text:
    Annie FIGURES, Appellant v. JACKSON HOUSING AUTHORITY, Appellee
    NO. 2015-CA-01339-COA
    Court of Appeals of Mississippi.
    06/20/2017

      DONALD W. BOYKIN, JACKSON, ATTORNEY FOR APPELLANT
    D. STERLING KIDD, JACKSON, ATTORNEY FOR APPELLEE
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. This is an appeal from the Circuit Court of the First Judicial District of Hinds County. The Jackson Housing Authority (“JHA”) brought a civil lawsuit against Annie Figures and requested an order of eviction. The justice court ruled for the Jackson Housing Authority. Figures appealed to the County Court of Hinds County, which held a de novo trial and issued a judgment of eviction. Figures appealed to the Circuit Court of Hinds County, which affirmed the decision of the county court. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Figures was a resident of Golden Key Apartments in Jackson, Mississippi. Golden Key Apartments is owned and operated by the JHA. These apartments are for disabled and elderly people. Figures threatened two other residents in her apartment building, resulting in a violation of her lease agreement. Figures was given an eviction notice. In compliance with her due-process rights, JHA held a hearing and voted to uphold the eviction. When Figures failed to vacate the premises, JHA obtained an order of eviction from the Hinds County Justice Court and filed a civil lawsuit against her.

¶ 3. Figures appealed to county court. A de novo trial was conducted. At trial, witnesses testified that Figures had threatened to “blow their heads off.” The county court ordered Figures to vacate the premises and to refrain from further “threatening and/or harassing other tenants.” Figures appealed the ruling to the Circuit Court of the First Judicial District of Hinds County. Relying on the record, the circuit court affirmed the decision of the county court. On February 11, 2016, the circuit court entered an order denying Figures’s motion for rehearing and granting a temporary stay pending further appeal. Figures now appeals the circuit court’s decision. Based on our review of the record, we affirm.

, STANDARD OF REVIEW

¶ 4. “The standard by which an appellate court reviews factual determinations made by a trial judge sitting without a jury is the substantial-evidence standard.” Norris v. Sw. Miss. Reg’l Med. Ctr., 105 So.3d 410, 414 (¶ 14) (Miss. Ct. App. 2012) (citation omitted).' Under this-standard, a trial judge’s “findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.” Id. (quotation marks omitted),

¶ 5. “The appellate court is limited to an abuse-of-discretion standard when reviewing an alleged sequestration violation.” White v. State, 127 So.3d 170, 174 (¶ 10) (Miss. 2013).

¶ 6. Additionally, “[o]ur well-settled standard of review for the admission or suppression of evidence is abuse of discretion.” Mitchell v. Barnes, 96 So.3d 771, 776 (¶ 14) (Miss. Ct. App. 2012) (citation omitted). The Mississippi Supreme Court has said that the decision of the trial judge will stand unless we conclude that the discretion. was arbitrary and clearly erroneous, amounting to an abuse of discretion. Id. (citation and quotation marks omitted).

DISCUSSION

I. Whether the trial court erred in placing the burden of proof on Figures.

¶7, Figures contends the trial court erred in shifting the burden of proof to her. We agree. However, we find the error to be harmless. This error does not require reversal, because no dispute exists regarding the facts. “We have not always found that a misperception regarding the burden of proof requires reversal.” Sheppard v. Miss. State Highway Patrol, 693 So.2d 1326, 1329 (¶ 4) (Miss. 1997) (citation omitted). Where, as here, the facts are clear and undisputable, we will not reverse the judgment based upon a misallocation of the burden. Id. (citing Miss. Emp’t Sec. Comm’n v. Gaines, 580 So.2d 1230 (Miss. 1991) (finding a- misallocation of the burden of proof is not grounds for reversal and remand where there is’ no significant dispute and the facts dictate a single result)).

¶8. Figures is correct in her assertion that the burden of proof "should not have shifted; however, JHA proved its case by providing documentation and testimony that Figures violated her lease and was properly evicted. Moreover, Figures did not submit any documentation or witnesses to support her claim that she did not threaten the other tenants.

II. Whether the trial court erred in permitting Theotis Davis to testify.

¶ 9. Figures argues the trial court erred in permitting testimony from Theotis Davis, because his testimony violated the “rule of sequestration” found in Mississippi Rule of Evidence 615. We disagree.

¶ 10. “Failure to comply with a sequestration order does not automatically render the witness’s testimony inadmissa-ble.” Clark v. State, 127 So.3d 292, 297 (¶ 14) (Miss. Ct. App. 2013) (citing Harris v. State, 937 So.2d 474, 479 (¶ 16) (Miss. Ct. App. 2006)). “Instead, appropriate remedies for a sequestration violation include prospectively excluding the witness where prejudice will otherwise-'ensue; striking the testimony where connivance gave rise to the testimony; or striking the testimony where the prejudice arose.” Id. (quotation marks omitted). “Exclusion of the testitno-ny is a ‘serious sanction,’ and appropriate only where probable prejudice would .result to the other party.” Clark, 127 So.3d at 297 (¶ 14) (citation omitted).

¶ 11. We find the trial court did not abuse its discretion by allowing the testimony of Theotis Davis. Davis works for the JHA in the Public Housing Department. He is the property manager for Golden Key Apartments. He testified two tenants made him'aware of the threats made by Figures. He drafted the note regaining the threat in the case file for the due-process hearing. He also drafted the eviction notice on behalf of JHA, because he found Figures’s behavior to be a major violation of her lease agreement. This violation was noted as a violation regarding “engaging in criminal activity and disrupting the enjoyment of other residents.” This Court finds the testimony of Davis did not prejudice Figures in any way, despite violating the sequestration rule. Figures’s assertion that Davis’s testimony was prejudicial is incorrect. We find Davis testified to information already presented in the eviction notice and initial note regarding the threat Figures made to the two residents at Golden Key Apartments. Further, there is no evidence to support that Davis’s testimony would have changed just because he was in the courtroom during the testimony of other witnesses. Accordingly, we find no abuse of the trial court’s discretion in allowing.Davis’s testimony.

III. Whether the trial judge wrongfully assumed an adversarial role in questioning a witness.

¶ 12. Figures argues the trial judge abused his authority, because he questioned Thelma Vance regarding her mental state after. Figures threatened her. Vance is one of the tenants at .the .Golden Key Apartments. Figures suggests the trial judge assumed an adversarial position against her. We disagree. This Court has ruled that “[t]he chancery court was within its right to interrogate witnesses, whether called by itself or by a party.” SKL Inv., Inc. v. Hardin, 170 So.3d 588, 592 (¶ 17) (Miss. Ct. App. 2014) (citation and quotation marks omitted); see also M.R.E. 614(b). “However, it is grounds for reversal if the trial judge abuses the authority to call or question a witness by abandoning his impartial position as a judge and assuming an adversarial role.” Knights’ Piping Inc. v. Knight, 123 So.3d 451, 456 (¶ 14) (Miss. Ct. App. 2012) (citation and quotation marks omitted).

¶ 13. We find the trial judge was within his right to ask Vance a question regarding her mental state. Trial counsel elicited testimony from Vance regarding her state of mind after Figures made the threat. Trial counsel asked Vance if she felt unsafe at Golden Key Apartments since Figures still lived there. Vance responded she felt unsafe, but would feel safer if Figures did not live there anymore. Immediately after Vance’s response, the trial judge asked if Vance believed Figures was serious. His line of questioning appears to have been impartial and for clarification regarding her answer. Therefore, we find the trial judge .did not abuse his-discretion by briefly and impartially examining .Vance regarding her state of mind. Further, we find no error in the circuit court relying on the record to support the county court’s ruling.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. BARNES AND WILSON, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: WESTBROOKS, J.,

license: Public Domain

text:
    Jameil CLARK a/k/a Jameil Lee Clark a/k/a Jameil L. Clark, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CA-01652-COA
    Court of Appeals of Mississippi.
    06/20/2017
    Rehearing Denied October 3, 2017
    Certiorari Denied January 4, 2018

      ATTORNEY FOR APPELLANT: CYNTHIA ANN STEWART

      ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Jameil Clark was indicted for aggravated assault in the Circuit Court of Hinds County. The indictment charged an enhancement under Mississippi Code Annotated section 41-29-152 (Rev. 2013) (which deals with drug offenses). However, the State realized that the sentence enhancement was under Mississippi Code Annotated section 97-37-37 (Rev, 2014). On .the State’s motion, the indictment was • then amended to reflect the correct statute. Clark pled guilty and was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC) for aggravated assault, with five years suspended, plus a consecutive five years under the firearm-enhancement statute charged by the amendment of the indictment, for a total of twenty years to serve. Clark filed a motion for postconviction relief (PCR), which was denied. Clark timely appeals. After review of the record, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 28, 2015, Clark prepared to enter an open plea on the charge of aggravated assault. However, his attorney moved to strike the second paragraph of the indictment as surplusage. Clark argued that the enhancement listed was for controlled substances and completely inapplicable to his indictment. The State conceded that it was the wrong code section; however, the State claimed the mistake was a scrivener’s error. The circuit court offered to postpone the plea; however, Clark went ahead and entered the guilty plea.

¶ 3. On July 2, 2016, the circuit court sentenced Clark to twenty years in the custody of MDOC for aggravated assault, with five years suspended, leaving fifteen years fo serve. Clark was also sentenced to a consecutive five-year firearm enhancement, resulting in a total of twenty years to serve. He was also sentenced to five years of p'ostrelease supervision. Clark filed his PCR motion, which the circuit court denied. Clark timely appeals.

