author: RANDOLPH, Presiding Justice,

text:
    Edward COX v. STATE of Mississippi.
    No. 2012-CA-01329-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2014.
    Rehearing Denied April 10, 2014.

      Richard Shane McLaughlin, Nicole H. McLaughlin, Jim Waide, Rachel Pierce Waide, Tupelo, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Edward Cox appeals the Clay County Circuit Court’s denial of his motion to dismiss a three-count indictment, which charged Cox with three counts of aggravated assault under Section 97-3-7 of the Mississippi Code. The issue before this Court is whether the justice court’s act of revoking Cox’s suspended sentence for a prior misdemeanor assault and sentencing him to a six-month sentence bars the State from prosecuting Cox’s subsequent felony assaults. We hold that Cox’s double-jeopardy claim applies only to his original charge, conviction, and sentence, but not his subsequent criminal actions. Therefore, we affirm the trial court.

FACTUAL BACKGROUND

¶ 2. On three separate occasions, July 23, August 24, and August 30, 2010, Edward Cox assaulted Joshlyn Blair, his wife. On August 20, 2010, Cox pleaded guilty to misdemeanor domestic violence for the July 23, 2010, assault. The Justice Court of Clay County sentenced Cox to three months supervised probation and a three-month suspended sentence and ordered Cox to complete an anger management program.

¶ 3. Four days after the sentencing, on August 24, 2010, Cox again assaulted Blair. On August 30, 2010, Cox assaulted Blair for the third time, along with their son, Jamarkuz Cox and Blair’s sister, Cheryl Jackson. During the latter attack, Cox not only cut Blair’s neck with a knife, he stabbed her multiple times in the torso. Cox also cut Jamarkuz on the arm and stabbed him in the elbow. Cox ended his multiple assaults by cutting Cheryl’s neck.

¶ 4. On September 17, 2010, the Clay County Justice Court entered a Temporary Order for Protection from Domestic Abuse and revoked Cox’s three-month suspended sentence, sentencing him to six months in jail for violating his probation order for the July 23, 2010, misdemeanor. On February 4, 2011, the Clay County Justice Court separately found Cox guilty of domestic violence for the August 24 assault, and sentenced him to twelve months. Cox appealed the conviction to the circuit court, where he was found guilty and sentenced to one year in jail after a de novo trial.

¶ 5. On April 11, 2011, Cox was indicted for three counts of aggravated assault under Section 97-3-7 of the Mississippi Code for the assaults of August 30, 2010. Cox filed a motion to dismiss the indictment based on the double-jeopardy clause of the Mississippi and U.S. Constitutions. Cox argued that when the justice court revoked his three-month suspended sentence and sentenced him to six months in jail for the misdemeanor conviction resulting from the July 23 assault, he was “punished” for the stabbing events on August 30, 2010. Thus, he argued that the State was precluded from indicting him for the August 30 crimes, as it would constitute double punishment. Following a hearing, the Circuit Court of Clay County denied Cox’s motion to dismiss. Cox appealed. Finding no error, we affirm.

ANALYSIS

¶ 6. The sole issue presented by Cox is whether Cox’s current prosecution for aggravated assault is barred by the prohibition against double jeopardy in the State and U.S. Constitutions. This Court applies a de novo standard of review to claims of double jeopardy. Kelly v. State, 80 So.3d 802, 804 (Miss.2012). The denial of a double-jeopardy claim is treated as a final judgment by the lower court. Beck-with v. State, 615 So.2d 1134, 1146 (Miss. 1992) (“[bjecause of the unique nature of the denial by a circuit court of a colorable double jeopardy claim ... it is final ... which gives this Court jurisdiction”).

¶ 7. Cox argues that double jeopardy bars the indictment, because he already was punished for the August 30 felony assault when the justice court sentenced him to six months in jail for violating his probation. Our jurisprudence dictates otherwise.

¶ 8. The double-jeopardy clause provides three separate protections: “(1) protection from a second prosecution for the same offense after acquittal, (2) protection from a second prosecution for the same offense after conviction, and (3) protection from multiple punishments for the same offense.” Kelly v. State, 80 So.3d 802, 805 (Miss.2012) (citations omitted). This Court, in Wallace v. State, held that “[wjhere a guilty plea is accepted and a suspended sentence is imposed, the court cannot later impose a period of incarceration exceeding the original suspended sentence where the defendant fails to maintain a standard of good behavior. To do so would expose the defendant to double jeopardy.” Wallace v. State, 607 So.2d 1184, 1187 (Miss.1992) (citing Leonard v. State, 271 So.2d 445, 447 (Miss.1973)). However, double jeopardy attaches only as to that particular offense and sentence, not subsequent crimes. See Wallace, 607 So.2d at 1187; see Johnson v. State, 758 So.2d 449, 454 (Miss.Ct.App.1999); Ethridge v. State, 800 So.2d 1221, 1224 (Miss.Ct.App.2001); Branch v. State, 996 So.2d 829, 882 (Miss.Ct.App.2008); Williams v. State, 4 So.3d 388, 394 (Miss.Ct.App.2009).

¶ 9. In the case sub judice, the circuit court did not err by denying Cox’s motion to dismiss the indictment. A double-jeopardy claim attached only to the first conviction/sentence for the July 23 misdemeanor, not for the subsequent crimes of August 24 and 30. Thus, Cox’s claim is without merit.

CONCLUSION

¶ 10. We affirm the trial court’s denial of Cox’s motion to dismiss the indictment.

¶11. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, PIERCE, KING and COLEMAN, JJ., concur.

CHANDLER, J., not participating.

      . Double jeopardy rights are "collateral to and totally independent of his guilt or innocence or the conduct of his trial, and are of immediate urgency." Beckwith v. State, 615 So.2d 1134, 1145 (Miss.1992).

      . The justice court did err in expanding Cox's sentence, an issue not before this Court.


source: Caselaw Access Project

author: WALLER, Chief Justice,

license: Public Domain

text:
    Ralph Arnold SMITH, Jr. v. Ricky BANKS, Sheriff of Leflore County, Mississippi, and the State of Mississippi.
    No. 2012-CA-01850-SCT.
    Supreme Court of Mississippi.
    Jan. 30, 2014.
    Rehearing Denied April 10, 2014.

      William Charles Bell, Ridgeland, attorney for appellant.

      Office of the District Attorney, Fourth District by Timothy Hutson Jones, attorney for appellees.
    Before WALLER, C.J., LAMAR and KITCHENS, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Ralph Arnold Smith Jr. appeals from the Leflore County Circuit Court’s denial of his habeas corpus petition. After reviewing Smith’s petition and the evidence proffered to the trial court, we find that Smith is not entitled to habeas corpus relief. Accordingly, we affirm the judgment of the trial court.

STATEMENT OF THE CASE

¶ 2. Smith was arrested on April 29, 2012, and charged with one count of capital murder and two counts of conspiracy to commit murder. The State charged Smith with capital felony murder for causing the death of Keaira Byrd. The State alleged that Smith had conspired with Byrd to murder Lee Abraham, a Greenwood attorney. According to the State, the underlying felony raising Byrd’s death to capital murder was Byrd’s own “burglary by subterfuge” of Abraham’s office. Byrd and Derrick Lacy were attempting to enter Abraham’s office under false pretenses to murder him when Byrd was killed by an investigator with the Attorney General’s office. The State also charged Smith with one count of conspiracy to commit murder for his alleged involvement in the murder-for-hire plot with Byrd and Lacy, along with a second count of conspiracy to commit murder for entering into an agreement with Cordarious Robinson to find someone to kill Abraham.

¶ 3. The record reflects that, diming his initial appearance in justice court, Smith was granted $100,000 bail on his conspiracy charge with Cordarious Robinson, but was denied bail on the other conspiracy charge and the capital-murder charge. Smith then had a preliminary hearing before the Leflore County Court on May 16, 2012. At the hearing, the county court found that there was probable cause to bind Smith over to await the action of the Grand Jury of Leflore County on all three charges. The court refused to grant bail on Smith’s capital-murder charge, finding that the proof was evident and the presumption great that Smith had committed a capital crime. The court also denied bail for Smith’s charge of conspiracy with Byrd and Lacy, finding that Smith’s release would constitute a special danger to Abraham and his family. The county court denied the State’s request to revoke the bail granted on Smith’s conspiracy charge ■with Robinson. The county court issued an oder to this effect on May 21, 2013. Smith then filed a petition for bail with this Court, arguing that the county court had erred in denying bail. A panel of this Court denied Smith’s petition for bail. See Smith v. State, No. 2012-M-01054 (Miss. July 18, 2012).

