author: CHANDLER, Justice, KITCHENS, Justice,

text:
    Levi L. JENKINS a/k/a Levi Jenkins a/k/a Levi Leverne Jenkins v. STATE of Mississippi.
    No. 2011-KA-01267-SCT.
    Supreme Court of Mississippi.
    Oct. 31, 2013.
    Rehearing Denied Feb. 20, 2014.

      Michael W. Crosby, Gulfport, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   CHANDLER, Justice,

for the Court:

¶ 1. Levi Jenkins was indicted and tried in the Circuit Court of Pearl River County on two counts of sexual battery and one count of statutory rape against his then-five-year-old niece. He was convicted only of fondling, a lesser-included offense of the second count of sexual battery. Jenkins timely appealed, raising various issues. Finding his arguments to be without merit, we affirm the judgment of conviction of the Circuit Court of Pearl River County.

FACTS

¶ 2. In the summer of 2007, V.R. and her mother were living in V.R.’s grandfather’s home along with various cousins and uncles, including V.R.’s uncle, Levi Jenkins. V.R. was then five years old. Jenkins, who turned nineteen on July 5, 2007, babysat V.R. that summer while her mother was at work.

¶ 3. At trial, V.R. testified that, on various occasions, Jenkins would take her to a shed in the back yard, claiming to have a birthday present for her. Once inside, Jenkins would stand V.R. up or place her on top of the washing machine, unzip his pants, pull down her pants and underwear, touch her “private parts” with both his hands and his “thing,” and force V.R. to touch his “thing” with her mouth. V.R. stated that she would resist and that Jenkins’s penis would only touch the side of her vagina, and that his penis did not enter her mouth. V.R. testified that she saw “white stuff’ come out of Jenkins’s “thing,” and that he would use a towel from the dirty clothes to clean it up. Further, V.R. testified that Jenkins made her look at “nasty magazines” and “drink something only adults drink,” and that he told her he would “whoop her” if she told anyone about what he had done.

¶ 4. According to V.R., this abuse happened multiple times between June and July of 2007, before her grandfather died and before August of 2007. However, she said one specific incident happened on July 16, 2007, which she testified she remembered because she wrote it in her diary. V.R. eventually told her stepmother, Melanie Lynn Frierson, about the sexual abuse because the “guilt was eating [her] alive.” Frierson then notified the police.

¶ 5. Along with Frierson, who testified that V.R. had told her that she almost got raped by Jenkins and that Jenkins made her “suck his thing” in the shed, V.R. also described the alleged abuse to the following witnesses during August of 2007: Christian Clark, a forensic interviewer employed by the Child Advocacy Center in Gulfport, Mississippi; Kim Gutherz, a registered nurse who examined V.R. at the Care Clinic; and Rhonda Poche, a deputy for the Pearl River Sheriffs Department. Each of these witnesses testified to similar accounts that V.R. had given to them. Clark found that V.R.’s behavior was consistent with a child who had been sexually abused, as V.R. was not only able to describe sexual acts, but also was able to describe her experience of those acts. Poche testified that, during the police investigation, V.R. seemed embarrassed and kept her head down while she talked. Gutherz, however, testified that a physical examination did not reveal any bleeding or scarring, and that she could not physically conclude whether or not V.R. had been sexually abused.

¶ 6. The jury returned a verdict finding Jenkins guilty of the lesser-included-offense of fondling in Count II, but not guilty as to sexual battery in Count I and statutory rape in Count III. Jenkins was sentenced to serve a term of fifteen years in prison, ordered to pay a $1,000 fine and to register as a sex offender for the rest of his life, and he was prohibited from having any contact with V.R. or her family. After the trial court denied Jenkins’s Motion for Judgment Notwithstanding the Verdict or in the Alternative a New Trial, Jenkins timely appealed. He now argues that a discovery violation occurred when V.R. testified to having a diary that was not disclosed during discovery. Further, he claims the indictment was fatally flawed because it did not specify the dates of the alleged abuse and because V.R.’s testimony varied the dates of the alleged abuse. Finally, he argues that there was insufficient evidence to support both the lesser-included-offense instruction on fondling as well as the conviction of fondling, and that the verdict was against the overwhelming weight of the evidence.

DISCUSSION

I. Whether the trial court erred in ruling that no discovery violation had occurred.

¶ 7. Jenkins first argues that the trial court erred by ruling that no discovery violation had occurred, after V.R. had made reference during her direct examination to a diary which was not disclosed in discovery. Jenkins now contends that the court should have compelled the State to produce the diary and that he is entitled to a new trial under this Court’s decision in Box v. State, 437 So.2d 19 (Miss.1983). He argues the diary may have contained exculpatory evidence, and that a recess from the proceedings should have been granted to allow his counsel to review the diary.

¶ 8. To establish that the abuse occurred during the period alleged in the indictment, the State asked V.R. the following questions:

Q. Did any of these things happen close to your birthday?
A. Yes, ma’am.
Q. Okay. Before August of that year?
A. (Witness nods in the affirmative). Between June and July. It was — I think the last time it happened it was July 16th.
Q. Why do you remember that day so specifically?
A. Because I wrote it in my diary a long time ago.

Jenkins’s counsel immediately approached the bench and argued that a discovery violation had occurred because the prosecution had not disclosed a diary during discovery. The prosecution stated it did not have such a diary and contended that it could not “possibly predict every single thing a witness is going to say on the stand.” Jenkins’s counsel argued he had been “blasted with something that’s not in discovery ... that may have exculpatory evidence,” and asked to reserve a motion to “see what was said about the diary[,][a]nd then I may have a motion or something may lead to possible mistrial or something.” The trial judge granted this request but also accepted the State’s explanation that it did not have any knowledge of a diary. The trial judge instructed the State to move on to other questions, and no further testimony regarding the diary was given.

¶ 9. The following day, Jenkins renewed his motion and requested an opportunity to interview V.R. about the diary or to examine the diary itself. The trial judge allowed a continuing objection, but explained why he overruled Jenkins’s motion:

I believe the utterance from the alleged victim reflected that she knew the date of the last incident because of her diary. And I ruled at that time that just for clarification that since the State did not offer any diary, did not know of any diary, it may or may not exist, or ask the witness about any diary that she may have kept, that I overruled your motion.

The trial judge reiterated that the diary was not being offered into evidence, and further stated that “the Box factors are not in play, because you’re not even alleging that the State knew about any existence of any diary ... but we do agree that it was not intentional failure to provide something during discovery that does exist.” The prosecution stated that it did not seek to introduce any evidence in regard to the diary.

¶ 10. A trial court’s rulings on discovery matters, including whether or not a discovery violation has occurred, are reviewed for abuse of discretion. Montgomery v. State, 891 So.2d 179, 182 (Miss.2004). In Box v. State, we granted reversal where the State knowingly withheld the identity of a key witness from the defendant before trial, and we set forth guidelines for how a trial judge should proceed after a discovery violation. Box, 437 So.2d at 21-26. However, in Mills v. State, we affirmed that no discovery violation occurred where the State did not disclose, prior to trial, the potential testimony of a witness of whom it had no knowledge until she came forth during the trial. Mills, 813 So.2d 688, 692 (Miss.2002). Here, the trial judge was faced with a situation analogous to Mills, in that both sides claimed to be unaware that V.R. had kept a diary.

¶ 11. The procedure a trial judge must follow when a discovery violation is alleged at trial is set forth in Rule 9.04(1) of the Uniform Rules of Circuit and County Court Practice, which states that:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-diselosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.

URCCC 9.04(1) (emphasis added). The threshold determination under Rule 9.04(1), then, is whether the prosecution attempts to introduce evidence which it was required to timely disclose under Rule 9.04. The trial judge found that “the State did not offer any diary, did not know of any diary, it may or may not exist, or ask the witness about any diary that she may have kept.” If the State did not attempt to introduce a diary, the existence of which it was totally unaware and which it could not have disclosed previously, the trial judge was not required under Rule 9.04(1) to allow Jenkins to interview V.R. regarding the diary or to order the diary’s production. See Coleman v. State, 915 So.2d 468, 475 (Miss.Ct.App.2005) (holding that Rule 9.04(1) “only applies when there has been a discovery violation, and the trial court in the case sub judice found that no discovery violation had occurred”).

¶ 12. We do note our decision in Russell v. State, 789 So.2d 779 (Miss.2001). There, a witness testified to facts tending to disprove the defendant’s insanity defense which the State learned of the morning of trial but did not disclose to the defendant beforehand. Id. at 784-85. The trial judge denied the defendant’s request to interview the witness about the undisclosed testimony because he found that no discovery violation had occurred and that, as such, the procedures set forth in Box and Rule 9.04(1) were not triggered. Id. at 786. We stated that there is “no requirement ... that the trial court find a discovery violation before allowing the defendant to interview the witness and proceed through the steps outlined” in Box and its progeny, and urged trial courts “to follow the dictates of common sense on a case-by-case basis when faced with such a situation.” Id. Because the State admitted on appeal that it had committed a discovery violation, we held that:

Where, as here, the defendant is surprised with new evidence and where, as here, that evidence was known to the prosecution, though only for a short time, and where, as here, that evidence is detrimental to a central theory of defense, the defendant is entitled, at the very least, to an interview with the witness. The consumption of “10, 15, or 30 minutes for the attorney to investigate the ease” is a small price to pay to insure that the rule of law is followed.

Id. (emphasis added).

