author: FAIR, J., IRVING, P.J.,

text:
    Stanley DeWayne COLE a/k/a Stanley Cole, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00532-COA.
    Court of Appeals of Mississippi.
    Nov. 20, 2012.
    Rehearing Denied April 23, 2013.
    Certiorari Denied July 18, 2013.

      William R. Labarre, George T. Holmes, Jackson, Jonathan Matthew Eichelberger, Pearl, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   FAIR, J.,

for the Court:

¶ 1. Stanley Cole was indicted for the murder of Latasha Norman in January 2008. He was tried in the Hinds County Circuit Court, convicted of murder, and sentenced to life imprisonment. He appeals his conviction asserting eleven errors. Finding that the trial court failed to properly instruct the jury on the law of manslaughter, we reverse Cole’s conviction and remand this case for a new trial.

FACTS

¶ 2. Cole and Norman were students at Jackson State University (JSU). They were involved in an on-again, off-again romantic relationship for some years. In the fall of 2007, Cole and Norman were out with another couple when an argument escalated into a physical altercation. Norman reported this incident to campus police.

¶ 3. On November 13, Norman did not return from her afternoon class. The next day she was reported missing by her then-current boyfriend, Marquis Smith. Over the next several weeks, JSU police, Jackson police, and the FBI conducted an extensive search for Norman. Cole and his then-current girlfriend, Samone Harris, were interviewed but stated they knew nothing of Norman’s disappearance.

¶4. Detective Juan Cloy of the FBI Violent Crimes Task Force discovered that the carpet lining was missing from the trunk of Harris’s car, which Cole regularly drove. Further investigation revealed traces of blood, and DNA testing confirmed it was a match for Norman.

¶5. When Cole appeared in the Pearl Municipal Court on November 29 to answer a domestic-violence charge stemming from the prior incident with Norman, he was arrested for murder and taken to the Jackson Police Department.

If 6. Upon questioning, Cole revealed the location of Norman’s body. It was quickly found in the area Cole described. Norman’s remains were in an advanced state of decomposition and were immediately transported to Dr. Stephen Hayne for an autopsy. At trial, Dr. Hayne testified that he found an injury on Norman’s chest that was “consistent with a stab wound.” The remains were also sent to Dr. Marie Dan-forth, a forensic anthropologist, for further analysis.

¶ 7. In a second interrogation, Cole confessed to killing Norman. According to Cole, after he picked Norman up from campus, they argued and it turned physical. During their struggle, he hit her in the head and knocked her unconscious. Cole claims he panicked and put her body in the trunk. After he drove around for several hours, he discovered she was not breathing and left her body in the woods.

PROCEDURAL HISTORY

¶ 8. Cole filed several pretrial motions that were denied by the trial judge, including a motion to allow possession of biological evidence, motions in limine to exclude various incidents and photos, a motion to suppress statements and physical evidence, and a motion for a change of venue. After holding a special venire and individual voir dire, the jury was sequestered and a trial ensued. Jury instructions were given for deliberate-design murder, but the defendant’s proposed manslaughter instruction was refused. Cole was convicted of Norman’s murder, and his motions for a judgment notwithstanding the verdict or for a new trial were denied.

¶ 9. Cole now appeals asserting the trial court erred by: (1) applying the wrong legal standard in refusing a jury instruction on manslaughter; (2) denying the motion for a change of venue; (3) refusing to quash or strike the venire; (4) denying challenges for cause as to specific jurors; (5) denying his motion to suppress statements and physical evidence; (6) denying his request for an independent forensic examination of the victim’s remains; (7) excluding the testimony of Dr. Danforth; (8) denying his motion in limine to exclude evidence of the Pearl arrest; (9) barring testimony of Norman’s prior acts; (10) admitting prejudicial evidence with no probative value; and (11) denying his motion in limine to exclude photos of the victim. Cole urges that these cumulative errors necessitate a new trial. Because we find the question of jury instructions disposi-tive, we do not reach Cole’s remaining issues. We address change of venue only to provide guidance on remand.

DISCUSSION

1. Change of Venue

f 10. Cole properly applied to the trial court for a change of venue pursuant to section 99-15-35 of Mississippi Code Annotated (Rev.2007) by presenting a sworn motion supported by two credible affidavits. A presumption of law then arose that an impartial jury could not be obtained in Hinds County, and the State was charged with the burden of rebutting that presumption. See Johnson v. State, 476 So.2d 1195, 1211 (Miss.1985). The Mississippi Supreme Court has listed “certain elements which, when present[,] would serve as an indicator to the trial court as to when the presumption is irrebuttable.” White v. State, 495 So.2d 1346, 1349 (Miss.1986). Those elements are:

(1) Capital cases based on considerations of a heightened standard of review;
(2) Crowds threatening violence toward the accused;
(3) An inordinate amount of media coverage, particularly in cases of:
(a) serious crimes against influential families;
(b) serious crimes against public officials;
(c) serial crimes;
(d) crimes committed by a black defendant upon a white victim;
(e) where there is an inexperienced trial counsel.

Id. The State may rebut the presumption by proving through voir dire that the trial court did, in fact, impanel an impartial jury. Swann v. State, 806 So.2d 1111, 1116 (¶ 19) (Miss.2002). Then, the conviction will stand despite negative pretrial publicity. Johnson, 476 So.2d at 1211 (citing United States v. Harrelson, 754 F.2d 1153, 1159 (5th Cir.1985)).

¶ 11. Under the first element, this case is a “capital case” as defined by statute. Accordingly, we apply a heightened standard of review. Addressing the second element, Cole asserts that “virtual crowds” threatened him with violence by posting anonymous comments on the internet. This Court does not see such internet postings as the modern equivalent of actual crowds physically threatening the accused with violence, so we move to the third indicator. Cole asserts that there has been an inordinate amount of media coverage of his case, making it impossible for him to receive a fair trial. However, there is no evidence that Norman was part of an influential family or held any public office. She was an undergraduate student from Greenville. Similarly, this was not a serial crime; both the victim and the accused are of the same race; and trial counsel was not inexperienced. Therefore, we agree with the trial court that while the presumption that an impartial jury could not be obtained was raised, it was not an irrebuttable presumption.

¶ 12. “The decision to grant a change of venue rests soundly in the discretion of the trial judge.” King v. State, 960 So.2d 413, 429 (¶ 25) (Miss.2007). This Court will not disturb the ruling of the trial court in denying a change of venue if its discretion was not abused. Howell v. State, 860 So.2d 704, 718 (¶ 30) (Miss.2003).

¶ 13. A review of recent case law shows that negative pretrial publicity alone is not enough to show an abuse of discretion in the denial of a change of venue where the trial judge conducts individual voir dire and ensures all selected jurors assert their ability to remain impartial. See Barfield v. State, 22 So.3d 1175, 1184 (¶ 29) (Miss.2009); Byrom v. State, 927 So.2d 709, 716 (¶¶ 13-15) (Miss.2006); Howell v. State, 860 So.2d 704, 720 (¶ 37) (Miss.2003); Swann v. State, 806 So.2d 1111, 1116 (¶¶ 19-21) (Miss.2002).

¶ 14. Cole urges this Court to apply the ruling in Fisher v. State, 481 So.2d 203 (Miss.1985), and reverse the denial of a change of venue. There, the supreme court pointed out that its main concern was the “saturation media coverage” that generated a sense of community fear and disclosed damning facts that would be inadmissible at trial. Id. at 217. It was not only the quantity of coverage, which was substantial, but the quality of coverage that necessitated a change of venue. Because the defendant was repeatedly linked to other murders and his prior convictions were disclosed, he could not receive a fair trial in that county.

¶ 15. In Harris v. State, 537 So.2d 1325, 1328-29 (Miss.1989), the trial court’s denial of a change of venue was affirmed where fifty-two of eighty-two venire members had knowledge of the case. Saturation media coverage was urged as a ground for reversal, but the supreme court held that the facts before it were not comparable to Fisher because the saturation coverage in Fisher linked the defendant to other crimes and inadmissible evidence. Id. at 1328.

¶ 16. More recently, in Welde v. State, 3 So.3d 113, 119 (¶¶ 28-29) (Miss.2009), the supreme court held that there was no abuse of discretion in denying a change of venue even though numerous venire members had seen news coverage of the case. The only venire member to state he had formed an opinion was stricken, and any member with knowledge of the case was given an individual voir dire. Id. at (¶ 26). All who remained as potential jurors affirmed their impartiality. Id. at (¶ 28). Further, the trial court gave careful instructions and sequestered the jury. Id. at (¶¶ 27-29).

¶ 17. Here, Cole argues that the quantity of media coverage his case received required a change of venue. Seventy-seven venire members declared they had knowledge of his case through media coverage, and several newspaper articles covered his prosecution.

¶ 18. While it is clear that Cole’s case received much pretrial publicity, that alone is not enough to require a change of venue. There was very little showing that any inadmissible evidence was released in the press. The testimony at the motion hearing, from all witnesses, was that Cole had not recently been in the news at the time of trial. After Norman’s body was discovered, the media coverage was greatly reduced, and the trial did not occur until over a year later.

