author: RANDOLPH, PRESIDING JUSTICE,

text:
    Victoria SWANAGAN a/k/a Victoria P. Swanagan v. STATE of Mississippi
    NO. 2016-KA-00289-SCT
    Supreme Court of Mississippi.
    05/18/2017
    Rehearing Denied September 28, 2017

      ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: HUNTER NOLAN ATHENS, GEORGE T. HOLMES

      ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN HAVRILLA MeCLIN-TON
    BEFORE RANDOLPH,-PJ.,KITCHENS AND CHAMBERLIN, JJ.
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. Victoria P. Swanagan was convicted by a jury of the depraved-heart murder of Vincent Hill and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended, " fifteen years to serve, and five years of supervised probation. Finding no error, we affirm the sentence and conviction of Swanagan.

STATEMENT OF THE FACTS AND PROCEEDINGS BELOW

¶ 2. At trial, Derrick Sims testified that he and Vincent P. Hill worked together. When Sims arrived at Swanagan’s home to pick up Hill for work, he heard Swanagan and Hill' arguing in her house. Swanagan exited her house and went next door to her mother’s house.- During' that - time, Hill stayed inside Swanagan’s house. When Swanagan returned, Sims heard a “ruckus.” After a while, Hill came rushing out of the house without a shirt. “About the time he made it halfway down the stairs she hit him in the back of the—Victoria hit him in the back of the head.”

When they come outside, when she hit .him in the back of the head, he leaned against her car, and he said, don’t hit me no more. And he told her mama, I love your daughter to death, but look how she treat me. That was his exact words. He didn’t cuss at her. He didn’t call her nothing out of her name. That’s exactly what he said. And after that she said a little something, and he came and got in my truck.-He was, like,, man, let’s go. .He said, I’m tired. That was his exact words.

Swanagan opened the passenger door and got in the truck. Hill told Sims to drive to work. Sims also testified that no one forced Swanagan to get in his truck.

¶ 3. Swanagan and Hill continued arguing in the truck. The arguing escalated, and Swanagan hit Hill. Sims testified that Hill could not strike Swanagan, “[bjecause he was so tall in the truck it’s like how she was over him he couldn’t move.” Then Swanagan bit Hill. -Hill started yelling and screaming, causing Sims to stop the truck. Sims got out of the truck and opened the passenger door. Swanagan and Hill fell out at the same time. As they were falling to the ground, Hill hit Swanagan-on top of her head. Sims testified that Hill hit Swan-agan only that one time, before-he jumped up and ran to the truck, yelling at Sims to “come on.”

¶ 4. Sims was behind the truck, headed toward the- driver’s side door, when he heard the first gun shot and saw Swana-gan. with a: gun, shooting at the truck. Swanagan was on the ground and had her hand securely on a pistol, pointing up at the truck. As Hill started to drive off, Sims heard two more shots. After Swanagan had put the gun down, she told Sims she would buy him a new window.

¶ 5. Sims heard his truck stop running, and he ran off toward it. Sims found the truck in some woods nearby. Sims found Hill “in the center of the dashboard dead.” Sims then jumped in the truck and drove to Swanagan’s residence. “I jumped out of the truck immediately, and I couldn’t say nothing but you killed him.... I just got in the truck and left the scene.” -Sims then drove to a service station because he wanted to be safe.

¶ 6. Sims testified that he neither owned a gun nor had a gun in his possession the day Hill was killed. He said Hill knew that Sims no longer owned a gun. Even when Sims did own a gun, he carried it in his truck only when he went fishing, but never to work. Sims testified that Swanagan had been fishing with Sims and Hill, but she also knew he had gotten rid of his gun.

¶ 7. Felicia Robinson, a forensic scientist with the Mississippi Forensic Laboratory, was accepted as an expert in the field of forensic analysis of firearms and tool marks. Robinson testified that the projectile submitted to the crime lab from Hill was fired from the firearm retrieved from Swanagan’s property.

¶ 8. Lisa Funte, a state forensic pathologist, was accepted as an expert in the field of forensic pathology. Funte testified that she performed the autopsy on Hill, During the autopsy, Funte noted abrasions and contusions on his face, neck, hands, and legs, Funte also found

an entrance defect on the right side of the chest and an exit defect on the left side of the chest. In alignment with that exit defect that was on the left side of the chest there was also defects in the left arm. Th§ bullet went from the right side of the chest through the chest, exiting on the left side and reentered the left arm where the bullet was recovered.

¶ 9. After the State rested and motions were denied, Swanagan offered her defense. Barbara Swanagan, mother of Victoria Swanagan, testified that on the morning Hill was killed, her daughter came over to her home twice. She heard noise in her daughter’s home each' time Swanagan returned home. Barbara went outside and called for her daughter. Both Swanagan and Hill exited the house. Barbara tried to defuse the situation by talking calmly to both Hill and Swanagan, but Hill cursed at Barbara.

¶ 10. After thinking she had calmed everyone down, Barbara turned to go back in her house. As she turned, she heard the truck start. She saw the truck start "and stop several times and was worried that something was not right. She asked her daughter-in-law to .call, 911, and while Barbara was talking to the 911 operator, she heard gunshots. Barbara saw her daughter walking toward -them with a gun in her hand. Barbara was neither in her daughter’s house when Swanagan and Hill were fighting, nor did she see her daughter shoot Hill.

¶ 11. Swanagan testified that, on' the morning Hill was -shot, she asked him about text messages she had received from his family, and he "blew up” at her. Hill accused her of cheating on him and then made sexual advancés towards her. When she refused, he began to shove, hit, and call her names. She said this continued for more than ten minutes,

¶ 12. When Hill refused to leave, Swana-gan walked to her mother’s house to get ready for work but then returned after she heard noises coming from her house. She returned and found that Hill had turned over-stands, knocked things off of furniture,-and punched holes in her walls. Swanagan tried to gather her things for work. Hill refused to leave and continued to knock things over. He then ripped’ Off his shirt.

¶ 13. Swanagan grabbed her purse and went back to her mother’s house. She heard noises again, went home, and found that Hill was still' tearing her house apart. They began to argue again, and at some point, her tooth was knocked out. Swana-gan admitted to hitting and scratching Hill while they were fighting inside her home.

¶ 14. Swanagan then heard her mother calling for her. She and Hill went outside. Hill got in Sims’s truck, while pulling her into the truck. As she was trying to figure out how to get out of the truck since the passenger-side door had no handle, Hill hit her from behind. Hill told Sims to “crank the truck. Let’s go. We’re gonna drop this bitch off on the side of the interstate.” Hill began twisting Swanagan’s arms, pinning her, and then tried to bite her, but she was able to bite him first. When she bit him, he yelled, and Sims stopped the truck. Sims then opened the passenger-side door from outside the truck. Hill shoved Swanagan out of the truck. While she was on the ground, Hill continuously kicked her. Swanagan tried to protect herself from his blows. While Hill was kicking her, his gun fell out. Swanagan rolled on top of the gun when Hill tried to retrieve it.

¶ 15. After he was unable to get the gun, Hill began to back up, nearing the truck. As Hill got close to the truck, he reached behind him, trying to get something out of the truck. Swanagan feared that. Hill was trying to find Sims’s gun that he kept in his truck. Swanagan was “scared for her life” and told Hill to leave. He did not leave, but instead continued “fidgeting” in the truck, Swanagan then fired the gun, hoping Hill would leave. Hill then called Swanagan a “dumb bitch.” She recalled screaming for Hill to leave and the, gun going off two or three more times. At some point Hill got back in the truck and drove away, but Swanagan could not recall when she fired the other shots. When she saw that Hill was leaving, she began walking back to her house.

¶ 16. The jury found Swanagan guilty of depraved-heart murder. Swanagan was sentenced to a term of twenty-five years in the custody of the MDOC, with ten years suspended and five years to be served on supervised probation. Subsequently, Swan-agan filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, arguing that “the State failed to prove [Swanagan] was not acting in self-defense at the time [Hill] was shot.” Swanagan also argued that, if she was not acting in self-defense, at most the evidence presented at trial established that she was acting in the heat of passion, which “would mitigate the murder to manslaughter.” The trial court denied her motions after determining the jury was properly instructed and had heard the facts, before finding Swanagan guilty of depraved-heart murder.

STATEMENT OF THE ISSUES

¶ 17. Swanagan raises the following four issues on appeal:

I. Whether the evidence was insufficient to support the verdict.

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

III. Whether the trial court erred in its supplemental instruction in response to the jury’s question as to the definition of depraved heart.

IV. Whether Swanagan received ineffective assistance of counsel.

ANALYSIS

I. Whether the evidence was insufficient to support the verdict.

¶ 18. When considering a sufficiency-of-the-evidence argument, this Court has said that:

the critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of - the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. However, this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, 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.

Fagan v. State, 171 So.3d 496, 503 (Miss. 2015) (quoting Bush v. State, 895 So.2d 836, 843 (Miss. 2005)) (internal alterations and quotation marks omitted). This Court may reverse only “ ‘where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.’ ” Franklin v. State, 676 So.2d 287, 288 (Miss.1996) (quoting Wetz v. State, 503 So.2d 803, 808 (Miss.1987)).

¶ 19. Swanagan argues that the evidence failed to establish beyond a reasonable doubt that she (1) did not act in necessary self-defense and (2) acted with malice and not in the heat of passion.

A. Self-Defense

¶20. Swanagan argues that because she raised self-defense, the State had the burden of proving beyond a reasonable doubt that she did not kill Hill in self-defense. Swanagan claims that the State failed to meet its burden of proving beyond a reasonable doubt that she did not act in self-defense when she killed Hill. The State responds that it submitted sufficient evidence such that a reasonable jury could have found beyond a reasonable doubt that Swanagan killed Hill with a depraved heart and not in necessary self-defense.

¶21. Mississippi’s justifiable homicide statute states that:

the killing of a human being ... shall be justifiable ... [w]hen committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to' commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.

