author: GRIFFIS, J.,

text:
    Albert GARCIA, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00262-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2009.
    Rehearing Denied May 26, 2009.
    Certiorari Denied Aug. 13, 2009.

      Albert Garcia (Pro Se), attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Albert Garcia appeals the circuit court’s dismissal of his motion for post-conviction collateral relief. On appeal, Garcia claims that: (1) he did not waive his right to appeal an evidentiary ruling when he pleaded guilty, and (2) he received ineffective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. Garcia was indicted for possessing methamphetamine with the intent to distribute as a habitual offender; he had two prior convictions for possession of methamphetamine in Texas. Garcia was granted a hearing on his motion to suppress evidence, but the circuit court denied his motion to suppress. He pleaded guilty on June 19, 2006, and he was sentenced to eight years in the custody of the Mississippi Department of Corrections and to twenty-two years of post-release supervision (five years reporting and seventeen years non-reporting).

¶ 3. Garcia filed a motion for post-conviction collateral relief. The circuit court dismissed Garcia’s motion for post-conviction collateral relief because: (1) he waived his claim alleging an illegal search and seizure by pleading guilty, and (2) he offered only his bare assertions in support of his ineffective assistance of counsel claim. It is from this order that Garcia appeals.

STANDARD OF REVIEW

¶ 4. A circuit court’s dismissal of a motion for post-conviction collateral relief will not be reversed absent a finding that the circuit court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

1. Did Garcia ivaive his right to appeal an evidentiary ruling when he pleaded guilty?

¶ 5. Garcia argues the search of his home was illegal, and the evidence seized should be suppressed. The State contends that this issue was waived because a valid guilty plea waives all non-jurisdictional issues.

¶ 6. A valid guilty plea constitutes a waiver of certain constitutional claims, including illegal search and seizure. King v. State, 738 So.2d 240, 241 (¶¶4-5) (Miss.1999) (citing Jefferson v. State, 556 So.2d 1016, 1018-19 (Miss.1989)). A plea is considered “voluntary and intelligent” if the defendant is “advised regarding the nature of the charge and the consequences of the plea.” Harris v. State, 806 So.2d 1127, 1130(¶ 9) (Miss.2002) (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)).

¶ 7. The record reflects that the circuit court advised Garcia of the nature of the charges against him and the constitutional consequences of his plea. Although Garcia now claims he has no formal education, is illiterate, and does not understand English, he previously swore that he was sixty-seven years old, had completed twelve years of school, and was literate. He did not have a problem understanding the English speaking attorneys or circuit judge during his evidentiary hearing. The record indicates that Garcia’s plea was voluntary and intelligent.

¶ 8. Garcia’s valid guilty plea waived his right to challenge the circuit court’s denial of his motion to suppress evidence. Therefore, we need not address it.

2. Did Garcia receive ineffective assistance of counsel?

¶ 9. Garcia claims his counsel was ineffective because he failed to call his son, Glenn Garcia, or Southaven Police Sergeant Kyle Hodges to testify at his suppression hearing.

¶ 10. To prove ineffective assistance of counsel, a defendant must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland, v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with the defendant to demonstrate both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong but rebuttable presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In cases involving post-conviction collateral relief, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 11. Garcia claims he received ineffective assistance of counsel because Glenn and Sergeant Hodges were not called as witnesses to rebut the testimony of Lieutenant Steve Stewart. Lieutenant Stewart testified that he knocked on Garcia’s door, and Glenn answered the door. After Lieutenant Stewart explained that they wanted to come inside and talk, Glenn said he did not have anything to do with this, but the officers could come inside.

¶ 12. According to Garcia, Glenn would have testified that he did not give the officers permission to enter the house. Garcia claims Sergeant Hodges would have shown that Lieutenant Stewart was not truthful.

¶ 13. Garcia presented no affidavits with his petition. Because he merely relies on the assertions in his brief, Garcia does not meet the requirements of Vielee. Garcia also fails to meet the requirements of Strickland. This issue has no merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


source: Caselaw Access Project

author: ROBERTS, J„

license: Public Domain

text:
    Judy WILBANKS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CA-00119-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2009.
    Rehearing Denied June 2, 2009.
    Certiorari Denied Aug. 13, 2009.

      James David Moore, Tupelo, attorney for Appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J„

for the Court.

¶ 1. following her guilty plea in the Circuit Court of Tippah County to capital murder and aggravated assault, Judy Wil-banks was sentenced to concurrent sentences of life without the possibility of parole and twenty years, respectively, in the custody of the Mississippi Department of Corrections. She subsequently moved the trial court for post-conviction collateral relief, alleging that: (1) her plea was not voluntary; (2) her plea lacked a factual basis; and (3) she received ineffective assistance of counsel. The trial court granted Wilbanks an evidentiary hearing; however, the court ultimately denied her petition. Wilbanks now appeals and raises the same issues presented to the trial court. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. After her indictment and arrest in 2001 for the shooting of Imogene Harden and killing of Jessie James Hardon, Wil-banks hired an attorney to represent her. However, upon becoming dissatisfied with her first lawyer, she fired him and hired Rob Laher to represent her. According to Wilbanks, Laher’s representation also left something to be desired. Nevertheless, on May 21, 2003, Wilbanks and Laher appeared before Judge Henry Lackey with the intention of entering guilty pleas. During the colloquy with the trial court, Wilbanks had a change of heart. Wil-banks stated that she could not plead guilty to something she did not do and requested that the trial court replace Laher as her counsel. Additionally, Laher requested that he be replaced as her counsel because he expressed concern as to his ability to adequately represent Wilbanks given certain letters written by Wilbanks that he had recently received through discovery from the State. The trial court denied Wilbanks’s request for new counsel and set the trial for the following week.

¶ 3. The next day, May 22, 2003, Wil-banks was in court again to plead guilty to the charges against her, this time in front of Judge Andrew Howorth. At the conclusion of the trial court’s recitation of the consequences of pleading guilty, the second such briefing Wilbanks had received in the past two days, she pled guilty to capital murder and aggravated assault, and the trial court subsequently sentenced her. Approximately two years after her plea, Wilbanks filed a petition for post-conviction relief alleging that: (1) her plea was not voluntarily and intelligently entered; (2) she received ineffective assistance of counsel; and (3) there was no factual basis for her plea. The trial court granted Wil-banks an evidentiary hearing on her petition. Following the hearing, the trial court denied Wilbanks relief, and she subsequently filed the instant appeal.

ANALYSIS

¶ 4. As with any denial of a petition for post-conviction relief, we will not disturb a trial court’s factual findings unless they are clearly erroneous. Moore v. State, 986 So.2d 928, 932(¶ 13) (Miss.2008). Questions of law, however, shall be reviewed de novo. Id.

I. WHETHER WILBANKS’S PLEA WAS VOLUNTARILY AND INTELLIGENTLY ENTERED.

¶ 5. Wilbanks argues that Laher coerced her into pleading guilty. She claims that Laher did not speak with her for some seven months after she retained him. This continued, Wilbanks alleges, until May 8, 2003, when Laher began visiting her in prison two to three times a week in an attempt to convince her to plead guilty. She claims Laher told her that she would be appointed an attorney to file her motion for post-conviction relief and, ultimately, her motion for a new trial. Additionally, she claims Laher told her if she pled guilty she would be able to receive visitors, but if she went to trial and was convicted, she would not. Further, Wil-banks claims that at the May 21, 2003, plea hearing Laher verbally assaulted her in retaliation to her failure to plead guilty. Finally, Wilbanks asserts that she answered every question asked during her May 22, 2003, plea hearing while looking to Laher’s purported visual cues for the correct response, and she did not pay any attention to the questions Judge Howorth asked.

¶ 6. “Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a fae-tual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements.” URCCC 8.04(A)(3). While a defendant is free to collaterally attack a guilty plea, there is a strong presumption of validity to “solemn declarations made in open court.” Hannah v. State, 943 So.2d 20, 25(¶ 11) (Miss.2006). To ensure that the requisite voluntariness and intelligence concerning the plea is present, the supreme court has mandated that the defendant receive certain warnings concerning his plea. Id. at (¶ 12). These warnings include being advised of the minimum and maximum sentences for the crime plead to and that the plea waives certain constitutional rights, including the rights to a trial by jury, to confront adverse witnesses, and protection against self-incrimination. Id. See also URCCC 8.04(A)(4)(b-c).