¶ 13. This case differs from Russell, in which a discovery violation undoubtedly occurred. Here, the State denied having any knowledge of the diary before V.R.’s testimony and did not attempt to introduce the diary. In light of Russell, we decline to adopt the position urged by the defendant that, pursuant to Mills, the revelation of new evidence during trial always triggers a Box analysis; rather, we leave the determination of whether to apply the Box factors to the sound discretion of the trial judge who is in the best position to gauge the effect of new evidence. At the very least, Russell affords a trial judge discretion in determining whether to allow an investigatory interview or inspection of newly disclosed evidence where no discovery violation has occurred. We are in no better position than the trial judge to determine whether the State knew of the existence of a diary. We cannot say he abused his discretion in denying Jenkins an opportunity to interview V.R. or inspect the diary where neither side was aware of the diary prior to V.R.’s testimony and where the existence of the diary itself was in doubt. This issue is without merit.

II. Whether the indictment was fatally flawed due to the range of dates given in Count II.

¶ 14. Jenkins further argues that Count II of the indictment was fatally flawed because the dates of the offense included in the indictment differed from the dates V.R. testified to at trial. Count II of the indictment alleged that the abuse occurred “between the dates of July 1, 2007 and August 5, 2007,” whereas V.R. testified that it occurred “[bjetween June and July-I think the last time it happened it was July 16th.” One of seven items required for a legally sufficient indictment is the date on which the alleged crime occurred, but “[fjailure to state the correct date shall not render the indictment insufficient.” URCCC 7.06; Havard v. State, 928 So.2d 771, 801 (Miss.2006). We also have held that “a specific date in a child sexual abuse case is not required so long as the defendant is ‘fully and fairly advised of the charge against him.’ ” Eakes v. State, 665 So.2d 852, 860 (Miss.1995) (quoting Morris v. State, 595 So.2d 840, 842 (Miss.1991)).

¶ 15. In Voyles v. State, the defendant’s indictment for fondling a four-year-old girl stated that the incident occurred “sometime between February and May of 1999.” Voyles v. State, 822 So.2d 353, 356 (Miss.Ct.App.2002). The defendant complained the range of dates deprived him of the ability to present an alibi or impossibility defense. Id. at 357. The Court of Appeals pointed out that the four-year-old child was “unable to comprehend days, weeks, and months as do older children and would be unable to say exactly when the incident occurred,” and held there was no error where the State could not possibly provide a more specific date. Id.

¶ 16. Count II of the indictment fully notified Jenkins of the charges against him and is legally sufficient. Even though the dates varied slightly between the indictment and V.R.’s testimony, the rules clearly state that failure to include the specific date in the indictment is not enough to render an indictment legally insufficient, and we previously have not required a specific date in a case of sexual abuse of a child. As in Voyles, a child who was five years old at the time of the abuse should not be expected to recall the exact dates that abuse occurred. Ultimately, however, V.R. was able to testify that the abuse occurred in July, within the time frame specified in the indictment, referencing one occurrence of abuse on July 16. Jenkins’s argument is without merit.

III. Whether there was sufficient evidence to support a lesser-included-offense instruction on fondling and for the trial judge to deny Jenkins’s motions for directed verdict and judgment notwithstanding the verdict, and whether the trial court erred in denying his motion for a new trial.

¶ 17. Jenkins combines these issues into one argument in his brief. He argues that there was insufficient evidence for the trial judge to grant the State’s lesser-included-offense instruction on fondling and to deny his motions for directed verdict and judgment notwithstanding the verdict (JNOV). This argument is based solely on his assertion that the element of lustful intent in fondling could not be proven by the evidence presented at trial.

A. Whether the trial court erred in giving Jury Instruction 13

¶ 18. Jenkins argues the trial court erred in giving Jury Instruction 13, a lesser-included-offense instruction regarding fondling under Count II. A lesser-included-offense instruction may be given where there is some evidence supporting the lesser-included offense. Gause v. State, 65 So.3d 295, 300 (Miss.2011). Fondling is the handling, touching, or rubbing of a child under the age of sixteen by someone over the age of eighteen with the hands or any other body part for the purpose of gratifying his or her lust or indulging his or her depraved licentious sexual desires. Miss.Code Ann. § 97-5-23(1) (Rev.2006). Sexual battery under Section 97 — 3—95(l)(d) differs from fondling in this case only in that it requires evidence of sexual penetration and does not require a showing of lustful or licentious intent. Miss.Code Ann. § 97-3-95 (Rev.2006). We previously have held that fondling under Section 97-5-23(1) is a lesser-included offense of sexual battery under Section 97-3-95. Friley v. State, 879 So.2d 1031, 1035 (Miss.2004).

¶ 19. Jenkins’s only argument is that no evidence was presented that he touched V.R. in order to gratify his lust or indulge his depraved licentious sexual desires. He claims that lustful purpose was not shown because there was no testimony at trial that he moaned, touched himself, or moved back and forth during the incidents. In Friley, we held that the element of lustful intent could be proved by inferences drawn from the circumstances of the situation. Friley, 879 So.2d at 1035. We stated that by “the very acts of grabbing [the victim], touching her genital area, and touching himself, he was gratifying his lust. There is no other reason why [the defendant] would have performed these acts.” Id. Similarly, in Goodnite v. State, we held that evidence of attempting to and succeeding in pinching a child’s private parts was sufficient for a reasonable jury to find the defendant acted with a lustful purpose. Goodnite v. State, 799 So.2d 64, 69 (Miss.2001).

¶ 20. Ample evidence supported the lesser-included offense of fondling, and the intent element of fondling can be inferred from Jenkins’s actions. V.R. testified that Jenkins removed her pants and underwear, touched her “private part” with both his fingers and penis, and forced her to touch his penis with her mouth, and that “white stuff’ would come out of his penis. The very fact that Jenkins did these things supports a reasonable inference that he was gratifying his lust, and no reasonable juror possibly could have found otherwise. Sufficient evidence supported the lesser-included offense of fondling, and the trial court did not err in granting Jury Instruction 13.

B. Whether the trial court erred in denying Jenkins’s motions for directed verdict and judgment notwithstanding the verdict.

¶ 21. Jenkins further argues the trial court erred in failing to grant his motions for a directed verdict and judgment not withstanding the verdict. Again, his only argument is that the State did not provide any evidence to satisfy the lustful or licentious intent element of fondling. Both motions for a directed verdict and judgment notwithstanding the verdict “challenge the legal sufficiency of the evidence.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). When reviewing the denial of these motions, we must accept as true the credible evidence consistent with the verdict, draw all reasonable inferences from the evidence in favor of the prosecution, and respect the jury’s judgment regarding the weight and credibility of the evidence. Id. If “reasonable fair-minded men in the exercise of impartial judgment” could have concluded that the defendant was guilty beyond a reasonable doubt, the evidence is sufficient. Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 22. V.R.’s testimony at trial, which we need not repeat again, was sufficient to establish the elements of fondling beyond a reasonable doubt. “[T]he unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where the testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.” Cross v. State, 759 So.2d 354, 356 (Miss.1999). V.R.’s therapist testified that V.R.’s conduct was consistent with one who is the victim of a sex crime. Moreover, V.R. also gave consistent statements to her stepmother, a deputy sheriff, and a nurse, who each testified to her description of the abuse at trial. Viewing all this evidence in the light most favorable to the State, reasonable minds could have found Jenkins guilty beyond a reasonable doubt. The trial court did not err in denying these motions.

C. Whether the trial court erred in denying Jenkins’s motion for a new trial.

¶ 23. Lastly, Jenkins argues that the trial court erred in denying his motion for a new trial. In reviewing the denial of a motion for a new trial, the evidence must be viewed in the light most favorable to the verdict, and a new trial should be granted only in those “exceptional cases in which the evidence preponderates heavily against the verdict” and is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss.2000)).

¶ 24. Several witnesses, including V.R. herself, testified to the elements of the crime as stated above, while Jenkins called no witnesses of his own and points to no evidence in the record which preponderates heavily against the verdict. Jenkins’s brief includes no argument as to why the verdict was against the overwhelming weight of the evidence, relying only on his argument that the evidence was insufficient to support the verdict. We have “repeatedly held that where the appellant provides no meaningful argument in support of an assignment of error raised, the issue is waived on appeal.” Duncan v. State, 939 So.2d 772, 784 (Miss.2006). Regardless, when viewed in the light most favorable to the verdict, the evidence was such that allowing the verdict to stand would not sanction an unconscionable justice. The trial court did not err in denying Jenkins’s motion for a new trial.

CONCLUSION

¶ 25. Finding each of Jenkins’s assignments of error to be without merit, we affirm the judgment of conviction of the Circuit Court of Pearl River County.

¶ 26. COUNT II: CONVICTION OF LESSER INCLUDED OFFENSE OF FONDLING AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

KITCHENS, Justice,

dissenting:

¶ 27. The majority rejects Jenkins’s arguments concerning the diary, treating the issue as a discovery violation. I agree that there can be no discovery violation if a witness testifies at trial about a matter previously unknown to either party; but the absence of prior knowledge does not prohibit the trial court from granting appropriate remedies to a disadvantaged party. The trial court did not consider Jenkins’s arguments that V.R.’s testimony was not a simple matter of an alleged “discovery violation.” Thus, the wrong legal standard was applied to these arguments, which denied the defendant any means of assessing and responding to the evidence against him. Because the majority opinion adopts the same reasoning as the trial court, I respectfully dissent and would reverse the conviction and remand the case for a new trial.