Miss. Code Ann. § 97—3—15(l)(f) (Rev. 2014). Evidence was presented that Hill was unarmed at the time Swanagan shot and killed him. When police arrived at Swanagan’s residence, they were instructed that a gun had been placed in a bucket by Barbara, ’after she had retrieved the gun where Swanagan had laid it on a car. That was the only weapon recovered—the gun Swanagan used to shoot Hill. Sims testified that Swanagan shot at Hill at least" three times. Sims also testified that Hill was trying'to get in the truck, and drive away when Swanagan shot him. Furthermore, Swanagan admitted that she had shot at Hill at least three times. She could not recall if Hill was still in front of her or if he had gotten in the truck and was driving away when she fired the last two shots. The autopsy showed that Hill died from a bullet wound to his chest. Experts determined that the fatal shot came from the gun recovered at Swana-gan’s home.

¶ 22. “The issue of justifiable self-defense presents a question of the weight and credibility of the evidence rather than sufficiency and is to be decided by the jury.” Wade v. State, 748 So.2d 771, 774 (Miss. 1999). In this case, conflicting testimony was adduced regarding the events immediately surrounding the shooting. The jury was instructed on murder, depraved-heart murder, deliberate-design murder, heat-of-passion manslaughter, and justifiable self-defense. The jury, weighed the evidence, considered its options under the law, and ruled in favor of the State. We cannot say that the evidence presented was insufficient for a rational jury to find beyond a reasonable doubt that Swanagan shot Hill with a depraved heart to kill him and not in necessary self-defense. The opposing theories of the prosecution and the defense were fully and fairly presented to a properly instructed trier - of fact. In the end, the disputed issues of fact were resolved in favor of the State and against the defendant. This claim is without merit.

B. Heat-of-Pdssion

¶23. Swanagan alternatively argues that the State failed to prove beyond a reasonable doubt that she acted with the malice required for a depraved-heart murder conviction. She insists the proof demonstrates that she acted in the heat of passion, and the murder conviction should be reduced to, a manslaughter conviction. The State counters that Swanagan’s actions were performed with malice and that her actions exceeded the level of mental culpability required for heat-of-pa'ssion murder. Both arguments are misguided as to a requirement of malice for a conviction for depraved-heart murder. While Swana-gan is correct that the State failed to prove she acted with malice, the jury did not convict her of a crime which required malice. The word malice is not found in Section 97—3—19(l)(b) of the Mississippi Code, which specifically reads that depraved-heart murder is “without any premeditated design..'..” Miss. Code Ann. § 97-3-19 (l)(b) (Rev. 2014). Only subsection (l)(a) in Section 97-3-19, i.e., murder, requires a finding of malice. Although Swanagan was indicted for and the jury was instructed on murder, the jury did not find. Swanagan guilty of murder..

¶ 24. Swanagan was found guilty of depraved-heart murder, now “second-degree murder,” which is a killing “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) (emphasis added). Depraved-heart murder encompasses “a reckless and eminently dangerous act directed toward a single individual.” Windham v. State, 602 So.2d 798, 802 (Miss.1992), A finding of malice is not required for depraved-heart murder. See Miss, Code Ann. § 97-3-19(l)(b).

¶ 25. Evidence was presented that Swan-agan fired at least three shots directly at Hill, and that she did not stop firing until he fled. The first shot shattered the passenger window, followed by two more shots. Given the evidence presented and comparing her actions with the statutorily required elements for depraved-heart murder, the jury had more than sufficient, evidence to find that Swanagan was guilty of depraved-heart murder, not manslaughter. This issue is devoid of merit,

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

¶ 26. In Bush, 895 So.2d at 844, this Court set out the standard of review for weight of the evidence, stating: [w]hen reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss. 1997). We have stated that on a motion for new trial: '

the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, wliich should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence • preponderates heavily against the verdict.

Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss. 2000).... [Tjhe evidence should be weighed.in the light most favorable to the verdict. Herring, 691 So.2d at 957.

Bush, 895 So.2d at 844.

¶27. Swanagan argues that this Court should nullify the jury’s verdict- because the overwhelming weight of evidence- in this case “creates serious doubt -as to her guilt for murder and asks this Court to remand her case for- a new trial to- permit another jury to consider whether she is guilty of murder or only manslaughter. We decline her invitation.

¶28. “Conflicting testimony ’ does not evince overwhelming evidence; where the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury’s duty to'resolve the conflict.” Ambrose v. State, 133 So.3d 786, 793 (Miss. 2013) (quoting Brown v. State, 995 So.2d 698, 702 (Miss. 2008)). Viewing the evidence in the light most favorable to the State, and granting the State the benefit of all inferences that may be drawn from the evidence, we find that the conviction for depraved-heart murder was not against the overwhelming weight of the evidence. This issue is' devoid of merit.

III. Whether the trial court erred in its supplemental instruction in response to the jury’s question as to the definition of depraved heart.

¶ 29. This Court has.held that:

[w]hen reviewing a trial court’s response to the jury’s inquiry, this Court’s inquiry is not whether the trial court was “right or-wrong” in its response, -but. whether the trial court abused its-discretion. Unless the trial court based his decision on an erroneous view of the law, this Court is not authorized to reverse for an abuse of discretion absent a finding the trial court’s decision was “arbitrary and clearly erroneous.”

Galloway v. State, 122 So.3d 614, 634 (Miss. 2013) (citing Hooten v. State, 492 So.2d 948, 950 (Miss. 1986)). Furthermore, Rule 3.10 of the Uniform Rules of Circuit and County Court Practice states:

If the jury, after they retire for deliberation, desires to be informed of any point of law, the court shall instruct the jury to reduce its questions to writing and the court in its discretion, after affording the parties an opportunity to state their objections or assent,- may then grant additional- written instructions in response to the jury’s, request.

URCCC10.

¶ 30. During the deliberations, the jury sent out a note asking for a definition of depraved heart. .

BY .THE COURT:: The jury having sent . a note out, and prosecution as well- a.s defense being advised of the question, • the question being a - definition of de~ . praved heart. The Court’s response was: By agreement with the prosecution and defense read S-2 for guidance. Is that correct?
BY MR. STEVENSON: Correct.
BY MR. JOHNSON: ' That’s correct, Your Honor.

Jury Instruction S-2 reads as follows:

The Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable doubt that:
1. The defendant Victoria P. Swana-gan,
2. Did on or about July 3,2014,
3. In the Second Judicial District of Hinds County, Mississippi,
4. Kill Vincent Hill, a human being,
5. While engaged in the commission of an act eminently dangerous to others and evincing á depraved heart, disregarding the value of human life, although without any premeditated design to effect the death of Vincent Hill,
Then you shall find Victoria P. Swana-gan guilty of Depraved Heart Murder. If the prosecution has failed to prove any. one or more of the above listed ..elements of Depraved Heart Murder, then you shall proceed in your deliberations to consider the lesser offense of Manslaughter.

¶ 31. Swanagan argues that the trial court erroneously responded to the jury’s question by singling out Instruction S-2,''giving it undue prominence in the jury’s eyes. Swanagan contends that the trial court’s response unduly prejudiced her trial because Instruction S-2 did not include a reference to self-defense. Swana-gan alleges this may have misled the jury to believe that self-defense, nr its absence, was not an applicable element to the crime of depraved-heart murder. Swanagan further argues that the trial court should have instructed the jury to reread all of the jury instructions and “perhaps given another depraved heart murder instruction that covered the omission in instruction S-2 by including not in necessary self-defense.”

¶ 32. Both of these arguments are procedurally barred because Swanagan did not object to the trial court’s response, nor did she object to Instruction S-2. As the State argues, “when a party fails to make a contemporaneous objection, the appellate court is under no obligation to review the assignment of error.” Hughes v. State, 90 So.3d 613, 623 (Miss. 2012) (citing Caston v. State, 823.So.2d 473, 503 (Miss. 2002)). In this case, when the jury’s note was submitted to the court, Swanagan did not object. Instead, the defense and prosecution agreed that the court should instruct the jury to see Jury Instruction S-2.

¶ 33. Notwithstanding the procedural bar, these arguments are without merit. First, the trial court did not abuse its discretion in responding to the jury’s inquiry. The instructions provided by the court demonstrated the proper rules of law and were not erroneous. Additionally, the court’s Instruction S-2 was not in error. “The instructions, together, fully and accurately informed the jury of state law, and the trial court did not err in directing the jury to review [S-2].” Galloway, 122 So.3d at 635.

¶ 34. Second, Instruction S-2 was a proper statement of the law and does not require amendment, as argued by Swanagan. In Harris v. State, 861 So.2d 1003 (Miss. 2003), this Court held that:

[ijt was not error to give an instruction that omits the words “not in necessary self defense” when charging depraved heart murder when the Court also instructs the jury in a separate instruction that the killing would be justified if committed by the defendant in the lawful defense of his own person. The instructions, when read in their entirety, properly instructed the jury that a killing may not be murder, that the killing could be justified in self defense, the factors that must be considered when deciding if the killing was in self defense, and that the burden of proof is always on the State. Considering the instructions as a whole, this Court finds that the jury was properly instructed.

Harris, 861 So.2d at 1015.

¶ 35. The jury received not one, but three separate instructions on self-defense. Instruction D-l defined self-defense; D-2 instructed that the burden of proof was on the State to prove Swanagan did not act in self-defense;: and D-3 informed the jury that Swanagan had a right to defend herself from any unjustified attack on her person and to use such force necessary to repel her attacker.

¶ 36. We find that the jury was instructed, properly ori self-defense and rejected her claim of self-defense. This issue is devoid of merit.

IV. Whether Swanagan received ineffective assistance of counsel.

¶ 37. If an ineffectiveness claim on direct appeal is based on facts fully apparent in the record before us, the Court will address the ineffective-assistance-of-counsel claim. M.R.A.P. 22(b). See Parker v. State, 30 So.3d 1222, 1232 (Miss. 2010). The facts and issues upon which Swanagan relies are succinctly stated in the fully developed record, and the controlling law is the same as we previously have cited, supra ¶¶ 21-40.