¶ 7. During the hearing on Wilbanks’s motion for post-conviction relief, she stated that she first became dissatisfied with her trial counsel after five months of unsuccessful attempts to contact him in order to discuss her case. Wilbanks testified that Laher did not discuss her case with her until approximately two weeks prior to her trial date, and he never discussed any discovery pertaining to the charges against her. However, during cross-examination, she stated that he did mention some of the evidence the State had against her, but he did not go into any detail. According to Wilbanks, Laher visited her two or three times a week but only informed her that he had not had the time to prepare a defense, and he told her that her best option was to accept the State’s plea offer and to plead guilty. Wilbanks claimed that Laher told her that if she went to trial, she needed to “come up with something, some reason why you would have done this crime because, you know, I don’t have anything prepared.” She asserted that because of the above action and inaction by Laher she felt pressured to plead guilty.

¶ 8. Nevertheless, she rejected a plea offer in writing on May 8, 2003. Wilbanks stated that Laher subsequently contacted her family and pressured them to convince her to plead guilty. Soon after, on May 21, 2003, Wilbanks and Laher attended her first guilty plea hearing. At the conclusion of the trial court’s thorough recitation of Wilbanks’s rights associated with a plea of guilty, she stated: “I can’t do this. I’m sorry, but I didn’t do it. I can’t plead guilty to something I didn’t do.... Can I have another lawyer, please? This lawyer is not helping me. He’s the one trying to get me to do this. Oh, God.” The trial court explained that Wilbanks’s trial had been set for the following week for some time and denied her request. Wilbanks testified that Laher visited her later that night and finally convinced her to plead guilty.

¶ 9. The next day, while she was waiting to attend her second plea hearing, Wil-banks claims that her doubts resurfaced, and she requested that she be allowed to call another attorney that she knew. Laher and Wilbanks called Charlie Brett. Wil-banks testified that she explained to Brett what Laher was trying to convince her to do; however, before Wilbanks could get a response, Laher “jerked” the telephone from her. Wilbanks claimed that Laher told her that Brett agreed with him. Brett stated by affidavit that he recalled the telephone call he received from Wil-banks and Laher. He stated that Wil-banks was very upset during the call and was troubled by Laher’s advice to plead guilty. He claimed that he never gave Wilbanks any advice other than telling her to consult with Laher.

¶ 10. According to Wilbanks, Laher told her that: (1) she would definitely get the death penalty if she went to trial; (2) it would be several years before she received an appeal; (3) she would never get to see her family again; and (4) she probably would not receive a new trial. Alternatively, if she plead guilty she would: (1) receive a life sentence, (2) be able to see her family, and (3) get a “fair trial” with a different lawyer upon filing a motion for post-conviction relief. Wilbanks then went before Judge Howorth and pled guilty to capital murder and aggravated assault. Wilbanks testified that Laher told her to look to him during the hearing for answers to the “routine” questions the judge was going to ask. She claimed that Laher did, in fact, instruct her on how to answer each of the trial court’s questions during the plea hearing by nodding or shaking his head to indicate whether she should give an affirmative or negative response. She stated that she pled guilty to get an “[attorney to go back to court, to get that trial. I mean, that’s the only way that [Laher] said I was going to get it would be to plea[d].” Wilbanks testified that if Laher had not pressured her as she described, told her she did not have any defense, and refused to do anything more for her case, she would not have pled guilty.

¶ 11. During cross-examination, Wil-banks repeatedly stated that she did not remember any of the questions or statements the trial court asked during her plea hearing. She claimed Laher told her to “tune the questions out” and just look to him for her responses. However, she testified that she remembered the rights explained to her during her first plea hearing. Wilbanks stated that Laher told her that these rights did not apply to her.

¶ 12. Ruby Brown is Wilbanks’s mother. She testified during the evidentiary hearing that she hired Laher after he contacted her three times seeking to represent Wilbanks. Brown stated that Laher never visited Wilbanks to discuss her case, and she was not aware of anything that Laher did during his representation of her daughter. Brown claimed that Laher stated that he did not have time to speak with potential witnesses or otherwise investigate Wilbanks’s case. She also testified that Laher pressured her to convince Wil-banks to plead guilty and routinely raised his voice when speaking with her. Brown stated that she did attempt to convince Wilbanks to plead guilty, but Wilbanks responded that she did not want to plead guilty to something she did not do.

¶ 13. Laher testified that he did not coerce Wilbanks into pleading guilty. During the evidentiary hearing, he maintained that given the amount of evidence against Wilbanks, it was his opinion, and advice to her, that her best option was to plead guilty. He testified that, contrary to Wilbanks’s assertion, he did not tell her what to say or how to answer the trial court’s questions during her guilty plea. During cross-examination, Wil-banks’s attorney at the evidentiary hearing questioned Laher as to his diligence in investigating a possible alibi for Wil-banks. Laher stated that, as far as he could recall, he followed every lead that was available at the time; however, he was confident that the end result of his investigation did not change his opinion that Wilbanks’s best option was to plead guilty. He stated that, in addition to the other evidence against her, the letters Wilbanks wrote to several potential witnesses were very damaging to her case. He explained that although the letters did not explicitly request anyone to lie for Wilbanks, he was of the opinion that there was intent to coach the intended recipients on what to say. Furthermore, while Laher agreed with Wilbanks’s attorney that the letters could have been an innocent reminder to individuals that Wil-banks saw frequently, he stated that they began to conflict as time went on and new problems arose. That is, they changed over time to meet Wilbanks’s evidentiary needs. Finally, in response to Wilbanks’s attorney’s final question as to whether Laher “talked” Wilbanks into pleading guilty, Laher stated:

I didn’t talk her into it. I laid out as best I could the facts, the likelihoods, the consequences. As I said before, there wei’e several times that she and I would go back and ftmth on evidence about should we do this, should we do that, on strategy, on to plea[d] or not plea[d]. Absolutely. That’s not uncommon in any case really; but as far as did I knuckle her under or anything like that, no, sir, I didn’t.

¶ 14. At the conclusion of the evidentia-ry hearing, Judge Howorth stated that while he did not remember Wilbanks’s guilty plea hearing with exacting certainty, he did remember Wilbanks pleading guilty because of the type of offense involved. Judge Howorth stated that defendants who plead guilty routinely look back at them attorney for one reason or another at some point during the plea; however, he said he was certain he never took a guilty plea of a defendant who looked back to their attorney for a response to every question. In such a situation, the judge stated, the plea would not be voluntary and the defendant’s plea would not be accepted. Finally, Judge Howorth stated that it was his recollection that although Wilbanks could have looked to her trial counsel once or twice, she did not look to her attorney for a response to every question.

¶ 15. The record shows that Judge Ho-worth advised Wilbanks of her rights and the consequences of pleading guilty. She stated under oath that she understood her rights, and that she understood that by pleading guilty she waived several of them. She also stated that she was not pleading guilty because of any promises, threats, or other inducements. Laher testified that he did not coerce Wilbanks into pleading guilty, but he only advised her of the possibilities given the evidence against her. We find that based upon the evidence in the record, Wilbanks’s plea was voluntarily and intelligently entered. As such, this issue is without merit.

II. WHETHER WILBANKS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 16. The familiar two-prong test for evaluating a claim of ineffective assistance of counsel claim was established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, it must be shown that a trial counsel’s representation fell below an objective standard of reasonableness. Hannah, 943 So.2d at 24(¶ 6). Second, the defendant must demonstrate that there is a reasonable probability that, but for the trial counsel’s deficient performance, the result of the proceeding would have been different. Id. In the realm of a guilty plea, the inquiry remains the same as to the initial inquiry; however, as to the second, a defendant must show that they “would not have pleaded guilty, would have insisted on going to trial, and the outcome would have been different.” Id. at (¶ 7). In reviewing a claim of ineffective assistance of counsel, this Court “looks at the totality of circumstances to determine whether counsel’s efforts were both deficient and prejudicial.” Osborn v. State, 695 So.2d 570, 575 (Miss.1997). Furthermore, “[t]here is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

¶ 17. Wilbanks alleges that Laher rendered ineffective assistance of counsel in failing to adequately investigate the charges against her, failing to confer with her concerning the charges, coercing her into pleading guilty, and giving her incorrect information regarding her plea and the post-conviction relief process. Wil-banks asserts that, but for Laher’s alleged errors, she would have not pled guilty.