¶ 28. The majority’s characterization of the defendant’s objection is misleading. Maj. Op. 7-8. The opinion says that Jenkins claimed a discovery violation, yet the record shows that, while his counsel did initially characterize it that way, this was simply his immediate impression. After V.R. mentioned the diary, Jenkins’s attorney immediately objected and requested a bench conference. His first argument was based on a perceived discovery violation, claiming that V.R.’s reference to an entry in her diary was prejudicial because it corroborated her recollection of a particular date. When the prosecuting attorneys replied that they did not have or know about a diary, defense counsel did not accuse the prosecuting attorneys of being dishonest with the court. According to Jenkins’s attorney, his objection to a discovery violation was simply an initial impression based on “the way the question was asked.” He did not contend that he had been “blasted with something that’s not in discovery,” but only said “that was my initial concern.” Maj. Op. 8. As discussed below, defense counsel made many arguments before the trial court, and none of his requests for relief was premised on the prosecuting attorneys’ prior knowledge.

¶ 29. In its analysis, the majority cites Mills v. State, 813 So.2d 688, 692 (Miss. 2002), a case involving a State’s witness who did not come forward until the trial was underway. Maj. Op. at 10. The opinion correctly recognizes that Jenkins’s case is analogous to Mills in that neither party was shown to have known that V.R. may have kept a diary related to her abuse; however, there is no further discussion of the case.

¶ 30. In fact, the Mills opinion supports Jenkins’s argument, for this Court held that, when new facts are revealed during trial, a trial court must consider a party’s request for Ror-like remedies, even when there is no discovery violation. Mills, 813 So.2d at 692 (citing Box v. State, 437 So.2d 19 (Miss.1983)). See also URCCC 9.04 (adopting the suggested procedures for alleged discovery violations as set forth in Justice Robertson’s specially concurring opinion to Box, 437 So.2d at 22-26).

¶ 31. In that case, a woman approached one of the prosecutors during trial and said that Mills had confessed to her that he had committed the crime. Mills, 813 So.2d at 691. The woman came forward with this new information during the State’s cross-examination of the defendant and after the State had presented its case in chief. Id. When Mills denied having any conversation with the woman about the alleged crime, the prosecutor immediately asked that the jury be excused. Id. With the jury out, the prosecutors informed the court and the defense of the new development, and said that they planned to call her as a rebuttal witness for impeachment purposes. Id. The trial court granted a recess to allow defense counsel to interview the newly discovered witness. Id. When the court reconvened, the defense attorney objected to her testimony, arguing that he had not had time to prepare. Id. The attorney did not offer anything other than this generic statement, and he did not request a continuance. Id. at 692. The trial court permitted the witness to testify for the State on rebuttal. Id. at 691.

¶ 32. On appeal, Mills argued that the woman’s testimony was improperly admitted because she had been present in the courtroom during portions of the trial and could have learned about all of the witnesses’ testimony through her family members who had heard all of the State’s witnesses. Id. at 692. Mills also argued that he was denied the opportunity to develop evidence for surrebuttal. Id. (citing Smith v. State, 646 So.2d 538, 543 (Miss.1994) (discussing the rule that when the State is allowed to present rebuttal evidence, the defense must be given the opportunity to reply by surrebuttal)).

¶ 33. The Court rejected these arguments by applying the principle announced in Box “that the accused has an interest in knowing reasonably well in advance of trial what the prosecution will try to prove and how it will attempt to make its proof.” Id. (citing Box, 437 So.2d at 21). The Court summarized the guidelines outlined in Justice Robertson’s specially concurring opinion (and as adopted in Rule 9.04 of the Uniform Rules of Circuit and County Court Practice). Id. Applying these guidelines, this Court found that the trial court had protected the defendant’s interest concerning the new evidence. Id. The Court explicitly recognized that the State’s lacking prior knowledge was not a bar to relief:

Unlike Box, this is not a case where the prosecution had knowledge that Veronica was a witness before trial began. The trial judge properly determined that there was no discovery violation. The prosecution did not withhold the new evidence and informed Mills and the trial court as soon as the new evidence was discovered. However, the Box guidelines are still appropriately considered when a trial court is presented with new evidence at trial.

Id. (emphasis added). The Court held that Mills’s interests were protected because he was allowed to interview the witness, the trial court did not restrict his cross-examination of the witness, Mills did not request a continuance, and there was nothing in the record (or argument before the trial court) indicating that Mills was prejudiced by the testimony or that he needed more time to develop his defense. Id.

34. Mills’s reasoning follows the rule that the State has a continuing duty to supplement discovery, and the timing of the prosecution’s knowledge is immaterial. “That the prosecution fails to unearth certain evidence until the last minute hardly eviscerates the prejudice to a defendant caught unaware, nor the necessity for reversal where the circuit court denies the defense request for a reasonable continuance.” West v. State, 553 So.2d 8, 16-17 (Miss.1989) (citing Cole v. State, 525 So.2d 365 (Miss.1987); Stewart v. State, 512 So.2d 889, 891-92 (Miss.1987); Foster v. State, 484 So.2d 1009, 1011 (Miss.1986)).

¶ 35. The distinction in Jenkins’s case is the trial court’s determination that the prosecuting attorneys did not learn about the diary until their witness testified at Jenkins’s trial. However, I cannot fathom any logical reason why their lack of advance knowledge would affect Jenkins’s right to investigate the existence and/or contents of the diary. The legal authority governing the State’s duty to disclose is guided by the principle that the accused must have a meaningful opportunity to defend against the charge and that one’s right to challenge the State’s evidence is inherent to the concept of a fair trial. Applying Mills and other supporting authority, the trial court erred in refusing Jenkins the means to investigate V.R.’s claimed written recording concerning the charges for which he was on trial.

¶ 36. Furthermore, Jenkins’s attorney correctly informed the court that the law imputes to prosecuting attorneys the knowledge of other State actors involved in the criminal investigation. Quoting Justice Robertson’s concurring Box opinion, this Court has held that the “State” is not limited to the individual prosecuting attorneys, but “is a team consisting of the attorney, the law enforcement officers of the jurisdiction in which the case is brought, all other cooperating law enforcement officials — municipal, county, state or federal, the prosecution witnesses, and any other persons cooperating in the investigation and prosecution of the case. What is known or available to any one or more is deemed to be known by or available to the State.” King v. State, 656 So.2d 1168, 1174 (Miss.1995) (quoting Box, 437 So.2d at 25 n. 4 (Robertson, J., concurring)). Therefore, the prosecuting attorneys’ lack of knowledge is not a bar, if other members of the State’s prosecution team had knowledge of a diary. We do not know the answer, for the trial court refused Jenkins any means of discovering the answer.

¶ 37. Mills ultimately found no reversible error because the defendant had not requested a continuance and had not demonstrated that the trial court’s attempts to cure any possible prejudice were insufficient. By contrast, Jenkins’s attorney thoroughly and astutely argued his position with support from relevant facts and legal authority. He pointed out that, without a chance to review the writing, or to discover if it existed, he would not know what relief was appropriate, noting that the possible remedies could range from a mistrial to a simple limiting instruction to the jury that they should disregard the statement.

¶ 38. As for possible prejudice, Jenkins gave a convincing argument, despite his being denied the opportunity to discover anything about the victim’s claim that she knew the specific date from her diary. Like many indictments involving sex crimes against minors, the charged crimes were alleged to have occurred between July 1, 2007, and August 5, 2007. Jenkins’s attorney argued the obvious: establishing an alibi for a specific date would have been significantly easier than recounting his whereabouts during an entire month. In fact, the heading to Issue One in Jenkins’s brief reads, “the trial court erred when it failed to compel the State to produce the alleged victim’s diary after she referred to it for the first time at trial when stating a date certain for one of the alleged offenses and different time span for the incident(s).” Notably, the record indicates that an alibi defense was contemplated in a report from a court-ordered mental evaluation finding Jenkins competent to stand trial. Concerning his ability to assist in his defense the report states, “[w]hen asked what he needed to do in order to help his lawyer prepare for his case, he replied, ‘Tell where I was at.’ ”

¶ 39. The majority opinion also accepts the trial court’s finding of no harm because the State did not intend to seek introduction of the diary into evidence. However, as Jenkins’s attorney explained, the diary itself was not the objectionable evidence; instead, it was V.R.’s testimony that she was able to remember a certain date because she had made a written recording. Under the Mississippi Rules of Evidence, and based on the transcript, the State would not have been permitted to admit the diary into evidence. See M.R.E. 612 (material used to refresh witness’s testimony may be placed into evidence by adverse party). See also M.R.E. 803(5) (if admitted, a recorded recollection “may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party”). Rule 612 provides,

If a witness uses a writing, recording or object to refresh his memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing, recording or object produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce into evidence those portions which relate to the testimony of the witness.

Even though the rule refers to the trial judge’s discretion, the trial court did not believe production was an option.

¶40. Finally, I respectfully disagree with the majority’s speculating that “without having to risk eliciting damaging testimony regarding the diary’s contents, Jenkins still could have questioned V.R. during cross-examination about whether she had ever discussed a diary with the prosecution or an investigator before trial, but chose not to.” Maj. Op. n. 2. The possibility of eliciting inculpatory evidence cannot be so easily dismissed. Defense counsel would be remiss in cross-examining a child witness about a diary allegedly written when this particular child was as young as five years old, and “[cjommon sense suggests that [a child’s] testimony be viewed with caution,” House v. State, 445 So.2d 815, 827 (Miss.1984) superseded on other grounds by M.R.E 702. He should have been allowed to question the victim about the diary, outside the presence of the jury. This would have given the defense an opportunity to develop valuable information concerning V.K.’s claims that she had made written recordings about her abuse.

¶ 41. For similar reasons, the defense attorney was justified in suspecting a discovery violation regarding the diary. V.R.’s statement that she had written the date in her diary immediately followed the prosecutor’s question, “[w]hy do you remember that day so specifically?” It would not have been unreasonable to assume that the attorney expected a specific answer. The prosecution seemed well-prepared for trial, and the attorneys were intimately familiar with facts of the case. Jenkins’s attorney could reasonably assume that the prosecutor would not have asked a question without anticipating the answer. It is a simple precept of good trial practice that trial counsel should never ask a question to which he or she does not know the answer.