STANDARD OF REVIEW

¶ 4. In PCR cases, “we will not disturb the trial court’s findings unless they are found to be clearly erroneous.” Jackson v. State, 965 So.2d 686, 688 (¶ 6) (Miss. 2007) (citations omitted). “However, if questions of law are raised, then the applicable standard of review is de novo.” Id. “Whether a defendant received fair notice of a sentence enhancement is - a question of law that we review de novo.” Sallie v. State, 155 So.3d 760, 762 (¶7) (Miss. 2015) (citation omitted).

DISCUSSION

I. Notice

¶ 5. In the order denying Clark’s PCR motion, the circuit judge limited the issue to “notice.” “Generally, indictments must include information specific enough to allow a defendant to determine what punishment he faces.” Sallie, 155 So.3d at 763 (It 10) (citation omitted). “Notice of the charge includes notices of the applicable minimum and maximum penalties.” Id. (quoting Gowdy v. State, 56 So.3d 540, 546 (¶ 20) (Miss. 2010)). “Further, an indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of future prosecution for the same offense.” Townsend v. State, 188 So.3d 616, 620 (¶ 13) (Miss. Ct. App. 2016).

¶ 6. Clark uses the facts in Sallie to argue the circuit court erred in enhancing his sentence under section 97-37-37 because of inadequate notice under the United States and Mississippi Constitutions. However, the facts in this case present a distinct contrast to the facts in Sallie. In Sallie, the defendant’s “indictment did not indicate that the State would seek any sentence enhancement.” Sallie, 155 So.3d at 763 (¶ 9) (emphasis added). Furthermore, the State in Sallie did not indicate pretrial that it would seek the firearm enhancement. Id. “It is fundamental that courts may amend indictments only to correct defects of form[;] however, defects of substance must be corrected by the grand jury.” Spears v. State, 942 So.2d 772, 774 (¶ 6) (Miss. 2006) (citations omitted). Clark’s indictment contained reference to the wrong statute number (section 41-29-152); however, the indictment also contained reference to the firearm-enhancement statute (section 97-37-37). This Court has previously opined, “[I]f from a reading of the indictment as a whole the accused is in fact given fair notice of that with which he has been charged, the indictment is legally sufficient.” Townsend, 188 So.3d at 620 (¶ 14).

¶ 7. In Clark’s case, a fair reading of the indictment as a whole indicates the State’s intent to pursue the- sentence enhancement under section 97-37-37. “Furthermore, all indictments may be amended as to form but not as to the substance of the offense charged.” - Brown v. State, 12 So.3d 586, 588 (¶ 13) (Miss. Ct. App. 2009); see also URCCC 7.09. The Supreme Court has held: ;

[A] change in the indictment is permissible if it does not materially alter facts which are the' essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case: The test for whether an amendment to-the indictment will prejudice the defense is whether the defense as it' originally stood would be equally available after the amendment is made. ■

Greenlee v. State, 725 So.2d 816, 822 (¶ 10) (Miss. 1998) (internal citations omitted).

¶8. Clark’s attorney presented the indictment to him. Also, after the State amended’the indictment, Clark was still given-adequate notice of the enhancement, because he was asked if he wanted to postpone the open plea, yet he declined to do so. Additionally, Clark was advised of the minimum and maximum number of years to serve, for aggravated assault with the firearm-enhancement statute, in the plea colloquy.

¶ 9.' “Additionally, the Mississippi Supreme Court has held that notice is sufficient as few as three days prior to the start of trial.” Johnson v. State, 194 So.3d 191, 200 (¶ 25) (Miss. Ct. App. 2016) (citation omitted). If Clark’s assertion is that he was not given notice prior to his open plea, the Supreme Court has addressed the length of time that is deemed adequate for the purpose of “notice.” The Supreme Court in Williams v. State, 131 So.3d 1174 (Miss. 2014), “took no issue with the fact that the defendant learned of the State’s intent to amend the indictment the same day that the motion to amen<j was filed.” Johnson, 194 So.3d at 200 (¶ 25) (citing Williams, 131 So.3d at 1176-78 (¶¶ 2, 9)).

¶ 10. This Court finds the circuit court properly ruled that Clark received adequate notice in amending the indictment. However, the Court notes-that if the indictment had made no mention of the firearm enhancement, the judgment of the circuit court would be reversed.

II. Legality of Sentence Enhancement Under Section 97-37-37

¶ 11. Clark asserts that the use or display of the firearm, required by section 97-37-37(1), is an element that must be properly charged to the jury. This Court agrees with his assertion. “The [Supreme] Court has ruled that the jury must find the elements of the firearm enhancement beyond a reasonable doubt under Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),] before a trial court may apply the enhancement.” Sallie, 155 So.3d at 764 (¶ 10) (citations omitted). However, Clark’s ease represents an entirely unique set of facts. Clark waived any obligation on the State to prove every element of the crime beyond a reasonable doubt when he agreed to an open plea. Therefore, the State did not have to present the amended indictment with the sentence enhancement to the grand jury.

¶ 12. Therefore, we' find no abuse of discretion in the denial of.Clark’s PCR motion. Accordingly, we affirm.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, DENYING THE MOTION FOR POSTCON-VICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: ISHEE, J„ CARLTON, J.,

text:
    Melvin HARE, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00046-COA
    Court of Appeals of Mississippi.
    06/20/2017
    Rehearing Denied September 12, 2017
    Certiorari Denied November 30, 2017

      OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HIN-CHCLIFF, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, ATTORNEY FOR APPELLEE.
    BEFORE IRVING, P.J., ISHEE AND WESTBROOKS, JJ.
   ISHEE, J„

FOR THE COURT:

¶ 1. Melvin Hare was convicted by a jury in the Warren County Circuit Court of depraved-heart murder, and sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC),. with twenty-five years to serve and five years suspended, to be served under post-release supervision. Hare brings three issues for our review: (1) whether he received ineffective assistance of counsel; (2) whether there was sufficient evidence to support the verdict; and (3) whether the verdict was contrary to the overwhelming weight of the evidence. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On August 26, 2013, Hare visited Lubertha Sims at her house. Hare and Sims had dated intermittently for approximately a year. Hare allegedly came by that evening to eat dinner with Sims. While Hare was at Sims's house, Roy Clark — Sims’s ex-boyfriend — arrived and began to taunt Hare. Clark stood outside of Sims’s home and repeatedly demanded that Hare come out of the house, telling him, “I’m going to whip you up.” At first, Sims and Hare remained inside the house — with the screen door locked. But then Clark, a large man, ripped the screen door off, and came onto the porch.

¶ 3. Clark then turned and walked back into the yard as he continued to threaten Hare. Hare told Clark that he would leave the house, but Sims halted Hare, telling him that she had already called 911 and that the police were on their way. As Clark approached the door again, the two men became engaged in a physical altercation. The two tussled on the floor, and Hare pulled a knife from his pocket and began stabbing Clark multiple times. Sims was able to grab the knife and throw it out of the reach of both Hare and Clark. Both men then got up, and Clark went across the street and collapsed. Clark lay on the ground with his intestines protruding.

¶4. By the time police arrived on the scene, paramedics were attending to Clark. Clark was taken to River Region Hospital to be treated for multiple stab wounds. Dr. Brian Hudson, the emergency-room physician that treated Clark, testified at trial that when Clark arrived he had multiple stab wounds to his chest, back, and abdomen. Later, Clark was airlifted to the University of Mississippi Medical Center. At this time, Clark was alive, but unconscious.

¶ 5.. Dr. Mark LeVaughn, who conducted the autopsy of Clark’s body, testified at trial as an expert witness. Dr. LeVaughn testified that Clark’s body had possibly twenty-two separate stab wounds. He further testified that there were multiple stab wounds to Clark’s back. Additionally, Dr. Levaughn found stab wounds on Clark’s forearm and palm — wounds which Dr. Le-Vaughn characterized as defensive in nature.

¶ 6. When questioned by the investigator at the scene, Hare admitted to the investigator that he had stabbed Clark. Hare was originally charged with aggravated assault, but Clark died, and Hare was then charged with murder. At trial, Hare’s defense was that he was afraid of Clark, and thus had acted in self-defense. The jury was given a depraved-heart-murder instruction, as well as a culpable-negligence-manslaughter instruction. Additionally, the jury was instructed on self-defense. At the conclusion of the trial, the jury found Hare guilty of depraved-heart murder. Hare then moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial; the court subsequently denied his motion. Hare appeals.

DISCUSSION

I. Ineffective Assistance of Counsel

¶7. In this issue, Hare claims he received ineffective assistance from his trial counsel because his counsel did not' submit an instruction on heat-of-passion manslaughter, and allowed the State’s instruction on culpable-negligence manslaughter.

¶ 8. Rule 22(b) of the Mississippi Rules of Appellate Procedure provides:

Issues which may be raised in post-conviction, proceedings may also be raised on direct appeal if such issues ape based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration- of the issues in post-conviction proceedings.

And the Mississippi Supreme Court has held:

It is unusual for [an appellate cjourt to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. This is because we are limited to the trial court record in our review of the claim[,j and there is usually insufficient evidence within the record to evaluate the claim .... [Wjhere the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief. [An ■appellate cjourt will rule on the merits on the rare occasions where (1) the ree-ord affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.

Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss. 2003) (internal citations and quotations omitted).

¶ 9. The record does not affirmatively indicate that-Hare received ineffective assistance of constitutional dimensions, ■ Nor have the parties stipulated that the record is adequate to allow us to make findings without considering a trial judge’s findings of fact. As a result, we decline to address this issue. Thus, we dismiss Hare’s claims under this heading without prejudice-to his ability to raise them in postconviction proceedings, if-he chooses to do so.

