author: CARLTON, J.,

text:
    Kenneth FLOWERS a/k/a Kenneth L. Flowers a/k/a Kenneth Lee Flowers, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01405-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2014.
    Rehearing Denied May 13, 2014.
    Certiorari Denied Aug. 7, 2014.

      Office of State Public Defender by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. After a trial held on December 12, 2011, a Rankin County jury convicted Kenneth Flowers of two counts of armed robbery. The trial judge sentenced Flowers to serve twenty-six years in the custody of the Mississippi Department of Corrections (MDOC) on each count, with the sentences to run concurrently. Flowers appeals his conviction and sentence. Finding no error, we affirm.

FACTS

¶ 2. On the night of September 18, 2008, an armed robbery occurred at the Super D Drug Store on Highway 80 in Pearl, Mississippi. Two men wearing masks entered the store and rushed to the pharmacy in the back part of the store. One man carried an automatic pistol. The masked men ordered the pharmacist and another employee to place the store’s cash and narcotics into plastic bags that the men brought with them into the store.

¶ 3. After the masked men entered the store, one Super D employee, Eli McMillan, managed to slip out of the front door unnoticed. While leaving the store, McMillan observed a dark-colored pickup truck parked in front of the store, with the engine running. McMillan called 911. Af-terwards, McMillan witnessed the pickup truck drive away, but stated that he could not see the driver nor the occupants of the truck.

¶ 4. Officer Nick McLendon of the Pearl Police Department received a dispatch call and arrived at the Super D while the two masked men were still in the store. When other officers arrived, they surrounded the Super D. The two men tried to escape through the ceiling, but failed. The two men eventually exited the store peacefully and were arrested. The two men were identified as George Jones and Antwaine Jones. In George’s and Antwaine’s possession, police found a damaged 9mm automatic pistol, wads of paper currency, two masks, and a single glove.

¶ 5. During the robbery, Edy Muse was dining at the China Buffet restaurant, several stores away from the Super D. She noticed a man drive up in a dark pickup truck, park the truck, leave the lights on, and walk quickly toward the door of the restaurant. Muse testified that the man did not enter the restaurant, and did not return to the truck. Muse also testified that when she exited the restaurant, she saw the commotion at the Super D and informed police officers at the scene of the suspicious pickup.

¶ 6. The police officers recovered the truck from the China Buffet parking lot. No usable fingerprints or other evidence was recovered from the truck. McMillan identified a photograph of a GMC pickup as being similar to the truck he saw in front of Super D during the time of the robbery.

¶ 7. Upon questioning, George and Ant-waine eventually admitted to participating in the robbery with a man named “K,” whom they identified as the getaway driver and lookout. The Pearl Police Department received information from an FBI task force that the man identified as “K” was possibly Flowers. Police officers took two separate photo lineups to George and Antwaine, who were shown the photo lineups separately, and both identified Flowers as “K.”

¶8. George, Antwaine, and Flowers were indicted on two counts of armed robbery pursuant to Mississippi Code Annotated section 97-3-79 (Rev.2006). George and Antwaine both pled guilty to the charge of armed robbery, and were each sentenced to serve fifteen years in the custody of the MDOC, with seven years suspended.

¶ 9. At Flowers’s trial, both George and Antwaine testified against Flowers. George explained that he made no agreement with the State in return for testifying against Flowers. At trial, George admitted to using the damaged pistol, and he named Antwaine and Flowers as the other participants in the robbery. George stated that all three men planned the robbery, and that Flowers was supposed to drive him and Antwaine and serve as a lookout. George explained that Flowers drove him and Antwaine to Super D, but that Flowers left the scene.

¶ 10. George further testified that after pleading guilty, he informed the district attorney’s office that he would not testify against Flowers. George alleged that he was told by the district attorney’s office that if he failed to testify, his “sentence would be withdrawn.” George stated that testifying against Flowers was not part of the original plea agreement.

¶ 11. Antwaine also testified that Flowers planned the robbery. Like George, Antwaine made allegations that the district attorney’s office told him that if he did not testify, the State would “take his sentence back and start all over” by going to trial.

¶ 12. Flowers presented two alibi witnesses, Jennifer Wilder, a former girlfriend, and Amos Flowers, his father. Wilder testified that she used to date Flowers, and they have a young daughter together. Wilder testified that on September 18, 2008, the day of the robbery, she asked Flowers to watch their daughter at his parents’ house from 6:00 p.m. until 9:00 p.m. Wilder stated that she dropped their daughter off in West Jackson at 6:30 p.m. She confirmed that Flowers and both of his parents were present at the house. Around 9:00 p.m., Wilder called Flowers and apologized for being late to pick up their daughter. She also testified that around that same time, she saw a news report about the robbery at Super D.

¶ 13. Amos testified that on September 18, 2008, he and his wife were at home, and Flowers arrived at their home around 5:00 p.m. After Wilder dropped off the child, Amos stated that he and his wife went to a casino in Vicksburg around 7:00 p.m., leaving Flowers home with the child. Amos testified that Flowers surrendered himself to authorities in September 2010. Amos stated that he told police and sent a letter to the attorney general’s office advising that Flowers had been at home between 5:00 p.m. and 7:00 p.m. on September 18, 2008.

¶ 14. The State provided rebuttal testimony from U.S. Marshall Ronnie Odom, who testified that on September 3, 2010, Flowers ran away when Marshall Odom, and other officers tried to execute an arrest warrant on him. Marshall Odom refuted Amos’s allegation that Flowers turned himself in to police; instead, Marshall Odom stated that police officers found Flowers at Attorney Ermea J. Russell’s office after receiving a phone call that Flowers was at the office.

¶ 15. The jury convicted Flowers of two counts of armed robbery, and the trial court sentenced him on each count to twenty-six years in the custody of the MDOC, with the sentences to run concurrently. Flowers filed a motion for a judgment notwithstanding the verdict, or in the alternative, a new trial, which the trial judge denied. Flowers now appeals, raising the following as error: the trial court gave an improper peremptory instruction on the use of a deadly weapon as an element of armed robbery; the weight of the evidence fails to support the verdict; and his convictions were secured with coerced testimony. Flowers filed a pro se supplemental brief, further alleging that he was denied the right to confront his primary accusers, by the use of a photo lineup prepared by FBI agents; that two African Americans were improperly stricken from the jury; and that his counsel was ineffective. Flowers’s assignments of errors address both the weight and sufficiency of the evidence supporting the verdict and conviction. Flowers’s appellate counsel raises assignments of error, and Flowers also raises his own supplemental assignments of error. This opinion addresses the alleged errors raised by both Flowers and his counsel.

STANDARD OF REVIEW

¶ 16. The Mississippi Supreme Court has established that “Ijjury instructions are generally within the discretion of the trial court and the settled standard of review is abuse of discretion.” Bailey v. State, 78 So.3d 308, 315 (¶ 20) (Miss.2012) (citing Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010)). “The instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context.” Id. “When read together, if the jury instructions state the law of the case and create no injustice, then no reversible error will be found.” Id.

¶ 17. A motion for a new trial goes to the weight of the evidence. Woodard v. State, 765 So.2d 573, 576 (¶ 16) (Miss.Ct. App.2000). When determining whether the verdict was against the overwhelming weight of the evidence, this Court will view all evidence in the light most favorable to the jury verdict, and we will not overturn the verdict unless we find that the trial court abused its discretion when it denied the motion for a new trial. Id. (citations omitted). “[T]he decision of whether or not to grant a motion for a new trial rests in the sound discretion of the trial judge,” and the motion “should only be granted when the judge is certain that the verdict is so contrary to the overwhelming weight of the evidence that failure to grant the motion would result in an unconscionable injustice.” Id.

DISCUSSION

1. Jury Instruction

¶ 18. Flowers argues that the trial court gave an improper jury instruction regarding the use of a deadly weapon as a statutory element of armed robbery. Mississippi Code Annotated section 97-3-79 provides in pertinent part:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury[.]

(Emphasis added).