¶ 19. More importantly, individual voir dire examination was conducted of all eighty-four venire members, and those twelve who could not set aside pre-formed opinions were excused. The prospective jurors who remained stated under oath that they could be impartial. Once the jury was selected, the trial judge gave clear instructions and sequestered the jury. A heightened level of precaution was taken to ensure Cole received a fair trial. After reviewing the record, we find that an impartial jury was, in fact, impaneled, and that the trial judge did not abuse his discretion in denying a change of venue. While this is a fact-specific inquiry, we note for purposes of remand that an impartial jury can be obtained in Hinds County if the proper procedures are followed.

2. Jury Instructions

¶ 20. Cole asserts that the trial judge erred in refusing his manslaughter instruction and that it was fatally prejudicial to his defense.

¶ 21. A criminal defendant is entitled to a jury instruction that presents “his theory of the case even when ‘the evidence that supports it is weak, inconsistent, or of doubtful credibility.’ ” Banyard v. State, 47 So.3d 676, 682 (¶ 17) (Miss.2010) (quoting Ellis v. State, 778 So.2d 114, 118 (¶ 15) (Miss.2000)). “ ‘[Wjhere the defendant’s proffered instruction has an evi-dentiary basis, properly states the law, and is the only instruction presenting his theory of the case, refusal to grant it constitutes reversible error.’ ” Chinn v. State, 958 So.2d 1223, 1225 (¶ 13) (Miss.2007) (quoting Phillipson v. State, 943 So.2d 670, 671-72 (¶ 6) (Miss.2006)).

¶ 22. However, this entitlement is limited. The court may refuse a lesser-ineluded-offense instruction if — taking the evidence in the light most favorable to the accused, considering all reasonable inferences in his favor, and considering the jury may not be required to believe any evidence offered by the State — no hypothetical reasonable jury could convict the defendant of the lesser offense. Fairchild v. State, 459 So.2d 793, 801 (Miss.1984) (citing Ruffin v. State, 444 So.2d 839, 840 (Miss.1984)).

¶ 23. “In deciding whether lesser[-]ineluded instructions are to be given, trial courts must be mindful of the disparity in maximum punishments.” Boyd v. State, 557 So.2d 1178, 1181 (Miss.1989). Where the question is close, “the doubt should be resolved in favor of the accused.” Brown v. State, 39 So.3d 890, 900 (¶ 37) (Miss.2010) (quoting Davis v. State, 18 So.3d 842, 847 (¶ 15) (Miss.2009)).

¶ 24. First, we must determine if the proposed instruction properly stated the law. Cole’s proposed instruction, D-9, stated: “Manslaughter is defined as 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.” This language tracks section 97-3-35 of the Mississippi Code Annotated (Rev.2006) and is, therefore, a proper statement of the law.

¶ 25. Second, we examine whether the given instructions cover the defendant’s theory of the case. We must consider not only the refused instruction but all of the court’s instructions to determine if there was error in its refusal. Robinson v. State, 40 So.3d 570, 575-76 (¶ 21) (Miss.Ct.App.2009). The jury was given fourteen instructions ranging from its duty to apply the law, to selecting a foreman, to the form of the verdict. However, it was only instructed on one crime, murder. The crime of manslaughter, a lesser-included offense of murder, does not appear in the given jury instructions. In fact, the record reveals that the jury submitted a question to the trial judge asking for the definition of manslaughter. The judge replied, “Manslaughter is not an issue in this case.” It is apparent that no jury instruction was issued on Cole’s theory of the case.

1126. Finally, we look to whether there was a sufficient foundation in the evidence for the requested instruction. In considering the lesser-included offense of manslaughter, we must determine if, taking the evidence in the light most favorable to Cole, no hypothetical reasonable jury could convict him of the lesser offense. Certainly, Cole’s confession supports his manslaughter theory. He stated:

We just kept arguing and kept fighting[,] and uh, one thing just led to another. We was just fighting[,] and just cussing and just, just really just got out of hand[,] and before I knew it[,] I hit her too hard and knocked her out and just panicked and wasn’t thinking straight, scared. I didn’t know if she was still alive at that moment or what[,] but I just panicked and just put her in the trunk .... we was just fighting all over ... she was fighting back, I was fighting back ... we was just going crazy.

¶27. The physical evidence could also support Cole’s theory of the case. No weapon was ever found, and the injury identified by Dr. Hayne was only “consistent with” a stab wound. Dr. Hayne never testified to a reasonable degree of medical certainty as to the cause of death. He could not exclude a head injury as the cause of death, and when asked, he responded: “I didn’t see that, counselor. Of course, a lot of the soft tissue was gone. It was skeletal, so I would not see a soft tissue injury.” This created a question of fact as to the cause of Norman’s death. The photographic evidence presented shows a small dark hole in Norman’s flesh that is covered in grass, dirt, and leaves. The jury could have concluded this injury was inflicted after Norman’s death when she was left in the woods. Further, Dr. Danforth testified to evidence of trauma on Norman’s skull and described a reddish patch over Norman’s left eye the size of a silver dollar.

¶28. The jury was concerned about manslaughter and specifically asked for guidance on that point. “In a criminal prosecution, trial and appellate judges do not always find the defendant’s testimony believable, credible, or consistent with other evidence. Still, it is evidence .... [and] juries, not judges, determine the weight and credibility of the evidence....” Flowers v. State, 51 So.3d 911, 913 (¶ 9) (Miss. 2010). Had the jurors believed Cole’s statement, they could not have applied those facts to the law because the trial judge provided them no instruction on the law of manslaughter. See id. at (¶ 10).

¶ 29. The State argues the trial judge properly refused the requested instruction because adequate provocation for a heat-of-passion-manslaughter instruction was not shown. Heat of passion has been defined as:

a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time.

Underwood v. State, 708 So.2d 18, 36 (¶ 54) (Miss.1998) (quoting Tait v. State, 669 So.2d 85, 89 (Miss.1996)). It is well established that words alone are not enough to require a heat-of-passion instruction. Myers v. State, 832 So.2d 540, 542 (¶ 10) (Miss.Ct.App.2002). Cole testified that he and Norman were fighting and that things got out of hand. The two also had some history of a violent relationship. Specifically, Cole stated: “[S]he was fighting back, I was fighting back ... we was just going crazy.” A reasonable jury could have believed this version of events and found the fight Cole described to be adequate provocation. See Bolton v. State, 87 So.3d 1129, 1133-34 (¶¶ 14-15) (Miss.Ct.App.2012). Taking the evidence in the light most favorable to the accused, considering all reasonable inferences in his favor, and considering the jury may not be required to believe any evidence offered by the State, we find that a reasonable hypothetical jury could have convicted Cole of manslaughter. It is the jury’s function to determine the weight and credibility of evidence.

¶ 30. The dissent makes much of Dr. Hayne’s medical testimony, but its reliance is problematic. Specifically, when Dr. Hayne was asked about seeing evidence of a head injury, he replied: “I didn’t see that, Counselor. Of course, a lot of the soft tissue was gone. It was skeletal, so I would not see a soft tissue injury.” The dissent converts this statement into it being “medically impossible” for Norman to have died from a head injury. But more interesting, Dr. Hayne apparently did not notice the reddish silver-dollar-sized patch on Norman’s skull, which according to Dr. Danforth evidences trauma. Further, at no point did Dr. Hayne ever state to a reasonable medical certainty that the cause of Norman’s death was a stabbing. He could not make that statement; he could only say that her injury was consistent with a stab wound. In any event, the jury was entitled to disbelieve any and all of Dr. Hayne’s testimony.

¶ 31. Cole told police that he and Norman were going crazy, fighting with each other, and that she was fighting back. The evidence of provocation is admittedly weak, but it exists. The manslaughter instruction should have been granted because all that was necessary for the jury to convict Cole of manslaughter was that it be unconvinced by a part of the State’s proof, specifically Dr. Hayne’s testimony. See Fairchild, 459 So.2d at 801-02. Cole was entitled to have his theory of the case submitted to a properly instructed jury. See Chinn, 958 So.2d at 1226 (¶ 18). Because the trial court failed to properly instruct the jury on the law of manslaughter, we must reverse Cole’s conviction and remand this case for a new trial. As we find this issue dispositive, we do not reach Cole’s remaining nine issues.

1132. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ„ CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, J.; BARNES, J., JOINS IN PART.

IRVING, P.J.,

dissenting:

¶ 33. The majority reverses Cole’s murder conviction because it finds that he was entitled to a heat-of-passion-manslaughter instruction. Cole did not testify. However, the majority finds that Cole’s confession to the police, which was admitted into evidence, provides the evidentiary foundation for a heat-of passion instruction and that the circuit court erred in refusing to give one. In my view, the majority, in arriving at its conclusion, has both misapprehended and misapplied the law. Therefore, I respectfully dissent. I would affirm Cole’s conviction and sentence.