¶ 38. The substantive standard of review for an ineffective-assistance claim is twofold: “In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial.” Holly v. State, 716 So.2d 979, 989 (Miss.1998) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wilcher v. State, 479 So.2d 710, 713 (Miss. 1985); Stringer v. State, 454 So.2d 468, 477 (Miss. 1984)). Swanagan bears “the burden of proving that counsel’s performance was deficient and' prejudicial.” Branch v. State, 882 So.2d 36, 52 (Miss. 2004) (citing Hansen v. State, 649 So.2d 1256, 1258 (Miss. 1994)).

¶39. Swanagan’s appellate counsel now argues her trial attorney was ineffective for “(1) failing to request instructions on culpable negligence manslaughter and accident or misfortune and (2) agreeing to the trial court’s response to the jury’s question.” Addressing the latter, we have held supra that the trial court did not err in its response to the jury. Accordingly, that assignment of error cannot support a claim of ineffective assistance of counsel. As to the instructions to which Swanagan claims she was entitled, no evidence was presented in this record to support an instruction or even support an inference of culpable-negligence manslaughter, accident, or misfortune.

¶ 40. “When claiming' ineffective assistance of trial counsel because of jury instructions, ‘[i]t is the duty of the appellant to demonstrate both error in failing to receive the instruction and the prejudice to the defense.’” Havard v. State, 928 So.2d 771, 789 (Miss. 2006) (quoting Burnside v. State, 882 So.2d 212, 216 (Miss. 2004)). “A defendant is entitled to jury instructions on his theory of the case whenever there is evidence that would' support a jury’s finding on that theory..'. Thomas v. State, 48 So.3d 460, 469 (Miss. 2010) (citations omitted). “In a homicide case, as in other criminal cases, the court should instruct the jury as to theories and grounds of defense, justification, or excuse supported by the evidence, and a failure to do so is error requiring reversal of a judgment of. conviction.” Giles v. State, 650 So.2d 846, 849 (Miss. 1995). The trial court instructed this jury on Swanagan’s theories of defense, which had an evidentiary basis.

.. ¶ 41. Culpable-negligence instructions are most commonly found in DUI and other automobile cases, which address negligent or- grossly negligent conduct. The State never claimed any gross or willful acts of negligence, and Swanagan never defended under a theory of negligence. In non-auto cases, we have held that comparable evidence found in today’s case does not support an instruction for culpable negligence: Chandler v. State, 946 So.2d 355, 361-62 (Miss. 2006) (evidence did not support a culpable-negligence instruction where the defendant admitted to pulling out a gun and shooting the victim); Fairley v. State, 871 So.2d 1282, 1285 (Miss. 2003) (culpable-negligence manslaughter instruction denied where evidence showed that defendant argued, pointed a gun at the victim and shot her; and then pushed her onto the road, where she was hit by a passing vehicle); Sanders v. State, 781 So.2d 114, 119 (Miss. 2001) (culpable-negligence manslaughter instruction denied where evidence showed that defendant intentionally hit victim on the head with a hammer); Clark v. State, 693 So.2d 927, 932 (Miss. 1997) (culpable-negligence manslaughter instruction denied where evidence showed that defendant intentionally went to his truck to get his shotgun, then entered the building, shot the door and loaded and fired three more shots through the door); Hurns v. State, 616 So.2d 313, 315 (Miss. 1993) (culpable-negligence manslaughter instruction denied where evidence showed that defendant hit victim with multiple blows to the head with blunt object over short period of time).

1142. As held supra, evidence was' presented, and Swanagan admitted, that she fired.at least three shots directly at Hill. We find no error by Swanagan’s trial counsel in failing to request an instruction on culpable negligence or on accident or misfortune, for the facts presented in the record before us do not support any of these instructions. This claim is devoid of merit.

CONCLUSION

¶43. For the reasons stated-above, we affirm Swanagan’s conviction and sentence.

¶ 44. CONVICTION OF DEPRAVED-HEART MURDER AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN (10) YEARS SUSPENDED AND FIFTEEN (15) YEARS TO SERVE, FOLLOWED BY FIVE (5) YEARS OF SUPERVISED PROBATION, AFFIRMED. APPELLANT SHALL BE GIVEN CREDIT FOR TIME SERVED.

WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN,. JJ., CONCUR.

      . Swanagan was indicted for “willfully, unlawfully, and feloniously killing] Vincent P. Hill ,.. with deliberate design ... by shooting ... Hill in the chest ... in violation of Section 97-3-19(l)(a)....”

      . Swanagan expressed' to Investigator Charlotte Dixon that "her tooth was loosened during [a physical altercation with Hill], possibly knocked out because her mouth was hurting.” Dixon testified that Swanagan was missing a tooth and exhibited other physical injuries, but Dixon did not notice any blood in or on Swanagan’s mouth.

      . "Malice, or deliberate design, may be inferred from the use of a deadly weapon.” Holliman v. State, 178 So.3d 689, 698 (Miss. 2015), reh'g denied (Dec. 3, 2015).

      . Swanagan has different appellate counsel than her trial counsel.


source: Caselaw Access Project

license: Public Domain

text:
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Certiorari—Denied


text:
    Bettye LOGAN v. KLAUSSNER FURNITURE CORPORATION
    2015-CT-01760-SCT
    Supreme Court of Mississippi.
    Filed: 08/29/2017
    Closed: 11/30/2017
   Motion Desc: Appellees Petition for Writ of Certiorari

Certiorari—Granted


text:
    Joshua HOWARD v. STATE of Mississippi
    2015-CT-01496-COA
    Supreme Court of Mississippi.
    Filed: 08/31/2017
    Closed: 11/09/2017
   Motion Desc: Petition of Certiorari

Certiorari—Denied


text:
    Derrick DORTCH v. STATE of Mississippi
    2015-CT-01650-COA
    Supreme Court of Mississippi.
    Filed: 08/31/2017
    Closed: 11/30/2017
   Motion Desc: Petition of Certiorari

Certiorari—Denied


text:
    Marcus H. HARRIS v. STATE of Mississippi
    2015-CT-01244-COA
    Supreme Court of Mississippi.
    Filed: 08/31/2017
    Closed: 11/30/2017
   Motion Desc: Appellant’s Petition for Writ of Certiorari

Certiorari—Denied


text:
    Jeffrey Lance HILL v. STATE of Mississippi
    2015-CT-00918-SCT
    Supreme Court of Mississippi.
    Filed: 08/31/2017
    Closed: 11/02/2017
   Motion Desc: Notice of Appeal

Certiorari—Denied


text:
    Susan HARRIS v. Thomas L. HARRIS
    2016-CT-00532-SCT
    Supreme Court of Mississippi.
    Filed: 09/01/2017
    Closed: 11/16/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Granted


text:
    Peggy THOMAS v. Dr. James PURDY
    2015-CT-00701-COA
    Supreme Court of Mississippi.
    Filed: 09/05/2017
    Closed: 11/09/2017
   Motion Desc: Petition for Writ of Certio-rari

Certiorari—Denied


text:
    Stanley Lee BRADLEY v. STATE of Mississippi
    2015-CT-01234-COA
    Supreme Court of Mississippi.
    Filed: 09/08/2017
    Closed: 11/30/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Denied


text:
    Richard COLL v. WAL-MART STORES EAST, L.P.
    2016-CT-00702-COA
    Supreme Court of Mississippi.
    Filed: 09/11/2017
    Closed: 11/16/2017
   Motion Desc: Appellant Petition for Writ of Certiorari

Certiorari—Denied


text:
    Brian KORELITZ v. Ruth’e KORELITZ
    2015-CT-01758-COA
    Supreme Court of Mississippi.
    Filed: 9/11/2017
    Closed: 11/16/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Denied


text:
    Joe REEL v. Sanford WARREN
    2016-CT-00745-COA
    Supreme Court of Mississippi.
    Filed: 09/12/2017
    Closed: 11/16/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Denied


text:
    Annie Y. GRIFFIN v. ABN AMRO MORTGAGE GROUP, INC.
    2015-CT-01237-COA
    Supreme Court of Mississippi.
    Filed: 09/12/2017
    Closed: 11/02/2017
   Motion Desc: Writ of Certiorari

Certiorari—Denied


text:
    DHEALTHCARE CONSULTANTS, INC. v. JEFFERSON COUNTY HOSPITAL
    2015-CT-01440-COA
    Supreme Court of Mississippi.
    Filed: 09/12/2017
    Closed: 11/30/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Denied


text:
    Louis J. CLAY, Jr. v. STATE of Mississippi; Louis J. Clay, Jr. v. State of Mississippi
    2015-CT-01843-COA
    2016-CT-00020-COA
    Supreme Court of Mississippi.
    Filed: 09/16/2017
    Closed: 11/16/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Denied


text:
    Paul BERLIN v. LIVINGSTON PROPERTY OWNERS ASSOCIATION, INC.
    2015-CT-01512-COA
    Supreme Court of Mississippi.
    Filed: 09/19/2017
    Closed: 11/30/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Denied


text:
    Melvin HARE v. STATE of Mississippi
    2016-CT-00046-COA
    Supreme Court of Mississippi.
    Filed: 09/26/2017
    Closed: 11/30/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Denied


author: KITCHENS, JUSTICE,

text:
    Jason Lee KELLER, Petitioner v. STATE of Mississippi, Respondent
    No. 2014-DR-00808-SCT
    Supreme Court of Mississippi.
    May 23, 2017
   ORDER

. Now before the Court, sitting en banc, is the Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief, and a Supplement to the Motion for Leave filed by Jason Lee Keller. The State of Mississippi has filed its Response. Keller has filed his Rebuttal to State’s .Response.

Jason Lee Keller was convicted in October 2009 of the capital murder of Hat Thi Nguyen in Harrison County; Keller’s conviction and death sentence were affirmed by the Court in Keller v. State, 138 So.3d 817 (Miss. 2014), cert. denied, Keller v. Mississippi, — U.S.—, 135 S.Ct. 1397, 191 L.Ed.2d 371 (2015).