¶ 19. Flowers specifically asserts that the trial court erred in giving instruction S-8, which instructed the jury that “a pistol or firearm is a deadly weapon without further proof that it is loaded or presently capable of committing a violent injury.” Flowers argues that the “deadly weapon” in this case was a “beat up old gun” with the trigger guard missing. Flowers asserts in his brief that whether or not the gun was operable or could be readily made operable was never determined or proven. Flowers submits that a question of fact therefore exists regarding the element of exhibition of a deadly weapon under section 97-3-79; and he states that the question of whether the gun at issue constituted a deadly weapon should have been left to the jury to decide.

¶ 20. In addressing this issue, we acknowledge that our supreme court’s precedent holds that “[j]ury instructions are generally within the discretion of the trial court[,] and the settled standard of review is abuse of discretion.” Bailey, 78 So.3d at 315 (¶ 20) (citing Newell, 49 So.3d at 73 (¶ 20)). We also acknowledge the State’s argument that asserts that instruction S-8 constituted a correct statement of the law and served to instruct the jury on the prosecution’s burden of proof. The State further argues that the condition of the gun used to commit the crime of armed robbery is irrelevant. We agree. See Davis v. State, 530 So.2d 694, 702 (Miss.1988).

¶ 21. The State cites to Dambrell v. State, 903 So.2d 681, 683 (¶ 6) (Miss.2005), where the supreme court held that when a defendant makes an overt act and a reasonable person would believe that a deadly weapon is present, there is no requirement that a victim must actually see the deadly weapon in order to convict pursuant to [section] 97-3-79. Therefore, a victim is not required to have “definite knowledge” of a deadly weapon in the sense that the weapon must actually be seen by the victim’s own eyes.

See also Davis, 530 So.2d at 702 (“A pistol has ... been judicially declared to be a ‘deadly weapon’ without proof that it is loaded or presently capable of committing a violent injury.”); Lyons v. State, 942 So.2d 247, 250 (¶21) (Miss.Ct.App.2006) (upheld an armed-robbery conviction where the defendant produced a note during a robbery stating that he possessed a gun). Our review of relevant case law reflects instruction S-8 properly instructed the jury on the law regarding the use-of-a-deadly-weapon element of section 97-3-79. Flowers’s claim of an error in jury instruction S-8 lacks merit.

2. Jury Verdict

¶ 22. Flowers next argues that the only incriminating evidence presented against him at trial was the testimony of his accomplices, Antwaine and George; and he submits that this evidence “is too weak and unreliable for reasonable jurors to have determined [his] guilt beyond a reasonable doubt.” Flowers cites to Jones v. State, 368 So.2d 1265 (Miss.1979), where the supreme court reversed Jones’s grand-larceny conviction and rendered an acquittal after determining that the conviction was based on unreliable testimony of an accomplice who had negotiated a favorable plea bargain. Flowers argues that since George and Antwaine asserted at trial that they were coerced into testifying against Flowers, then their testimony should have been stricken from the jury’s consideration.

¶ 23. The record reflects that the State presented testimony from eyewitnesses to the crime, McMillan and Muse, as well as accomplices Antwaine and George. Ant-waine and George both identified Flowers as one of the masterminds behind the robbery and explained that Flowers’s role was to serve as getaway driver and lookout. McMillan testified that he observed a dark-colored pickup truck parked in front of the store, with the engine running, but explained that he could not see the driver. Muse testified that during the time of the robbery, she was dining at the China Buffet restaurant several stores away from the Super D. She noticed a man drive up in a dark pickup truck, park the truck, leave the lights on, and walk quickly toward the door of the restaurant. Muse testified that the man did not enter the restaurant, and did not return to the truck. Muse explained that it was dark outside, so she could only identify the man as “black” and of “medium build, if not thin.”

¶ 24. As stated, when determining whether the verdict was against the overwhelming weight of the evidence, we view all evidence in the light most favorable to the jury verdict. See Woodard, 765 So.2d at 576 (¶ 16). We will not overturn the verdict unless we find that the trial court abused its discretion when it denied the motion for a new trial. Id. The State refutes the assertion that George’s and Antwaine’s testimony was coerced, and the State argues that the evidence provides sufficient support for the jury verdict and conviction. The record reflects that the jury heard testimony from Rankin County Investigator Chad Dixon, who testified that he did not tell George and Antwaine that their sentences would or could be vacated if they failed to testify, and that no one in his presence threatened George or Antwaine with resentencing. Flowers cross-examined Antwaine and George, and by doing so, placed their credibility in issue for the jury to determine. The record reflects that the trial court instructed the jury, in jury instruction 6, that “the uncorroborated testimony of an accomplice is to be considered and weighed with great care, caution, and suspicion.” With respect to the sufficiency of the evidence, we acknowledge that the jury verdict was supported by the evidence, including the testimony of the two eyewitnesses to the crime as well as George’s and Antwaine’s testimony, which’ remained consistent with the testimony of the eyewitnesses.

¶ 25. In Washington v. State, 645 So.2d 915, 918 (Miss.1994), the Mississippi Supreme Court reiterated:

It is hornbook criminal law that the state must prove each element of the offense. Due [p]rocess requires that the state prove each element of the offense beyond a reasonable doubt. There must be in the record evidence sufficient to establish each element of the crime.

(Internal citations omitted). Here, the State possessed the burden of proving beyond a reasonable doubt all elements of armed robbery as set forth by section 97-3-79. See Downs v. State, 962 So.2d 1255, 1259 (¶ 15) (Miss.2007).

¶ 26. We recognize that the task of evaluating the credibility of the witnesses is left to the sole province of the jury. Johnson v. State, 642 So.2d 924, 927 (Miss.1994). In determining a witness’s credibility, jurors are allowed latitude in deriving facts from each witness’s assertions, and jurors must determine the value of the conflicting testimony introduced during the trial. See also Burrell v. State, 613 So.2d 1186, 1192 (Miss.1993); Winters v. State, 449 So.2d 766, 771 (Miss.1984); Blackwell v. State, 744 So.2d 359, 364 (¶ 18) (Miss.Ct.App.1999). We find that Flowers’s conviction for armed robbery reflects that the jury deemed George’s and Antwaine’s testimony regarding the facts of the robbery, and the testimony from eyewitnesses McMillan and Muse, to be credible; likewise, the jury failed to And the testimony from alibi witnesses Amos and Wilder credible.

S. Supplemental Issues Raised by Flowers

¶ 27. We now turn to address the arguments raised by Flowers in his supplemental brief. Flowers first asserts that he was denied the right to confront the members of the FBI task force at trial as witnesses against him. The United States Supreme Court has held that “[i]n all criminal prosecutions, state as well as federal, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, to be confronted with the witnesses against him.” Lilly v. Virginia, 527 U.S. 116, 123, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). Flowers mistakenly states that “once the Jackson/FBI task force became involved in the case, they were witnesses against [him].” We find nothing in the record to show that the FBI task force agents who prepared the photo lineup raised any accusatory statements used against Flowers in his trial, nor were the agents witnesses at his trial. The record reveals that Flowers fully cross-examined all of the State’s witnesses who testified against him. Therefore, Flowers suffered no denial of his Sixth and Fourteenth Amendment rights to confront his accuser. See Conley v. State, 790 So.2d 773, 789 (¶ 53) (Miss.2001).

¶ 28. Flowers also submits that the trial court erred in denying his Batson claim. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Flowers claims that he was unfairly tried before an all-white jury. In reviewing an alleged Batson violation, we will not disturb a trial court’s “ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence.” Thorson v. State, 721 So.2d 590, 593 (¶ 4) (Miss.1998). In this case, the record reflects that Flowers failed to challenge or object to the race-neutral reasons provided by the State for exercising its peremptory strikes.

¶ 29. When making a Batson claim, the party who objects to the peremptory strike “must first make a prima facie showing that race was the criteria for the exercise of the peremptory strike.” McFarland v. State, 707 So.2d 166, 171 (¶ 14) (Miss.1997) (citing Batson, 476 U.S. at 96-97,106 S.Ct. 1712). A defendant can establish a prima facie case of discrimination by showing:

(1) [that he] is a member of a cognizable racial group, (2) that the [prosecution] has exercised peremptory challenges to remove from the venire members of the [defendant’s] race, and (3) the facts and circumstances raise an inference that the [prosecution] used [its] peremptory challenge for the purpose of striking minorities.

