author: DICKINSON, Presiding Justice, KITCHENS, Justice,

text:
    Joseph JONES v. IMPERIAL PALACE OF MISSISSIPPI, LLC.
    No. 2012-CT-00536-SCT.
    Supreme Court of Mississippi.
    Sept. 18, 2014.

      Shanda M. Yates, Yancy B. Burns, Jackson, attorneys for appellant.
    Ronald Peresich, Jr., Lauren Reeder MeCrory, Biloxi, attorneys for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. In this premises-liability case, the plaintiff presented insufficient evidence that the defendant created or knew of a dangerous condition on its premises, so we reinstate and affirm the trial judge’s summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. While walking through the Imperial Palace Casino’s parking garage in the space between the garage wall and the front of the parking spaces — an area that was neither designated for, nor prohibited to, pedestrians — Joseph Jones was injured when he tripped over a concrete parking bumper and fell to the concrete floor.

¶3. Jones filed suit alleging that the parking bumper was misaligned, jutted into the path, and proximately caused both his fall and his injury. The trial judge granted Imperial Palace’s motion for summary judgment.

¶ 4. Jones appealed, and the Mississippi Court of Appeals reversed, finding sufficient evidence to create a jury question as to whether Imperial possessed actual as well as constructive knowledge of the dangerous condition, and whether it had failed to conduct reasonable inspections. Imperial' filed a petition for writ of certiorari, which we granted.

ANALYSIS

¶ 5. Because Jpnes was Imperial Palace’s patron at the time of the fall, both parties agree that he was an invitee. So Imperial owed Jones the separate duties ‘“to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not in plain and open view.’ ” A premises owner who creates a dangerous condition is presumed to know of its existence. But, where a dangerous condition resulted from another’s conduct, the plaintiff must produce evidence that the owner had actual or constructive notice of the danger for a period of time reasonably sufficient to remedy or warn of it. In this case, the trial judge granted summary judgment because Jones failed to present such evidence.

I. Jones failed to present any evidence that Imperial’s negligence created the dangerous condition.

¶ 6. The question of whether Imperial caused the misaligned bumper is easily disposed of because both the trial judge and the Court of Appeals agree there was no such evidence, and Jones cites none.

II. Jones failed to present evidence that Imperial knew of the danger in time to provide a warning.

¶ 7. The trial judge found that Jones had failed to present any evidence that Imperial possessed actual or constructive notice of the misaligned bumper that led to the plaintiffs injuries. In reversing the trial court, the Court of Appeals pointed to the deposition testimony of Paul Dillon, a security investigator with Imperial Palace at the time of the accident, in which he stated that he knew some bumpers became misaligned from time to time in the casino garage, and that he had reported this to his superiors.

¶ 8. The Court of Appeals cited our opinion in Drennan v. Kroger; wherein a Kroger patron slipped in a puddle of water in the store on a day when eight and a half inches of rain fell. The plaintiff entered the store at 4:00 p.m., after the rain had subsided, and slipped in a puddle of water. The trial judge granted a directed verdict because the plaintiff had failed to show that Kroger possessed constructive knowledge of the particular puddle involved. We reversed, stating:

Drennan produced evidence demonstrating that Kroger should have been aware from past conditions, occurrences, and stains on the ceding that the area above aisle four leaked in periods of heavy rain. Patrons were temporarily protected from water collecting on the floor by the placing of buckets below the leaks in the store. It was apparently raining very hard on the day Drennan suffered her accident. She introduced a photograph of water stains in the ceiling tiles directly above aisle four. An engineer for Kroger testified that the roof had required a considerable amount of repairs in the past. These circumstances created an inference that the Kroger store should have been aware of the leaks in the roof.

And we noted that:

Drennan produced the following evidence in an attempt to establish the inference of constructive notice: photographs of water stains on the ceiling tile above aisle four; testimony that there was an unusually heavy rain that afternoon; the store manager, Wurth, admitted that the store had suffered roof damage in 1986, and some resulting leaks in the ceiling, and; Wurth conceded that the leaks usually occurred in periods of heavy rain.

¶ 9. Jones contends the same rationale should apply in his case because Imperial knew that, from time to time, some bumpers had been misaligned. But Drenncm is easily distinguished from the case before us today because that case stands for the proposition that certain known facts — in that case, a known leaky roof over the exact puddle in question, together with heavy rain, put Kroger on sufficient constructive notice that the particular puddle in question was likely to be present. Stated another way, more was required than simple knowledge of a history of puddles.

¶ 10. By contrast, in the case before us today, the plaintiff produced no evidence that Imperial knew or had reason to know that the particular bumper that caused Jones’s injury was misaligned at the time of the injury.

¶ 11. The ceiling photograph in Dren-nan identified the cause of the specific hazard that led to the plaintiffs injury in that case. Indeed, the defendant admitted it knew of the leak’s existence and the hazard it caused. With respect, the dissent erroneously attempts to analogize this to Imperial Palace’s knowledge that, from time to time, some bumpers — but not necessarily the bumper involved in this case— became misaligned. Were we to adopt the dissent’s view, a premiss owner with prior knowledge of any type of hazard on its premises — for instance, a spill on its floor — would become hable for all similar hazards, even with no proof of any knowledge of the particular hazard. This would render a premises owner strictly hable.

¶ 12. The trial judge correctly concluded that Jones had failed to present any evidence that Imperial knew of the misaligned bumper that led to Jones’s injury.

III. Jones failed to present sufficient evidence to survive summary judgment that, even if Imperial had conducted reasonable inspections, those inspections could have revealed the danger.

¶ 13. Though not addressed by the trial judge, the Court of Appeals also concluded that Jones had presented sufficient evidence to survive summary judgment that Imperial had failed to conduct reasonable inspections of its property. Within a premises owner’s duty to keep the premises reasonably safe is included a duty to conduct reasonable inspections. Jones argues that deposition testimony disclosed that Imperial had failed to conduct any inspections of the garage for one year prior to his fall and that he should survive summary judgment on this claim.

¶ 14. But a premises owner’s liability for failure to conduct reasonable inspections is limited in one respect:

[The premises owner] must not only warn the visitor of dangers of which he knows, but must also inspect the premises to discover possible defects. There is no liability, however, for harm resulting from conditions from which no unreasonable risk was to be anticipated, or those which the occupier did not know and could not have discovered with reasonable care. The mere existence of a defect or danger is not enough to establish liability, unless it is shown to be of such a character or of such a duration that the jury may reasonably conclude that due care would have discovered it.

¶ 15. Here, the plaintiff has failed to present any evidence to show for what period of time the bumper was misaligned. Even if Imperial failed to conduct reasonable inspections, there is simply no evidence to conclude that the problem had existed for “such a duration that the jury may reasonably conclude that due care would have discovered it.” Said differently, the plaintiff has failed to put forth any proof that reasonable inspections would have led to the discovery of the dangerous condition, which could have been created by another customer only minutes prior to the injury.

¶ 16. The dissent’s observation that “whether reasonable inspections would have revealed the dangerous condition is a question of fact for the jury to decide ...,” misses the point. Because the plaintiff has failed to produce any evidence as to how long the bumper remained misaligned, the jury would have no evidentiary basis upon which to consider whether reasonable inspections could have revealed the dangerous condition. Stated another way, the issue of reasonable inspections becomes important where evidence of the duration of the hazard has been produced, so that the jury may conclude that the inspections would have led to timely discovery of the hazard. Stated still another way, even though a jury might conclude that Imperial Palace should conduct daily inspections of its parking lot, such inspections would not have prevented this incident if the hazard was created by another patron an hour before the incident. But if the plaintiff produced proof that the hazard had been present for two days, such inspections would become relevant. Here, the plaintiff has failed to produce any temporal evidence upon which the jury could base such a conclusion.

CONCLUSION

¶ 17. A plaintiff cannot succeed on a premises-liability claim without showing either that the defendant created the dangerous condition or that the defendant possessed actual or constructive knowledge of the dangerous condition in sufficient time to remedy it. Summary judgment was proper in this case, because the defendant failed to present any of evidence of either.

¶ 18. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REINSTATED AND AFFIRMED.

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

KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

KITCHENS, Justice,

dissenting:

¶ 19. I respectfully disagree with the majority’s conclusion that no genuine issue of material fact existed regarding whether Imperial Palace knew or should have known of a misaligned concrete parking bumper alleged to have caused injury to Joseph Jones. Additionally, a genuine issue of material fact existed with respect to whether reasonable inspections of the premises would have revealed the danger.

¶ 20. The majority opines that, “in the case before us today, the plaintiff produced no evidence that Imperial knew or had reason to know that the particular bumper that caused Jones’s injury was misaligned at the time of the injury.” In support of that assertion, the majority attempts to distinguish the case of Drennan v. Kroger Co., 672 So.2d 1168, 1172 (Miss.1996): Drennan “stands for the proposition that certain known facts — in that case a known leaky roof over the exact puddle in question, together with heavy rain, put Kroger on sufficient constructive notice, that a particular dangerous condition was likely to be present.” But the present case and Drennan, in which this Court reversed the trial court’s grant of a directed verdict to Kroger, are strikingly similar. Id. at 1178.