¶ 34. During his interview with the police, Cole made the following statement, which I quote verbatim, regarding his involvement with Norman’s death:

Uh, Tuesday, I can’t recall what, what day it was, but we got together after she got out of her 2:20 class. And we decided to ride around, talk, and go get something to eat. And at the time we was riding around, we was just chilling for a minute and we just started to argue fighting over the stuff that we been through in the last couple of years and stuff we was going through now and we was just kept arguing and kept fighting and uh, one thing just led to another, we was just fighting and just cussing and just ... really just got out of hand and before I knew it I hit her too hard and knocked her out and just panicked and wasn’t thinking straight ... scared, I didn’t know if she was still alive at that moment or what ... but I just panicked and just put her in the trunk and just rode around and try to figure out what I was going to do at this point and just being seared and then ... after a couple of hours, I checked on her and it wasn’t no pulse ... I just really just got scared and just didn’t know what to do ... who to turn to ... or where to go ... so I just rode around for a couple more hours just rode around trying to figure out where I was going to go, what I was going to do, and I just ended up on County Line Road and then I just turned on a ... on this street, I didn’t even know it was Brown Street at the time, I just ended up turned on it ... it was late at night ... and I just seen a couple of abandoned houses and trees and woods and just dropped her off and just covered her up and just dropped her off and just ran; I never said nothing to anybody till this day here. We just kept arguing and fighting and uh, one thing just led to another. We was just fighting and just cussing and just, just really got out of hand and before I knew it I hit her too hard and knocked her out and just panicked and wasn’t thinking straight, scared.

¶ 85. After Cole had given the above statement, without interruption, the following colloquy between him and Detective Sammie Neal occurred:

Q. Let me ask you this Stanley ... did you hit her with an open fist, or I mean open hand or closed fist and where was the area that you hit her at? Do you know?
A. Across the face, in the head.
Q. Okay, when you’re saying across the face ... here or ... Or you know. A. Just.
Q. All over?
A. Yeah, we was just fighting all over ... I can’t even really recall, she was fighting back, I was fighting back ... at a time it coulda [sic] been open fist ... slap ... it was just ... we was just going crazy....

¶ 36. In my judgment, the foregoing statement does not provide evidence of the heat-of-passion element of manslaughter. The majority, citing Bolton v. State, 87 So.3d 1129, 1133-34 (¶¶ 14-15) (Miss.Ct.App.2012), states: “A reasonable jury could have believed this version of events and found the fight Cole described to be adequate provocation.” Maj. Op. at (¶ 29). The majority continues with this statement:

Taking the evidence in the light most favorable to the accused, considering all reasonable inferences in his favor, and considering the jury may not be required to believe any evidence offered by the State, we find that a reasonable hypothetical jury could have convicted Cole of manslaughter. It is the jury’s function to determine the weight and credibility of evidence.

Id. I first point out that Bolton provides no support for resolution of the issue before us, that is, whether a manslaughter instruction should have been given. That a jury may have believed Cole’s version of events is irrelevant if that version does not, as a matter of law, provide an eviden-tiary basis for a manslaughter instruction. See Agnew v. State, 783 So.2d 699, 703 (¶ 10) (Miss.2001). It is the province of the court, not the jury, to determine whether a sufficient foundational basis exists in the evidence to grant an instruction. The jury does not get a chance to weigh in unless and until the court determines that there is evidence in the record that, if believed by the jury, could constitute adequate provocation for manslaughter. It seems to me that the majority’s finding that a manslaughter instruction should have been given simply because the jury may have believed Cole’s version of events is tantamount to saying that it is not the proper role of the trial judge to instruct on the law and that a jury should always be allowed to base its verdict on whom it believes without any legal guidance from the court. That is just not the law.

¶ 37. On two occasions, this Court has determined that a physical altercation was insufficient to justify a heat-of-passion instruction without evidence that the defendant acted out of violent or uncontrollable rage. See Cooper v. State, 977 So.2d 1220, 1223 (¶ 13) (Miss.Ct.App.2007) (pushing, tussling, and/or choking insufficient to support heat-of-passion instruction without evidence that defendant was in a state of uncontrollable rage); Turner v. State, 773 So.2d 952, 954 (¶ 8) (Miss.Ct.App.2000) (pushing and shoving insufficient to require the instruction absent testimony that the defendant was acting out of violent or uncontrollable rage). Just as in Cooper and Turner, there is no evidence here that Cole was in a state of violent or uncontrollable rage. Therefore, his confession alone is insufficient to justify a heat-of-passion-manslaughter instruction.

¶ 38. Additionally, the majority mentions the fact that Cole and Norman “had some history of a violent relationship.” Maj. Op. (¶ 29). However, the Mississippi Supreme Court has held that long-standing domestic disputes are not grounds for a manslaughter instruction. Graham v. State, 582 So.2d 1014, 1018 (Miss.1991). Thus, Cole and Norman’s less-than-harmonious relationship, which ended in a fight and ultimately Norman’s murder, cannot provide the basis for a manslaughter instruction.

¶ 39. Dr. Hayne asked Dr. Danforth to examine Norman’s remains because he did not see Norman’s hyoid bone. His specific statement was: “I wanted her to look at that and see if she could identify the hyoid bone, which is located in the neck area.” Dr. Danforth testified that she saw “a reddish patch” that was dark pinkish in color, about the size of a silver dollar, over Norman’s left eye. However, she did not say that this reddened area was the result of an injury, much less a blow sufficient to cause Norman’s death. Indeed, she could not offer such an opinion even if she believed that to be the case, because she was not qualified to testify as to the cause of death. She admitted as much in the following colloquy:

Q. Dr. Danforth, you don’t testify to— a forensic anthropology — anthropologist, you guys don’t testify to cause and manner of death?
A. No, we do not.
Q. And you can’t do that?
A. No.

¶40. Although the majority opinion does not explicitly state that Dr. Dan-forth’s findings corroborate Cole’s testimony — that he knocked Norman out — it appears that the majority believes that those findings provide some evidentiary support for Cole’s contention that he killed Norman by striking her about the face and head with his hand. In this respect, I note the majority states that according to Dr. Danforth, the reddish spot was evidence of trauma. While Dr. Danforth did mention the reddish patch when asked by defense counsel if she saw any evidence of trauma, it is significant that Dr. Danforth could not, and did not, correlate the injury to anything. Given the fact that Cole dumped Norman’s body in the trunk of his girlfriend’s car and again on the cold ground, any suggestion that the reddish spot was caused by the fighting that allegedly occurred between Norman and Cole would be pure speculation. Moreover, since Norman’s body lay exposed in the woods for approximately two weeks, there is no basis for assuming that the reddish spot was caused by any blows inflicted by Cole. Suffice it to say that there is absolutely no medical testimony that Norman died as a result of being struck about the face and head. In fact, Cole could not say whether he hit Norman with his fist or whether he simply slapped her. The uncon-tradicted medical testimony from Dr. Hayne is that Norman died as a result of a stab wound.

¶ 41. Recently, in Laurent v. State, 94 So.3d 1232, 1235 (¶¶ 12-13) (Miss.Ct.App.2012), this Court found that the defendant’s testimony — that he accidently killed the victim while the two of them struggled over a gun — was insufficient to justify a self-defense instruction. In so finding, we stated:

The problem with Laurent’s argument is that the medical evidence is that Brandi [ (the victim) ] did not die as a result of having been shot. Laurent introduced no medical evidence to the contrary, and although he testified that Brandi collapsed after being shot, he is not competent to assess the cause of Brandi’s death. As stated, Dr. McGarry [ (the forensic pathologist) ] testified to a reasonable degree of medical and scientific certainty that Brandi died from asphyxia due to compressive injuries of the neck and chest.

Id. at (¶ 13). We also noted that it was “unclear from Dr. McGarry’s testimony if he was able to examine the areas of Brandi’s body where Laurent insists that Brandi was shot [but that] Laurent did not challenge Dr. McGarry’s testimony nor did he challenge Dr. McGarry’s findings related to Brandi’s cause of death.” Id. at n. 2. Just as Laurent was not competent to assess the cause of death, neither is Cole. It is noteworthy that Dr. Hayne asked Dr. Danforth to take a look at Norman’s body, and after getting the report from Dr. Dan-forth, Dr. Hayne gave the following testimony during direct examination:

Q. Okay. And based upon your findings — of course, you can explain that— what was the cause of death?
A. I ruled it as a — as consistent with a stab wound of the chest. That injury was slit-like[,] located immediately above the left nipple[,] and measured 1.8 centimeters in length, which would be approximately three-quarters of an inch.
The outside edge of it was somewhat distorted[,] secondary to decomposition change or putrefaction breakdown of the body. The body had been exposed for a period of time.
Q. Okay. And the manner of death?
A. I ruled the manner of death as homicide, sir.
Q. Okay. Dr. Hayne, just a few more questions. Was there any blunt force trauma to the head?
A. I did not see that, Counselor.
Q. Okay. And so what about any cranial fractures?
A. I did not see that, Counselor. The cranial vault was opened[;] the brain was examined; and I did not see fractures to the base of the skull and the skull cap itself.
Q. Okay. So any claim of an injury to the head—
Q. Your finding of the cause of death was a stabbing, correct?
A. It was consistent with a stab wound to the chest, sir.
Q. Or any kind of head injury at all?
A. I didn’t see that, [Counselor. Of course, a lot of the soft tissue was gone. It was skeletal, so I would not see a soft tissue injury.
Q. Dr. Hayne, blunt force trauma, what would it take to—
Q. How much force would it take to cause — an injury to the head to cause a death?
A. Normally, it’d take a considerable amount of force, counselor. It would not necessarily have to be a fracture. You can have bleeding inside the cranial vault involving the brain or the spaces around the brain without fracture. A strong blow could produce that type of injury.
Q. But this was not found in this case?
A. I did not see evidence of that, no, counselor.