Wilson v. Strickland, 953 So.2d 306, 312 (¶ 11) (Miss.Ct.App.2007). After a prima facie case has been made, the party exer-rising the challenge has the burden to articulate a race-neutral explanation for excluding the potential juror. McFarland, 707 So.2d at 171 (¶ 14). As long as discriminatory intent is not inherent in the explanation given by the prosecution, “the reason offered will be deemed race neutral.” Randall v. State, 716 So.2d 584, 588 (¶ 16) (Miss.1998) (citation omitted). After a race-neutral explanation has been given, “the trial court must determine whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory [strike],” i.e., that the reason given was a pretext for discrimination. McFarland, 707 So.2d at 171 (¶ 14). The opponent of the strikes must show that the race-neutral explanation given is merely a pretext for racial discrimination. Berry v. State, '802 So.2d 1033, 1042 (¶ 29) (Miss. 2001).

¶ 30. The record reveals that the State used its three strikes to dismiss African-American venire members. At this point, defense counsel lodged a Batson challenge, contending that the strikes were racially motivated. The trial court informed the State: “[I]t seems like to me, when you strike all African[ ]Americans, I think a pretty good argument could be made that there’s been a prima facie case of discrimination.” The State then offered race-neutral reasons for all three strikes. The State explained that juror number fourteen was struck because her son was convicted of burglary in Rankin County during the term of the current district attorney, whose office was prosecuting Flowers. Juror number fifteen had been employed less than a year, and failed to state her street address on her jury questionnaire form. The State also struck juror number nineteen for failing to completely fill out the questionnaire form. The State explained that it struck juror number twenty-eight because he stated that his uncle pled guilty to a possession charge in Rankin County during the term of the current district attorney. The defense offered no response to this explanation. The trial court ultimately found that the State provided sufficient nondiscriminatory reasons for the strikes, and held that the States’s reasons were not a pretext for discrimination.

¶ 31. Our supreme court has offered guidance to the trial courts by approving a list of race-neutral reasons accepted by other jurisdictions. See Lockett v. State, 517 So.2d 1346, 1356-57 (Miss. 1987). This list includes: living in a “high crime” area, body language, demeanor, a prosecutor’s distrust of the juror, inconsistency between oral responses and a juror’s card, criminal history of a juror or relative, a juror’s employment, and a juror’s religious beliefs. Id. We recognize that this list is not exhaustive. Id. at 1352.

¶ 32. Recognizing that “the trial judge is given great deference in Batson matters,” Perry v. State, 949 So.2d 764, 768 (¶ 12) (Miss.Ct.App.2006), we cannot say that the trial court’s decision to accept the State’s race-neutral explanations for the strikes was clearly erroneous or against the overwhelming weight of the evidence.

J. Ineffective Assistance of Counsel

¶ 33. Flowers next alleges that his trial counsel was ineffective, and Flowers provides a sizeable list of motions and objections he felt should have been made by his trial counsel on his behalf. Several of Flowers’s allegations of ineffective assistance have been addressed in our discussion of his prior assignments of error, and we decline to readdress those.

¶ 34. We will address, however, Flowers’s sole new assertion of error, his claim that his trial counsel was ineffective for failing to subpoena the Honorable Ermea J. Russell to testify at trial. Flowers claims that he voluntarily surrendered to authorities at Russell’s law office, and that Russell’s potential testimony regarding Flowers’s voluntary surrender would rebut the testimony of Marshall Odom stating that Flowers was “captured” at Russell’s law office.

¶ 35. To prove ineffective assistance of counsel, Jackson must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that a counsel’s performance falls within the range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 36. This Court has recognized that when a claim of ineffective assistance of counsel is raised on direct appeal, rather than in a motion for post-conviction relief, the claim should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record. Id. at 1102 (¶ 6).

¶ 37. The transcript reflects that Marshall Odom testified that he received a phone call that Flowers was at Russell’s office.. Marshall Odom stated that he had located Flowers earlier that day, but Flowers ran from the law enforcement officers, eluding them. When Marshall Odom received a phone call stating that Flowers was located at Russell’s office, Marshall Odom went to Russell’s office and proceeded to arrest Flowers. Marshall Odom also testified Flowers did not turn himself in to authorities.

¶- 38. Our supreme court has established that “with respect to the overall performance of the attorney,” “counsel’s choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Powell v. State, 806 So.2d 1069, 1077 (¶ 18) (Miss.2001) (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)). Flowers’s counsel’s decision to exclude Russell as a witness at trial must be viewed as falling under the ambit of trial strategy. We find the record fails to “affirmatively show ineffectiveness of constitutional dimensions.” Colenburg, 735 So.2d at 1101 (¶ 5). Accordingly, we deny Flowers’s assignment of error claiming ineffective assistance of counsel without any prejudice to subsequent review on a motion for post-conviction relief.

¶ 39. When we review “whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Herring v. State, 691 So.2d 948, 957 (Miss.1997). Utilizing the applicable standard of review, we find sufficient evidence in the record to support the jury verdict. Finding no abuse of discretion by the trial court, we affirm Flowers’s conviction and sentence.

¶ 40. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF ARMED ROBBERY AND SENTENCE OF TWENTY-SIX YEARS FOR EACH COUNT, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J„ CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . The record states that these two men are not related to each other.

      . Mississippi Code Annotated sections 27-17-415 (Rev.2013) and 97-37-1 (Supp.2013) also refer to a pistol as a "deadly weapon.”

      . See Hicks v. State, 973 So.2d 211, 220 (¶ 28) (Miss.2007) (“Inattentiveness alone has been accepted as a race-neutral explanation for the exercise of a peremptory strike.”).


source: Caselaw Access Project

author: GRIFFIS, P. J.,

license: Public Domain

text:
    Tarvarcus MILLER a/k/a Tarvarcus D. Miller, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01630-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2014.
    Rehearing Denied June 10, 2014.
    Certiorari Denied Aug. 7, 2014.

      Office of State Public Defender by George T. Holmes, Erin Elizabeth Prid-gen, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   GRIFFIS, P. J.,

for the Court:

¶ 1. Tarvarcus Miller appeals his conviction of sale of a controlled substance. In the brief filed by the Office of State Public Defender, Indigent Appeals Division, Miller claims that it was error to allow the testimony of a technical reviewer of the drug-analysis report. Miller also filed a pro se supplemental brief that asserted additional errors. Having reviewed all of the issues submitted, we find no error and affirm.

FACTS

¶ 2. Miller was indicted for the sale of .6 grams of cocaine, which is a Schedule II controlled substance, in violation of Mississippi Code Annotated section 41-29-139(a)(1) (Rev.2013). During his trial, the State presented three witnesses: Lafayette County Metro Narcotics Agent Barry Magee, confidential informant Justin Harris, and Teresia Hickman, a forensic scientist with the Mississippi Crime Lab.

¶ 3. Agent Magee and Harris testified about a controlled purchase of cocaine that occurred on June 16, 2011. Harris met with Agent Magee, and the other narcotics agents, before the transaction. The agents searched Harris’s truck and his person. The agents equipped Harris’s vehicle with a video-surveillance device and placed an audio-recording device on him. Agent Magee gave Harris $60 to purchase cocaine.

¶ 4. Harris then called Miller to arrange a meeting to purchase cocaine. At Miller’s instruction, Harris picked Miller up at an apartment complex and drove him to the Cambridge Station Apartments. Miller then got out of the ear and went into one of the apartments, while Harris waited in the car. After about ten to fifteen minutes, Miller came out of the apartment with .6 grams of cocaine. Miller got back in the car and exchanged the cocaine for Harris’s $60, which was the money supplied to Harris by Agent Magee. Harris then dropped Miller off at his original location, drove back to the agents at the designated post-buy location, and gave the agents the cocaine he purchased from Miller. The video of this transaction was played for the jury.

¶ 5. Hickman testified that the substance submitted by Agent Magee to the crime lab was .6 grams of cocaine. The defense filed a motion in limine to exclude Hickman’s testimony as to the identity of the substance. Miller argued that Hickman was not the analyst who personally performed the original test of the cocaine. Instead, Hickman was merely the technical reviewer of the original test that was performed by forensic analyst Robert Reed. Reed was unavailable to testify because he was no longer employed with the Mississippi Crime Lab and had since moved out of the state. The defense argued that since Hickman was not physically present when Reed performed the analysis of the drug, meaning she did not perform or observe the test, Miller’s Sixth Amendment right to confront the witness against him was violated. The circuit court denied the defense’s motion in limine and allowed Hickman’s testimony.

