author: CHANDLER, Justice, KITCHENS, Justice,

text:
    Jermaine NEAL v. STATE of Mississippi.
    No. 2007-KA-01899-SCT.
    Supreme Court of Mississippi.
    June 4, 2009.
    Rehearing Denied Sept. 3, 2009.

      James A. Williams, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   EN BANC.

CHANDLER, Justice,

for the Court.

¶ 1. Jermaine Neal was convicted of the murder of his girlfriend, Lakeshia Cleveland. The Circuit Court of Tallahatchie County sentenced Neal to life in the custody of the Mississippi Department of Corrections. Neal appeals. He makes the following ten assignments of error for our determination:

I. Whether the jury instructions failed to track the material elements of the indictment.
II. Whether the voir dire process prejudiced the jury against Neal and denied him a fair trial.
III. Whether Neal was entitled to a change of venue.
IV. Whether the trial court erred in not conducting an examination of a juror who left the courtroom without permission.
V. Whether hearsay testimony denied Neal his right to confrontation.
VI. Whether Neal received ineffective assistance of counsel.
VII. Whether there was a valid conviction despite the trial court’s failure to state that the court accepted the jury’s verdict.
VIII. Whether Neal was entitled to lesser-offense jury instructions on the crimes of heat-of-passion manslaughter and desecration of a human corpse.
IX. Whether cumulative error requires reversal.
X. Whether the evidence was sufficient to support the verdict and whether the verdict was against the overwhelming weight of the evidence.

FACTS

¶ 2. On August 21, 2006, Jermaine Neal and Lakeshia Cleveland were living together in Scobey, Mississippi. Two of Cleveland’s children also lived in the home at this time: A.B., who was approximately eight months old, and C.D., age nine. A.B. supposedly was Neal’s son, but Neal recently had become suspicious of whether he really was A.B.’s father. C.D. had a different biological father. On this particular day, Mary Loerker, the couple’s neighbor, picked up C.D. from the bus stop after school. When C.D. attempted to get into his house, the windows and doors were locked, which, according to C.D., was abnormal. C.D. went to Loerker’s residence and eventually fell asleep.

¶ 3. Shortly after 1 a.m. on the morning of August 22, 2006, Neal began pounding on Loerker’s door, claiming that “his baby” was dead. Loerker called the police. Tallahatchie County Sheriffs Deputy Rodzinsky Weekly responded to the dispatch. Upon Deputy Weekly’s arrival, Neal approached Weekly’s car carrying A.B. He informed Deputy Weekly that the baby’s mother was dead in their house. At this point, Deputy Weekly handcuffed Neal and placed him in his patrol car. Deputy Weekly entered the home. He witnessed a large amount of blood on the master bed, a blood trail leading from the master bedroom to the bathroom, and Cleveland’s decapitated, naked body floating in the bathtub. Deputy Weekly contacted Sheriff William Brewer and Investigator Brandon Hodges.

¶4. Investigator Hodges testified that when he arrived on the scene, he entered the home and noticed the blood-stained bed, the blood trail to the bathroom, a blue comforter in the bathroom, and a bottle of bleach near the bathtub. He observed that someone had written the words, “Bitch take care of my son” and “Lame” in marker on the bathroom wall. Investigator Hodges requested assistance from Investigator Walter Davis of the Mississippi Bureau of Investigation. When Investigator Davis arrived, Hodges and Davis got into the back seat of the patrol car with Neal, read Neal his Miranda rights, obtained Neal’s waiver of his rights, and received Neal’s written consent to search the residence. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶ 5. The officers questioned Neal in the patrol car for about twenty minutes. Neal communicated that he had worked the three-to-eleven p.m. shift that night. He said that when he returned home, he found Cleveland’s body in its present condition, with the baby still in his crib just as Neal had left him before going to work. After the interview, Sheriff Brewer transported Neal to the police department for further questioning; the Mississippi Department of Human Services was contacted to retrieve the two children. Officers subsequently obtained Neal’s clock-in sheet from work, which indicated that Neal had clocked in ten minutes late on the date the murder occurred. Neal’s supervisor indicated that this was highly unusual, because Neal was always at work early.

¶ 6. At the jail, Neal gave his permission for officers to collect his clothing, fingernail clippings, and a DNA swab. Investigator Hodges noticed that while Neal had no blood on his outer clothing, there was a blood stain on his underwear. That afternoon, officers again gave Neal his Miranda rights, obtained Neal’s waiver of his rights, and questioned him. See id. At first, Neal was adamant that he was not involved in the murder. However, later that day, he told the officers that if they would let him use a pay phone, he would tell them where he put Cleveland’s head. After using the pay phone, Neal informed the officers that he had disposed of Cleveland’s head in Grenada Lake; he agreed to show them the exact location.

¶ 7. Despite Neal’s indication that he would cooperate with the investigation, he proved to be evasive about the location of Cleveland’s head, and it was never found. Initially, officers transported Neal to a dam at Grenada Lake where Neal said he had thrown Cleveland’s head in the water. But when the investigators told Neal that it would have been impossible for him to have thrown the head that far, Neal changed his story and said that he threw it off the main spillway. After failing to locate Cleveland’s head near the spillway, investigators obtained video surveillance tapes of the spillway from the time in question. The tapes did not show that Neal had been there.

¶ 8. On the ride back to the sheriffs department from the spillway, Investigator Davis questioned Neal further and took notes. Investigator Davis asked Neal why Cleveland did not struggle while she was being decapitated. In response, Neal asked to see the pad on which Investigator Davis had been writing. Neal wrote on the pad that he had shot Cleveland twice in the head before decapitating her.

¶ 9. The next afternoon, Investigators Davis and Hodges again gave Neal his Miranda rights, obtained Neal’s waiver of his rights, and performed another interview, which was videotaped. See id. During this interview, Neal told the officers that he and Cleveland had gone to Bates-ville that morning. When they returned home, they lay down for a nap. Neal said that while Cleveland was asleep, he shot her twice, then he retrieved a knife from the kitchen and cut off her head. Neal said that he put Cleveland’s decapitated body inside a comforter, dragged it to the bathroom, filled the bathtub with water, put Cleveland’s body into the bathtub, and poured bleach on it to remove his fingerprints. Neal stated that he retrieved Cleveland’s head from the bed and placed it into a bag along with the knife. It was at that point that he wrote on the bathroom wall. Then Neal departed; he threw the bag containing Cleveland’s head into Grenada Lake, disposed of the gun at a construction site, and continued on to his job.

¶ 10. When asked what prompted him to murder Cleveland, Neal responded that “it was just a lot of pressure.” Neal stated that although he and Cleveland had not been arguing on the day of the murder, he had begun to suspect that Cleveland was being unfaithful and that the baby, A.B., was not his son. Neal confessed that he had attempted to conceal his guilt of the murder by sending text messages from Cleveland’s cell phone to Cleveland’s friend’s cell phone and from his own cell phone to Cleveland’s cell phone. Subsequently, the police searched for the items Neal disposed of, including dragging the spillway and employing a dive team. But despite searching every location Neal identified, neither Cleveland’s head, the knife, nor the gun were ever recovered. No shell casings were located at the crime scene.

ANALYSIS

I. WHETHER THE JURY INSTRUCTIONS FAILED TO ADDRESS EVERY MATERIAL ELEMENT IN THE INDICTMENT.

¶ 11. Neal claims that a jury instruction on murder constructively amended the indictment. Neal was charged and convicted under Mississippi Code Section 97-3-19(l)(a), which states that the killing of a human being will be considered murder “[w]hen done with deliberate design to effect the death of the person killed, or of any human being.” Miss. Code Ann. § 97-3 — 19(l)(a) (Rev.2006). Neal’s indictment charged that Neal “on or about the 22nd day of August ... 2006 ... did willfully, unlawfully, and feloniously decapitate Lakeshia Cleveland, a human being; Jermaine Neal acted with the deliberate design to effect the death of Lakeshia Cleveland, in direct violation of Section 97-3-19(l)(a).” The jury was instructed that it could find Neal guilty of murder if it found beyond a reasonable doubt that Neal had killed Cleveland with the deliberate design to effect her death, and not in necessary self-defense. Thus, the murder instruction allowed the jury to return a verdict of guilt if it believed that Neal had killed Cleveland in some manner other than by decapitation.

¶ 12. Neal also argues that the State’s evidence showed that he killed Cleveland by shooting her in the head; therefore, the evidence was insufficient to enable a rational jury to find beyond a reasonable doubt that he had killed Cleveland by decapitation as charged in the indictment. In support of this contention, Neal avers that the report of Cleveland’s autopsy, which was not requested to be admitted into evidence by either party, states that Cleveland’s decapitation was post-mortem. Essentially, Neal contends that the murder instruction should have been redrafted to require a jury finding that he had killed Cleveland by decapitation, and that if the redrafting had been accomplished, the evidence would have entitled him to a directed verdict of acquittal.

¶ 13. We find that this issue is proceclurally barred; alternatively, we find that the murder instruction was not fatally defective for permitting the jury to find that Neal had killed Cleveland by any method. “This Court has held on numerous occasions that an offended party’s failure to object to jury instructions at trial proeedurally bars the issue on appeal.” Smith v. State, 835 So.2d 927, 939 (Miss.2002) (citing Walker v. State, 729 So.2d 197, 202 (Miss.1998)). Neal did not object contemporaneously to the granting of the jury instruction, and he raises this issue for the first time on appeal. Neal’s indictment alleged every essential element of murder; his failure to object to the jury instruction as constructively amending the indictment waives this issue on appeal. Rubenstein v. State, 941 So.2d 735, 774 (Miss.2006); see McDowell v. State, 984 So.2d 1003, 1012-1013 (Miss.Ct.App.2007).