¶21. The majority’s attempt to distinguish Drennan from the present case on the basis that it involved “a known leaky roof over the exact puddle in question, together with heavy rain,” fails. The store manager in that case “maintained that he was not aware of any leaks in the roof in the area that Drennan fell, nor had he observed any water stains above that area.” Id. at 1170. He further stated that “[djuring his two years at the store, he was aware of only two leaks, one above the courtesy booth and another above the frozen foods several aisles away from where Drennan fell.” Id. The assistant manager of engineering for Kroger testified that “none of the reported problems concerned the area over aisle four,” where Drennan sustained the fall in question. Id. Dren-nan did, however, produce “a photograph of water stains in the ceiling tiles directly above aisle four.” Id. at 1172. According to this Court, that photograph, coupled with testimony that “the roof had required a considerable amount of repairs in the past[,] ... created an inference that the Kroger store should have been aware of the leaks in the roof.” Id.

¶ 22. The majority finds a distinction where none exists, arguing “[t]he ceiling photograph in Drennan identified the cause of the specific hazard that led to the plaintiffs injury in that case. Indeed, the defendant admitted it knew of the leak’s existence and the hazard it caused.” In the present case, as in Drennan, Jones attached to his response to Imperial Palace’s motion for summary judgment an incident report prepared by Imperial Palace at the time of the incident. The report included the following: “STUMBLED ON PARKING CURB, CURB SLIPPED. WASN’T ATTACHED TO FLOOR.” The incident report was accompanied by a photograph which Paul Dillon, an Imperial Palace security investigator at the time, testified was taken immediately following Jones’s fall. According to Dillon, the photograph showed the actual parking bumper over which Jones had stumbled. Jones testified in deposition that the parking bumper was “caddy-whompered” at the time he fell over it. Dillon further testified to his awareness that some bumpers had been misaligned prior to the incident and that such misaligned bumpers could pose a tripping hazard to passersby. In fact, Dillon testified that he had reported this condition to the maintenance facilities department “once upon a time,” because “if [the parking bumper] is way out there, it would be [a potential hazard], yeah.”

¶ 28. Thus, the present case is very like Drennan, where “evidence that the roof was prone to leak during periods of rain” meant that “a juror could easily infer from the evidence that the collection of water on the floor was not completely unexpected....” Id. at 1172. Here, the jury could infer from the evidence presented that Imperial Palace should have been aware of the misaligned bumpers, since their misalignment was to be expected, according to Dillon’s testimony. Moreover, as in Dren- nan, where photographs of water stains on the ceiling of aisle four above the location at which Drennan had slipped and fallen were received into evidence, the photograph of the particular misaligned bumper over which Jones tripped gives rise to an inference that the bumper was misaligned at the time of Jones’s fall. These are questions of fact for the jury to sort out, and were improperly decided as a matter of law at the summary judgment stage. See Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 262 (Miss.2003), overruled on other grounds by Little v. Miss. Dep’t of Transp., 129 So.3d 132 (Miss.2013) (“If proof of a causal connection is to be established by circumstantial evidence, it must be sufficient to make the plaintiffs asserted theory reasonably probable, not merely possible, and it is generally for the trier of fact to say whether circumstantial evidence meets this test.”) (citations omitted). The Court of Appeals was therefore correct in holding that a genuine issue of material fact existed regarding whether Imperial Palace knew or should have known of the hazard posed by the misaligned parking bumper.

¶ 24. With respect to the existence of a genuine issue of material fact regarding whether reasonable inspections of the premises by Imperial Palace would have revealed the danger, the majority posits that “[e]ven if Imperial failed to conduct reasonable inspections, there is simply no evidence to conclude that it existed for ‘such duration that the jury may reasonably conclude that due care would have discovered it.’ ” (citing Moore v. Winn-Dixie Stores, Inc., 252 Miss. 693, 173 So.2d 603, 605 (1965)). The majority continues: “the plaintiff has failed to put forth any proof that reasonable inspections would have led to the discovery of the dangerous condition, which could have been created by another customer only minutes prior to the injury.”

¶ 25. The record reflects the following, summarized succinctly by the Court of Appeals and repeated verbatim below:

Imperial Palace’s Rule 30(b)(6) representative established that Imperial Palace: (1) conducted no safety meetings during the time period of June 27, 2005, to September 2006; (2) had no safety or risk-management procedures or handbook at the time of Jones’s accident; (3) had no policies or procedures concerning maintenance or repairs of the misaligned parking bumpers; and (4) failed to inspect, make repairs to, or conduct maintenance on the parking bumpers between September 2003 and September 2006.

Jones v. Imperial Palace of Mississippi, LLC, — So.3d —, —, 2013 WL 5469741, *6 (¶31) (Miss.Ct.App. Oct. 1, 2013). In the present case, the Court of Appeals held that “[although the circuit court did not address Imperial Palace’s duty to conduct reasonable inspections, we find that there is a genuine issue of material fact with respect to whether or not Imperial Palace breached its duty to conduct reasonable inspections of its premises.” Id.

¶ 26. In Pigg v. Express Hotel Partners, LLC, the plaintiffs son was injured when a mirror in a Holiday Inn room shattered. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199 (Miss. 2008). This Court held that a genuine issue of material fact existed “as to whether Holiday Inn knew or should have known of the loose mirror, and whether it was negligent in inspecting its premises.” Id. at 1200. The Court held that “a jury must be allowed to decide whether Holiday Inn breached its duty to keep the premises reasonably safe and whether its inspections of its rooms was reasonable. ” Id. (emphasis added). Because a determination regarding whether reasonable inspections would have revealed the dangerous condition is a question of fact for the jury to decide, the Court of Appeals correctly reversed the trial court’s grant of summary judgment to Imperial Palace.

¶ 27. The majority posits that this analysis “misses the point.” But in Moore v. Winn-Dixie Stores, Inc., a case upon which the majority relies, this Court reversed the grant of a judgment notwithstanding the verdict (JNOV) where the plaintiff suffered injuries after slipping on a banana peel and falling. Moore v. Winn-Dixie Stores, Inc., 173 So.2d 603, 608, 252 Miss. 693 (1965). This Court opined that “the issue of negligence was a question of fact for the determination of the jury as to whether or not the banana peel had been on the floor a sufficient length of time to charge the appellees as reasonable and prudent operators of the store with notice of the danger.” Id. (emphasis added). I agree that inspections may “not have prevented this incident if the hazard was created by another patron an hour before the incident.” But the length of time of the existence of a dangerous condition is, under the longstanding jurisprudence of this Court, a jury question not properly disposed of at the summary judgment stage.

¶28. A genuine issue of material fact exists regarding whether Imperial Palace knew or should have known of a dangerous condition on its premises; a genuine issue of material fact also exists regarding whether reasonable inspections would have led to a discovery of the dangerous condition. I would therefore affirm the Court of Appeals’s reversal of the grant of summary judgment to Imperial Palace.

KING, J., JOINS THIS OPINION.

      . Jones v. Imperial Palace of Mississippi, LLC, No.2012-CA-00536-COA, - So.3d -, -, 2013 WL 5469741, **3-5 (Miss.Ct.App. Oct. 1, 2013).

      . Mayfield v. The Hairbender, 903 So.2d 733, 737-38 (Miss.2005) (quoting Massey v. Tingle, 867 So.2d 235, 239 (Miss.2004) (quoting Corley v. Evans, 835 So.2d 30, 37 (Miss.2003))).

        .Moore v. Winn-Dixie Stores, Inc., 252 Miss. 693, 173 So.2d 603, 605 (1965).

      . Id. at 605-06.

      . Jones,-So.3d at -, 2013 WL 5469741, at *3.

      . Jones, - So.3d at-, 2013 WL 5469741, at **3-5.

      . Drennan v. Kroger Co., 672 So.2d 1168 (Miss.1996).

      . Drennan, 672 So.2d at 1169.

      . Id.

      . Id. at 1168-69.

      . Id. at 1172 (emphasis added).

      . Id. at 1171.

      . Id. at 1172.

      . Id. at 1170 (citing Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.1986)).

      . Jones, - So.3d at-, 2013 WL 5469741, at **5-7.

      . Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1200 (Miss.2008) (citing Gaines v. K-Mart Corp., 860 So.2d 1214, 1216 (Miss. 2003) (citing Moore, 173 So.2d at 603)).

      . Moore, 173 So.2d at 605.

      . Id.


source: Caselaw Access Project

author: CHANDLER, Justice, for the Court:

license: Public Domain

text:
    Stevenson FORD a/k/a Steve Ford v. STATE of Mississippi.
    No. 2012-KA-01318-SCT.
    Supreme Court of Mississippi.
    Sept. 18, 2014.