¶42. As reflected in the defendant’s arguments at trial and on appeal, the issue is not a simple matter of discovery. The error raised on appeal goes to the very heart of what it means to have a fair trial, for this defendant was denied any means to assess testimony which significantly supported the State’s case against him. Because the defendant was handicapped in his ability to defend himself, I must respectfully dissent and would reverse the conviction and remand for a new trial.

KING, J., JOINS THIS OPINION.

      . V.R. was nine years old at the time of the trial.

      . Rule 9.04(A) requires the prosecution to disclose any relevant, physical evidence and exculpatory material "the existence of which is known or by the exercise of due diligence may become known to the prosecution.” URCCC 9.04(A). While Jenkins’s counsel speculated at trial that some investigator may have known of the diary even if the prosecutor did not, there is no evidence that the existence of a diary was known to the State or could have been known by the exercise of due diligence. Further, without having to risk eliciting damaging testimony regarding the diary’s contents, Jenkins still could have questioned V.R. during cross-examination about whether she had ever discussed a diary with the prosecution or an investigator before trial, but chose not to.

      . In closing arguments, the State argued that the abuse had occurred during the time span listed in the jury instructions (and the indictment), referencing V.R.’s testimony that she could remember the abuse occurring on a specific date, July 16.


source: Caselaw Access Project

author: DICKINSON, Presiding Justice,

license: Public Domain

text:
    Kathryn Schroeder CLARK, with Power of Attorney for Helen Schroeder v. Lisa Younger NEESE, Administratrix of the Estate of Harry L. Schroeder, Deceased.
    No. 2012-CA-00653-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2013.
    Rehearing Denied Feb. 20, 2014.

      Dunbar Dowdy Watt, Wayne Dowdy, Magnolia, attorneys for appellant.
    Norma Carr Ruff, Dan W. Webb, Tupe-lo, attorneys for appellee.
    Before DICKINSON, P.J., PIERCE and COLEMAN, JJ.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Helen Schroeder was a passenger in an automobile being driven by her husband, Harry Schroeder, when a log truck collided with the rear of the automobile, killing Harry and severely injuring Helen, who, since the accident, has substantially diminished mental capacity. In a federal lawsuit, Helen — both individually and as one of Harry’s wrongful-death beneficiaries — claimed the truck driver was at fault and denied that Harry was negligent. After the federal judge denied the defendant’s motion for summary judgment, Helen settled the federal suit. Helen then sued Harry’s estate in state court, claiming Harry was partially at fault. The circuit court granted summary judgment to the estate based on the doctrine of judicial estoppel. But, because the federal judge stated his denial of summary judgment was based on his finding of genuine issues of material fact as to the truck driver’s negligence, not “Harry Schroeder’s potential contributory negligence,” we reverse.

FACTS AND PROCEDURAL HISTORY

¶ 2. A log truck driven by Royce Sullivan collided with the rear of an automobile driven by Harry Schroeder, who had just pulled his car onto a highway in Lowndes County. Harry died as a result of the accident, and his wife, Helen — who was a passenger in her husband’s car — suffered severe injuries, permanent disability, and diminished mental capacity.

¶ 3. Helen — both individually, and as one of Harry’s wrongful-death beneficiaries— sued Sullivan in federal court, alleging that Sullivan’s negligence had caused Harry’s death and her permanent disability. In requests for admission, Sullivan asked Helen -to admit that Harry’s negligence had caused the accident. Helen denied negligence on the part of her husband and stated that, but for Sullivan’s negligence, Harry safely could have entered the highway.

¶ 4. Sullivan moved for summary judgment at the close of discovery, arguing that the . uncontradicted evidence established Harry’s negligence as the sole cause of the accident. In denying summary judgment, the federal judge stated that the evidence created a jury question as to Sullivan’s fault, and that “plaintiffs do not appear to dispute Harry Schroeder’s potential contributory negligence.” The parties settled and agreed to a release of claims, and the district court dismissed the case.

¶ 5. Then, Kathryn Schroeder, with power of attorney for and on behalf of Helen Schroeder, filed suit against the Estate of Harry Schroeder in the Circuit Court of Lowndes County, alleging that Harry negligently had failed to yield the right of way and had pulled in front of Sullivan’s log truck at an extremely slow rate of speed, causing the accident which resulted in Helen’s permanent disability.

¶ 6. The estate moved for summary judgment, arguing that Helen had pleaded facts in her complaint materially different from those she had asserted in the federal district court. The estate claimed that Helen’s circuit-court complaint directly contradicted her responses to the requests for admission in federal court, and that the trial court should grant summary judgment based on the doctrines of judicial and equitable estoppel. The estate further argued that the settlement and release of claims in federal court barred the circuit-court action under the doctrines of accord and satisfaction, release, and merger.

¶ 7. Helen responded that judicial and equitable estoppel could not bar the present action because the parties were not adverse in the prior action and because any change in her theory of the case resulted from information she had learned during discovery in the federal-court case. Helen explained that she had instituted the federal action under the belief that Sullivan was solely at fault, but she had learned of her husband’s contributory negligence during discovery. Helen further argued that the settlement and release pertained only to claims against Sullivan, not her husband’s estate.

¶ 8. The trial judge granted summary judgment in favor of the estate, finding that Helen was judicially estopped from bringing her claim that Harry had caused the accident. Although the trial court found that Helen had discovered her husband’s potential fault during discovery, the court determined that Helen consciously had decided not to join the estate at that juncture to avoid losing diversity jurisdiction, and therefore, her inconsistencies were not inadvertent. The trial court did not reach the merits of the estate’s arguments as to equitable estoppel, accord and satisfaction, release, and merger.

¶ 9. Helen appealed, arguing that judicial estoppel cannot apply because the parties were not adverse in the original proceeding and because her present claim is not inconsistent with her position in federal court. She also claims that the trial court should not have considered the denied requests for admission when applying judicial estoppel.

ANALYSIS

I.The trial court did not err by considering the denied federal requests for admission while applying the doctrine of judicial estop-pel.

¶ 10. Helen argues that the trial court erred by considering Sullivan’s requests for admission and her responses thereto when determining whether the doctrine of judicial estoppel should bar the present case. We disagree.

¶ 11. The only authority Helen cites in support of her argument is Mississippi Rule of Civil Procedure 36(b), which states in its relevant part:

Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.

But the appellant’s reliance on Rule 36 is misplaced. First, Rule 36(b) addresses “[a]ny admission made by a party under this rule.” , Sullivan propounded these requests for admission during discovery in federal court pursuant to Federal Rule of Civil Procedure 36, which is substantially similar to, but not the same as, the Mississippi state-court rule. The appellant’s reliance on a Mississippi rule is simply misplaced.

¶ 12. Also, the rule addresses the use of admissions by a party. Helen admitted nothing. She denied the relevant requests. Neither the federal rule nor the state rule addresses denials to requests for admission.

¶ 13. Finally, even if Rule 36 were relevant, it would defy logic for this Court to hold that a court cannot consider responses to requests for admission when determining whether judicial estoppel bars a subsequent claim. In applying the doctrine, this Court has considered positions taken by various means, including allegations in a complaint, witness testimony, and failure to disclose a claim in bankruptcy.

¶ 14. Our purpose is not to bind the party to a certain position, but to bar the pursuit of a second, inconsistent claim. So, considering responses to requests for admission in a prior action does not use the response as “an admission by him for any other purpose” or “against him in any other proceeding,” because the responses serve only to determine whether the party took an inconsistent prior position. Accordingly, we hold the trial judge did not err by considering Helen’s responses to Sullivan’s federal-court requests for admission.

II. The trial judge applied the correct test for judicial estoppel.

¶ 15. The doctrine of “^Judicial estoppel is designed to protect the judicial system and applies where ‘intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.’ ” Judicial estoppel arises when one party asserts a position contrary to one taken in prior litigation. “Judicial estoppel precludes a party from asserting a position, benefítting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation.”

¶ 16. In Kirk v. Pope, this Court held that there are three elements of judicial estoppel. A party will be judicially estopped from taking a subsequent position if (1) the position is inconsistent with one previously taken during litigation, (2) a court accepted the previous position, and (3) the party did not inadvertently take the inconsistent positions. In Kirk, this Court found that judicial estoppel barred a litigant from recovering on a claim in circuit court which the litigant failed to disclose in a federal bankruptcy proceeding. Here, the trial judge relied on Kirk in finding that judicial estoppel barred Helen’s claim against the estate.

¶ 17. Helen argues that the test articulated by this Court in Kirk and relied on by the trial judge is an incomplete statement of the elements of judicial estoppel under Mississippi law. Specifically, Helen argues that the parties in the present case must have been adverse in the prior case in order for the doctrine to apply; and because she was not adverse to the estate in federal court, she argues that the doctrine should not bar her claim against the estate, even if it is inconsistent with her prior positions.

¶ 18. In several cases, this Court has stated that the doctrine of judicial estoppel is “based on expedition of litigation between the same parties” and “will be applied in civil cases where there is multiple litigation between the same parties.” In Thomas v. Bailey, this Court explicitly stated that the doctrine of judicial estoppel “is inapplicable unless the parties were adverse in the original proceedings.” As recently as 2002, this Court relied on that language from Thomas when applying the doctrine. Further, in Hoover v. State, this Court declined to extend the doctrine to a criminal case because the parties were not identical.