¶ 18. The supreme court has stated that “in order to establish that failure to investigate a line of defense constituted ineffective assistance, a petitioner must show that knowledge of the uninvestigated evidence would have caused counsel to vary his course.” King v. State, 503 So.2d 271, 275 (Miss.1987). When Wilbanks filed her motion for post-conviction relief, she failed to include any affidavits of individuals who would have testified in line with some defense to the charges to which she pled guilty. During her evidentiary hearing, she failed to call any witnesses who would have shed some light on “uninvestigated” evidence. Additionally, Laher specifically testified that he did investigate Wilbanks’s case and concluded that Wilbanks’s best option was to plead guilty. Further, Laher testified that he reviewed the State’s case against Wilbanks, and that he reviewed the case with her.

¶ 19. Wilbanks also alleges that Laher told her — as represented by a document in the record describing the pros and cons of pleading guilty as opposed to going to trial that was allegedly drawn up by Laher— that she would receive an attorney to represent her in her post-conviction relief proceedings if she pled guilty. However, the pro/con list in the record does not corroborate Wilbanks’s recollection. It shows that if she chose to plead guilty she could file a petition for post-conviction relief; it says nothing about her having any right to an attorney at that point.

¶ 20. Based upon the evidence above, and the testimony as summarized under Issue I, the trial court denied Wilbanks’s petition. In doing so, “[t]he trial court, sitting as finder of fact, appeared to have found the defense attorney to be the more credible witness!,] and it is not within our authority to substitute our own view on that question for that of the trial court.” Henderson v. State, 769 So.2d 210, 214(¶ 13) (Miss.Ct.App.2000). Accordingly, we find that this issue is without merit.

III. WHETHER THE RECORD CONTAINS A FACTUAL BASIS FOR WILBANKS’S PLEA.

¶ 21. As previously mentioned, prior to accepting a guilty plea, “the court must determine that ... there is a factual basis for the plea.” URCCC 8.04(A)(3). A defendant can establish a factual basis for his plea of guilty simply by pleading guilty; however, his plea “must contain factual statements constituting a crime or be accompanied by independent evidence of guilt.” Hannah, 943 So.2d at 26-27. In other words, “a factual basis is not established by the mere fact that a defendant enters a plea of guilty.” Id. Rather, the record must contain those facts which are “sufficiently specific to allow the court to determine that the defendant’s conduct was within the ambit of that defined as criminal.” Lott v. State, 597 So.2d 627, 628 (Miss.1992) (quoting United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.1984)). Finally, this Court is not limited to review of a defendant’s plea transcript when determining if a factual basis existed for his guilty plea, but we may review the record as a whole for evidence of such. Boddie v. State, 875 So.2d 180, 183(¶ 8) (Miss.2004).

¶22. During Wilbanks’s guilty plea hearing, the State made the following statement regarding the factual basis for Wilbanks’s plea:

If this case were to go to trial, the State would intend to prove, and I think we would have the ability to prove the following facts among others; that the defendant, Judy Wilbanks, was the ex-wife of one, Jerry Wilbanks; that a portion of her life she had lived in Tippah County, Mississippi, but at the time of this incident, she was a resident of Savannah, Tennessee; that members of the family of her ex-husband, Jerry Wil-banks, lived on the land and property of the victims in this case, Jessie James Hardin and Imogene Hardin, Tippah County, Mississippi, Dry Creek, Tippah County, Mississippi; that the victim, Jessie James Hardin, was known to carry large sums of money on his person; that defendant left her home on August 17, 2001, from Savannah, Tennessee, to travel to Cole Auto Sales in Booneville, Mississippi. At that time, she was driving a purple Plymouth [Breeze] automobile that had the tag removed.
Upon arriving at Cole Auto Sales, Booneville, Mississippi, she test drove a Ford Ranger - pickup truck; that she drove that Ford Ranger truck, to the home of Jessie James and Imogene Hardin to [the] Dry Creek community, Tip-pah County, Mississippi with the intent to rob and kill Jessie James and Imogene Hardin; that upon arriving at the home of Jessie James and Imogene Hardin, she entered the home under the pretext of looking for directions to some person’s house who did not live in the area. Upon entering the house of Jessie James and Imogene Hurdle [sic], pulled a .22 caliber pistol from a big, large purse or bag, at that time, she shot Jessie James Hardin on several occasions resulting in his death. She then turned and pulled the gun and shot Mrs. Imogene Hardin in the head with [sic] point blank range, leaving her for dead.
She then took the money from the pocket of Jessie James Hardin and left the scene, returned to Cole Auto Sales and exchanged the Ford Ranger truck for her purple Plymouth Breeze [automobile].
After this incident, her ham had been changed in color to a light brown or blonde color.
Upon returning to Tennessee for the next couple of days, she [dyed] her hair to the normal color of a dark brown, black color; that the following day, she went to the courthouse in Savannah, Tennessee, and purchased a new tag for the purple Plymouth Breeze. She removed it prior to this incident; that the acts of the defendant, Judy Wilbanks, resulted in the death of Jessie James Hardin and serious bodily injury of Imogene Hardin and the robbery of the [sic] Jessie James Hardin; that after incarceration and arrest on each of the charges, the defendant sent numerous letters from the Tippah County Jail to persons on the outside requesting that they come and provide false alibis for her and offering to pay sums of money for services that they would have, your Honor. Those are the facts and statements of what we would have proved had it gone to trial.

Wilbanks stated that she pled guilty to the above statement.

¶ 23. On appeal, Wilbanks argues that although the above statement was read into the record it does not establish a factual basis because there is “no direct evidence against [Wilbanks] and the circumstantial evidence allegedly available to the prosecution does not rise to the level needed for a criminal conviction.” However, “[t]he law is well settled that when properly entered and accepted, ‘[a] guilty plea operates to waive the defendant’s ... right that the prosecution prove each element of the offense beyond a reasonable doubt’ Thornhill v. State, 919 So.2d 238, 241 (¶ 13) (Miss.Ct.App.2005) (quoting Swift v. State, 815 So.2d 1230, 1234(¶ 13) (Miss.Ct.App.2001)). Because we held above that Wilbanks’s plea was legally valid, we now hold that the State’s recitation of the facts it intended to prove is a sufficient factual basis for which to satisfy the constitutional requirements of Wilbanks’s plea. She cannot now call into question the sufficiency of the evidence against her as that right was waived upon her plea of guilty. This issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR.

      . Although the letters were not made part of the record, it is clear from the testimony given during Wilbanks’s plea hearings and the evidentiary hearing that Wilbanks wrote several acquaintances of hers and told them to say she was at certain places at certain times. It appears from the record that the State viewed these letters as an attempt by Wil-banks to suborn perjury.

      . Wilbanks wrote the Mississippi Bar Association two times during this period complaining of Laher's inaction.

      . Wilbanks testified that immediately after this hearing, she and Laher met, and he yelled at her, called her names, told her she was a fool, and told her she was going to die.


author: MYERS, P.J., BARNES, J.,

text:
    Wendell DUNCAN a/k/a Wendell Avery Duncan, Appellant, v. Donna Jill JOHNSON and Renee Covert, Appellees.
    No. 2008-CP-00055-COA.
    Court of Appeals of Mississippi.
    March 10, 2009.
    Rehearing Denied May 5, 2009.
    Certiorari Denied Aug. 6, 2009.

      Wendell Duncan, Pro Se.
    No Brief Filed.
   MYERS, P.J.,

for the Court.

¶ 1. Wendell Duncan filed suit against Donna Jill Johnson, Circuit Clerk of Laud-erdale County, and Renee Covert, a deputy circuit clerk. Duncan alleged that Johnson violated his constitutional right of access to the courts by failing to issue summonses in a prior suit. Duncan also alleged that Covert violated his right of access to the courts by refusing to subsequently alter filing dates on the docket sheet of the same action. Duncan alleged these failures resulted in that cause being dismissed, and as a result, he suffered emotional distress.

¶ 2. The circuit court dismissed Duncan’s complaint as frivolous. In light of this complaint, and seven others that he had filed but not pursued, the circuit court also enjoined Duncan from filing any additional papers in the Circuit Court of Lauderdale County. Duncan appeals, arguing that the circuit court erred in dismissing his complaint as frivolous and that the circuit court’s bar on his filing papers in that court violates his constitutional right of access to the courts.

DISCUSSION

1. Whether the circuit court erred in dismissing Duncan’s complaint as frivolous.

¶ 3. Mississippi courts exercise concurrent jurisdiction with our federal counterparts over section 1983 claims, but the elements of and the defenses to the cause of action are defined by federal law. E. Misa. State Hosp. v. Callens, 892 So.2d 800, 812(¶ 21) (Miss.2004) (citations omitted).

¶4. Our trial courts possess an inherent authority to dismiss frivolous complaints, sua sponte, even prior to service of process on the defendants. See Blanks v. State, 594 So.2d 25, 28 (Miss.1992) (“If ... the complaint is frivolous, process need not be issued. In this event, there would be no occasion for the defendants to file an answer to the prisoner’s complaint”). See also Bilbo v. Thigpen, 647 So.2d 678, 684 (Miss.1994). Although a trial court is required to give a liberal construction to pro se civil rights complaints, see Moore v. McDonald, 30 F.3d 616, 620 (5th Cir.1994), we review a trial court’s conclusion that a complaint is frivolous for abuse of discretion. Huggins v. State, 928 So.2d 981, 983(¶ 4) (Miss.Ct.App.2006) (citing Dock v. State, 802 So.2d 1051, 1056(¶ 11) (Miss.2001)). The power to dismiss a frivolous complaint is distinct from a trial court’s authority to dismiss for failure to state a claim under Rule 12(b)(6). See Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A trial court has “not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Id. at 327, 109 S.Ct. 1827.

¶ 5. Accordingly, in reviewing the circuit court’s dismissal for an abuse of discretion, we consider: (1) whether the complaint has a realistic chance of success; (2) whether it presented an arguably sound basis in fact and law; and (3) whether the complainant could prove any set of facts that would warrant relief. Dock, 802 So.2d at 1056(¶ 11). We shall address Duncan’s allegations against each defendant separately.

A. Duncan’s Claims Against the Circuit Clerk

¶ 6. Duncan’s complaint alleged that the circuit clerk denied him access to the courts by refusing on one instance to issue summonses. Duncan claims that on May 17, 2006, he mailed a summons for each defendant, along with a cover letter, to the circuit clerk’s office. Duncan alleged that the circuit clerk “maliciously, recklessly, intentionally], and negligently failed to file [his summonses] correctly or file them at all.”

¶ 7. We note as a threshold issue that an “access to the courts” claim under section 1983 requires an allegation of intentional conduct; negligent or inadvertent conduct will not suffice. Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir.1988). Likewise, a court clerk is entitled to qualified immunity for good faith efforts in the execution of her duties, unless her conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Antoine v. Byers & Anderson Inc., 508 U.S. 429, 432 n. 4, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993); Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir.1980). Clearly, the circuit court did not abuse its discretion in finding Duncan’s complaint frivolous to the extent he alleged harm from inadvertent conduct or a good faith mistake. Nor can we say that the circuit court abused its discretion in finding Duncan’s allegations, to the narrow extent they may be actionable, to be improbable.

¶ 8. Even if we accept the facts alleged in the complaint as true, it is not clear that Duncan has stated a cause of action under section 1983. Duncan filed suit on January 30, 2006, but he admits that he did not attempt to issue summonses prior to May 17, 2006, when less than two weeks remained of the 120 days allowed for service of process by Mississippi Rule of Civil Procedure 4(h). Even if Duncan mailed the summonses on May 17, 2006, as he claimed, and the circuit clerk had promptly issued process and delivered it to the sheriff, there is no guarantee that service would have been effected prior to the expiration of the 120-day period. Likewise, had Duncan diligently prosecuted his claim, he could have sought a writ of mandamus to order the circuit clerk to issue the summonses. Furthermore, the Mississippi Rules of Civil Procedure provided Duncan an opportunity to seek enlargement of the time allowed for service, prior to the expiration of the 120-day period under Rule 6(b)(1), but he did not. Duncan was also permitted to extend the 120-day period by motion following its expiration on a showing of excusable neglect under Rule 6(b)(2), or excuse his failure to timely serve process with a showing of good cause under Rule 4(h).

¶ 9. Instead, Duncan did not follow up on the cause until September 25, 2006, long after the end of the 120-day period for service. Under these circumstances, we find the reasoning in Kincaid v. Vail, 969 F.2d 594 (7th Cir.1992), to be persuasive. With similar operative facts before it, the Seventh Circuit held:

The appellants had adequate state remedies available to them. The Indiana Constitution assures civil litigants the right of access to the courts.... Indiana law permits enforcement of those rights by providing that writs of mandate and prohibition may be issued to any and all inferior courts compelling the performance of any duty enjoined by law upon the inferior courts....
More fundamentally, the appellants have not alleged that any prejudice resulted from the March return of their check. This action ... caused at most a delay in the plaintiffs’ access to the court. While a delay or interruption in pending or contemplated litigation may indicate a deprivation of constitutional dimensions, we have required a showing of prejudice. Here, if the plaintiffs suffered any prejudice ... [it] is attributable to [a subsequent judicial decision].

Id. at 602-03 (citations and internal quotations omitted). Considering the lengthy 120-day period allowed for service and the multitude of remedies available to Duncan, we do not see this single, isolated failure of the circuit clei'k to be an actionable interference with Duncan’s right of access to the courts. Any prejudice Duncan suffered was a result of his failure to prosecute the suit.

B. Duncan’s Claims Against the Deputy Cleric

¶ 10. Duncan’s only allegation against the deputy clerk was that she refused to “correct” the docket to reflect the filing of the summonses he claimed to have mailed to the circuit clerk on May 17, 2006. As the circuit court explained, the docket only reflects filings; it cannot be “corrected” to include documents that were never filed. Duncan’s argument is without legal merit and does not have a realistic chance of success. Furthermore, Duncan can claim no prejudice to his right of access to the courts by any actions of the deputy clerk • because his request to correct the docket was not made until September 25, 2006, almost four months after the 120 days allowed to serve process had run. The deputy clerk could not have done anything in response to Duncan’s letter that would have prevented his complaint from being dismissed.

2. Whether the circuit court erred in sanctioning Duncan.

¶ 11. The circuit court ordered that Duncan “may not file and is barred from filing another Complaint or any other pleading whatsoever in this Court. The Circuit Clerk is ordered and directed not to accept, receive or file any additional pleadings, documents, letters or other correspondence from the Plaintiff, Wendell Duncan.”

¶ 12. In Vinson v. Benson, 805 So.2d 571, 576(¶ 18) (Miss.Ct.App.2001), this Court discussed the inherent authority of our trial courts to regulate and sanction abusive litigants:

The Mississippi Constitution does not create an unlimited right of access to the courts. Turrentine v. Brookhaven, Mississippi School Dist., 794 F.Supp. 620, 626 (S.D.Miss.1992). “No one, rich or poor, is entitled to abuse the judicial process.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir.1989) (citing Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir.1975)). “One acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir.1986). We adopt the view of these federal courts that abuse of the judicial process is inappropriate....

Nonetheless, “[C]ourts must carefully observe the fine line between legitimate restraints and an impermissible restriction on a prisoner’s constitutional right of access to the courts.” Procup v. Strickland, 792 F.2d 1069, 1072 (11th Cir.1986). While we recognize the circuit court’s considerable discretion in crafting restrictions on abusive litigants, this authority does not extend to an absolute, permanent bar on future filings.

¶ 13. Therefore, although we affirm the circuit court’s dismissal of Duncan’s complaint as frivolous, the circuit court’s injunction is vacated, and the cause is remanded for the circuit court to consider an appropriate alternative sanction.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY IS AFFIRMED IN PART AND VACATED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

LEE, P.J., GRIFFIS, and CARLTON, JJ., CONCUR. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., IRVING AND ISHEE JJ. KING, C.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. ROBERTS AND MAXWELL, JJ. NOT PARTICIPATING.

BARNES, J.,

Concurring in Part, Dissenting in Part.

¶ 15. I must respectfully dissent from the majority’s decision to affirm the dismissal of Duncan’s lawsuit as “patently frivolous” without any notice or opportunity for Duncan to be heard in the circuit court. While Duncan’s claims may indeed be found to be frivolous upon further review, he is entitled to a Spears hearing prior to any dismissal of his complaint. I do, however, concur with the majority opinion that the circuit court’s injunction on future filings be vacated and remanded.

¶ 16. The trial judge, upon his own motion, dismissed Duncan’s complaint against the circuit clerk and her deputy clerk on the same day it was filed and, further, barred Duncan from filing any further pleadings in the court. The trial judge cited no authority for such action. Although the majority cites Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), for the proposition that the trial court has “not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless[,]” a closer review of the case reveals that such authority is only accorded under 28 U.S.C. § 1915(d). Id. (“To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory ... ”) (emphasis added). The Supreme Court stated in Neitzke:

Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11.

Id. Mississippi, however, has no comparable statute.

¶ 17. Regardless, our supreme court, fully cognizant of the concerns raised in Neitzke, has addressed the issue of dismissal of frivolous claims brought by a pro se in forma pauperis litigant in Blanks v. State, 594 So.2d 25 (Miss.1992) and in Bilbo v. Thigpen, 647 So.2d 678 (Miss.1994). In those cases, the supreme court stated that our rules of civil procedure adequately cover the process outlined in section 1915(d) under Mississippi Rules of Civil Procedure 3 and 11. In Blanks, the court explained:

Rule 3(c) MRCP provides that the court may on its [own] motion examine an affiant alleging pauperism as to the facts and circumstances of his financial condition. If the action is to be dismissed on the basis that the affidavit is untrue that finding should be based on evidence preserved in the record. Feazell v. Staltzfus, 98 Miss. 886, 54 So. 444 (1911). Where the court conducts a hearing to determine the issue of poverty, it is entirely reasonable and in the interest of judicial economy that the pleading also be examined and the affiant questioned to determine whether the action is frivolous and, therefore, subject to dismissal pursuant to Rule 11 MRCP. Thus the so-called Spears hearing, usually employed in pro se prisoner in forma pau-peris complaints, is consonant with our law.

Blanks, 594 So.2d at 28. Therefore, the purpose of a Spears hearing is to determine whether or not a “prisoner should be permitted to file and proceed on his complaint in forma pauperis” and whether “the inmate’s complaint suffers from frivolity.” Id. It is only if the trial judge finds that the “complainant is not a pauper” or “the complaint is frivolous, process need not be issued!,]” and there would be no need for a “defendant! ] to file an answer to the prisoner’s complaint.” Id.

¶ 18. “Once a Spears evidentiary hearing is conducted, dismissal of the case because of frivolity becomes an issue.” Bilbo, 647 So.2d at 688. The supreme court in Bilbo recognized that while a Spears hearing “is not explicitly authorized by our state statutes, it is a federal procedure consonant with our law, given approval in Blanks and Rougean [.]” Id. at 693. “Therefore, we choose to give meaning and effect to Spears hearings, announcing our employment of the United States Supreme Court’s definition of ‘frivolous’ and the abuse of discretion appellate standard of review for application to pro se prisoners’ in forma pauperis complaints.” Id.

¶ 19. The majority submits that, based on the Fifth Circuit Court of Appeals’ ruling in Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.1994), a Spears hearing is only necessary in situations where “it appeals] that insufficient factual allegations might be remedied by more specific pleading.” They contend that Duncan’s claims were not actionable and, therefore, did not merit such an opportunity. However, Eason is distinguishable from the present case in that it is a federal court case; consequently, section 1915 would be applicable. As already noted, section 1915 is not applicable to cases brought in Mississippi courts.

¶ 20. In both Blanks and Bilbo, the prisoner was afforded a Spears hearing prior to the dismissal of his claim. I find no Mississippi authority for dismissing a prisoner’s claim without such a hearing, and the majority has cited none. Accordingly, I find that the trial judge’s failure to afford Duncan a Spears hearing, which our supreme court has found to be an appropriate procedure in determining a pro se prisoner’s claims, to be reversible error. In my view, the case should be remanded for a Spears hearing in order to afford Duncan notice and an opportunity to be heard prior to any dismissal of his claim.

KING, C.J., IRVING AND ISHEE, JJ., JOIN THIS OPINION.

      . 42 U.S.C. § 1983 (2006).

      . The dissent asserts that the trial court was required to conduct a Spears hearing prior to dismissing Duncan's complaint. See Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). It can cite no Mississippi authority holding a trial court in error for not conducting such a hearing. Indeed, in authorizing Spears hearings, our supreme court held that a trial court "may on its own motion” hold such a hearing when the plaintiff alleges poverty; it is not required. See Blanks v. State, 594 So.2d 25, 28 (Miss.1992) (emphasis added).
      In the Fifth Circuit, a prisoner-plaintiff is only entitled to a Spears hearing when “it appearfs] that insufficient factual allegations might be remedied by more specific pleading.” Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.1994) (emphasis added); see also Rougeau v. Shepard, 607 So.2d 1227, 1231-32 (Miss.1992) (describing a Spears hearing as "a limited inquiry regarding the facts of inartfully drawn pleadings"). In the Fifth Circuit, a district court’s decision not to hold such a hearing is reviewed for an abuse of discretion. Eason, 14 F.3d at 9. Even assuming that a Mississippi circuit court could be held to error in not conducting a Spears hearing, the court here did not abuse its discretion in finding one unnecessary; we affirm its dismissal because the facts, although clearly alleged, are nonetheless not actionable.

      . The cover letter read:
      Please find enclosed, two (2) summons for Willie Bookert and Darryl Johnson, to be served the filed complaint, thats [sic] attached to the summons. I would like you to file this action, just in case they have not been served, because I have not received an answer from either one and I have a Motion for Summary Judgment filed on the 22nd day of March, 2006. I would like you, to return me a stamped filed copy of the same....

      . In Spears v. McCotter, 766 F.2d 179 (5th Cir.1985), the court held that 'a prisoner proceeding in forma pauperis may be afforded an evidentiary hearing by a magistrate to determine if there is a legal basis for the claim. The court in Spears encouraged the trial courts to examine pro se pleadings, “using interrogatories as well as evidentiary hearings to do so, prior to deciding whether the prisoner can state a claim to satisfy Rule 12(b)(6).” Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir.1986).

      . The statute was revised in 1996, and section 1915(d) was re-designated as section 1915(e). The statute states in pertinent part that a court may dismiss an in forma pauperis case "at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

      . Rougeau v. Shepard, 607 So.2d 1227 (Miss.1992).


author: LEE, P.J.,

text:
    John L. WOODS a/k/a John Louis Woods, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00366-COA.
    Court of Appeals of Mississippi.
    April 28, 2009.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.

      Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. John Woods was found guilty by a jury in the Circuit Court of Jackson County of capital murder and commercial burglary. He was sentenced to life in the custody of the Mississippi Department of Corrections without the eligibility for parole for capital murder, and he was sentenced to seven years for commercial burglary, with the sentences to run consecutively. Woods filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied by the trial court.

¶2. Woods now appeals, asserting the following issues: (1) the trial court erred in allowing gruesome and prejudicial photographs into evidence, and (2) the evidence was insufficient to support a verdict of capital murder. Finding no error, we affirm the convictions and sentences.

FACTS

¶ 3. Woods, Derek Williams, Kerry Johnson, and Bryan Carter shared an apartment together in Gautier, Mississippi. The four men were all between the ages of eighteen and twenty-one, and they were unemployed. Only Williams owned an operating vehicle. On March 11, 2005, all four men drove to Bluff Creek Water Park to go camping. After setting up camp, they decided to go to Walmart and another store to steal some food. On the way to Walmart, they got gas at a gas station and drove off without paying for it. After going back to the campsite and eating, they decided to go burglarize a store to get some beer. Williams picked up a lead pipe (also referred to in the record as a weight bar) from the back of Williams’s truck and tried to break the glass door of a gas station. When he was unsuccessful, Woods picked up the bar and broke the door. They stole beer, soft drinks, and several cartons of cigarettes before heading back to the campsite at approximately 1:30 a.m. When they got back to the campsite, Carter mentioned that he did not go into the store, so Woods and Carter went back to the store that they had burglarized and stole more beer and cigarettes.

¶ 4. When all the men made it back to the campsite at approximately 2:00 a.m., they began talking about women. Williams stated that he wanted to have sex with Woods’s sister. Woods became enraged, picked up the lead pipe, and walked away from the campsite. Carter went to check on Woods, and Woods told Carter that he was going to kill Williams. Carter testified that he felt Woods was just venting. Carter went back to the campsite and told Johnson that he should go talk to Woods. Woods also told Johnson that he was going to kill Williams. Johnson did not take him seriously and went back to the camp. Then, Woods, who had been holding the lead pipe, walked back to the campsite and started beating Williams in the head repeatedly with the pipe. Williams was lying on the ground in his sleeping bag when Woods sneaked up behind him. Carter testified that as Woods hit Williams, he said, “Why won’t you die?” Woods testified that he had drunk a case and a half of beer before getting angry at Williams and killing him. Conflicting evidence was presented regarding the time between when Woods got angry and when he killed Williams. Woods testified that it was approximately ten minutes from the time he was provoked until he started hitting Williams. Johnson testified that it was approximately twenty minutes or less, although the statement he gave to the police said an hour.

¶ 5. After Woods stopped hitting Williams, he stated he was sorry and that he felt like he was going to throw up. Woods then wrapped Williams’s body, which was still in the sleeping bag, in the tent and told Carter and Johnson to put Williams’s body in the truck. Carter and Johnson did not comply at first, but Woods was still holding the lead pipe and threatened them. Woods then got Williams’s keys out of Williams’s pocket and drove to Alabama. Woods pulled off the interstate onto a dirt road and put Williams’s body on the side of the road. Woods then took Williams’s wallet and drove back to their apartment in Gautier. He burned the wallet in the sink. He put the lead pipe and Williams’s burned wallet into a dumpster. Woods gave the police the location of the dumpster. The police found the items as Woods described.

¶ 6. Woods continued to use Williams’s truck and drove it to a job interview and to New Orleans. The truck was abandoned and towed on March 17, 2005. On or about March 31, 2005, Woods confessed to his mother and sister that he had beaten Williams to death with a lead pipe. Woods’s mother called the police, who came and arrested him. Johnson and Carter were later arrested and pleaded guilty to manslaughter and commercial burglary.

DISCUSSION

I. DID THE TRIAL COURT ERR IN ALLOWING PHOTOGRAPHS OF WILLIAMS’S BODY INTO EVIDENCE?

¶ 7. Woods objected to the introduction of eight pictures of Williams’s body on the grounds that the pictures were unnecessary and more prejudicial than probative. Woods argues that since he admitted to killing Williams with a lead pipe, the State’s motive in introducing the pictures was simply to inflame the jury.

¶ 8. Woods offered to stipulate to the introduction of diagrams of the injuries in lieu of the photographs. The trial court declined to rule on the admissibility of the photographs until hearing testimony from the forensic pathologist, Kathleen Enstice. Outside the presence of the jury, Enstice was questioned regarding whether the diagrams or photographs would be most helpful to the jury. She stated that the diagrams were not necessarily drawn to scale and “do not show exactly what, in [her] opinion, needs to be shown to describe the injuries and explain the injuries.” After hearing her explanation, the trial court ruled that the photographs were more probative than prejudicial and allowed them into evidence.

¶ 9. The admission or suppression of evidence, including photographs, is reviewed for abuse of discretion. Chamberlin v. State, 989 So.2d 320, 340(¶ 73) (Miss.2008). “As long as a photograph has probative value and its introduction serves a meaningful evidentiary purpose, it may still be admissible despite being gruesome, grisly, unpleasant, or even inflammatory.” Id. “A photograph has a meaningful evi-dentiary purpose when it: (1) aids in describing the circumstances of the killing; (2) describes the location of the body or cause of death; or (3) supplements or clarifies witness testimony.” Id. “[Pjhoto-graphs of the victim should not ordinarily be admitted into evidence where the killing is not contradicted or denied, and the corpus delicti and the identity of the deceased have been established.” Sudduth v. State, 562 So.2d 67, 70 (Miss.1990). However, “[pjhotographs of bodies may nevertheless be admitted into evidence in criminal cases where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory.” Id.; M.R.E. 403.

¶ 10. We cannot find that the trial court abused its discretion in allowing the photographs into evidence. Enstice testified that the photographs would be helpful to the jury as the pictures would aid in her description of the circumstances that led to Williams’s death. Also, the photographs showed the location of the body, which was wrapped in the tent and sleeping bag. The body had been cleaned and only closeup photographs of bruises and cuts were shown. Also, the State attempted to narrow the photographs down to only those necessary to aid Enstice’s testimony. The trial court noted that the State only sought to enter into evidence ten of the over 360 pictures taken of Williams’s body. Further, the trial court asked Williams’s family and friends to leave the courtroom before the photographs were shown so as not to elicit an emotional response which might prejudice Woods.

¶ 11. Keeping in mind that our standard of review for the admission of evidence is abuse of discretion, we find that the trial court did not abuse its discretion in allowing the photographs into evidence. Therefore, this issue is without merit.

II. WAS THE EVIDENCE SUFFICIENT TO CONVICT WOODS OF CAPITAL MURDER?

¶ 12. Our standard of review regarding challenges to the legal sufficiency of the evidence is well settled. In reviewing the sufficiency of the evidence, “all evidence supporting a guilty verdict is accepted as true, and the [State] must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence.” Bell v. State, 910 So.2d 640, 646(¶ 16) (Miss.Ct.App.2005) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)).

¶ 13. The jury was instructed regarding manslaughter, murder, and capital murder. Woods argues that, at the most, the evidence supported a conviction of manslaughter. Capital murder is defined by Mississippi Code Annotated section 97-3-19(2)(e) (Rev.2006) as “[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of ... robbery ... or in any attempt to commit such felonies. ...” “A capital murder conviction under Miss.Code Ann. § 97-3-19(2)(e) must be supported by evidence legally sufficient to support a conviction of both the murder and the underlying felony, had either been charged alone.” Spicer v. State, 921 So.2d 292, 311(¶ 38) (Miss.2006) (footnote omitted). Therefore, the evidence in this case must support a conviction of murder and robbery.

¶ 14. Woods argues that the State failed to prove he was guilty of capital murder because the evidence was insufficient to prove murder. He argues that he committed manslaughter under Mississippi Code Annotated section 97-3-35 (Rev. 2006) because he killed Williams in the “heat of passion” after being provoked by Williams’s statement that he wanted to have sex with Woods’s sister. Section 97-3-35 states: “The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.” Murder is defined as “[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed.... ” Miss.Code Ann. § 97-3-19(l)(a) (Rev.2006).

¶ 15. The jury heard arguments regarding murder and manslaughter. The jury heard testimony from Woods that he became angry over Williams’s comment about his sister. The jury also heard testimony from Carter and Johnson that Woods told them he was going to kill Williams, and that Woods was away from the campsite for at least ten minutes before coming back and killing Williams. It is well settled that “[t]he jury is the final arbiter of a witness’s credibility.” Spicer, 921 So.2d at 312(¶ 40). Viewing the evidence in the light most favorable to the State, we find that a reasonable jury could have found Woods guilty of murder rather than manslaughter. Therefore, we find that this argument is without merit.

¶ 16. Next, Woods argues that he was not guilty of capital murder because the evidence was insufficient to prove the underlying felony of robbery. Robbery is defined as the felonious taking of “the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting-such person in fear of some immediate injury to his person.... ” Miss.Code Ann. § 97-3-73 (Rev.2006). The supreme court has held that “possession of a deceased’s property creates a reasonable inference that the property was stolen.” Spicer, 921 So.2d at 312(¶ 40). Regarding evidence sufficient to support the underlying felony of robbery in a capital murder case, the supreme court has held as follows:

It is not necessary that the victim be deprived of property prior to death to sustain a conviction for robbery. West v. State, 463 So.2d 1048, 1056 (Miss.1985). “Am indictment charging a killing-occurring ‘while engaged in the commission of [robbery]’ includes the actions of the defendant leading up to the felony, the attempted felony, and flight from the scene of the felony.” West v. State, 553 So.2d 8, 13 (Miss.1989). See also Turner v. State, 732 So.2d 937, 950 (Miss.1999). “Intent to do an act or commit a crime is also a question of fact to be gleaned by the jury from the facts shown in each case.” Shanklin v. State, 290 So.2d 625, 627 (Miss.1974).

Knox v. State, 805 So.2d 527, 531(¶ 14) (Miss.2002).

¶ 17. Woods argues that he did not intend to rob Williams, but that he only took Williams’s wallet so it would be harder to identify Williams’s body. Woods also admitted to taking Williams’s keys and truck, but he argues that he was allowed to freely use Williams’s truck before his death; therefore, he argues that the State could not prove that he intended to steal the truck just because he was driving it after Williams’s death. The jury, as the fact-finder, was left to determine if Woods intended to rob Williams of his keys, truck, or wallet when committing the murder.

¶ 18. Giving the State all reasonable inferences that can be drawn from the evidence, we find that the elements of robbery were established beyond a reasonable doubt. We find that this issue is without merit as the evidence was legally sufficient to support a verdict of capital murder. The judgment of the trial court is affirmed.

¶ 19. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, CAPITAL MURDER, AND SENTENCE OF LIFE WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION; COUNT II, COMMERCIAL BURGLARY, AND SENTENCE OF SEVEN YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.


author: IRVING, J.,

text:
    Jasper C. SONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-01342-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.
    J.B. Goodsell, Attorney for Appellant.
    Office of the Attorney General by La Donna C. Holland, attorney, for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Jasper C. Sones was convicted by a jury in Oktibbeha County of possession of at least two precursor chemicals with intent to manufacture methamphetamine. The trial court sentenced him to ten years in the custody of the Mississippi Department of Corrections. Aggrieved, Sones appeals and asserts: (1) that the trial court erred in finding that he lacked standing to challenge the legality of the search, (2) that the trial court erred in finding that probable cause existed for the search, and (3) that it was error for the search warrant and the affidavit for the search warrant not to be admitted into evidence.

¶ 2. We find no reversible error; therefore, we affirm Sones’s conviction and sentence.

FACTS

¶ 3. On February 28, 2001, Agent Brent Young obtained a search warrant for a house located on County Lake Road in Oktibbeha County, Mississippi. Agent Young had observed Jeremy Sones, Sones’s brother, acting suspiciously earlier that day at a Walmart Supercenter. A search of the house revealed numerous items which are used in the manufacture of methamphetamine. Three people were in the house when the deputies arrived with the search warrant: Sones, Jeremy, and Thomas Lee. All three men were arrested. Sones subsequently filed a motion to suppress the materials that were discovered, and a suppression hearing was held.

¶ 4. At the hearing, Agent Young testified that he learned from the sheriffs department that the house was owned by C.L. Huffman. Thereafter, he contacted C.L. and one of C.L.’s sons and explained that methamphetamine precursors had been discovered at the house. Agent Young recalled that C.L. told him that the men were at the house to perform renovations. Sones testified that C.L.’s son, Keith Huffman, gave him permission to reside at the County Lake Road house while he performed the renovations. However, Agent Young testified that C.L. told him that the men did not have permission to stay overnight at the house. Keith did not testify at the suppression hearing. Thereafter, the trial court denied Sones’s motion, and the case went to trial.

¶ 5. At trial, Agent Young testified that on February 28, 2001, he went to the grand opening of a Walmart in Starkville, Mississippi to discuss loss prevention with Kim Weston, an employee at the store. While waiting to see Weston, Agent Young witnessed a male, later identified as Jeremy, walk down the aisle which contained over-the-counter medications. Agent Young watched as Jeremy read the labels on several of the bottles. He surmised that Jeremy must have noticed his T-shirt, which bore the letters MBN, because he became nervous and knocked over several bottles of pills. Agent Young testified that Jeremy then took two boxes of Sudafed from the shelf and left that area of the store. Agent Young stated that he remained in the area for a short while longer before following Jeremy to the checkout line, where Jeremy paid for the two boxes of Sudafed, a small book of matches, and two ashtrays. Agent Young stated that Jeremy’s behavior, as well as the items that Jeremy purchased, caught his attention because he knew from his training that striker plates on small match books contain red phosphorus, which is an ingredient used in the manufacture of methamphetamine.

¶ 6. Agent Young stated that he then followed, what he described as, a nervous Jeremy out of the store and into the parking lot, where he observed Jeremy enter the passenger side of a pickup truck. Agent Young stated that he saw several Walmart bags in the back of the truck. Agent Young followed the truck and then contacted Mike Perkins and Steven Solomon, also agents with the Mississippi Bureau of Narcotics, to assist him in the surveillance. They followed the truck to a parking lot and watched it for approximately fifteen minutes. Agent Young stated that he did not see anyone exit the truck. The truck left the parking lot, and Agent Young attempted to follow it but lost contact with it for a short period of time before reestablishing contact at a Chevron gas station. Agent Young stated that one of the other agents witnessed the men purchase two bags of ice.

¶ 7. Agent Young testified that the truck then went to the house on County Lake Road and that he conducted surveillance of the house. He recalled that another vehicle left the house at least twice but returned shortly thereafter each time. Agent Young testified that he observed people as they came outside to smoke. Agent Young stated that he surmised that the people had come outside to smoke because methamphetamine was being produced inside the house, as one cannot smoke when methamphetamine is being “cooked.”

¶ 8. Agent Young left and returned with a search warrant. He recalled hearing movement inside the house as he knocked and announced his presence. Agent Young testified that upon entering the house, he observed three males who appeared to be working. He also stated that it did not appear that anyone was residing in the house, as he noted that the refrigerator was not on.

¶ 9. Numerous items were recovered during the search of the house, including, but not limited to, matchbooks with the striker plates removed; gallons of acetone; bottles of industrial-strength drain cleaner; a food processor; an altered air pump; hydrochloric acid; generator; Red Devil lye drain opener; lithium batteries; funnels; Sudafed; bottles of kelp; HTH test strips; plastic tubing; ice cream salt; aquarium salt; filters; veterinary-based iodine; red phosphorous (removed from striker plates); a digital scale; bottles of Ephedra 250; a sheet of paper detailing a step-by-step process for manufacturing methamphetamine; a notebook; and an internet printout of frequently asked questions about methamphetamine.

¶ 10. The agents also recovered a receipt for Sudafed which was purchased the previous day from a Walmart in Flowood, Mississippi. Additionally, the deputies found in Sones’s wallet six receipts from five different stores with dates ranging from February 10, 2001, to February 28, 2001. The receipt for February 10, 2001, shows that a battery and other items were purchased. Three receipts, all dated February 11, 2001, reveal the following purchases: six boxes of Sudafed, two of which were 96-count packages; a single razor; a four-count package of razors; and a battery. A receipt dated February 13, 2001, indicates that other items were purchased, including two more boxes of Sudafed. Finally, a receipt dated February 28, 2001, also indicates that two boxes of Sudafed were purchased.

¶ 11. On cross-examination, Agent Young stated that there was no furniture in the upstairs portion of the house. Sones’s attorney pointed out that there was nothing that linked Sones to the items that were found in the house. Sones’s attorney also pointed out that the notebook found in the house contained receipts that could not be conclusively linked to Sones. He also provided reasons, unrelated to the manufacture of methamphetamine, as to why a person would possess such items. Further, Sones’s attorney noted that there are items that are commonly used to manufacture methamphetamine that were not found in the house. Agent Young also stated that, although they did not find a methamphetamine lab, they did find precursor materials, as well as, two recipes detailing how to manufacture methamphetamine. Additionally, Agent Young noted that the recipes were found in the notebook and that the notebook contained a bill of sale that bore Sones’s signature.

¶ 12. The defense noted that Sones had completed handwriting exemplars after he was arrested; however, the identity of the writer could not be conclusively established. Sones’s attorney also pointed out that no anhydrous ammonia was recovered from the house.

¶ 13. Weston also testified at Sones’s trial and stated that in 2001, Walmart had a policy that restricted its customers from purchasing more than three boxes of Su~ dafed. Weston also stated that she observed Jeremy when he was in the store on February 28, 2001. Weston explained that Jeremy’s demeanor and purchases prompted her to point him out to Agent Young.