¶ 4. On September 12, 2012, Smith filed a petition for writ of habeas corpus in the Leflore County Circuit Court, claiming that his detention without bail on his capital-murder charge was illegal. For the purposes of this appeal, Smith claimed that he could not be held without bail for capital murder because the State’s allegations against him did not state a valid charge for capital murder. Smith argued that Byrd’s death was not committed “without authority of law” by someone engaged in the underlying felony of burglary, as alleged by the State, because Byrd was killed by a law-enforcement officer acting in self-defense. The trial court entered an order directing the circuit clerk to issue a writ of habeas corpus for Smith to be brought before the court for a hearing. The Le-flore County Circuit Clerk then issued a ■writ of habeas corpus on October 3, 2012.

¶ 5. Sometime between the filing of Smith’s petition and the habeas corpus hearing, a Leflore County Grand Jury indicted Smith on all charges. Smith’s ha-beas corpus hearing was held on October 9, 2012. At the beginning of the hearing, the trial court considered arguments by the parties on the issues. Smith’s counsel argued, as he had done at the preliminary hearing and in the petition for bail filed with this Court, that Smith could not be held on the capital-murder charge because the State’s allegations did not give rise to a valid charge of capital murder. The State responded that, regardless of Smith’s arguments regarding the validity of his capital-murder charge, he was still being legally held without bail on his conspiracy charge, which Smith had not challenged in his habeas corpus petition. The State also pointed out that a grand jury already had indicted Smith on all charges brought against him. After hearing from the parties, the trial court denied Smith’s petition, reasoning:

This is a civil proceeding and this proceeding is really kind of ancillary to the criminal procedure taking place in the actual process of the indictment and reaching up to the trial, itself. And I’m concerned that you’re asking the Court through a civil proceeding to reach into the process that ordinarily belongs to the trial of the case and make some decisions on those issues, and I’m just reluctant to do that.
There are remedies available to the defendant through the trial procedures that bring forward these issues that you — appropriately bring forward these issues before the criminal trial court. It’s going to be the decision of the Court that the Petition for Writ of Habeas Corpus, the relief sought in the petition will be denied.

The trial court then allowed Smith’s counsel to proffer any evidence that he intended to produce at the hearing. The majority of the evidence proffered by Smith focused on the circumstances surrounding Byrd’s death and related evi-dentiary issues.

¶ 6. The trial court entered an order denying Smith’s habeas corpus petition. Smith subsequently filed a motion to set aside, alter, or amend, the trial court’s order, arguing that the order did not accurately reflect the course of events at the habeas corpus hearing. Smith pointed out that the trial court’s order mentioned “pleadings filed before the Supreme Court and the ruling by that Court,” but that no evidence to that effect had been introduced at the hearing. Smith requested that the trial court amend its order to reflect that Smith’s petition for habeas corpus was denied without a trial based on documents not provided to Smith or entered into evidence. Smith also filed a motion requesting the circuit court judge to recuse himself from the case. The trial court denied both of these motions.

¶ 7. Smith now appeals to this Court, raising the following issues:

I. Whether the trial court erred in failing to allow evidence on Smith’s petition for writ of habe-as corpus.
II. Whether the trial court erred by basing its ruling on documents provided by the State that were not entered into evidence.

STANDARD OF REVIEW

¶ 8. “The rule is that the judgment of the trial court which heard the habeas corpus proceeding is presumptively correct, and, where the evidence is conflicting, the judge’s finding of fact, if supported by the evidence, will not be disturbed on appeal.” Lee v. Hudson, 165 Miss. 756, 144 So. 240 (1932). “[T]he judgment of a habeas corpus court will not be disturbed, unless it is manifest to us that the trial court either tried the cause upon an erroneous conception of the law, or that the judgment is erroneous upon the facts.” Parker v. Tullos, 150 Miss. 680, 116 So. 531, 532 (1928).

DISCUSSION

I. Whether the trial court erred in failing to allow evidence on Smith’s petition for writ of habeas corpus.

¶ 9. The writ of habeas corpus is a privilege guaranteed by our Constitution that cannot be suspended, “unless when in the case of rebellion or invasion, the public safety may require it, nor ever without the authority of the legislature.” Miss. Const, art. 3, § 21 (1890). “The writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty ... except in the cases expressly excepted.” Miss. Code Ann. § 11-43-1 (Rev.2012). “The function of the habeas corpus court in Mississippi in criminal cases is to release a prisoner who is being unlawfully held or to grant him a bail bond which he can make.” Keller v. Romero, 303 So.2d 481, 483 (Miss.1974). However, “[a] habeas corpus writ cannot be used as a collateral method to prevent a trial on an indictment in this state[.]” Id.

¶ 10. Smith’s habeas corpus petition focused solely on the validity of his capital-murder charge, which Smith believes fails as a matter of law, entitling him to be discharged, or alternatively, to be granted bail on that charge. We must first note that the habeas corpus court was without authority to discharge Smith for his capital-murder charge. After a defendant in a criminal case has been indicted, as here, the habeas corpus court has no power to discharge the defendant, but is limited to granting bail. Street v. State, 43 Miss. 1, 30 (1870). We therefore can view Smith’s habeas corpus petition only as a request for bail on his capital-murder charge.

¶ 11. Mississippi’s Constitution grants all criminal defendants the right to bail prior to conviction, with certain exceptions. Miss. Const, art. 3, § 29, cl. 1 (1890). Because Smith is charged with capital murder, he is not entitled to bail pending trial if “the proof is evident or the presumption great” concerning his guilt. Id. In addition, because Smith’s conspiracy charges carry a maximum penalty of twenty years’ imprisonment, bail may be denied on those charges where “the proof is evident or the presumption great” upon a determination by the court that Smith’s release would constitute a “special danger to any other person or to the community!)]” Miss. Const, art. 3, § 29, cl. 3 (1890).

¶ 12. On appeal, Smith argues that the trial court erred in denying his habeas corpus petition -without allowing him to present evidence in support of his arguments. After reviewing our court rules governing preconviction habeas corpus matters, we find that Smith was entitled to present witnesses and other evidence for the purpose of proving that he was wrongly denied bail. After the writ of habeas corpus is issued, the habeas corpus court must hold a hearing on the matter, and “shall either discharge, or commit, or admit to bail, or remand the movant ... as the law and the evidence shall require.” URCCC 2.07(A)(9)(a) (emphasis added). The parties are entitled to invoke the processes of civil discovery, to the extent that the court grants leave to do so. URCCC 2.07(A)(8). Upon a hearing on the matter, “[t]he order rendered by the court shall be conclusive until reversed and shall be a bar to another writ of habeas corpus in the same cause[.]” URCCC 2.07(A)(9)(b). A fair interpretation of these provisions demonstrates that a habeas corpus petitioner is entitled to an evidentiary hearing once the writ of habeas corpus has been issued.

¶ 13. Because Smith was entitled to present evidence supporting his arguments, we conclude that the trial court erred in ruling on Smith’s petition without allowing him to present any evidence. However, after reviewing Smith’s habeas corpus petition, his argument before the trial court, and the evidence proffered at the habeas corpus hearing, we agree with the trial court that Smith is not entitled to habeas corpus relief.