¶ 10. Closely linked to the ‘ issue under this heading, the dissent would find that the circuit court should have instructed the jury on heat-of-passion manslaughter, and not culpable-negligence manslaughter. And to this end, the dissent would reverse and remand for a new trial. We respectfully disagree.

¶ 11. First, we must note that the particular issue raised, by the dissent was never raised by Hare. Rather, Hare’s argument was that his counsel was ineffective for not submitting a heat-of-passion-manslaughter instruction. While here, the dissent argues that it was the circuit court which had the obligation — on ,its . own — to instruct the jury on heat-of-passion manslaughter. This is a wholly distinct and separate issue than Hare’s claim of ineffective assistance of counsel.

1112. That said, even if the issue had been raised, we would find that .the facts before- us do not support a heat-of-passion-manslaughter instruction. The dissent relies on caselaw that we agree stands for the proposition that trial judges have a duty to conform the jury instructions to the evidence. See Guster v. State, 758 So.2d 1086, 1089 (¶ 20) (Miss. Ct. App. 2000). Here, however, we do not agree that such evidence would conform to a heat-of-passion-manslaughter instruction. Based on Hare’s testimony and his counsel’s arguments, Hare’s sole defense was that he was afraid of Clark and that he had acted in self-defense. What is more, the facts relied on by the dissent support that exact theory. To be sure, Hare never testified that he was emotionally inflamed or impassioned. Put another way, there is no evidence in the record that Hare was in “a state of violent and uncontrollable rage ,... ” See McCune v. State, 989 So.2d 310, 319 (¶ 15) (Miss. 2008) (outlining the elements of heat-of-passion manslaughter). And so, we And that the facts before us in the record do not support a heat-of-passion-manslaughter instruction, and the circuit court was under no obligation to give such an instruction on its own accord.

¶ 13. In conclusion, as to Hare’s ineffective-assistance-of-counsel claim, we decline to address, and thus dismiss, this issue without prejudice to Hare’s ability to raise it in postconviction proceedings, if he chooses to do so.

II. Sufficiency of the Evidence

¶ 14. Next, Hare contends that there was insufficient evidence to find him guilty of depraved-heart murder because he was the victim of an unprovoked assault, and was thus acting in self-defense.

¶ 15. A motion for a JNOV is a challenge to the legal sufficiency of the evidence. See Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005). When assessing the legal sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Nolan v. State, 61 So.3d 887, 893 (¶ 24) (Miss. 2011) (quoting Bush, 895 So.2d at 843 (¶ 16)). If the facts and inferences point in favor of the defendant with sufficient force that reasonable people could not have found the defendant guilty beyond a reasonable doubt, then the reviewing court must reverse and render. Bush, 895 So.2d at 843 (¶ 16) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss. 1985)).

¶ 16. Under Mississippi law, depraved-heart murder is defined as “[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.” Miss. Code Ann. § 97 — 3—19(l)(b) (Rev. 2014). Depraved-heart murder is classified as second-degree murder. Id.

¶ 17. Considering the evidence in the light most favorable to the prosecution, we find that there was sufficient evidence to convict Hare of, depraved-heart, murder. Hare admitted to both the ownership of the knife and' the stabbing of Clark. Also, the physical evidence showed that Hare stabbed Clark repeatedly while Clark was in a defensive posture. Specifically, there were defensive wounds 'to Clark’s hands and arms. Hare stabbed Clark multiple times in the chest and abdomen, collapsing his lungs and damaging his'liver and stomach-leaving his intestines and stomach protruding from his stab wounds.

¶ 18. Additionally, Hare’s claim that he was merely acting in self-defense is not supported by the physical evidence. Hare had only one cut on his hand, and he did not complain of any scrapes or bruises. Also, while Hare testified that he and Clark were chest to chest during the fight, the evidence showed that-there were multiple stab wounds to Clark’s back. These stab wounds were front to back, and they angled downward. It was the jury’s duty to weigh the evidence and to determine the credibility of the witnesses. Accordingly, we find that there was sufficient evidence for the jury to find beyond a reasonable doubt that Hare was guilty of depraved-heart murder. This issue is without merit.

III. Weight of the Evidence

¶ 19. Lastly, Hare contends that the jury’s verdict — finding him guilty of depraved-heart murder — is contrary to the overwhelming weight of the evidence. Specifically, Hare argues that the weight of the evidence supported the defense of self-defense and not a verdict of depraved-heart murder. A reviewing court will only disturb a verdiet based on the weight of the evidence “when [the verdict] 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 (¶ 18). In reviewing this issue, we weigh the evidence in the light most favorable to the verdict. Id.

¶ 20. For the reasons discussed in the previous issue, we do not find that allowing the verdict to stand would sanction an unconscionable injustice. “Factual disputes are properly resolved by a jury and do not mandate a new trial.” Ealey v. State, 158 So.3d 283, 293 (¶ 31) (Miss. 2015). This issue is without merit.

CONCLUSION

¶ 21. Upon review of the record, we find no merit to any of the issues raised on appeal. Therefore, we affirm the findings of the circuit court.

¶22. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF DEPRAVED-HEART MURDER AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWENTY-FIVE YEARS TO SERVE AND THE REMAINDER SUSPENDED, FOLLOWED BY FIVE YEARS OF POSTRELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

IRVING AND GRIFFIS, P.JJ., FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J.

CARLTON, J.,

DISSENTING:

¶ 23. I respectfully dissent from the majority’s opinion because I would reverse and remand for a new trial. The record reflects, and Hare asserts, that the jury was instructed on culpable-negligence manslaughter instead of heat-of-passion manslaughter, which was supported by the evidence. Since precedent reflects that the trial judge has a duty to conform the instructions to the evidence, then I submit that this case should be reversed and remanded for a new trial.

¶24. A review of the record reflects evidentiary support for a heat-of-passion-manslaughter instruction. The record shows that, after drinking, Clark, the deceased, went to the residence of his former girlfriend, Sims, where he belligerently trespassed on her property and ripped her screen door from its hinges. Clark also yelled insults at Hare, who was inside the house with Sims, and he threatened to assault Hare. Clark challenged Hare to come outside the residence, stating that he would “whip [Hare] up.” In addition, Clark threatened to come inside and get Hare and to smash Hare’s vehicle. Upon seeing Clark dig into his pocket, Sims called 911. The record reflects that, when Clark went to Hare’s car, Hare exited the residence, and Clark charged him. A fight ensued, and the two men fell on and between the cars parked at Sims’s residence. Sims continued to call 911, and she told Clark that her home was not his home.

¶ 25. Hare testified at trial that he suffered from a leukemia-like illness and had taken steroids that resulted in weak bones. He testified that he had undergone two hip-replacement surgeries and one shoulder-replacement surgery and that he feared for his safety. Hare also stated that he thought Clark was “trying to beat [his] brains in.” Hare testified that the altercation with Clark lasted about fifteen minutes and that he (Hare) was constantly telling Clark to let him go. As the record shows, the 911 tape revealed that Hare could indeed be heard screaming, “Let me go.” Hare further testified that Clark was so strong that he flipped him onto his back. In addition, Hare stated that Clark choked him around the neck with his hands and got on top of him, straddling him, so that he could not move, get free, or leave. According to Hare, he only weighed between 165 and 170 pounds and, as previously stated, had experienced poor health conditions. At trial, Dr. LeVaughn, the chief medical examiner for the State, testified that he weighed Clark’s body prior to performing the autopsy, and that Clark weighed 264 pounds.

¶26. During the struggle, Hare poked. Clark with a box cutter, which resulted in Clark’s multiple stab wounds. The record reflects that, when the struggle ended, Clark walked across the street and collapsed. However, the record also reflects that, when Hare exited Sims’s residence, Clark tackled him, and then as the struggled continued, Clark again charged Hare. Evidence in the record supports Hare’s claim that he stabbed Clark with the box cutter in self-defense and that Clark was the initial aggressor.

¶27. Based upon the foregoing, I respectfully submit that the face of the record shows error that substantially prejudiced the fundamental fairness of Hare’s trial due to improper jury instructions. I would therefore reverse and remand for a new trial. Accordingly, I dissent from the majority’s opinion.

LEE, C.J., JOINS THIS OPINION.

      . In Guster v. State, 758 So.2d 1086, 1089-90 (¶ 21) (Miss. Ct App. 2000), this Court held the trial court erred by failing to reform a self-defense instruction into a defense-of-others instruction. This Court explained that the trial court possessed a duty to "conform the instruction to the evidence!)]” and we found "that the failure to reform th[e] instruction” resulted in prejudice, requiring reversal of the conviction and remand for a new trial. In Manuel v. State, 667 So.2d 590, 593 (Miss. 1995), the Mississippi Supreme Court held that, “[i]n homicide cases, the trial court should instruct the jury about a defendant’s theories of defense, justification, or excuses that are supported by the evidence, no matter how meager or unlikely, and the trial court’s failure to do so is error requiring reversal of a judgment of conviction.” •


author: BARNES, J.,

text:
    Terry Lynn BARBER a/k/a Terry L. Barber a/k/a Terry Barber, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00435-COA
    Court of Appeals of Mississippi.
    06/20/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. Terry Lynn Barber was convicted of possession of methamphetamine and sentenced to three years in the custody, of the Mississippi Department of Corrections (MDOC) as a habitual offender without eligibility for parole. He claims on appeal that his defense counsel was ineffective in failing to request a jury instruction on circumstantial evidence. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On June 28, 2015, Deputy Rob Roberson of the Panola County Sheriffs Department conducted a traffic stop of Barber’s vehicle on Interstate 55, as Barber had crossed the “fog line” on the shoulder of the road. Barber’s son; Cody Dylan Barber, was a passenger in the car. Deputy Roberson became suspicious after Barber and Cody gave conflicting information about where they had been that evening, and he asked for permission to search the vehicle. Barber consented, and the search of the vehicle revealed several small baggies used in the sale of narcotics and one baggie containing a crystalline white powder under the passenger’s seat, which was later confirmed to be methamphetamine.