¶42. During the redirect examination of Dr. Hayne, the following colloquy occurred:

Q. Just a follow-up on the last question. You testified earlier to a medical degree of certainty that this cause of death was consistent with a stab wound, correct?
Q. And to a medical degree of certainty, you can tell us that this was consistent with a stab wound?
A. It’s consistent with a stab wound, and I ruled that and signed an affidavit to that effect, sir.
Q. Okay. Which is a very high standard in the medical field?
A. It’s with reasonable medical certainty, which is the highest standard one can go.

¶ 43. It is clear that the medical evidence here, as did the medical evidence in Laurent, contradicts Cole’s theory of death. Further, as was the case with the defendant in Laurent, Cole is not competent to state the cause of death. Additionally, I should point out that Cole’s contention that he knocked Norman out is not unlike the defendant’s statement in Laurent. In both cases, the defendants contended that their actions caused the victim’s death, despite the absence of medical evidence to support it. As Laurent’s testimony was insufficient to warrant the giving of a self-defense instruction, Cole’s and Dr. Danforth’s testimonies also are insufficient to warrant the giving of a manslaughter instruction. Dr. Hayne examined Norman’s skull, opened the cranial vault, and found no evidence that Norman could have been killed by a blow to the head. While it is true that, unlike Dr. McGarry in Laurent, Dr. Hayne did not testify to a reasonable degree of medical and scientific certainty as to the cause of Norman’s death, he did, in his expert capacity, testify essentially that it was medically impossible for Norman to have died as a result of being struck by Cole in the manner that Cole testified. And finally, Dr. Hayne testified, in his expert capacity, without contradiction, that Norman’s death was consistent with a stab wound to the chest. There is no evidence that anyone other than Cole could have caused the stab wound.

¶ 44. Therefore, I dissent. I would affirm Cole’s conviction and sentence.

CARLTON, J„ JOINS THIS OPINION. BARNES, J., JOINS THIS OPINION IN PART.

      . "Capital case, when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary." Harrison v. State, 49 So.3d 80, 84 (¶ 11) (Miss.2010) (quoting Miss. Code Ann. § 1-3-4 (Rev.2005)) (emphasis added).

      . Cole's brief asserts that there were “some 400 newspaper stories” covering Norman’s murder and his prosecution. The State counts thirty Clarion-Ledger articles that centered on the story and asserts that the defense has inflated its numbers by including every article that so much as mentions either Norman or Cole.

      . There was a news story the night before voir dire that stated Cole hoped to make a plea deal but was turned down by the prosecution. It is undisputed that this information was factually incorrect. However, prior to the broadcast, the court instructed all potential jurors to refrain from watching any media, and individual voir dire was subsequently conducted on the media-exposure issue.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    William Austin BRANCH a/k/a Austin Branch, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01769-COA.
    Court of Appeals of Mississippi.
    April 16, 2013.
    Rehearing Denied April 16, 2013.
    Certiorari Denied July 18, 2013.

      Louis F. Coleman, Robert Geoffrey Parrish, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
   ISHEE, J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. The motion for rehearing is denied. We withdraw our original opinion and substitute this modified opinion.

¶ 2. Jacob Simmons died from a gunshot wound to the back of the head in the early morning hours of April 23, 2009. William Austin Branch was indicted by an Attala County grand jury for Simmons’s murder and was later tried in the Attala County Circuit Court. He was found guilty and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Branch now appeals on numerous grounds. We have combined Branch’s assertions on appeal into the following categories: (1) the sufficiency of the evidence to support the verdict, (2) Simmons’s prior bad acts and aggressive behavior, (3) witness tampering and witness credibility, (4) the cumulative effect of the alleged errors, and (5) expansion of the record. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. On the evening of April 22, 2009, Simmons and Branch attended a gathering at a friend’s house in Kosciusko, Mississippi. While there, Simmons and Branch became engaged in a verbal and physical altercation regarding the death of Branch’s uncle. Simmons claimed he had been informed Branch had implied that Simmons was somehow involved in his uncle’s demise. Branch assured Simmons that he was not responsible for the rumors and asserted that C.J. Frazier was the party responsible for smearing Simmons’s name.

¶ 4. The men called Frazier and discussed the rumor issue with him. Unsatisfied with the conversation, Simmons and several other men from the gathering decided to pay Frazier a visit. Although disputed, Branch claims Simmons threatened bodily injury on him if he refused to drive the men to Frazier’s house. Branch asserted that Simmons continually attempted to intimidate him throughout the evening by insinuating the threat of bodily harm if he did not cooperate with Simmons. Branch testified he was in fear of imminent physical harm from Simmons during the course of the evening.

¶ 5. As such, Branch drove Simmons, C.C. McClellan, and Greg Bowers to Frazier’s house. Simmons and Bowers exited the vehicle and attempted to confront Frazier. After Frazier refused to exit his house, the men left and returned to the gathering.

¶ 6. Shortly thereafter, McClellan asked to be taken home. The four men got back in the truck and took McClellan to his house. Branch testified that upon leaving McClellan’s house, either Simmons or Bowers repeatedly patted a tire iron against his palm in a threatening manner, encouraging Branch to cooperate with whatever Simmons chose to do.

¶ 7. The three remaining men decided to drive to Branch’s nearby property where he kept cattle. Shortly thereafter, Branch stopped at his sister’s trailer, which was located less than a mile from the property. She and her boyfriend, Brad Tubby, were present at the trailer when the men arrived, and, with Tubby’s permission, Branch retrieved a .38 special revolver from Tubby’s truck before leaving the trailer site.

¶ 8. Upon reaching the property, Branch observed a herd of cattle blocking the driveway and realized he had forgotten to lock the property’s gate earlier in the day. Branch repeatedly honked the truck’s horn, and the cattle began moving toward the property’s pond. Branch exited the vehicle to continue corralling the cattle toward the pond and away from the driveway. The other two men stayed in the truck.

¶ 9. When Branch had almost reached the pond, he heard Simmons exit the truck. Bowers testified that Branch instructed Simmons to exit the vehicle to help him with the cattle. However, Branch testified he suddenly heard Simmons behind him, running toward him, and simultaneously accusing him of being a “snitch.” Branch claimed he turned with his gun drawn and saw Simmons reach toward his left pocket where Branch thought he remembered Simmons placing a knife earlier in the evening. Accordingly, when Simmons reached toward his left pocket, Branch drew Tubby’s .38 special revolver and fatally shot Simmons in the back of the head.

¶ 10. Branch quickly returned to the truck and allegedly demanded to know why Bowers and Simmons were trying to kill him. Bowers responded that he had nothing to do with any plot to kill Branch and then quickly fled the scene of the crime. Branch returned to Simmons’s body and confirmed that Simmons was dead. He then called his sister, recounted the recent events, and asked her to call an ambulance.

¶ 11. Shortly thereafter, Branch arrived at his sister’s trailer. He handed Tubby the .38 special revolver, and Tubby drove back to the scene of the crime. Emergency responders and local authorities arrived at the property. Tubby then led the authorities to the trailer where Branch was located and gave them the .38 special revolver. Branch was discovered changing his clothes. When questioned by authorities regarding his prior attire, Branch produced a t-shirt with blood stains on the front of it. Authorities detained Branch and returned to the property to searched the premises. No knife or any other weapon was found on Simmons’s person or in the immediate area.

¶ 12. Branch was indicted for Simmons’s murder, and a trial took place in the circuit court in 2010. Branch asserted self-defense as justification for the shooting. In support thereof, he testified that he feared for his safety during the evening in question and that he was certain Simmons was about to harm him when Simmons reached toward his left pocket. Branch further stated that Simmons “must have ducked” when Branch pulled the gun, which would explain why Simmons was shot in the back of the head.

¶ 13. In contradiction to Branch’s testimony, the State presented Dr. Amy Grusz-eeki, a forensic pathologist, who testified that the angle of the bullet negated Branch’s theory that Simmons ducked. Dr. Gruszecki testified that the bullet entered Simmons’s head in a straight perpendicular shot, meaning Simmons could not have been ducking or the bullet would have entered his head at an angle.

¶ 14. The State also called Bowers to the stand to testify regarding his observation of the events on the evening in question. After Bowers testified on behalf of the State, he was instructed to leave the courtroom under the rule of sequestration. Branch then presented his case-in-chief wherein he testified on his own behalf. Deanna Strait remained in the courtroom and observed his testimony. Directly thereafter, Strait discussed Branch’s testimony with Bowers, who was awaiting being recalled to the stand by the defense.

¶ 15. The issue was brought before the circuit court which questioned Strait regarding her discussion with Bowers. Strait testified that she was unaware her conversation with Bowers regarding Branch’s testimony was prohibited. The circuit court then instructed Strait to leave the courthouse permanently and also permitted Branch’s defense counsel to examine Bowers on recall regarding his understanding of Branch’s testimony.

¶ 16. The trial continued, and Branch attempted to call Jay Summerlin to the stand. Through Summerlin’s testimony, Branch’s counsel sought to establish that Simmons had previously told Summerlin that he was going to kill Branch. However, the circuit court prohibited Summer-lin’s testimony after determining that it was double hearsay.