¶ 6. The jury convicted Miller of sale of a controlled substance pursuant to Mississippi Code Annotated section 41-29-139(a)(l). Miller was sentenced as an habitual offender, under Mississippi Code Annotated section 99-19-81 (Rev.2007), to serve thirty years in the custody of the Mississippi Department of Corrections. The court denied his motion for a judgment notwithstanding the verdict or, alternatively, a new trial. It is from this judgment that Miller now appeals.

ANALYSIS

1. Whether Hickman’s testimony violated Miller’s right to confront a witness against him.

¶ 7. Miller argues that he did not have the proper opportunity to confront the drug analyst that tested the substance. As a result, any information from the forensic report should have been deemed inadmissible. Miller concludes that the admission of Hickman’s testimony violated his Sixth Amendment right to confrontation. Thus, he argues that the evidence was not sufficient to convict him, and the conviction should be reversed and rendered.

¶ 8. The Court reviews issues concerning the admissibility of evidence under an abuse-of-discretion standard. Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (¶ 12) (Miss.1999). Errors in the admission or exclusion of evidence are grounds for reversal if the errors adversely affect a substantial right of a party. Moms v. State, 963 So.2d 1170,1175 (¶ 15) (Miss.Ct.App.2007). This Court reviews constitutional issues de novo. Turner v. State, 945 So.2d 992, 999 (¶21) (Miss.Ct. App.2007).

¶ 9. The evidence was reviewed by Reed, a Mississippi Crime Lab analyst. Reed’s report determined that the substance was .6 grams of cocaine. However, Reed did not testify at trial. Hickman, the technical reviewer of Reed’s report, testified about the substance’s composition, quality, and net weight. According to Miller, Hickman testified that she took Reed’s work and checked the information to make sure that the data was correct from a technical standpoint. She performed an amended review of the report, looking for any possible errors. She verified that the report contained no misspelled words and proper unit measurements. Finally, after checking and verifying that Reed used the standard operating procedure, Hickman signed the report as a technical reviewer.

¶ 10. Miller points out that Hickman was unable to testify that she was present when Reed worked on the analysis of the substance. She did not perform the test that determined the substance was cocaine, and she was not present when Reed performed the test on the substance in question. Hickman was not even able to testify as to the actual date that she signed her part of the technical review. She testified that the date of her review was located in a document that was not presented at trial.

¶ 11. The State counters that Hickman described her technical review of Reed’s analysis as follows:

I take his work and I check each piece of data technically, which means I’m checking the color pattern, the colors that he found, if there is any variation in the way I would have done it, which is the standard operation procedure that the crime lab requires.
I then check the incrementation because he performed two examinations. I take the spectra. I check to make sure the quality match is what it should be, and I check to verify the substance is what it should be.
At that point I do what is called an amended review. That’s when you look for errors. Then I verify he wrote it up correctly, he spelled words correctly, and he used the proper gram or milligrams in the analysis.
When all of this is checked, and only when all of this is verified that it was done by standard operation procedure, I sign it for the technical review and initial to verify that I amended it also.

Hickman was then asked for her own expert opinion concerning the substance, based on her review and work in this case. She opined that the substance was .6 grams of cocaine. The State claims that Hickman’s testimony did not violate Miller’s right to confrontation.

¶ 12. The Mississippi Supreme Court has previously addressed this very issue. The court held “that a supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was ‘actively involved in the production of the report and had intimate knowledge of analyses even though she did not perform the tests firsthand.’ ” Grim v. State, 102 So.3d 1073, 1081 (¶ 22) (Miss. 2012) (citation omitted); see also Jenkins v. State, 102 So.3d 1063, 1067-68 (¶13) (Miss.2012) (citation omitted).

¶ 13. Grim and Jenkins are dispositive. Hence, we find that Hickman’s testimony did not -violate Miller’s Sixth Amendment right to confrontation. We find no merit to this issue.

2. Issues Raised in Miller’s Supplemental Brief

A.Sufficiency of the Evidence

¶ 14. Miller argues that the evidence was insufficient to sustain his conviction for sale of a controlled substance. Specifically, he cites alleged discrepancies between Harris’s testimony and the video of the controlled buy. The jury, however, was presented with Harris’s testimony of the controlled buy, which was corroborated by the video of the transaction. We find that such evidence is sufficient to uphold the conviction of sale of a controlled substance, as even the uncorroborated testimony of a single witness is sufficient to support a conviction. Whitlock v. State, 47 So.3d 668, 676 (¶22) (Miss.2010) (citation omitted).

B.Overwhelming Weight of the Evidence

¶ 15. Miller also argues that the jury verdict was against the overwhelming weight of the evidence, as the evidence preponderated in favor of his innocence. However, Miller presents no legal argument, citation to legal authority, or evidence in the record that would substantiate his claim. We find this issue to be procedurally barred. It is well-settled law that “if an appellant fails to support her allegation of error with argument or authority, this Court need not consider the issue.” Jordan v. State, 995 So.2d 94, 103 (¶ 14) (Miss.2008) (citations omitted). Miller’s failure to cite any legal authority or evidence in the record to support his assignment of error constitutes a waiver of this issue.

C.Denial of Jury Instruction D-8 (the “Snitch” Instruction)

¶ 16. Miller offered jury instruction D-8, which was a cautionary instruction that Harris’s testimony should be taken with suspicion and distrust, as he was a “snitch” who admitted that he received favorable treatment for his testimony. See generally Moore v. State, 787 So.2d 1282, 1286 (¶ 14) (Miss.2001). Miller argues that the trial court erred when it denied this instruction.

¶ 17. We find, however, that the trial court’s failure to give a cautionary instruction was not an abuse of discretion. The supreme court has held that a cautionary instruction pertaining to the testimony of a confidential informant is not required where the details of the informant’s pay arrangement with law enforcement are disclosed to the jury, and where the informant is subject to cross-examination. Webber v. State, 108 So.3d 930, 931-32 (¶ 7) (Miss.2013) (citation omitted). While Harris was not paid for his testimony, the jury was made aware of Harris’s cooperation with authorities in exchange for “assistance from the D.A. on his charge.” Harris was also subject to cross-examination. Therefore, the trial court did not abuse its discretion when it failed to give a cautionary instruction regarding Harris’s testimony.

D. Denial of a Continuance Due to Miller’s Voluntary Intoxication

¶ 18. Miller argues that he was entitled to a continuance because he was under the influence of marijuana at trial. Once again, Miller cites no legal authority and presents no legal argument to support this claim. Therefore, we decline to address this issue, as it is also procedurally barred. Jordan, 995 So.2d at 103 (¶ 14) (citations omitted).

E. Whether Jury Instructions Constructively Amended the Indictment

¶ 19. Finally, Miller argues that the jury instructions on the elements of the crime of sale of a controlled substance were different from the indictment. He argues that this constitutes plain error. However, the elements instruction, which called for the jury to find Miller guilty of sale of a controlled substance if the jury found beyond a reasonable doubt that Miller “sold, transferred, distributed, or delivered” cocaine to Harris, mirrored both the controlling statute and the indictment, which alleged that Miller did “sell, transfer, distribute or deliver! ] ... cocaine .... ” Therefore, we find Miller’s claim that the elements instruction constructively amended the indictment is without merit.

¶ 20. Finding no merit to the issues raised by Miller, we affirm the conviction.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCE, AS A HABITUAL OFFENDER, OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

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


author: FAIR, J.,

text:
    Lonnie MASSEY a/k/a Lonnie Gene Massey a/k/a Kenneth Ball, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00478-COA.
    Court of Appeals of Mississippi.
    April 8, 2014.
    Rehearing Denied Aug. 12, 2014.