      Office of State Public Defender by Mollie Marie McMillin, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   CHANDLER, Justice, for the Court:

¶ 1. After a jury trial, Stevenson Ford was convicted of murder, and the Washington County Circuit Court sentenced him to life without the possibility of parole. Ford appeals. He argues that he was entitled to a mistrial after an officer testified to hearsay that previously had been ruled inadmissible, that he was entitled to a mistrial due to the jury’s premature deliberations, and that the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. Marvin Stuckett was shot and killed after leaving a private party at the Southern Whispers club in Greenville, Mississippi. The shooting, which occurred after 2:00 a.m. on September 7, 2008, appears to have been prompted by conflicts between two rival groups. Stevenson attended the private party along with his uncle Daner Ford (“Daner”), Jessie Lee, Jonathan Robinson, Corbin Harris, Freddie Harris, and Tyrone Ford. Stuckett’s friends, Carlos Smith, Nick Harmon Jr., and Christopher York were at the party. Smith testified that, at the party, he got into a fight with Daner, and Stuckett had tried to break up the fight. Harmon testi-fled that, at one point, he was standing by the bar with Stuckett when Ford and his group approached them. Harmon testified that Ford told them to move out of the way, and that Corbin Harris struck Harmon in the head, prompting Stuckett to throw his drink.

¶ 8. Harmon and Stuckett then left the club. Harmon testified that Stuckett dropped him off at his car and the two drove off in their respective vehicles. Harmon followed Stuckett and saw him turn to go home. York testified that, about this time, he left the club and headed to Stuckett’s house. On the way, he saw a green Chevrolet and a blue Chevrolet speeding toward Stuckett’s house. When York neared Stuckett’s house, he heard gunshots. Stuckett lived on Stockton Drive, which intersects with Haycraft Street. When York pulled onto Haycraft Street, he saw the green and blue Chevro-lets turn off Stockton Drive and onto Hay-craft Street, coming toward him. When the cars passed him, he saw Ford, Daner, Lee, and someone else in the blue Chevrolet, and Freddie Harris, Damian Smith, and Robinson in the green Chevrolet.

¶ 4. Stuckett was found bleeding from multiple gunshot wounds under a neighbor’s carport. He was transported to the hospital, where he died. Another of Stuckett’s neighbors, Jessie Coates, testified that he was awakened by gunshots that sounded like fireworks. When Coates looked out the window, he saw a car in front of his house and bursts of light coming from guns. Dr. Thomas Deering, a forensic pathologist who conducted the autopsy of Stuckett, testified that he had been shot in the arm and, fatally, in the back. He recovered a .38 bullet from the body. Detective Erica Brown recovered two shells from an AK-47 assault rifle, two live rounds for an AK-47 assault rifle, and one 9 mm live round from the scene. She also found two 9 mm live rounds in the blue Chevrolet, which had been impounded after Lee’s arrest. Brown testified that no .38 caliber gun was recovered.

¶ 5. Lee testified that he had been the driver of the blue Chevrolet. Lee testified that a group left the club and went to Ford’s house. Then everyone decided to go to an after-hours club. Freddie and Daner left in Freddie’s green Chevrolet, with Lee, Ford, Robinson, and Ken Johnson following in Lee’s blue Chevrolet. Lee was driving, Robinson was in the passenger’s seat, and Ford and Ken were in the back seat. On the way to the after-hours club, they saw a car at an intersection, and the green Chevrolet turned to follow it. Ford told Lee to follow the green Chevrolet. They followed the green Chevrolet to Stockton Drive, and Ford directed Lee to pull over. Lee complied and saw Daner walking outside with a rifle. Lee testified that Ford, Robinson, and Johnson exited the car, and then he heard a lot of gunfire. Lee testified that, at first, he ducked down, but as the shots continued, he looked behind him and saw Ford shooting. Then, Daner, Ford, Robinson, and Johnson got into the blue car and Lee drove away, turning onto Haycraft. Lee was arrested on an outstanding warrant and questioned about Stuckett’s shooting. He told the police he had seen Ford and Daner with guns. Lee testified that he had agreed to plead guilty to accessory after the fact, but was testifying because he felt he should.

¶ 6. Ford asserted an alibi defense and testified that, after leaving Southern Whispers, he was either in the company of his girlfriend, Latasha Powell, or with David Smith. David Smith testified that he and Ford left the club together and discovered Ford’s car was out of gas. Smith testified that he and Ford walked to the after-hours club, and Ford went in and got a bottle of gin while David searched for a gas can. David further testified that someone lent him a gas can, and then he went to a nearby gas station while Ford waited outside the after-hours club and drank gin. When David returned about seven minutes later, he dropped Ford off at a hotel. Powell testified that she and Ford had booked a room at the hotel earlier that evening. Powell testified that, after booking the room, Ford went to the club, returned to the hotel room at 2:00 or 2:15 а.m., and stayed there until morning. Powell testified that, to protect her privacy, she habitually used the alias “Lakisha Williams” when staying at the hotel. A copy of a hotel receipt showing that Lakisha Williams had checked in on September б, 2008, was admitted into evidence. A hotel employee testified that Ford and Powell were regular customers of the hotel. She corroborated Powell’s use of the alias “Lakisha Williams” at the hotel.

¶ 7. Ford was charged with murder while acting in concert with others and with a firearm enhancement for his use and display of a firearm at the time of the commission of murder under Mississippi Code Section 97-37-37. See Miss.Code Ann. § 97-37-37 (Rev. 2006). The jury found him guilty of murder but rejected the firearm enhancement. The trial court sentenced Ford to life without the possibility of parole.

DISCUSSION

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING FORD’S MOTIONS FOR A MISTRIAL.

¶ 8. Ford unsuccessfully moved for a mistrial on three occasions. On appeal, he attacks the trial court’s denial of a mistrial on two of those occasions.

A Hearsay testimony of Officer Larry Tisaby

¶9. Officer Tisaby, a patrolman with the Greenville Police Department, testified that he had arrested Lee at a Double Quick gas station and impounded his blue Chevrolet. Tisaby began to testify about how his investigation had led him to the Double Quick. He stated “I was dispatched to [Delta Regional Medical Center] as the result of a shooting that took placed on Stockton, and while there, there was a citizen, I didn’t get his name, had pointed out a vehicle that was — .” Ford objected before the officer could complete his answer, reasoning that the coming response about the citizen’s tip would involve multiple hearsay. A discussion ensued, and the trial court ruled that the officer would not be permitted to testify to the information he had gleaned from a citizen. The court allowed the prosecutor to confer with Tisaby to make sure he understood the court’s ruling. Despite the prosecutor’s instruction, upon continuation of the examination of Tisaby, the following occurred:

Q: Did you receive any information while you were at DRMC?
A: While I was at DRMC, I received information from a citizen that — from someone that—
Q: No, no. Did you receive any information?
A: Yes, I received information.
Q: What was the nature of the information?
A: The information was that there was a vehicle parked at Double Quick that was involved with the incident on Stockton.
[DEFENSE COUNSEL]: If Your Hon- or please, that’s my objection.

The trial court sustained Ford’s objection, ordéred the objectionable part of Tisaby’s testimony struck from the record, and ordered the jury to disregard Tisaby’s statement of how he received the information. At the conclusion of Tisaby’s testimony, the trial court examined Tisaby out of the presence of the jury to ascertain why he had disobeyed the prosecutor’s instructions; Tisaby responded that he had not understood them.

¶ 10. Ford moved for a mistrial, arguing that the jury would be unable to disregard Tisaby’s impermissible testimony. The trial court took the motion under advisement to evaluate the impact of the testimony after more evidence was admitted concerning Lee’s car. Later, the trial court ruled that its admonition to the jury was sufficient to overcome any prejudice caused by Tisaby’s testimony and denied a mistrial.

¶ 11. The trial court must grant a mistrial if an error occurred that substantially and irreparably prejudiced the defendant’s case. Clark v. State, 40 So.3d 531, 538 (Miss.2010) (citing Harrell v. State, 947 So.2d 309, 316 (Miss.2007)). “Where ‘serious and irreparable damage’ has not resulted, the judge should ‘admonish the jury then and there to disregard the impropriety].’ ” Carpenter v. State, 910 So.2d 528, 534 (Miss.2005) (quoting Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990)). “This Court on numerous occasions has held that where the trial judge sustains an appellant’s objection to the testimony of a witness and instructs the jury to disregard the same, prejudicial error does not result from that testimony.” Snelson v. State, 704 So.2d 452, 456 (Miss. 1997). This Court reviews the trial court’s denial of a motion for a mistrial for abuse of discretion. Clark, 40 So.3d at 538. Because the trial court is in the best position to assess the prejudicial effect, we afford the trial court considerable discretion in ruling on a motion for a mistrial. Harrell, 947 So.2d at 316.

¶ 12. Tisaby’s testimony that a citizen told him Lee’s car was connected with the shooting was not particularly prejudicial to Ford in light of other evidence. Tisaby’s testimony did not connect Ford with the car used in the shooting. Further, Tisaby’s testimony was not very influential compared with Lee’s and York’s testimony establishing that Lee’s car was used in the shooting and placing Ford inside that car at the crime scene. Moreover, the trial court properly instructed the jury to disregard Tisaby’s testimony about his tip from the citizen. It is presumed, unless otherwise shown, that the jury followed the instruction given by the trial court. Flora v. State, 925 So.2d 797, 805 (Miss.2006). Ford has not shown that the jury disregarded the instruction. We hold that the trial court did not abuse its discretion by denying a mistrial.