¶ 3. Barber and Cody were arrested and transported to the Panola County Detention Center. Officer Steven Moore collected Barber’s personal effects, including his wallet, and took inventory of the items. The items were securely stored in the facility’s property storage area. Two days later, Barber’s wife visited the jail' and asked Deputy Bob Brownlee if she could pick up Barber’s debit card. The deputy opened the secured bag containing Barber’s personal effects and retrieved Barber’s wallet. While looking through the wallet to get the debit card, Deputy Brownlee observed a bag of methamphetamine fall out of the wallet.

¶ 4. Barber and Cody were indicted on November 4, 2015, on one count of conspiracy to possess methamphetamine and one count of possession of methamphetamine in the amount of at least two grams but less than ten grams. Barber was charged as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). Cody claimed responsibility for the drugs found in the car; so the State reduced the charges against Barber to possession of methamphetamine of at -least one-tenth, gram but less than two grams for the bag discovered in Barber’s wallet.

¶ 5. A jury trial was held on February 16, 2016, -in Panola County- Circuit Court. Officer Moore testified that he opened the main compartment of the wallet to inventory any cash, but he did not look in the “small individual pockets” and noted nothing unusual about the wallet. Deputy Brownlee testified that when he went to retrieve the wallet, the bag containing Barber’s personal effects “was secured, tied up like all of them are.” When Deputy Brownlee pulled out the debit card, he “pulled out a sack of what looked like methamphetamine with it.” He immediately contacted a narcotics, agent, Tyler Mills, who said that he took the item that fell from the wallet, put it into an evidence bag, and sent it to the Mississippi Crime Lab. Barber testified that he left his wallet on the dashboard of his car while talking with Deputy Roberson and that the deputy “looked through [his] wallet.” He stated that the wallet was left in the vehicle, and another officer brought it'to him upon arrival at the jail. When he arrived at the jail, Barber said he and Officer Moore “went through [the wallet],” and he retrieved cards out of his wallet at that time. But Barber later said that Deputy Roberson’s testimony — that Barber had his wallet when he was booked at the jail — was true. On rebuttal, Officer Moore said Barber got the cards after the drugs were found.

¶-6. Barber was convicted of possession of methamphetamine of at least one-tenth gram but less than two grams. The trial court sentenced Barber to. three years in the custody of the MDOC as a habitual offender without eligibility for parole, and ordered him to pay a fine of $500. Barber filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict, which the trial court denied. On appeal, Barber contends that his defense counsel’s failure to request a jury instruction on circumstantial evidence constitutes ineffective assistance of counsel, and that his conviction and sentence should be reversed and vacated.

DISCUSSION

¶ 7. Barber argues there was no direct evidence that he possessed the methamphetamine discovered in his wallet, and the jury had to infer the methamphetamine was in the wallet when Barber possessed his wallet. Therefore, he claims defense counsel’s failure to request a circumstantial-evidence jury instruction constituted ineffective assistance of counsel. “Because appellate courts are limited to the trial record-on direct appeal, ‘generally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings.’ ” Bell v. State, 202 So.3d 1239, 1242 (¶ 12) (Miss. 2016) (quoting Dartez v. State, 177 So.3d 420, 422-23 (¶ 18) (Miss. 2015)). “Under those circumstances, ‘the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue’ in a PCR motion.” Darnell v. State, 202 So.3d 281, 285 (¶ 15) (Miss. Ct. App. 2016) (quoting Dartez, 177 So.3d at 423 (¶ 18)).

¶8. However, Rule 22(b) of the Mississippi Rules of Appellate Procedure states: “Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record.” The merits of this type of claim will be addressed if “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss. Ct. App. 1999). The State does not stipulate as to the adequacy of the record. However, as the issue is contingent upon whether certain evidence was direct or circumstantial, we find the trial record adequate to consider the merits of Barber’s claim of ineffective assistance of counsel.

¶ 9. “A circumstantial-evidence case is one where the State is ‘without a confession and wholly without eyewitnesses to the gravamen of the offense charged.’ ” Carson v. State, 125 So.3d 104, 106 (¶ 5) (Miss. Ct. App. 2013) (quoting Garrett v. State, 921 So.2d 288, 291 (¶ 17) (Miss. 2006)). While Barber did not confess, he did acknowledge that the wallet was his property. Although Officer Moore did not “recall” Barber’s taking the wallet out of his pants pocket, he did provide eyewitness testimony that the wallet was in Barber’s personal effects when he booked Barber and took inventory. There was also eyewitness testimony by Deputy Brownlee that the methamphetamine was found in Barber’s wallet when it was taken from the jail’s secure storage facility. “[T]he direct evidence that avoids the instruction must directly and not by inference implicate the accused and not just show that there has been a crime. Direct evidence is eyewitness accounts.” Price v. State, 749 So.2d 1188, 1194 (¶ 16) (Miss. Ct. App. 1999). In Jenkins v. State, 757 So.2d 1005, 1009 (¶ 20) (Miss. Ct. App. 1999), this Court determined that a trial court properly denied a circumstantial-evidence instruction in a constructive-possession case when marijuana was found by law enforcement in the defendant’s house, not on his person.

[T]he issue of whether Jenkins had exclusive dominion and control is a separate question from whether this -is a circumstantial[~]evidence case. Here, there is direct evidence of the existence of the drugs in Jenkins’s house. That is stronger than a precedent that upheld the denial of a eircumstantial[-j evidence instruction when marijuana was found in the automobile that the defendant was driving but did not own. Boches v. State, 506 So.2d 254, 260 (Miss. 1987). The discovery of the drugs in the car being driven by the defendant in Boches, just as the existence of the drugs in Jenkins’s house, avoids the need for the instruction on circumstantial evidence.

Jenkins, 757 So.2d at 1009 (¶ 20); see also Givens v. State, 618 So.2d 1313, 1319 (Miss. 1993) (finding that a defendant was not entitled to a circumstantial-evidence instruction in view of direct eyewitness testimony of a police officer who saw the defendant throw away a bag that contained contraband).

¶ 10. .While the wallet was no longer in Barber’s possession when the drugs were found, Barber testified that he possessed the wallet at the detention center prior to his effects being taken into the chain of custody.

Q. Well, you heard Deputy Roberson testify that you had your wallet on when you went to the jail and you had your wallet when Officer Moore booked you at the jail?
A. Uh-huh.
Q. It was placed in your personal effects, and at your request[,] they got a card out of it?
A. Yes, sir.
Q. That’s all true; right?
A. Yes, sir.
Q. The only thing you disagree with is you’re telling us you don’t know where the meth came from?
A. That’s exactly right.

Barber also admitted that he “ha[d] no reason , to think” that either Officer Moore or Deputy Brownlee would plant the drugs on him.

¶ 11. As there is direct evidence that Barber owned and possessed the wallet in which the drugs were found, the evidence was not “purely circumstantial.” Barber’s claim of ineffective assistance of counsel is without merit, and the judgment is affirmed.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY, SECOND JUDICIAL DISTRICT, OF CONVICTION OF POSSESSION OF AT LEAST ONE-TENTH GRAM BUT LESS THAN TWO GRAMS OF METHAMPHETAMINE, AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE, AND TO PAY A FINE OF $500 AND AN ASSESSMENT OF $100 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION PROGRAM, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ„ CONCUR.

      . Barber does not dispute on appeal that the substance was methamphetamine.

      . Barber was given credit for 150 days served in custody awaiting trial.


author: GREENLEE, J.,

text:
    Henry Orlando BROWN a/k/a Henry O. Brown a/k/a Henry Brown, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00790-COA
    Court of Appeals of Mississippi.
    07/18/2017
    Rehearing Denied November 28, 2017

      ATTORNEYS FOR APPELLANT: EDMUND J. PHILLIPS JR., CHRISTOPHER A. COLLINS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. Henry Orlando Brown appeals his convictions and sentences for burglary, larceny, and felony malicious mischief. Brown argues, inter alia, that his indictment was impermissibly multiplicitous, that his confession was involuntarily given, and that the trial court erroneously ruled on multiple hearsay objections. Brown, through his pro se supplemental brief, also raises issues involving the convicting statute, his sentencing, his indictment, and other claims. Finding no error, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. In April 2014, Brown was indicted on four counts in the same indictment, including one count of burglary of a camp house, two counts of grand larceny (for the theft of two four-wheelers), and one count of felony malicious mischief (for damage to multiple four-wheelers). Two additional defendants — Oshee Moore and Bridget Harris — -were charged in the same indictment. Harris is Brown’s daughter, Brown went before a justice-court judge and was denied bond shortly after his arrest.

¶ 3. Following his arrest, Brown was interviewed several times by Scott County investigators Willie Anderson and Billy Patrick over the course of several months. Brown sent multiple handwritten notes to the investigators asserting Moore’s participation in the crime and expressing an interest in receiving a bond setting. At Brown’s fourth interview,- after waiving his Miranda rights, Brown provided a four-page handwritten statement asserting that he never entered onto the victim’s , property but that Harris and Moore had called him asking to store the four-wheelers and other items at his mother’s house and asking for help selling the stolen items.