Keller now raises the following issues: (I) (A) trial counsel failed to object to the State’s introduction of evidence of prior convictions and other bad acts at the penalty phase; (B) trial counsel unreasonably failed to prevent jurors from considering, as a previous conviction within the meaning of the statutory aggravator, a felony charge which is not a final, valid conviction; (C) trial counsel was ineffective for failing to investigate and discover significant mitigating evidence about Keller; (D) counsél unreasonably failed to object to prosecutorial misconduct in closing argument in the penalty phase; (E) trial counsel failed to rebut or challenge Dr. Paul McGarryis improper expert testimony; (F) trial counsel failed to object when the trial court struck venireman Max Bell for cause; (G) counsel failed to reasonably ensure that jurors gave full effect to mitigating evidence; (H) cumulative prejudice; (II) (A) the State presented false and misleading evidence when telling jurors that Keller was previously convicted of armed robbery; (III) (A) juror misconduct violated Keller’s rights to an impartial jury and to due process; (IV) Keller is entitled to a determination of his eligibility for a death sentence that is consistent with the Sixth Amendment and Ring v. Arizona; (V) in violation of the Eighth Amendment prohibition against cruel'and unusual punishment, Keller’s death sentence is unconstitutional because the riiethod of execution unduly risks substantial harm. After consideration we find that Issue (I)(C) is meritorious, and we limit our discussion to that issue.

Keller argues that his trial attorneys were ineffective for failure to investigate, collect and present mitigation evidence .to the jury. Keller has now presented numerous affidavits from family, friends, acquaintances, former school teachers, former classmates, attorneys, and physicians demonstrating the mitigation evidence that effective trial counsel should have discovered and presented at the sentencing phase of his trial. Keller argues that the failure by trial counsel amounted' to deficient performance and the deficiency prejudiced the defense of his case. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Keller specifically points to the failure of trial counsel to obtain a mitigation expert, even though Dr. Beverly Smallwood, a psychologist, who evaluated Keller for the circuit court before trial, recommended doing so.

After comparing what was presented at trial in support of mitigation-with what has now been presented to the-Court, we find that Keller has made a substantial showing of a denial of his.right to effective assistance of counsel. Miss. Code Ann. § 99-39-27(5) (2015).- We therefore find, that Keller should be granted leave to proceed in the Harrison County Circuit Court, Second Judicial District, on Issue (I)(C). The remainder of the issues raised in, Keller’s Motion for Leave to Proceed in the Trial . Court with a Petition for Post-Conviction Relief are without merit and should be denied.

IT IS THEREFORE ORDERED that the Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief filed by Jason Lee Keller is granted, as to Issue (I)(C),.and.is denied as to the remainder of the issues raised.

WALLER, C.J., DICKINSON, P.J., COLEMAN, MAXWELL, BEAM, AND CHAMBERLIN, JJ., WOULD GRANT IN PART AND DENY IN PART. .

KITCHENS, J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT JOINED BY KING, J.

RANDOLPH, P.J., WOULD DENY.

KITCHENS, JUSTICE,

OBJECTING' TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT:

¶ 1. I agrée' that Keller’s Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief should be granted on the issue of ineffective assistance of trial counsel for failure to investigate and discover significant mitigating evidence. I also would grant leave to proceed on the issue of ineffective assistance of trial counsel because, in the sentencing phase of Keller’s capital murder trial, his lawyer failed to object to the State’s use of a nonfmal armed robbery conviction as a statutory aggravating circumstance. Accordingly, I respectfully object to the order in part.

KING, J, JOINS THIS SEPARATE WRITTEN STATEMENT.


author: BARNES, J.,

text:
    Gerry LOVE, Appellant. v. STATE of Mississippi, Appellee
    NO. 2016-KA-00257-COA
    Court of Appeals of Mississippi.
    07/18/2017
    Rehearing Denied October 31, 2017

      . ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    , ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE GRIFFIS, P.J., BARNES, FAIR AND WILSON, JJ.
   BARNES, J.,

FOR THE COURT: ■

¶ 1. A Boliver County jury convicted Gerry Love of the first-degree murder of Glandra Williams under Mississippi Code Annotated section 97-3-19(l)(a) (Rev. 2014). Love was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC) as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) without the possibility for parole or probation. On appeal, Love argues that the trial court erred in sustaining the State’s Batson objection during jury selection, and that he was prejudiced by the admission of hearsay testimony from a State’s witness. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶2. On the afternoon of November 12, 2014, Kimberly Williams discovered the body of her forty-four-year-old mother, Glandra Williams, lying in a pool of blood on the kitchen floor of Glandra’s home in Cleveland, Mississippi. Glandra had suffered a total of thirty-two stab wounds to her neck, chest, abdomen, and left hand. Additionally, her throat was sláshed, severing the carotid and jugular blood vessels, exposing her larynx and voice box. Rigor mortis had set in, and one arm was bent with her hand raised up, as if in defense from her attacker.

¶ 3. The night before, as was their routine, Glandra kept Kimberly’s two small children, because Kimberly worked the night shift at MDOC from midnight until 8 a.m. Usually, Kimberly would drop her children off at Glandra’s home at approximately 11 p.m. In the morning, Glandra would put the children on the school bus. In the afternoon, Kimberly would pick her children up from school and return them to. Glandra’s house. Usually, Kimberly and her mother talked “all day, every day.”

¶ 4. The morning of the twelfth, however, instead of going to her mother’s house in the afternoon, Kimberly was tired and fell asleep. When she awoke, she realized she had not heard from her mother all day; so Kimberly went to Glandra’s house. Upon entering, she went to answer Glan-dra’s mobile telephone, which was ringing in the bedroom. In the meantime, Kimberly’s five-year-old daughter had gone into the kitchen and found Glandra’s body. She told Kimberly, “Mama, Grandma is Dying] on the floor with blood all over her.” Kimberly called 911.

¶ 5. When Investigator Ray Morris arrived at the murder scene, he found Glan-dra lying on her back in a large pool of blood by the utility area in the kitchen. He saw multiple stab wounds to her torso and neck. Her body had already stiffened, and' her eyes were locked open, dried, and glazed. Morris noted the blood'smears and splatters in the area indicating a struggle. Glandra’s wallet was on the sofa in another room with blood on it. There were some towels on the sofa in a pile of laundry with blood on them. Two knives were found in the kitchen sink covered in dish water with a strong smell of bleach; one of the knives had a distinct bend in the blade. The knives were collected as evidence.

¶ 6. Glandra’s next-door neighbor was Desirae Mason. Gerry Love lived next to Mason’s house with his mother. Unbeknownst to her neighbors, Mason had four security cameras installed outside her home. One camera was positioned on the right side of her house with a full view of Glandra’s house, including the side door and driveway. After learning of Glandra’s murder, that evening Mason reviewed the security-video footage. Mason testified she saw the following on the video. At 8:04 a.m., Glandra’s two grandchildren ran out to the school bus. Then, at 8:10 a.m., Love came across the side of her house, walked around the back of Glandra’s vehicle, and. then walked in the direction of Glandra’s front door. From other video footage taken from a camera positioned on the back side of Mason’s house, Mason testified she saw Love “come out through the back and come through [Mason’s] garage, and across to his mother’s yard.” Mason was' able to zoom in on the individual and claimed the person was Love. Mason knew Love well, as they had been neighbors for five years and worked together “off and on” for two years. Mason did not see anyone else in the videos walking near Glan-dra’s house. Mason called law enforcement and showed them the video footage.

¶ 7. Mason’s best friend, Angela Castion, also knew Love because they worked together at McDonald’s. The evening of November 12, Love arrived to start his shift as Castion was leaving her shift.. She noticed fresh scratches under Love’s eye and jokingly asked if he had been in a fight. Love responded that his cousin had scratched him.

¶ 8. Later that evening, Mason called Castion to come to her house and watch the video footage with law enforcement. Castion identified Love as the individual in the video because of his height and the way he walked. Castion testified that Love had a “swag leg” and a “gap walk” that was distinctive, and he was frequently teased about it. The video was paúsed and zoomed to aid her identification. Investigator Morris was present and testified both Mason and Castion identified Love. Castion told Morris she had just seen Love at work and noticed a scratch under his eye.

¶ 9. At approximately 10 p.m. that night,, investigators went to question Love at McDonald’s,- and he was taken into custody. Love’s clothing was collected. Investigator Morris noticed what appeared to be blood on his work pants, the scratch. under his eye, and a fresh cut on his hand.

¶ 10. Tommie Richardson was one of Glandra’s friends, and they spoke on the telephone every morning. He testified that Glandra was in a relationship with someone who lived down the street, but Richardson did not know his name. The morning Glandra was murdered, Richardson called her at approximately 7 a.m. Richardson testified that he asked her: “ “You got company?’ She said Tes.’ I said, ‘Greenville?’ She said, ‘No.’ I said, ‘Indian-ola?’ She said, ‘No.’ I said, ‘Down the street?’ She said, Tes.’” The State then asked him: “Had she, prior, to this conversation, talked to you about someone down the street that she had been talking to?” Defense counsel objected to this question on the -grounds of hearsay, and the trial court later sustained the objection.,

¶ 11. At trial, a serologisf from the Mississippi Crime Lab testified the knives tested negative for blood;1 howevér, Love’s pants tested positive for blood. A- blood sample from the pants was submitted for DNA testing. A DNA expert testified that Glandra could not be excluded as a possible DNA donor from the sample. Further, for the markers tested, “the genetic profile for the DNA donor of the stain on the outside front of the pants occurred with the frequency of approximately one in greater than 10 billion.”

¶ 12. A rape kit was also submitted to the crimé lab for testing with vaginal swabs from Glendra and her underwear. Both the vaginal swabs and underwear tested positive for semen. The DNA analy-' sis of the vaginal swabs had a- mixture of Glandra’s DNA and an unknown male. Love was excluded as a contributor.'

ANALYSIS-

I. Batson Challenge

¶ 13. Love argues that the trial court erred in finding his three peremptory strikes on white jurors were not based on race-neutral reasons. . .