      Lonnie Massey, appellant, pro se.
    Office of the Attorney General by Brad Alan Smith, attorney for appellee.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. This appeal follows the Madison County Circuit Court’s dismissal of Lonnie Massey’s “Motion ... to Vacate Sentence,” which the court took as a second post-conviction relief (PCR) motion and found barred as a successive writ. We agree and affirm.

FACTS

¶ 2. Massey faced criminal charges stemming from two separate incidents in 2009. On December 6, 2010, he pled guilty to three offenses — two counts of possession of a weapon by a convicted felon and one count of aggravated assault. Massey received the sentences the prosecutor recommended pursuant to a plea agreement: ten years’ imprisonment on each possession charge, to be served concurrently to each other, and twenty years on the aggravated assault, with all but one day suspended, to be served consecutively to the other sentences.

¶ 3. Massey has previously been before this Court on an appeal from the dismissal of his first PCR motion, which challenged the same convictions and sentences. We affirmed. Massey v. State, 131 So.3d 1213 (Miss.Ct.App.2013).

STANDARD OF REVIEW

¶ 4. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2018). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120,1122 (¶ 9) (Miss.1999).

¶ 5. When reviewing the denial of a PCR motion, an appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

¶ 6. Massey’s complaints center around the conduct of his attorney. Massey was represented for several months by court-appointed attorney Lisa Ross, but on December 6, 2010 — the day before Massey’s trial was scheduled to begin — Massey urged the circuit court to replace her. His new attorney, Bentley Connor, negotiated a plea agreement that same day. In his first PCR motion, Massey contended his guilty plea was involuntary because Con-nor had coerced him into accepting it and Connor had failed to investigate Massey’s defenses. Massey’s claims were found to be contradicted by his own sworn statements and without merit. See Massey, 131 So.3d at 1216-18 (¶¶ 11-24). We concluded:

Massey was fully informed of the State’s evidence and Sessums’s potential testimony when he pled guilty. Massey swore in court, and in his written plea, that he agreed with the State’s allegations against him, he was satisfied with his counsel, and he had no complaints with either attorney’s advice. Massey’s second counsel effectively negotiated a deal with the State that eliminated one charge and reduced his prospective prison sentence by nearly fifty years.

Id. at 1218 (¶ 23).

¶ 7. Massey’s second PCR motion, the one that is the subject of this appeal, largely retreads the same ground. He contends his attorney and the circuit clerk engaged in a “conspiracy” to backdate Massey’s petition to enter a guilty plea. The petition is dated and notarized November 6, 2013, which Massey claims was intended to cover up his attorney’s failure to investigate his case.

¶ 8. We note that the same claim was made in Massey’s first PCR appeal. This Court found it procedurally barred, and, in the alternative, without merit:

Massey also contends an officer of the court falsified court documents by altering the date of his plea bargain. He lists this issue as number four in his brief. However, Massey made no mention of such alteration in his motion. We have consistently held, “If a prisoner fails to raise all of his claims in his original petition for post-conviction relief, those claims will be procedurally barred if the petitioner seeks to bring them for the first time on appeal to this Court.” Willis v. State, 17 So.3d 1162, 1166 (¶ 15) (Miss.Ct.App.2009) (citing Rivers v. State, 807 So.2d 1280, 1281 (¶ 5) (Miss.Ct.App.2002)). Because Massey failed to raise this issue before the trial court, he cannot argue it here. Therefore, this issue is procedurally barred.

Massey, 131 So.3d at 1219 (¶ 29).

¶ 9. A second PCR motion is ordinarily barred as a successive writ. See Miss.Code Ann. § 99-89-23(6) (Supp.2013). There are certain exceptions outlined in the statute, such as intervening decisions of the Supreme Court of Mississippi or the United States, newly discovered evidence, claims that the sentence has expired or probation or parole unlawfully revoked, and certain DNA-related claims. Massey bears the burden of showing one of these exceptions applies. Jackson v. State, 860 So.2d 653, 661 (¶ 16) (Miss.2003). He has not even attempted to do so.

¶ 10. Moreover, this specific claim could have been asserted in the first PCR motion, and is therefore barred by ordinary principles of res judicata, which bar “all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action.” Estate of Anderson v. Deposit Guar. Nat’l Bank, 674 So.2d 1254, 1256 (Miss.1996). Furthermore, the claim was actually decided on the merits, in the alternative, in our prior opinion: “Despite the procedural bar, this claim does not meet the requirements of newly discovered evidence because it is not material to the charges and would not have changed the outcome of a trial. At best, it would be useful as impeachment evidence. As such, we find no merit to this issue.” Massey, 131 So.3d at 1219(¶29).

¶ 11. We find the claims Massey has raised in this second PCR motion barred as a successive writ, barred by res judica-ta, and, in the alternative, without merit for the reasons articulated in our prior opinion.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND JAMES, JJ.,

CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.


author: MAXWELL, J.,

text:
    Martez ALLEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00886-COA.
    Court of Appeals of Mississippi.
    Aug. 5, 2014.

      Martez Allen, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Martez Allen filed a post-conviction relief (PCR) motion attacking the revocation of his suspended sentence. The circuit judge summarily dismissed the motion. On appeal, Allen places much emphasis on his belief that he was originally sentenced to a term of post-release supervision. But he was really serving a straight suspended sentence for burglary, which the judge revoked after Allen pled guilty to a new crime — selling marijuana. But no matter the label of the original noncustodial portion of Allen’s sentence, the fact is, he pled guilty to a new drug charge, which is a proper ground for revocation of either type of noncustodial sentence. We thus affirm.

Facts and Procedural History

¶ 2. On September 5, 2001, Allen pled guilty to burglary of a dwelling. He was “sentenced to serve fifteen years” in Mississippi Department of Corrections (MDOC) custody, “with ten years suspended pending [Allen’s] future good behavior.” After five years in prison, Allen was discharged on March 10, 2005.

¶ 3. Upon release from Mississippi custody, Allen began serving a prison sentence in Tennessee. He was later discharged from his Tennessee sentence in 2010 and returned to Mississippi, where he remained under the “good-behavior provision” of the noncustodial suspended portion of his burglary sentence.

¶ 4. On April 12, 2012, Allen was indicted for selling marijuana. As a result, the State filed what it wrongly titled “petition to revoke post-release supervision.” While Allen seizes on this, the petition actually aimed at revoking Allen’s “suspended sentence.” Indeed, the body of the petition notified Allen that the State intended to revoke his “suspended sentence” for burglary — his only current Mississippi sentence. The State asked that Allen be “ordered] ... to serve the entire amount of time imposed in the original sentence in the [MDOC].” And an August 17, 2012 summons directed Allen to appear on August 30, 2012, to answer the “petition to revoke suspended sentence.”

¶ 5. Allen pled guilty to selling marijuana. And at the August 30 hearing, he admitted violating the terms of his suspended sentence by committing this new crime. Having admitted a violation, the circuit court entered an order revoking “post-release supervision/suspended sentence.” And the judge ordered Allen to serve all ten years of his previously suspended burglary sentence.

¶ 6. On April 3, 2013, Allen filed a PCR motion challenging the revocation, which the circuit court summarily dismissed. Allen appeals.

Discussion

¶ 7. “We review the dismissal of a PCR motion under an abuse-of-discretion standard.” Williams v. State, 110 So.3d 840, 842 (¶ 11) (Miss.Ct.App.2013). Reversal is proper only “if the circuit court’s decision was clearly erroneous.” Id. “We review questions of law de novo.” Id.

I. No Ex Post Facto Law

¶ 8. Allen suggests that because the statutory creature of post-release supervision did not exist when he was sentenced in 2001, his later revocation violated the prohibition against ex post facto laws. We find Allen is not only wrong about the ex post facto claim, but again, he is also mistaken that he was on post-release supervision.

¶ 9. “An ex post facto law is one which creates a new offense or changes the punishment, to the detriment of the accused, after the commission of a crime.” Gray v. State, 13 So.3d 283, 286 (¶ 7) (Miss.Ct.App.2009) (quoting Bell v. State, 726 So.2d 93, 94 (¶ 7) (Miss.1998)). Article I, Section 10, of the United States Constitution forbids the states from passing such laws. Id. (citing Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504,115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)).

¶ 10. While we certainly acknowledge the prohibition against ex post facto laws, Mississippi’s post-release-supervision statute had already existed for almost five years before Allen pled guilty and was sentenced for burglary. The statute became effective after June 30, 1995, and Allen was sentenced on September 5, 2001. See Miss.Code Ann. § 47-7-34(1) (Rev. 2011) (“When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court ... may impose a term of post-release supervision.”).

¶ 11. But the date of this statute’s passage is immaterial, since Allen was serving a suspended sentence, not a post-release-supervision sentence. And there is no doubt the circuit court was authorized to give Allen a suspended sentence. See Miss.Code Ann. § 47-7-33 (Rev. 2011). See also Johnson v. State, 925 So.2d 86, 103 (¶ 32) (Miss.2006) (explaining circuit judges “have the power to suspend, in whole or in part, a convicted felon’s sentence under [Mississippi Code Annotated section 47-7-33]”). This statute has existed since 1956 and was most recently amended in 2000. See 2000 Miss. Laws, Ch. 622, § 2 (effective July 1, 2000). So Allen’s 2001 sentence and later revocation did not violate the prohibition against ex post facto laws.

II. No Expired Sentence

¶ 12. Allen next argues the suspended portion of his sentence was illegally revoked because it expired on September 1, 2006. But we find his time calculations are again askew. Under the September 5, 2001 sentencing order, Allen had to serve “fifteen years” in MDOC custody, “with ten years suspended pending [Allen’s] future good behavior.”

¶ 13. This case involves a split sentence. Allen had to serve five of the fifteen years in MDOC custody, which he did. He was released from MDOC custody on March 10, 2005. After serving these five years, Allen’s ten-year suspended sentence would have ordinarily started. But there is a slight twist here since Allen had to serve a Tennessee prison sentence immediately after being released from MDOC custody.

¶ 14. During the revocation hearing, the circuit judge explained to Allen that his “suspended time in any circumstance would not have been running until such time as he was in fact released” from prison in Tennessee. The judge was correct that when a defendant is serving time in another state, his or her Mississippi sentence is tolled. See Ellis v. State, 748 So.2d 130,133 (¶ 8) (Miss.1999).

¶ 15. So Allen’s ten-year suspended Mississippi burglary sentence only began running upon his release from Tennessee custody in 2010. Thus, Allen’s sentence had not expired when the circuit court revoked his suspended sentence in 2012.

III. Prison Time Does Not Run Concurrently with Suspended Time

¶ 16. Allen also appears to argue his noncustodial ten-year suspended portion of his fifteen-year sentence ran at the same time as the initial five-year custodial part. This is not so. “A suspended sentence is one that is given formally but not actually served. The defendant is not required, at the time the sentence is imposed, to actually serve the sentence. This suspension is contingent upon the good behavior of the defendant.” Johnson, 925 So.2d at 93 (¶ 12) (quoting Carter v. State, 754 So.2d 1207, 1210-11 (Miss. 2000) (Mills, J., dissenting)). Because these ten years were “suspended” pending good behavior, they did not run and were not revocable until after Allen served his five-year custodial sentence.

¶ 17. We affirm.

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

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

      . This sentence was ordered to run concurrently with his sentences for two other burglaries, and he was given credit for 120 days already served while awaiting trial.

      . The discharge certificate indicated MDOC was remanding Allen "to the supervision of the Mississippi Probation and Parole Board to complete the suspended portion of this sentence under the jurisdiction of the [circuit court].” Technically, this was incorrect on MDOC’s part since the circuit judge had not ordered a supervised probationary sentence. So MDOC should not have remanded Allen to the supervision of the Mississippi Probation Board. But this glitch is immaterial at this procedural posture in Allen's case, because he committed a new crime during the suspended portion of his sentence.

      . Allen argues that he was denied due process because he was not given notice of the revocation hearing. But the summons in the record shows Allen was served by the sheriff on August 17, 2012. So Allen was not denied due process for lack of notice.

      . The court also imposed three years of post-release supervision for his drug-sale conviction, to run consecutively to the ten years of revoked time. And he was given credit for twenty-one days served while awaiting a hearing.

      . At the sentencing hearing, the circuit court explained that the sentence was "fifteen years in MDOC, ten suspended, five to serve.”


text:
    Denorris HOWELL a/k/a Denorris Derrell Howell, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01814-COA.
    Court of Appeals of Mississippi.
    Aug. 5, 2014.

      Kent E. Smith, Holly Springs, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. After being indicted for murder, a jury found Denorris Howell guilty of the manslaughter of LaKeith Jones. Howell now appeals his conviction and raises the following issues: (1) whether there was sufficient evidence to support his manslaughter conviction; (2) whether the verdict was against the overwhelming weight of the evidence; and (3) whether the circuit court erred by denying his request to admit into evidence photographs of his family.

¶ 2. Upon review, we find the evidence in the record legally sufficient to support Howell’s conviction and that his guilty verdict is not against the overwhelming weight of the evidence. In addition, we find no abuse of discretion by the circuit court’s exclusion of Howell’s family photographs. We therefore affirm the circuit court’s ruling and Howell’s conviction.

FACTS

¶ 3. On July 27, 2010, Howell and his friend, Cal Curry, were at Howell’s residence when a car pulled into the driveway. Inside the vehicle were Jones; his younger brother, Jeremy Jones; his nephew, Dean Bridgeforth; and a friend, Terrance Co-wan. Jones exited the car and walked toward the garage to find Howell. As the State’s evidence showed, Jones received a cell-phone call from Howell earlier that morning, which lasted a little over one minute. Following the phone call, Jones began asking family members for a ride to the area where Howell lived. As testimony showed, Howell had recently sold a car to Jones, and Jones still owed Howell money for the car. According to testimony from the State’s witnesses, Jones planned to pay the remaining balance he owed Howell for the car and to obtain a set of car keys from Howell. Although trial testimony varied as to what occurred in Howell’s garage, the record reflects that, at some point after Jones’s arrival, the conversation between Jones and Howell became heated and confrontational.

¶ 4. According to Howell’s brief and Curry’s trial testimony, Jones began cursing and yelling at Howell, could not remain still, and was acting paranoid and out of control. Howell asserts in his brief that Jones attempted to grab a baseball bat lying inside the garage, and in response, Howell drew his gun and shot Jones five times. Although Curry was standing inside the garage at the time of the shooting, he testified that he failed to witness the actual shooting because he was focused on the car containing Jeremy, Bridgeforth, and Cowan.

¶ 5. According to the testimony provided by Jeremy, Cowan, and Bridgeforth, Jones stood in Howell’s garage several minutes before Howell exited his house and joined Jones in the garage. Jeremy and Bridgeforth testified that Jones spoke to Curry as he waited for Howell. Jeremy, Cowan, and Bridgeforth all testified that Jones possessed no weapon when he entered the garage and that they did not see Jones consume any drugs or alcohol that morning prior to driving to Howell’s home. All three men also testified that Jones seemed happy and in a good mood on the car ride to Howell’s home.

¶ 6. Jeremy and Cowan further testified that, when Howell finally entered the garage from his house, he held a gun in his hand. Bridgeforth, who initially had his back to the garage, testified that he also saw a gun in Howell’s hand when he looked toward the garage. According to Jeremy’s and Cowan’s testimony, Howell entered the garage and stood between Jones and the exit, essentially trapping Jones inside the garage. Both Jeremy and Cowan testified that Howell and Jones began to argue, Howell pushed Jones, and then Howell shot Jones. As they watched events unfold inside the garage, the three men inside the car began to back out of Howell’s driveway toward the street. They testified that, when they witnessed Howell shoot Jones, they fled the scene out of fear for their own lives.

¶ 7. At trial, Jeremy and Cowan both testified that they saw Howell’s wife, Angela, come outside. Following the shooting, Angela made a 911 call at 1:07 p.m., stating that her husband had shot a man. The telephone call got disconnected, but Angela called back at 1:12 p.m. Howell also made a 911 call, which occurred a few minutes later at 1:15 p.m. During the emergency call, Howell told the 911 dispatcher that he shot Jones in self-defense because he thought Jones was about to pull out a pistol. Howell also told the dispatcher that Jones had previously robbed him.