¶ 4. Both Harris and Moore entered into plea deals ' in exchange for testifying against Brown. Harris testified that Brown picked the camp-house location to burglarize and that Brown and Moore each rode one of the stolen four-wheelers (loaded with additional stolen items) off of the property while she drove the vehicle in which they had arrived. She testified that they took the four-wheelers and hid them at Brown’s mother’s house prior to selling them. She testified that, when they were being investigated for the crime, her father told her to tell the police that Moore did it. She stated that, after her father implicated her as well as Moore to the police, she decided to tell the truth about the involvement of all three. She stated that all three of them were high on meth at the time of the crime and that she initially thought they were only looking for scrap metal.

¶ 5. Moore also testified against Brown. He stated that, after they entered the property, he hot-wired the four-wheelers while Brown searched other buildings and returnéd with various bags and a generator. Several victims testified as to the value of the items stolen and the cost of having damaged items repaired, A local dealer and mechanic specializing in small-engine sales and repairs also testified as to the value of the four-wheelers and the cost to repair them.

¶ 6. Brown moved to suppress his incul-patory written and oral statements, arguing that the interrogating officers made a promise that he would receive a bond setting if he confessed. The court held a suppression hearing outside of the presence of the jury in which it heard the testimony of the two investigating officers. Brown did not testify. The officers testified that Brown expressed an interest in receiving bond, but that they never offered Brown the promise of bond in return for a statement. They testified that Brown was properly Mirandized prior to talking with them, and that they-refused to look at his written, statement prior to the Miranda waiver. Brown’s written Miranda waiver was introduced into evidence. The officers testified that Brown had a four-page handwritten statement prepared (in which he denied being present for the actual burglary), and that he had unilaterally sent letters to the officers requesting to meet with them.

¶ 7. Officer Anderson testified that over the course of-the approximately thirty-minute interview, he asked Brown about the discrepancies between his written statement and other evidence the police had collected. He stated, “I asked [Brown]specifically did he break into the facilities with Mr. [Moore] and Ms. Bridget. He held his head down and he said yes. I said, did you take the four-wheelers there? He stated, yes, he did.” Following the court’s denial of Brown’s motion to suppress, Officer Anderson read Brown’s written statement out loud to the jury and testified as to Brown’s oral inculpatory statements.

¶ 8. Officer Anderson also testified that, during the course of the investigation, Harris granted consent for law enforcement to look around her grandmother’s property. He testified that he found some four-wheeler racks and that “Ms. [Harris] told us those four-wheéler racks belonged to the missing four-wheelers.” Brown objected to the testimony as hearsay. The court replied, “I’m going to let you ask it in a different way. The objection is overruled.” Brown then moved for a mistrial, which was denied. The State redirected its questioning to the course of the investigation,

¶ 9. Brown , presented one witness, Christopher Long, who was originally a suspect in the case. Long testified in part that when he was taken in for questioning, Harris shouted at him from down the hall: “[T]ell him and Brown did it.” The State objected to Long’s statement as hearsay and the court sustained the objection, instructing the jury to ignore it. .

¶ 10. Brown was convicted on all four counts and sentenced as a habitual offender to seven years for the burglary, ten years for each count of larceny, and five years for malicious mischief, with all four sentences to run consecutively without the possibility of parole. Brown appeals.

DISCUSSION

I. The indictment was not impermis-sibly multiplicitous.

¶11. Brown argues that “[t]he combining of burglary and larceny charges in the same indictment violates the prohibition against multiplici[t]ous indictments,” citing to Johnson v. State, 452 So.2d 850 (Miss. 1984). Johnson no longer controls. Under section 99-7-2, enacted in 1986, two or more offenses properly charged in separate counts of a single indictment may be tried in a single proceeding where “the offenses are based on the same act or transaction” or “the offenses are based - on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.” Miss. Code Ann. § 99-7-2 (Rev. 2015); Rushing v. State, 911 So.2d 526, 532 (¶¶ 12-13) (Miss. 2005). A defendant can request severance when a multicount indictment has been returned, and if a defendant requests severance, “a hearing should be held on the issue.” Eakes v. State, 665 So.2d 852, 861 (Miss. 1996). Brown did not request severance of his charges. The. burglary, larceny, and malicious-mischief charges against him satisfy the statutory requirement that the cdunts be based on the same act or transaction or that they be. based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. This argument is without merit.

II. The trial judge did not err in , overruling Brown’s motion to suppress his pretrial handwritten confession and oral statements.

¶ 12. Brown argues that the trial court should have granted his motion to suppress his inculpatory written and oral' statements. The trial court must determine beyond a reasonable doubt whether a challenged confession was voluntarily Offered, and the State bears the burden of proving that the confession was voluntary; Harden v. State, 59 So.3d 594, 605 (¶ 25) [Miss. 2011). A confession is involuntary and thus inadmissible if given as a result of inducement, threat, or promise. Morgan v. State, 681 So.2d 82, 86 (Miss. 1996).

¶ 13. We do not find that the trial court erred in determining that Brown’s inculpa-tory statements were made voluntarily. Brown requested to speak with the investigating officers, who refused to accept any statement from Brown until he voluntarily waived his Miranda rights. The officers testified that they have no authority to grant bond and that they did not promise Brown bond as an inducement to provide a statement. The court weighed the credibility of the suppression evidence and issued a ruling within its discretion. This issue is without merit.

III. The trial judge did not commit • reversible error related to the parties’ hearsay objections.

¶14, Brown, argues that the trial court committed reversible .error in .overruling his hearsay objection ■ to Officer Anderson’s statement that Harris informed him that the racks found at her grandmother’s belonged to the stolen four-wheelers. Though the court overruled the objection, the court immediately required the State to “ask [the question] in a different way.” Even if the court erred in overruling rather than sustaining the objection, Brown has failed to demonstrate how he was prejudiced by the statement. Harris and Moore both testified on direct examination that the stolen four-wheelers were brought to Harris’s grandmother’s house. Brown’s four-page inculpatory statement read into evidence by Officer Anderson also makes this assertion. In light of-all of the other evidence -presented at trial, Brown has failed to demonstrate how the statement created prejudice warranting reversal of his convictions,.

¶ 15. Brown also argues that the trial court erred in sustaining the State’s hearsay objection to Long’s testimony that Harris shouted at him to tell the police that Moore and' Brown committed the crime. The court rejected Brown’s argument that the statement should be admitted as an excited utterance. We do not find that the trial court erred in sustaining the State’s objection to this statement as hearsay.

IV.The trial court did not err in sentencing Brown as a felon on .the charge of malicious mischief.

¶16. Brown argues that his malicious-mischief conviction should have been classified as a misdemeanor rather than a felony because the cost to repair the damaged items at the time the -crime was committed was between $500 and $1,000. At the time the crime was committed, an element of the crime placed the felony threshold at $500, but at the time of Brown’s trial and sentencing, the element had been amended to place the felony threshold at $1,000. - ■

¶ 17. The Mississippi Supreme Court has made clear that the amendment of an element of a crime to establish a more-lenient felony threshold is qualitatively distinct from an amendment that ameliorates a sentencing statute. Wilson v. State, 967 So.2d 32, 42 (¶ 22) (Miss. 2007). Sentencing is not affected when the elements constituting a crime are amended after the exime has occurred. Id. At the time the crime was committed, the felony threshold for malicious mischief was $500. Evidence was presented at trial that the damaged property cost more than $500 to l'epair or replace. Brown’s sentence as a felon was therefore proper.

V. Brown’s Supplemental Brief

¶ 18. Brown filed a pro se supplemental brief that raises, by his count, twelve additional issues. For the reasons that follow, none of them is meritorious.

a. Conviction Under the Wrong Statute

¶ 19. First, Brown asserts that he was erroneously convicted of malicious mischief under Mississippi Code Annotated section 97-17-67(3) (Rev. 2006). He asserts an affidavit exists as part of the State’s discovery that values the property damaged at exactly $500, not in excess of $500 as required to be guilty under section 97-17-67(3). A review of the record reveals no such affidavit. Without more, we find this issue is without merit.

b. Brown’s Sentencing

¶ 20. Next, Brown asserts that he was sentenced under the wrong statute, that he should not have been sentenced as a habitual offender, that his sentence should have been adjusted downward, that he should have had a bifurcated trial, that no one testified as to his prior convictions, and that his sentence is cruel and unusual punishment. Brown did not raise any of these issues at trial, nor did he make a single objection during the sentencing portion of his trial. As such they are all procedurally barred.. Notwithstanding the procedural bar, they are all without merit.

¶ 21. Brown asserts he was erroneously sentenced under Mississippi Code Annotated section 97-17-41(2) (Rev. 2015). Brown was convicted of two counts of grand larceny under Mississippi Code Annotated section 97-17-41(1) (Rev. 2006). The record (the circuit court’s notice of criminal disposition) clearly reflects that he was sentenced under section 97-17-41(1) (Rev. 2006). As such, we find this issue is without merit.

¶ 22. Brown asserts he was erroneously sentenced as a nonviolent habitual offender, under Mississippi Code Annotated section 99-19-81 (Rev. 2015), because it is not clear that his prior convictions arose out of separate incidents. Brown pleaded guilty on the same day to two separate charges, and was sentenced for both of those convictions on the same day, though a different one from his date of conviction. A review of the record reveals that the State submitted the judgment and sentencing orders for each conviction and that each order bears a separate and distinct case number for the respective conviction, Case No, 98-002197-04-FH and Case No. 93-014226-01-FH. We have previously held that separate case numbers evidence that prior convictions arose out of separate incidents. See Lawson v. State, 154 So.3d 926, 932-33 (¶ 15) (Miss. Ct. App. 2015).