¶14. “Peremptory strikes may not be used for the purpose of striking jurors based solely on their race ór gender.” O'Donnell v. State, 173 So.3d 907, 915 (¶ 17) (Miss. Ct. App. 2015) (citation omitted). An appellate court reviews the trial court’s Batson ruling with' great deference because “finding that a striking party engaged in discrimination is largely a factual finding.” Lynch v. State, 877 So.2d 1264, 1270 (¶ 46) (Miss. 2004) (quoting Walker v. State, 815 So.2d 1209,1214 (¶10) (Miss. 2002)). This determination turns largely on the “trial judge’s evaluation of a presenter’s credibility and whether- -an explanation should be believed.” Id. at 1271 (¶ 50) (citation omitted). The ruling will not be overturned “unless it is clearly erroneous or against the overwhelming weight of-the evidence.” Pruitt v. State, 986 So.2d 940, 942 (¶ 8) (Miss. 2008).

¶ 15. A three-part test is used to analyze a Batson challenge:

‘First, the party objecting to the peremptory strike of a potential juror must make a prima facie showing that race was the criterion for the strike. Second, upon such a showing,1 the burden shifts to the [proponent of, the strike] to articulate a race-neutral reason for excluding that particular - juror. Finally, after a race-neutral explanation has been offered by [the proponent of the strike], the trial court must determine- whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise, of the peremptory strike, i.e., that the reason given was a pretext for discrimination. . .

Hardison v. State, 94 So.3d 1092, 1097-98 (¶ 17) (Miss. 2012) (emphasis omitted) (quoting Pitchford v. State, 45 So.3d 216, 224 (¶ 14) (Miss. 2010)).

'¶ 16. During jury selection,' the State raised a Batsón challenge when defense counsel had exercised four of his' twelve peremptory strikes on four of the six white potential jurors. He had struck every white female available and had only accepted one white male juror. Th’e trial judge noted on the record that white people were in the minority of the jury pool.

¶ 17. The burden shifted to the defense to provide race-neutral reasons for the four strikes. Defense .counsel explained that he struck Number 33, -a white female, because she was the principal where his child went to school, and they know each other. The trial court accepted this reason as race-neutral. Regarding Number 54, the other white female, Love’s counsel stated that she works at a bank, and he intended to strike all bank employees. Counsel stated he struck Numbers 34 and 35, both white males, because they were farmers, and he intended to strike all farmers. He reasoned that bankers and farmers were more security conscious, and thus more prone to find Love guilty.

¶ 18. Rebutting Love’s employment rationale, the State argued that there were other prospective jurors who had not been struck who worked in' service industries where security would be a concern. Neither a black female who worked at Kroger, nor an individual who worked at Wal-Mart had been struck. Ultimately, the trial court found defense counsel’s employment rationale was pretextual and not racially neutral, violating Batson. Therefore, the trial court denied Love’s three peremptory challenges for Numbers 54, 34, and 35, and restored these three individuals to the jury. '

¶ 19. On appeal, Love points out that employment is an approved racially neutral basis for peremptory strikes. Indeed, the Batson Court itself expressly stated that “employment in a particular industry” is one consideration upon which a challenge might be based. Batson, 476 U.S. at 124, 106 S.Ct. 1712. Yet the Mississippi Supreme Court “has cautioned .,, that previous opinions holding reasons to be race-neutral should not be construed to hold those reasons to be automatically race-neutral in any other case.” Pruitt, 986 So.2d at 945 (¶ 17) (citing Lockett v. State, 517 So.2d 1346, 1353 (Miss. 1987)).

¶ 20/ Here, the trial' court did not explicitly rule on whether the State established the first step of a Batson challenge, the prima-facie case; however, the -issue - is moot because the trial court required the defense to provide race-neutral reasons Lor exercising the peremptory strikes. See Lynch, 877 So.2d at 1271 (¶ 48). In the second step, the burden shifts to the -defense to give a race-neutral reason for the strikes, and the: reason given was-employment. The second step “is not a difficult task” because any reason that is facially valid -will suffice; it “does not demand an explanation that is persuasive, or even plausible.” Id. at (¶ 49) (citations omitted). It is the third step of pretext where credibility of the explanation becomes relevant. See Hardison, 94 So.3d at 1100 (¶ 25) (citing Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 UEd.2d 834 (1995)).

¶ 21. The trial judge did not find defense counsel’s reason credible—that bankers and farmers would be inore security conscious, and thus more likely to find Love guilty. While one can reasonably anticipate that bankers would be'security conscious, defense counsel did not explain why farmers would be more concerned with security than other potential jurors who worked in retail stores. Here, the trial court found the reason given by the defense was pre-textual, and there was actually a discriminatory motive for the defense to strike, as many white people from the jury as possible. We leave fact-finding for the trial court, “placfing] our trust in thé trial judges to determine whether or not a discriminatory motive underlies the' [proponent of the strikers articulated reasons.” Lockett, 517 So.2d at 1352. Under the facts of this, case, we cannot say that the -trial court abused its discretion in finding a Batson violation.

II. Hearsay Testimony

¶ 22. Love asserts that the trial court erred in allowing improper hearsay testimony of the State’s witness, Tommie Richardson, who was Glandra’s friend. The admission or suppression of evidence is within the discretion of the trial judge. The ruling will not be reversed unless there was an abuse of discretion. Reversal will occur only if the admission of evidence results in prejudice and harm to the opposing party. Brown v. State, 890 So.2d 901, 914 (¶ 39) (Miss. 2004) (citation omitted).

¶ 23. During direct examination by the State, Richardson testified about their telephone conversation the morning Glan-dra was murdered:

A. I called her that morning.
Q. Yes, sir.
A. I said, ‘You got company?” She said, “Yes.” I said, “Greenville?” She said, “No.” I said, “Indianola?” She said, “No.” I said, “Down the street?” She said, “Yes.”
Q. Down the street?
A. Uh-huh (affirmative response).
Q. Had she, prior to this conversation, talked to you about someone down the street that she had been talking to?
A. She told me once—
[DEFENSE COUNSEL]: Objection to hearsay, Your Honor.

The trial court ultimately sustained the objection.

¶24. The State then asked Richardson:

Q. [Are] you personally aware, was she in a relationship with anyone?
A. Yes.
Q. Do you know who that person was?
[DEFENSE COUNSEL]: Objection, your Honor. It’s going to be based on hearsay. We’ve been through that.
[PROSECUTOR]: Your Honor, I’m asking if he knows.
[DEFENSE COUNSEL]: It’s got to be something he personally saw ... [b]ut not based on hearsay.
[BY THE COURT]: Okay, not based on hearsay.
Q. Do you personally know if she was in a relationship with someone, sir?
A. Yes.
Q. Do you know who that person was?
A. Yes.
[BY THE COURT]: How do you—ask him how he knows.
Q. How do you know?
A. She told me.
Q. Did she identify that person to you?
A. Yes.
Q. Do you know that person, sir?
A. She identified him, she just told me who it was and where he lived.
Q. Okay. Did you know that person’s name?
A. No, I didn’t.
Q. Okay. Did you know where he lived?
A. She told me down the street [from] where she lived.

(Emphasis added). While Richardson’s information was based only on what the victim had told him, Love did not make any further objections or move to strike the response. Failure to raise a contemporaneous objection to a witness’s testimony bars a party from raising the issue on appeal, and any error is waived. Rubenstein v. State, 941 So.2d 735, 751 (¶ 27) (Miss. 2006) (quoting Walker v. State, 671 So.2d 581, 597 (Miss. 1995)). Love only objected to Richardson’s testifying about prior conversations he had had with Glan-dra regarding “someone down the street,” and this objection was sustained by the trial court. Love did not object to Richardson’s testimony that during their telephone eonversation, Glandra said she had company from “down the street.” Further, Love did not object to Richardson’s statement that he personally knew Glandra was having a relationship with someone down the street. This issue is without merit.

¶ 25. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ, CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      .' When a Batson challenge is directed against ■ the defense, as here, it is called a reverse-Batson challenge, but the same- rules apply-. Hardison v. State, 94 So.3d 1092, 1097 (¶ 17) (Miss. 2012) (citation omitted).


author: LEE, C.J.,

text:
    Lamarcus WALLACE a/k/a Lamarcus Wallace Appellant v. STATE of Mississippi Appellee
    NO. 2016-KA-00838-COA
    Court of Appeals of Mississippi.
    08/01/2017
    Rehearing Denied November 7, 2017

      ATTORNEY FOR APPELLANT: OFFICE OF1 STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY'TAYLOR GERBER
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Lamarcus Wallace was convicted of murder by'a Bolivar County Circuit Court jury. Wallace was sentenced to life in the custody of the Mississippi Department of Corrections, with the sentence to run consecutively to any previously imposed sentences. His posttrial motion was denied, and he now appeals, asserting the following issues: (1) the trial court erred by failing to grant a mistrial; (2) his right to confront witnesses was violated; (3) the State improperly commented on his failure to call an alibi witness; and (4) cumulative error requires reversal of his conviction.

FACTS

¶ 2. Around 7 p.m/on September 13, 2014, Officer Earl Hodges with the Cleveland Police Department responded to' a disturbance call near Brewer Drive in Cleveland, Mississippi. Officer Hodges saw Wallace arguing with Tony Jones, also known as “Fat Cat.” Officer Hodges testified that the call indicated Jones had a gun. Officer Hodges searched Jones= and told Wallace to leave the area. Officer Hodges testified that as Wallace left, he made threatening statements to Jones. But Officer Hodges stated he could not remember the exact statements since his primary concern was making sure Jones did not have a gun,

¶ 3. Officer Darrin White also responded to the disturbance call. When Wallace left, Officer White heard him say to Jones, “It isn’t over.” Officer White thought Wallace’s comment “sounded like revenge,” as if “something [was] going to happen later.”

¶ 4. On that same evening, around 9:15 p.m., Officer Emily McCain with the Cleveland Police Department responded to a shooting on Brewer Drive. When Officer McCain arrived she noticed Jones lying on the driveway and bleeding from multiple gunshot wounds. Jones died shortly thereafter. Officer White also responded and, after seeing that Jones had been shot, then went to look for Wallace.

¶ 5. Kimberly Thomas, Crystal Thomas, and Debra West were present when the shooting occurred. Kimberly testified that she was outside with West when she saw someone wearing a black, hooded jacket with the hood pulled over his head running toward where Jones was standing. This person then fired several shots at Jones. Kimberly did not see the assailant’s face.