B. Premature jury deliberations

¶ 13. After the close of evidence, but before closing arguments and before the jury had been instructed on the law, the trial judge met with the attorneys in chambers. The judge explained that, a few minutes before closing arguments were to begin, the jury bailiff had informed the court that the jurors had discussed the case for a few minutes. The judge spoke with the jurors, ascertained that they had begun deliberations mistakenly, and instructed them to cease. All the jurors and alternate jurors had been present in the jury room during the premature deliberations. On examination by the trial court, the bailiff stated that he had not overheard any discussions of guilt or innocence, and that, in his hearing, the jurors had discussed only the facts of the case.

¶ 14. Ford moved for a mistrial. Relying on Holland v. State, 587 So.2d 848 (Miss.1991), the judge called each juror individually into chambers to ask if he or she had formed an opinion about the defendant’s guilt or innocence and whether he or she could remain fair and impartial. Every juror indicated that he or she had not formed an opinion about the case and could remain fair and impartial. The judge also asked if each juror could put aside any discussion that may have occurred in the jury room, listen to the law given by the court, and decide the case fairly. Each juror said “yes.” Satisfied with the jurors’ affirmative responses, the trial court denied Ford’s motion for a mistrial on the ground that the premature deliberations were not prejudicial and had not denied Ford a fair trial.

¶ 15. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a fair trial by an impartial jury. Holland v. State, 587 So.2d at 873 (citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). “Jurors must not ‘discuss a case among themselves until all the evidence has been presented, counsel have made final arguments, and the case has been submitted to them after final instructions by the trial court.’ ” Seeling v. State, 844 So.2d 439, 447 (Miss.2003). The reason for this rule is that “each juror [must] keep an open mind until the ease has been submitted to the jury.” Holland, 587 So.2d at 873 (quoting U.S. v. Klee, 494 F.2d 394, 396 (9th Cir.1974)). Deliberation prior to the official submission of the case to the jury can be and often is deemed a reversible error. Holland, 587 So.2d at 873. But “not every incident of juror misconduct requires a new trial.” Turner v. State, 748 So.2d 706, 709 (Miss.1999). “The test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.” Seeling, 844 So.2d at 448 (quoting Klee, 494 F.2d at 396). Each case stands upon its own particular facts, and the determination of prejudice is within the trial court’s discretion. Turner, 748 So.2d at 709.

¶ 16. In Holland, after the guilt phase of the trial, but before the commencement of the penalty phase, the jury sent out a note which read, “We, the jury, sentence Gerald James Holland to death.” Holland, 587 So.2d at 872. Holland’s motion for a mistrial was denied. The judge addressed the matter by gathering the jurors in the courtroom and instructing them to refrain from deliberations until commencement of the penalty phase. Id. Ultimately, Holland was sentenced to death. Id.

¶ 17. On appeal, Holland argued that the jury’s premature deliberations demonstrated that they had abandoned even the pretense of impartiality. Id. This Court found that the premature deliberations had prejudiced Holland’s right to a fair trial. Id. at 874. We held that the trial judge’s instruction to “refrain from further deliberations,” without any inquiry into each juror’s capacity to remain fair and impartial, was insufficient to cure the prejudice that had resulted from the premature deliberations. Id. However, we explicitly stated that “a different conclusion may have been reached had the trial judge questioned the jurors in order to determine whether each of them could have remained impartial.” Id.

¶ 18. Holland indicated that error arising from premature deliberations could be cured if the trial court questioned the jurors and determined that they remained impartial. That is what occurred in Rogers v. State, 130 So.3d 544, 552 (Miss.Ct.App.2013), in which eight of the thirteen jurors admitted that they had discussed aspects of the case before deliberations began. The trial court questioned each juror as to what the juror had heard and said and whether the juror had formed an opinion on the case. Id. Each juror denied having formed an opinion on the evidence or on the outcome of the case. Id. The trial court denied a motion for a mistrial, and the Court of Appeals found from the circumstances that the ruling had been within the trial court’s discretion and that Rogers was not entitled to a new trial. Id.

¶ 19. Here, the jury deliberated prematurely for a few minutes. The trial court thoroughly questioned each individual juror in chambers to discern the impact of the premature deliberations. Each juror indicated that he or she had not prejudged the question of guilt or innocence and could remain fair and impartial. Each juror also stated that he or she could set aside the premature deliberations and fairly render a verdict based on the law recited by the court. The jury bailiffs testimony that he had not overheard the jurors discussing guilt or innocence corroborated the jurors’ assertions that they had not prejudged the case. Under the particular facts, no prejudice is apparent. Each juror affirmed to the trial court that he or she had not reached a conclusion on the question of guilt or innocence, could remain fair and impartial, and could set the improper discussions aside. We find that the trial court did not abuse its discretion by denying Ford’s motion for a mistrial.

II. THE VERDICT WAS NOT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 20. Ford filed a post-trial motion for a new trial, arguing that the verdict was against the overwhelming weight of the evidence. The trial court denied the motion. This Court “will not order a new trial unless it finds that the verdict ‘is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Osborne v. State, 54 So.3d 841, 846 (Miss.2011) (quoting Bush v. State, 895 So.2d 836, 844 (Miss.2005)). On review of a challenge based on the weight of the evidence, this Court weighs the evidence in the light most favorable to the verdict. Bush, 895 So.2d at 844. “The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000)).

¶21. Ford argues that his case falls within that category of exceptional cases that deserve new trials, stating that only one piece of evidence — the testimony of accomplice Jessie Lee — linked him to the shooting. He also points to the fact that his alibi was corroborated by Smith and Powell. But the evidence solidly presented another version of what happened on the night of September 7, 2008. Lee testified that he left Southern Whispers in his car with Ford and two other men, who shot and killed Stuckett. Lee stated that he saw Ford shooting. York testified that he saw Ford in Lee’s car leaving the scene of the crime. The evidence did not preponderate so heavily against the verdict that to allow it to stand would sanction an unconscionable injustice, and Ford is not entitled to a new trial.

CONCLUSION

¶ 22. The trial court did not abuse its discretion by denying Ford’s motions for a mistrial, and the verdict was not against the overwhelming weight of the evidence. Therefore, we affirm.

¶ 23. CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT SHALL PAY $322 COURT COSTS, $300 ATTORNEY FEES AND A 2% BOND FEE.

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

      . Ford initially perfected an appeal pro se, and his appeal was decided by the Court of Appeals, which affirmed. See Ford v. State, 69 So.3d 788 (Miss.Ct.App.2011). Then, Ford filed a motion for post-conviction relief, and this Court remanded the case to the Washington County Circuit Court to determine whether Ford knowingly and intelligently had waived his right to appellate counsel. See Ford v. State, 121 So.3d 916 (Miss.2013). The circuit court found that Ford had not knowingly and intelligently waived his right to appellate counsel and appointed the Indigent Appeals Division of the Office of the State Public Defender to represent Ford. Subsequently, this Court granted Ford’s motion to withdraw the Court of Appeals mandate, reinstate his appeal, and issue a briefing schedule. Id. Ford’s appeal is now before the Court.

      . The trial court gave a cautionary instruction regarding the testimony of Lee. See Williams v. State, 32 So.3d 486 (Miss.2010).

      . Ford and Powell were married after his arrest, and Powell’s name was Latasha Ford at trial.

      . The jurors informed the judge that they erroneously had believed the jury bailiff had instructed them to begin deliberations. The record reflects that the trial court properly instructed the jury throughout the trial to refrain from deliberations until instructed to begin by the court, and that, before dismissing the jury to address jury instructions with counsel, the court instructed it that "all of the restrictions that we have put on you across the week are now magnified.”


author: WALLER, Chief Justice,

text:
    James McCOY a/k/a Robert Johnson a/k/a James Desean McCoy v. STATE of Mississippi.
    No. 2013-KA-00390-SCT.
    Supreme Court of Mississippi.
    Sept. 18, 2014.

      Office of State Public Defender by W. Daniel Hinchcliff, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, John R. Henry, Jr., attorneys for appellee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. James McCoy appeals his convictions and sentences in the Union County Circuit Court for two counts of armed robbery. McCoy’s appellate counsel argues that McCoy’s sentences are excessive and the result of vindictiveness, that McCoy was denied a fair trial due to the prosecutor’s use of the golden-rule argument, and that McCoy received ineffective assistance of counsel at trial. McCoy has filed a pro se supplemental brief, raising four additional assignments of error. Finding no reversible error, we affirm McCoy’s convictions and sentences.

FACTS

¶ 2. This case arises out of the March 8, 2006, armed robbery of Michael and Heather Whittington at their home in Union County. During the evening on that date, Michael, Heather, and their two daughters were at their home on County Road 56 in Myrtle, Mississippi, when two men forcibly entered their house. The men entered the master bedroom and demanded that Michael give them all of his money or they would kill his children. Michael attempted to fight the men, but one of them struck him over the head with a pistol, knocking him unconscious. One of the men searched the pockets of Michael’s pants and took his cash, credit cards, and wallet. Michael had cashed a check at the Bank of New Albany earlier that day and had roughly four thousand dollars on his person. The men then entered the master bathroom, held Heather at gunpoint, and took her engagement ring, her wedding band, and another diamond ring from her. After the intruders left the house, Heather called 9-1-1.

¶ 3. Jimmy Dean Whitten, a criminal investigator with the Union County Sheriffs Department, was one of the first law-enforcement officers to arrive at the Whit-tington residence after Heather’s 9-1-1 call. Investigator Whitten attempted to take statements from Michael and Heather at the scene, but Michael was barely conscious due to his injuries, and Heather was too distraught to give an accurate description of the robbery.

¶ 4. Mickey Baker, an investigator with the Mississippi Highway Patrol, also was called to investigate the robbery. Investigator Baker was notified that some sheriffs deputies had located a black GMC pickup truck, still running, abandoned a short distance from the Whittingtons’ house. The truck had been reported stolen two days earlier in Memphis, Tennessee. Investigator Baker went to search the truck. Inside the truck, Investigator Baker found purple Bank of Albany money wrappers, which were later identified as the ones that had been wrapped around the cash Michael had received at the Bank of New Albany earlier that day. The wrappers contained the teller’s initials and the date “March 8, 2006.” After searching the truck, Investigator Baker received a call from a resident in the area claiming he had seen the black truck driving in the area earlier in the day, followed by a small light-blue car.

¶ 5. Investigator Baker visited the Whittingtons in the hospital at around 11:30 p.m. on the night of the robbery. At that time, the Whittingtons were able to give him a description of the robbers. Michael described one of the men as a medium-build, dark-skinned, African-American male wearing a dark jacket and some kind of head covering, either a hood or a hat. This man was carrying a revolver. He believed the other man may have been white, but stated that he never got a good look at him. Heather described one of the robbers as a dark-skinned African-American male with a “round chubby face” and rough complexion and at least one gold tooth. She stated that this man was wearing a camouflage hooded jacket. Heather described the other robber as a light-skinned African-American or white male with smoother complexion. This man was wearing a black or brown jacket and either a hood or a hat. Heather estimated that both men were between 5'10" and six feet tall and weighed between 180 and 200 pounds.

¶ 6. Through further investigation, the Union County Sheriffs Department determined that the robbers were likely from the Memphis area. Several days prior to the robbery, Michael had called the police to report a black Volvo with Memphis tags driving past his house. The Whittingtons’ credit cards also had been used in the Memphis area after the robbery, prior to being cancelled. Michael owned a scrap-metal business and dealt primarily in cash, so Investigator Baker asked him to notify the sheriffs department if he could think of anyone from the Memphis area with whom he recently had done business.

¶ 7. On April 4, 2006, Michael called the Union County Sheriffs Department and stated that a man from Memphis named Steven Ryan Davis had just come to his shop to sell some scrap metal. Michael had done business with Davis on numerous occasions and always paid Davis in cash. Officers with the Union County Sheriffs Department located Davis and stopped his vehicle. Davis was driving his father’s truck with a suspended license and no proof of insurance, so he was taken into custody. When questioned about the robbery, Davis denied any involvement in or knowledge of the crime. However, Davis did admit that he owned a light blue Plymouth Colt, which matched the description of the car seen near the Whittingtons’ house on the night of the robbery. Davis posted bond for his traffic offenses and was released from police custody the same day.

¶ 8. Investigator Baker later questioned Davis a second time while he was in custody in Memphis. At this interview, Davis admitted to his involvement in the robbery and provided Baker with information on two men nicknamed “Alligator” and “Baby J,” the other men involved in the robbery.

¶ 9. “Alligator,” also known as Allery Hopson, was arrested after the police recovered Heather’s rings from two pawn shops in Memphis and determined that he had pawned them. Hopson owned a black Volvo with Memphis tags matching the license-plate number recorded by Michael several days prior to the robbery. Investigator Baker described Hopson as a light-skinned African American with a smooth complexion, while he described McCoy as a dark-skinned African American with a round face and gold teeth.

¶ 10. “Baby J,” also known as James McCoy, subsequently contacted the Union County Sheriffs Department and denied any involvement in the crime. After being told that the police were checking surveillance video from several places in Memphis where the Whittingtons’ credit cards had been used, McCoy contacted the sheriff’s department again and told them that Hopson and Davis had implicated him in the robbery in an attempt to keep Davis’s family from finding out about his involvement in the crime. He stated that he had loaned Hopson his phone on the night of the robbery and had met up with Hopson and Davis at a gas station in Memphis after the robbery. McCoy subsequently was arrested for the robbery, as well.

PROCEDURAL HISTORY

¶ 11. McCoy, Hopson, and Davis were indicted for two counts of robbery using a deadly weapon in violation of Section 97-3-79 of the Mississippi Code. On November 14, 2007, McCoy pleaded guilty to both counts. The trial court sentenced McCoy to thirty years’ imprisonment for each count, with five years suspended from each sentence and five years of post-release supervision. The court ordered McCoy’s sentences to run concurrently.

¶ 12. On February 9, 2009, McCoy filed a petition for post-conviction relief in the trial court, claiming that he had received incorrect information regarding his eligibility for parole. The trial court denied McCoy’s petition, and his appeal was assigned to the Court of Appeals. See McCoy v. State, 47 So.3d 1197 (Miss.Ct.App.2010). The Court of Appeals found merit in McCoy’s claims and remanded for an evidentiary hearing to determine whether McCoy had relied on the incorrect information in entering his plea, as well as whether his attorney was ineffective in providing erroneous information. Id. at 1198-99. On remand, the trial court determined that McCoy’s convictions and sentences should be set aside. McCoy subsequently entered pleas of not guilty to the offenses charged.

¶ 13. McCoy was tried before a jury in the Union County Circuit Court on November 15, 2011. At trial, Davis testified that he had done business with Michael on several occasions, knew where he lived, and knew he dealt in large quantities of cash. Davis stated that he owed a large drug debt to Hopson prior to the robbery. Hopson asked Davis if he knew someone he could rob to pay back the debt, and Davis gave him Michael’s name. Prior to the robbery, Davis and Hopson drove to the Whittingtons’ house in Hopson’s black Volvo to show Hopson where Michael lived. On the night of the robbery, McCoy drove Davis’s car to the Whittingtons’ house, while Davis rode with Hopson in a black truck. Davis stated that he had met McCoy before but knew him only as “Baby J” at the time. Davis noticed that the steering column on Hopson’s truck was broken, indicating that it had been stolen. Before arriving at the Whittingtons’ house, Davis switched vehicles with McCoy, and Hopson and McCoy drove off while Davis waited in his car. He stated that he waited behind because he did not think he could have gone into the Whittingtons’ house without Michael recognizing him. After about five minutes, Hopson and McCoy returned in the black truck, and Davis followed them away from the Whit-tingtons’ house. A few miles later, Hop-son left the truck on the side of the road, and he and McCoy rode with Davis back to Memphis. On the way back to Memphis, Davis dropped McCoy off at a gas station, where his car was waiting.

¶ 14. At the conclusion of the trial, the jury entered a verdict finding McCoy guilty of both counts of armed robbery. The jury could not agree to fix a life sentence, so the trial court sentenced McCoy to thirty-five years’ imprisonment for each charge, with five years suspended from each sentence and five years of post-release supervision. McCoy’s sentences were ordered to run consecutively.

¶ 15. McCoy, assisted by counsel, now appeals his convictions and sentences to this Court, raising the following issues:

I. Whether McCoy’s sentences were unconstitutionally excessive, disproportionate, or the result of vindictiveness.
II. Whether the trial court erred by failing sua sponte to declare a mistrial due to counsel’s use of the “Golden Rule” argument.
III. Whether McCoy was denied effective assistance of counsel.

¶ 16. Whitten also has filed a pro se supplemental brief raising the following assignments of error:

IY. Whether the trial court erred in finding that the State had provided sufficient race-neutral reasons for striking two African-American alternate jurors.
V. Whether the State violated McCoy’s right to be told about any promises made to Davis in exchange for his testimony.
VI. Whether McCoy’s in-court identification was so suggestive as to violate due process of law.
VII. Whether McCoy was entitled to a circumstantial-evidence instruction.

DISCUSSION

I. Whether McCoy’s sentences were excessive, vindictive, or otherwise contrary to constitutional protections.

¶ 17. McCoy argues that his consecutive thirty-five-year sentences constitute “the very definition of unfairness and dis-proportionality.” He also claims that the difference between his sentence after his initial guilty plea and the sentence he received after his subsequent jury trial “smacks of a penalty exacted for exercising statutory and constitutional rights.”

¶ 18. “[T]he general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Fleming v. State, 604 So.2d 280, 302 (Miss.1992) (citing Corley v. State, 536 So.2d 1314, 1319 (Miss.1988)). However, a sentence that leads to an inference of “gross disproportionality” to the crime committed is subject to an attack on Eighth-Amendment grounds. Solem v. Helm, 463 U.S. 277, 290-91, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), overruled in part by Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). We address McCoy’s proportionality argument and vindictiveness argument separately.

A. Whether McCoy’s sentences are unconstitutionally excessive or disproportionate to the offense.

¶ 19. McCoy was convicted of two counts of armed robbery in violation of Section 97-3-79 of the Mississippi Code, which provides for the imposition of a life sentence “if so fixed by the jury.” Miss. Code Ann. § 97-3-79 (Rev. 2006). As in this case, though, where the jury fails to impose a life sentence, “the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.” Id. Because the imposition of a life sentence is within the sole province of the jury, the trial court must impose a sentence reasonably expected to be less than life. See Friday v. State, 462 So.2d 336, 339 (Miss.1985).

¶ 20. We find that McCoy’s sentences are not constitutionally disproportionate to the crime charged. At McCoy’s sentencing hearing, the trial court reviewed mortality tables to determine that McCoy’s life expectancy was 40.06 years. Accordingly, McCoy’s thirty-five-year sentences fit well within the statutory limits. See, e.g., Johnson v. State, 29 So.3d 738, 744 (Miss. 2009) (finding defendant’s forty-one-year sentence to be effectively less than life, even though his actuarial life expectancy was 41.7 years). That McCoy’s sentences were ordered to run consecutively does not change the analysis, as this Court has held that “each sentence is to be imposed without respect to the other.” Erwin v. State, 557 So.2d 799, 803 (Miss.1990). Moreover, the fact that McCoy was a first-time offender did not preclude the trial court from imposing up to the maximum sentence. Nichols v. State, 826 So.2d 1288, 1292 (Miss.2002). Because the trial court sentenced McCoy within the statutory limits for the crime charged, we find no abuse of discretion here.

¶21. In addition, a review of McCoy’s sentences and the facts of this lurid case do not lend themselves to an extended proportionality review under So-lem. McCoy argues that his sentences are unfair because his codefendants were never prosecuted. But this allegation is not supported by the record. Davis testified that he expected to be tried for the robberies after McCoy and Hopson. Hopson had not been tried at the time of McCoy’s trial, but there is no evidence that the charges against him were dismissed. Moreover, there is no requirement that codefendants receive identical punishment for an offense. See Jones v. State, 669 So.2d 1383, 1393 (Miss.1995). The evidence presented at trial showed that McCoy forcibly entered the Whittingtons’ home, robbed them at gunpoint, threatened to kill their children, and knocked Michael unconscious. The quality of this crime is certainly serious enough to warrant a harsh penalty, within the statutory limits. The court, having heard this evidence, was entitled to exercise its discretion in fixing McCoy’s sentence. This argument is without merit.

B. Whether McCoy’s sentences were the result of vindictiveness.

¶ 22. The Due Process Clause of the Fourteenth Amendment prohibits vindictiveness against a defendant for having attacked his first conviction from playing any part in the sentence he receives upon reconviction. North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). “Beyond doubt, vindictiveness of a sentencing judge is the evil the [Pearce ] Court sought to prevent rather than simply enlarged sentences after a new trial.” Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). Thus, where there is a “reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority,” there is a presumption of vindictiveness. Smith, 490 U.S. at 799, 109 S.Ct. 2201.

¶ 23. However, no presumption of judicial vindictiveness arises “when the first sentence was based upon a guilty plea, and the second sentence follows a trial.” Id. at 795, 109 S.Ct. 2201. This Court has followed the United States Supreme Court’s holding in Smith when dealing with claims of vindictiveness in cases involving successor judges, holding that “[a] judge imposing the second sentence but not the first has no reason to be vindictive concerning the defendant’s attack of the first conviction.” Bush v. State, 667 So.2d 26, 29 (Miss.1996). “Certainly, a judge who hears the defendant, the victim, and other circumstances of the crime at trial is entitled to impose a higher sentence than the judge who hears only the admission of guilt at a plea hearing.” Id.

¶24. Here, Judge Howorth, the judge who sentenced McCoy after his trial, did not sentence him after his guilty plea. Because Judge Howorth did not impose McCoy’s original sentence, he had “no personal stake in the prior conviction and no motivation to engage in self-vindication.” See Chaffin v. Stynchcombe, 412 U.S. 17, 27, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). Where different sentencers impose varying sentences, “a sentence ‘increase’ cannot truly be said to have taken place.” McCullough, 475 U.S. at 140, 106 S.Ct. 976. Accordingly, the burden remains on McCoy to prove actual vindictiveness in his sentencing. See Smith, 490 U.S. at 799, 109 S.Ct. 2201.

¶ 25. Upon review of the record, we find that McCoy has failed to prove any actual vindictiveness in his sentencing. Prior to McCoy’s sentencing hearing, Judge Howorth ordered a presentencing investigation and report of McCoy to be made. See URCCC 11.02. Judge Ho-worth reviewed this report prior to the sentencing hearing and referred to it at the hearing. Judge Howorth also reviewed mortality tables to determine McCoy’s life expectancy. At the sentencing hearing, McCoy was allowed to present mitigation testimony through his sister and through a letter from his wife. The defense also noted that McCoy had no prior criminal history. Judge Howorth took these factors into consideratioh but also stated several aggravating factors on the record, including the seriousness of the crime, that there were two victims, and that McCoy continued to deny responsibility for the crime. Judge Howorth used these aggravating factors to conclude that McCoy’s sentences should run consecutively rather than concurrently. Having heard the circumstances of the crime through the evidence presented at trial, Judge Howorth was entitled to impose a harsher sentence than a judge who merely accepted McCoy’s initial guilty plea. See Bush, 667 So.2d at 29. McCoy has failed to prove that his sentences were the result of vindictiveness.

II. Whether the trial court erred by failing sua sponte to declare a mistrial due to counsel’s use of . the golden-rule argument.

¶ 26. “It has long been the law in this state that “golden rule” arguments, i.e., asking the jurors to put themselves in the place of one of the parties, will not be permitted in civil cases.” Chisolm v. State, 529 So.2d 635, 640 (Miss. 1988). In Chisolm, this Court expanded the prohibition against the “golden rule” argument to criminal cases. See id. at 640. The reason behind such a prohibition is the premise that a person should not be the judge of his own case, which has been stated by this Court as follows:

It is the essence of our system of courts and laws that every party is entitled to a fair and impartial jury. It is a fundamental tenet of our system that a man may not judge his own case, for experience teaches that men are usually not impartial and fair when self interest is involved.

Danner v. Mid-State Paving Co., 252 Miss. 776, 786, 173 So.2d 608 (1965). On the other hand, it is well-settled that attorneys are granted wide latitude in making opening and closing statements. Dampier v. State, 973 So.2d 221, 235 (Miss.2008). The trial court is provided considerable discretion in determining whether a particular remark is so prejudicial that a mistrial should be declared. Edmond v. State, 312 So.2d 702, 705 (Miss.1975). When such a statement is “sufficiently insignificant in the overall context of the case,” the result is harmless error. Chisolm, 529 So.2d at 640.

¶ 27. McCoy argues that both the prosecutor and his own counsel made use of the golden-rule argument during trial. We address McCoy’s attorney’s statements as an ineffective-assistance claim below in Section III of this discussion.

¶ 28. McCoy argues that the following statement by the prosecutor during opening statements constituted an impermissible golden-rule argument:

[The Whittingtons] are in their bedroom .... It’s not another normal day in paradise, but it’s another day in Union County with normal people like me and you and everyone else, and all of a sudden all of that changed. It wasn’t a day in paradise anymore.

(Emphasis added.) McCoy claims this statement should have prompted the trial court to declare a mistrial.

¶ 29. McCoy did not object to the prosecutor’s statement during opening statements and is therefore procedurally barred from raising this issue for the first time on appeal. See Edwards v. State, 737 So.2d 275, 299 (Miss.1999). Accordingly, McCoy must rely on the plain-error doctrine to raise this assignment of error on appeal. Foster v. State, 639 So.2d 1263, 1289 (Miss.1994) (citing Gray v. State, 487 So.2d 1304, 1312 (Miss.1986)). Under this Court’s plain-error review of alleged improper statements by trial counsel, this Court will reverse only if the attorney’s statement “was so inflammatory that the trial judge should have objected on his own motion.” O’Connor v. State, 120 So.3d 390, 399 (Miss.2013). This Court must determine “whether the natural and probable effect of the improper argument creates an unjust prejudice against the accused resulting in a decision influenced by the prejudice so created.” Outerbridge v. State, 947 So.2d 279, 286 (Miss.2006) (citing Wells v. State, 698 So.2d 497, 507 (Miss.1997)) (internal citations omitted).

¶ 30. We find that the trial court did not err in failing to grant a mistrial sua sponte based on statements by the prosecutor. The attorneys’ statements, when taken into context, did not ask the jurors to put themselves in the victims’ place to determine McCoy’s guilt. By simply mentioning “normal people like me and you,” the prosecutor did not ask the members of the jury to place themselves in the position of the Whittingtons under the specific circumstances of the crime. See, e.g., Holliman v. State, 79 So.3d 496, 499-500 (Miss.2011) (finding that prosecutor committed reversible error in murder trial by asking jurors how they would feel if he walked into the courtroom and pointed a loaded shotgun at them, and the defendant was charged with fatally shooting his wife with a shotgun).

¶ 31. Even assuming, arguen-do, that this isolated statement could constitute a golden-rule argument, there is no evidence suggesting that McCoy was unduly prejudiced by the statement. This Court has found harmless error in statements far more egregious than the one at issue in the instant case. For example, in Chisolm, another armed-robbery case, this Court found that the following statement by the prosecutor was not significantly inflammatory to influence the jury: “Think about yourself being a seventy-one-year old person, minding your own business, driving your own tractor on your own land, business as usual, and then one day this happens to you and, all of a sudden, you are laying there on the ground.” Chisolm, 529 So.2d at 640. In addition, in Wells v. State, 698 So.2d at 506-07, a capital-murder case, this Court found the following statement by the prosecutor to be harmless error in light of the overwhelming evidence against the defendant:

You know, this case hits kind of close to home to me. I’ve got a thirteen year old. Got another one that’s not much older than that.... I can’t imagine a set of circumstances when somebody could come into my house while my child is sitting on the couch watching television or asleep, stab them seventeen times— ... [l]eave them on the floor to bleed to death, and then throw him in a shallow grave, and call that self-defense. I couldn’t call that anything but capital murder, and I would venture to say that if it was your child, you couldn’t call it anything else either.... If you and I expect the law to protect our children or anybody else’s children, then it has got to stand up for Gary Wells, too....

“Exaggerated statements and hasty observations are often made in the heat of debate, which, although not legitimate, are generally disregarded by the court, because in its opinion they are harmless.” Monk v. State, 532 So.2d 592, 601 (Miss.1988). In the case at hand, we cannot say that the prosecutor’s reference to “normal people like me and you” during opening statements was so inflammatory that the trial court should have objected on its own motion. See O’Connor, 120 So.3d at 399. We find that the challenged statements by the prosecutor do not “create[ ] an unjust prejudice against the accused resulting in a decision influenced by the prejudice so created.” See Outerbridge, 947 So.2d at 286. This argument is without merit.

III. Whether McCoy was denied effective assistance of counsel.

¶ 32. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The test for proving ineffective assistance of counsel is two-fold; the defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Cabello v. State, 524 So.2d 313, 315 (Miss.1988) (citations omitted). Under the first prong of Strickland, “there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Under the second prong, even if counsel’s conduct is deemed to be “professionally unreasonable,” the jury’s verdict must stand “if the error had no effect on the judgement.” Id. at 691, 104 S.Ct. 2052. Accordingly, the defendant must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Id. at 694, 104 S.Ct. 2052. “Generally, ineffective assistance claims are more appropriately brought during post-conviction proceedings.” Bateman v. State, 125 So.3d 616, 633 (Miss.2013) (citing Archer v. State, 986 So.2d 951, 955 (Miss.2008)). However, such a claim may be raised on direct appeal “if such issues are based on facts fully apparent from the record.” Miss. R.App. P. 22(b).

¶ 33. McCoy asserts three claims of ineffective assistance: (1) his attorney failed to object to the prosecutor’s golden-rule argument during opening statements, (2) his attorney used a golden-rule argument during closing arguments, and (3) his attorney failed to request a cautionary instruction regarding Davis’s testimony.

¶ 34. McCoy first claims that his trial attorney was ineffective for failing to object to an improper golden-rule argument made by the prosecutor during opening statements. We find that the record on appeal is sufficient to determine that this claim is without merit. As discussed above in Issue II, the prosecutor’s reference to “normal people like me and you” did not constitute an impermissible golden-rule argument. Accordingly, McCoy’s trial counsel could not have acted deficiently by failing to object to the that statement.

¶ 35. Second, McCoy argues that he received ineffective assistance of counsel when his own attorney used an impermissible golden-rule argument. As the basis for this argument, McCoy points to the following statement made by his attorney during closing arguments:

Now, I want you to understand that I empathize with the Whittingtons. I really, really do, and I understand what it’s like to have an evening interrupted by violence. I understand that. So ' nothing that I say here today is to undermine that or demean that in any way because I truly, truly empathize with them. I also want you to understand that as jurors, not only do you put yourself in the shoes of the victims, but you also put yourself in the shoes of the defendant. Also keep in mind that, as the Court has told you, every material element of the offense of armed robbery has to be proven beyond a reasonable doubt....

(Emphasis added.) We find that the record is sufficient to find that this claim also is without merit. This Court has approved the use of the golden-rule argument as a method of weighing the credibility of a witness, as long as the jury’s neutrality on the issue of guilt is preserved. See Outerbridge, 947 So.2d 279, 286 (Miss.2006). When the above statement is read in context with the surrounding argument, it is clear to this Court that McCoy’s attorney was not asking the jurors to place themselves in either party’s position for the purpose of determining guilt, but was reminding the jury to consider both sides of the case, to refrain from relying on emotion, and to consider all of the evidence before reaching a verdict. McCoy’s attorney did not act deficiently by making this statement. Therefore, this claim does not meet the first prong of the Strickland test.

¶ 86. McCoy’s third claim of ineffectiveness is that his attorney failed to request a cautionary jury instruction regarding the credibility of Davis’s testimony. We find that this claim is not ripe for review on direct appeal, as it is not based on facts fully apparent from the record. Whether to request a certain instruction generally is a matter of trial strategy. See Havard v. State, 928 So.2d 771, 790-91 (Miss.2006). If McCoy’s trial attorney intentionally failed to request a cautionary instruction regarding Davis’s testimony, she may have done so as a part of her trial strategy. Post-conviction proceedings would give McCoy’s trial attorney a fair opportunity to explain any possible strategy in foregoing to request such an instruction. See, e.g., Grossley v. State, 127 So.3d 1143, 1149-50 (Miss.Ct.App.2013); Thompson v. State, 995 So.2d 831, 833 (Miss.Ct.App.2008). This claim more appropriately would be brought in a petition for post-conviction relief. Accordingly, we hold that Gage’s first two ineffective-assistance claims are without merit. We dismiss McCoy’s third ineffective-assistance claim, regarding his attorney’s failure to request a cautionary instruction, without prejudice so that he may raise this claim in a properly filed motion for post-conviction relief.

IY. Whether the trial court erred in finding that the State had provided sufficient race-neutral reasons for striking two African-American alternate jurors.

¶ 37. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the use of peremptory challenges against jurors “solely based on their race.” Johnson v. State, 529 So.2d 577, 583 (Miss.1988) (citing Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). When a party makes a claim that the opposing party has used a peremptory strike for a discriminatory purpose, the trial court employs the following procedure:

(1) the defendant must make out a pri-ma facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose; (2) once the defendant has made out a pri-ma facie case the burden shifts to the State to explain adequately the racial exclusion by offering permissible, race-neutral justifications for the strikes; and (3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. The burden remains on the opponent of the strike to show that the race-neutral explanation given is merely a pretext for racial discrimination.

Pruitt v. State, 986 So.2d 940, 942-43 (Miss.2008) (citing Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005)). With regard to the Batson procedure, “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). “This Court reviews a trial court’s ruling on a Batson challenge with great deference and will not overturn the trial court’s ruling unless it is clearly erroneous or against the overwhelming weight of the evidence.” Id. at 942 (citing Flowers v. State, 947 So.2d 910, 917 (Miss.2007)).

¶ 38. McCoy claims that the trial court erred in failing to find that the State had committed a Batson violation by using two of its peremptory strikes on African Americans. During the selection of alternate jurors, the State used peremptory strikes on Barbara Robertson, Juror 41, and Willie Siddell, Juror 42, both of whom are African American. McCoy objected to these peremptory strikes. The State then offered race-neutral reasons for its strikes on the alternate jurors. The State explained that both of the stricken jurors had indicated during voir dire that they did not know if they could impose a life sentence for the crime of armed robbery. McCoy’s counsel responded by claiming that the jurors in question had been rehabilitated during voir dire and therefore could not be challenged for that reason. The trial court ultimately denied McCoy’s Batson challenge, finding that the State had offered a sufficient race-neutral reason for striking Jurors Robertson and Siddell.

¶ 39. Considering the standard of review, and after careful scrutiny of the record, we find that the trial judge’s denial of McCoy’s Batson challenge was not clearly erroneous. The reasons offered by the State were race-neutral and supported by the record. When asked whether they could impose a life sentence in an armed-robbery case, Barbara Robertson stated, “I just don’t know whether I could say life in prison for whatever, I don’t know. If it warranted it, I don’t know if I could or not.... I guess I could consider everything level to start with, but I just feel like that’s a lot for, you know, to decide somebody’s life in prison, you know.” And Willie Siddell, stated, “I don’t know if I could be sending somebody for life like that for a crime like this or not. I don’t really feel comfortable about doing nothing like that.” “A peremptory challenge does not have to be supported by the same degree of justification required for a challenge for cause.” Stewart v. State, 662 So.2d 552, 558 (Miss.1995). A juror’s unwillingness or inability to impose a legal sentence upon the defendant after reaching a guilty verdict certainly is a valid race-neutral reason for striking that juror. Cf Tanner v. State, 764 So.2d 385, 395 (Miss.2000) (finding juror’s statement that he would need a circumstantial-evidence instruction to “remove all reasonable doubt whatsoever in his mind,” which is not the law in Mississippi, to be a valid race-neutral reason for a peremptory strike); Manning v. State, 735 So.2d 323, 339 (Miss.1999) (finding juror’s disagreement with death penalty to be a sufficient race-neutral basis for upholding a peremptory strike against her). Moreover, we do not find that the State’s use of the two peremptory strikes in question evinces such a clear pattern of discrimination that its proffered explanations for the strikes are mere pretext. This argument is without merit.

Y. Whether the State violated McCoy’s right to be told about any promises made to Davis in exchange for his testimony.

¶40. McCoy asserts that evidence of a plea bargain or other agreement for leniency between Daws and the State was relevant to his credibility as a witness, and the jury was entitled to know of any such agreement. McCoy then claims that the State entered into a plea agreement with Davis in exchange for his testimony and withheld this information from the jury. McCoy argues that this withholding of evidence violated his right to due process.

¶ 41. The State must disclose any evidence that is favorable to the accused and “material either to guilt or to punishmentf.]” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule. See Giglio v. U.S., 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). As the United States Supreme Court reasoned e\ren before thé Brady rule became law, “[t]he jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). This Court has specifically held that not only must a leniency agreement with a state witness be disclosed to the defense, but the defense also is entitled to present evidence of that agreement to the jury where such would tend to impeach or show bias in the testimony of the witness. Barnes v. State, 460 So.2d 126, 131-32 (Miss.1984).

¶42. Nondisclosure of exculpatory or impeachment evidence does not automatically rise to the level of reversible error. “[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” U.S. v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Thus, “[t]o establish that a Brady violation undermines a conviction, a convicted defendant must make each of three showings: (1) the evidence at issue is ‘favorable to the accused either because it is exculpatory, or because it is impeaching’; (2) the State suppressed the evidence, ‘either wilfully or inadvertently’; and (3) ‘prejudice ensued.’ ” Skinner v. Switzer, — U.S. —, 131 S.Ct. 1289, 1300, 179 L.Ed.2d 233 (2011) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).

¶43. The record in the instant case does not support McCoy’s assertion that the prosecution suppressed evidence of a plea agreement between Davis and the State. On the contrary, it was the State, not the defense, that initially revealed its agreement with Davis to the jury. Prior to trial, the defense filed a Motion to Reveal the Deal, requesting the trial court to require the State to produce any evidence of any agreement made with Davis in exchange for his testimony. The State responded that no formal plea agreement had been made, but Davis had been promised that his cooperation would be made known to the sentencer at the conclusion of his prosecution. The State introduced this agreement during Davis’s direct examination. Davis explained that he believed the State was waiting to try him after McCoy and Hopson, who was still imprisoned in Tennessee at the time. When asked if he had been promised anything in exchange for his testimony, he replied, “Just my cooperation will be noted to the Judge.” He further stated that he had not been promised any specific sentence. McCoy’s attorney never objected to Davis’s testimony. During Davis’s cross-examination, McCoy’s counsel asked, “The reasons you have not [been tried] is because, in essence, you’ve been promised that this case would go away and it will be dismissed against you?” Davis again responded in the negative. The record does not support McCoy’s allegations that the State withheld any information regarding its promise to make Davis’s cooperation known at his eventual sentencing, nor does it appear that any other hidden deal existed between Davis and the State. This argument is without merit.

VI. Whether McCoy’s in-court identification was so suggestive as to violate due process of law.

¶ 44. Usually, the suggestiveness of an identification is raised to challenge an in-court identification after a pretrial identification has been made. In such a case, the trial court would evaluate the factors announced in Neil v. Biggers, 409 U.S. 188, 196-98, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), in order to determine whether the in-court identification testimony appears sufficiently reliable to overcome the taint of a prior improperly obtained identification. See, e.g., Butler v. State, 102 So.3d 260 (Miss.2012). The standard of review in such cases is whether substantial credible evidence supported the trial court’s findings regarding the admissibility of the in-court identification. Id. at 264.

¶45. Here, though, McCoy was not subjected to a pretrial identification. Rather, McCoy claims that Heather’s in-court identification of him as one of the men who robbed her was impermissibly suggestive. In such a case, the general rule is that an in-court identification is not subject to suppression or objection unless it is shown to have been tainted by some suggestive out-of-court identification. Smith v. State, 430 So.2d 406, 407 (Miss. 1983). This Court has held that the question in this type of case is “whether familiar standards of due process permit a conviction where the only identification ever made suffers from the suggestiveness of being directed at an individual who the witness knows has been arrested, indicted and brought to trial on the charge in question.” Gayten v. State, 595 So.2d 409, 418 (Miss.1992). In Gayten, as in this case, the only identification of the defendant was made during trial by a witness. Id. The Court recognized that the defendant, represented by counsel, made no attempts to avoid a “suggestive identification forum. He did not request that others be seated at the counsel table with him or that he be seated at some place other than the counsel table before [the witness] was brought into the courtroom and asked to identify him.” Id. (citing Moore v. Illinois, 434 U.S. 220, 231 n. 5, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977)). Because the defendant did not attempt to avoid the issue of a suggestive in-court identification, this Court found that he could not then claim a due-process violation resulting from the identification. Gayten, 595 So.2d at 418. Ultimately, this Court held that the evidence was sufficient for a fair-minded jury to believe the witness’s identification testimony. Id.

¶ 46. In this case, as in Gayten, no one made a pretrial identification of McCoy as a perpetrator of the robbery. Instead, Heather identified him at trial as one of the robbers. McCoy, who sat at the counsel table with his attorney, took no steps to avoid a suggestive in-court identification. Accordingly, McCoy cannot now complain that his due-process rights were violated by Heather’s identification testimony. See id.; Amos v. State, 911 So.2d 644, 653 (Miss.Ct.App.2005). In addition, on review of all the evidence presented at trial, including the descriptions of McCoy offered by Heather and the other witnesses, we conclude that a fair-minded jury was entitled to find Heather’s in-court identification of McCoy credible. This argument is without merit.

VII. Whether McCoy was entitled to a circumstantial-evidence instruction.

¶ 47. When the evidence against the accused is wholly circumstantial in nature, the trial court must instruct the jury that the State is required to prove the accused’s guilt not only beyond a reasonable doubt, but to the exclusion of “every reasonable hypothesis other than that of guilt.” Manning v. State, 735 So.2d 323, 338 (Miss.1999) (quoting Givens v. State, 618 So.2d 1313, 1318 (Miss.1993)). McCoy claims that he was entitled to such an instruction because the State failed to present direct evidence that he committed the robbery.

¶ 48. This argument is both pro-eedurally barred and substantively without merit. First, McCoy did not request a circumstantial-evidence instruction at trial. Accordingly, McCoy is barred from raising this issue for the first time on appeal. See Anderson v. State, 904 So.2d 973, 977 (Miss.2004).

¶ 49. Notwithstanding the procedural bar, the evidence against McCoy was not wholly circumstantial in nature. This Court has held that direct evidence includes eyewitness testimony to the gravamen of the offense or a confession by the defendant. Grayer v. State, 120 So.3d 964, 968 (Miss.2013). Here, both Michael and Heather provided eyewitness testimony of the robbery. Specifically, Heather testified that McCoy took her jewelry from her at gunpoint. Therefore, a circumstantial-instruction was unwarranted in this case. This argument is without merit.

CONCLUSION

¶ 50. For the foregoing reasons, we affirm McCoy’s convictions and sentences.

¶ 51. COUNT I: CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY-FIVE (35) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE (5) YEARS SUSPENDED AND THIRTY (30) YEARS TO SERVE, AFFIRMED. COUNT II: CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY-FIVE (35) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE (5) YEARS SUSPENDED AND THIRTY (30) YEARS TO SERVE, AFFIRMED. SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO SENTENCE IN COUNT II FOR A TOTAL TERM OF IMPRISONMENT OF SEVENTY (70) YEARS, WITH TEN (10) YEARS SUSPENDED, AND SIXTY (60) YEARS TO SERVE. UPON HIS RELEASE, APPELLANT SHALL BE PLACED ON FIVE (5) YEARS OF POST-RELEASE SUPERVISION. IN ADDITION, DURING THE PERIOD OF POST-RELEASE SUPERVISION, APPELLANT SHALL PAY $4,600 IN RESTITUTION TO THE VICTIMS, ALONG WITH ALL COURT COSTS.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Michael testified that he followed the black Volvo away from his house and reported the license plate number to the police because he knew that no one living on County Road 56 drove that particular car.

      . McCoy also briefly argues that the prosecutor's reference to the people of Union County constituted an improper “send a message” argument. Again, because McCoy did not object to this statement at trial, he is procedurally barred from raising the issue on appeal. Edwards, 737 So.2d at 299.

      . Throughout his pro se brief, McCoy seems to suggest that the trial court erred in requiring the defense to provide race-neutral reasons for its peremptory strikes. The record does not support this allegation, as the State did not object to any of the defense's peremptory strikes. Thus, we discuss only the State’s peremptory strikes that were challenged by McCoy.