¶ 14. First, Smith’s petition for ha-beas corpus failed to challenge the validity of his detention for his conspiracy charge. Smith’s indictment created a prima facie ease of the legality of his detention on all charges. Russell v. Crumpton, 208 Miss. 433, 44 So.2d 527, 529 (1950). Smith therefore had the burden of proving that he was wrongly denied bail on each of his charges. At the preliminary hearing, the county court found that Smith’s release would constitute a special danger to Abraham, the target of Smith’s alleged conspiracy, which foreclosed Smith’s eligibility for bail. See Miss. Const, art. 3, § 29, cl. 3 (1890). Smith did not challenge this finding at the preliminary hearing in county court, in his petition for bail before this Court, or in his habeas corpus petition in circuit court. Smith did challenge the finding at his habeas corpus hearing but failed to proffer any evidence supporting his position. Smith is being held lawfully without bail on a charge of conspiracy to commit murder and therefore is not entitled to habeas corpus relief.

¶ 15. In addition, the majority of the evidence proffered by Smith was irrelevant to the purposes of the habeas corpus hearing. For example, Smith’s assertion that local law enforcement had no prior notice of the Attorney General’s investigation of Smith’s alleged conspiracy has no bearing on whether Smith was being illegally detained without bail. Smith’s evidentiary arguments regarding Byrd’s autopsy and the conditions of the crime scene must be determined “by the trial court that has jurisdiction to try the charge against [Smith], and not the habeas corpus court.” Keller, 303 So.2d at 482. Due to Smith’s proffer of largely irrelevant evidence, the trial court understandably found Smith’s arguments to be an attempt to bypass his criminal proceeding to collaterally defeat his capital murder-charge without a trial by jury.

¶ 16. Although the trial court erred in refusing to allow Smith to present evidence in support of his petition for habeas corpus, we find that the evidence proffered by Smith would not have entitled Smith to any relief that the court could have granted. In addition, Smith’s failure to proffer any evidence supporting his challenge to the validity of his detention on his conspiracy charge forecloses his eligibility for release on bail. Therefore, we affirm the trial court’s decision to deny Smith’s petition for habeas corpus.

II. Whether the trial court erred by basing its ruling on documents provided by the State that were not entered into evidence.

¶ 17. Smith argues that the trial court’s denial of his habeas corpus petition was not based on substantial evidence because it was founded in part on documents not entered into evidence during the habeas corpus hearing. Our holding concerning Smith’s first claim of error renders this issue moot, since a judgment on the merits, if rendered, would be of no practical benefit to Smith and no detriment to the State. See Gartrell v. Gartrell, 936 So.2d 915, 916 (Miss.2006). Accordingly, we decline to address Smith’s arguments regarding this issue.

CONCLUSION

¶ 18. Since Smith is not entitled to ha-beas corpus relief, we affirm the judgment of the Leflore County Circuit Court.

¶ 19. AFFIRMED.

DICKINSON AND RANDOLPH, P JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. COLEMAN, J., NOT PARTICIPATING.

      . Smith’s indictments were not made a part of the record on appeal.


author: PIERCE, Justice, KITCHENS, Justice, COLEMAN, Justice,

text:
    Jeffrey Lance HILL a/k/a Jeffrey L. Hill a/k/a Jeff Hill a/k/a Jeffrey Hill a/k/a Jeffrey Scott Hill a/k/a Jeffrey L. Hill v. STATE of Mississippi.
    No. 2012-KA-00724-SCT.
    Supreme Court of Mississippi.
    Feb. 6, 2014.
    Rehearing Denied April 10, 2014.

      Office of State Public Defender by Mollie Marie McMillin, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Jeffrey Lance Hill was indicted by an Oktibbeha County grand jury of possession of a firearm on educational property (the campus of Mississippi State University) in violation of Mississippi Code Section 97-37-17(2) (Rev.2006). In two jury trials, Hill represented himself with the assistance and advice of court-appointed counsel. Hill’s first trial resulted in a hung jury. Hill was found guilty of the indicted offense in his second trial and was sentenced to three years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay a $1,200 fine. The trial court denied Hill’s post-trial motion for a new trial or, in the alternative, judgment notwithstanding the verdict (JNOV). This appeal followed.

¶ 2. Hill challenges his conviction based on the following two issues: (I) Whether Hill’s right to counsel and a fair trial under the Sixth Amendment was violated when the trial court refused to allow Hill’s court-appointed counsel, Stephanie Mallette, to withdraw; and (II) whether the trial court erred when it failed to grant Hill’s motion for a new trial on the ground that the verdict was against the overwhelming weight of the evidence.

¶ 3. Finding error as to the first issue, we reverse Hill’s conviction and remand the case to the trial court for a new trial. We decline to address the second issue concerning whether the verdict was against the overwhelming weight of the evidence.

FACTS

¶ 4. In September 2010, the Mississippi State University Police Department received a report that Hill possibly was in possession of a firearm at Aiken Village Apartments on the campus of Mississippi State University. The department sent Detective Steve Westbrook and two other officers to investigate the report. When the officers arrived at Hill’s apartment, Hill’s roommate allowed them to enter. Once the officers were inside, Hill entered the room and spoke with the officers. Out of concern for officer safety, Westbrook asked Hill if there wei-e any weapons in his bedroom, and Hill responded that he had a rifle in his closet. Westbrook and Hill retrieved the weapon together. Hill was then arrested for having a firearm on campus property. Hill told the officers that he had no other firearms, but that he had had ammunition in his vehicle.

¶ 5. Hill’s first trial in January 2012 resulted in a hung jury. Hill’s second trial in May 2012 resulted in a conviction of the charged offense. Hill chose to represent himself at both trials with the assistance of court-appointed advisory counsel, Stephanie Mallette. The result of the second trial is the only matter before us.

¶ 6. There was no dispute that Hill was in possession of a World War II Era Russian Mosin Nagant rifle, in working condition, and 440 rounds of ammunition, while living at the Aiken Village Apartments. Hill’s defense at trial centered completely on his belief that Aiken Village Apartments were not located on the campus of Mississippi State University (MSU).

¶ 7. During its case-in-chief, the State displayed a campus map and established that Aiken Village Apartments were represented on the map. The State introduced Vicky Gallegos, the Housing Assignment Specialist for MSU Housing and Residence Life, who explained that any student obtaining housing through the university must go online, access his personal student account with his student ID and password, read the housing contract and terms and conditions, then select that the terms have been read and agreed to. Further, the student is instructed to read the “Rules and Regulations” and “Prohibited Items” sections of the web page, which includes the instruction that no firearms, ammunition, and other forms of weapons are allowed on any part of the campus, including student housing. The State admitted evidence demonstrating how these rules were displayed to the student. Gallegos confirmed that Hill could not have applied for housing without reading and acknowledging these rules and that the university received electronic confirmation when Hill acknowledged the terms and regulations. She also provided that the documents explain the complete applicability of the rules to overflow housing.

¶ 8. On cross-examination, Hill sought to show that he was never given a housing contract that specifically stated that Aiken Village Apartments were part of the overflow accommodations or that the apartments were owned by the university. Testimony revealed that Hill was asked by the university and consented to being moved to an overflow accommodation. Exhibits were entered into evidence indicating that Hill had signed his inventory form for Aiken Village, which displayed the university’s name on the form. Also revealed was the fact that Hill’s housing costs were paid from Hill’s student account with the university. Photos also were introduced showing the apartment’s sign including the term “University Housing.”

¶ 9. Hill testified at trial to his belief that he did not live on university property by the fact that the apartments had a Starkville, Mississippi, mailing address, unlike residence halls, which have a Mississippi State, Mississippi, address, with different zip codes. Among other reasons, Hill claimed the apartments did not have the strict parking signs seen on campus, yet he had received a parking ticket for not having a parking decal. He also stated that Aiken Village appears to be outside of campus because he passed the ten-foot wall displaying “Mississippi State University” en route to the apartments, which gave him the impression that he was exiting the campus. Further, he explained that he knew firearms were prohibited on campus, so he had never before brought the rifle from his home in Arkansas until he moved into Aiken Village because of his belief that he was not on university property. Hill stated that he had obtained the rifle for hunting, but testimony from Detective Westbrook confirmed that Hill did not have a hunting license.