¶ 19. Other opinions of this Court have discussed the doctrine without addressing whether the parties must be adverse in a prior proceeding. In several cases, we found judicial estoppel inapplicable for failure to meet some other element of the doctrine. In others, we invoked the doctrine to bar a claim, but without stating that the parties must be adverse in a prior proceeding.

¶ 20. Then, in 2007, we issued our opinion in Kirk, in which the plaintiff filed suit in circuit court and the defendant argued that the plaintiff should be judicially estopped from bringing a claim that he failed to disclose in a federal bankruptcy proceeding. The circuit-court defendant was not a party to the bankruptcy proceeding. We held that there were only three elements of judicial estoppel: (1) inconsistent positions, (2) acceptance by the court, and (3) a lack of inadvertence. In so holding, we failed expressly to overrule any of our prior opinions that required adverse parties for the application of judicial estoppel. This created the ambiguity in the law raised by Helen today.

¶ 21. Accordingly, we take this opportunity to clarify that our opinion in Kirk eliminated the adverse-party requirement and overruled our prior judicial-es-toppel opinions insofar as they included such a requirement. The purpose of judicial estoppel is to prevent parties from knowingly taking a position in one court that is contrary to a position that party has asserted in, and that has been accepted by, another court. This purpose is served regardless of whether the inconsistent positions were taken in opposition to the same party. Here, the trial judge applied the correct elements of judicial estoppel by citing our Kirk opinion.

III. The doctrine of judicial estoppel does not bar the plaintiff from pursuing her claim in circuit court.

¶ 22. Helen argues that, for several reasons, the trial court erred by granting summary judgment on the basis of judicial estoppel. She suggests that her positions are not inconsistent, because she never took a position in federal court that would exclude the possibility of contributory negligence on the part of her husband. She also argues that, even if her positions were inconsistent, the contradiction was the result of inadvertence, because she did not learn of her husband’s potential negligence until late in discovery in the federal case, when she learned of the defendant’s expert’s opinions.

¶ 23. But we need not determine whether Helen’s positions actually were knowingly inconsistent because we find it abundantly clear from the record that, when the federal district court denied Sullivan’s motion for summary judgment, he was not required to accept or rely on Helen’s prior position — an absolute requirement for the application of judicial estoppel.

¶ 24. Helen’s lawsuit in federal court never went to trial. Rather, the plaintiffs reached a settlement agreement with Sullivan. In the present case, the trial judge granted summary judgment based on his conclusion that the federal court accepted and relied on Helen’s prior position. He did not (see supra at ¶ 23). The settlement agreement evidenced the trial court’s acceptance of Helen’s prior position. But the federal court accepted the settlement by order granting a joint motion for dismissal. The parties executed a release of claims in conjunction with their settlement that stated the settlement was not an admission of fault by Sullivan.

CONCLUSION

¶ 25. We hold that the trial court erred in applying the doctrine of judicial estop-pel. We reverse the trial court’s grant of summary judgment in favor of the estate. But because the trial court disposed of the motion on judicial estoppel alone, failing to reach the merits of the estate’s claims of equitable estoppel, accord and satisfaction, release, and merger, we remand this case to the trial court to address those claims.

¶ 26. REVERSED AND REMANDED.

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

      . Miss. R. Civ. P. 36(b).

      . Miss. R. Civ. P. 36(b) (emphasis added).

      . Fed.R.Civ.P. 36(b).

      . Miss. R. Civ. P. 36(b).

      . Banes v. Thompson, 352 So.2d 812, 815 (Miss.1977).

      . Mississippi Power & Light Co. v. Cook, 832 So.2d 474, 482 (Miss.2002).

      . Kirk v. Pope, 973 So.2d 981, 991 (Miss.2007).

      . Daughtrey v. Daughtrey, 474 So.2d 598, 602 (Miss.1985).

      . Miss. R. Civ. P. 36(b).

      . Kirk, 973 So.2d at 991 (quoting Browning Mfg. v. Mims, 179 F.3d 197, 205 (5th Cir. 1999) (quoting Scarano v. Central R.R. Co., 203 F.2d 510, 513 (3d Cir.1953))).

      . Thomas v. Bailey, 375 So.2d 1049, 1052-53 (Miss.1979) (citing Banes, 352 So.2d 812; Wright v. Jackson Mun. Airport Auth., 300 So.2d 805 (Miss.1974); Sullivan v. McCallum, 231 So.2d 801 (Miss.1970)).

      . In re Estate of Richardson, 903 So.2d 51, 56 (Miss.2005) (quoting Dockins v. Allred, 849 So.2d 151, 155 (Miss.2003)).

      . Kirk, 973 So.2d at 991.

      . Id. (quoting In re Superior Crewboats, Inc., 374 F.3d 330, 335 (5th Cir.2004)).

      . Id. at 992.

      . Rankin v. American Gen. Fin., Inc., 912 So.2d 725, 728 (Miss.2005); In re Mun. Boundaries of City of Southaven, 864 So.2d 912, 918 (Miss.2003); In re Estate of Blanton, 824 So.2d 558, 563 (Miss.2002); Mauck v. Columbus Hotel Co., 741 So.2d 259, 264 (Miss.1999); Skipworth v. Rabun, 704 So.2d 1008, 1015 (Miss.1996) (McRae, J., dissenting); Hoover v. State, 552 So.2d 834, 838 (Miss.1989); Wright, 300 So.2d at 809; Sullivan, 231 So.2d at 803.

      . Rankin, 912 So.2d at 728; In re Mun. Boundaries of City of Southaven, 864 So.2d at 919; In re Estate of Blanton, 824 So.2d at 563; Mauck, 741 So.2d at 264; Skipworth, 704 So.2d at 1015 (McRae, J., dissenting); Hoover, 552 So.2d at 838.

      . Thomas, 375 So.2d at 1053 (citing Pinell v. Roppo, 134 Wash. 158, 234 P. 1035 (1925)).

      . In re Estate of Blanton, 824 So.2d at 563.

      . Hoover, 552 So.2d at 838.

      . See, e.g., Dockins, 849 So.2d at 155; Mississippi Power & Light Co., 832 So.2d at 482; State ex rel. Holmes v. Griffin, 667 So.2d 1319, 1324 (Miss.1995); Merchants Nat’l Bank v. Stewart, 608 So.2d 1120, 1127-28 (Miss.1992); O’Neill v. O’Neill, 551 So.2d 228, 232 (Miss.1989); Daughtrey, 474 So.2d at 602; Banes, 352 So.2d at 815; Coral Drilling, Inc. v. Bishop, 260 So.2d 463, 466 (Miss.1972); Great Southern Box Co. of Miss. v. Barrett, 231 Miss. 101, 94 So.2d 912, 916 (Miss.1957); Mississippi State Highway Comm'n. v. West, 181 Miss. 206, 179 So. 279, 283 (Miss.1938).

      . Dockins, 849 So.2d at 155 (holding judicial estoppel did not apply because the party did not benefit from the inconsistent positions); Mississippi Power & Light Co., 832 So.2d at 482 (holding judicial estoppel did not apply because the inconsistency was not knowing); Merchants Nat'l Bank, 608 So.2d at 1127-28 (holding judicial estoppel did not apply because the inconsistency was not knowing); O’Neill, 551 So.2d at 232 (holding judicial estoppel did not apply because the positions were not inconsistent); Banes, 352 So.2d at 815 (holding judicial estoppel did not apply because the positions were not inconsistent); Mississippi State Highway Comm'n, 179 So. at 283 (holding that judicial estoppel did not apply in a proceeding where the petitioner is required to name all persons who may have an interest in property).

      . Daughtrey, 474 So.2d at 602 (invoking judicial estoppel where the same parties previously litigated their property interests in a different proceeding); Great Southern Box Co. of Miss., 94 So.2d at 916 (invoking judicial estoppel to bar a change of position within the same litigation and between the same parties).

      . Kirk, 973 So.2d at 981.

      . Id. at 984.

      . Id. at 991.

      . Id.

      . Id. (citing Superior Crewboats, Inc., 374 F.3d at 335).

      . In 2011, we reaffirmed our holding in Kirk in a second case dealing with judicial estoppel by way of failure to disclose a claim in bankruptcy. Copiah County v. Oliver, 51 So.3d 205, 207 (Miss.2011).


author: JAMES W. KITCHENS, Justice. WALLER, Chief Justice,

text:
    Alan Dale WALKER v. STATE of Mississippi.
    No. 2012-DR-00102-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2013.
   ORDER

JAMES W. KITCHENS, Justice.

This matter is before the Court, en banc, on Alan Dale Walker’s Motion for Leave to File Successive Petition for Post-Conviction Relief, whereby he seeks to file a petition for post-conviction relief in the trial court. Alan Dale Walker was convicted in August 1991 of the capital murder of Konya Rebecca Edwards. His trial was conducted in Warren County on change of venue from the First Judicial District of Harrison County. Walker also was convicted in the same trial of the rape and kidnapping of Edwards. Walker’s conviction and death sentence were affirmed by this Court in Walker v. State, 671 So.2d 581 (Miss.1995) (Walker I), cert. denied, Walker v. Mississippi, 519 U.S. 1011, 117 S.Ct. 518, 136 L.Ed.2d 406 (1996).

Walker contends that his post-conviction (PCR) counsel in 2003, Robert Ryan of the Mississippi Office of Capital Post-Conviction Counsel, was ineffective. This Court recently held that convicts under a sentence of death have a right to the effective assistance of post-conviction counsel. Grayson v. State, 118 So.3d 118, 147 (Miss.2013). Prior to that decision, Walker would have been barred procedurally from claiming that his PCR counsel was ineffective. Accordingly, if he now is able to show (1) deficient conduct of counsel and (2) prejudice that resulted to him on account of ineffective PCR counsel, then he should be granted leave to proceed in the trial court on that issue.

Walker avers that his trial counsel was ineffective because he failed to conduct research into Walker’s background in an effort to identify mitigation evidence for presentation at the penalty phase of his 1991 trial. He has attached extensive affidavits and other evidence demonstrating the type of proof that effective trial counsel would have found and presented at the mitigation phase. Walker claims that the outcome of his sentencing hearing would have been different if his trial counsel had effectively presented the mitigation evidence that was then available. He further claims that Robert Ryan was ineffective at the PCR stage for failing to make a claim that his trial counsel was ineffective in the mitigation phase of his trial.

We find that the mitigation evidence Walker has presented in his petition shows that he potentially was prejudiced by trial counsel’s deficient performance at the penalty stage. We further find that Walker’s prior PCR counsel was ineffective for his failure to raise that issue in his initial petition for post-conviction relief, and that Walker was prejudiced by that deficient performance if his trial counsel was, in fact, ineffective. Walker has shown (1) deficient conduct and (2) prejudice that resulted from ineffective assistance of PCR counsel sufficient to warrant a hearing on this issue. Walker’s claim of ineffective assistance of post-conviction counsel is sufficient to overcome the procedural bars and allow this Court to reach the merits of his claim.

IT IS THEREFORE ORDERED that Alan Dale Walker’s Motion for Leave to File Successive Petition for Post-Conviction Relief should be, and it is hereby, granted.

IT IS FURTHER ORDERED that the Circuit Court of the First Judicial District of Harrison County shall conduct a hearing to determine whether Alan Dale Walker’s trial counsel was ineffective in searching for and presenting mitigation evidence during the penalty phase of his trial, and whether Walker suffered prejudice from such deficient performance, if any, “sufficient to undermine the confidence in the outcome actually reached at sentencing.” Doss v. State, 19 So.3d 690, 708 (Miss.2009) (quoting Rompilla v. Beard, 545 U.S. 374, 393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (internal quotation omitted)).

IT IS FURTHER ORDERED that if the circuit court finds that Alan Dale Walker was prejudiced by trial counsel’s deficient performance at the penalty phase, then it shall vacate Walker’s sentence of death and conduct a new sentencing hearing.

SO ORDERED.

TO GRANT: DICKINSON, P.J., KITCHENS, CHANDLER, KING AND COLEMAN, JJ. WALLER, C.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY RANDOLPH, P.J., LAMAR AND PIERCE, JJ.

WALLER, Chief Justice,

objecting to the order with separate written statement:

¶ 1. In this successive petition for post-conviction relief, Walker asserts that his trial counsel was ineffective for failing to produce adequate mitigation evidence during the penalty phase of his trial. Walker then claims that his prior post-conviction counsel was ineffective for failing to raise this issue in his first petition for post-conviction relief. Having reviewed the materials presented in support of Walker’s petition, I would deny Walker’s petition, as he failed to show that he was prejudiced by his post-conviction counsel’s failure to raise this issue in his first petition for post-conviction relief.

¶ 2. This Court recently recognized the right to effective post-conviction counsel. See Grayson v. State, 118 So.3d 118, 147 (Miss.2013). To make a claim of ineffective assistance of post-conviction counsel, Walker must first prove that his post-conviction counsel’s performance was deficient, meaning that “counsel made errors so serious that [he or she] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, Walker must prove that such deficient performance resulted in prejudice to his defense, meaning that the “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is rehable.” Id. Absent both showings, Walker’s claim cannot prevail. Id.

¶ 3. During the penalty phase of Walker’s trial, Walker offered four mitigation witnesses — Mike Maniscalco, Walker’s former employer; Leon Frederick, Walker’s half-brother; Amanda Frederick, Walker’s half-sister; and Anita Frederick, Walker’s mother. The witnesses testified as follows:

Mike Maniscalco: Maniscalco was a foreman for Tilley Constructors Construction Firm. At the time of the murder, Walker had worked for Maniscalco for about eight months as a general laborer on an apartment renovation project. Maniscalco described Walker as a good and dependable employee who was liked by his coworkers. On cross-examination, Maniscalco stated that he would not hire Walker after learning of his convictions.
Leon Frederick: Leon was eighteen years old at the time of the trial and a senior in high school. Walker and his infant daughter Michele lived with Leon, Anita, and Amanda prior to the murder. Leon testified that Walker would take care of him, Amanda, and Michele when Leon’s mother was at work. Leon thought that Walker should receive a life sentence because he had his daughter to worry about, and because Walker’s code-fendant Jason Riser received a life sentence.
Amanda Frederick: Amanda was in the sixth grade at the time of the trial. She testified that Walker had lived with her for most of her life and never treated her bad. Like Leon, she believed that Walker should receive a life sentence because he had a young daughter. Amanda indicated that Walker had sent his income tax refund for the previous year to his mother and told her to buy something special for his daughter.
Anita Frederick: Anita testified that Walker was born in Pensacola, Florida, when she was about sixteen years old. Alan’s brother Terry was born two years later in South Carolina. Anita and Walker’s father Ronald divorced when Walker was four years old. Anita then moved to the Mississippi Gulf Coast and worked during the evenings at a restaurant. The children stayed in a nursery while Anita was working. Two years later, Anita married Winfred Lamar Frederick, Sr., Leon’s father.
When Walker was in the fourth grade, Ronald contacted Anita and asked if Walker and Terry could come live with him in Alaska. Anita obliged, and Walker and Terry moved to Alaska with their father for about a year before returning to Mississippi. When Walker was about sixteen, he and Terry returned to Alaska. Walker stayed about a year and returned to Mississippi, but Terry stayed with his father.
Walker lived with Anita, Leon, and Amanda when he returned from Alaska. Walker dropped out of school in the eleventh grade and lived on-and-off with Anita or with friends. Walker helped watch Leon and Amanda while Anita was working and paid rent when he lived with her.
Walker and his then-girlfriend Robin Marroy had a baby, Michele, in March, 1990. Robin and Walker broke up in August 1990, and Robin left the baby with Anita in October, 1990. Robin has never contributed financially for the care of the child. Anita brought a picture of Michele to trial, and it was admitted into evidence. Anita testified that Walker has always loved and provided for Michele.
Anita testified that Walker and a friend had once received a certificate of appreciation for rescuing a child from a burning house. Walker’s certificate was admitted into evidence.
Finally, Anita testified that she believed that if Walker was actually guilty, then he and Jason Riser should have received the same sentence.

Walker also gave a statement at the sentencing hearing, in which he apologized to the victim’s family, the Riser family, and his family. In sum, the mitigation evidence presented at trial showed that Walker had a supportive family, that he had a young daughter whom he loved, and that he generally cared for others.

¶ 4. Walker now presents this Court with thirty-three exhibits, materials which he claims effective trial counsel would have discovered prior to trial upon adequate investigation. Walker asserts that his pri- or post-conviction counsel Robert M. Ryan was ineffective in failing to discover this information, which would have shown that his trial counsel Earl Stegall performed an insufficient investigation into Walker’s background.

¶ 5. The bulk of the material presented in support of Walker’s petition concerns Stegall’s and Ryan’s alleged deficient representation of Walker. Walker has produced the affidavits of five family members and two family friends, along with his own affidavit. Anita and Amanda Frederick, both of whom testified at trial, stated that Stegall did not meet -with them prior to trial to go over their mitigation testimony. The other affiants indicated that no one ever contacted them to learn about Walker’s background. Stegall affirmed that he did not meet with any of Walker’s friends or relatives prior to trial. Stegall believed that Walker had a very strong defense until he found out two days before trial that Riser would testify for the State, which completely changed his view of the case. Stegall did not specifically identify what steps he took to prepare for the penalty phase of the trial, though he did recall speaking with Walker’s immediate family prior to trial. He also indicated that he did not consult with an expert witness in preparation for the penalty phase, but he did not state why an expert would have been necessary or beneficial.

¶ 6. Walker also has submitted the affidavits of the attorneys, paralegals, and investigators from the Mississippi Office of Capital Post-Conviction Counsel who worked on his prior post-conviction-relief petition. It is unclear whether these affidavits were prepared specifically for this case, though. These affidavits were produced in July 2005, six years prior to the other affidavits presented in this case and seem to be directed generally to all of the capital post-conviction cases pending around the same time as Walker’s case. These affidavits generally describe the af-fiants’ opinions that, during the time of Walker’s first post-conviction-relief petition, the Office of Capital Post-Conviction Counsel was overworked, understaffed, and underfunded to the point that it could not adequately handle the cases assigned to it. In his affidavit, Robert Ryan indicated that, at one point, he was the only attorney working for the Office and was working on twenty-seven capital post-conviction cases simultaneously. In his own affidavit, Walker expressed his disapproval of Ryan’s handling of his first petition, claiming that neither Ryan nor anyone from his staff had met with or contacted him prior to filing the petition. Anita and Amanda also indicated that after Walker’s trial, no one contacted them to discuss the case until 2007 or 2008.

¶ 7. The rest of the information presented by Walker’s friends and relatives is meant to illustrate the prejudice caused by Walker’s prior counsel’s alleged deficient performance. The affidavits of Walker’s family members expand on the information provided at trial concerning Walker’s family background. Some of this information, such as the detailed recounting of Anita’s childhood, is not directly related to Walker and therefore is of questionable relevance. In addition, I believe that the information that does directly pertain to Walker is either of questionable mitigating value or could have been reasonably inferred from the evidence actually presented at trial and therefore likely would not have been presented during Walker’s trial.

