author: DENNIS R. BAGNERIS, SR., Judge.

text:
    STATE of Louisiana v. Shante WHITLEY.
    No. 2014-KA-0816.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Stephen I. Singer, Supervising Attorney, Loyola Law Clinic, Michael Garrett, Student Practitioner, New Orleans, LA, for DefendanVAppellant, Shante Whitley.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge SANDRA CABRINA JENKINS).
   DENNIS R. BAGNERIS, SR., Judge.

11 Shante Whitley seeks reversal of her sentence and conviction. Whitley was charged with La. R.S. 14:34, aggravated battery. Whitley was found guilty and sentenced to time served. Whitley now challenges the validity of the waiver of the right to a jury trial and the constitutionality of the irrevocability of the waiver under La. Const. Art. 1, Sec. 17(A). For the following reasons, we hereby affirm the judgment of the trial court.

FACTS

Although the facts of the case are not relevant to the assignments of error, we will briefly review them. Whitley was charged with aggravated battery on August 31, 2011. Whitley was arraigned on September 16, 2011 and entered a not guilty plea. On March 15, 2012, the trial court denied Whitley’s motion to suppress evidence and found no probable cause. Whitley subsequently waived her right to a jury trial. The trial court personally addressed Whitley regarding her waiver and advised her of her right to be tried by a jury. Whitley acknowledged discussing her decision with her attorney and elected to be tried by the court.

|gOn October 23, 2012, Whitley moved to reinstate a jury trial, and the matter was set for November 15, 2012. Subsequently, Judge Davis announced that she would be leaving the bench, and Whitley filed a motion to reinstate a jury trial. The matter was heard on November 15, 2012, by Judge Winsberg, who was serving pro tempore at the time. He granted Whitley’s motion. The State noted its intent to seek supervisory review, and on March 11, 2013, this Court granted the State’s writ in 2012-K-1711 and reversed the trial court. The Supreme Court denied Whitley’s application for writs. State v. Whitley, 2013-0779 (La.5/24/13), 117 So.3d 102. Ultimately, on December 2, 2013, the trial judge found Whitley guilty as charged. Whitley now appeals this final judgment.

A review of the record reveals that there are no errors patent.

DISCUSSION

Whitley claims that the record does not reflect that she made a knowing and valid waiver of her right to trial by jury and that her constitutional rights were violated. We find no merit to these assignments of error.

Both the United States Constitution and the Louisiana Constitution guarantee an accused the right to a jury trial. U.S. Const. amend. VI; La. Const. art. I § 17. If the punishment that may be imposed on a defendant exceeds six months confinement, the Louisiana Constitution provides that the defendant shall be tried by a jury. However, in non-capital cases, “a defendant may knowingly and intelligently waive his right to a trial by jury.” La. Const. art. I § 17. La.C.Cr.P. art. 780 provides, in relevant part:

A. A defendant charged with an offense , other than one punishable by death may knowingly and intelligently | owaive a trial by jury and elect to be tried by the judge. At the time of arraignment, the defendant in such cases shall be informed by the court of his right to waive trial by jury.
B. The defendant shall exercise his right to waive trial by jury in accordance with the time limits set forth in Article 521. However, with permission of the court, he may exercise his right to waive trial by jury at any time prior to commencement of trial.

The waiver of the right to a jury trial cannot be presumed. State v. McCarroll, 337 So.2d 475, 480 (La.1976); State v. Santee, 2002-0693, p. 3 (La.App. 4 Cir. 12/4/02), 834 So.2d 533, 534. A waiver of the right to trial by jury is valid only if the defendant acted knowingly and voluntarily. State v. Kahey, 436 So.2d 475, 486 (La.1983); Santee, 2002-0693, p. 3, 834 So.2d at 534. However, while the trial judge must determine if the defendant’s jury trial waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. Santee, 2002-0693, p. 3, 834 So.2d at 535.

The Louisiana Supreme Court and the Fourth Circuit have recognized that while the preferred method would be for the trial court to advise a defendant of his right to trial by jury in open court before obtaining a waiver, such a practice is not statutorily required. State v. Pierre, 2002-2665, p. 1 (La.3/28/03), 842 So.2d 321, 322; State v. Richardson, 575 So.2d 421, 424 (La.App. 4 Cir. 1/31/91). Likewise, it is preferred, but not necessary; for the defendant to waive her right to jury trial personally. Pierre, 2002-2665, p. 1, 842 So.2d at 322; State v. Wolfe, 98-0345, pp. 6-7 (La.App. 4 Cir. 4/21/99), 738 So.2d 1093, 1097. Courts have found that a knowing and intelligent waiver of a defendant’s right to a jury trial can be made even if the preferred practice of obtaining such a waiver is not followed. Kahey, 436 So.2d at 486; State v. Denson, 2011-0517, p. 7 (La.App. 4 Cir. 1/25/12), 83 So.3d 1183, 1188-1189, writ denied, 2012-0391 (La.6/22/12), 91 So.3d 967; State v. Bryant, 2006-1154, p. 7 (La.App. 4 Cir. 1/10/07), 950 So.2d 37, 41 (noting that both the Supreme Court and this Court have rejected an absolute rule that would require the trial judge to personally inform a defendant of his right to a jury trial).

The Louisiana Supreme Court in State v. Phillips, 365 So.2d 1304, 1309 (La.1978), permitted a waiver to be made by defense counsel where the defendant was present in court and failed to object when defense counsel made the waiver. Similarly, this Court in both Santee, 2002-0693, p. 4, 834 So.2d at 534-35, and Wolfe, 98-0345, 738 So.2d at 1097-1098, held that the defendant’s failure to object when his counsel informed the court that a judge trial had been chosen is to be construed against the defendant in determining the validity of the waiver made while he was present in court. See, State v. Peters, 2010-0326, p. 9 (La.App. 4 Cir. 2/16/11), 60 So.3d 672, 678 writ denied, 2011-0494 (La.9/30/11), 71 So.3d 279.

Whitley provides this Court with a recap of her initial dialogue with Judge Davis wherein Judge Davis suggests that guilty, or not guilty, Judge Davis would “call it like she sees it”, thus giving Whitley the impression that Judge Davis would be presiding over the case. Also, according to Whitley she was never informed that she was unable to revoke her waiver. Whitley further argues that she was not informed about the differences between judge and jury trials. Whitley concedes that she was left with the impression that Judge Davis would be hearing her case, and that considering she had never been prosecuted prior to this incident, she had a lack of experience in knowing her fundamental rights and that the trial court failed to take her unique circumstances under consideration once she determined that she wanted to be tried by a jury.

|fiThe State asserts that Whitley knowingly waived her right to a jury trial and that her attempt to motion the trial court for a judge trial was strategic. The State relies on State v. Bazile, 2012-2243 (La.5/7/13), 144 So.3d 719, wherein the Supreme Court reversed the trial court’s ruling granting the defendant’s motion to declare a constitutional amendment unconstitutional when the defendant waived his right to a jury trial less than forty-five days prior to trial. The trial court then continued the trial to a later date in favor of the defendant. Although the main issue in Bazile was the constitutionality of the amendment in light of time delays when waiving a jury trial, the Court did touch on the issue of what a defendant needs to know when waiving a jury trial. It stated:

We hold a criminal defendant’s waiver of his right to trial by jury is knowing and intelligent when he demonstrates his understanding that he will proceed to trial before a judge upon that waiver. Information about the composition of the jury-pool and any outstanding discovery, although of some strategic value, does not provide the defendant with any greater understanding of the constitutional right at stake. Consequently, we find the reasons asserted by Bazile for his failure to timely waive his right to trial by jury bear no relevance to the determination whether his jury trial waiver was knowing and intelligent.

Bazile, 2012-2243, p. 11, 144 So.3d at 734.

Despite Whitley’s suggestion that Judge Davis and no one else would be deciding the case, Whitley fails to present any jurisprudence tending to suggest that this would affect the validity of her waiver. Although issued in another context, the Court’s comments in State v. Cooper, 2010-2344 (La.11/16/10), 50 So.3d 115, are relevant here:

While the one judge/one case arrangement might be a laudable goal of a case allotment system, that circumstance has never been a requirement of random allotment. We recognize the impracticality of such a requirement — judges get sick, take vacation, have conflicts within their own dockets, resign, or are elected to a different bench. All of these circumstances often result in a case being assigned to |fianother judge for adjudication. The fact that more than one judge handles aspects of any one criminal case does not, in and of itself, prejudice the criminal defendant. As will be discussed further in the analysis of the defendant’s due process argument, a criminal defendant does not have a right to have his case heard by a particular judge.

Id., pp. 15-16, 50 So.3d at 127-28 (footnotes omitted).

Further, although Whitley contends that her waiver was not an intelligent waiver because she was not informed that her decision to waive was irrevocable, the Louisiana Supreme Court’s decisions on the issue following Section 17(A)’s amendment do not suggest that a defendant must be informed that the decision to waive a jury trial is irrevocable.

Accordingly, we hereby affirm Shante Whitley’s conviction and sentence.

AFFIRMED.