¶ 23. Brown appears to also assert that his convictions and sentencings occurring on the same days demonstrates that they did not arise out of separate incidents. In presenting its proof of Brown’s prior convictions, the State stated that “although [Brown] pled guilty to these two crimes on the same day and was also sentenced on the same day, ... these two cases arise out of separate incidences, and for which he was sentenced to the custody of the Michigan Department of Corrections for a period of a year or more.” Whether Brown was convicted of, or sentenced for, his prior convictions on the same day is of no matter. See Griffin v. State, 607 So.2d 1197, 1204 (Miss. 1992) (quoting Rushing v. State, 461 So.2d 710, 713 (Miss. 1984)) (“Appellant’s argument that the statute does not apply where the convictions, though arising out of separate incidents, occurred on the same day is completely without merit and should be rejected.”). Thus, we find this issue is without merit.

¶ 24. Brown asserts the trial court erred, and that his trial counsel’s assistance was ineffective, because in calculating his sentence as a habitual offender there was no recommendation made for a downward adjustment of his sentence. Section 99-19-81 requires sentencing to “the maximum term of imprisonment prescribed” and that the “sentence shall not be reduced or suspended ....” Here, Brown was sentenced to the maximum term for each count as prescribed by section 99-19-81. We find this issue is without merit. Insofar as Brown makes an ineffective-assistance-of-counsel claim on direct appeal, Brown’s claim is not “based on facts fully apparent from the record.” Sandlin v. State, 156 So.3d 813, 819 (¶ 20) (Miss. 2013). Therefore, we decline to address it further without prejudice so that it may be asserted in a properly filed motion for post-conviction relief. With all other aspects of Brown’s purported error in not receiving a downward adjustment of his sentence, we find this issue is without merit.

¶25. Brown asserts he should have had a bifurcated' trial because he was sentenced as a habitual offender, and that no one actually testified as to his prior convictions. Here, while the jury was out for deliberation, the court began a hearing on Brown’s habitual-offender status. During that hearing, the State presented certified copies of the judgment and sentencing orders of Brown’s prior convictions as evidence of the same, which were admitted without objection. The-court then recessed until the jury returned from its deliberations. After returning from deliberation, the jury returned its verdict and then was finally excused. After the jury was finally dismissed, the court made its finding that Brown was a habitual offender, to which Brown made no objection.

¶ 26. What is intended by the bifurcated-trial requirement is “to ensure that a jury, before deciding a defendant’s guilt or innocence, is not informed of the defendant’s prior criminal record so as not to be improperly influenced in its verdict.” Small v. State, 141 So.3d 61, 66-67 (¶ 17) (Miss. Ct. App. 2014). Here, -a review of the record reveals the jury was not present at any time during the court’s hearing on Brown’s sentencing as ■ a habitual offender, which was sufficient to meet the spirit of the bifurcated-trial requirement.

¶27. Brown also argues that his right to confrontation was violated when only the judgment and sentencing orders for his prior convictions were submitted as evidence and no witness actually testified regarding his prior convictions. Here, Brown had the opportunity to challenge the State’s proof and he did not. Thus, we find these issues are without merit. This issue is procedurally . barred because Brown did not raise it at trial. Notwithstanding the procedural bar, the exact same issue was raised in Small, and we found the issue to be without merit as such does not violate a defendant’s Sixth Amendment right to confrontation. Id. at 68-69 (¶¶ 22-24). Here,. Brown had the opportunity to challenge the State’s proof and he did not. Thus, we find these issues are without merit.

¶ 28. Brown asserts that his sentence as a nonviolent habitual offender under section 99-19-81 is cruel and unusual punishment in violation of his Eighth Amendment rights. It is not. See Bridges v. State, 482 So.2d 1139, 1140 (Miss. 1986), We find this issue is without merit.

c. Brown’s Indictment

if 29. Brown ásserts that his indictment is fatally defective because it does not state “against the peace and dignity of the state” on each page of his indictment. All that is required is “against the peace and dignity of the state” be included in the indictment, not that it- be included on every single page of the indictment. See URCCC 7.06(7) (replaced by MRCrP 14.1(a)(2)(G)). This issue' is without merit.

d. Other Claims

¶ 30. Brown repeats his arguments from sections II and III above.-But, in a slight twist, Brown makes multiple claims that several State’s witnesses, who also happen to be the attorney for the board of supervisors and two officers, violated 18 U.S.C. § 1001 (2012), because they are government officials and purportedly lied during their testimony. Brown also asserts that the State “committed [a] discovery violation by failing to disclose [his] statements] in discovery” in violation of Federal Rule of Criminal Procedure 16. As stated above, we find no error in the trial court’s admitting Brown’s oral confession and written statement, nor do we find any error in the court admitting hearsay statements from some of the witnesses. We write further only to note that the law Brown cites in support is inapplicable to his case. Section 1001 -applies to “matter[s] within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States .... ” 18 U.S.C. § 1001. And the Federal Rules of Criminal Procedure “govern the procedure in all criminal proceedings in the United States district courts, the United States courts of appeals, and the Supreme Court of the United States.” Fed. R. Crim. P. 1(a)(1). “When a rule so states, it applies to a proceeding before a state or local judicial officer.” Fed. R. Crim. P. 1(a)(2). Rule 16 does not state any such application. Thus, we find these issues are without merit.

¶ 31. Brown appears to also assert that his Miranda rights were violated when Roy Noble Lee Jr., one of the victims in this case, went to see Brown while he was in custody and spoke with him because Lee is also the attorney for the board of supervisors and thus a government agent that was interrogating him. Miranda concerns custodial interrogation “initiated by law enforcement officers Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), However, “Miranda’s requirements have since been applied to questioning conducted by a broad range of government agents 'performing law enforcement functions.” United States v. Borchardt, 809 F.2d 1115, 1118 (5th Cir. 1987) (emphasis added). Lee, an attorney in private, practice in Forest, Mississippi, did not become a law-enforcement officer, let alone someone performing a law-enforcement function, simply because he is the attorney for a local government body.

¶ 32. However, the question arises whether this is a situation “where law enforcement officials recruited an individual to solicit information from a defendant.” Id. at 1119. “Among the factors which determine whether a private entity is acting as an agent for the [government include: whether the government had knowledge of and acquiesced in the intrusive conduct; whether the citizen intended to assist law enforcement agents or instead acted to further his own purposes; and whether the citizen acted at the government’s request.” United States v. May, 440 F.Supp.2d 1016, 1041 (D. Minn. 2006). A review of the record reveals that there was some degree of knowledge and acquiescence by. law enforcement since they had to have let Lee into the jail, but nothing from the record reveals that Lee intended to assist law enforcement or acted at their request.

¶33. Nonetheless, even if Lee were acting in concert with law enforcement and his questioning was in some way a violation of Brown’s Miranda rights, the error was harmless. According to Lee’s testimony, Brown “didn’t tell me where anything was. He didn’t say he’d done it, but he did say, I’m sorry that this happened. You’ve always been good to us. You let us go down fishing at your lake and that was that.” Nothing' Lee testified to regarding his conversation with Brown incriminated him. We find this issue is without merit.

CONCLUSION

¶ 34. The arguments Brown raises on appeal are without merit. His indictment was not impermissibly multiplicitous. The trial court did not err in denying his motion to suppress his inculpatory statements. The trial court did not commit reversible error in ruling on various hearsay objections. Brown was properly sentenced as a felon for malicious mischief. None of the other issues raised in Brown’s pro se supplemental brief are meritorious. Therefore, the judgment of the circuit court is affirmed.

¶ 35. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ.,'ISHEE, CARLTON, FAIR, ' WILSON AND WESTBROOKS, JJ., CONCUR. BARNES; J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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

      . ’ They each pleaded guilty to all four counts. They received reduced sentences and were not charged as habitual offenders.

      . Brown also appears to be looking at the wrong version of his sentencing statute. Section 97-17-41 was amended in 2014. Under the amended version, subsections two and four are the only sections under which there is a ten-year maximum sentence. Under the version in effect at the time he committed his crimes, there were only two subsections, both of which carried ten-year maximum sentences.

      . Brown's prior convictions for possession of a controlled substance in an amount less than twenty-five grams, under Mich. Comp. Laws § 333.7403(2)(a)(v) (1995), and breaking and entering, under Mich. Comp. Laws § 750.110 (1994), both occurred in Michigan. Brown pleaded guilty to both charges on June 3/ 1996, and was sentenced for both convictions on June 17, 1996.

      . Brown's arguments in his pro se supplemental brief for a downward adjustment are based totally on an analysis of the Federal Sentencing Guidelines as promulgated by the United States Sentencing Commission under the Sentencing Reform Act of 1984 and larger Comprehensive Crime Control Act of 1984. These guidelines in no way apply to Brown's sentencing for a violation of state law in state court. See U.S. Sentencing Guidelines Manual § 1A1.1 (U.S. Sentencing Comm'n 2004) (The purpose of the sentencing commission "is to establish sentencing policies and practices for the federal criminal justice system ... for offenders convicted of federal crimes.”).