¶ 10. Also during the trial, it became known for the first time that a confidential informant originally had alerted the police about Hill’s possible possession of the firearm. Once the existence of a confidential informant became known, Mallette argued to the trial court the validity of keeping the informant’s identity and statement confidential. Mallette also raised the issue of a discovery violation, since the existence of the informant never before had been mentioned. The State responded that it did not have to reveal the identity of the informant, because Detective Westbrook was the eyewitness to the crime. Prior to the incident, the informant merely had reported to authorities that Hill was possibly in possession of a firearm. After much debate, the trial court ultimately ruled that no discovery violation had occurred and ordered that the police report be provided to the defense after any information regarding the identity of the informant had been redacted. The trial court ordered that a nonredacted copy would be preserved for the record under seal. The State, however, failed to properly redact a portion of the report that was given to Mallette, thereby revealing to Mallette that the informant was Hill’s roommate.

¶ 11. Afterward, Mallette moved the trial court to allow her to withdraw from representing Hill. The trial court heard Mallette’s motion in chambers, on the record. Mallette told the trial court that she could not fulfill her ethical obligation to Hill and as well as her ethical obligation to the trial court not to reveal the informant’s identity as Hill’s roommate. She said she would have advised Hill to call his roommate as a witness, had she been given the report before the trial began. Mallette also explained that Hill previously had consulted with her about when to rest his case, and she was concerned that if he asked her again she would have to advise him to move for a mistrial in order to call the roommate as a witness.

¶ 12. At that point, the trial court considered appointing new advisory counsel, and called in another public defender, Mark Williamson, to represent Hill through the end of trial. The trial court informed Williamson of the conflict that had arisen in Mallette’s representation of Hill, and informed him of what his role would be as Hill’s advisory counsel. Williamson informed the trial court that his first advice for Hill, as his attorney, would be to ask for a mistrial, because he could not act as Hill’s advisory counsel knowing nothing about the case. The court then instructed Mallette that she would remain as advisory counsel and that she should inform Hill that, because of a conflict, she could not advise him on whether to rest his case, if he asked her that specific question.

¶ 13. The State proceeded to call one rebuttal witness, and after cross-examination by Hill, both sides rested. Thereafter, the jury found Hill guilty of possessing a firearm on educational property.

ANALYSIS

I. Whether Hill’s right to counsel and a fair trial under the Sixth Amendment was violated when the trial court refused to allow Hill’s court-appointed advisory counsel, Stephanie Mallette, to withdraw.

¶ 14. Hill argues that the trial court’s actions materially interfered with his defense counsel’s ability to provide loyal assistance to him. Hill further contends that the trial court’s decision not to relieve Mallette from her duty to assist Hill was based in large part on the trial court’s disagreement with the advice that Williamson proposed to give to Hill — to ask for a mistrial. Thus, the trial court deprived him of his right to a fair trial. We agree.

¶ 15. The trial court has complete discretion when considering a motion to withdraw as counsel. Rubenstein v. State, 941 So.2d 735, 783 (Miss.2006) (citing Taylor v. State, 435 So.2d 701, 703 (Miss.1983)). See also Myers v. State, 254 So.2d 891, 898 (Miss.1971). Limitations must be enforced when considering appointing new counsel to circumvent any maneuvers that interfere with the “orderly procedure in the courts or ... the fair administration of justice.” Rubenstein, 941 So.2d at 783 (citing Taylor, 435 So.2d at 703 (quoting United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.1963))).

¶ 16. On appeal, Hill contends that the denial of Mallette’s motion to withdraw deprived him of his Sixth Amendment right to counsel, thus, an unfair trial resulted. We fully agree with the concurring opinion and its conclusion that Hill’s constitutional rights to assistance of counsel and self-representation were originally jeopardized originally when Mallette was granted her request to withdraw as counsel because of a conflict of interest but simultaneously was assigned to remain in an advisory-counsel capacity. Additionally, we find error in the trial court’s later ruling requiring Mallette to remain as Hill’s advisory counsel when her obligations to the trial court and her obligations to Hill were in conflict.

¶ 17. The record shows, as mentioned, that there was no dispute at trial that Hill was in possession of a firearm while on educational property in violation of Section 97-37-17(2). Hill’s defense throughout trial was that he did not know he was on educational property. During Hill’s cross-examination of Westbrook, while bringing out that defense, information came to light that Westbrook and the other officers had come to Hill’s apartment the day Hill was arrested based on a report from an informant. When Hill asked Westbrook the informant’s name, the State objected on the ground that the informant’s name was confidential. Lengthy debate between Mallette and the State ensued with regard to Mississippi’s discovery requirements in criminal proceedings. Ultimately, the trial court found no discovery violation.

¶ 18. We agree with the trial court’s ruling that revealing the identity of the confidential informant to Hill was not required. Read v. State, 430 So.2d 832 (Miss.1983) (court did not require disclosure of confidential informant who did not participate in the crime in any way but had seen the drugs at the residence and had reported to the police); see also Corry v. State, 710 So.2d 853, 858-59 (Miss.1998) (finding no manifest error in trial court’s decision to deny defendant’s motion to require disclosure of informant’s identity, because no evidence showed that the informant had participated in the crime or was an eyewitness to the crime); Esparaza v. State, 595 So.2d 418, 424 (Miss.1992) (informant who did not witness the offense charged and did not serve as a witness in the proceeding, but merely provided data that established probable cause to support a search warrant, constituted too tenuous a link to justify, under Mississippi law, disclosing the informant’s identity); Arnett v. State, 532 So.2d 1003, 1008 (Miss.1988) (“There is no evidence in the record that the informant was a participant or an eyewitness to the crime, and consequently disclosure of the witness was within the sound discretion of the trial judge....”).

¶ 19. As mentioned before, Mal-lette felt conflicted because she inadvertently had learned the informant was Hill’s roommate. Since the trial court ultimately ruled that the identity of the confidential informant could not be revealed to Hill, Mallette felt her obligations to the trial court and her obligations to Hill were now in conflict because the trial court was restricting her from instructing Hill to move for a mistrial, rather than resting his case, in order to call his roommate as a witness.

¶ 20. By instructing Mallette to refrain from counseling Hill on whether to rest his case, the trial court effectively left Hill without any type of counsel, advisory or otherwise. In Howard, v. State, this Court concluded that advisory counsel’s role in aiding the defense included “among other things, the necessity of preparing as adequately as possible to assume a more active role in the trial, should the need arise.” Howard v. State, 701 So.2d 274, 285 (Miss.1997). The defendant in Howard communicated to both standby counselors that he wanted them to present the closing arguments. Id. The trial judge ruled that standby counsel should prepare jury instructions, but that it was too late in the trial for them to begin arguing the case. Id. This Court pointed to the fact that the trial court had instructed Howard to use and rely upon the appointed standby counselors, even though he was representing himself, only to deny him the assistance the trial court had so encouraged. Id. This Court cited McKaskle v. Wiggins, in which the United States Supreme Court provided the following guidance:

Once the pro se defendant invites or agrees to participation by counsel, any subsequent appearances by counsel must be presumed to be within the defendant’s acquiescence, at least until the point that the defendant expressly and unambiguously renews his request that counsel be silenced.

Howard, 701 So.2d at 287 (citing McKaskle, 465 U.S. 168, 188, 104 S.Ct. 944, 953-54, 79 L.Ed.2d 122 (1984)).

¶21. Here, the trial court repeatedly attempted to convince Hill to seek assistance from Mallette, then later instructed Mallette to refrain from counseling Hill on whether to rest his case, because she had stated that she would counsel Hill to move for a mistrial in order to secure Hill’s roommate as a witness.

¶ 22. We must be clear that the roles and responsibilities of “full-fledged counsel” and advisory counsel are different and are not one and the same with regard to the protections of the Sixth Amendment right to counsel. U.S. v. Taylor, 983 F.2d 307, 312 (5th Cir.1991).

¶ 23. However, a problem arises when a defendant initiates the assistance of counsel and subsequently is denied such assistance. McKaskle, 465 U.S. at 183, 104 S.Ct. 944. As previously mentioned, Hill communicated to Mallette that he wanted her assistance on whether to rest his case. Thus, it is clear from the facts of this case that Hill had requested her full assistance on the matter. Id. The Mississippi Constitution states in part that “... the accused shall have a right to be heard by himself or counsel, or both.... ” Metcalf v. State, 629 So.2d 558, 562 (Miss.1993) (citing Miss. Const, art 3, § 26 (1890)). We must recognize the importance of reaching a balance between two imperative rights: the right of self-representation and the constitutional right of representation by counsel. Metcalf v. State, 629 So.2d at 562.