      . La. Const. Art. 1, Sec. 17(A) states that "[e]xcept in capital cases, a defendant may knowingly and intelligently waive his right to a jury by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.” Art. 1, Sec. 17 was amended by Acts 2010, No. 1053, Sec. 1, and approved November 2, 2010.


source: Caselaw Access Project

author: LAMAR, Justice, for the Court:

license: Public Domain

text:
    Marcus O’Neal FLOWERS a/k/a Tupac a/k/a Marcus Flowers v. STATE of Mississippi.
    No. 2011-KA-01031-SCT.
    Supreme Court of Mississippi.
    Jan. 24, 2013.
    Rehearing Denied June 6, 2013.
    Office of Indigent Appeals by Erin E. Pridgen, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
   LAMAR, Justice, for the Court:

¶ 1. Marcus O’Neal Flowers was convicted of murder for fatally shooting Charles Wash. He claims that the jury’s verdict was against the overwhelming weight of the evidence and asks for a new trial. He believes he is entitled to such relief because there were conflicts between the State’s evidence and his evidence, and the credibility of the State’s main witness was called into question. Flowers’s arguments are without merit. Evidentiary conflicts and credibility issues are questions for the jury, not grounds for a new trial, and the jury’s verdict is not against the weight of the evidence. Therefore, the conviction of Marcus Flowers is affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. Charles Wash was shot and killed on April 7, 2008, in an area of Little 1-20 Road in Newton County, Mississippi, containing five trailer homes. Deputy Jeremy Pinson was the first officer on the scene and discovered Wash’s body in the driver seat of a truck that had crashed into a tree near the trailers. Wash had been shot multiple times' in the chest and face and was dead when Deputy Pinson arrived. Soon after Deputy Pinson arrived, David Hilton came out of one of the trailers. Hilton told Deputy Pinson that Wash was dropping him off at his mother-in-law’s trailer when a man in dark clothing and a ski mask came out of the woods and began firing at Wash. Hilton said he did not see the shooter’s face but could identify the shooter as Marcus Flowers based on the shooter’s voice. Hilton later admitted to police that he had agreed several weeks earlier to help Flowers kill Wash but insisted that he had nothing to do with the shooting on April 7, 2008. The day after the shooting, the police recovered a white sock, an Air Jordan tennis shoe, and a white tank-top shirt from the crime scene. DNA evidence was not obtained from the shoe or the sock, but Flowers was determined to be the majority DNA contributor to the white tank-top shirt. The police also recovered Flowers’s cell phone from the scene. Finally, the police obtained conflicting statements from several people regarding Flowers’s whereabouts the night of the shooting.

¶ 8. Based on this evidence, Flowers was charged with Wash’s murder. At trial, the State put on thirteen witnesses and entered thirteen exhibits. The most incriminating testimony was provided by David Hilton; Mary Cooper; Santana Griffin, and Cedric Walker; Randy Patrick and Mark Spence; Dr. Bo Scales; and J.C. Wash (“J.C.”). Hilton, the only witness to the crime, identified Flowers as the shooter. Cooper placed Flowers at the crime scene thirty minutes before the shooting. Griffin and Walker claimed that Flowers had arrived at their apartment near the crime scene shortly after the shooting without his shirt or cell phone and in need of a ride. Patrick and Spence established that Flowers’s cell phone was recovered near the crime scene the day after the shooting, and Dr. Scales told the jury that Flowers was the majority contributor of DNA on the white tank-top shirt found near the crime scene. Finally, J.C. testified that, when he drove by Flowers’s home soon after the shooting, no cars were there and no one appeared to be home.

¶ 4. The defense responded by discrediting Hilton and establishing an alibi for Flowers. Specifically, the defense focused on testimony that Hilton previously had agreed to help Flowers kill Wash and questioned the plausibility of Hilton’s story based on the location of Wash’s gunshot wounds. With regard to Flowers’s alibi, his girlfriend and sister testified that he was home all night and his neighbor claimed to have seen him in his driveway around the time of the shooting. The jury returned a guilty verdict, and Flowers filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial. The trial court denied Flowers’s motion, and he appealed.

LAW AND ANALYSIS

¶ 5. The sole issue on appeal is whether the trial court erroneously denied Flowers’s motion for a new trial. A motion for a new trial should be granted only in “exceptional cases in which the evidence preponderates heavily against the verdict.” When reviewing the denial of a motion for a new trial, the evidence must be viewed in the light most favorable to the verdict. A verdict should be upheld unless it “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” This occurs only if reasonable men could not have found the defendant guilty based on the evidence when it is viewed in the light most favorable to the verdict.

¶ 6. As delineated above, the evidence against Flowers consisted of eyewitness testimony from Hilton, testimony from several corroborating witnesses, including Flowers’s friends and law-enforcement officers, and DNA evidence. Convictions have been affirmed based on similar evi-dentiary support. In Jenkins, Orlando Jenkins was indicted for the murder of Andre Barnes. At trial, Winters, who also was indicted for Barnes’s murder, testified that he saw Jenkins kill Barnes. Three other witnesses implicated Jenkins by placing him in Barnes’s company the night of the murder and saying he had hidden his gun and the clothes he was wearing that night. The State also put on evidence that Barnes’s blood was found on Jenkins’s shoe. The jury convicted Jenkins of murder, and this Court affirmed, finding that the verdict was not against the overwhelming weight of the evidence. As in Jenkins, the State here supported its case with eyewitness testimony from a biased third party, testimony from several corroborating witnesses, and DNA evidence. In reviewing the evidence in the light most favorable to the verdict, we find that the verdict is supported by the weight of the evidence. Flowers’s conviction is affirmed.

CONCLUSION

¶ 7. Substantial evidence supported the jury’s verdict convicting Flowers of murder for killing Wash. The only witness to the crime identified Flowers as the shooter. Flowers’s cell phone and a shirt containing his DNA were found near the crime scene. Two of Flowers’s friends testified that Flowers had shown up at their apartment shortly after the shooting without a shirt or his cell phone. A police officer testified that Flowers’s car was not at his home shortly after the shooting. And while Flowers did present evidence that contradicted the State’s theory of the case, that does not entitle him to a new trial. The jury was required to weigh all the evidence presented to it, judging the weight and credibility of each witness’s testimony. The jury resolved the conflicts in favor of the State, and its verdict is not contrary to the weight of the evidence. Therefore, the conviction of Marcus Flowers for the murder of Charles Wash is affirmed.

¶ 8. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCE IMPOSED IN CAUSE NO. 08-CR-066-NW-G.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . J.C. Wash is not related to the victim, Charles Wash.

      . Weatherspoon v. State, 56 So.3d 559, 564 (Miss.2011).

      . Id. at 564.

      . Jenkins v. State, 947 So.2d 270, 278 (Miss.2006) (quoting Baker v. State, 802 So.2d 77, 81 (Miss.2001)).

      . Bush v. State, 895 So.2d 836, 844 (Miss.2005) (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000)).

      . Jenkins, 947 So.2d at 274.

      . Id.

      . Id.

      . Id.

      . Id. at 278. See also Ross v. State, 954 So.2d 968, 1016-18 (Miss.2007). Flowers relies on Ross in his brief. However, in Ross, this Court upheld Ross’s conviction and the trial court's denial of his motion for a new trial despite its concerns over the contradictory and inconclusive evidence, noting that "[a]bsent from the record are the myriad nuances and subtle impressions from which jurors weigh credibility, and this Court must be wary of encroaching on the peculiar province of the juiy.” Ross, 954 So.2d at 1016-18.


text:
    Frederick L. WILSON a/k/a Fredrick L. Wilson a/k/a Fredrick Wilson a/k/a Frederick Wilson. v. STATE of Mississippi.
    No. 2012-KA-00495-SCT.
    Supreme Court of Mississippi.
    Sept. 19, 2013.
    Rehearing Denied Nov. 21, 2013.

      Edmund J. Phillips, Jr., Newton, attorney for appellant.
    Office of the Attorney General by Elliott Flaggs, attorney for appellee.
    Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
   LAMAR, Justice, for the Court:

¶ 1. Frederick Wilson wounded Shamika Parker and killed Josh Ingram when he fired gunshots at Josh Ingram’s car. He was convicted of one count of aggravated assault and one count of murder. Wilson appeals from his convictions, alleging the trial court erred 1) by sustaining the State’s relevance objections during his cross-examination of Shamika Parker and 2) by admitting into evidence his first two statements to law-enforcement authorities. Finding no reversible error, we affirm Wilson’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 24, 2008, Frederick Wilson drove to the Parker residence and confronted Shamika Parker’s boyfriend, Josh Ingram, about impregnating his niece. Wilson and Ingram got into a fist fight. Parker and her mother testified that Ingram did not have a gun during the fight and that Wilson hit Ingram with a pipe. Wilson denied using a pipe and claimed that Ingram pointed a gun and threatened to kill him. Shortly after Parker’s parents broke up the fight, Wilson ran into his friend Justin Wash at a nearby gas station. Wilson told Wash about the fight and asked Wash to drive him back to the Parker residence so he could scare Ingram. Wash agreed. After Wash dropped him off, Wilson walked with his shotgun to a brick pile behind the Parker residence and fired multiple shots at the back of Ingram’s car, in which Ingram, Parker and their friend, DeAngelo Buckley, were sitting. Two shots hit Ingram and one shot hit Parker. When Ingram stepped out of the car, Wilson shot him a third time. Efforts were made to resuscitate Ingram, but he died at the scene. After the shooting, Wilson ran back to Wash’s car and Wash drove him back to his car. At Wilson’s request, Wash kept the shotgun and later hid it in the woods near his house.

¶ 3. In his first statement to law-enforcement officials following his arrest, Wilson admitted to firing the shots that had injured Parker and killed Ingram. The next day, Wilson’s gun was recovered. Wilson acknowledged ownership of the gun in a second statement given a few days later. Almost eight months later, in a statement initiated by Wilson, he again admitted to firing the shots that had injured Parker and killed Ingram. All three statements made to law-enforcement officials were admitted into evidence at trial.

¶ 4. Wilson was convicted of one count of aggravated assault for shooting Parker and one count of murder for killing Ingram. He was sentenced to serve consecutive prison terms of ten years and life for his respective convictions. Wilson appeals from his convictions, raising only two issues. He alleges the trial court erred by 1) sustaining the State’s relevance objections during his attorney’s cross-examination of Shamika Parker and 2) admitting into evidence his first two statements to law-enforcement officials.

LAW AND ANALYSIS

I. Did the trial court err by sustaining the State’s relevance objections during Wilson’s cross-examination of Shamika Parker?

¶ 5. A trial court’s exclusion of evidence is reviewed for an abuse of discretion. Beal v. State, 86 So.3d 887, 893-94 (Miss.2012). A conviction will not be reversed based on the improper exclusion of evidence unless the exclusion results “in prejudice and harm.” Jackson v. State, 594 So.2d 20, 25 (Miss.1992). If improperly excluded evidence comes in by another means, the exclusion error is rendered harmless. See Holland v. State, 705 So.2d 307, 344 (Miss.1997); see also Jackson v. State, 594 So.2d 20, 25 (Miss.1992).

¶ 6. On cross-examination, Wilson’s attorney asked Parker if she knew that at the time of the shooting Wilson’s niece was 1) fifteen years old and 2) pregnant with Josh Ingram’s child. The State objected to both questions on the ground of relevance, and the trial court sustained both objections. The State does not dispute that the trial court erred in sustaining the objections, but the parties dispute the effect of the alleged error. Wilson argues the error requires reversal, while the State claims the error was harmless.-

¶ 7. The testimony Wilson was attempting to introduce through the cross-examination of Parker related to Wilson’s motives for confronting Ingram. The probative value.of such testimony was minimal at best, and this Court repeatedly has held that “the trial court possesses a vast amount of discretion” when considering questions concerning the admission and relevance of evidence. Beal, 86 So.3d at 893-94. With this standard in mind, we cannot find that the trial court abused its discretion in sustaining the State’s objections. But even if it were found to be error — as the State concedes — it did not “prejudice and harm” Wilson because the testimony excluded during Parker’s cross-examination subsequently came in through the testimony of Justin Wash and Wilson.

¶ 8. Wash’s and Wilson’s testimony established that Wilson initially confronted Ingram because Ingram had impregnanted Wilson’s niece. Wash stated that Wilson told him that “[he and Ingram] had got to fighting, that [Ingram] had gotten his niece pregnant or whatever, and [Wilson] went down there to ask [Ingram] about taking care of the baby, and they got into it....” Similarly Wilson was allowed to testify that “[his] little niece had got pregnant by [Ingram] ... [when] [s]he ain’t but thirteen” and that on March 24, 2008, he “seen Josh in Hillsboro, and by me being'a man, and asking him to hold up, excuse me, to be a man, and he already done messed up. He had got my little niece pregnant and I was trying to talk to him as a man, and he went to calling her all kind of names, so I got kinda mad, and I struck him....” With this testimony, the jury was fully informed that Wilson had confronted Ingram because Ingram had impregnated his young niece. Even if the trial court’s exclusion of the same testimony from Parker was deemed to be error, it clearly was harmless, as it did not result in “prejudice and harm” to Wilson because the same testimony came before the jury through other witnesses.

II. Did the trial court err by admitting Wilson’s first two statements to law-enforcement officials into evidence?

¶ 9. Wilson made three statements to law-enforcement officers regarding the shooting of Ingram and Parker. All three were admitted into evidence. Wilson argues that the first two were admitted erroneously because the State failed to prove beyond a reasonable doubt that they were given voluntarily.

¶ 10. If a defendant challenges the voluntariness of a statement, the trial’ court must conduct a suppression hearing outside the presence of the jury to determine the statement’s admissibility. Agee v. State, 185 So.2d 671, 673 (Miss.1966); see also Harden v. State, 59 So.3d 594, 605 (Miss.2011). The State has the burden to prove beyond a reasonable doubt that a statement was voluntary. Agee 185 So.2d at 673. In order to be voluntary, a statement “must have been freely given and must not be the product of coercion by threats, promises, or inducements.” Harden, 59 So.3d at 605. A prima facie case of “[v]oluntariness may be established through testimony from officers or those who may have specific knowledge of the facts that the confession was made without any threats, offers of reward, or coercion.” Id. If a defendant rebuts the prima facie case of voluntariness with contrary evidence, the State is required to “offer the testimony of all officers who witnessed the confession, or give an adequate reason for their absence. This Court will reverse the denial of a motion to suppress only if the trial court’s ruling constituted manifest error or was against the overwhelming weight of the evidence.” Id.

¶ 11. As required by Agee, the trial court held a suppression hearing outside the jury’s presence to determine the admissibility of Wilson’s first two statements. At the hearing, Officer Willie Anderson and Officer Billy Patrick, the only two officers who witnessed Wilson’s statements, testified for the State. They swore that no promises or threats had been made to Wilson to secure either statement and that Wilson had signed both statements after being given an opportunity to review them for errors. They also testified that, before giving each statement, Wilson was read his Miranda rights and waived those rights both orally and by signing a waiver form. Wilson claimed he gave his first statement only because Officer Anderson had threatened to lock up his girlfriend and to put his children with the Department of Human Services (DHS) unless he told the truth. During his testimony, Officer Anderson acknowledged that the Department of Human Services may have been discussed with Wilson and his girlfriend, since the couple had minor children and both parents were in custody. However, Officer Anderson explicitly denied threatening to turn the couple’s children over to DHS in order to obtain their statements. Wilson did not allege that any threats were made in connection with his second statement. The trial court found that both of Wilson’s challenged statements were voluntarily given and admissible. The State satisfied all its procedural and evidentiary requirements at the suppression hearing, and the trial court’s decision to admit the statements was not against the overwhelming weight of the evidence. Therefore, this issue is without merit.

CONCLUSION

¶ 12. Wilson was convicted of one count of aggravated assault and one count of murder. Wilson’s contention that his convictions must be reversed because the trial court improperly excluded testimony from Shamika Parker is -without merit. The error, if any, was harmless, because the excluded testimony came in through the testimony of Justin Wash and Wilson. Similarly, Wilson’s contention that two of his statements to law-enforcement officials were admitted improperly also is without merit. The trial court properly conducted a suppression hearing, and its determination that the statements were given voluntarily was not against the overwhelming weight of the evidence. Therefore, Wilson’s convictions and sentences are affirmed.

¶ 13. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCE IMPOSED IN COUNT II SHALL RUN CONSECUTIVELY TO THE SENTENCE IMPOSED IN COUNT I.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . During his testimony and in his brief, Wilson stated his niece was thirteen at the time of the shooting.

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

      . Wilson's girlfriend, Shawanda Patrick, testified that Officer Anderson also secured a statement from her by threatening to put her children with the Department of Human Services, but she admitted that she did not have an opportunity to tell Wilson about the threat because they were held and questioned separately. Neither party attempted to enter Sha-wanda Patrick’s statement into evidence.


author: KING, Justice, for the Court:

text:
    Lisa SANDLIN a/k/a Lisa A. Sandlin a/k/a Lisa Babler a/k/a Lisa Husky v. STATE of Mississippi.
    No. 2012-KA-00258-SCT.
    Supreme Court of Mississippi.
    Oct. 10, 2013.

      Office of State Public Defender by W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   KING, Justice, for the Court:

¶ 1. Lisa Sandlin was convicted of murder for the death of her stepson Kirk Sandlin and sentenced to a term of life in prison. Lisa appeals, raising two issues:

I. Whether the trial court erred by allowing Lisa’s husband Sammy Sandlin to testify for the State.
II. Whether Lisa received ineffective assistance of counsel.

¶ 2. We find that Issue I is barred from review. With regard to Lisa’s ineffective-assistance-of-counsel claims, the record clearly establishes that three issues— statements made in opening argument, statements made in closing argument, and Lisa’s motion for directed verdict — are without merit. Thus, we affirm Lisa’s conviction and sentence on these issues. But the record is insufficient to consider two of her ineffective-assistance-of-counsel claims — Sammy’s testimony and a 911 call — on direct appeal. Thus, we dismiss these two claims without prejudice to Lisa’s right to bring these claims later in a properly filed motion for post-conviction relief.

FACTS AND PROCEDURAL HISTORY

¶ 3. Sammy and Lisa Sandlin married in 1998. Both had children from previous relationships — Kirk Sandlin (Sammy’s son) and Jesse Huskey (Lisa’s son). Sammy, Jesse, and Lisa testified that, early on, the entire family got along very well. Later, Kirk developed a drug habit which negatively affected the family relationship. Kirk stole frequently from Sammy, Lisa, and Jesse. Jesse said that Kirk was an intimidating person, and he was paranoid, distrustful, aggressive, and quick-tempered. Kirk and Lisa’s relationship had become especially volatile. Jesse knew that Lisa was afraid of Kirk. While Jesse had never witnessed a physical altercation between Lisa and Kirk, Lisa had shown Jesse bruises she claimed were inflicted by Kirk. Sammy stated that Lisa previously had called the police on Kirk, but he thought her calls were unnecessary and urged her not to call the police again.

¶4. On September 22, 2010, in Saltillo, Mississippi, Kirk and Lisa were involved in a verbal altercation, which ended in Lisa shooting Kirk. Dr. Amy McMaster, a forensic pathologist, testified that the cause of death was a gunshot wound to the torso and labeled the death a homicide.

¶ 5. John Russell Sandlin, Sammy’s brother and Kirk’s uncle, was not present when Kirk was shot. But John testified to events that had transpired the day before the incident. According to John, he and Kirk were working on a car at Sammy’s barn. The barn was at least fifty to sixty yards away from the house. At one point, Lisa came on the porch and yelled, “If ya’ll don’t get the hell out from here, I’m fixing to start shooting.” John testified that they had not exchanged words with Lisa prior to her statement, and they left the home soon thereafter. Lisa denied that she made the statement.

¶ 6. Sammy was present during the shooting and testified regarding what took place. That night, Lisa and Sammy’s mother were sitting on the patio by the fire pit. Kirk came by the house to ask Sammy to help him get a city-maintenance job. Sammy expressed' his hesitation to help Kirk, reminding Kirk that he had “messed up” previous job opportunities. According to Sammy, Lisa chimed in, stating, “Kirk, you are not going to do nothing but mooch off ... your daddy.” Sammy stated that Kirk called Lisa a bitch and continued to curse at her. Lisa told Kirk to get off the property. Although Sammy had not mentioned this to police before, at trial he testified that Kirk stood up, flexed his muscles, and told Sammy, “Daddy, if you don’t get her away from me, I’m going to kill her.” Sammy told Lisa to go into the house “and just hush.”

¶ 7. Kirk stayed and talked to Sammy a few more minutes before heading away. Then, Kirk returned and said, “Daddy, I want to ask you something else.” Kirk walked back toward the house and stopped in the breezeway at least six to eight feet away from the door. Sammy heard Kirk say, “Well, what are you going to do with that gun, bitch, shoot me?” Sammy could not see Lisa in the doorway, but he saw the gun barrel. Sammy ran to Kirk, but he did not get there in time. Sammy caught Kirk before he hit the ground and called 911.