¶ 8. The affidavits of Walker’s relatives indicate that Walker grew up in an extremely poor household and lacked a positive male role model in his life. Dr. Matthew Mendel, a clinical psychologist who interviewed Walker and his family, provides the most telling account of the impact Walker’s environment had on his personality. The neighborhood Walker grew up in was mired in poverty, crime, and manipulation. Because he grew up without a father figure, Walker sought out the attention of “unsavory, aggressive, and criminal characters” in his neighborhood. An older man in the neighborhood enlisted Walker and his friends to steal things for him, which he would later fence. These interactions allowed Walker and his friends access to alcohol and marijuana at a very young age. In fact, two of Walker’s close friends died of illnesses related to alcoholism, and another was permanently incapacitated due to a drunk-driving accident. Dr. Mendel also indicated that Walker was introduced to sex at an extremely young age by girls who were considerably older than him, giving him an unnatural view of women. Dr. Mendel opined that Walker’s aggression, rage, and control issues with women, though founded in his childhood, were best demonstrated by his adult relationships with women. During interviews with Dr. Mendel, two of Walker’s ex-girlfriends described Walker as abusive and controlling. This abuse occurred primarily when Walker was under the influence of alcohol, which Dr. Mendel opined played a critical role in “letting loose Alan’s simmering rage.” Dr. Mendel did believe that Walker expressed positive character traits, citing essentially the same evidence presented at Walker’s trial — that he cared for his younger siblings and attempted to provide for his daughter even from prison.

¶ 9. Prior to our holding in Grayson, Walker filed a petition for writ of habeas corpus with the United States District Court for the Southern District of Mississippi, asserting essentially the same argument he has submitted in support of this petition. See Walker v. Epps, Civil Action No. 1:97CV29KS, 2012 WL 1033467 (S.D.Miss. Mar. 27, 2012). The District Court found Walker’s claim to be procedurally barred from habeas review because the issue had not yet been raised in state court. Id. at *54. But the court then noted that, even if Walker’s claim was properly before the court, it could not say that Walker’s trial counsel was ineffective for failing adequately to investigate the case, because Walker could not show the element of prejudice required by Strickland. Id. at *62.

¶ 10. I agree with the District Court that Walker cannot prove the second prong of Strickland, and I do not believe our holding in Grayson requires us to hold differently. The affidavits and other materials presented with Walker’s petition arguably may support Walker’s position that his trial and prior post-conviction attorneys performed deficiently when investigating his background. However, I cannot say that Walker was prejudiced in any way by counsel’s failure to present this information at trial. The information pertaining to the instability of Walker’s neighborhood likely was gleaned by the jury from the testimony at trial. There also are clear strategic reasons this information would not have been presented at all, even if it had been discovered by Walker’s counsel. If evidence of Walker’s history of criminal activity, alcohol and drug abuse, and abuse of women had been presented at the penalty phase of Walker’s trial, the prosecutor would have been free to use this evidence to argue that Walker was beyond rehabilitation and posed a future threat in the prison population. See Bell v. State, 725 So.2d 836, 862 (Miss.1998) (argument regarding propensity for future dangerousness is permissible if such argument is not an appeal to bias or passions, but rather a reasonable inference and comment on the evidence).

¶ 11. The information submitted in support of Walker’s petition is either cumulative or likely would have been harmful to his defense in light of the gruesome nature of the crime. Thus, I cannot say that Walker has shown “a reasonable probability that ... the result of the proceedings would have been different” but for his counsel’s alleged deficient performance. Mohr v. State, 584 So.2d 426, 430 (Miss.1991). Because Walker failed to make a showing of the threshold evidence necessary to prove both prongs of Strickland, I would dismiss Walker’s petition.

¶ 12. Accordingly, I object to the Order granting Walker leave to file a successive petition for post-conviction relief.

RANDOLPH, P. J., LAMAR AND PIERCE, JJ., JOIN THIS SEPARATE WRITTEN STATEMENT.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Walker’s prior post-conviction counsel did raise the issue of ineffective assistance of trial counsel in the first petition for post-conviction relief, asserting nine separate grounds for relief, one of which contained five separate sub-issues. See Walker v. State, 863 So.2d 1 (Miss.2003). Trial counsel’s alleged failure to produce adequate mitigating evidence was not one of the issues raised.

      . Jason Riser pleaded guilty to murder two days before Walker’s trial and received a life sentence. In return, Riser testified against Walker at Walker's trial.

      . These affiants are: Anita Frederick, Walker's mother; Ronald Walker, Walker's father; Terry Walker, Walker’s brother; Amanda Frederick, Walker’s half-sister; Nellie Richards, Anita’s sister; Faye Breland, one of Anita’s coworkers; and Paula Shavers, one of Anita's neighbors who went to school with Walker.

      . These affiants are: Robert M. Ryan, Walker’s prior post-conviction counsel and former Director of the Mississippi Office of Capital Post-Conviction Counsel; C. Jackson Williams, who served as director prior to Ryan; David P. Voisin, a former office attorney; Terri L. Marroquin, a former office attorney; Stacy Ferraro, a former office paralegal who is now an attorney; and Tomika Harris, an office investigator.


author: RANDOLPH, Presiding Justice,

text:
    Justin STEWART v. STATE of Mississippi.
    No. 2012-KA-01828-SCT.
    Supreme Court of Mississippi.
    Feb. 6, 2014.

      Office of State Public Defender by W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Justin Stewart appeals his convictions of armed robbery and felon in possession of a firearm. Stewart argues that the trial court improperly enhanced his sentence, in violation of his rights against double jeopardy, and erred in denying his motion to suppress out-of-court and in-court identifications. Finding no error, we affirm.

FACTUAL BACKGROUND

¶ 2. On July 28, 2010, Stewart and an accomplice went to a Fred’s store on North State Street in Jackson, Mississippi. Stewart purchased a pair of Hanes undergarments with cash. When the clerk, La-Quinta Nelson, opened the cash register to give Stewart his change, Stewart attempted to grab the money in the register. Nelson quickly closed the cash drawer. Stewart then pointed a gun at Nelson and demanded she reopen the cash drawer. Nelson complied. While Stewart was grabbing money out of the drawer, Nelson attracted the attention of Darryl Crump-ton, the store manager. Crumpton approached and was ordered to get on the ground. Stewart demanded that Crump-ton give him all of the money from the store’s office. Instead, Crumpton took Stewart to another cash register. Stewart removed its contents. Crumpton informed Stewart that there was no more money in the store. Stewart fled the store with cash and credit-card receipts from the two registers. The police were informed that the robber was a black male wearing a pink and brown multi-colored hat. The police also were informed that the robber had sped away in a gold or tan car, which had struck a curb exiting the parking lot, causing the right front tire to rupture.

¶3. Moments later, an officer observed two black males changing the right front tire of a tan car in a driveway a few blocks from Fred’s. As the officer approached the suspects, they fled. Several officers canvassed the area, searching for the suspects. After finding his accomplice, the police found Stewart hiding between a shed and a house. After arresting Stewart, officers retrieved a pink multicolored hat, $1,494 in cash, a revolver, and two Fred’s receipts near Stewart’s hiding spot. A Fred’s shopping bag with a package of Hanes undergarments was found in the car.

¶ 4. On July 29, 2010, Nelson and Crumpton each were asked to review a photo lineup. Both identified Stewart without hesitation. No mention of facial tattoos appeared in the police reports. Nelson testified at trial that she mentioned facial tattoos to the police shortly after the crime. Crumpton testified that he did not.

¶ 5. On October 10, 2012, Justin Stewart was convicted of the crimes of armed robbery and felon in possession of a firearm. On October 22, 2012, he was sentenced to a total of thirty years, twenty years for armed robbery, with an additional five-year gun-enhancement sentence, and ten years for felon in possession of a firearm, with five years suspended. After Stewart’s motion for judgment notwithstanding the verdict (JNOV) was denied, he timely appealed.

ISSUES

¶ 6. The following two issues are raised for review:

I. Whether the trial court erred in failing to suppress the photographic lineups where appellant’s photograph was the only one with the facial tattoos.
II. Whether the trial court’s sentence of Stewart to five years under the firearm-enhancement statute constituted double jeopardy, where he was already being sentenced under the armed-robbery felon-in-possession-of-a firearm statutes.

ANALYSIS

I. Whether the trial court erred in failing to suppress the photographic line-ups and in-court identification.

¶ 7. This Court reviews photographic lineups and in-court identifications as follows:

“The standard of review for suppression hearing findings in ... pretrial identification cases is whether or not substantial credible evidence supports the trial court’s findings that, considering the totality of the circumstances, in-court identification testimony was not imper-missibly tainted.” Gray v. State, 728 So.2d 36, 68 (Miss.1998) (internal citations omitted). This Court will not disturb a lower court’s decision on the suppression of evidence unless “there is an absence of substantial credible evidence supporting it.” Id. For an identification (made out of court or in court) to be excluded, it must be the result of an impermissibly suggestive lineup and the identification must be unreliable. York v. State, 413 So.2d 1372, 1383 (Miss.1982).

Butler v. State, 102 So.3d 260, 264 (Miss.2012) (emphasis original).

¶ 8. “An unnecessarily suggestive pretrial identification is not automatically excluded; rather, ‘evidence of a suggestive out-of-court identification will be admissible if, from a totality of the circumstances, the identification was reliable.’ ” Id. at 266 (quoting York, 413 So.2d at 1381). This Court looks to five factors when determining whether an out-of-court identification was reliable: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Butler, 102 So.3d at 266.