¶ 14. Notwithstanding the procedural bar, this issue is without merit. “The major purpose of an indictment is to furnish the accused such a description of the charges against him as will enable him to adequately prepare his defense.” Williams v. State, 445 So.2d 798, 804 (Miss.1984) (internal citations omitted). “[A]s a general rule, an indictment which tracks the language of a criminal statute is sufficient to inform the defendant of the charge against him.” Jordan v. State, 995 So.2d 94, 109 (Miss.2008) (quoting Stevens v. State, 808 So.2d 908, 919 (Miss.2002)). In contrast, the main “purpose of jury instructions is to tell the jury what facts they have to find and who has the burden of proving or disproving those facts.” Harris v. State, 861 So.2d 1003, 1016 (Miss.2003).

¶ 15. In Duplantis v. State, 708 So.2d 1327, 1343 (Miss.1998), Duplantis was indicted for felony murder while engaged in the commission of a robbery under Mississippi Code Section 97 — 3—19(2)(3). Duplan-tis’s indictment charged that he had killed the victim with malice aforethought. Duplantis, 708 So.2d at 1343. However, the felony-murder statute under which Du-plantis was indicted prescribes that the killing have been done “with or without any design to effect the death.” Miss. Code Ann. § 97-3-19(2)(e) (Rev.2006). Two jury instructions tracked the language of the felony-murder statute, thus permitting the jury to find Duplantis guilty without a finding that he had killed with malice aforethought. Duplantis, 708 So.2d at 1343. On appeal, Duplantis argued that the jury instructions “constructively and unconstitutionally amended the indictment because they broaden[ed] the elements of the offense, thereby allowing him to be convicted on a ground not alleged by the grand jury.” Id.

¶ 16. This Court rejected Duplantis’s argument. Id. at 1344. We stated that it was permissible to allege deliberate design in a felony-murder indictment and that jury instructions should track the indictment. Id. at 1343-44. However, because intent to kill is not an element of felony murder in the course of a robbery, we held that the jury instruction omitting the indictment’s intent-to-kill language was not fatally defective. Id. at 1344. We stated, “[ajlthough the instructions may not accurately follow the indictment, they do accurately follow the requisite elements of the crime.” Id.

¶ 17. As in Duplantis, the murder instruction at issue in this appeal was not fatally defective. Neal’s indictment charged that Neal had decapitated Cleveland with deliberate design to effect her death and in violation of section 97-3-19(l)(a). Although the murder instruction did not restrict the jury to a finding that Neal had killed Cleveland by the method alleged in the indictment, it accurately followed the requisite elements of murder prescribed by Section 97 — 3—19(1) (a). Therefore, the murder instruction was not fatally defective. Duplantis, 708 So.2d at 1344. This issue is without merit.

II. WHETHER THE VOIR DIRE PROCESS PREJUDICED THE JURY AGAINST NEAL AND DENIED HIM A FAIR JURY TRIAL.

¶ 18. Neal argues that three errors occurred during the voir dire process that denied him the right to a fan- and impartial jury.

A. Whether Neal was prejudiced by “implicit communication" from the trial court to the venire.

¶ 19. The trial court asked the members of the venire to indicate if they had had any type of contact or relationship with Neal that would preclude them from being fair-minded jurors. Nine venire persons indicated that they could not be fair and impartial. The trial court informed each of the nine that he or she would not be required to answer any further questions. After voir dire, all nine were excluded from the jury. Neal argues that the judge’s instruction of each of the nine venire persons not to answer any further questions “communicated implicitly to the other panel members if they wanted to stay on the jury, they should be cautious in giving any response that might indicate pre-judgment.”'

¶ 20. The trial judge has a duty to ensure “that a competent, fair and impartial jury is empaneled.” Tighe v. Crosthwait, 665 So.2d 1337, 1339 (Miss.1995). Mississippi Code Section 13-5-79 states that a juror “shall be excluded ... if the court be of the opinion that he cannot try the case impartially, and the exclusion shall not be assignable for error.” Miss. Code Ann. § 13-5-79 (Rev.2002). This Court will presume that the voir dire process used at trial was “sufficient to ensure a fair and impartial jury.” Ross v. State, 954 So.2d 968, 988 (Miss.2007). A defendant must “present evidence indicating that the jury was not fair and impartial and show that prejudice resulted from the circuit court’s handling of the voir dire” in order to rebut that presumption. Id. (citing Manning v. State, 735 So.2d 323, 336 (Miss.1999)). “A trial court’s determination that the jury is impartial will not be overturned by this Court absent an abuse of discretion. This Court will treat with deference a venire person’s assertions of impartiality.” Id. (citing Holland v. State, 705 So.2d 307, 336 (Miss.1997)).

¶ 21. Because Neal did not object to the trial court’s statement during the voir dire process, this issue is procedurally barred. See Moody v. State, 841 So.2d 1067, 1075 (Miss.2003). Alternatively, this issue is without merit. Neal cites no authority for his proposition that the trial judge’s actions were inappropriate, nor does he cite any evidence in the record that indicates the jury was prejudiced against him. Indeed, the record evinces that the trial court appropriately struck all nine venire persons due to their explicit inability to function as impartial members of the jury.

B. Whether Juror Ardis Lee Jones should have been excused from the jury because of his poor eyesight.

¶ 22. After the oath was administered to the jurors but before the trial began, Juror Ardis Lee Jones informed the judge that his eyesight was poor and that it had affected his ability to read. The following exchange occurred:

The Court: Gentleman, I don’t know what to do but to substitute an alternate juror. I asked the whole panel this morning if they could read or write. I didn’t ask any of them if they couldn’t see well enough to read.
Mr. Barnett [counsel for Neal]: Of course, Your Honor, the instructions are going to be read to him.
The Court: They will be.
Mr. Barnett: By the Court, and I don’t know what else he might need to read that may come into evidence but I believe he said — can you see me?
Juror Ardis Lee Jones: Yes sir, I have real bad eyesight.
Mr. Barnett: I hope that he might could—
The Court: Let’s just kind of see how the evidence flows. I don’t know what the evidence is going to be other than the instructions of law.
Mr. Champion [prosecuting attorney]: Your honor, we are going to have some photographs. We are going to have two videotapes that are pretty important. I don’t know if he’ll be able to — the juror can answer if whether or not he can see well enough.
The Court: Let’s start it out this way. Let’s let him try and I am going to ask you at some point in time if you are seeing everything that you need to see like these videos. We have got two alternate jurors. You know, if you can’t see, we’ll — I’ll excuse you.

¶ 23. After the photographic evidence had been presented, the trial judge asked Juror Jones if he could see the photographs. Juror Jones answered in the affirmative. Immediately before giving the jury instructions, the trial judge again asked Juror Jones if he had been able to fully see all evidence presented throughout the trial. Juror Jones indicated that he had been able to see it.

¶24. Neal argues that he was prejudiced by the inclusion of Juror Jones on the jury, reasoning that “once the juror is into the evidence, including hearing the video confession ... he will say he had no trouble seeing.” However, the excerpt of the transcript above shows that Neal’s attorney did not request the substitution of an alternate juror or object in any way to Juror Jones’s presence on the jury. Because Neal did not object, this issue is procedurally barred. See Moody, 841 So.2d at 1075. Alternatively, we note that nothing in the record substantiates Neal’s wholly speculative argument that Juror Jones misrepresented his visual abilities to the trial court.

C. Whether during voir dire the parties tuere allowed to define reasonable doubt, and whether a furor was found to be confused, yet ivas not stricken.

¶ 25. Next, Neal claims that comments by the prosecutor and by his own counsel improperly defined reasonable doubt, and that the trial court should have stricken Juror Norris Dungan, who was confused by these comments. Neal takes issue with the following comments by the State:

Q: Now, in Mississippi, we clo not give definitions of reasonable doubt and what I like to tell people, reasonable doubt is what you hear from the evidence, what law is given to you by Judge Baker, and your common sense. You take those three things and you put them all together and you can reach a decision on a case. Okay? That’s what I define reasonable doubt as. But Judge Baker is not going to tell you this is the law in Mississippi on reasonable doubt. It is something that you, each, individually, must decide on your own.
There are some people that say, “Mr. Champion, I want to make you prove your case beyond all doubt.” Is there anybody in here that’s going to make me do that because if you do, you are holding me to a higher standard than the law requires. Beyond a reasonable doubt is the legal standard. Is there anybody that’s going to make me prove my case beyond all doubt?

Juror Dungan indicated that he would hold the State to a “beyond-all-doubt” standard. When another venire person asked what reasonable doubt was, the prosecutor stated:

What is my definition? My definition really doesn’t matter unfortunately. I bet mine and Mr. Barnett’s definition is different. It is just something that you have got to decide in your own mind once you hear the evidence. And I wish I can — I sometimes hesitate about asking this question because typically somebody is going to ask me what is the definition of beyond a reasonable doubt as opposed to beyond all doubt and I really can’t give it to you. I always like to say, well, when you are finally convinced one way or the other is the best way I can describe it.

Defense counsel told the jury pool that “I’ve always thought a reasonable doubt, the word ‘reasonable’ is reasonable. It is able to be arrived at through reason. That is a doubt that is able to be arrived at through reasoning.”

¶ 26. Neal references the following exchange as evidence that the trial court recognized that Juror Dungan was confused about the reasonable-doubt standard, yet refused to strike him for cause:

The Court: I marked on No. 185 [Dun-gan] about all your doubt and reasonable doubt, John [Champion]. I never know when the juror really understands the fine lines that a lawyer does. Are you going to ask that he be dismissed?
Mr. Champion: Probably not. To be honest with you, if I need to get rid of him, I’ll use one of my strikes.
The Court: Because I was going to give Mr. Barnett a chance to rehabilitate him if you were going to strike him because oftentimes I think a juror gets confused on that reasonable doubt.
Mr. Barnett: I thought John would allow him to stay on the jury just so it would be even, you know. Just sportsmanship, you know. I mean, during the trial, John could try to rehabilitate him.