¶ 8. According to Sammy, he normally kept the shotgun unloaded. All of the shells had been used except for two, which he kept in Lisa’s jewelry box. After the shooting, only one shell remained. Lisa had reminded Sammy that either Kirk or Jesse had used the shotgun last, and perhaps they had left it loaded. After that reminder, Sammy recalled loading the shotgun himself to shoot a snake, and he testified that he had probably left the shell in the gun. As far as Sammy knew, Lisa never had touched the shotgun. Sammy acknowledged that Kirk and Lisa had not gotten along for some time. But he did not remember giving a written statement to police stating that Lisa had talked about shooting or killing Kirk for a long time.

¶ 9. Lisa testified in her own defense. She described her relationship with Kirk as pleasant until his drug addiction. Lisa testified that Kirk’s attitude had changed, and he had become violent. Lisa gave her account of the night’s events. According to Lisa, Kirk stated that “somebody had to work around here.” Lisa told Bark that Sammy worked hard. In response, Kirk told Lisa to “shut the f — up.” Lisa snapped back, ‘You are not going to work. You can’t even pass the drug test, Kirk.”

¶ 10. Kirk was upset, and he cursed and spat in Lisa’s face. Sammy told Lisa to go inside, and she did. Lisa stated that when she went inside the house, she grabbed the shot gun to intimidate Kirk. She walked to the door with the gun. Kirk saw her and asked, “What are you going to do with that, shoot me?” Lisa declared, “I will,” and Kirk responded, “Go ahead.” Lisa stated that she cocked the gun and pulled the trigger, and the shotgun made a loud noise. Immediately af-terwards, Lisa called her father and informed him that he might not see her for a while because she had shot Kirk. Lisa stated that when the police arrived, she took full responsibility for her actions and cooperated with the police.

¶ 11. At approximately 7:35 p.m., Kerry Gaddy, a sergeant with the Lee County Sheriffs Department, responded to Sammy’s 911 call. Upon arrival, Sergeant Gaddy found Kirk lying on the ground and saw Sammy giving Kirk aid. At the time, Kirk was alive. Sammy informed Sergeant Gaddy that Kirk, his son, had been shot by Lisa, his wife, and that Lisa was inside the home. Sergeant Gaddy called Lisa’s name and asked her to come out with her hands up. According to Sergeant Gaddy, Lisa seemed agitated and upset but not frightened. He did not notice any signs of a struggle. As Lisa emerged, Sergeant Gaddy said that she yelled, “I shot the motherfucker. I was tired of his shit.” Sergeant Gaddy secured the weapon — a shotgun — which had a spent shell in it.

¶ 12. Jason Putt, an officer with the Lee County Sheriffs Department, had arrived at the residence. He placed Lisa under arrest, read her the Miranda rights, and placed her in his patrol car. Putt opined that Lisa showed no remorse and stated that she did not inquire about Kirk’s condition. Chief Investigator Scott Reedy arrived at the scene and questioned Lisa regarding the incident. According to Investigator Reedy, Lisa said that she and Kirk had gotten into a verbal altercation outside the home. She denied that the altercation was physical. Lisa admitted to Investigator Reedy that she had shot Kirk, but she claimed that the gun had gone off by accident. Lisa did not recall loading the shotgun. During questioning, Lisa told Investigator Reedy “she was tired of [Kirk’s] shit, [a]nd I shot him.” Investigator Reedy testified that Lisa, during the first interview, did not mention anything about acting in self defense.

¶ 13. Investigator Reedy interviewed Lisa a second time on September 23, 2010. The recorded interview was played for the jury. During the interview, Investigator Reedy informed Lisa that Kirk had died from his wounds. According to Investigator Reedy, Lisa had added facts to her statement. She told him about domestic-violence reports she previously had filed against Kirk. She claimed Kirk had run toward her before she had shot him. Investigator Reedy also testified regarding the crime scene. He stated that Kirk was lying on a rug which was at least six to eight feet away from the door. He found an empty shell box sitting near an aquarium in Lisa’s bedroom. Investigator Reedy also had noticed an open dresser drawer in the bedroom. He said that the drawer was opened to the point that it was falling out, and there was an empty spot in the drawer. Lisa told Investigator Reedy that she did not know where the shell box came from and claimed she could have moved it while cleaning. At trial, Sammy testified that he had removed the empty shell box from the dresser drawer. Investigator Reedy also found a gin bottle in the kitchen. Lisa told him that she and Sammy had been drinking that night.

¶ 14. Lisa denied being intoxicated that night. She also denied telling the officers that she had “shot the motherfucker.” Instead, Lisa stated that she had explained to the officers how Kirk was cursing at her. Lisa claimed she did not load the gun, she did not think the gun was loaded, and she had used the gun only to intimidate Kirk. She also stated that she had not shot a gun in more than thirty years. Lisa testified that Kirk was “very poofed up, cocky” during their exchange. She stated that she was afraid of Kirk, but Sammy had allowed Kirk to come and go at the house as he pleased.

¶ 15. At the conclusion of the evidence, the jury returned a verdict, finding Lisa guilty of murder. The trial court sentenced Lisa to a term of life in prison. Aggrieved, Lisa timely filed her notice of appeal. Additional facts will be discussed below as they relate to each issue.

ANALYSIS

I. Sammy’s Testimony

¶ 16. Lisa argues that, under Mississippi Code Section 13-1-5, the trial court erred by permitting Sammy, her husband, to testify against her. Section 13-1-5 was superceded by Mississippi Rule of Evidence 601(a), but both contain similar language. M.R.E. 601, cmt.; Stevens v. State, 806 So.2d 1031, 1048-49 (¶ 77) (Miss.2001). Rule 601(a) provides that:

(a) In all instances where one spouse is a party litigant the other spouse shall not be competent as a witness without the consent of both, except as provided in Rule 601(a)(1) or Rule 601(a)(2):
(1) Husbands and wives may be introduced by each other in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them;
(2) Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children.

M.R.E. 601(a).

¶ 17. Lisa maintains that she did not consent to Sammy’s testimony, and the trial court failed to determine whether she and Sammy understood the law on competency. Thus, she contends that Sammy’s testimony was inadmissible, highly prejudicial, and plain error, which requires reversal. The State argues that the claim is waived because Lisa failed to lodge a contemporaneous objection at trial.

¶ 18. Because Lisa failed to raise an objection to Sammy’s testimony, we find that Lisa’s claim is barred from review. In Brewer v. State, the Court found a wife’s competency to testify against her husband was waived where the husband failed to object to the wife’s testimony. Brewer v. State, 233 So.2d 779, 780-81 (Miss.1970). The statute evaluated in Brewer is similar to today’s Rule 601(a). See id. The Court stated that:

It has been held in a number of cases that a wife is not competent to testify against her husband in a charge of crime, unless it is a personal assault upon her or an offense against her person. The words in the statute, section 1528, Code 1930, are: “Husband and wife may be introduced by each other as witness in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.”
Whenever witnesses are offered in court who are incompetent, objection as to their competency should be made before the reception of the evidence, and certainly before the conclusion of the evidence for the state, so that the trial judge might decide that question at once. If a party does not object to the competency of a witness when presented, such objection is waived if the party knew of the facts constituting this incompetency at the time the evidence was offered. If he does not then object he, in effect, consents, and he will not be permitted to experiment with the evidence and see whether it is helpful or hurtful to him, and then later to move to have such evidence excluded, provided the facts constituting incompetency were then known.

Id. (citations omitted).

¶ 19. The Court has found reversible error where the defendant objected to his spouse’s testimony, and the trial court overruled the objection. See Wallace v. State, 254 Miss. 944, 183 So.2d 525 (Miss.1966). But in Lisa’s case, defense counsel failed to lodge an objection to Sammy’s testimony at trial. The trial court cannot be held in error on issues not presented to it for review. Milano v. State, 790 So.2d 179, 189 (¶ 47) (Miss.2001). Thus, under Brewer, Lisa’s claim is barred from review.

II. Ineffective Assistance of Counsel

¶ 20. Because the Court is limited to the trial record on direct appeal, issues of ineffective assistance of counsel are more appropriate in a motion for post-conviction relief. Parker v. State, 30 So.3d 1222, 1232 (¶ 36) (Miss.2010). However, the Court may address the claims on direct appeal if the issues are based on facts fully apparent from the record. Id. If the record is not sufficient to address the claims on direct appeal, the Court should dismiss the claims without prejudice, preserving the defendant’s right to raise the claims later in a properly filed motion for post-conviction relief. Id.

¶ 21. Claims of ineffective assistance of counsel are reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Parker, 30 So.3d at 1233 (¶ 37) (citing Holly v. State, 716 So.2d 979, 989 (Miss.1998)). A strong but rebuttable presumption exists that trial counsel was competent and performed within the wide range of reasonable conduct expected from counsel. Parker, 30 So.3d at 1233 (¶ 37). To rebut this presumption, the defendant must show that “his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial.” Id. “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.” Id.

1. Sammy’s Testimony

¶ 22. First, Lisa claims her defense counsel was ineffective because he failed to object to Sammy’s testimony. Lisa asserts that allowing Sammy to testify was error, that it deprived her of a fair trial, and that it prevented her from invoking the Weathersby rule. See Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). The Weathersby rule provides that:

[W]here the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

Id. at 482. Without Sammy’s testimony, Lisa claims she was the only eyewitness to the incident and could have asserted Weathersby.

¶ 23. On direct appeal, the Court does not consider ineffective-assistance-of-counsel claims unless the record contains sufficient evidence to evaluate the claim. M.R.A.P. 22(b). The record shows only that, at one point, defense counsel listed Sammy as a potential witness. However, defense counsel did not call Sammy at trial; the State called him. Also, no discussion is in the record regarding Sammy’s and Lisa’s consent to Sammy’s testimony. Many unanswered questions surround this issue. The Court does not have sufficient information to review whether defense counsel was ineffective by failing to object to Sammy’s testimony. Thus, we dismiss this claim without prejudice, and Lisa may bring this claim later in a properly filed motion for post-conviction relief. See Knight v. State, 72 So.3d 1056, 1062 (¶ 22) (Miss.2011).

2. 911 Call

¶ 24. Lisa claims defense counsel was ineffective because he conceded the exclusion of evidence — a 911 recording. The State presented a motion in limine to exclude Lisa’s 2009 911 call against Kirk. The State argued that the evidence was inflammatory and irrelevant. Defense counsel agreed. The trial court granted the State’s motion in limine.

¶ 25. The transcript concerning the motion in limine is rather brief, and the recording is not included in the record. Thus, the substance of the 911 call is a mystery. The record is insufficient for the Court to consider the issue on direct appeal. See Knight, 72 So.3d at 1062 (¶ 22). Accordingly, we dismiss this issue without prejudice, and Lisa may bring the claim later in a properly filed motion for post-conviction relief.

3. Opening Statement

¶ 26. Lisa contends that the prosecutor made improper comments during his opening statement. Attorneys are granted wide latitude in making opening and closing statements. Dampier v. State, 973 So.2d 221, 235 (¶ 39) (Miss.2008). The Court must determine “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Id. (quoting Sheppard v. State, 111 So.2d 659, 661 (¶ 7) (Miss.2000)).

¶ 27. The prosecutor’s statement, of which Lisa complains, reads:

She gets the shotgun. She brings it out. She comes to the door. Points the gun at Kirk Sandlin. She pulls the hammer back. She pulls the trigger. She shoots him in the abdomen. He falls down. He dies. That is murder, and I would have to say this is one of the simplest, if not the simplest[,] murder cases that I have ever tried, and I have tried several.

According to Lisa, the statement improperly suggested that she must be found guilty of murder. Defense counsel failed to raise an objection. Failure to raise an objection to a prosecutor’s statements made at trial procedurally bars the statements from appellate review. Edwards v. State, 737 So.2d 275, 299 (¶ 50) (Miss.1999). Lisa argues that her defense counsel was ineffective for failing to object to the prosecutor’s statement.

¶ 28. The State argues that the prosecutor’s statement and defense counsel’s failure to object did not amount to ineffective assistance of counsel. The State contends that Lisa has failed to show how the trial’s outcome would have been different if the statement had not been made or if her counsel had objected to it. Alternatively, if the Court finds error, the State argues that error is harmless.

¶ 29. Lisa cites authority for the proposition that a prosecutor is barred from making improper comments to the jury, and a prosecutor is barred from comment on counsel opposite. See Griffin v. State, 557 So.2d 542 (Miss.1990); Edwards, 737 So.2d 275. But Lisa does not cite a case in which similar comments were found to be improper and reversible error. Lisa has failed to show how the prosecutor’s comment prejudiced her. And, given the wide latitude afforded attorneys during opening statements, we find no merit in Lisa’s claim.

4. Motion for Directed Verdict

¶ 30. Next, Lisa claims defense counsel was ineffective because the trial court had to prompt him to move for a directed verdict after the State rested.

¶ 31. The previous day, the State called a witness, which the defense challenged. The trial court took the objection under advisement overnight. The next morning, the trial court sustained the defense’s objection to the witness’s testimony. The State rested its case. Then, the following exchange occurred between the trial court and defense counsel:

DEFENSE: Defense is ready to proceed with its opening remarks, Your Honor.
COURT: Okay. Do you have the ... a motion for directed verdict?
DEFENSE: Your Honor, I do have a motion for a directed verdict, and I appreciate the Court’s prompting. I was caught somewhat off guard expecting witnesses this morning. At this time the Defendant would move for a directed verdict. The State has failed to prove malice, as is required and shown in the indictment.
COURT: All right. There is at least circumstantial evidence from which the jury could find or infer malice. The motion is denied.

¶ 32. Lisa has failed to cite any authority to support her position and has failed to show how her counsel’s forgetfulness prejudiced her defense. Regardless of prompting, defense counsel ultimately moved for a directed verdict, and it was denied. Thus, we find no merit in Lisa’s claim.

5. Closing Statement

¶ 33. Last, Lisa argues that the prosecutor included in his closing argument facts not in evidence. In closing argument, the prosecutor stated, “What did she do? Went back in the house and called her daddy, and said, You ain’t going to see me for a while. I’m going to have to go away. I just killed Kirk.”

¶ 34. However, the record belies Lisa’s claim. On direct examination, Lisa testified regarding the conversation she had with her father. She stated, “I went in my bedroom, and I called my father, and he wasn’t home, and I left him a message, and I said, Daddy, I don’t think I will be seeing you for a while. I just shot Kirk.” Contrary to Lisa’s belief on appeal, the facts were in evidence. We find no error.

CONCLUSION

¶ 35. Because Lisa failed to object to Sammy’s testimony at trial, the competency issue is proeedurally barred from review. Out of five ineffective-assistance-of-counsel claims, three are without merit— the opening statement, the motion for directed verdict, and the closing statement. Thus, we affirm Lisa’s conviction and sentence. The record, however, is insufficient to address two of Lisa’s ineffective-assistance-of-counsel claims — Sammy’s testimony and the 911 call — on direct appeal. Thus, these two issues are dismissed without prejudice for Lisa to raise later in a properly filed motion for post-conviction relief.

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

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR.

      . With regard to Jesse’s last name and Lisa’s alias, discrepancies exist in the record as to its spelling. Three variations exist: Huskey, Husky, and Huskie.

      . Dr. McMaster also testified that Kirk's toxicology test was positive for methamphetamine, amphetamine, diazepam, and nordia-zepam.

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

      . Mississippi Code Section 13-1-5 provides that:
      Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.
      Miss.Code Ann. § 13-1-5 (Rev.2012).


author: COLEMAN, Justice, for the Court:

text:
    BANCORPSOUTH BANK v. Shelby K. BRANTLEY, Jr., Robert Crumpton, Norma S. Bourdeaux, Langston Oxford Properties, L.P., Susan M. Bryan, John Albriton and Lynn Albriton.
    No. 2011-CT-00475-SCT.
    Supreme Court of Mississippi.
    March 20, 2014.

      Daniel Myles Martin, John J. Crow, Jr., Water Valley, Austin Garrett Gray, attorneys for appellant.

      Shane F. Langston, Rebecca M. Lang-ston, Jackson, G. Todd Burwell, Ridgeland, Dana E. Kelly, Jackson, Jacqueline H. Ray, Ridgeland, attorneys for appellees.
   ON WRIT OF CERTIORARI

COLEMAN, Justice, for the Court:

¶ 1. BancorpSouth Bank filed a complaint for declaratory judgment, judicial foreclosure, and other relief against Van Burén Group, LLC, a corporation that organized the construction of thirty condominiums in Oxford. BancorpSouth also named several members of Van Burén Group and several condominium purchasers. Four purchasers and two members moved for summary judgment, which the chancellor granted. The Court of Appeals affirmed the grant of summary judgment as to the four purchasers; however, it reversed and remanded as to the two members. We granted BancorpSouth’s subsequent petition for writ of certiorari. We hold that an issue of material fact exists, reverse the chancery court’s grant of summary judgment as to the four purchasers, and remand the case.

FACTS AND PROCEDURAL HISTORY

¶ 2. In March 2001, H. Claiborne Frazier formed Van Burén Group, LLC (“Van Bu-rén”) with plans to purchase a piece of real estate in Oxford, Mississippi, and build and sell thirty condominiums. Frazier applied for financing with BancorpSouth, and, on August 20, 2001, through loan officer Bobby Little, BancorpSouth issued a commitment letter to Van Burén for a $5,400,000 loan. The loan commitment required Van Burén to “present evidence on the sale of 18 units through sales contracts and the collection of earnest money equal to 10% of the sales price.” Should eighteen units not be presold, the loan commitment provided that letters of credit on the difference between eighteen and the number of units actually presold would be accepted, subject to BancorpSouth’s approval.

¶ 3. On August 22, 2001, James Irby of Irby & Associates, Inc., who had been retained to appraise the condominiums, sent a letter to Little at BancorpSouth. The appraisal letter listed all the units, the appraised value, the listed sales price, and the sales status of each unit. The appraisal letter listed units 102, 210, and 303 as “Sold” and unit 306 as “Pending,” however, it did not provide the names of the purchasers. A day later, on August 23, 2001, Bobby Covington of Taylor Covington & Smith, P.A. (“TCS”) and attorney for Van Burén, wrote a letter to Little and Ban-corpSouth, certifying that nineteen units had been presold and that he was holding deposits for the units in his escrow account. The certification letter identified future purchasers as: John and Lynn Al-briton, Shane Langston, James B. Gren-fell, and Tim Ford. The Albritons, Lang-ston, and Grenfell together with Larry and Susan Bryan and Norma Bourdeaux are referred to hereinafter as “the purchasers.”

¶ 4. On September 5, 2001, Van Burén executed a promissory note in the amount of $5,400,000 in favor of BancorpSouth along with a deed of trust conveying a secured interest on the property to Ban-corpSouth. As to the promissory note, Frazier signed a personal guaranty. Two Van Burén members, hereinafter the “guarantors,” also signed the guaranty— Robert Crumpton and Shelby K. Brantley, Jr. The deed of trust was recorded in the Office of the Chancery Clerk of Lafayette County on September 12, 2001.

¶ 5. As reflected in the August 23, 2001, letter, Van Burén had presold several units — including those of the Albritons, Langston, and Grenfell — before entering the loan agreement. The Albritons executed a contract to purchase unit 303 on May 30, 2001, for $241,980. The agreement provided, in paragraph thirteen, that it was “subject and subordinate to the lien of any construction mortgage now or hereafter placed on the Unit, but the Seller shall cause such mortgage to be discharged or the above-described unit released of record prior to or simultaneously with the date of delivery of the Warranty Deed.” Further actions concerning the Al-britons’ sale did not take place until 2003.

¶ 6. On June 21, 2001, Shane Langston executed a Reservation Agreement with Van Burén to reserve his right to purchase unit 102. Ten days earlier, Langston issued a check payable to TCS, representing the reservation fee. Soon after, on June 25, 2001, Langston entered a Purchase Agreement, which was substantially similar to that entered into by the Albritons, including paragraph thirteen. Per the Agreement, Langston would pay a total of $241,980 to TCS, as the escrow agent, with an earnest money deposit of $24,198, also paid to TCS. Further actions concerning Langston’s sale did not take place until 2003.

¶ 7. On July 8, 2002, Susan Bryan executed a Purchase Agreement in which she agreed to purchase unit 207 for $259,000. The Agreement was substantially the same as that entered into by the Albritons, including the clause that Van Burén should discharge the mortgage on or before the date of delivery of the Warranty Deed and that time was of the essence. Two days later, on July 10, 2002, Larry Bryan subsequently issued a check to TCS in the amount of $24,900 as earnest money.

¶ 8. Also in July 2002, Frazier Construction and Development, Inc., sent a letter to BancorpSouth that appears to list the units sold to date, the respective buyers, and the contracted purchase prices. Of note, the letter lists “102 Shane Langston — $241,980 ... 207 Bryan — $259,000 ... 210 Tim Ford — $210,000 ... 303 John Albritton— $241,980 ... 305/306 Lee — $400,000.” A handwritten note at the bottom of the letter totals the purchase prices to $5,306,900, which was approximately the amount of the BancorpSouth loan.

¶ 9. On November 20, 2002, Norma Bourdeaux issued a check for $1,000, payable to TCS, as a deposit for the purchase of unit 111. On January 22, 2003, Bour-deaux signed a Purchase Agreement for unit 111, agreeing to purchase it for $190,000. Several pages of the Agreement are absent from the record; however, it appears that it was substantially the same as that signed by the Albritons. The Agreement provided that the purchase money would be paid to TCS as the escrow agent. On the same day, Frazier offered Bourdeaux an $8,000 discount for early payment of the remaining purchase money, or $181,000 with the discount. Bour-deaux delivered a check to Van Burén for $181,000 on January 22, 2003. When asked why she made the check out to Van Burén and not TCS, as stipulated, Bour-deaux stated that it was probably because Frazier asked her to do so. Bourdeaux’s unit was substantially complete by the summer of 2003. However, Van Burén did not execute and file the Warranty Deed until September 2005.

¶ 10. Sometime after entering their Purchase Agreement, the Albritons were approached by Frazier, offering a $5,000 discount in exchange for an early closing. On February 26, 2003, the Albritons entered a settlement agreement reflecting the discount, and the sale was closed at the office of TCS. The settlement agreement shows that the Albritons paid $236,980 to Van Burén and gave Frazier $13,488.20 in store credit at the Albritons’ jewelry store. A Warranty Deed was executed and delivered soon after closing in February 2003; however, the deed was not recorded until November 21, 2007.

¶ 11. On May 13, 2003, Van Burén and the Bryans amended their Purchase Agreement, providing the Bryans a $5,000 discount in exchange for their early payment to TCS as escrow agents of $228,100, increasing the total amount in escrow to $254,000. The discount was provided so that Van Burén would be able to pay down the loan sooner. Although the amended agreement provided that the funds would be paid into escrow, on May 13, 2003, Larry Bryan made a check directly to Van Burén in the amount of $228,100. On July 13, 2003, TCS sent Susan Bryan a Certificate of Title, which referenced the security interest held by BancorpSouth. Van Bu-rén delivered a Warranty Deed to Susan Bryan on September 3, 2003, and the deed was record⅞d on October 13, 2003.

¶ 12. Langston closed on unit 102 on August 18, 2003, paying Van Burén $220,565. In return, Van Burén provided Langston with a Warranty Deed the same day, but it was not recorded until August 12, 2005. The deed was titled to “Lang-ston Oxford Properties, LP,” an entity Langston created to handle the closing. Prior to closing, on July 31, 2003, Lang-ston entered a Settlement Agreement with Van Burén, which indicated that $255,621 of the purchase price was for “Payoff of first mortgage loan” with BancorpSouth. The Albritons, Bryans, Langston, and Bourdeaux all took possession of their respective units between June 2003 and November 2003.

¶ 13. An internal BancorpSouth memorandum was sent by Ronald Winford, who succeeded Bobby Little in overseeing the Van Burén loan, to James Stringer in the Credit Administration Department on June 2, 2003. The memo recapped a meeting between Winford and Stringer, accompanied by Ron Hendrix and the Fraziers on March 27, 2003. The memo lists the loan to Van Burén, stating that the $5.4 million loan had been advanced $5,311,885 to date and that the project was “91% complete with 27 of 30 units sold.” It also states that Covington “is preparing Deed of Trust release documents for us to review in anticipation of condo closing in mid-June,” and that Winford anticipated “being paid out of this project by the end of August.”

¶ 14. As previously mentioned, Tim Ford was listed in the August 23, 2001, letter from Covington to BancorpSouth as having contracted with Van Burén for the purchase of unit 210 and having deposited $21,000 in escrow with TCS. According to a BancorpSouth document, Van Burén executed a deed to Ford on September 26, 2003, and BancorpSouth executed a partial release of that unit on October 9, 2003. BancorpSouth had not been remitted the proceeds from the sale. Winford testified that the release of Ford’s condo was a mistake because Ford’s condo closed the “same day” as unit 202, the sales of which were remitted to BancorpSouth on September 19, 2003. However, Ford’s condo actually closed nine days after unit 202. BancorpSouth’s partial release list, date unknown, shows that unit 202 was not released from the deed of trust, although Ford’s was released.

¶ 15. The August 22, 2001, appraisal letter listed unit 306, eventually purchased by Lee, as pending. Further, the July 2002 letter sent by Frazier Construction & Development, Inc., to BancorpSouth in-eluded “805/306 Lee $400,000.” Lee received a Warranty Deed as to units 305 and 306 on February 19, 2004, and the deed was filed February 23, 2004. Lee had paid $399,000 to Van Burén; however, the sum was never remitted to Bancorp-South. His deed, like those of the four purchasers, showed no encumbrance by BaneorpSouth. Around the same time, Lee decided to purchase a third unit. In his title work relating to the third unit, Lee discovered that his first two condos had not been released from the Bancorp-Soiith Deed of Trust. On April 13, 2004, Lee sent a letter to Frazier demanding an immediate release of his condos. Frazier faxed Lee’s demand letter to Winford along with a letter stating that the release would be imminent. Lee’s first two condos were released soon after, on May 19, 2004.

¶ 16. Lee still owed $50,000 on his third condo, unit 307, but would not release the final payment until BaneorpSouth executed a partial release of that unit. On June 22, 2004, Lee sent a letter to Frazier indicating that Frazier had breached the Purchase Agreement and that he had a general suspicion of criminal conduct. On that same day, Lee visited Dave Bush, senior vice-president at BaneorpSouth, and alerted Bush that the money he had paid to Van Burén had not been tendered to Ban-corpSouth. Bush immediately spoke with Winford and instructed Lee to take the check for $50,000 to Winford in Madison, Mississippi, and that he would deliver a partial release to Lee. Lee did that, and his third unit was released from the mortgage on June 23, 2004. At his deposition, Winford could not recall that Lee had requested a release of his units, nor did he recall meeting with Lee.

¶ 17. Van Burén remitted the purchase money to BaneorpSouth for twenty-one of the units sold, which the bank accordingly credited to the Van Burén loan and subsequently executed partial releases of the deed of trust for the respective units. However, at some point in time, the bank discovered that Van Burén had sold five units-the purchasers’ units-without remitting the money to the bank. Having not received the money and not knowing that those five units had sold, the bank did not release the purchasers’ units from the deed of trust. Van Burén defaulted on its loan, and BaneorpSouth initiated foreclosure proceedings against the purchasers. In essence, the purchasers argue that, because BaneorpSouth, knowing that units had been previously conveyed to the purchasers, released Ford’s and Lee’s units without respectively crediting the Van Bu-rén loan, the bank should not be able to proceed with foreclosure against the purchasers until the bank credited the loan as to Ford’s and Lee’s units. The purchasers argue that, because the amount outstanding on the loan was less than the value of Ford’s and Lee’s units, the loan would be fully satisfied, and the bank could not foreclose on the purchasers’ units.

¶ 18. In October 2007, BaneorpSouth filed a complaint for declaratory judgment, judicial foreclosure, and other relief in the Lafayette County Chancery Court against the Van Burén Group and its members: Claiborne Frazier, Austin Frazier, C.E. Frazier, Shelby Brantley Jr., and Robert Crumpton. It also named five condo purchasers: Norma Bourdeaux, Langston Oxford Properties, L.P., Susan Bryan, Lynn Grenfell, and John and Lynn Albriton. Grenfell was dismissed by agreed order. The remaining four purchasers moved for summary judgment, which Brantley and Crumpton separately joined.

¶ 19. As of March 5, 2004, the outstanding balance on the Van Burén loan was $1,530,763.80. BaneorpSouth later received $1,068,287.30 in payments toward the balance. The purchasers argued that BancorpSouth improperly released the four units sold to Lee and Ford, which, minus the $50,000 payment by Lee, amounted to $869,000. When this amount is added to the payments already received, the sum is greater than the total amount of the loan; therefore, no debt was secured by the four purchasers’ units, and judicial foreclosure was improper. The four purchasers also alleged that Bancorp-South was aware through Winford that Van Burén had sold the five units out of trust and did not notify the purchasers. Further, they alleged that BancorpSouth’s dealings with Lee and Ford demonstrated unclean hands. On February 28, 2011, the chancery court granted summary judgment in favor of Brantley, Crumpton, and the four purchasers. BancorpSouth appealed the chancery court’s grant of summary judgment.

¶ 20. The Court of Appeals affirmed as to the four purchasers but reversed and remanded as to Brantley and Crumpton, finding that a genuine issue of material fact existed as to whether BancorpSouth received full payment of the amount owed based on the funds received from the units sold. BancorpSouth Bank v. Brantley, 133 So.3d 361 (Miss.Ct.App.2013). Following the decision of the Court of Appeals, BancorpSouth settled its claims against the guarantors. BancorpSouth filed a petition for writ of certiorari, which we granted to clarify the correct application of what we refer to below as the Pongetti rule.

DISCUSSION

¶ 21. Under Mississippi Rule of Civil Procedure 56(c), summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). A trial court’s grant or denial of a motion for summary judgment is reviewed under a de novo standard. Poppenheimer v. Estate of Coyle, 98 So.3d 1059, 1062 (¶ 7) (Miss.2012) (citing Whitaker v. Limeco Corp., 32 So.3d 429, 433-34 (¶ 10) (Miss.2010)). In reviewing a trial court’s grant of summary judgment, the Court views the evidence “in the light most favorable to the party against whom the motion has been made.” Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So.3d 68, 71 (¶ 5) (Miss.2012). Where doubt exists as to whether a genuine issue of material fact exists, courts should err on the side of denying summary judgment. Todd v. First Baptist Church of West Point, 993 So.2d 827, 829 (¶ 9) (Miss.2008).

Whether the grant of summary judgment was appropriate.

A. The Pongetti Rule

¶ 22. Mississippi has long followed the doctrine of inverse alienation in situations in which “a judgment debtor has various pieces of property, affected by the judgment lien[;] if he alienate[s] one piece, that [piece] is not to be charged, until the others, not alienated, have been subjected [to the judgment lien], provided they still remain within reach of the execution.” Agric. Bank of Miss. v. Pallen, 16 Miss. 357, 359 (8 S. & M. 357) (1847). In such situations, “If all be alienated, then each is liable to the satisfaction of the judgment, in the inverse order of alienation; the last alienated being first liable.” Id. The rule of inverse alienation has been reaffirmed most recently by the Court in Pongetti v. Bankers Trust Savings & Loan Association, 368 So.2d 819 (Miss.1979). The doctrine of inverse alienation applies to the facts of the case sub judice. If all subdivided parcels of a tract of land “be necessary to satisfy the judgment, then all must be so applied. It is a question only as to the order of application.” Id. (citing Pallen, 16 Miss. at 359).

¶ 23. While the doctrine of inverse alienation is itself straightforward, the situation is complicated when, as here, the debtor first alienates parcels of property, which the mortgagee does not release from the lien, and the debtor subsequently conveys other parcels, which the mortgagee does release from the lien. The Pongetti Court wrote, in pertinent part, as follows:

It is the general rule, subject to certain qualifications set out in succeeding subdivisions, that where a mortgagor or other lienee has alienated a portion of the mortgaged premises, and the mortgagee or other lienor, having notice of such alienation, releases the mortgage or other lien as to the portion retained by the mortgagor or lienee, such mortgagee or lienor must deduct from the debt, before enforcing his lien against the property alienated, the value of the property released.

Pongetti, 368 So.2d at 823 (quoting 110 A.L.R. 67 (1937)) (emphasis added). The above-quoted language, not the doctrine of inverse alienation established well before Pongetti, constitutes the Pongetti rule. Stated differently, a mortgagee such as BancorpSouth may release whatever parcel of land it wishes from a mortgage that covers multiple parcels. However, when a mortgagee does so with notice that other parcels were alienated prior to the released parcels, then it does so at its own risk. Should foreclosure occur, the mortgagee must count the value of the released parcels against the total remaining debt.

¶ 24. The reason for the Pongetti rule, as we call it herein, is simple. As discussed above, the doctrine of inverse alienation has long been the law in Mississippi. People who purchase parcels of real property that have been subdivided from a larger parcel subject to one overarching mortgage have the right to expect the law to be followed should the mortgagee commence foreclosure proceedings. Allowing the mortgagee to release later-alienated parcels without consideration and with notice of the earlier-alienated properties inequitably takes away the quite-justified expectation of the earlier purchasers. Ridge of Brooklyn Realty Co. v. Offerman, 149 A.D. 878, 134 N.Y.S. 788 (N.Y.App.Div. 1912) (“The enforcement of the rule is never permitted to interfere with the legal rights of the mortgagee, but at the most it controls the method or order in which his rights may be enforced, and forbids him to wantonly disregard the equitable rights of others of which he has knowledge.”).

¶ 25. In Pongetti Mississippi Valley Title Insurance Company held a senior mortgage on a piece of property divided into Tract I and II. Pongetti, 368 So.2d at 820. Sims held a junior mortgage as to only. Tract I. Id. Without receiving any payment on the mortgage, Mississippi Valley released Tract II and began foreclosure against the part of Tract I covered by Sims’s mortgage. Id. Sims sought to enjoin Mississippi Valley from selling that part of Tract I covered by his deed of trust. Id. Sims asked that any proceeds from a sale be applied first to satisfy his deed of trust plus his damages. Id. at 820-21. The Court, applying the rule quoted above, found that Sims “had a right to require Mississippi Valley, as holder of the senior mortgage covering both Tract I and Tract II, not to release its security on Tract II without crediting the value of Tract II on its senior mortgage.” Id. at 823-24. The Court went on to find that, as to Sims, Mississippi Valley’s senior mortgage was discharged because the value of the land released without consideration satisfied its mortgage. Pongetti, 368 So.2d at 824.

¶ 26. In the instant case, BancorpSouth released from its mortgage four units sold to John Lee and Tim Ford for little or no consideration after the sales to the four unit purchasers. On October 9, 2003, Ban-corpSouth released Ford’s unit 210 for no consideration, and on May 19, 2004, the bank released Lee’s units 305 and 306, also for no consideration. After sending a letter to Frazier and personally talking to a vice-president of BancorpSouth, Lee obtained a release on his third unit in exchange for $50,000 paid to the bank, despite the unit being purchased for a total of $300,000. Added together, the amount of money that should have been remitted to the bank from the sales of these units totaled $869,000, .which, does not include the $50,000 that Lee in fact paid the bank.

¶ 27. According to BancorpSouth’s documents, the Van Burén loan had an outstanding balance of $1,530,763.80 as of January 23, 2004. From January 23, 2004, to March 31, 2008, the bank received payments totaling $718,213.66. The four purchasers would add approximately $300,000 to that total, according to their Motion for Summary Judgment, which would account for the March 11, 2008, foreclosure of unit 309. However, the foreclosure amount for unit 309 is unclear. BancorpSouth’s documents indicate a payment of $45,000 on March 31, 2008, which may have been for the foreclosure of unit 309, but this is unknown.

¶28. Thus, BancorpSouth actually received $718,213.66 between June 23, 2004, and March 31, 2008. Were we to apply the Pongetti rule, we would then add the $869,000 that should have been remitted to the bank when it released the deeds of trust on Lee’s and Ford’s units, bringing the total to $1,587,213.66, an amount more than the $1,530,763.80 due on the Van Burén loan as of January 23, 2004. Accordingly, if the Pongetti rule applies, the Van Burén debt was fully satisfied by the Pongetti credit for the Ford and Lee units.

B. Whether Pongetti requires actual or constructive notice of the earlier alienations to apply.

¶ 29. BancorpSouth argues that for the Pongetti rule to be applicable, it must be shown that the bank had actual notice of the earlier alienations to the purchasers. The four purchasers argue that Pongetti does not require actual notice. The Court of Appeals did not expressly answer what type of notice was required, finding the argument moot, as BancorpSouth had received actual notice. BancorpSouth, 133 So.3d at 365-66 (¶ 13).

¶ 30. Before addressing whether the law requires actual or constructive notice, we must first determine of what, exactly, BancorpSouth would need to have notice for the Pongetti rule to apply. The bank contends that, in order for the rule to apply, it must have notice that the purchasers had bought their units at the time the bank released the later-purchased Ford and Lee units from the mortgage. The purchasers, without citation to authority, argue that the pertinent event, of which notice was required, was that the bank had released the Ford and Lee units, even though it had not received the purchase funds from Van Burén. We need look no further than the Pongetti Court’s opinion to determine that BancorpSouth’s interpretation is correct. In the above-quoted section from Pongetti, in which the Court quoted and relied upon 110 American Law Reports 67 (1987), the rule requires the mortgagee to have notice of the alienation of part of the mortgaged tract by the mortgagor to trigger the Pongetti rule as to the remaining part of the tract, still held by the mortgagor, should the bank release that remaining, nonalienated part from the mortgage.

¶ 31. The result jibes well with the doctrine of inverse alienation. The purpose of the doctrine of inverse alienation, put simply, is protection.

Iri so far as the inverse order of alienation doctrine requires that the land retained by the lienee must first be sold to pay the paramount encumbrance, before the land aliened by him may be reached, it seems to be based on the fundamental notion of equity that in the absence of a contract or intention indicating to the contrary, one man’s property may not be .used to pay the debts of another; and that an owner of land subject to a paramount encumbrance, who encumbers or alienates a part, retaining the other part, who does not expressly charge the parcel encumbered or aliened with the payment of the paramount encumbrance, must be presumed to have intended or agreed that the encumbrance should be discharged out of the part remaining in his hands, and that the parcel aliened or encumbered should be free from the burden of the paramount encumbrance, particularly where he conveys the part with covenants of warranty against encumbrances, and receives full value for the part aliened.

P.H. Vartanian, Sale in Inverse Order of Alienation, 131 A.L.R. 4 (1941). “The right to have the lien satisfied by this method is an equity which each grantee has against the original owner and against all subsequent grantees. Doctrine of Inverse Order of Alienation as Affected by Release of Part of Property Covered by Mortgage or Other Lien, 110 A.L.R. 65 (1937). Without any release by the bank of any part of the mortgaged property, after the mortgagee alienates part of the property, the portion alienated goes to the back of the line, so to speak, for purposes of collection should foreclosure occur. The bank would be required first to execute upon the part still held by the mortgagee, and — only then — proceed against the parts alienated, now in the hands of a third person. If more than one conveyance were made to more than one third person, then the bank would be able to execute against the multiple parcels in the reverse order of alienation but — again—only after executing against the nonalienated portion. Accordingly, something of a equitable hierarchy emerges for the purpose of determining whose property is at risk first in foreclosure. For example, the proper treatment of the instant case would be straightforward absent the release of the Ford and Lee units from the mortgage. The purchase agreements signed by the purchasers stated that the units were subject to the lien of a construction mortgage. The eight units would have been subject to foreclosure, with the latest-purchased unit the first to be at risk, then the next-latest-purchased unit, and so on, until the mortgage was satisfied or the property available to foreclose upon was exhausted.

¶ 32. In the situation here, eight units — all alienated by the mortgagor — are extant in foreclosure, but the four later-alienated units, which normally would be the first four subject to foreclosure, have been released by the bank from the mortgage. If the bank released the four later-alienated units with knowledge that four other units, bought by purchasers with the expectation that the remaining units would be foreclosed first, had already been alienated, it makes perfect sense to hold that the bank, so knowing, released the later-alienated units at its own risk. However, if the bank released the later-alienated units without knowledge that four units had previously been alienated — in other words, believing additional units remained in the hands of the mortgagor that would be available for foreclosure — then no reason exists to penalize the bank for releasing whomever it will from a mortgage.