      . The Mississippi Rules of Criminal Procedure went into effect July 1 of this year, Rule 14.1(a) is based on former Rule 7.06 of the Uniform Rules of Circuit and County Court, which was in effect when Brown was indicted. MRCrP 14 cmt.


author: LEE, C.J.,

text:
    William A. MCDANIEL and Kim McDaniel, Appellants v. Wayne E. FERRELL Jr. and Law Offices of Wayne E. Ferrell Jr., PLLC, Appellees
    NO. 2016-CA-01300-COA
    Court of Appeals of Mississippi.
    11/21/2017

      ATTORNEYS FOR APPELLANTS: WILLIAM LEE GUICE III, MARIA MARTINEZ
    ATTORNEYS FOR APPELLEES: JAMES WILLIAM MANUEL, MICHAEL LELAND COWAN
    BEFORE LEE, C.J., GREENLEE AND WESTBROOKS, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. In this legal-malpractice appeal, William McDaniel retained attorney Wayne Ferrell Jr. to represent him as a plaintiff in the underlying personal-injury suit after he was electrocuted during the course of his employment. The Jones County Circuit Court dismissed the underlying áction for failure to prosecute, and as a result, McDaniel brought a legal-malpractice claim against Ferrell for professional negligence. Ferrell moved for summary judgment, which the Hinds County Circuit Court granted, finding that McDaniel was the sole proximate cause of his injury in the underlying action, and thus could not succeed in the legal-malpractice suit. McDaniel now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. McDaniel was employed with the Federal' Aviation Administration (FAA) as an air-traffic-system specialist and was assigned to the Jackson International Airport. On September 18, 2006, McDaniel was electrocuted while replacing a blown fuse at Runway 16L. As a result, he was permanently injured and disabled so that he could no longer engage in his employment with the FAA.

13. McDaniel engaged the legal services of Ferrell to represent him in a lawsuit to recover damages for his injury. On July 9, 2007, McDaniel met with Ferrell and created a memo detailing the events and circumstances leading up to his electrocution. In this memo, McDaniel described that for several months leading up to the day of his injury, the airport lost power to the approach lights on the runway every time it rained. This required McDaniel, who was often “on call,” to come in and change the blown fuse to restore the system. McDaniel attributed the blown fuses to the recent, faulty electrical work performed on the system. McDaniel noted that he usually had help in changing the.blown fuse, and that he and his partner would “double check to make sure all power was off.” However, on the day.of the incident, his partner was on vacation, and McDaniel restored the system alone. He recounted that he was under great pressure to fix the. system, and the high-voltage transformer was live with electricity and “went unnoticed” so that he did not power it off.-As a result, when McDaniel attempted to change the fuse, he came into contact with a live wire and was electrocuted,

¶ 4. According to McDaniel, he met with Ferrell and discussed the strengths and weaknesses of his case, and Ferrell told him that his case was a comparative-negligence case. In September 2009, Ferrell filed suit on behalf of McDaniel against Howard Industries Inc.-, Godfrey Systems International Inc., G.S.I. Inc., and The B.F. Goodrich Company (Goodrich). ■ The complaint asserted that the electrical systems and services provided by the named defendants were defective and unreasonably dangerous, and were a contributing proximate cause of the accident and McDaniel’s injuries. An amended complaint was later filed to include McDaniel’s wife’s complaint for. loss of consortium.

¶ 5. In February 2010, Goodrich and Howard Industries ■ filed answers, and Goodrich also served discovery requests. Goodrich obtained the FAA Accident Investigation Report, which confirmed that the particular fuse at issue had failed twice in the few months prior to the day of McDaniel’s electrocution. The report also identified an. issue with the installation causing increased voltage and fuse failure during a lightning storm and found that the electrical-system configuration was -in violation of the National Electrical Code. Beyond this, little discovery or other action-took place.

¶ 6. In May 2011, the Jones County Circuit Court issued ■ a notice of dismissal, advising 'that there had been 'no action in the case in the preceding twelve months. In response, Ferrell filed a motion for a trial setting, but the motion was never set for a hearing. In June 2011, Goodrich moved to dismiss, stating that no action had taken place for thirteen months, discovery had not been answered, and only two of the four defendants had responded to the complaint. In May 2013, nearly four years after the complaint was filed, the circuit clerk issued á second notice of dismissal. Goodrich then filed a motion to dismiss for failure to prosecute, which was joined by Howard Industries shortly after. A hearing was held on the motion to dismiss, at which Ferrell admitted he had not discovered any evidence to support the allegations in the complaint. Ultimately, the circuit court granted the motion, finding that Ferrell’s admission, in. addition to the pattern of delay and two notices of dismissal, warranted dismissal with prejudice. Ferrell did not appeal the circuit court's decision.

¶ 7. McDaniel and his son met with Ferrell to discuss the dismissal, and Ferrell explained that he was unable to identify any defective piece of equipment responsible for McDaniel’s electrocution and subsequent injuries.

¶ 8. In May 2014, McDaniel filed a legal-malpractice suit against Ferrell in the Hinds County Circuit Court, alleging that Ferrell was negligent by failing to pursue the case and that he failed to sue the correct parties. Ferrell moved for summary judgment, arguing that McDaniel’s admission that he failed to de-energize the transformer before attempting to change the fuse precluded him from succeeding in the underlying litigation. McDaniel moved for additional time to conduct discovery regarding • the issue of causation, which was granted. After nearly a year of additional discovery, Ferrell filed a second motion for summary judgment. In its opinion, the circuit court noted that McDaniel must show that but for Ferrell’s alleged negligent representation, he would have been victorious in the underlying litigation. The circuit court found, however, that McDaniel could not succeed in the underlying action because it was undisputed that McDaniel failed to de-energize the system, and this was the sole and proximate cause of his injuries in the .underlying action. The circuit court granted Ferrejl’s motion for summary judgment, and McDaniel now appeals.

STANDARD OF REVIEW

¶9. This Court reviews a trial court’s grant of summary judgment de novo. Donovan v. Burwell, 199 So.3d 725, 729 (¶ 10) (Miss. Ct. App. 2016) (citing Evans v. Howell, 121 So.3d 919, 922 (¶ 14) (Miss. Ct. App. 2013)).- A summary-judgment motion should be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law?’ M.R.C.P. 56(c). We review the evidence in the light most favorable to the nonmoving party. Donovan, 199 So.3d at 729 (¶ 10). However, the party opposing summary judgment “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). “If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Id. “A complete failure of proof concerning an essential element of the non[ ]moving party’s case necessarily renders all other facts immaterial.” Sanderson Farms Inc. v. McCullough, 212 So.3d 69, 74 (¶ 12) (Miss. 2017) (citation omitted).

DISCUSSION

¶ 10. McDaniel argues that the circuit court erred in finding that he was the sole proximate cause of his .injury and that he could-not have succeeded in the underlying action, and thus erred by granting Ferrell’s motion for summary judgment on McDaniel’s legal-malpractice claim.

¶ 11. “For legal-malpractice claims predicated on negligence, the plaintiff ‘must , prove by a preponderance of the evidence: (a) the existence of an attorney-client relationship; (2) negligence on the part of the lawyer in' handling the affairs of the client which have been entrusted to the lawyer; and (3) proximate cause- of the injury.’ ” Gibson v. Williams, Williams & Montgomery P.A., 186 So.3d 836, 848 (¶ 34) (Miss. 2016) (quoting Pierce v. Cook, 992 So.2d 612, 617 (¶ 11) (Miss. 2008)). In this malpractice appeal, the issue centers on the third element — proximate cause.

¶ 12. In a negligence-based malpractice action, as is the case here,'the plaintiff “must establish proximate cause by the so-calléd ‘trial-within-a-trial’ test,” and “must show that, but for his attorney’s negligence, he would'have been successful in the prosecution or defense of the underlying action.” Id. at 850 (¶ 45). “Because attorneys are afforded a degree of professional autonomy, proof of success in the underlying case is an appropriate test for proximate cause in a negligence-based action because it ensures that attorneys are only held professionally liable where their failures to adhere to the standard of care actually impacted the plaintiffs interests in the case.” Crist v. Loyacono, 65 So.3d 837, 843 (¶ 16) (Miss. 2011). Thus, the test for proximate cause in the legal-malpractice suit is proof of success in the underlying negligence suit. Id.

¶ 13. “The elements of negligence are well-established: duty or standard of care, breach of that duty or standard, proximate causation, and damages or injury.” Porter v. Grand Casino of Miss. Inc., 181 So.3d 980, 985 (¶ 12) (Miss. 2016), “To succeed in a negligence claim, the plaintiff must prove both causation and proximate cause.” Dillon v. Greenbriar Digging Serv. Ltd., 919 So.2d 172, 177 (¶ 12) (Miss. Ct. App. 2005). “Proximate cause requires: (1) cause in fact; and (2) foreseeability.” Johnson v. Alcorn State Univ., 929 So.2d 398, 411 (¶ 48) (Miss. Ct. App. 2006) (quoting Ogburn v. City of Wiggins, 919 So.2d 85, 91 (¶21) (Miss. Ct. App. 2005)). “[C]ause in fact means that the act or omission was a substantial factor in bringing about the injury, and without it the harm would not -have occurred.” Davis v. Christian Bhd. Homes of Jackson, Miss. Inc., 957 So.2d 390, 406 (¶ 38) (Miss. Ct. App. 2007) (quoting Johnson, 929 So.2d at 411 (¶48)). “Stated differently, cause in fact requires proof that, but for the alleged negligent act or omission, the injury would not have occurred.” Id, “Foreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligent act created for others.” Id. at 404 (¶ 32), A plaintiff may not recover damages from a defendant where the plaintiffs own negligence was the sole proximate cause of his injuries. Evans v. Journeay, 488 So.2d 797, 799-800 (Miss. 1986).

¶ 14. In the instant case, it is undisputed that McDaniel failed to de-ener-gize the system before attempting to change the blown fuse. In the memo McDaniel created at his meeting with Ferrell,. he acknowledged that he failed to disconnect the high-voltage- transformer. In his deposition, McDaniel admitted that he did not de-energize the system on the day he was electrocuted. He acknowledged that he was trained on the system and that he knew the importance of de-energizing it. He also.admitted he had performed the same task on multiple occasions prior to the day of the incident, and did not suffer any injuries. On those occasions, he or his partner de-energized the system. It is readily apparent that but for McDaniel’s failure to de-energize the system, he would not have been electrocuted. It is also foreseeable that such failure to disconnect the transformer and engage the live system would result in electrocution. Thus, McDaniel’s own- negligent act was the proximate cause of his injury.