¶ 8. James Warren, an investigator for the Marshall County Sheriffs Department, was the first law enforcement officer to respond to the emergency calls. Investigator Warren testified that he arrived at Howell’s residence at 1:22 p.m. He further testified that Howell, without any prompting, stated that he had not wanted to shoot Jones but that Jones was robbing him and had robbed him four times in the past. Law enforcement found no weapon in Jones’s possession when they conducted their investigation. The medical examiner who performed Jones’s autopsy testified that Jones sustained a total of five gunshots and died as a result of his injuries. The medical examiner further testified that Jones had both cocaine and marijuana in his system when he died.

¶ 9. After hearing the evidence and being instructed by the circuit court judge, the jury deliberated and found Howell not guilty of Jones’s murder. However, the jury found Howell guilty of manslaughter pursuant to section 9T-3-35. The circuit court judge sentenced Howell to twenty years in the custody of the Mississippi Department of Corrections, with three years suspended, seventeen years to serve, and three years of post-release supervision. Following his manslaughter conviction, Howell filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court judge denied. Aggrieved by his conviction and the circuit court’s ruling, Howell appeals to this Court.

DISCUSSION

I. Whether there was sufficient evidence to support Howell’s manslaughter conviction.

¶ 10. Howell argues that the evidence presented at trial was insufficient to support his conviction as a matter of law because the jury’s verdict was against the overwhelming weight of the evidence. For the sake of clarity, we have separated Howell’s argument into two issues— whether there was sufficient evidence to support his conviction and whether the jury’s verdict was against the overwhelming weight of the evidence. We address each argument separately.

¶ 11. As this Court has acknowledged in previous caselaw, when reviewing the denial of a motion for a JNOV, we apply the following standard of review: [W]e look to the sufficiency of the evidence, and it is viewed and tested in a light most favorable to the State. When reviewing a denial of a JNOV[,] the prosecution is given the benefit of all favorable inferences that may be reasonably drawn from the evidence, and all credible evidence consistent with the defendant’s guilt must be accepted as true. This Court may only reverse a denial of [a] JNOV when[,] with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Price v. State, 892 So.2d 294, 297 (¶ 12) (Miss.Ct.App.2004) (internal citations and quotation marks omitted).

¶ 12. After hearing the evidence presented at trial, the jury found Howell guilty of manslaughter. As our caselaw recognizes, Howell was not required to prove that he acted in self-defense. See Heidel v. State, 587 So.2d 835, 843 (Miss. 1991). Instead, the State bore the burden of proving each element of Howell’s charged offense, and if the evidence resulted in a reasonable doubt regarding Howell’s guilt, then the jury was instructed to acquit Howell. Id. To meet its burden of proving each element of Howell’s charged offense, the State was required to prove beyond a reasonable doubt that Howell failed to act in necessary self-defense when he shot Jones. See Hammond v. State,

119 So.3d 1074, 1078 (¶ 15) (Miss.Ct.App. 2013).

¶ 13. As set forth in Mississippi Code Annotated section 97-3-15(l)(e)-(f) (Rev. 2006), the killing of a human being is justifiable homicide under the following circumstances:

When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling, ... or in the immediate premises thereof in which such person shall be;
When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished^]

¶ 14. In addition to asserting a theory of self-defense and justifiable homicide, Howell argues that the castle doctrine exonerates his conduct. The castle doctrine, codified as Mississippi Code Annotated section 97 — 3—15(3)—(4) (Rev.2006), states in pertinent part:

A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, ... if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, ... and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, ... or if the person who uses defensive force is engaged in unlawful activity ...; A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (l)(e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person’s failure to retreat as evidence that the person’s use of force was unnecessary, excessive!,] or unreasonable.

In other words, as summarized by our recent caselaw, the castle doctrine “creates a presumption of fear and abridges a duty to retreat in certain prescribed circumstances.” Neioell v. State, 49 So.3d 66, 74 (¶ 22) (Miss.2010).

¶ 15. In addressing Howell’s argument that the castle doctrine provides him with a defense for shooting Jones, we first look to our ruling in Westbrook v. State, 29 So.3d 828 (Miss.Ct.App.2009). The defendant in Westbrook worked as a bouncer at a bar, and after escorting a patron outside, the defendant later learned that the patron was still on the premises. Id. at 831 (¶¶ 2-4). The defendant grabbed a baseball bat, went outside and pulled the patron from his car, and then proceeded to hit the patron in the head three times with the bat. Id.

¶ 16. On appeal, the defendant in West-brook argued that he had a right to defend his employer’s property and that his actions were justifiable under the castle doctrine. Id. at 833 (¶ 13). However, this Court found no evidence that the victim was “in the process of unlawfully and forcibly entering, or had unlawfully and forcibly” entered the bar when the defendant attacked him. Id. at (¶ 15). In addition, we found no evidence showing “that [the victim] was going [to] commit an assault, offer violence to an occupant of [the bar], or commit some other crime on the premises while he was in the parking lot....” Id.

¶ 17. In finding that the defendant’s claims in Westbrook lacked merit, this Court emphasized language from Lester v. State, 862 So.2d 582 (Miss.Ct.App.2004), which predated the codification of the castle doctrine. The Westbrook court quoted the following language from Lester:

The law regarding defense of habitation is not such that a mere trespasser, having been once warned to vacate the premises, may thereafter be killed by the premises’ owner with impunity if he fails to leave the property soon enough to satisfy the desires of the owner. The law contemplates, rather, that deadly force may only be employed to repel a trespasser who demonstrates the apparent purpose of assaulting or offering violence to an occupant or committing some other crime on the premises.

Westbrook, 29 So.3d at 833 (¶ 14) (quoting Lester, 862 So.2d at 585 (¶ 11)).

¶ 18. Similarly to the language quoted from Lester, the castle doctrine, as now codified, requires an unlawful and forcible entry or trespass before the presumption arises that allows the use of deadly defensive force. See Miss.Code Ann. § 97-3-15(3). Turning to the present case, we find that, due to a lack of sufficient evidentiary basis, the circuit court properly determined the castle doctrine to be inapplicable. As a review of the record reflects, the evidence fails to show that Jones unlawfully and forcibly entered Howell’s home or that Jones attempted to assault or commit violence upon Howell.

¶ 19. Instead, the record reflects that Howell had previously sold a car to Jones and that, at Howell’s invitation, Jones went to Howell’s home to pay the remainder of the money he owed. The record further reflects that, when Jones arrived at Howell’s residence, Jones stood in the open garage, waiting for Howell and speaking with Curry. Jeremy, Cowan, and Bridge-forth all testified that Jones possessed no weapon the morning of his death. Jeremy and Cowan both stated, however, that Howell had a gun in his hand from the moment he joined Jones and Curry in the garage.

¶ 20. Jeremy and Cowan further testified that Howell, not Jones, constituted the aggressor in the fight. Both men testified at trial that Howell stood at the outer edge of the garage with the gun in his hand, blocking the unarmed Jones inside the garage. They also testified that Howell yelled at Jones, pushed him, and then shot him. As the autopsy later revealed, Howell shot the unarmed Jones five times. Based upon our review of the record and applicable caselaw, this Court finds no error in the circuit court’s determination that the castle doctrine was inapplicable to Jones’s shooting.

¶ 21. As our precedent reflects, the determination of whether Howell shot Jones in the heat of passion was properly submitted to the jury since the State presented evidence to support the jury’s consideration of the lesser-included offense of manslaughter. As the record reflects, after considering the testimony and evidence presented, the jury found Howell not guilty of murder but guilty of manslaughter. As previously acknowledged, “all credible evidence consistent with the defendant’s guilt must be accepted as true.” Price, 892 So.2d at 297 (¶ 12) (citation omitted). The evidence regarding Howell’s aggressive behavior toward Jones provided a sufficient evidentiary basis for the jury to conclude that Howell acted in the heat of passion. In addition, the record fails to reflect that Jones was trespassing or committing any assault or other crime at the time of the shooting. See West-brook, 29 So.3d at 833 (¶ 15).

