (Supp.2012) states: “Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease.” Disability is defined as an “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss.Code Ann. § 71-3-3(1) (Rev.2011). An occupational disability occurs when the claimant’s medical disability impairs his or her ability to perform the duties of his or her employment. See Union Camp Corp. v. Hall, 955 So.2d 363, 372 (¶ 41) (Miss.Ct.App.2006).

¶ 19. Logan argues that she did, in fact, sustain a 100% permanent and total occupational disability resulting from the work-related injury. She asserts that Dr. Stimpson placed the following restrictions on her, which were never removed: no prolonged standing or walking; no climbing, bending or stooping; no squatting or kneeling; no repeated climbing; weightlifting restrictions; and pushing, pulling, and lifting restrictions of ten pounds. Logan further claims that although she has reached MMI, she still has significant problems with her lower-left extremity.

¶ 20. We find the evidence in this case supports a finding of permanent partial or total disability. Therefore, the Commission erred by finding Logan suffered no permanent disability. First, the lay testimony by Logan and Graham establish that Logan continues to have significant problems with her leg. She is unable to complete various daily tasks and is unable to sit upright for more than a few hours. Both Logan and Graham testified that after sitting for two to three hours, Logan’s leg begins to swell and go numb. This clearly hinders her ability to continue working in even sedentary positions, which the doctors and vocational experts opined would be her only option for employment opportunities.

¶ 21. The vocational specialists’ testimony also supports Logan’s claim of permanent partial or total disability. Logan’s expert, Crocker, testified that Logan has a 100% loss in the labor market. Although the opposing expert, Oubre, testified that Logan could still find gainful employment, she admitted that if the testimony of Logan and Graham were true, she would change her opinion. This is significant because Oubre never spoke with Logan regarding her continuing medical problems when making her initial assessment. Furthermore, Logan was earning $14 per hour at her job at the time of the injury. The positions Oubre found that would be available to Logan earned approximately $7.25 to $8.50 per hour. In addition, the position Klaussner offered her after her injury would have paid less than the $14 she was earning pre-injury. Therefore, at the very least, Logan should have been assessed a loss of wage-earning capacity.

¶ 22. Finally, the medical evidence shows that Logan has a 4% permanent medical impairment. Although Dr. Terry did not assign any permanent work restriction, Logan’s other evaluators found that she had permanent work restrictions. Dr. Stimpson never removed her light-duty work restriction. The Cornerstone Rehabilitation FCE found that she was capable of performing light-duty work. The Hill Rehabilitation Services FCE found that Logan was only suited for sedentary positions in which she is able to sit constantly and elevate her leg. The lay testimony, vocational experts, and medical evidence establish that Logan has suffered a permanent partial or total disability. Accordingly, we reverse and remand this matter to the Commission for a determination of the appropriate award of compensation.

¶ 23. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

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


author: MAXWELL, J.,

text:
    Peter GROSSLEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00784-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.
    Rehearing Denied Oct. 15, 2013.
    Certiorari Denied Jan. 9, 2014.

      Hunter Nolan Aikens, George T. Holmes, Jackson, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Peter Grossley appeals after being convicted of aggravated assault and armed robbery based in part on accomplice testimony. He argues that the testimony was suspect and contradictory and that both convictions should be reversed. While there are some inconsistencies in the accomplices’ testimonies, we find their testimonies are sufficiently corroborated by other evidence to support both convictions. Thus, we reject his challenges to the sufficiency and weight of the evidence and affirm.

Facts and Procedural History

¶ 2. On July 25, 2007, Thomas Moore and Grossley allegedly hatched a plan to rob the Northpark Discount Package Store in Ridgeland, Mississippi. Shortly after discussing the robbery, the two picked up their friend Carey Dobbs, whom they let drive Moore’s rented Chevrolet Malibu. The group next picked up another friend of theirs, Dianne Barnes, an admitted prostitute, who had just met with a client at a nearby Cabot Lodge hotel. As the crew left the hotel and drove towards the liquor store, Moore noticed there were no customers in the store. Believing this was the perfect opportunity to rob the store, Moore had Dobbs pull into the liquor store’s parking lot and told Grossley, “Let’s do it.” At this point, Moore and Grossley concealed their faces with bandanas. Moore got out of the vehicle first, followed a bit after by Grossley. Moore approached the store with his pistol drawn, while Grossley waited behind him providing cover.

¶ 3. Just as Moore walked through the door and raised his .38 revolver, Marshall Williams, the store’s owner, opened fire with his .38-special handgun. As Moore retreated, Grossley allegedly fired several shots in Williams’s direction. Though Williams could not say which of the two masked men actually fired, officers were able to recover two .32 caliber projectiles and numerous .32 caliber bullet fragments from inside the liquor store.

¶ 4. Based on a description given by a security guard working at the Cabot Lodge, officers traced the getaway vehicle to the rental-car company Moore had used. Moore initially denied involvement, but after Williams later identified him from a photographic lineup, Moore admitted participating in the robbery. According to Moore, he had used a .38 caliber revolver while Grossley brandished and fired a .32 caliber revolver. Moore claimed that after the botched heist he threw his .38 caliber revolver in the Ross Barnett Reservoir. With Moore’s assistance, the Ridgeland Fire Department’s dive team recovered the .38 caliber revolver in the lake near Moore’s houseboat.

¶ 5. Moore also implicated Grossley, whom he knew as “Kalo,” and Barnes in the robbery attempt. Grossley, who had allegedly fired the pistol into the store, was charged with aggravated assault and armed robbery, while Moore and Barnes— who both testified at Grossley’s trial — pled guilty to lesser charges and received sentencing recommendations from the State. Moore pled guilty to simple robbery and received a fifteen-year sentence, with the last eight years suspended. And Barnes worked out a deal to plead guilty as an accessory after the fact and received a six-month sentence.

¶ 6. At Grossley’s trial, Moore testified that Grossley had covered his retreat from the liquor store by firing a .32 caliber revolver several times in the liquor-store owner’s direction. Moore also testified that Grossley commented that “if [Gross-ley] wouldn’t have fired then maybe [Moore] would have gotten shot.”

¶ 7. Barnes also testified at Grossley’s trial. Though she denied seeing Grossley with a gun on the night of the attempted robbery, she did remember Moore and Grossley quickly returning to the car after several gunshots were fired. Barnes also heard Moore tell Grossley to check for bullet wounds as they drove away from the store.

¶ 8. Grossley was convicted of aggravated assault and armed robbery. He was sentenced to twenty years on the aggravated-assault charge, with nineteen years suspended, and forty years on the armed-robbery charge, with ten years suspended and five years of supervised probation. The court ordered Grossley’s sentences to run consecutively. The circuit court denied Grossley’s motion for a judgment notwithstanding the verdict (JNOV) or alternatively a new trial.

Discussion

I. Sufficiency and Weight of the Evidence

¶ 9. On appeal, Grossley argues he was entitled to a directed verdict because the State presented insufficient evidence on either count. Alternatively, he requests a new trial, claiming the jury’s verdict was against the overwhelming weight of the evidence.

A. Sufficiency of the Evidence

¶ 10. The purpose of a motion for a JNOV is to test the sufficiency of the evidence. Smith v. State, 839 So.2d 489, 495 (¶ 11) (Miss.2003). When addressing the legal sufficiency of evidence, we consider all evidence in the light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). Credible evidence consistent with guilt must be accepted as true. McClain v. State, 625 So.2d 774, 778 (Miss.1993). We are instructed to give the State the benefit of all favorable inferences reasonably drawn from the evidence. Jones v. State, 20 So.3d 57, 64 (¶ 16) (Miss. Ct.App.2009) (citing Hughes v. State, 983 So.2d 270, 275-76 (¶¶ 10-11) (Miss.2008)). “The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush, 895 So.2d at 843 (¶ 16) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

1. The Charged Offenses

¶ 11. There were two substantive counts in Grossley’s indictment, one charging aggravated assault, the other armed robbery. To prove an aggravated assault, the State had to show Grossley “attempt[ed] to cause or purposefully or knowingly cause[d] bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” The armed-robbery count, on the other hand, required proof of: (1) a felonious taking or attempt to take (2) from the person or from the presence (3) the personal property of another (4) against his or her will (5) “by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.” Miss.Code Ann. § 97-3-79 (Rev.2006).

¶ 12. In addition to the substantive-count instructions, the trial judge also instructed the jury on accomplice liability. Under this long-recognized theory of criminal liability, the jury was entitled to find Grossley guilty of aggravated assault and armed robbery by merely finding Grossley had aided or acted in concert with Moore in the robbery attempt. See King v. State, 47 So.3d 658, 663 (¶ 18) (Miss.2010).

2. Grossley Challenge to the Accomplice Testimony

¶ 13. Grossley first takes issue with the accomplice testimony. As he sees it, because the store owner did not identify him as the second gunman, the State’s case rested solely on the substantially impeached, self-contradictory, uncorroborated accomplice testimony of Moore and Barnes, which Grossley claims is insufficient to sustain his convictions.

¶ 14. Generally, uncorroborated accomplice testimony may be sufficient to convict a defendant. Osborne v. State, 54 So.3d 841, 846 (¶ 22) (Miss.2011). However, this general premise “is inapplicable in those cases where the testimony is unreasonable, self-contradictory or substantially impeached.” Id. (quoting Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995)). The Mississippi Supreme Court has been clear, though, that “[o]nly slight corroboration of an accomplice’s testimony is required to sustain a conviction.” Id. at 847 (¶ 22) (citing Mangum v. State, 762 So.2d 337, 342 (¶ 12) (Miss.2000)). The particular testimony needing corroboration is the portion tying the defendant to the crime. Id. (citing Holmes v. State, 481 So.2d 319, 322 (Miss.1985)).

¶ 15. Our review shows the accomplice testimony implicating Grossley in both crimes was neither unreasonable, nor self-contradictory or substantially impeached. While there were some inconsistencies between the two accomplices, their testimonies were in large part corroborated by the store owner, Williams, and other evidence. For example, Williams testified about a second African American male standing next to the getaway car during the attempted robbery. That man’s face, like Moore’s, was covered with a bandana. Unbeknownst to Williams at the time, Grossley and Moore were the car’s only African American occupants. Dobbs, the driver of the Malibu, is a white male, and Barnes is a female of Asian descent. So Williams’s description of the second masked man tends to support Moore’s testimony that Grossley participated in the attempted robbery.

¶ 16. Second, officers recovered several spent .32 caliber projectiles from inside Williams’s store. At trial, the State’s ballistics expert testified that these bullets had unquestionably been fired from a .32 caliber revolver — not the .38 caliber revolver Moore claimed he displayed during the failed robbery then threw in the lake. We find this forensic evidence, when taken in the light most favorable to the State, more than “slightly corroborates” Moore’s testimony that Grossley provided cover during the robbery attempt by firing a .32 caliber revolver at Williams. The evidence that Grossley shot at the store owner is also sufficient to support the aggravated-assault charge.

¶ 17. Furthermore, even if the jury believed that Moore, not Grossley, was the more culpable of the two, since he had planned the robbery and actually entered the store, the evidence was sufficient to find Grossley guilty under an accomplice-liability theory, on which the jury was instructed. There is sufficient record evidence to establish that Grossley, who had donned a bandana to cover his face and was providing cover to Moore, was “present, consenting, aiding, and abetting the commission of the crime charged.” Brooks v. State, 763 So.2d 859, 862 (¶ 7) (Miss.2000). Thus, we find the accomplice testimony, when combined with the other eyewitness and expert testimony, as well as the physical evidence, is sufficiently corroborated to support both convictions.

B. Weight of the Evidence

¶ 18. Grossley next challenges the weight of the evidence supporting his con-vietions and requests a new trial. His basis for doing so is similar to his attack on the sufficiency of the evidence — his skepticism toward the accomplice testimony.

¶ 19. A motion for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 18). “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). When considering an objection to the weight of the evidence, we view the evidence in the light most favorable to the verdict and “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (citation omitted).

¶ 20. We disagree with Grossley that the verdicts were against the weight of the evidence. While there were some discrepancies between Moore’s and Barnes’s testimonies, this is simply not enough to find sustaining the verdict would be “an unconscionable injustice.” And we note that Moore and Barnes were consistent if not identical on some material matters. For example, both Moore and Barnes agreed on the participants’ seating arrangements in Moore’s rental car both before and after the attempted robbery. They also agreed the only two African American males in the vehicle were Moore and Grossley. Both also similarly described the sequence of events immediately proceeding the shootout. Also, Barnes was not in the vehicle, when Moore and Grossley supposedly discussed the robbery.

¶21. But perhaps most important to our review is the fact that the jury was free to accept the testimony of one accomplice over the other’s, as “issues of weight and credibility of a witness’s testimony are within the sole province of the jury as fact-finder.” Price v. State, 23 So.3d 582, 586 (¶ 17) (Miss.Ct.App.2009) (quoting King v. State, 798 So.2d 1258, 1262 (¶ 14) (Miss.2001)). Here, the jury witnessed the cross examination of both Moore and Barnes and obviously gave some weight to their testimony, particularly Moore’s. Because their testimony was more than slightly supported by corroborating eyewitness testimony and forensic evidence, we find neither verdict was against the weight of the evidence.

II. Ineffective Assistance of Counsel

¶ 22. Grossley also claims his trial counsel was ineffective for failing to request a cautionary instruction about accomplice testimony and for not objecting to prejudicial statements made by the State during closing arguments.

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

¶ 24. After review, we find neither of Grossley’s claims are sufficiently developed on direct appeal, as they indeed may have been trial strategy. As to Grossley’s first claim, that his lawyer was ineffective for failing to seek a cautionary instruction about accomplice testimony, the decision whether to grant such an instruction is discretionary with the trial judge. Our supreme court recently “clar-if[ied] that for a defendant to be entitled to a cautionary jury instruction, it is only necessary that the accomplice’s testimony be uncorroborated.” Williams v. State, 32 So.3d 486, 491 (Miss.2010) (emphasis added). And here we have found the accomplices’ testimony at least slightly corroborated by eyewitness testimony and forensic evidence, so giving such an instruction was discretionary on the trial judge’s part — not mandatory.

¶ 25. Grossley’s other accusation concerns his attorney’s failure to object to what he deems improper remarks by the State during its closing argument. The State argued that Grossley’s attorney essentially defended the case on the premise that Grossley was not even present during the robbery attempt and that Moore and Barnes roped him in to limit their criminal liability when seeking more lenient plea deals. Though there was no objection to this line of argument at trial, Grossley now claims the State impermissibly mentioned that his mere “presence” was enough to convict him of both counts. From our review, this was not the context of the State’s argument, and apparently Gross-ley’s trial counsel did not think so either.

¶ 26. Our appellate courts have been instructed to ‘“strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy. In other words, defense counsel is presumed competent.’ ” Liddell v. State, 7 So.3d 217, 219-20 (¶ 6) (Miss.2009) (quoting Bennett v. State, 990 So.2d 155, 158 (¶ 9) (Miss.2008)). Here, we find nothing to overcome this presumption, but the record is not as developed as it would be in a post-conviction relief proceeding. So we find Grossley’s ineffective-assistance claim would be more appropriately brought in a petition for post-conviction relief, if he chooses to do so. Accordingly, we deny relief on this issue without prejudice.

¶ 27. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS, WITH NINETEEN YEARS SUSPENDED; AND COUNT II, ARMED ROBBERY, AND SENTENCE OF FORTY YEARS, WITH TEN YEARS SUSPENDED, TO RUN CONSECUTIVELY TO THE SENTENCE IMPOSED IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FOLLOWED BY FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . Miss.Code Ann. § 97-3-7(2)(b) (Rev.2006). Effective July 1, 2012, section 97-3-7(2) was amended. 2012 Miss. Laws ch. 514, § 8 (H.B.780). The aggravated-assault provision applicable in this case, which had been codified as section 97 — 3—7(2)(b), is now codified as Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Supp.2012).


author: FAIR, J.,

text:
    Ivana MERRITT a/k/a Ivanna Merritt a/k/a Ivana Marie Merritt, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00809-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Oct. 22, 2013.
    Certiorari Denied Jan. 9, 2014.

      William Andy Sumrall, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Ivana Merritt appeals her conviction of aggravated DUI following a three-day jury trial in the Hinds County Circuit Court. Merritt was sentenced to twenty years’ imprisonment, with five years suspended and fifteen to serve.

¶ 2. She asserts trial court error in allowing her statements to the arresting officer, in allowing the reopening of direct testimony of a prosecution witness without prior cross-examination by the defense, and in instructing the jury. Finding no error, we affirm Merritt’s conviction and sentence.

FACTS

¶ 3. The accident occurred early in the morning of September 26, 2010. That night, a large number of vehicles had parked along Gallatin Street in Jackson between Interstate 20 and Pop’s, a honky-tonk. Some of the parked vehicles were obstructing traffic, so Officer Thaddeus Jones of the Jackson Police Department called for a tow truck to remove them. Robert Bounds, a tow truck driver, arrived on the scene and began loading his wrecker. To do so, he had to park in the road, further obstructing traffic. Officer Jones directed traffic with a flashlight. It was disputed whether Bounds had the flashers on his wrecker on, and there were varying characterizations of how well lit the scene was. While Bounds was attaching the second vehicle to his wrecker, a Chevrolet pickup truck driven by Merritt struck the side of the wrecker and ran over Bounds, carrying him about one and one-half car lengths down the road. Various witnesses to some or all of the accident described Merritt’s vehicle as accelerating before the crash and speeding away from the scene. The collision ripped the sheet metal from the passenger’s side of Merritt’s truck from its headlights to the end of the passenger’s door.

¶ 4. Chris Godfrey, a DUI enforcement officer with the JPD, was at a nearby gas station. When he heard the crash and saw Bounds’s body in the road, he and his partner hopped into their patrol car and chased after Merritt. Merritt ran a red light, got onto the interstate ramp, and then crossed a ditch from the ramp to the frontage road, a maneuver that required the police cruiser to make a u-turn to follow. As the officers closed with Merritt on the frontage road, she side-swiped a concrete barricade and braked hard, coming to a stop a short distance later. Merritt stepped out of the vehicle, threw her keys onto the ground, and she and her passenger surrendered without further incident. The chase was captured on the cruiser’s dash cam, though Merritt’s vehicle is only visible after the officers caught up on the frontage road.

¶ 5. According to Officer Godfrey, Merritt reeked of alcoholic beverages, had bloodshot eyes, slurred her speech, and admitted to having fourteen drinks that night — ten shots of vodka and four Budweiser beers. In the officer’s opinion, she appeared to be intoxicated. A half-empty bottle of vodka was found on the floor in the truck. Merritt refused to submit to a breathalyzer, and no blood test was performed.

¶ 6. Bounds survived, but he spent months in the hospital and was left with permanent impairments.

¶ 7. The theory of Merritt’s defense was that the scene was dark, the road was congested, and she hit the wrecker when she swerved to avoid the door of a parked car that opened suddenly into the road. Merritt testified she was also distracted by her companion, who was upset at being thrown out of the club for stripping on the dance floor. Merritt admitted to drinking that night, though she denied it was fourteen drinks. She testified she had stopped drinking early in the evening and was sober at the time of the accident. She explained her apparent flight by saying that she panicked and had little control over the vehicle because of the damage. She claimed she did not know she had hit a person until the police told her.

¶ 8. Merritt was convicted of aggravated DUI and she appeals, identifying three issues. Since there are two unrelated jury instructions challenged in her third issue, we address four issues.

DISCUSSION

1. Miranda Warnings

¶ 9. In her first issue, Merritt argues the trial court erred in admitting her out-of-court statements to Officer Godfrey regarding how much she drank that night. Merritt contends the court erroneously applied an “exigent circumstances” exception to the Miranda rule. See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶ 10. We can reverse a trial court’s denial of a motion to suppress only “if the incorrect legal principle was applied; if there was no substantial evidence to support a voluntary, knowing, and intelligent waiver of Miranda rights; and if the denial was a result of manifest error.” Scott v. State, 8 So.3d 855, 861 (¶ 22) (Miss. 2008). “The burden lies with the State to prove that a confession is voluntary.” Id. at (¶ 24). “[T]he burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie case for the State on the question of voluntariness.” Id. (citation and quotation marks omitted). “The trial judge must determine beyond a reasonable doubt that a confession was voluntary and knowing and that the defendant was given his Miranda rights prior to any custodial interrogation.” Id. at (¶ 23).

¶ 11. In this case, Officer Godfrey testified he gave Merritt the Miranda warnings after handcuffing her and bringing her to his patrol car, and that she advised that she understood them. This was before she made the statement regarding how much alcohol she had consumed.

¶ 12. Merritt’s real complaint is not with the warnings, per se, but with the officers’ failure to get a written waiver. The “exigent circumstances” comment by the trial judge was in reference to Officer Godfrey’s testimony that Merritt would have had to be taken out of the handcuffs to sign the waiver.

¶ 13. “[0]ral Miranda warnings and waivers are effective if proven to the satisfaction of the trier of fact.” Taylor v. State, 789 So.2d 787, 793 (¶26) (Miss.2001) (quoting Dees v. State, 758 So.2d 492, 495 (¶ 7) (Miss.Ct.App.2000)). At the suppression hearing, Officer Godfrey’s account was uncontradicted. We find no merit to this issue.

2. Recalling Officer Godfrey

¶ 14. During the State’s direct examination of Officer Godfrey, he was asked to identify Merritt in the courtroom. He could not. Merritt declined cross-examination, and the State asked the trial court to reopen its direct examination in an attempt to refresh the officer’s memory. The trial court granted the request, and after being shown Merritt’s driver’s license, which Godfrey had confiscated, he was able to identify her. The driver’s license was admitted into evidence. It was noted on the record that Merritt had changed her hair since the incident. After Godfrey was recalled, Merritt took the opportunity for a thorough cross-examination.

¶ 15. Mississippi Rule of Evidence 611(a) states: “The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” Thus, “it is within the trial court’s discretion to decide whether to allow a witness to be recalled to the stand.” Ellis v. State, 661 So.2d 177, 179 (Miss.1995). “There is no hard and fast rule that a witness, once her testimony is complete, cannot be recalled to the stand.” Ellis v. State, 799 So.2d 159, 161 (¶7) (Miss.Ct.App.2001).

¶ 16. All of the authority presented by Merritt concerns the reopening of the State’s case-in-chief, not recalling a witness. No abuse of discretion has been shown, nor has Merritt shown any prejudice, particularly since the fact that she was driving the vehicle was never in dispute—Merritt’s attorney admitted as much in his opening statement. This issue is without merit.

3. Jury Instruction S-4

¶ 17. In this issue, Merritt challenges the trial court’s giving of instruction S-4, which reads:

“Any person who operates a motor vehicle upon the public highways, roads, and streets of Mississippi shall be deemed to have given consent to tests of their breath for the purpose of determining alcohol concentration by the act of such operation of a motor vehicle.” The instruction largely tracks the language of the statute, Mississippi Code Annotated section 68-11-5 (Supp.2012).

¶ 18. Merritt has two concerns ■with the instruction. First, she contends it was “peremptory” on the issue of her intoxication because it “gave the presumption that [Merritt’s] refusal to submit to a breath test automatically made her intoxicated.” We disagree; a plain reading of the instruction does no such thing. Moreover, evidence of refusal was admissible as evidence of Merritt’s guilt, as provided by Mississippi Code Annotated section 63-11-41 (Rev.2004).

¶ 19. Merritt’s second argument against the instruction is that it impermis-sibly commented on her Fifth Amendment right not to be compelled to testify against herself. The same argument was made and rejected in Ricks v. State, 611 So.2d 212, 214-16 (Miss.1992). It is without merit because “refusal to submit is a physical act rather than a communication.” Id. at 216 (citing South Dakota v. Neville, 459 U.S. 553, 561, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983)).

¶ 20. We find no reversible error in the trial court’s giving instruction S-4.

4. Jury Instruction D-3

¶ 21. Finally, Merritt contends the trial court erred in refusing D-3, which states:

The Court instructs the jury that it is the duty of each and every member of the jury in this case to decide the issues presented for himself/herself, and if after consideration of all the evidence in this case and the instructions of the Court on the law and from consultation with their fellow jurors, there is a single juror who has a reasonable double of the Defendant’s guilt, it is their duty under oath, not to change their vote merely to agree with their fellow jurors, but to favor a verdict of not guilty so long as they entertain such reasonable doubt.

¶22. The Mississippi Supreme Court addressed the refusal of a similar instruction in Fulgham v. State, 46 So.3d 315, 328 (¶ 36) (Miss.2010). The court held:

The trial court denied the instruction as being repetitive and without foundation in the law. We find the jury was properly instructed that the State had the burden to prove its case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Further, when all instructions are read as a whole, we agree that proposed instruction D-54A is repetitious of instruction C-ll....

Id. In today’s case, the trial court gave instruction C-4, which, although more concise than the instruction in Fulgham, sufficiently communicates the same substance:

The verdict of the jury must represent the considered judgment of each juror. In order to return a verdict it will be necessary that each juror agree thereto. In other words, all twelve jurors must agree before a verdict can be rendered by the jury.

In Edlin v. State, 523 So.2d 42, 48-49 (Miss.1988), the supreme court held that what is required is that the jury be instructed its verdict must be unanimous. That was accomplished by instruction C-4.

¶ 23. “In reviewing challenges to jury instructions^] the [reviewing court] does not single out any instruction or take instructions out of context; rather, the instructions are to be read together as a whole.” Wallace v. State, 10 So.3d 913, 916 (¶ 9) (Miss.2009) (citation omitted). “[T]he [trial] court is allowed to refuse an instruction which ... is covered fairly elsewhere.” Id.

¶ 24. This issue is without merit.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF AGGRAVATED DUI AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Mississippi Rule of Appellate Procedure 28(a)(3) requires that ''[e]ach issue presented for review shall be separately numbered in the statement [of the issues].”

      . We must point out that the instruction omits the statutory requirement of "reasonable grounds and probable cause to believe that the person was driving or had under his actual physical control a motor vehicle upon the public streets or highways of this state while under the influence of intoxicating liquor or any other substance which had impaired such person’s ability to operate a motor vehicle.” Miss.Code Ann. § 63-11-5. Merritt has never objected on this basis, apparently because the evidence of probable cause was so overwhelming. Notwithstanding the procedural bar, we find any error in the instruction as given was harmless.

      . Later, when she testified in her own defense, Merritt did claim she was not Miran-dized, but that testimony was not before the trial court in ruling on the motion to suppress.


author: LEE, C.J.,

text:
    Elizabeth McDEVITT, Appellant v. Stanley Jarrell SMITH, II, Appellee.
    No. 2012-CA-01235-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      Eugene A. Perrier, Vicksburg, attorney for appellant.
    Penny B. Lawson, J. Mack Varner, Vicksburg, attorneys for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Elizabeth McDevitt and Stanley Jarrell Smith were married on January 24, 2002, and separated on November 13, 2008. Shortly thereafter, Elizabeth filed a complaint for separate maintenance. Stanley filed a response and a cross-claim for divorce. Ultimately, Elizabeth and Stanley filed a consent for a divorce on the ground of irreconcilable differences. After a hearing, the chancellor granted an irreconcilable-differences divorce. The chancellor divided the parties’ assets and liabilities and denied Elizabeth’s request for alimony.

¶ 2. Elizabeth now appeals, asserting the chancellor erred by: (1) applying the incorrect date in determining the valuation of the assets; (2) denying her request for alimony; and (3) denying her request for attorney’s fees.

STANDARD OF REVIEW

¶ 3. We afford chancellors much discretion in our review of domestic-relations cases. Steiner v. Steiner, 788 So.2d 771, 777 (¶ 18) (Miss.2001). This Court will not disturb a chancellor’s findings unless they are manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard. Mizell v. Mizell, 708 So.2d 55, 59 (¶ 13) (Miss.1998).

DISCUSSION

I. DATE OF VALUATION OF ASSETS

¶4. In her first issue on appeal, Elizabeth contends the chancellor used the incorrect date in evaluating the couple’s assets and liabilities. Elizabeth argues the chancellor should have used June 2011, the month prior to trial, as the valuation date rather than November 2008, the date the couple separated. Elizabeth claims Stanley owes her the difference in valuation of the couple’s estate between the two dates.

¶ 5. The Mississippi Supreme Court has held that “the date of valuation is necessarily within the discretion of the chancellor.” Hensarling v. Hensarling, 824 So.2d 588, 591 (¶ 25) (Miss.2002) (citation omitted). In determining the valuation date, the chancellor noted the parties shared a joint checking account in which they each contributed $250 per pay period to pay for household expenses, but each had separate savings, investments, and retirement accounts. These separate accounts were accumulated through their individual funds. The chancellor found the evidence produced by both parties was insufficient to determine that the parties commingled their investment, savings, and retirement accounts after November 2008. The chancellor did use the value of the marital home from an appraisal completed in October 2010, but only did so because there was no other evidence of the home’s current value. We can find no error by the chancellor in using the date of the separation in valuing the parties’ assets. This issue is without merit.

II. ALIMONY

¶ 6. In her next issue on appeal, Elizabeth claims the chancellor should have awarded her alimony, both periodic and lump sum. In cases such as this, where alimony is denied, “we will interfere only where the decision is seen as so oppressive, unjust[,] or grossly inadequate as to evidence an abuse of discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). When considering a request for alimony, the chancellor must weigh the list of factors as set forth in Armstrong. Id. After an extensive analysis of the factors, the chancellor determined that although the factors weighed in favor of awarding alimony to Elizabeth, the equitable distribution of the marital assets and the size of Elizabeth’s nonmarital assets eliminated the need for alimony. The chancellor had also conducted extensive findings concerning the parties’ marital and nonmarital assets, finding that Elizabeth’s nonmarital assets were valued at approximately $609,000, while Stanley’s nonmarital assets were valued at approximately $57,000. Elizabeth and Stanley had each been awarded approximately $250,000 in marital assets.

¶ 7. Elizabeth is correct that her income is less than Stanley’s due to her health problems. Both parties worked for the U.S. Army Engineer Research and Development Center in Warren County, Mississippi. At the time of trial in July 2011, Stanley’s adjusted gross monthly income was $7,788. Up until early 2009, Elizabeth worked full-time, and her yearly salary was approximately $82,000. Due to health problems, Elizabeth decided to work part-time. At the time of trial, her adjusted gross monthly income was approximately $2,939. However, the chancellor noted the evidence reflected that Elizabeth’s health problems were not totally disabling, she admitted her condition was improving, and she expected to return to full-time work.

¶ 8. Although Stanley’s income exceeded Elizabeth’s, the chancellor ultimately determined Elizabeth’s sizeable nonmarital estate eliminated the need for alimony. We can find no abuse of discretion by the chancellor in ruling so. This issue is without merit.

III. ATTORNEY’S FEES

¶ 9. In her final issue on appeal, Elizabeth contends the chancellor should have awarded her attorney’s fees. Chancellors are to apply the factors set forth in McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982), in granting or denying attorney’s fees. An award of attorney’s fees is a matter largely within the sound discretion of the chancellor. Smith v. Smith, 614 So.2d 394, 398 (Miss.1993). This Court is “reluctant to disturb a chancellor’s discretionary determination [of] whether or not to award attorney’s fees....” Id. (citation omitted). Elizabeth argues she cannot pay her expenses of approximately $24,965 due to her health and part-time employment. However, the chancellor noted the size of the parties’ nonmarital and marital assets in declining to award attorney’s fees to either party. We cannot find any abuse of discretion by the chancellor. This issue is without merit.

¶10. THE JUDGMENT OF THE WARREN COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. JAMES, J., NOT PARTICIPATING.