¶ 27. Neal’s failure to object to the prosecutor’s comments during voir dire renders this issue procedurally barred. King v. State, 615 So.2d 1202, 1205 (Miss. 1993). Alternatively, this issue is without merit. This Court repeatedly has held that the general discussion of the concept of reasonable doubt by counsel during voir dire is not objectionable. See Kennedy v. State, 766 So.2d 64, 65 (Miss.Ct.App.2000) (citing Thorne v. State, 348 So.2d 1011, 1013-15 (Miss.1977)). Furthermore, this Court has found similar comments to those at issue in this case “to be unobjectionable so long as reasonable doubt is not defined when the trial court instructs the jury.” Simon v. State, 857 So.2d 668, 696 (Miss. 2003). The jury instructions in this case properly omitted any definition of reasonable doubt. There is no indication that the presence of Juror Dungan prejudiced Neal; in fact, it appears that Neal’s counsel favored Juror Dungan’s presence on the jury. Nor does it appear from the record that Neal’s jury was anything but the impartial and fair jury that this Court presumes was produced by the voir dire process.

III. WHETHER THE TRIAL COURT ERRED BY FAILING TO CHANGE THE VENUE OF THE TRIAL.

¶ 28. Neal contends that he was “denied a fair trial because the judge and the jury pool all knew sufficient information about the highly publicized and naturally attention-grabbing decapitation murder.” He argues that he was entitled to a change of venue. As the State points out, Neal never moved for a change of venue, nor did he even minimally comply with the statutory requirements. “[A]n application for change of venue must conform strictly to the statute.” Baldwin v. State, 732 So.2d 236, 241 (Miss.1999). The governing statute, Mississippi Code Section 99-15-35, requires that the prisoner make a sworn, written application supported by the affidavits of at least two credible persons attesting to the fact that the prisoner will be unable to receive a fair and impartial trial in the county where the offense is charged because of pretrial publicity or ill will toward the defendant by the general public. Miss.Code Ann. § 99-15-35 (Rev.2007). “[T]he defendant is required to make some showing by testimony of local citizens that he cannot receive a fair trial in the community.” Irving v. State, 498 So.2d 305, 320 (Miss.1986). Because Neal never applied for a change of venue in the trial court, he is procedurally barred from raising this argument on appeal. Wilson v. State, 797 So.2d 277, 284 (Miss.Ct.App.2001).

IV. WHETHER THE TRIAL COURT ERRED IN NOT CONDUCTING AN EXAMINATION FOR IMPROPER INFLUENCE WHEN A JUROR LEFT THE COURTROOM WITHOUT PERMISSION.

¶ 29. During the State’s examination of Investigator Davis, a juror left the courtroom without permission. The following excerpt is the only mention of the incident found in the record:

A: [by Davis, in response to a question from the State] Yes, sir, that’s the right form.
(Juror left courtroom).
Bailiff: She didn’t hold her hand up, Judge.
The Court: Go look for her and see what’s wrong.
(Brief recess).
By Mr. Champion: (continuing)

The State then continued its examination of Davis. Neal did not object or request a hearing to ascertain whether or not the juror had been improperly influenced. On appeal, Neal argues that the trial judge erred by failing to inquire whether the juror had been subjected to some inappropriate pressure while outside of the bailiffs control.

¶ 30. “This Court ... ‘presumes that jurors follow the instructions of the court. To presume otherwise would be to render the jury system inoperable.’ ” Moore v. State, 787 So.2d 1282, 1291 (Miss. 2001) (quoting Puckett v. State, 737 So.2d 322, 347 (Miss.1999)). Uniform Circuit and County Court Rule 3.06 makes clear that: “[j]urors are not permitted to mix and mingle with the attorneys, parties, witnesses and spectators in the courtroom, corridors, or restrooms in the courthouse. The court must instruct jurors that they are to avoid all contacts with the attorneys, parties, witnesses or spectators.” Accordingly, after the jury was sworn, the trial court informed them:

Should anyone approach you, don’t engage in conversation with anyone. You are required to make your decision based on the evidence presented here in the courtroom and instructions of law that I give to you to follow. Anything else would be improper. If you are talking to people around the hall ways [sic], on the elevator, parking lot, somebody’s going to report that to me and I’m going to have to recess a trial and bring you in and conduct a hearing and try to determine if anybody, No. 1, has done anything improper and if so, has it affected someone’s right. So, if you just kind of hang by yourself for the next day or so, it will be the best way to handle that. For instance, we are going to recess for lunch in a few minutes and you’ll be on your own.

There is nothing in the record to overcome the presumption that the juror followed the trial court’s instructions not to talk to anyone. Moreover, it appears that the bailiff promptly followed the juror from the courtroom; presumably, if the bailiff had seen the juror communicating with someone outside the courtroom, he would have informed the trial judge, who then would have conducted a hearing on the matter. Neal did not request a hearing, nor did he request that a record be made on anything that transpired during the recess concerning the juror. This issue is without merit.

V. WHETHER HEARSAY TESTIMONY DENIED NEAL HIS RIGHT TO CONFRONTATION.

¶ 31. Neal asserts that the State elicited impermissible hearsay testimony twice during its case-in-chief. First, Neal’s neighbor, Loerker, testified that when Cleveland’s son, C.D., came back to her house, he complained to her that “his bedroom window was locked and he could hear his baby brother crying inside but nobody would answer the door or let him in and he said, ‘that seems odd. My window is never locked.’ ” Second, Detective Hodges testified that he believed the eight-month-old had been in his crib since around three o’clock p.m. because C.D. had been to the home, had heard the baby crying, and had returned to Loerker’s home.

¶ 32. Neal claims that his Sixth Amendment right to confront the witnesses against him was violated by the admission of these two statements in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As Neal did not contemporaneously object to the admission of either of these statements, he failed to preserve this issue for appeal. Boyd v. State, 977 So.2d 329, 337 (Miss.2008). However, “[u]nder the plain-error doctrine, we can recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant’s ‘fundamental, substantive right.’ ” Smith v. State, 986 So.2d 290, 294 (Miss.2008). This Court has held that a violation of the Confrontation Clause is a violation of a “fundamental, substantive right.” Id. To show plain error, Neal must prove that the inclusion of the statements “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508, 518 (1993). “To determine if plain error has occurred, we must determine ‘if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.’ ” McGee v. State, 953 So.2d 211, 215 (Miss.2007).

¶ 33. Hearsay is defined as “a statement ... offered in evidence to prove the truth of the matter asserted.” Miss. R. Evid. 801(c). Loerker’s testimony about what C.D. said was indeed hearsay because it was offered to prove the truth of the matter asserted, which was that at the time C.D. arrived home, he could not get inside because no one answered the door, and his window, although ordinarily open, was locked. Miss. R. Evid. 801(c). These facts supported the prosecution’s theory that Neal killed Cleveland and then altered the crime scene and locked the windows before he went to work; the prosecutor referenced these facts in closing argument in support of this theory.

¶ 34. However, Loerker’s hearsay testimony did not violate Neal’s Sixth Amendment right, because only testimonial hearsay is capable of violating the Sixth Amendment. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. While the Court in Craiv-ford declined to provide a “comprehensive definition of ‘testimonial,’ ” it stated that “[wjhatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations, ... the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Id. In the Court’s analysis, it articulated that “ ‘[tjestimony,’... is typically ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (citation omitted). The Court further stated that:

Various formulations of this core class of “testimonial” statements exist: “ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,”... “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Id. at 51-52, 124 S.Ct. 1354 (citations omitted).

¶ 35. Applying Crawford\ this Court has held that “a statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused.” Hobgood v. State, 926 So.2d 847, 852 (Miss.2006). C.D.’s statements to Loerker were not made for any prosecutorial purpose; in fact, neither C.D. nor Loerker even knew of Cleveland’s death at the time the statement was made. Loerker’s testimony about C.D.’s comments bore no resemblance to the core class of testimonial hearsay identified in Crawford. Therefore, we find that it was nontestimonial, and it did not implicate Neal’s Sixth Amendment right or the plain-error doctrine.

¶ 36. Nor was the plain-error doctrine implicated by Investigator Hodges’s testimony. That testimony was not hearsay, and thus a hearsay objection to the testimony properly would have been overruled. Investigator Hodges’s testimony was responsive to questions from the State as to why he contacted the Department of Human Services to pick up the children from the scene. Investigator Hodges responded that he did so because the mother was dead, the father was with police, and the baby had been left in the crib for an extended period of time. He explained that he had concluded that the baby had been in his crib since the afternoon based on the information provided to him by Loerker that C.D. had heard the baby crying that afternoon. Investigator Hodges’s testimony was not elicited to prove that the baby in fact had been crying that afternoon, but only to explain Investigator Hodges’s decision to proceed as he did regarding the children. Thus, this testimony was not offered to prove the truth of the matter asserted, and it is not considered hearsay. Rubenstein, 941 So.2d at 764; Neal v. State, 805 So.2d 520, 523 (Miss.2002).

VI. WHETHER NEAL RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 37. With new appellate counsel, Neal lists eight allegations of ineffective assistance by his trial counsel. We quote this list, verbatim:

1. [defense counsel] promised in opening intruders had killed Lakeshia and threatened Neal if he told investigators, but never again touched on this subject at all;
2. failed to object to Cratuford v. Washington hearsay used to develop motive and culpability;
3. failed to cross-examine witnesses on the crime scene to develop support for post-mortem decapitation and use autopsy concluding such;
4. failed to object to jury instruction that did not include decapitation and cause of death;
5. failed to move for a change of venue;
6. failed to call Neal to testify in support of intruder defense;
7. failed to make timely objections and demand adverse rulings from the court;
8. failed to request lesser included manslaughter and mutilation instructions.

1138. The State argues that Neal’s ineffective-assistance-of-counsel claim cannot be raised on direct appeal because the claims are incapable of showing deficient performance based upon the “four corners of the record.” McGregory v. State, 979 So.2d 12, 21 (Miss.Ct.App.2008). Mississippi Rule of Appellate Procedure 22(b) states that “[i]ssues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record.” But if “the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.” Id.