¶ 17. At the conclusion of the trial, Branch was convicted of murder and sentenced to life in the custody of the MDOC. He filed several post-trial motions, including a motion for a directed verdict, a motion for a judgment notwithstanding the verdict (JNOV), and a motion for a new trial. In these motions Branch provided the circuit court with conclusions from his own forensic expert, Dr. James Cook, who opined that the bullet in question entered Simmons’s head at an angle and not in a perpendicular line. Dr. Cook was presented to rebut Dr. Gruszecki’s testimony and support Branch’s theory of self-defense. All of Branch’s post-trial motions were denied. Branch then filed motions for reconsideration, which were also denied. Aggrieved, he appeals. Finding no reversible error, we affirm the circuit court’s judgment.

DISCUSSION

I. Sufficiency of the Evidence

■ ¶ 18. Branch asserts the circuit court erred in its failure to grant his motions for a directed verdict and a JNOV. Branch’s motion is grounded in his assertion that the verdict was not supported by the evidence. In such circumstances, “[w]e are authorized to reverse only where ... the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” McClain v. State, 625 So.2d 774, 778 (Miss.1993) (citations omitted).

¶ 19. Having reviewed the record, we disagree with Branch’s claim that a reasonable jury could not have found Branch guilty of murder. At trial, the State provided evidence that Branch and Simmons wei'e involved in a verbal and physical altercation resulting in tension between the men that lasted the remainder of the evening in question. The State further showed that Branch fatally shot Simmons in the back of the head.

¶20. In response to the State’s evidence that Simmons was shot in the back of the head, Branch claimed that Simmons “must have ducked” when Branch reached for the gun. However, the State’s forensic expert, Dr. Gruszecki, testified that after examining the evidence, she concluded the bullet entered Simmons’s head in a perpendicular fashion, or a straight line, thereby negating Branch’s claim that Simmons ducked.

¶ 21. Branch did not provide the jury with a rebuttal expert to contradict Dr. Gruszecki’s claims. Branch merely relied on his own testimony to explain to the jury his recollection of the shooting. No scientific evidence was presented to support Branch’s assertion that Simmons ducked or that Dr. Gruszecki’s conclusions were erroneous. As such, we cannot say from the evidence presented that the jury had no choice but to find Branch not guilty. This assertion is without merit.

¶22. Branch also asserts that the evidence was insufficient to support a guilty verdict for murder and, at most, he is only guilty of manslaughter. He relies heavily on his theory of imperfect self-defense and submits he was under duress at the time of the killing. He further claims that he was well founded on his belief that Simmons intended to harm him and that his reaction to Simmons was justified.

¶ 23. Manslaughter is defined as:

“[Tjhe 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 .... ” Miss.Code Ann. § 97-3-35 (Rev.1994).... The theory is “that the defendant killed the deceased without malice, under the bona fide belief, but without reasonable cause therefor, that it was necessary for him to do so in oi’der to prevent [the attacker] from inflicting death or great bodily harm upon him”....

Wade v. State, 724 So.2d 1007, 1011 (¶¶ 11-12) (Miss.Ct.App.1998) (quoting Lanier v. State, 684 So.2d 93, 97 (Miss.1996)).

¶ 24. Nonetheless, as stated above, the jury was presented with evidence that Branch retrieved a .38 special revolver from his sister’s boyfriend prior to driving Simmons to his property and that Branch fatally shot Simmons using the revolver. The jury was also shown evidence of Branch’s self-defense theory. However, this evidence was contradicted by proof regarding the location and trajectory of the bullet wound to the back of Simmons’s head. We disagree that the evidence was insufficient to support a verdict of murder. We find this issue is meritless.

¶ 25. Regardless, Branch requested that the circuit court grant the following two jury instructions, which were ultimately denied:

(1) One who received threats against their [sic] life or person made by another is justified in acting more quickly and taking harsher measures for their [sic] own protection in the event, than would a person who did not receive such threats. Someone who has been threatened or harmed by a person in the past[ ] is justified in acting more quickly or taking greater self-defense measures against that person.
If evidence concerning prior threats and prior acts of violence was known by Austin Branch at the time of the killing, you should consider such evidence in determining who was the aggressor, and the reasonableness of Austin Branch’s fear of death or great bodily injury.
(2) Malice aforethought equates with deliberate design, which generally implies careful and unhurried consideration of the consequences along with calculation, planning[,] and contemplation. Malice cannot be formed at the immediate second of the fatal act.
Deliberate design means intent to kill without authority of law and not being legally justifiable, legally excusable!,] or under circumstances that would reduce the act to a lesser crime.
Malice is necessary for murder and must precede the unlawful act that is being attempted.
If you find that the prosecution failed to prove beyond a reasonable doubt that Austin Branch acted with malice in the killing of Jacob Simmons, then you must find Austin Branch not guilty of murder.

¶ 26. We give “abuse-of-discretion deference to the trial judge’s decision” with regard giving or refusing of jury instructions. Flowers v. State, 51 So.3d 911, 912 (¶ 5) (Miss.2010). “[Proposed instructions should generally be granted if they are correct statements of law, are supported by the evidence, and are not repetitious.” Id. at (¶ 6) (citation omitted).

¶ 27. In support of his argument, Branch references Smith v. State, 463 So.2d 1028, 1029 (Miss.1985) (overruled in part by Ferrell v. State, 733 So.2d 788, 791 (¶ 15) (Miss.1999)), wherein the Mississippi Supreme Court stated:

Another homicide less than murder is the killing of another in the heat of passion, without malice aforethought!,] and is generally referred to as “manslaughter.” It does not justify a homicide as does self-defense but[,] rather[,] reduces the greater crime of murder to the lesser crime of manslaughter because “malice aforethought” is lacking. Manslaughter does not exonerate the homicide but requires a sentence less than that for murder.

¶ 28. We agree with the circuit court’s determination that the instructions Branch wished to submit to the jury are improper statements of the law. Additionally, the form of the instructions make them unfairly leading and prejudicial. The instructions essentially dictate what the jury must determine instead of providing a guide for the jury to make its own decision. A proper instruction presents the case, the applicable law, and nothing more.

¶ 29. In any event, a more appropriate manslaughter instruction was granted by the circuit court, thus affording Branch the opportunity for the jury to consider the lesser offense of manslaughter. Jury Instruction 8 stated, in part: “The Court instructs the Jury that the theory of ‘imperfect self-defense’ provides that an intentional killing may be considered manslaughter if done without malice under a bona fide but unfounded belief that it was necessary to prevent great bodily harm.” We believe this instruction to be a fair and accurate statement of the law. We further believe that this instruction was a proper and fitting one for this case. We hold that the trial court did not err in regard to jury instructions. This argument is without merit.

II. Simmons’s Prior Bad Acts and Aggressive Behavior

¶ 30. Branch also asserts the circuit court erred by not allowing the introduction of evidence about Simmons’s prior bad acts. Specifically, Branch attempted to call Jay Summerlin to the witness stand to testify regarding certain statements Bowers made to Summerlin concerning statements Simmons made to Bowers. The State objected to Summerlin’s testimony on the ground that it would be double hearsay. The circuit court sustained the State’s objection.

¶ 31. We agree with the circuit court’s determination. Mississippi Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.” Mississippi Rule of Evidence 805 holds that hearsay within hearsay, or double hearsay, may not be introduced unless each of the combined statements is subject to an exception to the prohibition against hearsay. Branch fails to assert a hearsay exception applicable to any of the statements sought to be introduced by Summerlin. Likewise, we fail to see an exception under which Sum-merlin’s testimony would have fallen. This issue is meritless.

¶ 32. Branch also claims the circuit court prohibited the introduction of evidence of Simmons’s past alleged threats and acts of violence. “Our well-settled standard of review for the admission or suppression of evidence is abuse of discretion.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2004) (citation omitted). “[T]he decision of the trial judge will stand 'unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ ” Id. (citation omitted).

¶ 33. In support of his argument, Branch directs our attention to Mississippi Rule of Evidence 404(a)(2), which states:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
(2) Character of Victim. Evidence of a pertinent trait or character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor....

¶ 34. We recognize the applicability of Rule 404 to Branch’s arguments. However, Branch has failed to note specifically how the circuit court denied him the opportunity to present evidence that either he exhibited a character of peacefulness or that Simmons was the aggressor. The record is void of an occasion where Branch was prohibited from introducing evidence or testimony pertaining to this matter. Indeed, Branch’s presentation to the jury throughout the trial focused on his theory that Simmons was the aggressor and Branch was acting in self-defense. As such, we find this argument to be without merit.