¶ 24. We find that the trial court erred by assigning Mallette as Hill’s advisory counsel while, at the same time, allowing her to withdraw as his counsel because of a conflict of interest. The trial court again erred when Mallette was required to remain as advisory counsel once a conflict arose between her duty to the court and her duty to Hill.

CONCLUSION

¶ 25. This Court reverses Hill’s conviction for possession of a firearm while on educational property, and remands the case to the Oktibbeha County Circuit Court for a new trial consistent with this opinion.

¶ 26. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., LAMAR, CHANDLER AND KING, JJ., CONCUR. KITCHENS, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., DICKINSON, P.J., CHANDLER AND KING, JJ., COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J.

KITCHENS, Justice,

concurring:

¶ 27. Our constitutional guarantees that the accused have assistance of counsel require reversal of Hill’s conviction. Thus, I concur with the disposition. U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”); Miss. Const, art. 3, § 26 (“In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both....”). The Court correctly finds that a conflict of interest arose during trial and that Hill’s court-appointed counsel, Stephanie Mallette, should not have been appointed as standby counsel. However, the trial court already had determined, well before the second trial began, that Mallette had a conflict of interest justifying her removal from the case. Still, despite recognizing her divided loyalties, the trial court required her to continue as Hill’s advisor. Whether her role was “full-fledged” counsel, standby counsel, or somewhere in between is immaterial, for any degree of legal advice requires absolute loyalty to the client. See Kiker v. State, 55 So.3d 1060, 1065 (Miss.2011) (“Under our system of jurisprudence, if a lawyer is not one hundred percent loyal to his client, he flunks.”) (quoting Littlejohn v. State, 593 So.2d 20, 22 (Miss.1992)). Once the Court determined that there was an actual conflict of interest, Hill was entitled to the appointment of substitute counsel. Id. at 1066 (citing Littlejohn, 593 So.2d at 25). Because Hill was not given the option of court-appointed, conflict-free counsel, I concur with the Court’s reversal of his conviction.

¶ 28. Generally, a trial judge enjoys discretion when considering an attorney’s motion to withdraw. See e.g., Rubenstein v. State, 941 So.2d 735, 783 (Miss.2006). Likewise, this Court applies an abuse of discretion standard of review to denials of defendants’ requests to discharge counsel. Rinehart v. State, 883 So.2d 573, 576 (Miss.2004). But this discretion is not absolute, for our courts always must apply the correct legal standards. See e.g., Freeman v. State, 121 So.3d 888, 894-95 (Miss.2013) (in contrast to findings of fact, questions of law are reviewed de novo) (citing City of Laurel v. Williams, 21 So.3d 1170, 1174 (Miss.2009)). Although Court approval is required before appointed counsel may be relieved of his or her representation, a conflict of interest, once recognized by a court, requires the trial court to remove the conflicted attorney. Hayden v. State, 972 So.2d 525, 536 (Miss.2007). The lower court did not apply this legal standard, and this error is clearly reflected in the record before us.

¶29. Hill’s first court-appointed attorney was allowed to withdraw after Hill had filed a bar complaint and accused that attorney of attempting to “sabotage” his case. Mallette was appointed in that lawyer’s stead, and Hill continued to file various pro se motions and letters, as he had from the beginning of the case. The first trial was set for January 31, 2012, and on January 9, 2012, he filed several documents with the circuit court, including a letter indicating that he was “firing” his attorney. In the letter, Hill made numerous accusations against Mallette, alleging, among other things, that she had filed motions on his behalf without his consent, that she had refused to interview his witnesses, and that she had allegedly accused him of murdering two men. As with his request that his first attorney be discharged, Hill did not state that he wished to proceed pro se. Instead Hill wrote, “I will not be seeking another public defender. I choose to seek my own counsel.”

¶ 30. On January 25, 2012, Mallette requested that she be allowed to withdraw and that Hill be permitted to obtain his own counsel. Her motion cited a personal conflict of interest based on the letter’s accusations and Hill’s having filed a complaint against her with the Mississippi Bar. The trial court granted Mallette’s motion in an “Order Allowing Withdrawal.” The order noted that there had been a hearing on the matter and announced that Mallette “is withdrawn from her representation of [Hill].” Yet, the very next sentence read, “Stephanie Mallette is hereby appointed to represent Jeffrey Lance Hill as standby counsel and assist him with legal and procedural matters when he requests as necessary pursuant to Rule 8.05 of the U.R.C.C.C.P.”

¶ 31. The order ostensibly granting Mallette’s motion to withdraw and then appointing her as standby counsel was entered on January 31, 2012, the day of Hill’s first trial, and the sequence of events that day is unclear. There are no transcripts in the appellate record related to these first proceedings, including the hearing on Mallette’s motion to withdraw. That same day, the trial court entered an order declaring a mistrial, noting that “the Defendant appeared in open Court representing himself to answer the indictment.” The order did not mention Mallette, and there is no reference that Hill had been given standby counsel. In other words, it is impossible to determine the extent of Mal-lette’s participation in the first trial, if any. The record does not reflect a request from Hill to exercise his right to self-representation in his first trial, and there is no documentation that Hill “knowingly and voluntarily” waived his right to counsel.

¶ 82. Although Hill is appealing the conviction from his second trial, the proceedings related to the first trial certainly bear upon the question of whether he “validly waived his right to counsel.” The second trial began with the trial court’s cautioning Hill about the pitfalls of self-representation and reminding Hill that he could reconsider his prior decision(s) to proceed pro se. Hill also was given the warnings set forth in Rule 8.05 of the Uniform Circuit and County Court Rules and outlined in Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Hill responded affirmatively when the trial judge asked him whether he still wished to exercise his right to self-representation.

¶ 33. Nevertheless, the trial court’s “Order of Withdrawal,” appointing Mal-lette as standby counsel despite a conflict of interest, still was in effect at the second trial. Even if Hill could have waived the conflict, nothing in the record indicates that the conflict was explained to Hill or what impact it may have had on Mallette’s ability to provide appropriate representation. Rule 8.05 provides general guidelines, but also requires the court to inform the defendant of “other matters as the court deems appropriate.” A conflict of interest falls in this category. This Court has adopted the generally accepted rule that “[i]n order for a defendant effectively to waive his right to conflict-free counsel, the trial judge should affirmatively partiei-pate in the waiver decision by eliciting a statement in narrative form from the defendant ... indicating that he fully understands the nature of the situation and has knowingly and intelligently made the decision to proceed with the challenged counsel.” Littlejohn, 593 So.2d at 25 (quoting United States v. Alvarez, 580 F.2d 1251, 1260 (5th Cir.1978)).

¶34. The judge assured Hill that he had a constitutional right to defer to standby counsel at any point and to allow Mallette to take on “whatever role he desire[d].” During the trial, Hill clearly relied on these assurances, frequently consulting Mallette and asking/permitting her to argue the merits of crucial objections. At times, the trial judge instructed Mallete to participate actively in Hill’s defense while instructing Hill to remain silent and speak through his attorney. Thus, Mal-lette’s role at trial was not limited to standby counsel, and her involvement was more akin to one acting as “co-counsel.” See Metcalf v. State, 629 So.2d 558, 562 (Miss.1993) (noting that “hybrid representation” is a “middle ground” serving “to strike a balance between the right to counsel and the right to self-representation.”). Her expanded role at trial only compounded the error made when the court determined that Mallette had a conflict of interest but did not remove her from the case.