¶ 39. The comment more fully explains that:

Rule 22(b) allows the appellant to raise post-conviction issues on direct appeal where the issues are fully apparent from the record of the trial, and failure to raise such issues constitutes a waiver. Under this provision, issues such as claims of ineffective assistance of counsel for failure to object to evidence offered by the state or to argument by the state must be raised on direct appeal. • Other post-conviction issues which cannot be raised at the time of appeal because they involve actions or inaction outside the record are not waived since they cannot practically be raised without further development or investigation.

Miss. R.App. P. 22 cmt.; see also Havard v. State, 928 So.2d 771, 782-84 (Miss.2006).

¶ 40. This Court also has detailed the appropriate standards of review and tests for determining whether a defendant has received ineffective assistance of counsel:

a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wilcher v. State, 479 So.2d 710, 713 (Miss.1985); Stringer v. State, 454 So.2d 468, 477 (Miss.1984). This Court looks at the totality of circumstances to determine whether counsel’s efforts were both deficient and prejudicial. Carney v. State, 525 So.2d 776, 780 (Miss.1988); Read v. State, 430 So.2d 832, 839 (Miss.1983). “Judicial scrutiny of counsel’s performance [is] highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. There is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Carney, 525 So.2d at 780; Gilliard v. State, 462 So.2d 710, 714 (Miss.1985). Only where it is reasonably probable that but for the attorney’s errors, the outcome of the trial would have been different, will we find that counsel’s performance was deficient. Dickey v. State, 662 So.2d 1106, 1109 (Miss.1995); Reed v. State, 536 So.2d 1336, 1339 (Miss.1988).

Holly v. State, 716 So.2d 979, 989 (Miss. 1998).

¶ 41. Neal’s first argument is that his trial counsel provided the framework of a defense theory during his opening statement, but he never mentioned that theory again. It is true that during his opening statement, defense counsel explained how armed intruders entered the home, held Neal at gunpoint, and then shot and decapitated Cleveland. He told the jury that Neal initially had told this same story to investigators. This initial theoi’y of defense was not explored by the defense during cross-examination of the State’s witnesses or during Neal’s case-in-chief.

¶ 42. Just because certain “issues may properly be raised on direct appeal, ... we still must make a determination as to whether certain issues should be addressed on direct appeal, or be left for another day for post-conviction relief proceedings.” Havard, 928 So.2d at 784. The specific issue here is whether or not defense counsel’s failure to address the intruder theory during Neal’s case-in-chief constituted ineffective assistance. There is no way to definitely analyze this question without information outside the record. There could be several reasonable explanations for why defense counsel never revisited the intruder theory, including the fact that Neal did not take the stand. Because this issue involves questions of inaction by trial counsel and would require information outside the record, it cannot properly be addressed at this time. It more appropriately would be raised in post-conviction-relief proceedings.

¶ 43. As for the remaining seven assertions made by Neal in support of his claim of ineffective assistance of counsel, none constitutes ineffective assistance. Neal’s assertions that defense counsel failed to object to hearsay and jury instructions and failed to make timely objections are all protected as within the realm of trial strategy. “The decision to ‘make certain objections fall[s] within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.’ ” Spicer v. State, 973 So.2d 184, 203 (Miss.2007) (quoting Powell v. State, 806 So.2d 1069, 1077 (Miss.2001)). Likewise, Neal’s claim that defense counsel failed to cross-examine witnesses to develop a post-mortem-decapitation theory falls within the ambit of trial strategy. See Wilcher, 863 So.2d at 762. Neal’s allegation that defense counsel was deficient for failing to move for a change of venue does not require reversal. “This Court has held that defense counsel is under no duty to attempt to transfer venue; therefore, the decision not to seek a change of venue would fall within the realm of trial strategy.” Brawner v. State, 947 So.2d 254, 262 (Miss.2006). Neal’s claim that it was error for counsel not to request the lesser-offense manslaughter and mutilation jury instructions fails, as this Court has stated that “trial counsel’s decision to not request a jury instruction falls under the category of trial tactics, which are not subject to review.” Smiley v. State, 815 So.2d 1140, 1148 (Miss.2002)

¶ 44. Finally, the fact that defense counsel never called Neal to testify in support of an intruder defense does not constitute ineffective assistance of counsel. The trial judge questioned Neal in chambers about whether or not he wanted to testify. Neal and his defense counsel spoke privately about the matter, and Neal determined that he wished to remain silent. The record also indicates that defense counsel discussed the possibility of testifying versus not testifying with Neal on several occasions, and Neal felt that it was in his best interest not to testify. Neal agreed with these statements while in chambers. Defense counsel cannot be held in error for failing to call a defendant to testify when the defendant makes an informed and voluntary decision to remain silent. Gray v. State, 887 So.2d 158, 168 (Miss.2004). None of Neal’s contentions requires reversal based upon ineffective assistance of counsel.

VII. WHETHER THE TRIAL COURT VALIDLY ACCEPTED THE JURY’S VERDICT AND ADJUDICATED NEAL GUILTY.

¶ 45. Neal argues that the trial judge never properly accepted the jury verdict and adjudicated him guilty on the record; therefore, no valid conviction exists. He cites Mississippi Code Section 99-19-3(1), which provides, in pertinent part, that: “a person indicted for a criminal offense shall not be convicted thereof unless ... by verdict of a jury accepted and recorded in court. A person shall not be punished therefor unless legally convicted.” Miss.Code Ann. § 99-19-3(1) (Rev.2007). Neal contends that under Section 99-19-3(1), no valid conviction exists because the trial judge did not expressly state on the record that “the court accepts the jury’s verdict.”

¶ 46. Uniform Circuit and County Court Rule 3.10 governs jury deliberations and verdicts. The rule states, in part, that:

When the jurors have agreed upon a verdict they shall be conducted into the courtroom by the officer having them in charge. The court shall ask the foreman or the jury panel if an agreement has been reached on a verdict. If the foreman or the jury panel answers in the affirmative, the judge shall call upon the foreman or any member of the panel to deliver the verdict in writing to the clerk or the court. The court may then examine the verdict and correct it as to matters of form. The clerk or the court shall then read the verdict in open court in the presence of the jury. The court shall inquire if either party desires to poll the jury, or the court may on its own motion poll the jury.... If the court, on its own motion, or on motion of either party, polls the jury, each juror shall be asked by the court if the verdict rendered is that juror’s verdict. In a criminal case where the verdict is unanimous ... the court shall order the verdict filed and entered of record and discharge the jury unless a bifurcated hearing is necessary.

¶ 47. The record of the proceedings in the instant case indicates the procedures prescribed in Rule 3.10 were scrupulously followed. The trial court received a note from the jury stating that it had reached a verdict, and the court ordered that the jury return to the courtroom. When the jury was seated, the trial court asked one juror if the jury had reached a decision in this case, and if that decision was unanimous. The juror responded affirmatively to both questions. The trial court asked the court clerk to read the jury’s written verdict aloud in open court. The court clerk read the verdict, which stated: “We, the jury, find the defendant, Jermaine Neal, guilty as charged.” The trial court asked if counsel had any requests, and Neal’s counsel responded that he would like the jury polled. Accordingly, the trial court polled the jury. The poll revealed that the verdict was unanimous. Then, the trial court brought Neal before the bench and stated, “Mr. Neal, the jury has found you guilty of murder ... the law is that I sentence you to life in prison and I order at this time pronounce that as your sentence and you will be sentenced to the State Department of Corrections for the rest of your life.” The verdict was filed and entered of record, and the trial court entered a judgment of conviction and sentence that set forth the jury’s verdict.

¶ 48. It is clear from these proceedings, which were in full compliance with Rule 3.10, that Neal was validly convicted “by a verdict of the jury accepted and recorded in court.” Miss.Code Ann. § 99-19-3(1) (Rev.2007). The trial court did not have to state expressly that the court accepted the verdict in order to effect Neal’s conviction. Id. Neal cites no authority that would support such a requirement; the cases he cites, State v. Taylor, 544 So.2d 1387 (Miss.1989) and McLarty v. State, 842 So.2d 590, 596 (Miss.Ct.App.2003), involve jury polling, which is not an issue in this case. This issue is without merit.

VIII. WHETHER NEAL WAS ENTITLED TO LESSER-OFFENSE JURY INSTRUCTIONS OF HEAT-OF-PASSION MANSLAUGHTER AND DESECRATION OF A HUMAN CORPSE.

¶ 49. Neal argues that he was entitled to jury instructions on the lesser offense of heat-of-passion manslaughter, and on the crime of desecration of a human corpse codified at Mississippi Code Section 97-29-25(2). The State prepared jury instructions on heat-of-passion manslaughter, but the trial court denied these instructions upon a determination that they were not warranted by the evidence. Neal did not request that the jury be instructed on heat-of-passion manslaughter, nor did he object when the trial court denied the State’s instructions.

¶ 50. “An error concerning the refusal of jury instructions ‘is procedurally preserved by the mere tendering of the instructions, suggesting that they are correct and asking the Court to submit them to the jury.’ ” Rubenstein, 941 So.2d at 789 (quoting Edwards v. State, 737 So.2d 275, 310 (Miss.1999)). It is well established that when error is predicated upon the denial of a jury instruction requested by the defendant, the defendant need not make a contemporaneous objection to the denial in order to preserve the error for appeal. Green v. State, 884 So.2d 733, 736 (Miss.2004). But when a defendant argues that the trial court erroneously denied a jury instruction requested by the State, ordinarily the defendant must have objected to the denial in order to preserve the issue for appeal. See Reynolds v. State, 913 So.2d 290, 298 (Miss.2005). Without a defense objection to the denial of a jury instruction tendered by the State, we assume that the defendant was satisfied with the trial court’s decision to rule adversely to the State.

¶ 51. Because Neal did not tender a heat-of-passion-manslaughter jury instruction to the trial court or object to the denial of the State’s heat-of-passion-manslaughter jury instructions, he is procedurally barred from arguing on appeal that the jury should have been instructed on heat-of-passion manslaughter. Rubenstein, 941 So.2d at 789; Reynolds, 913 So.2d at 298. Notwithstanding the procedural bar, the trial court correctly found that the evidence did not support a heat-of-passion-manslaughter jury instruction.

¶ 52. Heat-of-passion manslaughter requires “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.” Hobson v. State, 730 So.2d 20, 26-27 (Miss.1998) (quoting Tait v. State, 669 So.2d 85, 89 (Miss.1996)). “Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.” Id. at 27. “The passion felt by the person committing the act ‘should be superinduced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation.’ ” Graham v. State, 582 So.2d 1014, 1018 (Miss.1991) (quoting Barnett v. State, 563 So.2d 1377, 1379 (Miss.1990)).

¶ 53. There was no evidence that Neal acted upon an immediate and reasonable provocation suddenly giving rise to passion or anger, as required by caselaw. Neal admitted to investigators that he and Cleveland had not quarreled on the day of the murder. The only evidence of Neal’s motive to kill Cleveland came from Neal’s suspicions that Cleveland possibly had been unfaithful to him and that A.B. was not his son. The evidence was that Neal had been harboring these suspicions for some time prior to the murder. Therefore, the evidence did not support a heat-of-passion-manslaughter jury instruction.

¶ 54. Neal did not preserve error in the failure to grant a jury instruction on desecration of a human corpse. Neither Neal nor the State requested an instruction on this crime. While Neal argues that the trial court had a duty sua sponte to instruct the jury on desecration of a human corpse, “[a] trial court is not required to sua sponte instruct the jury or suggest jury instructions in addition to what the parties tender.” Wilson v. State, 936 So.2d 357, 363 (Miss.2006) (citing Conner v. State, 632 So.2d 1239, 1254 (Miss.1993) (overruled on other grounds)). A trial court cannot be held in error for not giving an instruction that was never requested. Harris, 861 So.2d at 1017. As Neal’s argument is procedurally barred, we do not address his argument that the crime of desecration of a human corpse is a lesser offense of murder. This issue is without merit.

IX. WHETHER NEAL IS ENTITLED TO RELIEF BASED ON CUMULATIVE ERROR.

¶ 55. Neal argues that errors occurred that, considered cumulatively, denied him the right to a fair and impartial trial. In cases in which this Court finds harmless error or error that is not reversible in and of itself, the Court has the discretion to determine on a case-by-case basis whether the errors, considered cumulatively, require reversal due to the resulting cumulative prejudicial effect. Byrom v. State, 863 So.2d 836, 847 (Miss.2003). This case is not susceptible to cumulative-error analysis because we have determined that no errors occurred. Ruffin v. State, 992 So.2d 1165, 1179 (Miss.2008). Therefore, this issue is without merit.

X. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE VERDICT AND WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING EVIDENCE.

¶ 56. In his final argument, Neal contends that the evidence was insufficient to support the verdict, and that the verdict was against the overwhelming weight of the evidence.

A. Sufficiency of the evidence.

¶ 57. When reviewing a challenge to the sufficiency of the evidence, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush v. State, 895 So.2d 836, 843 (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). However, this does not require the Court to

“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original)). If “the facts and inferences ... ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,’ the proper remedy is for the appellate court to reverse and render.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). But if the evidence is sufficient to show that reasonable and fair-minded persons, in the exercise of impartial deliberations, might have reached a different conclusion on every element of the offense, while considering the beyond-a-reasonable-doubt standard, “the evidence will be deemed to have been sufficient.” Id.

¶ 58. In order to find Neal guilty of murder, the jury had to conclude beyond a reasonable doubt that Neal had killed Cleveland without the authority of law and with deliberate design to effect her death. Viewing the evidence in the light most favorable to the verdict, the evidence was sufficient to enable a rational jury to find each of these elements beyond a reasonable doubt. Neal gave two confessions to the police in which he admitted that he had killed Cleveland, in one confession stating that he had decapitated Cleveland, and in another stating that he had shot her twice in the head and then he had decapitated her. He further admitted that after killing Cleveland, he had taken steps in an effort to conceal his identity as the killer, such as bleaching Cleveland’s body, sending misleading text messages, and disposing of Cleveland’s head, the gun, and the knife. Neal’s confession to being the killer was corroborated by the discovery of blood on his shorts and by Neal’s uncharacteristic tardiness at work on the afternoon of the murder. There also was evidence that Neal acted with deliberate design; Neal confessed that he had killed Cleveland due to his mounting suspicion of her infidelity.

B. Weight of the evidence.

¶ 59. Neal argues that the trial court erred by denying his motion for a new trial because the verdict was against the overwhelming weight of the evidence. On review of a challenge to the weight of the evidence, this Court will reverse for a new trial only if the trial court’s ruling was an abuse of discretion. Miller v. State, 980 So.2d 927, 929 (Miss.2008). We will not disturb the verdict unless it “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 60. On a motion for new trial, “the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss.2000)). All “evidence should be weighed in the light most favorable to the verdict.” Id. (citing Herring, 691 So.2d at 957). Reversing a verdict because it was against the overwhelming weight of the evidence “does not mean that acquittal was the only proper verdict.” Id. (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)). It simply means that this Court “disagrees with the jury’s resolution of the conflicting testimony.” Id. “This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.” Id.

¶ 61. There was ample evidence to support the verdict of guilt in this case. In his confessions to the murder, Neal gave detailed explanations of what occurred and of his motive. Neal’s confessions, along with the testimony of investigating officers set forth above, strongly preponderated in favor of the finding of guilt. We cannot say that the verdict was against the overwhelming weight of the evidence such that a new trial is required in order to avoid a manifest injustice. This issue is without merit.

CONCLUSION

¶ 62. For these reasons, we affirm Neal’s conviction of murder and sentence of life in the custody of the Mississippi Department of Corrections.

¶ 63. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, KITCHENS AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J, SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON AND GRAVES, P JJ., AND DICKINSON AND CHANDLER, JJ., AND JOINED IN PART BY RANDOLPH, J. LAMAR, J., NOT PARTICIPATING.

KITCHENS, Justice,

Specially Concurring:

¶ 64. While I agree with the majority’s ultimate judgment, I feel obliged to write separately to address a troublesome complication in the indictment.

¶ 65. Although the defendant frames the issue in the context of a jury instruction, I cannot overlook the curiously-drafted indictment’s coming dangerously close to omitting an essential element of murder: that is, that the defendant killed the victim. As the majority correctly observes, Mississippi Code Section 99-7-37 sets forth explicitly and succinctly all that is necessary to charge an accused person with non-capital murder. Maj. Op. at ¶ 11, n. 3. In this case, however, the drafter of the indictment apparently undertook to improve upon this time-tested, simple, and sufficient language. This indictment alleges that Neal “did willfully, unlawfully, and feloniously decapitate Lakeshia Cleveland, a human being; Jermaine Neal acted with the deliberate design to effect the death of Lakeshia Cleveland, in direct violation of Section 97 — 3—19(l)(a).” (Emphasis added.)

¶ 66. By failing to track the clear and simple statutory language that has worked for legions of Mississippi prosecutors in thousands of murder cases, the State risked violation of the basic constitutional right that the defendant have notice of the specific charge brought by the grand jury. U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to ... be informed of the nature and cause of the accusation.... ”); U.S. Const, amend. XIV; Miss. Const, art. 3, § 26 (“In all criminal prosecutions, the accused shall have a right ... to demand the nature and cause of the accusation.... ”). Had the defendant demurred to the indictment in this case, a conscientious trial judge likely would have had as much difficulty in not granting it as this writer has had in stopping short of saying that the failure to file such a pleading constituted ineffective assistance of counsel.

¶ 67. This Court has recognized that, although indictments are to be construed strictly, “a reasonable interpretation of the language employed in stating the offense is always permissible,” and the indictment will be sufficient as long as, when read as a whole, “it contains every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.” Hamilton v. State, 197 So.2d 469, 473-74 (Miss.1967). The majority opinion correctly finds the indictment sufficient “because decapitation is a certainly deadly act when done with the deliberate design to effect the death of a human being.” Maj. Op. at ¶ 11, n. 2. Obviously, decapitation is a deadly act only if the victim is still alive when beheaded, and post-mortem decapitation would constitute only mutilation of a corpse, not murder. The indictment is saved, not by the word decapitate, but by the words a human being and the phrase to effect the death of. From this verbiage, it is sufficiently implied that the victim was alive at the time of decapitation, and thus, the decapitation was a “killing] and murder.” Miss.Code Ann. § 99-7-37 (Rev.2007). Thus, in the present case, the indictment as a whole is minimally sufficient to alert the defendant that he is being charged with murder.

¶ 68. However, I would caution prosecutors to follow strictly the language found in Section 99-7-37 in order to avoid unnecessary confusion, or potential due process violations in noncapital murder cases. The notice provisions contained in our constitutions are a fundamental necessity of our eriminal justice system, and the state legislature and this Court have provided a simple but sure recipe for the preparation of non-capital murder indictments. See Miss.Code Ann. § 99-7-37 (Rev.2007); Winston v. State, 127 Miss. 477, 485, 90 So. 177, 178 (1922) (“[I]t is expressly provided by statute that it shall be sufficient to charge in an indictment for murder that the defendant did feloniously, wilfully, and of his malice aforethought, 3dll and murder the deceased.”). The potential for clue process abuses is easily avoided when the State simply tracks the language of Section 99-7-37 in its murder indictments, adding, of course, the name of the decedent, describing him or her as a human being, and concluding in the manner required by Article 6, Section 169 of the Mississippi Constitution of 1890: “... and all indictments shall conclude ‘against the peace and dignity of the state.’ ”

CARLSON AND GRAVES, P.JJ., DICKINSON AND CHANDLER, JJ„ JOIN THIS OPINION. RANDOLPH, J„ JOINS THIS OPINION IN PART.

      . The children’s names have been changed to protect their identities.