¶ 22. In finding sufficient evidence to support Howell’s manslaughter conviction, we acknowledge that the circuit court gave jury instructions that encompassed the law on self-defense, defense of others, and the castle doctrine. We also acknowledge that the circuit court gave jury instructions that required the State to prove as an element of murder and manslaughter that Howell failed to act in self-defense, defense of others, or defense of his home. Despite the lack of evidence in the record that Jones committed any unlawful and forcible entry into Howell’s residence, the circuit court judge gave jury instructions that provided the law applicable to justifiable homicide and the castle doctrine. After receiving instructions on the applicable law, the jury deliberated and found Howell guilty of manslaughter beyond a reasonable doubt. In reaching this determination, the jury rejected Howell’s defense theories, including the castle doctrine.

¶ 23. Viewing the evidence in the light most favorable to the State, and giving the State the benefit of all favorable inferences that may be reasonably drawn from the evidence, we find that the record reflects that sufficient evidence was presented for a competent jury to find beyond a reasonable doubt that Howell was guilty of manslaughter and failed to act in reasonable self-defense, defense of others, or defense of his home. See Pnce, 892 So.2d at 297 (¶ 12). Therefore, we find no error in the circuit court judge’s denial of Howell’s motion for a JNOV. Accordingly, Howell’s argument that the evidence was legally insufficient to support his conviction lacks merit.

II. Whether the verdict was against the overwhelming weight of the evidence.

¶ 24. Howell also contends that the jury’s verdict finding him guilty of manslaughter was against the overwhelming weight of the evidence. When reviewing the denial of a motion for a new trial and a defendant’s argument that the verdict was against the overwhelming weight of the evidence, this Court weighs the evidence in the record in the light most favorable to the verdict. McCallum v. State, 996 So.2d 189, 194-95 (¶ 23) (Miss. Ct.App.2008). We accept as true all evidence in favor of the State, and we reverse only where the circuit court abused its discretion. Price, 892 So.2d at 297 (¶ 11). “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction _ an unconscionable injustice.” McCallum, 996 So.2d at 194 (¶ 23) (citation omitted).

¶25. When considering a defendant’s claim that he acted in justifiable self-defense, the supreme court has stated that the issue “presents a question of the weight and credibility of the evidence, rather than sufficiency, and is to be determined by [the] jury.” Jones v. State, 39 So.3d 860, 865 (¶ 28) (Miss.2010) (citation omitted). Furthermore, “any factual disputes are properly resolved by the jury and do not mandate a new trial.” Id. (citation omitted)

¶ 26. As previously addressed, after being instructed on the law, including Howell’s theories of the case, and after considering all the testimony and evidence presented at trial, the jury resolved the factual disputes in favor of the State and found Howell guilty of manslaughter. Although Howell claims that he acted in self-defense, defense of others, and defense of his home, the State presented contradictory evidence to show that Howell invited Jones to his home; that Jones possessed no weapon upon or after his arrival; and that Howell held a gun in his hand from the moment he stepped into the garage with the unarmed Jones. The State also presented evidence showing that Howell, not Jones, acted as the aggressor in the altercation and that Howell blocked Jones’s exit from the garage.

¶ 27. Weighing the evidence presented at trial in the light most favorable to the verdict, and accepting as true all evidence in favor of the State, we cannot find that the jury’s verdict was so against the weight of the evidence that it constituted an unconscionable injustice. See McCal-lum, 996 So.2d at 194 (¶ 23). We therefore find no abuse of discretion in the circuit court’s decision to deny Howell’s motion for a new trial. See Pnce, 892 So.2d at 297 (¶ 11). Howell’s assertion that the verdict was against the overwhelming weight of the evidence lacks merit.

III. Whether the circuit court erred by denying Howell’s request to admit into evidence photographs of his family.

¶ 28. In his final assignment of error, Howell contends that the circuit court judge erred by excluding photographs of his wife and children. Mississippi caselaw is well settled on the issue of a circuit court’s decision to admit or exclude photographs. Davis v. State, 660 So.2d 1228, 1259 (Miss.1995). Our precedent provides the following:

[Ajdmission of photographs into evidence rests within the sound discretion of the trial court.
Additionally, the trial court, as well as the appellate court on review, must look at Mississippi Rule of Evidence 403[,] which states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” [These are] the proper criteria for the trial court to consider in making its decision whether to admit photographs or not.

Id. (internal citations omitted).

¶ 29. At trial, Howell attempted to admit into evidence several photographs of his family. However, the State objected to the admission of the photographs, arguing that Howell was entitled to assert his theories of the case without demonstrating the appearance of those within his home at the time of the shooting. The State argued that no contradictory evidence had been presented regarding the presence of Howell’s wife and children in the home at the time of the shooting and that, other than playing to the jury’s sympathy, no relevant purpose existed for the admission of the photographs. In response, Howell contended that the photographs were relevant because they helped the jury understand his state of mind at the time of the shooting. After hearing each party’s argument on the issue, the circuit court judge ruled to exclude the photographs.

¶ 30. “[I]n considering the competency, relevancy[,] and materiality of photographs, it is within the sound discretion of the trial judge to determine whether or not the photographs have a legitimate evidentiary purpose.” Voyles v. State, 362 So.2d 1236, 1241 (Miss.1978) (citations omitted). The record reflects no abuse of discretion by the circuit court judge in evaluating the probative value and prejudicial effect of the photographs before excluding them. Applying Rule 403, the circuit court judge found that the photographs’ prejudicial effect outweighed their probative value since they tended to invoke sympathy from the jury without any relevant or probative evidentiary purpose. We therefore find that this argument lacks merit.

¶ 31. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THREE YEARS SUSPENDED, SEVENTEEN YEARS TO SERVE, AND THREE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . In a single-count indictment, Howell was charged with murder pursuant to Mississippi Code Annotated section 97 — 3—19(l)(a) (Rev. 2006).

      . See Miss.Code Ann. § 97-3-35 (Rev. 2006).

      . See Price v. State, 892 So.2d 294, 297 (¶¶ 11-12) (Miss.Ct.App.2004) (discussing the standard of review for claims challenging the weight and sufficiency of the evidence).

      . See Davis v. State, 660 So.2d 1228, 1259 (Miss. 1995) (acknowledging that this Court reviews the circuit court's exclusion of photographs for abuse of discretion).

      . The record reflects that Howell requested and was given a jury instruction on self-defense.

      . Section 97-3-35 defines manslaughter as "[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense[.]”

      . See Miss.Code Ann. § 97 — 3—15(l)(e) (Rev. 2006) (discussing justifiable homicide); New-ell v. State, 49 So.3d 66, 74 (¶ 22) (Miss.2010) (discussing the castle doctrine); Banton v. State, 53 So.3d 796, 798-99 (¶¶ 10-11) (Miss. Ct.App.2010) (discussing and applying die casde doctrine).

      . See Green v. State, 631 So.2d 167, 174 (Miss. 1994) (finding that the question of whether the defendant fired a gun in the heat of passion was a proper issue for the jury to resolve); Schankin v. State, 910 So.2d 1113, 1117 (¶ 8) (Miss.Ct.App.2005) ("The determination of whether Schankin committed the crime while acting in the heat of passion was properly submitted to the jury for resolution. ...”).

      . See Green, 631 So.2d at 174; Schankin, 910 So.2d at 1117 (¶ 8).

      .During the conference on jury instructions, the State objected to Howell’s request for an instruction that included the castle doctrine’s presumption allowing the use of defensive force. The State objected on the ground that the record contained no evidence of unlawful and forcible entry of Howell’s dwelling by Jones. In response to the State’s objection, the defense argued that the record contained evidence that Howell asked Jones to leave. However, as previously discussed, the record also contained testimony from the State's witnesses that Howell blocked Jones’s exit from the garage. The State therefore asserted that Jones’s failure to comply with the request to leave may have been sufficient for a misdemeanor trespass but that Howell’s request failed to satisfy the castle doctrine’s requirement of forcible and unlawful entry.
      The defense also contended that the evidence indicated that Jones appeared to be reaching for a baseball bat, but the State responded that such evidence failed to constitute the forcible “entry” necessary to invoke the castle doctrine. The State further argued that Howell's testimony that Jones reached for something raised the defenses of self-defense and defense of others, but not the castle doctrine's presumption and the related right to use deadly defensive force. The circuit court considered the parties' arguments and then gave the jury instructions encompassing Howell’s defense theories.