¶ 6. Crystal testified that she saw Wallace hiding behind a tree. She said although Wallace was wearing a black hooded jacket with the hood pulled over his head, she was able to see his face and immediately recognized him. Crystal then went inside the house, but could still see Wallace from an open window. According to Crystal, Wallace was “creeping” around and holding a gun. Once Crystal saw the gun, she ran outside. Before she reached the door, Crystal said she heard gunshots. West, who was dating Jones at the time, testified she was standing outside with Jones when a man ran towards them. The man said, “I told you I was going to get you b[****]-a[**] n[*****,]” and fired his gun at Jones.

¶ 7. Wallace testified in his own defense. He stated that he was in Greenville at 7 p.m.—the same time as the first incident in Cleveland—delivering drugs to a friend named Tavarous at a local car wash.

DISCUSSION

I. Mistrial

¶ 8. In his first issue op appeal, Wallace argues that the trial court should have sua sponte declared a mistrial because multiple jurors were seen sleeping during trial. At the end of the first day of trial, Wallace’s attorney stated, “I do want to make one comment on the record before we leave. I just got a note from my partner that jurors number [two], [four], [nine], and [ten] were sleeping.” On the second day of trial, Wallace’s attorney stated that jurors one, two, four, and ten had fallen asleep that morning. The trial court stated that it had been watching the jury and noticed juror four “appeared to perhaps have her eyes closed at one time.” Ultimately, the trial court stated that it would continue to observe the jury to see if any jurors fell asleep.

¶ 9. Wallace did not request a mistrial. He did raise this issue in his posttrial motion. The trial court found no merit to this argument, stating that it “had '.not noticed any excessive inattentiveness.” The trial court further stated, “The court did observe jury members that, on occasion, would close their eyes momentarily and thus appear to be asleep or inattentive, but who, on continued watching, would open their eyes and appear to give the witness the required attention.” The trial court reiterated that these jurors were not asleep, instead they were “sufficiently attentive to dispel any claim of violation of due process.” •

¶ 10. Wallacé relies upon Carpenter v. State, 132 So.3d 1053 (Miss. Ct. App. 2013), for support. In Carpenter, the trial court was informed that sevéral jurors fell asleep' at one point during trial, and, as a result, the defendant requested a' mistrial. Id. at 1058 (¶ 16). The trial court denied the motion but, noting that one of the jurors had been sleeping, replaced the sleeping juror with an alternate. Id. at 1058-59 (¶¶ 16-17). This Court found no abuse of discretion by the trial court. Id. at 1059 (¶17).

¶ 11. In this case, however, the trial court determined that no jurors had fallen asleep. Thus, the trial court was under no obligation to replace a juror with an alternate or sua sponte grant a mistrial. See Hines v. State, 417 So.2d 924, 925 (Miss. 1982). This issue is without merit.

II. Violation of Right to Confront Witnesses

¶ 12. In his next issue, Wallace argues that his right to confront witnesses was violated because the forensic examiner who tested the gunshot-residue sample did not testify at trial. Chad Suggs was the forensic examiner from the Mississippi Crime Laboratory who tested the sample, but David Whitehead testified regarding the results of the test. As the chief of the Trace Evidence Section, Whitehead technically reviewed all the reports issued by the crime lab. The report itself was not admitted into evidence.

¶ 13. Specifically, Wallace contends that the State never made a preliminary finding that Suggs was unavailable to testify regarding the gunshot-residue test. In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the , Sixth Amendment Confrontation Clause bars the admission of “testimonial statements” made by a witness who does not appear at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. However, our supreme court has held on numerous occasions that technical reviewers can testify at trial in place of. an analyst who actually conducted the test if the reviewers had personal knowledge of the testing procedures and were involved in the creation of the underlying reports. See Armstead v. State, 196 So.3d 913, 919 (¶ 18) (Miss. 2016); Hingle v. State, 153 So.3d 659, 665 (¶ 13) (Miss. 2014); Grim v. State, 102 So.3d 1073, 1081 (¶ 22) (Miss. 2012); Jenkins v. State, 102 So.3d 1063, 1069 (¶ 19) (Miss. 2012).

¶ 14. We note that during trial Wallace’s attorney conceded that it was acceptable for Whitehead to testify rather than Suggs. Regardless, Whitehead testified that he served as the technical reviewer on the gunshot-residue test. According to Whitehead, he reviewed the evidence and Suggs’s analysis before signing the report. Whitehead also offered his own opinion regarding the test results, noting that the sample taken from the back of Wallace’s right hand tested positive for gunshot residue. It is clear from his testimony that 'Whitehead was actively involved in the production of the report and had intimate knowledge of the testing procedures. This issue is without merit.

III. State’s Comment Regarding Alibi Witness

¶ 15. Wallace next argues that the trial court should have sua sponte declared a mistrial after the State commented on Wallace’s failure to call an alleged alibi witness. During the State’s cross-examination of Wallace, Wallace stated he was in Greenville at the time of the shooting, meeting his friend Tavarous. The State then asked, “Is Tavarous here today?” Wallace responded, “No.” The State responded, “Oh. No further questions.”

¶ 16. However, Wallace failed to object either during trial or in his posttriál motions; thus, this issue is procedurally barred. Davis v. State, 660 So.2d 1228, 1246 (Miss. 1995). Regardless of the procedural bar, Wallace’s argument is also without merit. “[Generally, ‘the failure of either party to examine a witness equally accessible to both parties is not a proper subject for comment before a jury.’ ” Pearson v. State, 64 So.3d 569, 575 (¶ 22) (Miss. Ct. App. 2011) (quoting Ross v. State, 603 So.2d 857, 864 (Miss. 1992)). But

the rule barring comment [does] not apply where a witness, while technically accessible to both parties, stood more available to the complaining party. Where a defendant fails to call a witness more available to him and presumptively in a closer relationship with him, the [S]tate is fully entitled to comment on the party’s failure to call the witness.

Ross, 603 So.2d at 864. In Ross, the defendant testified that he was fishing with his brother at the time the crime was committed. Id. The supreme court held that due to the defendant’s relationship to the alleged alibi witness, “the [SJtate had every entitlement to comment on the absence of 'testimony from” the defendant’s alleged alibi witness. Id. In Pearson, this Court found that “[biased on [the defendant’s] testimony that he was at home with his wife at the time the sale took place, ... the State was permitted to delve into whether [the defendant] intended to call his wife to verify his alibi.” Pearson, 64 So.3d at 576 (¶ 24). Here, Wallace testified that Tavarous was his “homeboy,” establishing their close relationship. Thus, the State’s comment asking whether Tavarous would testify was not improper.

IV. Cumulative Error

¶ 17. In his final issue, Wallace contends that all of the errors in his case, taken together, warrant relief. Under the cumulative-error doctrine, individual er-. rors “may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Ross v. State, 954 So.2d 968, 1018 (¶ 138) (Miss. 2007). “However, where there is no error in part, there can be no reversible error to the whole.” Harris v. State, 970 So.2d 151, 157 (¶ 24) (Miss. 2007). Finding no error, there can be no cumulative error. This issue is without merit.

¶ 18. AFFIRMED.

IRVING AND GRIFFIS, P.JJ, BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.


author: FAIR, J.,

text:
    Eli ORR, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00916-COA
    Court of Appeals of Mississippi.
    10/17/2017

      ELI ORR (PRO SE), ATTORNEY FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, ATTORNEY FOR AP-PELLEE.
   FAIR, J.,

FOR THE COURT:

¶ 1. Eli Orr was indicted in 2009 on one count of the sale or transfer of cocaine and one count of possession of less than .1 gram of a controlled substance. In 2013, the State moved to amend the indictment to charge Orr as a second or subsequent offender.

¶ 2. In the middle of trial, Orr decided to plead guilty to Count I—the sale or transfer of cocaine. As part of his guilty plea, the State agreed, to retire Count II to the files. The court held a hearing on Orr’s petition to plead guilty, and Orr was sentenced to serve thirty-five years, in the custody of the Mississippi Department of Corrections (MDOC), with thirty years to serve and five years’ post-release supervision.

¶ 3. In April 2013, Orr was indicted for possession of a controlled substance while in jail. He filed a petition to plead guilty and was sentenced to serve three years in the custody of the MDOC, consecutive to his previous, sentence.

¶4. In January 2016, Orr filed a post-conviction relief (PCR) petition for his conviction on his first sentence—the sale or transfer of cocaine. The circuit court denied Orr’s petition after an evidentiary hearing. Orr appealed. '

DISCUSSION

¶ 6. We review a circuit judge’s denial of a PCR petition for clear error and will not disturb his factual findings absent such error. Wrenn v. State, 207 So.3d 1252, 1256 (¶ 13) (Miss. Ct. App. 2017) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss. 1999)). However, we review conclusions on questions of law de novo. Id.

1. Voluntariness of Plea

¶ 6. Orr argues that his guilty plea was involuntary because' he was threatened with a lengthier prison sentence if the case continued at trial. He further claims that he was intoxicated at the time of his plea and that the trial court made him believe he had to plead' guilty. Lastly, Orr argues that, as part of his guilty plea, he was required to recite the factual basis surrounding his plea, which he did not. We address each contention below.

¶ 7. A guilty plea is valid and legal only if it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 176-77 (Miss. 1991) (citation omitted). In Alexander v. State, 605 So.2d 1170, 1172 (Miss. 1992) (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss. 1991)), the Mississippi Supreme Court held that a “plea is deemed ‘voluntary arid intelligent’ only where the defendant is 'advised concerning the nature of the charge against him and the consequences of the plea.” After a review of the record, we'do not find any evidence that Orr’s guilty plea was illegal, involuntary, or coerced.

¶ 8. At Orr’s plea hearing, the trial judge asked him if he had beéri coerced into a guilty plea. He replied, “Naw, they ain’t said it like that. They just tell me ... I’m scared, Judge .... [The things they said] made me want to sign the guilty plea because I don’t want to go to prison the rest of my life.” The judge informed him that the only way he could be sentenced was if he pled not guilty and was convicted by a jury. Further, Orr was well aware of the maximum and minimum penalties he faced for each count. The trial judge spelled these out to Orr, on the . record, before accepting the guilty plea. The information was also handwritten on Orr’s petition to enter a guilty plea, and Orr himself acknowledged under oath that he knew the penalties.