¶ 9. A photo lineup is impermissi-bly suggestive only if “the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statements by an officer.” Id. at 264 (quoting York v. State, 413 So.2d 1372, 1383 (Miss.1982)) (emphasis added). “The test is whether the defendant was ‘conspicuously singled out in some manner from the others,’ not whether the witness noticed that the defendant was singled out.” Butler v. State, 102 So.3d 260, 264 (Miss.2012) (quoting York v. State, 413 So.2d 1372, 1383 (Miss.1982)). To be excluded, an out-of-court photo identification must have been “so impermissibly suggestive as to give rise to ‘a very substantial likelihood of misidentification.’” Butler, 102 So.3d at 265 (quoting Neil v. Biggers, 409 U.S. 188, 196-98, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). “Minor differences” between the suspects or photographic backgrounds “will not render a lineup impermissibly suggestive.” Butler, 102 So.3d at 265.

¶ 10. Finally, “an impermissibly suggestive pretrial identification does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id. at 267 (citing York, 413 So.2d at 1383) (emphasis original). “The standard for in-court identifications is heightened because it requires the likelihood of irreparable misidentification.” Butler, 102 So.3d at 267 (citing York, 413 So.2d at 1383) (emphasis original).

¶ 11. Stewart argues that the photo lineups were impermissibly suggestive, since Stewart was the only person with facial tattoos. Thus, he argues that the in-court identification was tainted and unreliable. The State argues that the tattoos are a minor difference and that the trial judge concluded that the tattoos did not stand out in the photographs.

¶ 12. We find that the case subjudice is similar to the cases of White, Foster, and Jones, in which this Court upheld similar identifications. In White, the witness noticed the defendant’s plaited hair and forehead tattoo during the commission of the crime. White v. State, 507 So.2d 98, 99 (Miss.1987). This Court upheld the out-of-court and in-court identifications of the defendant even though the defendant was the only suspect in the lineup with plaited hair. Id. at 99-101. The defendant also had a forehead tattoo, which the witness identified at trial. Id. at 99-100. In Foster, this Court upheld the out-of-court and in-court identifications of the defendant even though he was the only person in the lineup wearing a fishing hat, where the defendant had worn a fishing hat during the robbery. Foster v. State, 493 So.2d 1304, 1305-06 (Miss.1986). Likewise, in Jones, this Court upheld the out-of-court and in-court identifications of the defendant even though he was the only suspect in the photo lineup wearing a hat similar to the one worn by the attacker. Jones v. State, 504 So.2d 1196, 1199-1200 (Miss.1987). This Court found that, even though the hat may have played a significant part in the identification, it was not impermissi-bly suggestive, because the witness had given an accurate description and identified the defendant with great conviction at trial. Id. at 1200.

¶ 13. In the case sub judice, in denying the motion to suppress, the trial court noted that there was no mention from the officer or police reports of the tattoo, and that the tattoos “just don’t jump out at you.” Stewart argues that the testimony adduced during the trial contradicts the evidence relied upon by the trial court when ruling on the motion to suppress. Specifically, Stewart points to testimony from Nelson in which she states, “[t]he tattoos is what stuck out the most” about Stewart at the time of the robbery.

¶ 14. But Nelson also testified that the encounter with Stewart lasted more than five minutes. During that time, she observed Stewart and his accomplice enter the store. She remembered Stewart asking the manager, “where is your Hanes boxers.” She later observed him in the checkout line for four to five minutes, where he let a couple of people go ahead of him. Nelson testified that the area was well lit. She and Stewart exchanged greetings. Nelson testified that Stewart was in such close proximity to her that he only had to whisper. She observed him when he threatened her with the gun. She observed Stewart as he stole money from another register. Nelson told the officers that Stewart was the same height as she, wore dark clothes, and wore a pink and brown hat with a letter on his hat. Nelson testified that Stewart’s facial tattoos were located “[ujnder his eyes and in the middle of his forehead.” She remembered thinking “why would he get tattoos under his eye and right ... in the middle of his forehead.” Nelson identified Stewart at trial as the same person who had robbed her.

¶ 15. Crumpton offered similar detailed testimony. He stated that, even though a gun was pointed at him, he “remember[ed] looking at [Stewart].” He noticed that Stewart “had some markings on his face.” Crumpton also conversed with Stewart during the robbery. Although Crumpton mentioned at trial that he had picked Stewart out of the photo lineup “[b]y the markings on his face,” he later testified that the tattoos were not the “main way” he identified Stewart. Importantly, Crumpton testified that he could have identified Stewart “even if he didn’t have the markings ... on his face.” Crumpton’s testimony was unequivocal. He testified as follows:

Q. Did you have the opportunity to view the robber at register one?
A. Yes, I did.
Q. Did you have the opportunity to view the robber at register three?
A. Yes, I did.
Q. And did you have the opportunity to view the robber when he was putting a gun in your face and telling you to get on the ground?
A. Yes, I did.
Q. And did you have the opportunity to view the robber when you were walking between and to and from registers one and three?
A. Yes, I did.
Q. How certain are you that the person you saw is the defendant sitting next to Mr. Knapp, Justin Stewart?
A. One hundred percent.

¶ 16. In short, Stewart failed to establish that he was conspicuously singled out from the other suspects in the photo lineups. While he was the only one with facial tattoos, the officer responsible for preparing the photo lineups testified that he was unaware Stewart had facial tattoos. Moreover, the trial court found the facial tattoos in the photo were nearly unrecognizable, which is supported by the photo lineup included in this record. The tattoo on the forehead is faintly visible. The dark lines under Stewart’s eyes are not distinguishable as tattoos in the photo. Thus, the trial court had substantial, credible evidence to dismiss the motion to suppress the photo lineups.

II. Whether the trial court erred in sentencing Justin Stewart to five years under the firearm enhancement statute.

¶ 17. This court applies a de novo review to double-jeopardy claims. Rowland v. State, 98 So.3d 1032, 1037 (Miss.2012). Stewart raises this issue for the first time on appeal. Although constitutional questions not raised at trial generally are waived, double-jeopardy claims may be raised for the first time on appeal. See Rowland v. State, 98 So.3d 1032, 1036 (Miss.2012).

¶ 18. The double-jeopardy clause provides three separate protections: “(1) protection from a second prosecution for the same offense after acquittal, (2) protection from a second prosecution for the same offense after conviction, and (3) protection from multiple punishments for the same offense.” Kelly v. State, 80 So.3d 802, 805 (Miss.2012) (citations omitted).

¶ 19. Stewart argues that he was punished multiple times for the same offense when he was charged with three separate crimes (armed robbery, felon in possession, firearm enhancement) for the same act. Stewart argues that possession of a firearm by a felon under Section 97-37-5 and the firearm enhancement under Section 97-37-37 are essentially the same elements under the “same-elements” test. Thus, Stewart argues his five-year sentence for firearm enhancement should be vacated.

¶ 20. The State argues that Section 97-37-37 operates as an enhanced sentence, not a separate conviction. Moreover, the State argues that the elements in Sections 97-37-5 and 97-37-37 are different. (“[0]ne merely requires felon in possession ... and, the other felon in possession plus the added used [sic] or displayed [sic] during the commission of a felony.”)

¶ 21. The Court of Appeals addressed this very argument in Mayers v. State. Stewart argues that Mayers violates the U.S. Supreme Court’s decision in Apprendi v. New Jersey. In Mayers, the defendant was convicted under Section 97-3-7 for aggravated assault on a law-enforcement officer through the use of a gun. Mayers v. State, 42 So.3d 33, 36-38 (Miss.Ct.App.2010). The court held that no double-jeopardy concerns arise when a defendant is given an enhanced sentence under Section 97-37-37 and also is convicted and sentenced under Section 97-37-5. Id. at 45 (“Section 97-37-37, which is entitled: ‘Enhanced penalty for use of firearm during commission of felony,’ is clearly a sentence enhancement and does not set out separate elements of the underlying felony.”). The court noted that, although Ap-prendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond reasonable doubt,” the court found Apprendi inapplicable because Mayers failed to “cite to any specific element of the statute that was not decided by the jury.” Id. at 45-46.

¶ 22. We hold that the “same-elements” test does not apply, because Section 97-37-37 is a sentence enhancement, not a separate crime. Thus, Stewart’s double-jeopardy claim is without merit.

CONCLUSION

¶ 23. We affirm the trial court’s denial of Stewart’s motion to suppress and Stewart’s sentence.

¶ 24. COUNT I: CONVICTION OF ARMED ROBBERY WITH GUN ENHANCEMENT AND SENTENCE OF TWENTY (20) YEARS FOR ARMED ROBBERY AND FIVE (5) YEARS FOR GUN ENHANCEMENT, FOR A TOTAL OF TWENTY-FIVE (25) YEARS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF FELON IN POSSESSION OF FIREARM AND SENTENCE OF TEN (10) YEARS, WITH FIVE (5) YEARS SUSPENDED, FIVE (5) YEARS PROBATION AND FIVE (5) YEARS POST-RELEASE SUPERVISION, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH SENTENCE IN COUNT I. APPELLANT IS TO BE GIVEN CREDIT FOR TIME SERVED IN EACH COUNT.

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

      . Stewart’s accomplice pleaded guilty and the parties agreed not to mention him or his sentence during the trial.

      . This finding is borne out by this Court’s examination of the photo lineup.

      . During trial, Stewart was asked to remove his glasses and stand before the jury so that they could see his tattoos. The record reflected that "under each of his eyes are tattoos with the words ‘life’ and 'death,' and there is also a tattoo ... on the forehead.”

      . The same-elements test, sometimes referred to as the "Blockburger” test, inquires whether each offense contains an element not contained in the other; if not, they are the "same offence,” and double jeopardy bars additional punishment and successive prosecution. White v. State, 702 So.2d 107, 109 (Miss.1997).

      . Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000).