      . Because decapitation is a certainly deadly act when done with deliberate design to effect the death of a human being, the indictment adequately alleged that Neal had killed Cleveland. Miss.Code Ann. § 97 — 3—19(l)(a) (Rev. 2006).

      . We note that in an indictment for homicide, “it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient to charge in an indictment for murder, that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased." Miss.Code Ann. § 99-7-37 (Rev.2007).

      . Juror Dungan began the trial as an alternate juror, but later was substituted for a juror who was excused because of her emotional reaction to this case.

      . Mississippi Code Section 97-29-25(2)(a) provides that:

        Every person who shall knowingly and willfully dig up, except as otherwise provided by law, or in any way desecrate any corpse or remains of any human being, or cause through word, deed or action the same to happen, shall upon conviction be guilty of a felony and shall be imprisoned for not more than three (3) years or fined not more than Five Thousand Dollars ($5,000.00), or both, in the discretion of the court.
      The statute provides an exemption from its provisions for good-faith organ harvesting for transplant and for "any good faith use of a cadaver or body part for medical or scientific education or research.” Miss.Code Ann. § 97 — 29—25(2)(b) (Rev.2006).

      . Even if the defendant did not directly raise the sufficiency of the indictment, or lack thereof, this Court would be required to review the issue under the plain-error doctrine as it affects a fundamental, substantive right.

      . Notably, the autopsy report indicates that this decapitation occurred post-mortem.


source: Caselaw Access Project

author: PIERCE, Justice,

license: Public Domain

text:
    INVESTOR RESOURCE SERVICES, INC., A Florida Corporation; Barbara Archuletta Morelli, and the Estate of Bernece Rigirozzi v. Marvin CATO, Charles Cato, Laverne Cato and Rainbow Entertainment, Inc.
    No. 2007-IA-01458-SCT.
    Supreme Court of Mississippi.
    June 25, 2009.
    Rehearing Denied Sept. 3, 2009.

      James W. Craig, Fred L. Banks, Jerome C. Hafter, Elizabeth Jane Hicks, Jackson, attorneys for appellants.
    John H. Daniels, Greenville, Willie Bailey, James P. Streetman, Jackson, David Lee Gladden, Jr., Blayne Thomas Ingram, attorneys for appellees.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   PIERCE, Justice,

for the Court.

¶ 1. This case involves whether a trial court properly excluded an expert from testifying based on her status as a Certified Public Accountant (CPA) and her alleged lack of expert knowledge in derivative actions. Investor Resource Services, Inc., Barbara Morelli, and the Estate of Bernece Rigirozzi (Investor Resource) filed suit in the Circuit Court of Washington County against Marvin Cato, Charles Cato, Láveme Cato, and Rainbow Entertainment, Inc., (the Defendants) alleging both derivative and individual shareholder claims such as fraud in the inducement and fraudulent misrepresentation. Prior to trial, the Defendants filed a motion in li-mine to exclude Investor Resource’s expert witness, Glenda B. Glover, Ph.D. After a hearing on the matter, the trial court granted the Defendants’ motion to exclude Dr. Glover as an expert witness. The trial court based its exclusion on two factors: (1) Dr. Glover was not a properly licensed certified public accountant at the time she submitted her expert report and gave deposition testimony, and (2) Dr. Glover was not an expert in the field of derivative actions. The trial court also denied Investor Resource’s motion for reconsideration. Thereafter, Investor Resource filed a petition for interlocutory appeal with this Court. On September 25, 2007, this Court granted the petition for interlocutory appeal and stayed the trial court proceedings.

DISCUSSION

Whether the circuit court erred by granting the Defendants’ motion in limine and excluding the expert testimony of Dr. Glover based on her status as a certified public accountant and her alleged lack of expertise in derivative actions.

¶ 2. The standard of review for the admission or exclusion of evidence, such as expert testimony, is an abuse of discretion. Adcock v. Miss. Trans. Comm’n, 981 So.2d 942, 946 (Miss.2008); See also Miss. Trans. Comm’n v. McLemore, 863 So.2d 31 (Miss.2003).

¶ 3. Rule 702 of the Mississippi Rules of Evidence concerns the admissibility of expert testimony and provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

¶ 4. In McLemore, this Court adopted the test to determine admissibility of expert witness testimony stated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and as modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). McLemore, 863 So.2d at 35. Expert testimony is admissible, pursuant to Rule 702, if it is relevant and reliable. Id. at 38; Tunica County v. Matthews, 926 So.2d 209, 213 (Miss.2006). In other words, (1) “the witness must be qualified by virtue of his or her knowledge, skill, experience or education,” and (2) “the witness’s scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue.” McLemore, 863 So.2d at 35. However, in McLemore, this Court noted that Rule 702 “does not relax the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within a purported field of knowledge.” Id. (quoting M.R.E. 702 cmt.). The trial judge is the gatekeeper who assesses the value of the testimony. Tunica County, 926 So.2d at 213. (citing McLemore, 863 So.2d at 39). “To be relevant and reliable, the testimony must be scientifically valid and capable of being applied to the facts at issue.” Id. (citing McLemore, 863 So.2d at 36).

¶ 5. This Court and the Mississippi Court of Appeals have reversed and remanded cases in which the trial court erroneously included or excluded expert testimony. Indeed, this Court, in McLe-more, the foremost Mississippi case adopting the modified Daubert standard for the admissibility of expert witness testimony, reversed and remanded for a new trial, finding that the trial court had erred by admitting the expert testimony of an appraisal witness. McLemore, 863 So.2d at 43. See Giannaris v. Giannaris, 960 So.2d 462, 471 (Miss.2007) (determining, based on modified Daubert analysis, that the “trial court erred in granting any weight to [the expert’s] testimony, as it lacked sufficient reliability under Miss. R. Evid. 702” and the admission of the testimony “amounted to an abuse of discretion”); Brown v. Mladineo, 504 So.2d 1201 (Miss.1987) (holding that the trial court had erred by excluding the expert testimony of a doctor). See also Int’l Paper Co. v. Townsend, 961 So.2d 741, 760 (Miss.Ct.App.2007) (determining that the trial court had erred by the admission of expert testimony where the trial court had denied the voir dire of the expert, and the expert was not qualified to testify on various issues based on his testimony); Partin v. N. Miss. Med. Ctr., Inc., 929 So.2d 924, 931 (Miss.Ct.App.2005) (reversing in part a grant of summary judgment as to one doctor, finding the trial court had erred for failing to admit expert medical witness testimony).

1. Relevance.

¶ 6. Mississippi Rule of Evidence 401 defines relevant evidence as having “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.” M.R.E. 401. Rule 401 favors admission of the evidence if it has any probative value. McLemore, 863 So.2d at 40 (citing Holladay v. Holladay, 776 So.2d 662, 676 (Miss.2000)). “[T]he threshold for admissibility of relevant evidence is not great. Evidence is relevant if it has any tendency to prove a consequential fact.” Id. (quoting Whitten v. Cox, 799 So.2d 1, 15 (Miss.2000)). Dr. Glover’s testimony regarding the actions of the corporate officers and directors, the damages, and the methods she applied to determine the damages incurred by the actions of the corporate officers and directors was relevant in this lawsuit. Accordingly, Dr. Glover’s reports and deposition meet the first prong of the modified Da-ubert standard. Daubert, 509 U.S. at 589, 113 S.Ct. 2786; McLemore, 863 So.2d at 40. Indeed, the trial court determined that Dr. Glover’s reports and testimony were relevant. Notwithstanding the finding that Dr. Glover’s testimony was relevant, the trial court determined that her testimony was unreliable.

2. Reliability.

¶ 7. In Adcock, this Court analyzed the reliability of the expert witness and stated:

The party offering the expert testimony also must show that the expert’s opinion is based upon scientific methods and procedures, not unsupported speculation. Id. at 36 (citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786). Factors to consider may include “whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether ... there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance” within the expert’s particular field. McLemore, 863 So.2d. at 37 (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786).

Adcock, 981 So.2d at 947. Although there are many factors to consider in the analysis of whether an expert’s opinion is reliable, none of the factors is steadfast in every case. In other words, the factors are used as guidance, and all need not be applied in every case, but should be applied only as appropriate for each particular case. McLemore, 863 So.2d at 40.

A. Dr. Glover’s status as a certified public accountant.

¶ 8. The trial court excluded Dr. Glover’s testimony, in part, based on the fact that she had allowed her CPA license to lapse and was not licensed as an active CPA at the time of her reports and deposition testimony. In her two written reports, Dr. Glover stated that she was a CPA. In her deposition testimony, Dr. Glover stated that she was a CPA, however, she no longer practiced as a CPA. The trial court excluded Dr. Glover’s testimony, in part, due to her alleged false assertions of being a CPA in her reports and depositions and in alleged violation of the Mississippi Code.

¶ 9. Investor Resource argues that there is a distinction between the qualifications of a witness to provide expert testimony and a witness’s certification to practice a profession. To support its argument, Investor Resource relies on Watts v. Lámeme, 703 So.2d 236 (Miss. 1997). In Watts, a case predating our adoption of Daubert analysis, this Court upheld the expert testimony of a retired real-estate broker on matters of real-estate property value even though the expert no longer had a real-estate appraiser license. Id. at 238-29. This Court found that “[o]ur Rules of Evidence require only that an expert witness be qualified by knowledge, skill, experience, training, or education.” Id. at 238. In that case, this Court held that the expert was qualified under Rule 702 based on his knowledge and experience in the field. Id. at 239. See also King v. Murphy, 424 So.2d 547, 550 (Miss.1982) (although ultimately excluding the expert’s testimony on other ground, stating that an expert’s testimony should not be excluded simply because he was not licensed to practice in Mississippi); Blake v. Clein, 903 So.2d 710 (Miss. 2005).