III. Witness Tampering and Witness Credibility

¶ 35. Branch makes several arguments regarding witness tampering and credibility. First, Branch claims that the circuit court erred in failing to declare a mistrial after learning that Strait, who was present in the courtroom during Branch’s testimony, discussed the testimony with Bowers, who had already testified but was available for recall. To be clear, Branch’s argument is based on the circuit court’s failure to declare a mistrial sua sponte, not the circuit court’s denial of a motion for a mistrial. Branch did not make a motion for a mistrial. The following summarizes the incident before the circuit court:

DEFENSE COUNSEL: Your Honor, during Mr. Branch’s testimony — after Mr. Branch’s — after Austin’s testimony this morning and during, it is apparent that there was a person in the courtroom who, after Mr. Branch’s testimony, went back and relayed the contents of his testimony to Mr. Greg Bowers back in a room that he’s back in. That this would — that there was talk about actually what Austin had testified to. I’m bringing it to your attention because it’s — it would appear that the rule has been violated, if I understand the rule.
THE COURT: Who did this?
DEFENSE COUNSEL: My understanding — and I’ll say that Mr. Greg Bowers is back in this room with Brad Tubby; it was Brad Tubby who told us this information. I don’t know this person, your Honor. My understanding is her name is Deanna Strait. She may be in the courtroom right now.
THE COURT: She is?
COURT CLERK: She’s right outside. Oh, here she is.
DEFENSE COUNSEL: Deanna Strait, your Honor.
THE COURT: Ms. Strait, if you’ll come forward. Have you had some conversations with Greg Bowers about what’s been testified to in here?
DEANNA STRAIT: Yes, sir.
THE COURT: Why?
DEANNA STRAIT: I didn’t know that it was a problem.
THE COURT: You leave the courthouse, and you leave immediately, and you do not come back.
DEANNA STRAIT: Yes, sir.
THE COURT: You’re lucky I’m not locking you up.
DEANNA STRAIT: Yes, sir.
THE COURT: And if [Bowers] is recalled, you can certainly cross-examine him. I mean, you — if you call him as a witness, you can certainly examine him about any statement that may have been told to him about testimony in here. I mean, that’s the only way I know to cure any problem would be for you to ask him questions if he violated the [r]ule of [sequestration.
DEFENSE COUNSEL: Could I just have one moment, Judge?
(PAUSE)
DEFENSE COUNSEL: Your Honor, I apologize to the [cjourt for the delay. I am torn between requesting a mistrial because I think it does put it in a different light to be able to call Mr. Bowers. And, of course, we were intending to call Mr. Bowers to impeach him with Jay Summerlin’s — by trying to bring in Jay’s statement that Greg Bowers made to Jay Summerlin. However, I — I might be remiss, but on consultation with co-counsel, I’m not going to ask for a declaration of mistrial.
THE COURT: That will be fine. We’ll proceed if you’ll bring the jury back in.

¶ 36. With regard to a circuit court’s grant or denial of a mistrial, we have held:

Case law unequivocally holds that the trial judge is in the best position for determining the prejudicial effect of an objectionable remark. The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared. Where serious and irreparable damage has not resulted, the judge should admonish the jury then and there to disregard the impropriety.

Edwards v. State, 856 So.2d 587, 593 (¶ 19) (Miss.Ct.App.2003) (quoting Coho Res., Inc., v. McCarthy, 829 So.2d 1, 18 (¶ 18) (Miss.2002)). Nonetheless, Branch’s defense counsel did not request a mistrial. Concerning allegedly prejudicial instances during trial we have stated:

It is now well settled that when anything transpires dui’ing the trial that would tend to prejudice the rights of [the] defendant, he cannot wait and take his chances with the jury on a favorable verdict and then obtain a reversal of the cause in this Court because of such error, but he must ask the trial court for a mistrial upon the happening of such occurrence when the same is of such nature as would entitle him to a mistrial.

Morris v. State, 963 So.2d 1170, 1178 (¶ 26) (Miss.Ct.App.2007) (citation omitted). As such, this claim is without merit.

¶ 37. Branch further challenges the circuit court’s denial of his motion for a new trial in which he sought to offer Dr. James Cook, a forensic pathologist, as an expert to rebut the State’s forensic pathologist’s conclusions concerning the trajectory of the bullet that killed Simmons. The circuit court held a hearing regarding Branch’s post-trial motion, and denied the motion. The circuit court also denied defense counsel’s attempt to proffer into evidence Dr. Cook’s testimony.

¶ 38. A motion for a new trial “challenges the weight of the evidence.” Smith v. State, 925 So.2d 825, 832 (¶ 16) (Miss.2006) (citation omitted). Also, we review the grant or denial of a motion for a new trial under an abuse-of-discretion standard. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). We have determined the evidence was sufficient to convict Branch of murder. Under the same set of facts, the record is void of any evidence that weighs so heavily against the verdict that the circuit court’s denial of Branch’s motion for a new trial was an abuse of the circuit court’s discretion.

¶ 39. Furthermore, we are unaware of any provision under Mississippi law that would support Branch’s theory regarding Dr. Cook’s post-trial testimony. If Branch wished to rebut the State’s forensic pathologist, Branch had every opportunity to present Dr. Cook for the circuit court’s consideration as a rebuttal expert during the trial. Moreover, having reviewed Dr. Gruszecki’s testimony, Branch’s defense counsel failed to make a single objection to any of Dr. Gruszecki’s conclusions and stipulated to her introduction as an expert in the field of pathology. If defense counsel wished to contradict Dr. Gruszecki’s conclusion, defense counsel had every opportunity to act during the trial, at which time the arguments could have been preserved on the record for appeal. A post-trial motion was not the proper vehicle for objecting to and rebutting Dr. Gruszecki’s testimony.

¶ 40. In the same vein, Branch asserts that Dr. Gruszecki’s conclusions regarding the trajectory of the bullet did not meet the proper standard of “reasonable medical certainty.” Again, Branch’s defense counsel failed to object to any of Dr. Gruszecki’s testimony and agreed that she was an expert in the field of forensic pathology. Additionally, it appears that defense counsel participated in a discussion with Dr. Gruszecki regarding the trajectory of the bullet and highlighted Dr. Gruszecki’s opinion that the bullet entry was a “straight on shot.” After garnering such information, defense counsel never moved to strike Dr. Gruszecki’s statements or object to the statements either during direct examination or cross-examination. It is well settled that in general the failure to make a contemporaneous objection to an expert’s testimony or a counselor’s questioning waives the issue on appeal. Hampton v. State, 48 So.3d 605, 609 (¶ 12) (Miss.Ct.App.2010) (citing McCain v. State, 971 So.2d 608, 612 (¶ 7) (Miss.Ct.App.2007)). Accordingly, this issue is mer-itless.

¶ 41. Finally, Branch claims the State failed to disclose written statements made by Bowers to the prosecution and that in doing so, the State denied Branch the opportunity to fully defend himself. However, Branch never acknowledges in his brief to which statements he is referring, and he never objected to any of Bowers’s testimony based on the alleged discovery violation. Moreover, the record reflects that Branch’s counsel thoroughly questioned Bowers on cross-examination but never raised the issue of prior undisclosed statements Bowers allegedly made to the prosecution. As discussed previously, the failure to raise a contemporaneous objection during questioning waives the issue on appeal. Hampton, 48 So.3d at 609 (¶ 12) (citation omitted). As such, Branch waived this argument at the trial level, and we will not address it now.

IV. Cumulative Effect of Errors

¶ 42. Branch also asserts that the cumulative effect of the errors he has alleged on appeal mandates a reversal of his conviction, vacation of the sentence imposed, and the grant of a new trial. “The cumulative-error doctrine stems from the doctrine of harmless error ... which holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Harris v. State, 970 So.2d 151, 157 (¶ 24) (Miss.2007) (citation omitted). None of the errors alleged by Branch warrant reversal. Likewise, we cannot find reversible error in Branch’s combined allegations. This issue is without merit.

V. Expansion of the Record

¶ 43. Lastly, Branch asserts we erred in denying his motion to expand the record to include an affidavit that was made after the appeal was perfected and during the time for the appellate briefs to be drafted. This affidavit appears to show that the affiant knew Bowers and that Bowers told the affiant an account of the facts that occurred on the night of Simmons’s shooting. This account corroborated Branch’s testimony at trial. However, we have nothing before us besides the bare affidavit itself, and there is nothing in the record to show whether the claims in the affidavit have any basis in fact. Therefore, we denied the motion to expand the record to consider the merits of the affidavit. However, we note that if the claims are true, they could form the basis for a claim of either newly discovered evidence or perhaps even a discovery violation. Reviewing the merits of any such claim is not proper for an appellate court because these issues were not reviewed by the trial court. Rather, Branch may request leave to file for post-conviction relief, since this avenue is better suited to examining his claim than direct-appellate review. Havard v. State, 986 So.2d 333, 338 (¶ 19) (Miss.Ct.App.2007). This issue is without merit.

¶ 44. THE JUDGMENT OF THE AT-TALA 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, ROBERTS, MAXWELL, AND FAIR, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

      . The rule of sequestration provides that testifying witnesses may be prohibited from entering the courtroom apart from their own testimony to prevent their testimony from being influenced by any evidence presented during the trial.


author: ROBERTS, J.,

text:
    Lutie JORDAN a/k/a Lutie Jordan Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00695-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.

      Lutie Jordan, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Indicted as a habitual offender for capital murder and conspiracy to commit capital murder, Lutie Jordan pled guilty to capital murder as a habitual offender. The Walthall County Circuit Court sentenced Jordan to life in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or early release. Nearly ten years later, Jordan filed a motion for post-conviction relief (PCR). Jordan claimed the capital-murder charge in the indictment was fatally defective because it did not include the elements of armed robbery. The circuit court found that Jordan’s PCR motion was untimely and it had no merit. Accordingly, the circuit court denied Jordan’s PCR motion. Aggrieved, Jordan appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jordan was indicted for capital murder. He was charged with shooting and killing Francis Knippers during an armed robbery. Jordan’s indictment was later amended to charge him as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Jordan opted to plead guilty to capital murder as a habitual offender. During Jordan’s guilty-plea hearing, the circuit court asked Jordan the standard litany of questions to ensure that he was aware of his rights. Jordan was thirty-four years old at the time. He had a “[t]welfth-grade education.” He had also served in the military. The circuit court asked the prosecution to state the proof that it intended to present if Jordan opted to proceed to trial. Summarized, the prosecution stated that it was prepared to prove that Jordan and his brother followed Knippers from Walmart in Columbia, Mississippi, to Knippers’s home in Tylertown, Mississippi. The prosecution further stated that Jordan’s brother was prepared to testify that Jordan shot Knippers in the head twice. The circuit court asked Jordan whether that was “essentially what happened.” Jordan answered, “Yes, sir.” The circuit court sentenced Jordan to life in the custody of the MDOC without eligibility for parole.

¶ 3. On December 7, 2011, Jordan filed a PCR motion. He claimed his indictment for capital murder was defective in that it did not include the elements of armed robbery. The circuit court denied Jordan’s PCR motion because it was untimely and it had no merit. Jordan appeals.

STANDARD OF REVIEW

¶ 4. “When reviewing a lower court’s decision to deny a petition for post[-]conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Questions of law require a de novo review. Id. Whether an indictment is defective is a question of law. Gilmer v. State, 955 So.2d 829, 836 (¶ 24) (Miss.2007) (citation omitted).

ANALYSIS

¶ 5. Jordan argues that the capital-murder charge in his indictment was fatally defective because it did not include the elements of armed robbery. Jordan relates his defective-indictment argument to the following claims: (1) the circuit court lacked subject-matter jurisdiction to accept his guilty plea; (2) there was an insufficient factual basis for his guilty plea; (3) he did not plead guilty voluntarily or intelligently; (4) he received ineffective assistance of counsel; and (5) his sentence is illegal. In other words, all of Jordan’s claims originate from his claim that the capital-murder charge in his indictment was insufficient because although it alleged that he committed murder during an armed robbery, it did not include the elements of armed robbery.

¶ 6. First and foremost, Jordan should have filed his PCR motion within three years of the circuit court’s entry of its judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2012). On January 8, 2002, the circuit court entered its judgment of conviction, which was styled as a sentencing order. Accordingly, Jordan had until January 8, 2005, to file a PCR motion. Jordan filed his PCR motion on December 7, 2011. Jordan filed his PCR motion nearly seven years too late.

¶ 7. Section 99-39-5(2) does not necessarily subject all PCR motions to a three-year statute of limitations. Trotter v. State, 907 So.2d 397, 401 (¶ 10) (Miss.Ct.App.2005). Excepted from the time bar are cases in which: (1) there has been an intervening decision that would have adversely affected the outcome or sentence; or (2) there is newly discovered evidence that was not reasonably discoverable at trial that would have caused a different result in the conviction or sentence. Miss. Code Ann. § 99 — 39—5(2)(a.)(i). Jordan does not claim that there has been an intervening decision that would have adversely affected the outcome of his conviction or sentence. Similarly, Jordan does not claim that there is newly discovered evidence that would have caused a different result in his conviction or sentence.

¶ 8. The Mississippi Supreme Court has held that the three-year statute of limitations to file a PCR motion is waived when a fundamental constitutional right is implicated. Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010). Even so, the three-year statute of limitations applies to claims that an indictment was defective. Moss v. State, 45 So.3d 305, 307 (¶ 10) (Miss.Ct.App.2010) (citing Davis v. State, 958 So.2d 252, 254 (¶ 6) (Miss.Ct.App.2007)). It follows that Jordan’s claim was subject to the statute of limitations. Consequently, Jordan’s PCR motion was untimely.

¶ 9. Notwithstanding the fact that Jordan’s PCR motion was untimely, his claim also has no merit. Jordan was accused of killing Knippers while Jordan was “engaged in the commission of the crime of armed robbery.” Jordan takes issue with the fact that the capital-murder charge did not specifically accuse Jordan of taking any particular property from Knippers during the armed robbery. According to Jordan, because the indictment did not specify the property that he took from Knippers, the capital-murder charge was fatally defective.

¶ 10. In State v. Berryhill, 703 So.2d 250, 258 (¶ 34) (Miss.1997), the Mississippi Supreme Court held that an indictment for capital murder based on the commission of burglary during the murder must “assert with specificity the felony that comprises the burglary.” However, “[t]he supreme court has ‘declined to extend the holding in Berryhill to capital crimes undergirded by robbery.’ ” Williams v. State, 94 So.3d 324, 328 (¶ 14) (Miss.Ct.App.2011) (quoting Milano v. State, 790 So.2d 179, 186 (¶ 29) (Miss.2001)). “All of the essential elements comprising an armed robbery need not be elaborated upon in an indictment charging capital murder because, unlike burglary, armed robbery does not include an essential element of an intent to commit some other crime.” Id.

¶ 11. As previously mentioned, all of Jordan’s other issues stem from his claim that the indictment was fatally defective. There is no merit to that claim. Accordingly, there is no need to address Jordan’s other issues because they all rely on his position that the indictment was fatally defective. Suffice it to say, we find that the circuit court correctly denied Jordan’s PCR motion.

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

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


author: MAXWELL, J.,

text:
    Raymond Scott PETTY a/k/a Raymond S. Petty a/k/a Scottie Petty, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01610-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.

      Edmund J. Phillips Jr., Newton, Christopher A. Collins, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. During Raymond Scott Petty’s trial for sexual battery, the judge admitted into evidence Petty’s handwritten, signed confession, that he penetrated his six-year-old niece’s vagina. Because the judge applied the correct legal standard, and his decision to admit the statement was not against the weight of the evidence, we find no error in denying Petty’s motion to suppress. And because sex-crime offenders are statutorily prohibited from seeking parole, we find the judge properly ordered Petty to serve the entirety of what essentially amounts to a thirty-year, day-for-day, sentence without the possibility of parole. We therefore affirm his conviction and sentence.

Facts and Procedural History

¶ 2. When Sarah’s six-year-old daughter, Annie, began having problems in elementary school, Sarah sent Annie to live with Annie’s father, James, in Philadelphia, Mississippi. Sarah and James agreed Annie would stay in Philadelphia for the remainder of the school year. At the time of this arrangement, Annie’s father lived in his mother’s house with several other family members, including Annie’s three brothers and Annie’s uncle, Petty.

¶ 3. In May 2010, Annie returned home to Sarah, who started noticing Annie frequently grabbing her crotch as if she needed to use the restroom. Sarah inspected Annie and found her vaginal area was red and irritated. Though Annie initially refused to answer her mother’s inquiries, she later explained that “Uncle Scottie” had put his finger in her private area. Sarah alerted law enforcement of the alleged abuse and took Annie to the hospital, where Annie told the examining nurse what Petty had done.

¶ 4. When first questioned by police, Petty denied the allegations. But after a polygraph examination yielded inconclusive results, Petty gave a statement to Investigator Ricky Dean of the Mississippi Bureau of Investigations. In his handwritten, signed statement, Petty admitted: “I did touch [Annie] while she was lying in my lap about five months ago on the couch. Rubbed her vagina and fingered her and she rubbed my penis.”

¶ 5. Petty was arrested and charged with sexual battery under Mississippi Code Annotated section 97 — 3—95(l)(d) (Rev. 2006). At trial, the State offered testimony from Sarah, Annie, the nurse who examined Annie, and Investigator Dean. The State also introduced Petty’s written confession into evidence. Petty was convicted and sentenced to thirty-five years in the custody of the Mississippi Department of Corrections, with five years suspended, thirty years to serve, and five years of supervised probation. He now appeals.

Discussion

¶ 6. On appeal, Petty argues: (1) the trial court abused its discretion in admitting his written confession into evidence; and (2) his sentence exceeds the statutory maximum allowed under Mississippi Code Annotated section 97-3-101(3) (Rev.2006).

I. Petty’s Confession

¶ 7. Petty makes two separate arguments about the admission of his confession — one that he raises for the first time on appeal, but did not pursue at trial — and the other he barely touches on now but consumed the entirety of his suppression hearing.

A. Violation of Right to Counsel

¶ 8. As to his first argument, which is clearly waived by his failure to address it at trial, Petty briefly claims that because his right to counsel had attached, the State’s interview undermined his privilege against self-incrimination, rendering his confession involuntary and inadmissible. Though he forfeited this issue, we recognize that “[o]nce proceedings against a defendant reach the accusatory stage, a right to counsel attaches.” Page v. State, 495 So.2d 436, 439 (Miss.1986) (citing Cannaday v. State, 455 So.2d 713, 722 (Miss.1984)). Our supreme court has defined “the advent of the accusatory stage” by referring to Mississippi Code Annotated section 99-1-7 (Rev.2007), which “provides for commencement of prosecution as occurring when a warrant is issued as well as ‘by binding over or recognizing the offender to compel his appearance to answer the offense.’ ” Page, 495 So.2d at 439 (quoting Miss.Code Ann. § 99-1-7).

¶ 9. Petty’s appellate counsel, who did not represent him at trial, claims “[Petty’s] right to counsel attached at his initial appearance or when the initial appearance ought to have been held.” But from our review — which due to Petty’s waiver is only for plain error — it appears Petty’s case was still in the investigatory stage. No indictment had been returned, and there is no record evidence of an arrest made or warrant having been issued. And Petty was not in custody and apparently consented to the polygraph examination and interview. Furthermore, before being interviewed Petty signed a Miranda waiver, knowingly, intelligently, and voluntarily waiving his right to counsel. So even if prosecution had commenced, the State faced no constitutional impediment to interviewing him.

B. Voluntariness of Petty’s Confession

¶ 10. Petty’s second argument, which was raised at trial, but is hardly mentioned on appeal, challenges the voluntariness of his handwritten, signed confession to Investigator Dean. According to Petty, Investigator Dean impermissibly promised that if Petty would confess he would receive a six-month sentence for the sexual assault. Petty also insisted he was overcome with nervousness and was not in his right mind when he confessed to penetrating his six-year-old niece’s vagina. But after hearing testimony from the investigator and Petty, the trial judge was not swayed that Petty’s confession was the product of reward, coercion, or other improper means. So he denied the motion to suppress and admitted Petty’s handwritten statement.

1. Admitting a Confession

¶ 11. For a confession to be admissible it must have been voluntarily given and not the result of “any promises, threats or other inducements.” Chase v. State, 645 So.2d 829, 837-38 (Miss.1994) (citing Layne v. State, 542 So.2d 237, 240 (Miss.1989)). Before a trial judge admits a statement, the State must prove it was voluntary beyond a reasonable doubt. Moore v. State, 933 So.2d 910, 919 (¶ 30) (Miss.2006) (citing Morgan v. State, 681 So.2d 82, 86 (Miss.1996)). A prima facie case is met and this burden is satisfied if the State offers “the testimony of an officer, or another person having knowledge of the facts, ‘that the confession was voluntarily made without any threats, coercion, or offer of reward.’ ” Collins v. State, 97 So.3d 1247, 1253 (¶ 20) (Miss.Ct.App.2012) (quoting Moore, 933 So.2d at 919 (¶ 30)). The trial judge, as fact-finder, “determines the voluntariness of a confession from the totality of the circumstances.” Id. (citing Thomas v. State, 42 So.3d 528, 535 (¶ 24) (Miss.2010)). And once the trial judge has determined a confession is admissible, “the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.” Sills v. State, 634 So.2d 124, 126 (Miss.1994) (quoting Frost v. State, 483 So.2d 1345, 1350 (Miss.1986)). “As long as the trial judge applied the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence.” Foster v. State, 639 So.2d 1263, 1281 (Miss.1994) (citations omitted).

2. The Suppression Hearing

¶ 12. During the mid-trial suppression hearing, Investigator Dean detailed the events of his interview with Petty. The interview took place just after the investigator deemed the results of Petty’s polygraph examination were inconclusive. Investigator Dean explained that before he administered the polygraph examination, he informed Petty of his Miranda rights, and that Petty responded that he understood them. Petty then signed a form acknowledging he was voluntarily waiving these rights. According to Investigator Dean, Petty did not ask to speak with a lawyer, nor did he request a lawyer to attend his interview or polygraph examination.

¶ 13. During the post-polygraph interview, Petty admitted penetrating his six-year-old niece’s vagina with his finger and having her rub his penis. Petty gave a handwritten statement memorializing his description of the sexual battery and molestation. He then signed his statement. To ensure its accuracy, Investigator Dean read Petty’s statement back to him. And Petty made no requests to revise the statement.

¶ 14. As to the voluntariness of Petty’s confession, Investigator Dean was clear that he made no promises of reward nor offers of leniency to Petty when interviewing him in connection with the polygraph examination. Dean also maintained that he neither threatened Petty nor told him he would be better off if he confessed or cooperated.

¶ 15. But Petty seized on Investigator Dean’s response to a question he was asked on cross-examination during the suppression hearing. Petty’s attorney asked Investigator Dean whether there was any discussion during the interview about a potential sentence. And Dean testified that he did not recall whether the two had talked about a potential sentence. As Investigator Dean put it, “[i]t may have come up. I don’t remember that. But I’m not saying it didn’t happen, I just don’t remember it.” Dean testified that he did not “recollect” telling Petty that he would probably serve six months. When pressed by Petty’s attorney on whether it was “possible” a similar discussion had occurred before the interview, Investigator Dean explained:

I don’t want to say it’s not possible. Anything’s possible. But I don’t — I don’t see where I would have. I don’t see where anybody could get six months for it, not to say that they couldn’t but I don’t — that doesn’t sound reasonable, but I can’t say for sure that it didn’t happen.

Petty testified next. He claimed Investigator Dean had promised him at the outset of the interview that, if he confessed, he would only serve six months to a year in prison. But if he maintained his innocence, Dean would seek the most severe penalty possible. He also claimed that Investigator Dean’s statements had caused him to become nervous, upset, and scared, and that he “wasn’t in [his] right mind” when he confessed to the crime.

¶ 16. After Petty testified, Investigator Dean was recalled by the State. He was asked:

Q: At any time during the course of your interview, did you make a threat to the defendant that if he did not confess, that you would attempt to see that he got the worst possible sentence in the case?
A: No.
Q: At any time during the course of your interview with the Defendant, did you threaten him that if he did not confess that you would just see how much time he could get?
A: No.

Investigator Dean also testified that he did not recall Petty mentioning that he was having a dizzy spell. From his recollection, Petty did not appear to be any more nervous than other suspects Dean had interviewed during his time in law enforcement.

¶ 17. Presented with these conflicting versions, the trial judge deemed Investigator Dean’s testimony more credible than Petty’s. After addressing Petty’s Miranda waiver, the trial judge reflected on the evidence and specifically found:

As far as the purported promises, that if you confess or give the statement, I’ll just see that you can go to East Mississippi [Correctional Facility] for maybe six months, or some place like that. Or, if you don’t, I will see how much time that you could get. So that has the promise on one hand and the threat on the other. So what is this about, as a fact finder? I think it’s all about credibility. And [defense counsel] artfully argues that this really gives rise to reasonable doubt during his full-bore cross-examination of Mr. Dean, where he had Mr. Dean — when it was suggested that he said, I’ll see how much time you could get, that it caused Mr. Dean to think a minute. And he thought a minute. And he thought further. And the further question was proffered, and I observed his demeanor, smelling the smoke of battle, being right here looking at him, frankly, I believe he was imminently honest, because he was trying to recollect something that, on September 29, [2010,] here we are in July of [2011]. And I think he was doing the best he could in trying to remember, but he hedged a little bit, maybe saying, well, I don’t know whether it was said or not. But in the total scheme of his conversation in cross-examination the first time then when he was brought back, and when he vehemently denied that — when you look at both of those, the Court is totally at peace as far as the truth and veracity of what happened and I believe he was imminently honest. I particularly believe that the seasoned officer did not even go near the making of any threat or offering any promise.

Based on these findings, the trial judge admitted Petty’s confession.

¶ 18. With respect to Petty’s argument, we note the voluntariness of a confession is not tested by merely deciding whether the State’s witness recalls discussion of a possible sentence. Rather, the State may meet its burden of establishing the voluntariness of a confession by offering testimony from someone with knowledge “that the confession was voluntarily made without any threats, coercion, or offer of reward.” Collins, 97 So.3d at 1253 (¶ 20) (quoting Moore, 933 So.2d at 919 (¶ 30)). And here, Investigator Dean was steadfast that he did not threaten or coerce Petty. Nor did he testify that he offered Petty a reward of a lesser sentence for his confession. Faced with the conflicting testimony, the trial judge found Investigator Dean’s testimony “imminently honest.” As the judge saw it, “the seasoned officer did not even go near the making of any threat or offering any promise.”

¶ 19. Considering our particular review, the supreme court has been clear that when a trial judge expressly or even implicitly resolves the issue of admissibility of a confession against a defendant, the scope of appellate review is quite confined. Stokes v. State, 548 So.2d 118, 122 (Miss.1989). If the court applies the correct legal standards — as it did here — “we will not overturn a finding of fact made by a trial judge unless it [is] clearly erroneous.” Alexander v. State, 610 So.2d 320, 326 (Miss.1992) (citations omitted). “Where, on conflicting evidence, the court makes such findings, [appellate courts] generally must affirm.” Id.

¶ 20. While there was no doubt competing evidence, the trial judge applied the correct legal standard, and his decision was not clearly erroneous. Thus, we find Petty has not met the heavy burden of showing his confession was involuntary and should have been suppressed.

II. Sentencing

¶ 21. The judge sentenced Petty to thirty-five years in prison, -with thirty years to serve and five years suspended, followed by five years’ supervised probation. Petty was ordered to serve the entirety of the sentence without the possibility of parole. On appeal, Petty argues his sentence was greater than that authorized by law because section 97-3-101(3) does not expressly authorize day-for-day sentences and parole restrictions.

¶ 22. But Petty fails to consider Mississippi Code Annotated section 47 — 7—3(1)(b) (Rev.2011), which prohibits convicted sex offenders, like Petty, from being released on parole. Thus, his challenge lacks merit.

¶ 23. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE, WITH THIRTY YEARS TO SERVE, FIVE YEARS SUSPENDED, AND FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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

      . The names of the victim and her parents have been changed to protect their identities.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The State did not seek to admit the polygraph results, but did not object to the defense questioning Investigator Dean about the inconclusive test.