¶ 35. By their very nature, our constitutional guarantees of due process of law and the right to counsel encompass the right to conflict-free representation and undivided loyalty. See e.g., Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 481, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978)); Kiker v. State, 55 So.3d 1060, 1066 (Miss.2011) (citing Littlejohn v. State, 593 So.2d 20, 23 (Miss.1992); Armstrong v. State, 573 So.2d 1329, 1331 (Miss.1990)). It is evident from the record that Hill’s constitutional rights to assistance of counsel and/or self-representation were compromised before his first trial had begun. U.S. Const, amend VI; Miss. Const, art. 3, § 26. The trial court twice required Mal-lette to continue representation, despite conflicts of interest. Although the trial court followed the narrative provided in Rule 8.05, without an explanation and waiver of the conflict, Hill could not “knowingly and voluntarily” exercise his right to self representation. URCCC 8.05. Hill could not have made an informed and intelligent decision to waive his right to counsel, because Hill was not given the option of being defended by conflict-free counsel. Having determined that Mallette had a conflict of interest warranting her removal from the case, the trial court erred by appointing her as standby counsel. The error was compounded when the trial court encouraged, and sometimes required, that Mallette participate as “hybrid counsel.” Accordingly, I would reverse the judgment of conviction based on a conflict that had existed long before trial began.

WALLER, C.J., DICKINSON, P.J., CHANDLER AND KING, JJ., JOIN THIS OPINION.

COLEMAN, Justice,

dissenting:

¶ 36. I find persuasive the reasoning of several courts that have held that a criminal defendant has no Sixth Amendment right to advisory counsel after validly waiving his right to counsel at trial. See U.S. v. Singleton, 107 F.3d 1091, 1102 (4th Cir.1997); U.S. v. Salerno, 81 F.3d 1453, 1460 (9th Cir.1996); People v. Brante, 232 P.3d 204, 208 (Colo.App.2009); People v. Gordon, 108 Cal.App.3d 907, 166 Cal.Rptr. 809, 814 (1980); State v. Clark, 722 N.W.2d 460, 466 (Minn.2006); State v. Gonzales, 181 Ariz. 502, 510, 892 P.2d 838, 846 (1995). Hill, not his advisory counsel, “must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.” McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).

¶ 37. I am not, as the majority suggests, concerned with whether Hill has a Sixth Amendment right to advisory counsel. He does not. My concern is with the effect of the absence of a Sixth Amendment right to advisory counsel on the majority’s attempt to find a violation of the nonexistent right. Perhaps one appointed as advisory counsel could give bad advice to a client — even awful advice. However, the majority does not adequately explain how — even if Hill has shown a failure of his advisory counsel to render good advice — the purported failure of advisory counsel rises to the level of a Sixth Amendment violation when Hill clearly and on the record waived his Sixth Amendment right to counsel.

¶ 38. Because I cannot agree with the logic of the majority in predicating its holding on the violation of a Sixth Amendment right to advisory counsel that does not exist, I respectfully dissent.

RANDOLPH, P.J., JOINS THIS OPINION.

      . It is unnecessary to address the dissent's concern as to whether a Sixth Amendment right to advisory counsel exists, as that issue is not before us. However, we stress that, even though the trial court appoints counsel in an advisory capacity, such counsel is still obligated to provide the defendant with adequate assistance in accordance with the defendant’s requests.

      . Hill’s first lawyer was the same attorney who was asked to serve as Mallette’s replacement during the second trial. Thus, he was not eligible to serve in Mallette’s place.

      . In fact, the trial court previously had determined that "the Defendant wanted two witnesses called at his trial with whom [Mallette] had a conflict of interest precluding her from contacting the witnesses and interviewing them.” (Emphasis added.) The order then appointed another attorney, Marty Haug,
      with the limited responsibility to interview [the two witnesses] and report to Ms. Mal-lette the substance of their testimony should either be called as witness. Should either be called as a witness [Haug] will be responsible for examining the witness(es). Ms. Mallette is ordered to turn over a copy of all discovery materials provided by the State of Mississippi as well as to assist [Haug] with the substance of the potential witnesses.
      Thus, despite Mallette’s conflict, the order appeared to require Mallette’s direct participation in the matter as she was required to "assist [Haug] with the substance of the potential witnesses.” The record does not reveal the nature of Mallette’s conflict; but the order raises questions as to whether her inability to interview certain witnesses would have disqualified her from further representation.

      .The trial judge had crossed out the phrase "when he requests.” He replaced that phrase with "as necessary,” and initialed the alteration.

      . "When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” Id.


author: JAMES W. KITCHENS, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Chancery Court Judge Joe Dale WALKER.
    No. 2014-JP-00005-SCT.
    Supreme Court of Mississippi.
    Feb. 18, 2014.
   ORDER

JAMES W. KITCHENS, Justice,

for the Court.

This matter is before the Court en banc on the Mississippi Commission on Judicial Performance’s Petition for Interim Suspension of Chancery Court Judge Joe Dale Walker and that Commission’s memorandum brief in support thereof, the Respondent’s Rule 10D Brief in Opposition to Petition for Interim Suspension (which includes a request for oral argument before this Court), the Respondent’s Motion for Continuance Where Counsel is Legislator and the Commission’s response thereto, together with the transcript of a hearing before the Commission at which Judge Walker was required to appear and show cause why he should not be suspended from judicial office during the pendency of the Commission’s inquiry concerning him. The Court, having carefully considered the multitude of pleadings, briefs, exhibits, and filings in connection therewith, does hereby find and adjudicate as follows:

1.Judge Walker’s present request for oral argument consists of two statements. “ORAL ARGUMENT REQUESTED” appears at the bottom of the cover page of his brief, and the concluding statement in Judge Walker’s affidavit attached to the brief petitions this Court as follows: “Because of the severity of this matter I would request the opportunity to appear before the Supreme Court prior to any interim suspension being entered.”

Thus, the respondent only partially complied with MRAP 84(b), which requires that “[t]he party requesting oral argument shall, in his or her brief or letter, include a concise statement of the reasons that oral argument will be helpful to the court.” Accordingly, the request for oral argument is hereby denied, but without prejudice. Judge Walker may make a proper request for oral argument at such time as the parties engage in full and final briefing concerning whatever recommendations the Commission ultimately may present to this Court.

2. The motion for continuance is dismissed as moot.

3. The Mississippi Commission on Judicial Performance unanimously has recommended to this Court the interim suspension of Chancery Court Judge Joe Dale Walker, and after due consideration the Court is of the opinion, and does hereby find and adjudicate, that such recommendation is well taken. Accordingly, it is ordered that Chancery Court Judge Joe Dale Walker is hereby suspended from the performance of the duties of his office, with pay, during the pendency of this inquiry before the Commission and before this Court. Such interim suspension is effective immediately and shall remain in effect pending further order of this Court.

SO ORDERED.


author: PIERCE, Justice, DICKINSON, Presiding Justice,

text:
    Craig Deandre WILLIAMS a/k/a Craig Williams a/k/a Craig D. Williams v. STATE of Mississippi.
    No. 2012-KA-01415-SCT.
    Supreme Court of Mississippi.
    March 27, 2014.

      Office of State Public Defender by W. Daniel Hinchcliff, George T. Holmes, David Clay Vanderburg, attorneys for appellant.
    Office of the Attorney General By Laura Hogan Tedder, John R. Henry, Jr., attorneys for appellee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Craig Deandre Williams was convicted of armed robbery in the DeSoto County Circuit Court following a jury trial. Williams appeals his conviction, claiming: (1) a broken “BB gun” does not meet the definition of a deadly weapon for purposes of Mississippi’s armed-robbery statute; (2) the trial court failed to instruct the jury regarding the legal definition of a deadly weapon; and (3) because the jury was instructed that they “need not actually see a deadly weapon,” they were misinstructed on the legal necessity of the use of a deadly weapon. Finding no merit in any of these contentions, we affirm Williams’s armed-robbery conviction.

FACTS

¶ 2. On March 10, 2011, narcotics agents with the DeSoto County Sheriffs Department organized a controlled drug-and-gun buy between Rodney Long and Williams, to take place at the Tulane Park Apartments in Horn Lake, Mississippi. Long, a confidential informant working off a previous drug charge, had informed the agents that he could “score drugs and a gun” from Williams.

¶ 3. At a pre-buy location, the agents wired Long with audio and video surveillance equipment and provided him $280 in cash for the transaction. From there, Long drove his vehicle to the Tulane Park Apartments. The agents followed Long in separate vehicles, staying close enough behind to monitor the transaction via the audio transmitter concealed inside Long’s clothing.