¶ 9. Regarding Orr’s claim that he was intoxicated, he certified in his petition to plead guilty that he was not under the influence of any drugs or intoxicants. His attorney testified to the same effect. However, Orr’s test results from the presen-tencing hearing showed he tested positive for cocaine and marijuana. The court knew the test results during Orr’s sentencing, but determined that there was no evidence that his plea was not voluntarily, knowingly, and intelligently entered. He observed that Orr showed no signs of intoxication during his plea. After review, we find no abuse of discretion in the judge’s determination.

¶ 10. Finally, Mississippi has no requirement that the defendant personally provide the factual basis for his guilty plea. In fact, our supreme court has held a factual basis may be established a variety of ways, including a prosecutor’s testimony, a live witness, and prior factual proceedings. See Corley v. State, 585 So.2d 765, 767 (Miss. 1991). Here, the prosecutor gave a detailed account of the charges in Orr’s indictment.

¶ 11. Orr’s claim is without merit.

2. Statute of Limitations

¶ 12. Orr next argues, that the statute of limitations had run on his charge under Mississippi Code Annotated section 41-29-139 (Rev, 2013)—the sale or transfer of cocaine. According to Mississippi Code Annotated section 99-1-5 (Rev. 2015), the State had two years from the commission of the offense to indict Orr. The sale of cocaine occurred on or about May 7, 2008. Orr was indicted on July 23, 2009, well within the two-year time frame.

¶ 13. Orr’s claim has no merit. '

3, Speedy Trial

¶ 14. “Unless good cause be shown, and a continuance duly granted by the court, all offenses for whieh indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss. Code Ann. § 99-17-1 (Rev. 2015). Review of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause.

¶ 15. “Under this [cjourt’s standard of review, this [cjourt will uphold a decision based on substantial, credible evidence. If no probative evidence supports the trial court’s finding of good cause, this [cjourt will ordinarily reverse. The [Sjtate bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion.” DeLoach v. State, 722 So.2d 512, 516 (¶ 12) (Miss. 1998) (internal citations omitted).

¶ 16. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 38 L.Ed.2d 101 (1972), the United States Supreme Court provided a four-factor balancing test to be used when determining whether a defendant’s right' to a speedy trial has been violated. The factors are as follows: (1) “[ljength of delay,” (2) “the reason for the delay,” (3) “the defendant’s assertion of his right,” and (4) “prejudice to the defendant.” The court must consider the totality of the circumstances on a case-by-case basis. Boone v. State, 964 So.2d 512, 519 (¶ 3) (Miss. Ct. App. 2006). “Any delay of over eight months is presumptively prejudicial and triggers balancing of the other three factors.” Robinson v. State, 920 So.2d 1009, 1013 (¶ 13) (Miss. Ct. App. 2003).

1. Length of Delay

¶ 17. Orr’s right to a speedy trial attached on April 22, 2009, after he was arrested. His trial did not begin until February 26, 2013-over four years later. Thus, prejudicé is presumed and we must look to the other factors.

2.Reason for the Delay

¶ 18. “Once there is a finding that the delay is presumptively prejudicial, the burden shifts to the prosecution to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons.” DeLoach, 722 So.2d at 517 (¶ 17). Orr was indicted on July 23, 2009. The record shows that there were eleven agreed continuances, one master continuance, and one continuance granted because the prosecutor was in trial in another case and there were no other available dates in the term. The judge assigned fault to both Orr and the State for the delay.

3.Assertion of Right to a Speedy Trial

¶ 19. The third factor concerns Orr’s assertion of his right to a speedy trial. Orr did not file a motion for a speedy trial at any point while awaiting his trial. Instead, he waited to raise the issue for the first time in his PCR motion.

k. Prejudice to the Defendant

¶20. The fourth factor considers prejudice suffered by the defendant. “Prejudice ... should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. [The United States Supreme Court] has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. Orr failed to provide any evidence showing he was prejudiced by the delay.

¶ 21. After review, we find no abuse of discretion in the judge’s findings under the Barker factors.

4.Ineffective Assistance of Counsel

¶ 22. Orr’s next contention is that he received ineffective assistance of counsel. This Court applies the two-prong test found in Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to claims of ineffective assistance of counsel. The first prong requires the appellant to show that counsel’s performance was deficient. Id. The second prong requires proof that counsel’s deficient performance prejudiced the appellant. Id. There is a strong, but rebuttable, presumption that counsel’s performance and actions fall “within the wide range of reasonable professional assistance.” Williams v. State, 89 So.3d 676, 680-81 (¶ 10) (Miss. Ct. App. 2012) (quoting Parker v. State, 30 So.3d 1222, 1233 (¶ 37) (Miss. 2010)). Thus, counsel’s actions will only be deemed deficient if it is shown that the outcome would have been different otherwise. Id. Additionally, in PCR cases, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Brooks v. State, 89 So.3d 626, 628 (¶ 6) (Miss. Ct. App. 2011) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss. 1995)).

¶ 23. Orr has failed to provide any affidavits to support his contention that his attorney was ineffective. Additionally, Orr reaffirmed at his guilty-plea hearing and in his guilty-plea petition that he was satisfied with his attorney’s performance. Without additional evidence, we cannot find that Orr’s attorney’s performance was ineffective.

¶ 24. This issue is without merit.

¶ 25. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., NOT PARTICIPATING.


author: WESTBROOKS, J.,

text:
    Eddrick KING a/k/a Eddrick Lepatrick King a/k/a Patrick King, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00915-COA
    Court of Appeals of Mississippi.
    10/24/2017

      ATTORNEY FOR APPELLANT: ED-DRICK KING (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Eddrick King appeals the Leflore County Circuit Court’s dismissal of his petition for postconviction relief (PCR). On appeal, King asserts that his guilty plea to armed robbery was not knowingly, voluntarily, and intelligently made and that his counsel was ineffective. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 22, 2004, a Leflore County grand jury indicted Eddrick King and Tywanda Jackson for capital murder and kidnapping. The trial court appointed Ray Charles Carter from the Office of Capital Defense to represent King. Thereafter, King waived indictment and entered guilty pleas to the charges of manslaughter, armed robbery, and kidnapping. Pursuant to the plea deal, King was sentenced to twenty ■ years for manslaughter, thirty years for armed, robbery, and five years for kidnapping. The sentences for - manslaughter and armed robbery were ordered to ¡run concurrently, and the sentence for kidnapping was ordered to run consecutively to the sentences in the first two counts.

¶ 3. On January 7, 2016, King filed his PCR petition, arguing that his guilty plea to armed robbery was not knowingly, voluntarily, and intelligently made. In his petition, King claimed that he was reluctant to plead guilty to armed robbery, since he was actually innocent of the crime. However, King asserts that his attorney induced him to plead guilty by “promising” him that he would be eligible for parole after serving ten years of his thirty-year sentence. King attached supporting affidavits from his mother, Elizabeth Fair, and sister, Cassandra Fair. Both affidavits stated that King was told that he would become eligible for parole after serving ten years of his sentence.

¶ 4. On April 19, 2016, the trial court held an evidentiary hearing, and King, Elizabeth, and Carter testified. Neither the written transcript nor the audio recording of the guilty pleas was available. Carter testified that he represented King as an attorney employed by Mississippi Capital Defense. According to Carter, he never makes statements to his clients about their parole eligibility. Carter also testified that he did not recall King’s mother being present when Carter discussed the guilty pleas with King and could not remember her being available a single time when he spoke with King. Carter testified that he had no reason to believe ■that King was incompetent at the moment that King agreed to the plea.

¶ 5. After Carter’s testimony, Elizabeth testified that during King’s plea deal she heard Carter tell King that he had to serve ten years or less. Elizabeth testified that she spoke with King regarding his plea, and he reiterated that he had to serve ten years of his sentence or less. When asked if King was content with the plea, Elizabeth stated that she did not think King was satisfied.

¶ 6. King testified that he asked Carter questions about the plea because he was considering going to trial to prove his inno-ceneé, but Carter advised against a trial. King testified that he was induced to take a plea by Carter’s promise that he would be released in ten years, with good behavior. King testified that he wanted to go to trial on the armed-robbery charge, because he was actually innocent of the charge.

¶ 7. When asked if he remembered being informed about parole, probation, good time, or trusty time, King testified that he did not recall. King testified that he only remembered Carter’s promise that he would only serve ten years. King was questioned about his legal representation prior to Carter being assigned his case. King admitted that he fired- two attorneys prior to Carter because he was dissatisfied with their representation. Nevertheless, King testified that he was also dissatisfied with Carter’s representation when he accepted the plea agreement.

¶8. On June 2, 2016, the trial court denied King’s PCR petition. The trial court found Carter’s testimony to be more compelling than King’s testimony and evidence. The trial judge found Carter’s- advice allowed King to make an informed and conscious decision not to be tried for capital murder and kidnapping to avert a death sentence. It is from that order that King appeals.

STANDARD OF REVIEW

¶ 9. We review the dismissal or denial of a PCR petition for abuse of discretion. We will only reverse if the trial court’s decision is clearly erroneous. Hughes v. State, 106 So.3d 836, 838 (114) (Miss. Ct. App. 2012) (citing Crosby v. State, 16 So.3d 74, 77 (¶ 5) (Miss. Ct. App. 2009)), When reviewing questions of law, our standard is de novo. Id. (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss. Ct. App.2004)). “The trial court may summarily dismiss a PCR motion where it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the mov-ant is not entitled to- any relief.” White v. State, 59 So.3d 633, 635 (¶ 4) (Miss. Ct App. 2011) (citation and quotation marks omitted). “That includes deference to the [trial court] as the sole authority for determining credibility of the witnesses.” Jackson v. State, 192 So.3d 1143, 1145 (¶ 10) (Miss. Ct. App. 2016). “This [C]ourt will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Hughes, 106 So.3d at 839 (¶ 4) (citation and quotation marks omitted).