¶ 10. More recently, this Court handed down Kilhullen v. Kansas City Southern Railway, 8 So.3d 168, 2009 Miss. LEXIS 87 (Miss.2009). In Kilhullen, this Court reversed and remanded the Court of Appeals decision to affirm the trial court’s grant of summary judgment in favor of Kansas City in a wrongful-death action. The trial court struck Kilhullen’s affidavit from Jimmy Halfacre, a registered engineer, finding that accident reconstruction is a specialized field and that Halfacre lacked the requisite knowledge, expertise, or training. Id. This Court looked beyond certification and determined that the expert had requisite “professional qualifications” to give his opinion. Id. This Court held:

In rejecting Halfacre’s affidavit due to his lack of “specialized knowledge, training or expertise in the field of accident reconstruction^]” this Court finds that the circuit court abused its discretion. Given his applied engineering expertise, classification as an accident reconstruc-tionist was not necessary, see Pounders, 970 So.2d at 146; Sacks, 991 So.2d at 622, and this Court concludes that Hal-facre’s affidavit satisfied Mississippi Rule of Evidence 702.

Kilhullen v. Kan. City S. Ry., 8 So.3d at 173-74, 2009 Miss. LEXIS 87, 12-13 (Miss. Feb. 26, 2009).

¶11. Also, in University of Mississippi Medical Center v. Pounders, 970 So.2d 141, 146 (Miss.2007), this Court stated that “a witness need not be a specialist in any particular profession to testify as an expert. The scope of the witness’s knowledge and experience, and not any artificial classification, governs the question of admissibility.” (Citations omitted.) Accordingly, this Court allowed a neurologist to testify concerning pulmonary issues. Id. See also Sacks v. Necaise, 991 So.2d 615, 622 (Miss.Ct.App.2007) (upholding the admission of Jenner as an expert on whether a drug was administered properly even though she “had not been a practicing nurse in twenty years and was not a certified chemotherapy nurse. However, neither of these facts precluded her from testifying as to her knowledge on the subject. Jenner was a licensed nurse and was familiar with the current standards of chemotherapy administration.”). Cf. Watts v. Radiator Specialty Co., 990 So.2d 143, 150 (Miss.2008) (affirming the trial court’s exclusion of an expert witness’s testimony on general and specific causation that benzene causes non-Hodgkin’s lymphoma and that a liquid solvent containing benzene caused the plaintiffs non-Hodgkin’s lymphoma as being scientifically unreliable); Giannans v. Ginnaris, 960 So.2d 462 (Miss.2007) (determining that the admission of a clinical social worker’s expert testimony was error where the witness had unrecorded sessions with the child and only five weeks’ training).

¶ 12. Here, Dr. Glover’s stated purpose as an expert was “to assess and testify concerning the damages incurred by Investor Resource Services, Inc. and other minority shareholders resulting from the actions of the majority shareholders of Rainbow Entertainment, Inc.” To that end, Dr. Glover provided her opinion on whether the corporate directors and officers of Rainbow had fulfilled their duties properly and whether their actions had resulted in damages to the corporation and the shareholders. Dr. Glover stated in her reports and testified in her deposition that she was a CPA and had worked as a CPA in her career for a number of employers. Furthermore, she testified that she used all of her CPA skills in her position as Dean of the College of Business of Jackson State University. When Dr. Glover submitted her reports and testified at her deposition, her CPA license had lapsed. There is no dispute that Dr. Glover held a CPA license at one time. The only problem in this case was that Dr. Glover was not current in her licensure at the time of her reports and depositions. That is an issue between Dr. Glover and the Mississippi State Board of Public Accountancy, but does not concern this Court for the purposes of this appeal.

¶ 13. As to her qualifications, Dr. Glover had more than twenty years of corporate and academic experience in the business arena. She holds a bachelor of science degree in mathematics from Tennessee State University. She also has a master of business administration degree in accounting from Clark Atlanta University, a doctor of philosophy degree in business, economics, and policy from George Washington University, a doctor of jurisprudence degree from Georgetown University Law Center, and she had obtained her license as a certified public accountant.

¶ 14. Dr. Glover’s work experience included working as an accountant at Arthur Anderson & Co. In addition, she worked at the Potomac Electric Power Company and then as a senior vice president and chief financial officer for Metters Industries, Inc. Later, Dr. Glover worked in academia as an assistant professor of accounting at Howard University. In 1994, Dr. Glover accepted her current position as Dean of the College of Business at Jackson State University.

¶ 15. Dr. Glover served on corporate boards. She sat on the board of the Student Loan Corporation, which is a publicly traded company, as the chairperson for the audit committee, a member of the compensation committee, and the financial expert for the audit committee and board. Further, Dr. Glover served on the boards of directors of the Lenox Group, Union Planters Bank, and the Jackson Airport Authority.

¶ 16. To the extent that Dr. Glover was excluded as an expert witness based on her failure to maintain an active CPA license, the issue is without merit. Dr. Glover’s purpose as an expert was to testify as to damages due to the deeds of the corporate officers. The fact that she did not have an active CPA license at the time of her reports and deposition is not crucial to her qualification to give an opinion of damages based on the actions of shareholders. Her qualifications in education, business, and academia are sufficient to support her opinions.

B. Expertise in derivative suits.

¶ 17. The trial court also based the exclusion of Dr. Glover as an expert witness on her lack of education, experience, and training in derivative suits and her lack of understanding of derivative suits. The trial court stated:

Having reviewed Glenda B. Glover’s qualifications, this Court finds that although Ms. Glover’s testimony may be relevant, Ms. Glover is not qualified to give expert testimony in the present case. This decision is based on Ms. Glover’s lack of education, experience, and training, in derivative actions, the lack of reliability of Ms. Glover’s testimony, and the fact that Ms. Glover has held herself out to be a Certified Public Accountant in violation of Miss. Code Ann. § 73-33-1.
The Court finds Ms. Glover lacks sufficient education, experience, or training in the area of derivative actions. This fact is evidenced by her deposition testimony and in her reports in which she demonstrates a failure to understand how damages in derivative actions are distributed. This indicates a fundamental failure to grasp the very nature of a derivative action. The Court finds the [sic] Ms. Glover’s lack of knowledge regarding derivative actions makes her testimony and opinions in this case unreliable.

¶ 18. Dr. Glover completed two written reports and a deposition. In her first report, dated November 2006, she stated in the overview section that “I have been asked to assess and testify concerning the damages incurred by Investor Resource Services, Inc. and other minority shareholders resulting from the actions of the majority shareholders of Rainbow Entertainment, Inc.” In the description-of-assignment section, Dr. Glover stated that “This report analyzes the damages incurred by Investor Resource Service, Inc. and the other minority shareholders resulting from the actions and omissions of the majority shareholders and directors of Rainbow Entertainment, Inc.”

¶ 19. In her February 2007 deposition testimony, Dr. Glover discussed her understanding of a derivative action. The following exchange occurred:

[Defense Counsel]: Good. Well, and you make an excellent point. What is your understanding of the damages that are assessed in derivative cases and to whom they are assessed?
A. Well, my understanding is, shareholders sue in a derivative action. And they sue for damages — well, they sue for damages or some element that they feel is owed.
[By Defense Counsel]
Q. To whom? What is your understanding?
A. To whom?
Q. Yes, ma’am. To whom do the damages flow, if they are successful?
A. To shareholders.
Q. To the shareholders?
A. Uh-huh (affirmative).
Q. Not to the corporation, but to the shareholders; is that your understanding?
A. Well, the shareholders — the shareholders sue on behalf of the corporation.
Q. Okay. Is that what you have said in your report.
[Plaintiffs Counsel] Object to the form, because the report speaks for itself— speaks for itself. Pardon me.
[Defense Counsel] That’s okay.
[By Defense Counsel]
[Q.] Who do you conclude, based on your report, Exhibit 2, should receive damages in this case if the plaintiffs are successful?
A. The minority shareholders.
Q. The minority shareholders?
A. Yes.
Q. Thank yon, ma’am.

In her deposition testimony, Dr. Glover also stated that she had not authored any article or conducted any studies on derivative claims.

¶ 20. After to her first report and the deposition testimony, Dr. Glover provided a second, modified, written report in June 2007. In the overview section, Dr. Glover stated that her purpose was to assess and testify about “the actions of Marvin Cato and Charles Cato as majority shareholders, officers, and directors of Rainbow Entertainment, Inc. (‘Rainbow’), and the damages incurred by Rainbow, Investor Resource Sendees, Inc. and other minority shareholders of Rainbow resulting from those actions.” Further, in the clescription-of-assignment section, Dr. Glover stated:

This report analyzes the damages incurred by Rainbow Entertainment, Inc., by Investor Resource Service [sic], Inc. and the other minority shareholders of Rainbow resulting from the actions and omissions of Marvin Cato, Charles Cato and Láveme Cato as majority shareholders, directors and officers, of Rainbow Entertainment, Inc. It also analyzes whether the Catos breached their duties as corporate officers, directors, and majority shareholders, by authorizing self-dealing transactions.

¶ 21. Notwithstanding Rainbow’s characterization of Dr. Glover as a derivative expert, Investor Resource argues that Dr. Glover was offered as a damages expert, not as a derivative action expert. We agree. Dr. Glover also defined her role in her deposition testimony as a damages expert, not a derivative-action expert, when she stated:

I’m not here as a derivative — I’m here as a damage expert and to tell you about what goes on in a corporate board room, how the corporate — how the corporate officer should act, the duty they have to shareholders. That’s not necessarily a derivative in nature, but it’s a shareholder. That’s — I’m just — I’m here as an expert on these types of — of information.

¶ 22. In keeping with her role as a damages expert, part of Dr. Glover’s reports were compilations of financial documents, received and expended funds, and other corporate documents from Rainbow. Dr. Glover l-eviewed available Rainbow documents and compiled the information into schedules. These schedules included the outstanding shares of stock in Rainbow; payments received by Rainbow from Greenville Riverboat, LLC; payments made to Charles and Marvin Cato; payments made for corporate jet service; payments of dividends;' cash disbursements from January 1, 2001, through December 31, 2004; and cash disbursements from January 1, 2005, through December 31, 2006, including a listing of missing checks.