¶ 4. When Long arrived at the apartment complex, he met Williams in an upstairs breeze-way located outside apartment building number 800. Williams asked Long if he had brought the money. Long said, “Yes.” Long then asked Williams if he had brought “the pills and the gun.” Williams said, ‘Yeah, I got it.” Long pulled the buy money out of his pocket and began counting it in front of Williams. At that point, Williams pulled from his pocket what Long believed was a black handgun; shoved it in Long’s stomach; and told Long to give him “everything” and nobody would get hurt. As Long handed Williams the money, Williams grabbed the money, hit Long on the side of the head with the gun, and ran from the scene. Stunned and scared, Long shouted, “I just got robbed.” Hearing this from the audio transmission, the agents immediately proceeded to the scene. En route, one agent saw an African-American male wearing a red and black hooded sweatshirt running eastbound across the apartment complex. A foot chase ensued, ending when Williams ran into a nearby shed. The agent radioed for backup and secured the area. While in the shed, Williams, who was age fifteen at the time, called his mother from his cellular phone. Williams’s mother came to the scene, and Williams surrendered to the agents shortly thereafter.

¶ 5. During the robbery investigation, Commander Roger Hutchins found $280 hidden in Williams’s shoe. Back at the apartment complex, Deputy Keith Post noticed what appeared to him to be a Glock .45-caliber semiautomatic handgun lying in a flower pot in front of Apartment 701. Deputy Post reported what he had found to Deputy Kenny Free. Deputy Free came and retrieved the item and processed it for evidence. The item was determined to be a broken pellet/BB gun. During questioning, Williams admitted to the robbery and that the pellett/BB gun was his.

¶ 6. A DeSoto County grand jury indicted Williams for armed robbery under Mississippi Code Section 97-3-79 (Rev.2006). A DeSoto County jury found Williams guilty of armed robbery based on evidence that included: testimony from Long and agents involved in the investigation; Williams’s confession; a recording of the audio and video surveillance; the money found in Williams’s shoe; and the pellet/BB gun submitted into evidence. Upon Williams’s conviction for armed robbery, the trial court sentenced Williams to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with twelve years to serve, followed by thirteen years post-release supervision, with five years reporting.

¶ 7. Williams timely appeals his conviction. Additional facts, as necessary, will be added during our discussion of the issues, which we relate verbatim as set forth in Williams’s appellate brief.

DISCUSSION

I. WHETHER THE BROKEN BB GUN INTRODUCED INTO EVIDENCE WAS A DEADLY WEAPON WITHIN THE MEANING OF THE ARMED-ROBBERY STATUTE, WHERE THE ONLY PROOF ADDUCED SHOWED THE TOY WAS BROKEN AND WHEN USED AS A CLUB DID NOT CAUSE SERIOUS BODILY INJURY.

¶ 8. Section 97-3-79, under which Williams was tried and convicted, states in pertinent part:

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

Miss.Code Ann. § 97-3-79 (Rev.2006).

¶ 9. Citing Duckworth v. State, 477 So.2d 935 (Miss.1985), Williams acknowledges that whether a particular item is actually a “deadly weapon” as contemplated by statute, has long been held to be a question for the jury’s determination. See Duckworth, 477 So.2d at 938 (affirming armed-robbery conviction where question whether a blank starter pistol was a deadly weapon was properly resolved by the jury). Williams also acknowledges that both this Court and the Court of Appeals have affirmed armed-robbery convictions where a BB gun was used during the commission of a robbery. See Saucier v. State, 562 So.2d 1288, 1246 (Miss.1990), overruled on other grounds (finding that a broken pellet gun weighing “three or four pounds[,]” which could be used as a club to inflict serious bodily injury, met the definition of a deadly weapon under Section 97-3-79); Thomas v. State, 936 So.2d 964, 967 (Miss.Ct.App.2006) (affirming armed-robbery conviction where “[tjhere was testimony that a pellet gun can inflict serious bodily injury”). Williams contends, however, the evidence here is uncontroverted that the pellet/BB gun in question was broken and inoperable, which distinguishes his case from Thomas. Williams further contends that no proof was adduced for the jury as to the pellet/BB gun’s weight, and, even though the pellet/BB was used as a club, no serious bodily injury resulted; thus, Saucier is inapplicable.

¶ 10. In his argument on appeal, Williams makes much of the fact the pellet/BB gun entered into evidence at trial was broken. Unlike the Saucier Court, we do not have the actual pellet/BB gun before us on appeal, and the record does not indicate what exactly Williams means by “broken.” Nevertheless, this fact was for the jury to contend with, not this Court. Based upon the record before us, one reasonably can infer from the additional facts of this case that what broke the pellet/BB gun was the manner in which it was used. That no serious bodily injury resulted from its use simply goes to the victim’s good fortune, not to Williams’s culpability under Section 97-3-79. And the fact that testimony was given as to the gun’s weight is of no moment to this Court. The pel-lei/BB gun was submitted to the jury for its inspection and consideration of the object’s propensity for harm.

¶ 11. In Cittadino v. State, 199 Miss. 235, 24 So.2d 93 (1945), this Court vociferously articulated the legislative intent behind our armed-robbery statute. In addressing the argument that the State had failed to establish the existence of a deadly weapon because there was no proof that a firearm used in a robbery was loaded or that its potential use as a bludgeon was not intimated, the Cittadino Court said this:

The evil sought to be abated was the employment of such weapons as are held generally, and therefore by the victim, to be deadly. We do not have a case where the weapon has been shown not to be deadly because not loaded or otherwise incapable of use as a firearm. Nor do we treat of the manner of its use since it was not used to effect a battery but accomplished its purpose by its challenge that the actor was ready, able and quite willing to make it deadly. The limited option, made proverbial by the techniques of a ruthless banditry, of money or life is a representation by the culprit that the weapon is deadly and that he will kill because he can kill. This representation, whether voiced or not, is what the bandit expects or insists that the victim comprehend and so accept as literally true, whereby he is immobilized by a reasonable fear. This is the substance from which a genuine inference of the deadly character of the weapon may be formed.
These considerations are not advanced to fortify doubts as to the prima facie sufficiency of the proof of deadly character where the weapon used is, as such proved or universally recognized as in that category and exhibited for the purpose of effecting robbery through a fear of immediate injury to the person. The law has from earliest times recognized the right of the victim to justify retaliation by extreme measures upon the reasonable assumption that the threat and danger are real because they have intentionally been so represented by the assailant. If the citizen may so presume in his own defense, the State may do so in defense of society, of which he is a representative unit. The provocation of bloodshed, even at the hands of the victim, was not unworthy of legislative notice. The [trial] court was not, therefore, in error in allowing the jury to draw the inferences which appellant himself intended the victim to draw.

Cittadino, 24 So.2d at 95-96.

¶ 12. Citing Cittadino, Duckworth, and other cases, the Saucier Court found the BB gun at issue before it was, as a matter of law, a “deadly weapon” within the meaning of the armed-robbery statute. Saucier, 562 So.2d at 1246. The Court qualified its holding, stating: “Of course, the constitution precludes a directed verdict for the prosecution on any essential element of the offense charged. Accordingly, we may only hold that this weapon was not such that Saucier was entitled to have the issue taken from the jury and decided in his favor.” Id.

¶ 13. Here, Williams makes the same argument(s) asserted before and rejected by the Cittadino, Duckworth, and Saucier Courts. In line with those holdings, we find Williams was not entitled to a directed verdict on the question of whether the pellet/BB gun constituted a “deadly weapon” under Section 97-3-79. This issue is without merit.

II. WHETHER THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY REGARDING THE DEFINITION OF A DEADLY WEAPON, A NECESSARY ELEMENT TO THE CRIME OF ARMED ROBBERY, DENIED WILLIAMS A FAIR TRIAL.

III. WHETHER THE INSTRUCTION GIVEN THE JURY THAT [THE VICTIM] “NEED NOT ACTUALLY SEE A DEADLY WEAPON” WAS CONFUSING AND THEREBY MISIN-STRUCTED THE JURY ON THE LEGAL NECESSITY OF AN ACTUAL DEADLY WEAPON BEING UTILIZED IN THE CRIME OF ARMED ROBBERY.