Where, however, it appears that the mortgagee had no notice of a prior conveyance or conveyances at the time when he released a parcel of the mortgaged premises alienated by the mortgagor, it is uniformly held that he may enforce his lien against the parcel or parcels first conveyed, to the full extent of the debt secured.

Doctrine of Inverse Order of Alienation as Affected by Release of Part of Property Covered by Mortgage or Other Lien, 110 A.L.R. 65 (1937). Accordingly, we hold that the event of which a mortgagee must be on notice is the earlier alienation of parcels of the mortgaged land at the time it chooses to release later-alienated parcels (or units, as in the case sub judice). Having identified the notice event, we now turn to the type of notice required-actual or constructive.

¶ 33. As discussed above, the Pongetti Court adopted the American Law Reports article’s discussion of the effect of a release on part of a larger tract of mortgaged land. The language so adopted provides, in pertinent part, that “the mortgagee or other lienor, having notice of such alienation, releases the mortgage or other lien as to the portion retained by the mortgagor or lienee.... ” While the quoted language should not be taken as dispos-itive, as the parties did not place the type of notice required at issue in Pongetti, it is worth noting that the language contains none of the usual markers to indicate that something less than actual notice is acceptable, such as “reasonably should have known” or the like.

¶ 34. Because the Pongetti Court’s language does not wholly answer the question, the Court turns to decisions by other courts as persuasive authority. In a case analogous to Pongetti, the Fourth Circuit wrote:

Where the owner of the paramount in-cumbrance [sic] releases security therefrom, there is ordinarily nothing to put him on notice that the owner of the property incumbered has conveyed any part of it, and he is not chargeable with notice of such conveyance unless it is expressly brought to his attention.

Fidelity & Cas. Co. of N.Y. v. Mass. Mut. Life Ins. Co., 74 F.2d 881, 885 (4th Cir.1935) (emphasis added). However, that court went on to say that if the owner of the paramount encumbrance “is diligent and investigates the holdings of the grant- or and the incumbrances [sic] against them, as he should do in the exercise of ordinary care, he will learn of prior conveyances which are of record and the equities of prior alienees.” Id. The court found that it was reasonable to hold that

the surety on such a bond, given to protect against the enforcement of a lien, is chargeable with notice of what the records disclose as to prior conveyances by the grantor of property subject to that lien. He is fairly put upon inquiry by the circumstances and is chargeable with knowledge of what the inquiry would have disclosed.

Id. at 885-86. Thus, the Fourth Circuit merely requires inquiry notice for the Pongetti principle to apply.

¶ 35. In contrast, the Tenth Circuit has required actual notice, holding that “if the senior mortgagee, with actual knowledge of the junior encumbrance voluntarily releases a portion of its security to the prejudice of the junior encumbrancer, without releasing a proportionate part of its debt, it is accountable to the junior encumbrancer for the value of the released security.” Cont’l Supply Co. v. Marshall, 152 F.2d 300, 308 (10th Cir.1945) (citing Turner v. Ridge Heights Land Co., 92 N.J.Eq. 64, 111 A. 675 (N.J.Ch.1920); Anderson v. McCloud-Love Live-Stock Comm’n Co., 58 Neb. 670, 79 N.W. 613 (1899); Howard v. Burns, 73 Minn. 356, 76 N.W. 202 (1898); Boone v. Clark, 129 Ill. 466, 21 N.E. 850 (1889)). The Third Circuit quoted the above language with apparent approval in In re Penn Central Transportation Co., 494 F.2d 270, 277 (3d Cir.1974). The Supreme Court of Alabama has similarly required actual notice. Interstate Land & Inv. Co. v. Logan, 196 Ala. 196, 206, 72 So. 36, 40 (1916) (“The mortgagee is not prevented from dealing with the mortgaged premises in any manner consistent with his general rights as a mortgagee, unless he has received actual notice of the conveyance to the subsequent owners whose interest would be affected by his dealings.”).

¶ 36. The Court holds that actual notice is required to trigger the Pongetti rule. Requiring actual notice aligns with the intention of Pongetti that mortgagees, such as BancorpSouth, cannot release a partial deed of trust on a parcel — here the Ford and Lee units — when they expressly knew that other parcels had been previously conveyed but not released — here the purchasers’ units — without subsequently deducting the value of the parcel from the overall lien. In other words, the intention of the rule of inverse alienation is fulfilled under Pongetti in that, upon foreclosure, the mortgagee must first foreclose on the parcels most recently alienated and cannot release recently alienated parcels without crediting the earlier alienated parcels, if actually known by the mortgagee, for the value of the parcels released.

¶ 37. The Court has defined what constitutes actual notice:

actual notice often means knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably prudent persons to investigate and ascertain as to the ultimate facts, and it may include knowledge of all facts which a reasonable inquiry would have disclosed. Actual notice is implied only when the known facts are sufficiently specific to impose the duty to investigáte further and when such facts furnish a natural clue to the ultimate fact. Implied notice arises from an inference of fact.

AmSouth Bank v. Gupta, 838 So.2d 205, 215 (¶ 27) (Miss.2002) (quoting King Lumber Indus. v. Cain, 209 So.2d 844, 848 (Miss.1968)). With that said, the AmSouth Court went on to find that “[mjerely alleging what Farmer knew or should have known sometime over the course of one month, in a case where specific dates are crucial, will not support a finding that AmSouth actually was on notice.... ” Id. at 215-16 (¶ 29). Similarly, the Court cannot find that the purchasers have demonstrated that BancorpSouth actually knew that they specifically had been conveyed their units. Instead, the purchasers merely allege that the bank knew of their conveyances through documents that do not make specific reference to the purchasers’ conveyances. Taking the evidence in the light most favorable to BancorpSouth as the nonmoving party, the Court finds that an issue of material fact exists as to whether BancorpSouth had actual notice of the purchasers’ conveyances.

¶ 38. To summarize, it is the actual notice of the alienation of the unreleased portions, i.e., the purchasers’ units, that is of concern, not the alienation of the released portions. Whether the Pongetti rule is in play hinges on whether Bancorp-South, as mortgagee, knew that units had been conveyed to the purchasers when the bank released the Ford and Lee units from the deed of trust.

¶39. A list showing the dates of the partial releases shows that Ford’s unit 210 was released on October 9, 2008. The partial release signed by Ron Winford of BancorpSouth shows that Lee’s units 305 and 306 were released on May 19, 2004, and his unit 307 was released on June 23, 2004. Thus, whether the Pongetti rule is triggered depends on whether Bancorp-South had notice that Van Burén had sold units specifically to the purchasers before the partial releases of the Ford and Lee units.

¶ 40. A letter from Bobby Coving-ton of TCS to Bobby Little of Bancorp-South regarding the Van Burén condos, dated August 23, 2001, states that Coving-ton, who, as an attorney on behalf of Van Burén, was tasked with preparing the Deed of Trust release documents for the bank to review, was holding in his escrow account $21,000 as a deposit of earnest money for Ford’s purchase of unit 210. The same letter references the Albritons, Grenfell, and Langston, each of the purchaser group. The fact that only earnest money had been tendered signifies that the units had not yet been conveyed, thus the letter fails to ameliorate the existence of material issues of fact as to the subject of notice.

¶41. A second letter, from Frazier Construction to BancorpSouth, dated July 2002, lists several units next to what appears to be a list of buyers and the contracted price, although there are no labels. The July 2002 letter lists, “102 Shane Langston $241,980 ... 201 James Grenfell $240,000 ... 207 Bryan $259,000 ... 303 John Albritton $241,980.” The letter also lists “210 Tim Ford $210,000 ... 305/306 Lee $400,000.” Similar to the August 2001 letter, the July 2002 letter does not state that the units actually had been conveyed to their respective purchasers or even that a contract had been entered.

¶42. An internal BancorpSouth letter from Ron Winford to James Stringer, dated June 2, 2003, and summarizing the discussions of a March 31, 2003, meeting with Frazier, states that “the project is 91% complete and 27 of 30 units [have been] sold.” It goes on to say that Winford “anticipate^ being paid out of this project by the end of August [2003].” The letter then cryptically states that, according to a third-party inspector, “the project has been slow and there has been derogatory information reported on [the inspector’s] trade lines. This verifies information that we have received regarding the same.” Another internal bank document, dated April 8, 2004, states that “25 of the 30 units have been sold and delivered” and that two of the five remaining had been contracted. Neither of these documents makes reference to specific conveyances to any of the purchasers.

¶ 43. Viewing the evidence in the light most favorable to BancorpSouth, the Court finds that an issue of material fact exists regarding whether BancorpSouth had actual notice of Van Buren’s conveyances to the purchasers when it released Ford’s and Lee’s units from the deed of trust. Because of the existence of an issue of material fact, we reverse the trial court’s grant of summary judgment and remand the case for further proceedings consistent with the instant opinion. We also affirm in part the judgment of the Court of Appeals as to the reversal of the trial court’s judgment as to Brantley and Crumpton, but we reverse it in part as to its affirmance of summary judgment as to the four purchasers.

CONCLUSION

¶ 44. In order for the Pongetti rule to apply and for BancorpSouth to have to credit the value of the Ford and Lee units against the amount owed before foreclosing on the purchasers’ units, BancorpSouth must have had actual notice of the alienation of the purchasers’ units when it released the Ford and Lee units. Because an issue of material fact exists as to whether the bank had such actual notice, we reverse the trial court’s grant of summary judgment and remand to the trial court for proceedings consistent with this opinion.

¶ 45. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS REVERSED AND THE CASE IS REMANDED.

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

      . The court entered an order pursuant to Mississippi Rule of Civil Procedure 54(b) for the purpose of appeal, deeming the summary judgment a final judgment against the parties to the motion. See Miss. R. Civ. P. 54(b).

      . In its brief, BancorpSouth contends that other costs, such as legal fees, would drive the total amount due under the mortgage higher such that additional foreclosures would be necessary. Although we do not reach the argument, we note that the trial court will have to determine what, if any, additional amounts should be added to the total debt.