¶ 23. Indeed, the majority of the content in Dr. Glover’s two reports centers on the actions taken by the members of the Cato family, as officers and shareholders of Rainbow, and the impact of their actions and expenditures of corporate funds on Rainbow and Investor Resource as a whole.

¶ 24. According to her report, Dr. Glover also considered various corporate documents such as the bylaws, a private-placement memorandum, legal pleadings, bank statements, corporate minutes, an agreement with Greenville Riverboat, financial statements, federal income tax returns, expense reports, and other documents to complete her determination as to any damages which resulted to Rainbow, Investor Resource, and minority shareholders by the actions of the corporate officers.

¶ 25. The trial court excluded Dr. Glover’s expert testimony on the basis that she had “demonstrated a failure to understand how damages in derivative actions are distributed.” Investor Resource contends that Mississippi caselaw has held that, when dealing with a closely held corporation, damages may be awarded directly to minority shareholders. We agree.

¶ 26. In Fought v. Morris, 548 So.2d 167, 169 (Miss.1989), this Court stated that a closely held corporation “is a business entity with few shareholders, the shares of which are not publicly traded.” In addition, a closely held corporation “operates as a small business enterprise where the shareholders, directors, and managers often are the same persons.” Id. at 170. The Court also stated that in a closely held corporation “where a majority stockholder stands to benefit as a controlling stockholder, the majority’s action must be ‘intrinsically fair’ to the minority interest.” Id. at 171.

¶ 27. In Derouen v. Murray, 604 So.2d 1086, 1088 (Miss.1992), Derouen and Murray were coshareholders in H & D Seafood Corporation (H & D). Derouen filed suit against Murray in an individual capacity, challenging actions by Murray in his capacity as a corporate officer. Id. This Court affirmed the trial court’s finding as to a release on a personal claim against Murray. Id. at 1090. However, this Court determined that Derouen’s claim, that Murray, as a president and director of H & D, had breached his duties owed to the corporation, was a shareholders’ derivative action in nature. Id. The Court also determined that, even though Derouen had failed to identify his action as a shareholder derivative suit, nonetheless, the derivative claim was tried by implied consent. Id. at 1090-91. This Court stated that “a derivative action is an asset of the corporation, one, to be sure, that the corporation through its directors and officers may deal with as any other corporate asset.” Id. at 1091. However, the Court, in a footnote, noted that, in some instances involving closely held corporations, the chancery court, in its discretion, may treat a derivative action as a direct action and permit individual recovery. Id. n. 2. Specifically, this Court stated:

¶ 28. We take the view of the Principles of Corporate Governance § 701(d):

d) In the case of a closely held corporation ..., the ... court in its discretion may treat an action raising derivative claims as a direct action, exempt it from those restrictions and defenses applicable only to derivative actions, and order an individual recovery, if it finds that to do so will not (i) unfairly expose the corporation or the defendants to a multiplicity of actions, (ii) materially prejudice the interests of creditors of the corporation, or (iii) interfere with a fair distribution of the recovery among all interested persons.
The principal effect of this course would be to exempt plaintiff from these procedural hoops. The Court below did not exercise its discretion regarding these matters, as it did not consider the derivative claims at all.
All of this refers but to the form and procedure for litigating certain substantive claims and, thus, in no way impugns our conclusion in Part III above.

Id. at 1091 n. 2. See also Era Franchise Systems, Inc. v. Mathis, 931 So.2d 1278, 1281 (Miss.2006). The trial court did not view the suit as derivative in nature and, therefore, it never applied the appropriate law. Id. at 1092. This Court reversed and remanded for further proceedings based on the derivative claims. Id. at 1092.

¶ 29. Furthermore, finding that an expert’s testimony should be admitted into evidence does not preclude the trial court from exercising its discretion to limit the expert evidence. See Partin v. N. Miss. Med. Ctr., Inc., 929 So.2d 924, 931 (Miss.Ct.App.2005) (“At trial, the jury may decide to discredit [the expert’s] opinions, or the court, upon voir dire and tender of [the expert] as an expert, may limit the matters to which he may testify”). Likewise, the trial court also has discretion to limit jury instructions. In Missala Marine Services v. Odom, 861 So.2d 290, 294 (Miss.2003), a closely held corporation freeze-out case, this Court held that the plaintiff had to provide substantial proof of damages in order for a jury to have a foundation to assess any loss. This Court also set forth the standard of review for jury instructions and stated, in part:

However, the trial judge may also properly refuse the instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered in another instruction or to be without proper foundation in the evidence of the case.

Missala, 861 So.2d at 297 (quoting Humphrey v. State, 759 So.2d 368, 380 (Miss. 2000)).

¶ 30. Investor Resource also contends that its claims are not solely derivative in nature. In the original complaint, which was incorporated by reference into the amended complaint, Investor Resource alleged individual shareholder claims such as fraud in the inducement and fraudulent misrepresentation. Provided there was an adequate foundation for an assessment of damages, these types of claims would award damages on an individual basis rather than in a derivative capacity to the corporation.

¶ 31. We find that the trial court abused its discretion by excluding the expert testimony of Investor Resource's expert, Dr. Glover. The reports and deposition testimony were relevant and were based on established accounting principles and corporate business principles and practices. The schedules that Dr. Glover compiled from Rainbow’s expenditures were based on bank documents and other discovery documents. Dr. Glover also provided her expert opinion on whether there was breach of duty by the officers and directors of Rainbow and, whether Rainbow, Investor Resource, and other minority shareholders had sustained damages from those actions and through the expenditures of Rainbow contained in her compilation of financial documents in the form of schedules. In Funderburk v. Johnson, 935 So.2d 1084, 1107 (Miss.Ct.App.2006), an expert was allowed to testify as to charts of information that he compiled based on daily cash deposits from a store experiencing cash shortages and an employee’s cash deposits into her own checking account. “Generally, questions related to the bases and sources of an expert’s opinion affect the weight to be afforded the opinion by the jury, not the admissibility of the opinion.” Funderburk, 935 So.2d at 1107-08 (citations omitted). The court also found that charts “allowed the fact-finder to assess the evidence surrounding [the employee’s] source of cash and to reach its own conclusion as to the explanation for the cash deposits.” Id. at 1108. See also M.R.E. 1006. Of course, any expert witness would be subject to cross-examination by opposing counsel.

¶ 32. Here, Glover’s misstatement, later corrected in her second report, concerning who received the damages in a minority shareholder derivative suit should not be the basis for her exclusion as an expert witness. Investor Resource’s claims were both individual and derivative in nature. Furthermore, Mississippi caselaw holds that in derivative suits involving closely held corporations, the trial court may award damages on an individual basis, provided certain safeguards are met. Det-onen, 604 So.2d at 1091 n. 2. Additionally, Glover’s testimony would have been subject to cross-examination, in which opposing counsel would have had an opportunity to probe any perceived fallacies in her opinion before the jury. The jury could then weigh the credibility of the witnesses, including any expert witness testimony. Funderburk, 935 So.2d at 1107-08.

¶ 33. The trial court, in addition, can limit expert testimony. To the extent that any perceived incorrect assertion was made as to who receives any potential damages in the lawsuit, the trial court has discretion to review any proposed jury instructions and give only those damage instructions that are correct and have been adequately proven at trial. Accordingly, we find that the trial court should not have excluded Glover’s expex-t opinion.

CONCLUSION

¶ 34. For the foregoing reasons, the Circuit Court of Washington County eiTed by granting the Defendants’ motion in li-mine and thus excluding the expert testimony of Dr. Glenda Glover. This Court reverses and remands this case to the tidal court for proceedings consistent with this opinion.

¶ 35. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., RANDOLPH, LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. DICKINSON, J., CONCURS IN PART AND IN RESULT.

      . All the plaintiffs in this action alleged in their first amended complaint that they were given leave to intervene in another case styled as Michael I. Less, Joseph T. Getz, Clifton M. Lipman, and O.T. Marshall IV, individually and derivatively, Plaintiffs v. Matvin Cato, individually, Charles Cato, individually, Láveme Cato, individually, and Rainbow Entertainments, Inc., a Mississippi corporation (Cause No. Cl2002-455). The plaintiffs joined the allegation in the original lawsuit and sought damages and other relief for alleged self-dealing and mismanagement by the officers, directors, controlling shareholders and agents of Rainbow Corporation. On September 16, 2004, the plaintiffs' case was severed from the original lawsuit.

      . The trial court based the denial of the motion to reconsider on the theory that the Mississippi Rules of Civil Procedure do not provide for a motion to reconsider, and that Investor Resource's motion did not fall within the confines of Rule 60. Investor Resource also requested clarification to determine whether Dr. Glover, in the alternative, was excluded as a fact witness.


author: JESS H. DICKINSON, Justice.

text:
    Weldon FOXWORTH v. STATE of Mississippi.
    No. 2008-KP-01373-SCT.
    Supreme Court of Mississippi.
    Aug. 20, 2009.
   ORDER

JESS H. DICKINSON, Justice.

¶ 1. This matter is before the Court on Appellant Weldon Foxworth’s Notice of Appeal. On the State’s Motion to Dismiss Appeal and after due consideration, this Court finds that the appeal is untimely and should be dismissed without prejudice.

¶ 2. Weldon Foxworth pleaded guilty and was sentenced by the tidal court on August 21, 2007. He did not file a Notice of Appeal with this Court until August 12, 2008. Rule 4 of our Rules of Appellate Procedure clearly states, in pertinent part:

[I]n a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right from the trial court to the Supreme Court, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.

Thus, after due consideration of the record and the parties’ briefs, this Court finds that Foxworth’s Notice of Appeal was untimely filed.

¶ 3. IT IS, THEREFORE, ORDERED that Foxworth’s Notice of Appeal is untimely filed and his appeal is hereby dismissed.

¶ 4. IT IS FURTHER ORDERED that the dismissal shall be without prejudice to Foxworth, and he shall have leave to file a motion for post-conviction collateral relief as an original civil action in the trial court.

¶ 5. SO ORDERED.