DISCUSSION

I. Whether King’s guilty plea to armed robbery was involuntarily entered.

¶ 10. King argues that his guilty plea to armed robbery was not voluntarily and intelligently made. He contends that Carter persuaded him to enter a guilty plea to armed robbery because of the promise that he would be paroled in ten years. However, King’s sentence for armed robbery is not parole eligible. Miss. Code Ann. § 47-7-3(c)(ii) (Supp. 2016).

¶ 11. “When reviewing the volun-tariness of guilty pleas, an appellate court ‘will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.’ ” Vaughn v. State, 85 So.3d 907, 910 (¶ 8) (Miss. Ct. App. 2012) (quoting Walton v. State, 16 So.3d 66, 70 (¶ 8) (Miss. Ct. App. 2009)). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Id. (citing Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss. 2009)).

¶ 12. In King’s plea petition, his constitutional rights were listed and the- nature and consequences of his plea were stated. King signed this petition, though he now contends on appeal that he did not understand the maximum and minimum amounts of time his pleas carried because he believed he was parole eligible. King argues that the trial court never discussed his constitutional rights, the State’s burden of. proof, or any defenses his trial counsel might have asserted. However, during his evidentiary hearing, King stated that he could not recall what the trial judge stated to him.

¶ 13. “This Court has held that ‘because parole is a matter of legislative grace, parole eligibility or noneligibility is not considered a ‘consequence’ of a guilty plea.’ ” Mosley v. State, 150 So.3d 127, 136 (¶ 29) (Miss. Ct. App. 2014) (quoting Thomas v. State, 881 So.2d 912, 916 (¶ 10) (Miss. Ct. App. 2004)). Thus, “it is not a prerequisite to a.voluntary plea that the defendant understand the nature of parole, his eligibility for parole, and the circumstances under which it may be granted.” Id. at 136-37 (¶ 29). “On the other hand, a plea is involuntary if a defendant is affirmatively misinformed regarding the possibility of parole- and pleads guilty in reliance on the misinformation.” Id. at 137 (¶ 29).

¶ 14. In determining whether King’s plea was voluntarily given, the trial judge found that King understood the charges that were brought against him, the consequences of his pleas, and the possible sentences. The judge also noted that King’s plea petition acknowledged that he was not eligible for parole, and King signed that petition. As a result, the trial court found that King failed to prove by a preponderance of the evidence that his plea was involuntary. We find that the trial court did not abuse its discretion.

II. Whether King received ineffective assistance of counsel.

¶ 15. King also argues that he received ineffective assistance of. counsel because of the alleged erroneous advice Carter provided during the plea agreement. King contends that Garter was not prepared for trial. King argues that Carter did not file discovery motions, did not discuss possible defense strategies,"and did not investigate witnesses. King asserts that he was actually innocent of the crimes, but Carter persuaded him to plead guilty. • '

¶ 16. “A claim of ineffective assistance of counsel is judged by the standard in Strickland v. Washington, 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Finley v. State, 739 So.2d 425, 427 (¶ 5) (Miss. Ct. App. 1999). “The two inqui-. ries under that standard are (1) whether counsel’s performance was deficient, and, if so, (2) whether the deficient performance. was prejudicial to the defendant in the sense that our confidence in the correctness of the-outcome is undermined.” Id.' “This standard is also applicable to the entry of a guilty plea.” Id. (citing Roland v. State, 666 So.2d 747, 750 (Miss. 1995)). “The burden of. proving that both prongs of Strickland have. been met is on the defendant!,] who faces .a .rebuttable presumption that counsel’s performance falls within the broad spectrum .of reasonable professional assistance.” Walker v. State, 703 So.2d 266, 268 (¶ 8) (Miss. 1997).

¶ 17. The trial judge found Carter’s representation to be within the range of competence demanded by attorneys. The-court found that Carter’s advice-afforded King with, the opportunity -to avoid the death penalty. The trial court also found Carter’s testimony, that he does not give or make promises regarding parole or early release, more credible than that of King and his mother. Under Strickland, King has not shown that Carter’s representation was deficient or that any alleged deficiencies resulted in prejudice to King. Accordingly, this issue is without merit,

¶ 18. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, • WILSON AND GREENLEE, JJ.\ CONCUR. TINDELL, J., NOT PARTICIPATING.


text:
    LOWE’S HOME CENTERS, LLC, Appellant v. Edwin SCOTT, Appellee
    NO. 2016-WC-01652-COA
    Court of Appeals of Mississippi.
    10/31/2017

      JILL RENEE MILLER MICHAEL MADISON TAYLOR JR., ATTORNEYS FOR APPELLANT.
    BRETT'; ANDREW FERGUSON, ATTORNEY FOR APPELLEE.
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ Í. Edwin Scott developed a staph infection in his spine after receiving epidural injections- as treatment for a workplace injury. After being presented with dueling expert opinions, the Mississippi Workers’ Compensation Commission found that the infection had resulted from the injections and thus was a compensable injury itself. Lowe’s Home Centers, the employer/carrier, contends that Scott’s expert should not have been be credited. We disagree and affirm. ’

STANDARD OF REVIEW

¶ 2, “[Rjeview of a decision of the Workers* Compensation Commission is limited to determining whether the decision was supported by¡ substantial evidence, was arbitrary and capricious, was beyond the scope or . power of the agency to make, or violated one’s constitutional or statutory rights.” Cook v. Home Depot, 81 So.3d 1041, 1044 (¶ 3) (Miss. 2.012) (citation omitted).- “Because the Commission is the ultimate fact-finder and judge of the credibility,of the witnesses, [an appellate court] may not reweigh the evidence before the Commission.” Id. at 1044-45 (¶ 3) (citation omitted). Questions of law,- on the other hand, are reviewed de novo. Ladner v. Zachry Constr., 130 So.3d 1085, 1088 (¶ 9) (Miss. 2014).

DISCUSSION

¶ 3. Scott injured his lower back while unloading a heavy appliance. He was to be treated with a series of epidural steroid injections. The first was on May 9, 2014, with the second following on May 29, 2014. On May 30, Scott was found to have an epidural abscess in the lower back, a staph infection caused by methicillin-resistant staphylococcus aureus (MRSA) bacteria. The infection necessitated several serious surgeries.

¶ 4. The factual dispute in this case is causation—whether the injections led to the staph infection. “In workers’ compensation cases, the claimant bears the burden of proving by a fair preponderance of the evidence ... a causal connection between the injury and the ... claimed disability.” Harper v. Banks, Finley, White & Co. of Miss., 167 So.3d 1155, 1163 (1119) (Miss. 2015) (citation omitted).

. ¶ 5. The expert for Lowe’s, Dr. Eric Amundson, a neurosurgeon, testified that infections rarely resulted from epidural injections and that Scott, a diabetic, was especially vulnerable to “spontaneous” infections. He noted that Scott had had two staph infections in the past two years in other parts of his body. Dr. Amundson concluded that the injections were not the cause of Scott’s infection.

¶ 6. On the other hand, Dr. Eric McVey, an infectious disease specialist who treated Scott, testified that he believed the infection was caused by the injections. He based this finding on the timing of the injections and their location, which was a few centimeters from' the infection. - Dr. McVey noted that “spontaneous” infections do not appear from nowhere,.but require staph bacteria to have entered the blood somehow. Because it is not possible to fully sterilize skin prior to an injection, the bacteria could have entered Scott’s body from the needle punctures. Alternatively, bacteria already present in the blood could have infected the spine because of inflammation from- the injections. .Dr. McVey acknowledged that it would be unusual for an infection to result from an epidural infection or for such an infection to progress in some of the ways. Scott’s, did, but in his judgment it was still more likely than not that the infection was caused by the injections.

¶ 7. Dr. Vivek Barclay, a specialist in anesthesiology and pain management, also treated Scott. He testified that while he could not say the injections caused the infection, he disagreed with Dr. Amund-son’s opinion that one could say with any confidence that they had not.

¶ 8. On appeal, Lowe’s contends that Dr. McVey’s testimony was not reliable for several reasons. First, it contends that Dr. McVey “admittedly had not reviewed the relevant medical records, including the medical records regarding the injections or the MRI films.” But Lowe’s fails to show how this undermines Dr. McVey’s opinion; it does not identify what records McVey should have reviewed, other than the MRI. And while McVey .did not look at the MRI itself, he testified that he had relied on the radiologist’s report of what it showed and that his examination of Scott was consistent with the report. Dr. McVey never even suggested that he had to review the MRI itself to formulate an opinion on the cause of the infection. Lowe’s fails to show how not viewing the MRI itself undermined Dr. McVey’s opinion—in fact, McVey seems to have drawn the same conclusions from the radiologist’s summary of the MRI that Dr. Amundson reached from looking at the MRI itself; he just disagreed about how much weight to give them in the end.

¶ 9. Otherwise, the arguments advanced by Lowe’s appear to be an attempt to reweigh the various facts considered by Dr. McVey in reaching his ultimate conclusion—the progression of the infection, the probabilities of a “spontaneous” infection versus introduction of bacteria from the injections, the usual formation and progression of infections of the spine. The record reflects that Dr. McVey considered all of these factors, and he candidly acknowledged that it was a close call; but he still concluded that, more likely than not, the infection resulted from the injections. The weighing of these factors was an exercise of Dr. McVe/s professional judgment as an infectious disease specialist, something this Court is in no position to second-guess. And the Commission, as the finder of fact, was entitled to decide whether to credit Dr. McVey’s judgment on this matter over that of Dr. Amundson. It is axiomatic that “whenever the expert evidence is conflicting, the [reviewing court] will affirm the Commission whether the award is for or against the claimant.” Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (¶ 13) (Miss. 2003). “[T]he Commission has the responsibility to apply its expertise and determine which evidence is more credible.” Hamilton v. Southwire Co., 191 So.3d 1275, 1282 (¶ 24) (Miss. Ct. App. 2016) (citation omitted).

¶ 10. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON AND TINDELL, JJ., NOT PARTICIPATING.'