¶ 14. We address issues two and three together. Williams first contends that, because the trial court failed to provide an instruction legally defining for the jury a deadly weapon, the necessity of an actual deadly weapon as required by Section 97-3-79 was obviated in this case. Williams further contends the error was compounded when the trial court instructed the jury at the State’s request that the victim need not see a deadly weapon.

¶ 15. At the outset, we note that Williams did not object to any of the jury instructions complained of on appeal. Nor did Williams present to the trial court any of the arguments he presents here. Therefore, Williams’s points of contention are subject to plain-error review. Under our plain-error doctrine, there has to be a finding of error, and that error must have resulted in a manifest miscarriage of justice for reversal to occur. Gray v. State, 549 So.2d 1316, 1321 (Miss.1989).

¶ 16. “This Court reads jury instructions as a whole to determine whether the jury was fully and properly instructed according to the applicable law.” Clark v. State, 40 So.3d 531, 544 (Miss.2010). “[I]f all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.” Id. (quoting Davis v. State, 18 So.3d 842, 847 (Miss.2009)).

¶ 17. The law, of course, requires the jury “must be instructed regarding the elements of the crime which the defendant is charged.” Hunter v. State, 684 So.2d 625, 635 (Miss.1996). We find that jury instruction S-l does so. It reads as follows:

The Defendant [Wiliams], has been charged with the crime of Robbery with a Deadly Weapon, also known as Armed Robbery. If you find from the evidence in this case, beyond a reasonable doubt that:
1) On or about March 10, 2011, the Defendant [Williams],
2) Did take from the presence or from the person of [Long],
3) Certain personal property, being approximately $280.00 in cash money, which was the personal property of the DeSoto County Sheriffs Department, and
4) Such taking was against the will of [Long], and
5) As a means of taking the cash money, [Williams] put [Long] in fear of immediate injury to his person by the exhibition of a deadly weapon, to-wit: a pistol;
then you shall find [Williams], guilty of Robbery with a Deadly Weapon.
If the State has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find the defendant not guilty.

¶ 18. Williams, however, contends that the trial court also should have given an instruction similar to the one upheld by this Court in Duckworth and later in Davis v. State, 530 So.2d 694 (Miss.1988), defining what legally constitutes a deadly weapon. The instruction provided in those cases, generally, reads as follows:

It is a question of fact for the Jury to determine whether the [instrument] claimed to have been used by the [Defendant] was a deadly weapon in the manner claimed to have been used in this case.
A deadly weapon may be defined as any object, article or means which, when used as a weapon is, under the existing circumstances, reasonably capable or likely to produce death or serious bodily harm to a human being upon whom the object, article or means is used as a weapon.

See, e.g., Davis, 530 So.2d at 700 (citing Duckworth, 477 So.2d at 938).

¶ 19. We agree with Williams that this type instruction better informs the jury that the question as to whether a particular instrument constitutes a deadly weapon lies with the jury. But we cannot say that, because this particular instruction was not given, a manifest miscarriage of injustice resulted in this case. Again, jury instruction S-l properly set forth all the elements of the crime of armed robbery. Williams’s contention to the contrary, the instruction is not peremptory. It does not assume or charge the jury that the pellet/BB gun was in fact a deadly weapon. And it clearly gives the jury the option of finding that Williams did not employ the use of a deadly weapon.

¶ 20. Still, Williams argues that, because of jury instruction S-2, the jury was allowed to infer that the pellet/BB gun at issue need not have been an actual deadly weapon. Jury instruction S-2 instructed that: “When a defendant makes an overt act and the victim reasonably believes that the defendant has a deadly weapon, it is not required that the victim actually see a deadly weapon to support a conviction for armed robbery.”

¶ 21. This instruction is based on this Court’s holding in Dambrell v. State, 903 So.2d 681 (Miss.2005), where we overruled Gibby v. State, 744 So.2d 244 (Miss.1999). In Gibby, this Court held that the victim’s assumption that the defendant possessed a gun was insufficient to prove the exhibition of a deadly weapon under Section 97-3-79. Gibby, 744 So.2d at 245. The Dambrell Court held:

After careful consideration, this Court overrules Gibby v. State, 744 So.2d 244 (Miss.1999). We find that when a defendant makes an overt act and a reasonable person would believe that a deadly weapon is present, there is no requirement that a victim must actually see the deadly weapon in order to convict pursuant to [Section] 97-3-79. Therefore, a victim is not required to have “definite knowledge” of a deadly weapon in the sense that the weapon must actually be seen by the victim’s own eyes.

¶ 22. Williams argues that the Dam-brell decision (where proof existed of an actual deadly weapon used by the defendant) did not intend to do away with the statutory requirement that a deadly weapon be used in an armed robbery, yet that seems to be an unintended consequence. Williams contends that the jury in this case was told implicitly by the State that all the law requires to convict someone of armed robbery is what the victim perceives.

¶ 23. We do not find that to be the case. Nor do we find Dambrell controlling in this instance. The State presented direct evidence of the actuality of a deadly weapon. And even though the State needlessly presented a circumstantial theory of a deadly weapon through jury instruction S-2, this was inconsequential, since the question of whether the pellet/BB gun constituted a deadly weapon was submitted to the jury for its determination.

¶ 24. Accordingly, we find issues two and three are without merit.

CONCLUSION

¶ 25. We affirm Williams’s armed-robbery conviction and the sentence imposed by the DeSoto County Circuit Court.

¶ 26. CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWELVE (12) YEARS TO SERVE AND THIRTEEN (13) YEARS POST-RELEASE SUPERVISION, WITH FIVE (5) YEARS REPORTING, WITH CONDITIONS, AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, KING AND COLEMAN, JJ„ CONCUR. DICKINSON, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.

DICKINSON, Presiding Justice,

concurring in part and in result:

¶ 27. Because I continue to disagree with this Court’s holding in Dambrell v. State, and because the trial judge in this case granted the State a jury instruction based on that decision, I concur in part and result.

¶ 28. Mississippi’s armed-robbery statute requires the State to prove that the defendant facilitated a robbery by “exhibition of a deadly weapon.” And in Gibby v. State, we held that the statute meant what it said, and that a robbery victim’s assumption that the defendant possessed a weapon would not substitute for actual exhibition of the weapon during the robbery.

¶ 29. But in Dambrell, the defendant— who had entered a store, intending to commit a robbery — carried with him a knife that was completely concealed by a towel wrapped around his hand. He was convicted of armed robbery, and he appealed, arguing that he did not exhibit any weapon at all.

¶ 80. A majority of this Court adopted the concept of constructive exhibition, that is to say, the State no longer was required to prove the defendant actually exhibited a deadly weapon (as required by the statute), so long as the State could prove that “a defendant [made] an overt act and a reasonable person would believe that a deadly weapon [was] present... ,”

¶ 31. Believing that statutes should be applied as they were written by the Legislature, I dissented in Dambrell. As I stated in that case, criminal statutes must be strictly construed in favor of the accused, and the majority opinion impermissibly abrogated a statutory element of armed robbery. Simply put, one cannot commit armed robbery without actually exhibiting a deadly weapon.

¶ 32. In the case before us today, the trial court granted a jury instruction based on this Court’s Dambrell holding. Because I believe Dambrell was erroneously decided, I cannot join the majority’s conclusion that the trial court did not err by granting that instruction. That said, the defendant in this case actually exhibited a deadly weapon, so I join the majority in part, and in result.

CHANDLER, J., JOINS THIS OPINION.

      . Dambrell v. State, 903 So.2d 681 (Miss. 2005).

      . Miss.Code Ann. § 97-3-79 (Rev.2006).

      . Gibby v. State, 744 So.2d 244, 245 (Miss.1999).

      . Dambrell, 903 So.2d at 682.

      . Id. at 683.

      . Id. at 689, 690 (Dickinson, J., dissenting) (citing Conley v. State, 790 So.2d 773, 809 (Miss.2001)).

      . Miss.Code Ann. § 97-3-79 (Rev.2006).