¶ 14. Later, Agent Young was called to the stand by Sones’s attorney. He testified that Weston had worked as a paid confidential informant with the Mississippi Bureau of Narcotics on prior occasions and that she was in fact paid for providing information in this case.

¶ 15. Sandra Price, Sones’s first cousin and Lee’s sister, testified on behalf of the defense and stated that she saw Sones briefly on February 28, 2001, at the house on County Lake Road. Price stated that, at that time, the home was owned by her uncle. Price also stated that her uncle had asked her to rent out a house that was located behind the main house. However, according to Price, shortly thereafter she began noticing damage to the property, so her uncle asked Lee to move into the house in either December 2000 or January 2001.

¶ 16. Price testified that she did not think Lee was involved in the manufacture of methamphetamine and that she never observed any criminal activity at the County Lake Road house. Further, Price stated that she had only visited Lee a few times and that Sones was usually not there when she did. However, she stated that Sones was present when she visited Lee on February 28. According to Price, she knew that Jeremy, Sones, and Lee had been hired to refurbish the house, but she did not know whether Sones had been living there. Price stated that as far as she knew, Lee was living at the house alone. Price also stated that because they tended to work late at night, it is likely that Jeremy and Sones might have spent a few nights at the house.

¶ 17. Keith also testified on behalf of the defense. He stated that his father moved from the property in June 2000 and that it stood vacant until November 2000. According to Keith, after learning on the day after Thanksgiving that the house had been broken into, he and Sones went to examine the extent of the damage. Keith also stated that he served as the property manager and contracted with S & S Construction to refurbish the house. He noted that Sones is a part owner of S & S Construction and that Sones served as the general contractor for the project. Keith stated that he granted Sones and Jeremy permission to stay in the basement of the house while they were working on the property because they did not live in the area. Keith explained that subcontractors were also present at the house during the refurbishment. Keith stated that the renovations took place from late December 2000 to January 2001.

¶ 18. On cross-examination, Keith testified that although his father left some things in the house, he did not think that his father would have left Ephedra, Pseu-doephedrine, Ephedrine, or Acetone. However, Keith stated that his father left bleach and paint thinner at the house. Further, he acknowledged that there had been a problem with a drain in the house, but he stated that he did not think that it would take four or five bottles of industrial-strength drain cleaner to resolve the problem.

¶ 19. Following the trial, Sones was convicted of possessing at least two precursors with the intent to manufacture methamphetamine.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 20. Sones argues that the trial court erred in finding that he lacked standing to challenge the legality of the search of the County Lake Road house. We find that this issue turns on whether Sones had permission to reside overnight at the house, and as reflected above, the testimony as it relates to this issue is conflicting. First, Agent Young testified at the suppression hearing that C.L. told him that Sones did not have permission to stay overnight at the house. Agent Young testified as follows:

Q. Okay. Now, regarding the residence that we’re speaking of, it’s my understanding [that] you indicated you’ve learned during the investigation that it was owned by a C.L. Huffman; is that correct?
A. Yes, ma’am, that’s correct.
Q. You received that information from the sheriffs department here in Ok-tibbeha County?
A. Yes, ma’am, that’s correct.
Q. I understand that once you received that information, you in fact spoke to Mr. Huffman and members of his family, did you not?
A. Yes, ma’am. I spoke with one of his sons prior to speaking with him because Mr. Huffman was in poor health at the time, and they didn’t want to get him alarmed. And I told him what the situation was. This was actually after the search warrant.
* * * *
Q. Agent Young, when you spoke to Mr. Huffman, what information did he give you regarding this defendant, Jasper Sones, and the co-defendant, Jeremy Sones?
A. He told me they were there to refurbish the home because he was trying to get the home livable to either be rented out or to be occupied. At that point, he told me that they were not supposed to be staying at the residence. He was not aware that they were living at the residence. But [based on] duffle bags with clothing and beds in the basement [it] appeared that they were actually residing at the residence while they were working on it.
Q. But he indicated that they did not have permission to live in the residence. They were purely there for business; is that correct?
A. To his understanding he was not aware of that, yes, ma’am.

¶ 21. Second, Keith testified at trial that he gave Sones and the other men permission to live at the house:

once S & S [Construction] was involved in the, you know, [Sones] was appointed general contractor for it, we made arrangement by way of-they could live in the basement because they were traveling from southern Mississippi to northeastern Mississippi. And basically when they would come up to do work there, they would stay there instead of incurring hotel costs.

¶ 22. Third, Sones provided the following testimony at the suppression hearing:

Q. And at that time that you were doing [the renovations], you were living at the residence?
A. Yes, sir.
Q. On a temporary basis?
A. Yes, sir. We worked pretty much around the clock for three or four days and then we would go home to our families.
Q. And Mr. Keith Huffman, the owner, knew this?
A. Yes, sir.
Q. You had his permission?
A. Yes, sir-.

¶ 23. As evidenced above, Sones’s contention that Keith gave him permission to reside at the house was corroborated by Keith, despite Agent Young’s testimony that it was C.L.’s position that Sones did not have such permission. We assume, without deciding, that Sones had standing to challenge the legality of the search. Accordingly, we address the issue of whether there was sufficient probable cause for the search warrant to be issued.

¶ 24. Sones contends that the trial court erred in finding that sufficient evidence existed to warrant the issuance of a search warrant. We disagree. It is well settled that “[t]he admissibility of evidence rests within the discretion of the trial court, and reversal is appropriate only when a trial court commits an abuse of discretion resulting in prejudice to the accused.” Ross v. State, 954 So.2d 968, 992(¶ 44) (Miss.2007) (citing Irby v. State, 893 So.2d 1042, 1047(¶20) (Miss.2004)).

¶ 25. During the suppression hearing, the trial judge heard the testimony of Agent Young, Weston, and Sones. Additionally, the underlying facts and circumstances that were prepared by Agent Young in order to obtain the search warrant were admitted into evidence. The trial judge considered all of the evidence before him and agreed with the magistrate, who issued the search warrant, that probable cause existed for the search warrant to be issued. After thoroughly reviewing the record, we also agree. Therefore, we cannot conclude that the trial judge abused his discretion in refusing to suppress the evidence recovered pursuant to the search. This issue lacks merit.

¶26. Sones also contends that it was error for the affidavit for the search warrant and the search warrant itself not to be admitted into evidence at trial. We note at the outset that there is no requirement that the affidavit for a search warrant and the search warrant be admitted into evidence during the trial. Moreover, it is sufficient that both were admitted at the suppression hearing and that the trial judge later overruled Sones’s motion to suppress, after concluding that “sufficient facts and circumstances were elicited to support a finding of probable cause.... ”

¶ 27. Also in this issue, Sones contends that the search was essentially “warrant-less” because the affidavit and the search warrant were not admitted into evidence at trial. This assertion is nonsensical. Simply because neither the affidavit nor the search warrant were admitted into evidence does not retroactively render the search warrantless. There is no dispute that the search of the County Lake Road house was conducted pursuant to a search warrant. Clearly, there is no merit to this issue.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF POSSESSION OF AT LEAST TWO METHAMPHETAMINE PRECURSORS AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Young served as an agent with the Mississippi Bureau.of Narcotics at the time of this incident; thus, we refer to him as Agent Young even though he is no longer employed by the Mississippi Bureau of Narcotics.

      . The charges against Lee were later dismissed.

      . He stated that he could not remember whether the truck had a clear camper or if the glass was missing.

      . Agent Young testified that after being read his Miranda rights, Sones identified the notebook as belonging to him. However, when Agent Young asked him if that was his handwriting that appeared on the page that detailed the process for manufacturing methamphetamine, Sones stated that he “could not recall if that was his handwriting or not.”

      . Although it is not clear from the record, we assume that Price is Lee’s sister even though she referred to him as Chessley, and not as Thomas Lee.

      . Keith and the Soneses are cousins.

      . Keith stated that his father holds a life estate in the property and that he holds a fifty-percent remainder interest.

      . Keith clarified on cross-examination that títere was an attempt to break into the house but that the home had not actually been broken into.

      . We point out that the affidavit for the search warrant, the search warrant, and the underlying facts and circumstances for the search warrant were all admitted into evidence at the suppression hearing.