¶ 15. McDaniel argues that the law and the facts in the underlying suit support a comparative-negligence analysis and should have been submitted to the jury. He states that the “negligent design and construction of the runway lighting system was the cause in fact in bringing about the injury, without which the harm would not have occurred.”

¶16. “Mississippi is a pure comparative-negligence state.” Meka v. Grant Plumbing & Air Conditioning Co., 67 So.3d 18, 23 (¶ 15) (Miss. Ct. App. 2011) (citing Miss. Code Ann. § 11-7-16 (Rev. 2004)). “Under the comparative[-]negligence doctrine, negligence is measured in terms of percentage, and any damages allowed shall be diminished in proportion to [the] amount of negligence attributable to the person for whose injury, damage[,] or death recovery is sought.” Id. (quoting Coho Res. Inc. v. Chapman, 913 So.2d 899, 911 (¶ 36) (Miss. 2006)). “Where negligence by both parties is concurrent and contributes to injury, recovery is not barred under such doctrine, but the plaintiffs damages are diminished proportionately.” Id. (quoting Burton ex rel. Bradford v. Barnett, 615 So.2d 580, 582 (Miss. 1993)). “Thus, even though the plaintiff was negligent, the plaintiff may recover from a defendant whose negligence contributed to the plaintiff’s injury.” Id. However, comparative negligence only applies where there is more than one proximate cause. Breaux v. Grand Casinos of Miss. Inc.-Gulfport, 854 So.2d 1093, 1097 (¶ 11) (Miss. Ct. App. 2003) (citing King v. Dudley, 286 So.2d 814, 817 (Miss. 1973)). Comparative negligence “is not applicable if the negligence of the injured party is the sole cause of the injuries ....” Id.

¶ 17. In the instant case, a comparative-negligence analysis is improper because McDaniel was the sole proximate cause of his electrocution. Assuming that a defendant in the underlying suit was negligent in the design or construction of the runway lighting system, that alleged negligence was not a cause in fact of McDaniel’s electrocution. Rather, the alleged negligence caused a blown fuse, merely furnishing the occasion for McDaniel to restore the system. The Mississippi Supreme Court has held that “negligence which merely furnished the condition or . occasion upon which injuries are received, but does not put in motion the agency by or through which the injuries are inflicted, is not the proximate cause thereof.” Causey v. Sanders, 998 So.2d 393, 405-06 (¶ 39) (Miss. 2008). Thus, the defendants’ alleged negligence in the underlying action was not a proximate cause of, McDaniel’s injuries, and a comparative-negligence analysis was not appropriate.

¶ 18. It is undisputed that McDaniel failed to de-energize the system before attempting to change the blown fuse. This was the sole proximate cause of McDaniel’s electrocution. Thus, McDaniel could not succeed in the . underlying litigation ■and, in turn, could not prevail against Ferrell in his legal-malpractice suit. We affirm the trial court’s grant of summary judgment.

¶ 19. AFFIRMED.

IRVING AND GRIFFIS, P JJ., BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON AND TINDELL, JJ., NOT PARTICIPATING.


author: GREENLEE, J„

text:
    Domiano RATCLIFF a/k/a Domiano Latorian Ratcliff, Appellant v. STATE of Mississippi, Appellee
    NO. 2014-CP-01212-COA
    Court of Appeals of Mississippi.
    11/21/2017

      ATTORNEY FOR APPELLANT: DO-MIANO RATCLIFF (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
   GREENLEE, J„

FOR THE COURT:

¶ 1, Domiano Ratcliff appeals the summary dismissal of his second postconviction-relief (PCR) motion. We find no error and affirm.

FACTS

¶2. On April 12, 2004, Ratcliff, Channin Wilson, and Jessie Wilson entered the home of Steve and Renee Spencer in Forrest County, Mississippi, with the intent to rob them. Mark Turner, the driver, waited in a car outside. Inside the home, Channin held a gun to Steve’s head and demanded money. Ratcliff held a gun to Renee’s head and demanded her purse. Steve and Renee complied. Jessie went into the Spencers’ teenage daughter’s bedroom, grabbed her by the arm, and brought her into the room with her parents. The Spencers’ two-year-old nephew was also in the house. When Jessie realized that he went to school with the daughter, he ran out of the house. Ratcliff and Channin ordered the family to the back,of the house. As the family entered a back bedroom, Ratcliff and Chan-nin shot Steve five times in the back and legs, with at least one shot being' fired after Steve fell to the ground. Ratcliff and Channin then fled.

¶3. Ratcliff, Channin, Jessie, and Turner were each charged in the Forrest County Circuit Court with two counts of armed robbery and one count of aggravated assault. On November 5, 2004, Ratcliff entered a blind guilty plea to all three counts. He was sentenced to twenty years for the first armed-robbery count, twenty years with ten years suspended for the second armed-robbery count, and twenty years for the aggravated-assault count, for a total of fifty years to be served consecutively in the custody of the Mississippi Department of Corrections.

¶ 4. In 2006, Ratcliff filed a PCR motion, which was summarily dismissed. It does not appear that Ratcliff appealed the decision. On May 8, 2013, Ratcliff filed a second PCR motion, arguing that his sentence was disproportionate to two of his codefen-dants’ sentences, and seeking to be resen-tenced accordingly. The circuit court summarily dismissed the motion as successive-writ barred and time-barred.- Ratcliff now appeals.

STANDARD OF REVIEW

¶ 5. “When reviewing a trial court’s denial or dismissal of a motion for PCR, we will only disturb the-trial court’s factual findings if they- are clearly erroneous; ■however, we review legal conclusions under a de novo standard of review.” Chapman v. State, 167 So.3d 1170, 1172 (¶ 3) (Miss. 2016).

DISCUSSION

¶ 6. A PCR motion must be filed within three years of the judgment of conviction following a guilty plea. Miss. Code Ann. § 99-39-6(2) (Rev. 2016). Ratcliffs judgment of conviction was entered on November 5, 2004, and his second PCR motion-was filed on May 8, 2013, well outside the three-year time limit. Thus, his motion, is time-barred. His motion is also procedurally barred as a successive writ, as it is his second PCR motion. Miss. Code Ann. §. 99-39-23(6) (Rev. 2015). An exception to the procedural bars is made for errors affecting fundamental constitutional rights. Rowland v. State, 42 So.3d 603, 506 (¶ 9) (Miss. 2010). However, “merely asserting a constitutional-right violation is insufficient to overcome the procedural bars. There must at least appear tq be some basis for the truth of the claim before the procedural bar will be waived.” Fluker v. State, 170 So.3d 471, 475 (¶ 11) (Miss. 2015) (internal citation and quotation marks omitted).

¶ 7. Ratcliff argues that his rights to equal protection and due. process were violated because he received a longer sentence than two of his codefendants, Turner and Jessie. According to Ratcliff, Turner and Jessie received ten-year sentences, while he and Channin received fifty-year sentences. The record contains no evidence to support Ratcliffs claim that Turner and Jessie received ten-year sentences. But even assuming Ratcliffs claim is true, it does not establish a constitutional-rights violation. “There are no statutes or case law stating that a defendant must receive a sentence proportionate to a sentence imposed on an accomplice.” Young v. State, 919 So.2d 1047, 1049 (¶ 7) (Miss. Ct. App. 2005) (quoting Booker v. State, 840 So.2d 801, 805 (¶ 9) (Miss. Ct. App. 2003)). Rather, the circuit judge is to examine each case independently. Id, at 1050 (¶ 7). “Sentences between co[ ] defendants are, often times, different.” Id. at 1049 (¶ 7).

¶ 8. Sentencing is within the circuit court’s discretion, as long as the sentence imposed falls within the statutory limit. King v. State, 857 So.2d 702, 731 (¶ 106) (Miss. 2003). The maximum sentence for armed robbery is a sentence less than life, if not imposed by a jury. Miss. Code Ann. § 97-3-79 (Rev. 2014). Ratcliff was sentenced to twenty years each on the two armed-robbery counts, with ten years suspended. He was nineteen years old at the time of sentencing, and there is no evidence that either sentence was a life sentence, based on Ratcliffs age and life expectancy. The maximum sentence for aggravated assault is twenty years. Miss. Code Ann. § 97-3-7(2)(a) (Supp. 2016). Ratcliff was sentenced to twenty years on the aggravated-assault count. The- circuit court will generally not be held in error if the sentence imposed is within the statutory limits. King, 857 So.2d at 731 (¶ 107). We find no error in Ratcliffs sentence.

¶ 9. Further, the circuit court had valid reasons for sentencing Ratcliff and Chan-nin to a greater term than Turner and Jessie. Ratcliff and Channin shot one of the victims five times, while Turner waited in the car, and after Jessie had run out of the house. Also, according to Ratcliff, Turner and Jessie pleaded guilty to only one count of armed robbery, and the other counts against them were dropped in exchange for their agreement to testify against the other codefendants. We find no merit to this issue. See Young, 919 So.2d at 1049 (¶7) (affirming greater sentence of codefendant who was a habitual offender); Booker, 840 So.2d at 805 (¶ 9) (affirming greater sentence of codefendant when the trial judge considered the number of charges against each codefendant, their criminal records, the seriousness of the offenses, their roles in the offenses, and the prosecutor’s sentencing recommendations).

¶ 10. We affirm the circuit court’s summary dismissal of Ratcliffs PCR motion as procedurally barred.

¶ 11. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR.