author: IRVING, P.J., FOR THE COURT:

text:
    Trevontae JOHNSON, Meekco Johnson a/k/a Meeko Johnson and Isaac Johnson, Appellants v. STATE of Mississippi, Appellee
    NO. 2015-KA-00235-COA
    Court of Appeals of Mississippi.
    June 6, 2017 Rehearing Denied January 2, 2018 Certiorari Denied May 3, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS, ERNEST TUCKER GORE, GREENVILLE, DAVID NEIL McCARTY, RIDGELAND
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, JACKSON
    BEFORE IRVING, P.J., ISHEE AND FAIR, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Trevontae Johnson, Meekco Johnson, and Isaac Johnson appeal separate judgments of the Circuit Court of Washington County adjudicating each of them guilty of Count I, burglary of a dwelling; Count II, armed robbery; and Count III, kidnapping. Meekco also appeals his additional conviction of Count IV, possession of a firearm by a convicted felon. The circuit court sentenced Trevontae, Meekco, and Isaac to separate consecutive terms of twenty-five years for burglary, thirty-eight years for armed robbery, and thirty years for kidnapping. Meekco was also sentenced to an additional consecutive term of ten years for possession of a firearm by a convicted felon. All sentences for each Appellant were ordered to be served in the custody of the Mississippi Department of Corrections. Matthew Moore and Keagan Latham were indicted along with the Appellants, and Moore was tried with them. However, the jury found him not guilty of all counts. Latham was not tried with the Appellants, although he testified during their trial while charges against him were still pending.

¶ 2. On appeal, Trevontae maintains that the trial court erred in refusing to allow a police investigative report into evidence for the purpose of impeaching one of the State's witnesses. He also contends that the jury's verdict is against the overwhelming weight of the evidence. Meekco asserts that the trial court erred in denying a motion to suppress evidence and in placing limitations upon his right to present a defense. He also asserts that he received ineffective assistance of counsel. Isaac asserts that the traffic stop of the motor vehicle in which he and Meekco were riding was illegal; that the exclusion of his rebuttal witness destroyed his right to a defense; that the jury was not properly instructed regarding a key sentencing enhancement; and that the trial was inherently unfair due to the prosecutor's comments allegedly vouching for the truthfulness of one of the State's witnesses.

¶ 3. We find no reversible error; therefore, we affirm the judgments of the circuit court.

FACTS

¶ 4. During the early part of the night on April 8, 2013, police officers responded to a call from Wayne Barrett's residence in Greenville, Mississippi. Barrett, whose face was bruised and swollen, informed the police that his home had been burglarized and that he had been assaulted by three men. The incident began when a young man-whom Barrett recognized as a friend or relative of his former neighbors and later identified as fifteen-year-old Keagan Latham-knocked on Barrett's door and asked to use the phone. Barrett acquiesced; Latham briefly used the phone and left. A few minutes later, Barrett heard another knock on the door. When he went to answer, three different male individuals, who were armed and whom Barrett did not recognize, forced their way into his residence. The men assaulted Barrett and forced him to accompany them from room to room as they stole two laptop computers, several guns, a bag of change, Barrett's wallet, and an iPhone. The men carried the items out of Barrett's home using a blue comforter, which they had removed from Barrett's bed.

¶ 5. Barrett identified Latham to police, but was unable to identify the other three men involved in the burglary. The following morning, on April 9, 2013, police took Latham's statement, in which he implicated Trevontae, Meekco, Isaac, and Moore in the burglary and described their appearances. Latham also informed police that most of the stolen items had been taken to a certain residence on Ada Drive in Greenville. The police subsequently began preparing to obtain a search warrant for the Ada Drive residence.

¶ 6. Later that day, while the police were in the process of obtaining the search warrant, Sergeant Kenneth Redfield of the Greenville Police Department began conducting surveillance of the Ada Drive residence, with two fellow officers-Officer Andy Osbun and Officer Chris Surf-positioned nearby in their patrol cars. Sergeant Redfield testified at trial that he, along with the other officers involved in the matter, had been previously made aware of the suspects' names and general descriptions and that on the morning of April 9, 2013, he had received photos of the suspects from a group-text-message thread between members of the police department who were involved in this particular matter. Around noon, Sergeant Redfield noticed two individuals, matching the description and photographs of two of the suspects, leaving the Ada Drive residence in a blue Chevrolet Impala. Officer Redfield transmitted this information to Officers Osbun and Surf and informed them as to the direction that the Impala was traveling. Shortly after, Officer Osbun spotted the Impala and conducted a traffic stop. Officer Osbun later testified that he did not observe the men in the Impala breaking any laws prior to the stop; rather, the reason for the stop was "to just identify the people" in the Impala. Officer Osbun also testified that he did not see photographs of the suspects until after the traffic stop was conducted. Officer Surf arrived shortly thereafter to assist Officer Osbun.

¶ 7. Officer Osbun asked the driver for identification. The driver handed an identification card, not a driver's license, to Officer Osbun, identifying himself as Isaac Johnson. The passenger verbally identified himself as DeWayne Jordan, but Officer Osbun later learned that the passenger was Meekco Johnson. Officer Osbun instructed the two men to exit the vehicle, then asked for permission to search it. Officers Osbun and Surf both contended that Isaac consented to Officer Osbun's request to search. Officer Osbun searched the Impala and found two laptop computers in the trunk, which matched the description of those that had previously been stolen from Barrett's residence. As Officer Osbun was taking the computers to his patrol car, Isaac and Meekco jumped back into the Impala and drove away. Officers Osbun and Surf briefly pursued the Impala before losing sight of it. They reported the incident to Sergeant Redfield, who shortly thereafter saw the Impala pull behind some nearby apartments. Sergeant Redfield exited his vehicle and was walking behind the apartments, when suddenly he came upon Meekco and Isaac, standing by the Impala. Meekco and Isaac began running.

¶ 8. Shortly after this incident, the search warrant for the Ada Drive residence was finally obtained. Police went to the house, saw someone peeking through the blinds, commanded the person to exit the home, and then forcefully broke the door. Inside was a female and several children. The police searched the house and found multiple guns, all of which had been reported stolen from Barrett's home. The police also found a blue comforter matching the one that was stolen from Barrett's home.

¶ 9. Later that day, Barrett came to the police station and identified the recovered guns as his own. However, he was unable to identify the suspects in the photo lineups presented to him. Meekco, Trevontae, and Isaac were ultimately brought into police custody and charged.

¶ 10. Police submitted the guns obtained from the Ada Drive residence to the Mississippi Crime Laboratory for fingerprint analysis. Forensic scientist Mike Hood testified as an expert in latent fingerprint examination. Through Hood, the State introduced a forensic report indicating that a latent palm print was recovered from two of the guns obtained from the Ada Drive residence. The police submitted known fingerprints of Meekco, Isaac, Trevontae, Moore, and Latham. Through another forensic scientist, Jamie Bush, the State introduced a forensic report indicating that Isaac's known right palm print matched a latent print on one of the guns.

¶ 11. Meekco filed a pretrial motion to suppress the identification and evidence obtained by Officer Osbun during the stop on the basis that the stop was illegally conducted because the officers had no reasonable suspicion to conduct it. The trial court held a hearing and denied the motion, finding that the stop was lawful.

¶ 12. At trial, Barrett acknowledged that he was unable to identify Meekco, Isaac, and Trevontae in photo lineups the day after the incident. However, Barrett identified the three defendants at trial. Latham also testified at trial and identified Trevontae, Isaac, and Meekco as those who were involved in the burglary.

¶ 13. Trevontae, Isaac, and Meekco were convicted of the burglary, armed robbery, and kidnapping of Barrett. They each filed post-trial motions, which the circuit denied, leading to this appeal.

DISCUSSION

1. Whether the Trial Court Erred in Refusing to Allow into Evidence a Police Report for the Purpose of Impeaching Latham

¶ 14. Trevontae argues that the trial court erred in refusing to allow a police report into evidence for the purpose of impeaching Latham, one of the State's witnesses in this case. Similarly, Meekco argues that "[t]he trial court violated his constitutional right to present a defense and to a fair trial by precluding the defense from cross-examining Latham about, and impeaching his testimony with, prior inconsistent statements in [Investigator Steven] O'Neal's report or Latham's recorded statement to Officer Arendale."

¶ 15. "The standard of review for the admission or exclusion of evidence is abuse of discretion." Williams v. State , 54 So.3d 212, 213 (¶ 5) (Miss. 2011) (citation omitted). "The trial court's decision will stand unless the reviewing court concludes that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion." Id. (citation omitted).

¶ 16. At trial, Matthew Moore's defense counsel sought to impeach Latham using a police report that was prepared by Investigator O'Neal during the course of his investigation. The report, which included a synopsis, prepared by Investigator O'Neal, of the audio-recorded interview between Officer Arendale and Latham, "provides a general summary[,] not a word for word transcription," of what Latham told Officer Arendale shortly after the alleged crime took place. After much back and forth at trial, the final disposition of the issue was as follows:

[THE COURT]: [Latham] is a party, so his statements are admissible; however, you would have to-as far as this testimony is concerned, I don't think you can cross-examine him with the report of the investigator. If you have something that he said that's in this statement, you can cross-examine him about that. To put his statement in you would have to authenticate, so you would have to call a witness to do that. And you can call this witness back in your case, if you want to do all that, but that's where we are right now.
[DEFENSE COUNSEL]: ... [Y]ou said I can't cross-examine him with the statements of the police-
[THE COURT]: I mean, you can't characterize it that he said what that other guy said he said.
[DEFENSE COUNSEL]: But I can ask him[, "D]id you say["]-
[THE COURT]: Yeah, you can ask him if he said it.
[DEFENSE COUNSEL]: Okay.
* * * *
[STATE]: Your Honor, so I understand as well .... The defense is allowed to say ... ["D]id you say whatever off of this sheet, or did you say-tell that to the police[,"] even though he can't possibly know what Investigator O'Neal, who prepared this document actually transcribed it as, because [Latham] has not seen this summary.
[THE COURT]: I think that's correct.
[STATE]: [Latham] hasn't seen the summary, so he can't possibly know how Investigator O'Neal put his words down. So-
[THE COURT]: I think that's correct. The lawyer can ask him, ["D]id you say this[?"] If he says no, then he just says no. He can ask him what did he say.
[STATE]: Okay.

¶ 17. Trevontae maintains that the trial court's refusal to admit Investigator O'Neal's report left him "without a vital resource necessary to impeach Mr. Latham," resulting in irreversible harm to him. The trial judge was correct in his determination that Trevontae could cross-examine Latham about what Latham told Officer Arendale. The trial judge was also correct in ruling that Investigator O'Neal's synopsis of the interview between Latham and Officer Arendale could not be used to impeach Latham, because Latham was not interviewed by Investigator O'Neal. Further, the record shows that Latham was cross-examined extensively by four different lawyers, during which time he was questioned regarding the statements he made to Officer Arendale. We do not find any error in the trial judge's refusal to admit Investigator O'Neal's report, including the synopsis of Latham's interview with Officer Arendale. We also point out that Investigator O'Neal also testified, so he was subject to cross-examination about the contents of his report.

¶ 18. Similarly, Meekco maintains that the trial court's refusal to admit Investigator O'Neal's report limited his constitutional right to a defense, in that it "effectively insulated Latham from actual impeachment," and "prevented the defense from impeaching Latham after he denied making [an] inconsistent statement." Like a trial court's decision to admit or exclude evidence, "[l]imitations placed on cross-examination are reviewed using an abuse-of-discretion standard." Ervin v. State , 136 So.3d 1053, 1058 (¶ 13) (Miss. 2014) (citation omitted). "[O]ne accused of a crime has the right to broad and extensive cross-examination of the witnesses against him, and especially is this so with respect to the principal prosecution witness." Suan v. State , 511 So.2d 144, 148 (Miss. 1987) (citations omitted). However, there was no basis for admitting the full investigatory report. As stated, Investigator O'Neal testified at trial, and defense counsel was given the opportunity to engage in extensive cross-examination of both Investigator O'Neal and Latham as to what Latham said during the interrogation, which was later summarized in Investigator O'Neal's report. Thus, we find that the circuit judge did not err in excluding the report.

2. Whether the Jury's Verdict Was Against the Overwhelming Weight of the Evidence

¶ 19. In Trevontae's motion for a new trial, he argued that the verdict in this case was against the overwhelming weight of the evidence. He makes the same argument here. An appellate court reviews the trial court's denial of a post-trial motion for abuse of discretion. Flowers v. State , 601 So.2d 828, 833 (Miss. 1992) (citations omitted). "A motion for a new trial is discretionary with the trial judge and [an appellate court] will not order a new trial unless it is convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. (citations omitted).

¶ 20. Trevontae maintains that there is no physical evidence linking him to the crime of which he was convicted. However, "the absence of physical evidence does not negate a conviction where there is testimonial evidence." Graham v. State , 812 So.2d 1150, 1153 (¶ 9) (Miss. Ct. App. 2002). "[T]he jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness." Meshell v. State , 506 So.2d 989, 992 (Miss. 1987). Here, Latham-an accomplice to the crime-testified that Trevontae was also involved in its commission. Barrett corroborated this testimony, also identifying Trevontae as one of the crime's perpetrators. The jury apparently believed both Latham's and Barrett's testimony. As the jury is free to reject or accept each witness's testimony, we will not now disturb its decision.

¶ 21. Trevontae contends that Barrett and Latham-who both identified Trevontae as one of the perpetrators of the burglary-presented unreliable testimony because Barrett could not previously identify Trevontae in a pretrial photo lineup or for up to six months after the crime took place. He also argues that Latham had an interest in the outcome of Trevontae's trial, which influenced his testimony. "[P]ersons may be found guilty on the uncorroborated testimony of a single witness." Doby v. State , 532 So.2d 584, 591 (Miss. 1988). "[A] defendant may be lawfully convicted on the uncorroborated testimony of an accomplice"; however, "such testimony should be viewed with suspicion and must be reasonable and not improbable, self-contradictory or substantially impeached." Fairchild v. State , 459 So.2d 793, 798 (Miss. 1984). "Only slight corroboration of an accomplice's testimony is required to sustain a conviction." Osborne v. State , 54 So.3d 841, 847 (¶ 22) (Miss. 2011) (citation omitted). "The particular testimony needing corroboration is the portion tying the defendant to the crime." Grossley v. State , 127 So.3d 1143, 1148 (¶ 14) (Miss. Ct. App. 2013) (citation omitted). Barrett's testimony corroborating Latham's testimony is sufficient to sustain Trevontae's conviction.

3. Whether the Traffic Stop Was Unlawful

¶ 22. Both Meekco and Isaac argue that the circuit court erred in denying Meekco's motion to suppress the evidence and identification obtained from the traffic stop of the blue Impala because the traffic stop was illegal; thus, the evidence and identification obtained therefrom should have been excluded as fruit of the poisonous tree.

¶ 23. Issues regarding the Fourth Amendment require a mixed standard of review.

Eaddy v. State , 63 So.3d 1209, 1212 (¶ 11) (Miss. 2011) (internal citation omitted). "Whether probable cause or reasonable suspicion exists is subject to a de novo review. But the Court limits the de novo review of the trial court's determination to historical facts reviewed under the substantial evidence and clearly erroneous standards." Id. (internal quotations and citation omitted). Additionally, "[i]n reviewing the denial of a motion to suppress, [an appellate court] must determine whether the trial court's findings, considering the totality of the circumstances, are supported by substantial credible evidence." Moore v. State , 933 So.2d 910, 914 (¶ 9) (Miss. 2006) (citations omitted). "Where supported by substantial credible evidence, [an appellate court] shall not disturb those findings." Id. (citations omitted). Appellate courts "review[ ] the admission or exclusion of evidence for abuse of discretion." Brown v. State , 119 So.3d 1079, 1082 (¶ 7) (Miss. Ct. App. 2013).

¶ 24. Both the United States Constitution and the Mississippi Constitution guarantee citizens the right to be secure from governmental intrusion via unreasonable searches and seizures. U.S. Const. amend. IV ; Miss. Const. art. 3, § 23. The United States Supreme Court held in Brendlin v. California , 551 U.S. 249, 251, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007), that when a vehicle is stopped pursuant to a police traffic stop, the vehicle is "seized" within the meaning of the Fourth Amendment, and both the driver and the passenger of the vehicle may challenge the constitutionality of the stop. While the Fourth Amendment generally requires that law enforcement procure a warrant based on probable cause prior to conducting a search or seizure in order for the search or seizure to be deemed "reasonable," there are several exceptions to the warrant requirement. Moore , 933 So.2d at 916 (¶ 18). "Unless the State proves that a warrantless search comes within an exception, all evidence seized from the search is inadmissible." Jackson v. State , 418 So.2d 827, 829 (Miss. 1982). There are two exceptions relevant to the matter at hand: the investigatory-stop exception and the consent exception.

¶ 25. The investigatory-stop exception applies where police officers "detain a person for a brief, investigatory stop ... when the officers have 'reasonable suspicion, grounded in specific and articulable facts' that allows the officers to conclude the suspect is wanted in connection with criminal behavior." Id. (quoting Walker v. State , 881 So.2d 820, 826 (¶ 10) (Miss. 2004) ). See also Terry v. Ohio , 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "Vehicles also may be the subject of an investigative stop." Haddox v. State , 636 So.2d 1229, 1234 (Miss. 1994) (citation omitted). In determining whether "reasonable suspicion" exists such that an investigatory stop may be conducted, the court must consider whether, taking into account the totality of the circumstances, the detaining officers had a "particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez , 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). "Grounds for reasonable suspicion to make an investigatory stop generally come from two sources: either the officers' 'personal observation' or an informant's tip." Eaddy , 63 So.3d at 1213 (¶ 15) (quoting Williamson v. State , 876 So.2d 353, 355 (¶ 11) (Miss. 2004) ) (citation omitted). "The officer's personal observation includes information from other law-enforcement personnel." Id ; see Dies v. State , 926 So.2d 910, 920 (¶ 29) (Miss. 2006) ("[R]easonable suspicion ... can be transferred from officer to officer ...."). Further, "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." Illinois v. Wardlow , 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Mississippi cases have provided that "given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest." Singletary v. State , 318 So.2d 873, 876 (Miss. 1975).

¶ 26. With respect to the consent exception to the warrant requirement, "the United States Supreme Court has long recognized that a voluntary consent to a search eliminates an officer's need to obtain a search warrant." Gazaway v. State , 708 So.2d 1385, 1388 (¶ 9) (Miss. Ct. App. 1998) ; see Davis v. United States , 328 U.S. 582, 593, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). Similarly, "Mississippi has long recognized that a defendant can waive his or her rights under the warrant requirement by consenting to a search." Graves v. State , 708 So.2d 858, 863 (¶ 23) (Miss. 1997). However, the United States Supreme Court and the Mississippi Supreme Court differ in their opinions of "what constitutes a valid consent." Gazaway , 708 So.2d at 1388 (¶ 9). The United States Supreme Court held in Schneckloth v. Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), that "the pivotal determination of whether or not there was a valid consent rests on whether or not the consent was voluntary and not whether the party knew or was informed of a constitutional right which he then intentionally relinquished or abandoned." In contrast, the Mississippi Supreme Court held in Penick v. State , 440 So.2d 547, 550 (Miss. 1983), that, for a consent to be valid, "it is necessary that the person searched be aware of his right to refuse." "[T]his knowledgeable waiver must be proved by the State beyond a reasonable doubt or by clear evidence." Id. "The State is not required to demonstrate knowledge"; rather, the "burden is on the defendant to show impaired consent or some diminished capacity." Jones v. Miss. Dep't of Public Safety , 607 So.2d 23, 28 (Miss. 1991). "Whether a person voluntarily consented to the search is a 'question of fact to be determined by the total circumstances' ":

Those considerations include: whether the circumstances were coercive, occurred while in the custody of law enforcement or occurred in the course of a station house investigation. Other factors for consideration are the individual's maturity, impressionability, experience and education. Additionally, the court should consider whether the person was excited, under the influence of drugs or alcohol, or mentally incompetent.

Robinson v. State , 2 So.3d 708, 714 (¶ 18) (Miss. Ct. App. 2008) (internal quotations and citations omitted). The United States Supreme Court has held that consent is not valid if it occurs subsequent to an illegal detainment because "the consent [is] tainted by the illegality and [is] ineffective to justify the search." Florida v. Royer , 460 U.S. 491, 507-08, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

¶ 27. Here, both Isaac-the driver-and Meekco-the passenger-have standing to challenge the stop of the blue Impala under the Fourth Amendment. Meekco and Isaac first assert that the stop was illegal because the police had no reasonable suspicion to conduct the stop; thus, it could not fall under the investigatory-stop exception to the Fourth Amendment warrant requirement. Second, Meekco and Isaac assert that Isaac's consent was invalid because it was obtained during the course of an illegal stop; therefore, it could not fall under the consent exception pursuant to the United States Supreme Court's decision in Royer . Meekco and Isaac argue that, as no other exception applies, their Fourth Amendment rights against unreasonable searches and seizures were violated, and the identification and evidence obtained therefrom should have been excluded.

¶ 28. First, Meekco and Isaac maintain that the police lacked reasonable suspicion to conduct the stop at the time that Officer Osbun stopped the blue Impala. Meekco and Isaac argue that the stop was improper because the officers only had vague descriptions of the suspects, which did not amount to reasonable suspicion to stop the car and ascertain the identities of those in the car. Further, neither Latham, Barrett, nor any other officer testified to having any knowledge of a blue Impala in connection with the burglary of Barrett's residence. The first time a blue Impala was referenced in connection with this crime was when Sergeant Redfield saw the car in the driveway at the Ada Drive residence. Meekco and Isaac maintain that these facts do not indicate that the officers had reasonable suspicion to stop the car.

¶ 29. In contrast, the State maintains that the officers had reasonable suspicion to conduct the stop based not only on the descriptions of the subjects provided by Latham, but also on the photographs of the suspects that they had received prior to conducting surveillance on the Ada Drive residence. At the hearing on Meekco's motion to suppress the evidence, Sergeant Redfield testified to the following:

[STATE]: [You and Officers Osbun and Surf] were briefed about what you were asked to do and kind of given a summary of what had happened, correct?
[SERGEANT REDFIELD]: Yes.
[STATE]: And I believe that y'all were told from other investigators on the case that a robbery had taken place the night before and that some firearms and computers and items of that nature had been taken from the home, correct?
[REDFIELD]: That's correct.
[STATE]: And that a defendant in that case had given a statement saying they had taken these items to that home on Ada Street.
[REDFIELD]: Yes.
[STATE]: And that's why you were asked to watch that house in anticipation of the search warrant to see if anybody took anything, correct?
[REDFIELD]: That's correct.
[STATE]: And y'all were given general descriptions of the suspects; is that right?
[REDFIELD]: Yes.
* * * *
[STATE]: These two black males, they fit the description that you saw leaving that [sic] and getting into that Impala, they fit the general description that you had been given, correct?-
[REDFIELD]: Yes.
[STATE]: -by criminal investigations, and at that point you notified the other officers, correct? [T]hat you saw this vehicle leaving.
[REDFIELD]: Yes. I notified by radio Investigator Surf and Investigator Osbun that one [of] the vehicles were leaving [sic] which was the blue Chevy Impala and in what direction travel was going [sic].
* * * *
[DEFENSE COUNSEL]: The time that you were there [on surveillance], what specific description did you have of the suspects, the persons?
[REDFIELD]: I know on[e] of with-it's a all black male subject was looking for [sic]. One of them had dreds. Slender build on one. It wasn't-that's about all I had at the time.
[DEFENSE]: So the only description you had was black and dreds; is that correct?
[REDFIELD]: One [of] the men had black, had dreds in his hair, yes.
[DEFENSE]: You didn't have any other identifying characteristics?
[REDFIELD]: No.
[DEFENSE]: What about clothing? Did you have any specific kind of clothing they would be wearing or anything like that?
[REDFIELD]: No.
[DEFENSE]: And did you know the person that you were looking for? You know who it was at the time?
[REDFIELD]: I [had] just seen photos. I didn't know them personally. I didn't know them personally, no.
[DEFENSE]: Back on April 9th you'd seen photos of the persons?
[REDFIELD]: No, before-when it happened, they sent out group texts and stuff, so we kind of know what's going on with CID.
[DEFENSE]: But to be clear, no photos on April 9th?
[REDFIELD]: I'm sorry. Say again.
[DEFENSE]: I'm trying to understand. No-the only description you're relying on was that a black male and they had dreds, right [sic]?
[REDFIELD]: Not all of them. One [of] the suspects [was] supposed to have dreds on them. Now, as far as how they face [sic] looked, I remember how they-we had photos through a text showing-
[DEFENSE]: When did you get the photos?
[REDFIELD]: They came in I believe some time that morning when they send-do the group text.
[DEFENSE]: So you saw photos that morning?
[REDFIELD]: Yeah.
[DEFENSE]: Of who? Who was the photos supposed to be of?
[REDFIELD]: Of the guys that supposedly had committed the armed robbery and the home invasion over there.

Additionally, Officer Arendale described how the officers who would be surveiling the Ada Drive residence were given descriptions of the suspects in the burglary:

[STATE]: And so the ... officers [who would be surveiling], I guess, they were informed of what they were doing, correct?
[OFFICER ARENDALE]: Yes, sir.
[STATE]: And they were informed about the events leading up to this.
[ARENDALE]: Yes, sir. I notified them.
[STATE]: And why they were given descriptions of the items that were taken in case, I guess, they saw somebody taking those items out, right?
[ARENDALE]: That's correct.
[STATE]: And they were given descriptions, I guess, of the individuals that y'all believed to have been involved in this.
[ARENDALE]: That's correct.
[STATE]: Based on Keagan Latham's statement.
[ARENDALE]: Yes, sir.

Officer Osbun, who actually conducted the traffic stop, also testified as to his knowledge of the suspects at the time he pulled them over:

[STATE]: You had occasion to become involved at the request of the detective division, CID, with a surveillance or with a traffic stop; is that right?
[OFFICER OSBUN]: Right.
[STATE]: And you had received information that this vehicle was leaving the home that was, I guess, the target of surveillance in anticipation of a search warrant?
[OSBUN]: That's correct?
[STATE]: Correct?
[OSBUN]: Right.
* * * *
[STATE]: And in discussing the case with members of CID, all of you received information, I guess, that what? There had been a robbery the night before.
[OSBUN]: Right.
[STATE]: And y'all were given details about that robbery.
[OSBUN]: Right.
[STATE]: And y'all were given general descriptions of the suspects.
[OSBUN]: Right.
[STATE]: And I believe that y'all were given the names of some of them; is that right?
[OSBUN]: What's that.
[STATE]: Y'all had been given some of the names of the suspects, persons of interest, right?
[OSBUN]: I believe we did, yes.
[STATE]: When you saw that blue Impala that matched up with the description of the vehicle that you had been given by Redfield, correct [sic]?
[OSBUN]: Right.
[STATE]: And so when you made the stop, you were making the stop to investigate based off the knowledge you had of the incident the night before, as well as the knowledge of Investigator Redfield; is that correct?
[OSBUN]: Yes.
* * * *
[STATE]: And y'all had been given, I guess, a general description of why y'all were surveiling that home.
[OSBUN]: Right.
[STATE]: And y'all had been told that there had been some sort of incident the night before and that a suspect had given information that they had taken some of the items that were taken in the robbery to that home, correct?
[OSBUN]: That's right.
[STATE]: And y'all were also told, given general descriptions of the individuals in that home, correct?
[OSBUN]: Right.
[STATE]: That were involved in the robbery.
[OSBUN]: Correct.
[STATE]: And you were, I guess became involved actually when Investigator Redfield, now Sergeant Redfield told you that there was a vehicle leaving the home, correct?
[OSBUN]: That's right.
[STATE]: Tell us what happened after that when you made the stop on the vehicle.
[OSBUN]: He advised that an Impala was leaving occupied by two black males, and my only job that day was kind of to be away from the house but just get intel from Sergeant Redfield. Said Impala was leaving. I was a few blocks away, noticed an Impala and I did the stop.

Later, Osbun testified that his stop was not based on any illegal conduct by the Impala; rather, it was

[a]n investigator (sic) stop. It wasn't a traffic stop. It was just-you know, if it could-any Impala I believe I-it was a blue, something like that, any Impala I would have stopped just for investigative purposes. And he said it was two black males. Two black males were in this Impala, and I did the stop.

The State argues that, given the descriptions of the suspects and the fact that Sergeant Redfield-who observed the men leaving the house-had seen photographs of the suspects, the police officers were confronted with an ambiguous situation and the investigatory stop was therefore proper to dispel that ambiguity. Additionally, the State argues that even if the officers' initial reasons for the stop were improper, the doctrine of inevitable discovery would have come into play because Isaac-the driver of the blue Impala-presented an identification card, not a driver's license, to police. The State argues that Isaac's failure to produce a driver's license after operating a vehicle in Mississippi is a crime for which he could have been arrested. The vehicle could have subsequently been impounded, and an inventory search could have been conducted. The laptops which were discovered in the trunk would have been found pursuant to such an inventory search.

¶ 30. Officer Osbun stopped Isaac and Meekco based on information that he received from Sergeant Redfield. Sergeant Redfield, while conducting surveillance of the Ada Drive residence, saw two men exit the house and get into the blue Impala. The two men's appearances fit the description of two of the suspects that Latham had previously provided to police. As personal observation may be transmitted from officer to officer, we fail to see how this does not constitute reasonable suspicion for an investigatory stop. Further, Sergeant Redfield testified that images of the suspects had been circulated through a group text message among those involved in the investigation of this particular matter. Thus, the stop was not illegal, and the trial court did not err in denying Meekco's motion to suppress.

¶ 31. Meekco and Isaac also maintain that the evidence should have been suppressed because it was not obtained under the consent exception to the Fourth Amendment: because the initial traffic stop constituted an illegal detainment, the search of the car was not justified on the basis of Isaac's subsequently obtained consent. In support of this argument, Meekco cites Royer , 460 U.S. at 507-08, 103 S.Ct. 1319, in which the Supreme Court found that where a defendant had given consent to the search of his luggage while he was being illegally detained, "the consent was tainted by the illegality and was ineffective to justify the search." In response, the State contends that even if the stop was illegal and Isaac's consent was, as a result, illegally obtained, the circuit judge's failure to suppress the evidence found in the trunk of the car was harmless error because the evidence ultimately collected from the Ada Drive residence-out of which Isaac and Meekco exited-combined with the damning information provided by Latham to the police overwhelmingly indicated their guilt beyond a reasonable doubt.

¶ 32. We agree with the State. "The U.S. Supreme Court has repeatedly recognized that the commission of a constitutional error at trial does not entitle a defendant to automatic reversal. Instead, most constitutional errors can be harmless." Brown v. State , 995 So.2d 698, 704 (¶ 24) (Miss. 2008) (internal quotations omitted) (quoting Washington v. Recuenco , 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) ). "The basic test for harmless error in the federal constitutional realm is ... whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " Id. (quoting Thomas v. State , 711 So.2d 867, 872 (¶ 25) (Miss. 1998) (citing Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) )). "Nonstructural, constitutional errors in the face of 'overwhelming evidence of guilt' are harmless errors." Id. (quoting Thomas , 711 So.2d at 872 (¶ 25) ). Upon finally obtaining the search warrant to the Ada Drive residence and conducting their search, police officers found all but one of the guns that Barrett had reported stolen. The police also found a blue comforter matching the one that was used to carry the guns out of Barrett's home. The police submitted the guns to the Mississippi Crime Laboratory for fingerprint analysis and uncovered a latent palm print from two of the guns. The police submitted known fingerprints of Meekco, Isaac, Trevontae, Moore, and Latham. At trial, the State entered a forensic science report into evidence indicating that Isaac's fingerprints matched the latent palm print found on one of the guns. This evidence, combined with the testimony from Latham indicating Meekco's and Isaac's involvement, along with the fact that police officers witnessed Isaac and Meekco exiting the house in which the guns were found, is overwhelmingly indicative of their guilt, such that any error derived from an illegal stop or illegally obtained consent is harmless beyond a reasonable doubt.

4. Whether Meekco Received Ineffective Assistance of Counsel

¶ 33. Meekco argues that his trial counsel was ineffective. "In order to prevail on an ineffective-assistance-of-counsel claim, 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"; in so doing, appellate courts

look at the totality of the circumstances to determine whether counsel's efforts were both deficient and prejudicial. There is a strong but rebuttable presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Only where it is reasonably probable that, but for the attorney's errors, the outcome would have been different, will we find that counsel's performance was deficient.

Dartez v. State, 177 So.3d 420, 423 (¶ 19) (Miss. 2015) (citations omitted). Furthermore, "counsel's choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy." Bigner v. State , 822 So.2d 342, 346-47 (¶ 24) (Miss. Ct. App. 2002).

¶ 34. Specifically, Meekco argues that his trial counsel was ineffective for: (1) failing to raise a hearsay or confrontation objection to the admissibility of Hood's and Bush's forensic fingerprint reports; (2) failing to obtain a ruling on the defense's motion to suppress Barrett's in-court identification and failing to object to Barrett's in-court identification; (3) failing to object to the prosecutor's impermissible statements during closing argument; and (4) failing to move for a severance or a mistrial.

¶ 35. Generally, appellate courts will not hear claims of ineffective assistance of counsel on direct appeal, unless "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Grady v. State , 190 So.3d 870, 871 (¶ 8) (Miss. Ct. App. 2015). As neither is the case here, we decline to address this issue and dismiss Meekco's ineffective-assistance-of-counsel claim without prejudice, so that he may seek permission from the Mississippi Supreme Court to raise this issue in a post-conviction-relief petition, if he so chooses.

5. Whether the Trial Court Erred in Excluding One of the Defense's Rebuttal Witnesses

¶ 36. Isaac and Meekco argue that the trial court erred when it refused to allow one of the defense's rebuttal witnesses-Alex Johnson-to impeach Latham by testifying that Latham told Alex of his involvement in the "Chicago Gang," on the basis that Alex was present in the courtroom during Latham's testimony, despite Rule 615 of the Mississippi Rules of Evidence having been invoked. Rule 615 governs witness sequestration in Mississippi, and provides that, "[a]t a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony." "The rule applies to rebuttal witnesses as well as witnesses who have testified, or could have testified, on the case-in-chief." Finley v. State , 725 So.2d 226, 233 (¶ 21) (Miss. 1998) (citation omitted). When a party "invokes the rule," the trial court must apply it. Avery v. State , 119 So.3d 317, 320 (¶ 9) (Miss. 2013). "When a witness has violated the rule, the trial court has discretion as to the proper remedy." White v. State , 127 So.3d 170, 173 (¶ 10) (Miss. 2013). "Appropriate remedies for a sequestration violation include prospectively excluding the witness where prejudice will otherwise ensue; striking the testimony where connivance gave rise to the testimony; [or] striking the testimony where the prejudice arose." Kiker v. State , 919 So.2d 190, 194 (¶ 9) (Miss. Ct. App. 2005) (citation omitted). "The most appropriate remedy is allowing the other party to subject the witness to a 'full-bore cross-examination' on the facts of the rule violation." Id. (citation omitted). "Failure to comply with a sequestration order does not automatically render the witness's testimony inadmissible." Clark v. State , 127 So.3d 292, 297 (¶ 14) (Miss. Ct. App. 2013) (citation omitted). "Exclusion of the testimony is a 'serious sanction,' and appropriate only where probable prejudice would result to the other party." Id. (quoting Harris v. State , 937 So.2d 474, 479 (¶ 16) (Miss. Ct. App. 2006) ). "The appellate court is limited to an abuse-of-discretion standard when reviewing an alleged sequestration violation." White , 127 So.3d at 173 (¶ 10) (citation omitted). "Reversal is not justified unless there is a showing of prejudice sufficient to constitute abuse of discretion on the part of the trial judge in not ordering a mistrial or not excluding testimony." Whittington v. State , 748 So.2d 716, 719 (¶ 19) (Miss. 1999).

¶ 37. At trial, the State elicited testimony from Investigator O'Neal, Officer Joseph Horn, and Barrett, who all testified that the three men who robbed Barrett stated that they were in "Chicago Gang." Latham, during his testimony, denied being in a gang. After Latham's testimony, the defense sought to call Alex to testify. Alex told the trial judge-out of the presence of the jury-that he would testify that Latham had personally told Alex of his involvement in a gang. Further, Alex sought to testify that he was familiar with gang signs and symbols, and that Latham had displayed such signs and symbols through pictures on social media. The trial court denied the defense's request, maintaining that the State had invoked Rule 615, and Alex was therefore precluded from testifying because he had been present in the courtroom during Latham's testimony.

¶ 38. Isaac and Meekco argue that the circuit judge erred in refusing to allow Alex to testify as to the fact that Latham had told Alex of his involvement in a gang, thereby impeaching Latham's previous statement to the contrary. Isaac and Meekco assert that their Sixth Amendment rights were violated as a result, because they were precluded from fully presenting a defense. In support of this argument, Isaac and Meekco cite White , where the supreme court found that it was an abuse of discretion for the trial court to exclude the testimony of a witness for no reason other than a violation of the sequestration rule. White , 127 So.3d at 176 (¶ 18). In response, the State maintains that the trail judge did not err in excluding Alex's testimony and, even if he did, the error was harmless in light of the overwhelming evidence of Isaac's and Meekco's guilt.

¶ 39. We agree with Isaac and Meekco that the circuit judge erred in refusing to allow Alex's testimony that Latham had previously told Alex of Latham's involvement in the "Chicago Gang," as there is no evidence to suggest that probable prejudice would have resulted to the State in allowing Alex to testify as to that matter only. Therefore, even though Alex violated Rule 615, the circuit court should have allowed the defense to impeach Latham's testimony that Latham was not a member of the "Chicago Gang." However, Isaac and Meekco have failed to show that they suffered sufficient prejudice to compel a finding that the trial court's ruling amounts to an abuse of discretion. In the absence of such prejudice, the trial court's error was harmless. As previously stated, "most constitutional errors can be harmless." Brown , 995 So.2d at 704 (¶ 24) (citations omitted). "The basic test for harmless error in the federal constitutional realm is ... whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " Id. (citations omitted). "In conducting harmless-error analysis, [appellate courts have] the power and duty to review the record de novo to determine the error's effect." Avery , 119 So.3d at 320 (¶ 10) (citations omitted).

¶ 40. We can say without a doubt that Alex's testimony would have had only a negligible impact on the final result of the trial had he been allowed to give the impeaching testimony. At the time Isaac and Meekco sought to call Alex to the witness stand, Latham had already testified that he lied to his mother and the bus driver about his plans on the evening of the robbery, thus putting his credibility squarely before the jury. In spite of Latham's admissions that he had lied, the jury chose to believe his testimony regarding all three defendants' involvement in the burglary. Allowing Alex's testimony to impeach Latham's testimony regarding the peripheral "Chicago Gang" issue would not have dismantled his credibility to the extent that the outcome of the trial would have been different, as neither Isaac's nor Meekco's guilt turned on whether Latham was a member of the "Chicago Gang." Therefore, this issue is without merit.

6. Whether the Jury Was Properly Instructed Regarding a Sentence Enhancement for Burglary

¶ 41. Isaac argues that he, Trevontae, and Meekco were charged with an "enhanced" form of burglary, which raised the minimum sentence, yet the jury was not properly instructed regarding that enhancement. "Jury instructions are generally within the discretion of the trial court and the settled standard of review is abuse of discretion." Bailey v. State , 78 So.3d 308, 215 (¶ 20) (Miss. 2012) (citation omitted). "When read together, if the jury instructions fairly state the law of the case and create no injustice, then no reversible error will be found." Id. (citations omitted). "[A]n offended party's failure to object to jury instructions at trial procedurally bars the issue on appeal." Jones v. State , 776 So.2d 643, 653 (¶ 35) (Miss. 2000) (citation omitted). However, a "trial court's failure to instruct the jury properly on the essential elements of the crime of burglary requires reversal." Bolton v. State , 113 So.3d 542, 544 (¶ 4) (Miss. 2013) (citation omitted; emphasis in original).

¶ 42. Isaac, Trevontae, and Meekco were charged under Mississippi Code Annotated section 97-17-23(1) (Rev. 2014), which prohibits a person from "breaking and entering the dwelling house ... of another." Additionally, Isaac, Trevontae, and Meekco were charged with doing the above "under circumstances likely to terrorize any person who is actually occupying the house at the time of the criminal invasion of the premises." Miss. Code Ann. § 97-17-23(2). While the standard definition of burglary carries a minimum penalty of three years in the custody of MDOC and maximum penalty of twenty-five years, the "enhanced" form of burglary regarding an intent to terrorize carries a minimum penalty of ten years in the custody of MDOC and maximum penalty of twenty-five years. Miss. Code Ann. § 97-17-23(1) - (2). Isaac maintains that the jury was not properly instructed as to what "likely to terrorize" means. The State argues that the phrase "likely to terrorize" is self-explanatory and needs no definition. We agree.

7. Whether the Prosecutor Made Improper Comments During Closing Argument

¶ 43. Isaac argues that the trial court erred in allowing the prosecutor to make improper comments during its closing argument. This Court in Stevenson v. State , 156 So.3d 927, 929-30 (¶¶ 11-13) (Miss. Ct. App. 2015), made the following remarks regarding prosecutorial misconduct in closing arguments:

While attorneys are allowed wide latitude in presenting their cases to a jury, "prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury." Sheppard v. State , 777 So.2d 659, 661 (¶ 7) (Miss. 2000) (citing Hiter v. State , 660 So.2d 961, 966 (Miss. 1995) ). The standard of review for "lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Slaughter v. State , 815 So.2d 1122, 1130 (¶ 45) (Miss. 2002) (citing Sheppard , 777 So.2d at 660 (¶ 7) ).
To determine whether a prosecutor's closing remarks were reversible error, this Court applies the two-part test adopted in Spicer v. State , 921 So.2d 292, 318 (¶ 55) (Miss. 2006) (modified by Brown v. State , 986 So.2d 270, 286 (¶ 16) (Miss. 2008), and partially abrogated by O'Connor v. State , 120 So.3d 390, 400-01 (¶¶ 28-29) (Miss. 2013) ). First, we review the remarks to determine if they were improper. Id. If so, then we analyze whether the remarks prejudicially affected the rights of the accused. Id. "It must be clear beyond a reasonable doubt that absent the prosecutor's comments, the jury could have found the defendant guilty." Id.
Before applying this test, we must determine if defense counsel objected to the statement or if defense counsel invited the statement in light of the surrounding circumstances. Id. at 317-18 (¶¶ 52-53)."[I]f no contemporaneous objection is made, the error, if any, is waived." Slaughter , 815 So.2d at 1130-31 (¶ 47) (quoting Walker v. State , 671 So.2d 581, 597 (Miss. 1995) ).

Furthermore, "a prosecutor is prohibited from stating his personal opinion as to the veracity of a witness." Palmer v. State , 878 So.2d 1009, 1012 (¶ 9) (Miss. Ct. App. 2004) (citations omitted). "Typically, this type of prohibited statement occurs when a prosecutor attempts to vouch for or bolster a State witness by commenting in closing argument that the witness was telling the truth." Stokes v. State , 141 So.3d 421, 427 (¶ 23) (Miss. Ct. App. 2013) (citation omitted).

¶ 44. An appellate court may review an issue notwithstanding a procedural bar if the court finds that there is plain error. McGee v. State , 953 So.2d 211, 215 (¶ 8) (Miss. 2007). "A review under the plain error doctrine is necessary when a party's fundamental rights are affected, and the error results in a manifest miscarriage of justice." Id. (citation omitted). "To determine if plain error has occurred, we must determine 'if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.' " Id. (quoting Cox v. State , 793 So.2d 591, 597 (¶ 22) (Miss. 2001) ). However, the plain-error exception to the contemporaneous-objection rule is to be used sparingly, "solely in those circumstances in which a miscarriage of justice would otherwise result." Stokes , 141 So.3d at 427-28 (¶ 26) (quoting United States v. Frady , 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ).

¶ 45. The State argues that Isaac is procedurally barred from raising the issue of prosecutorial misconduct because there was no objection made, contemporaneously or otherwise, to the allegedly prejudicial remarks. In response, Isaac argues that the prosecutor's misconduct constitutes plain error, in that the prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo , 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).

¶ 46. During closing arguments, the prosecutor stated:

They wanted to say that [Latham] is a bad kid, that [Latham] got off the bus early, that [Latham] lied to the bus driver, said he was going to Greenville High, that [Latham] lied to his mom and said, "Mom, I'm not really hanging out with those guys.["] [Latham] is a 15-year-old boy. That's what 15-year-olds do. The simple fact of the matter is, ladies and gentlemen, [Latham] didn't take an oath to that bus driver to tell the truth, the whole truth, and nothing but the truth. [Latham] didn't take an oath to his mother to tell the truth, the whole truth, and nothing but the truth. But, ladies and gentlemen, you saw [Latham] stand here and swear to tell the truth, the whole truth, and nothing but the truth. And you know who he told that truth, the whole truth, and nothing but the truth to? Each and every one of you.

Additionally, Isaac contends that the prosecutor wrongfully emphasized that Latham could be trusted because he came forward, and that the prosecutor wrongfully emphasized that Latham voluntarily came forward with his statement to police.

¶ 47. Suffice it to say that, based on the arguments made by the defense, the prosecutor's comments were a proper response to those arguments. This issue is without merit.

¶ 48. In summary, we find no reversible error. Even if the traffic top were illegal-and we have not found that it was-and the evidence obtained as a result of it tainted as fruit of the poisonous tree, there was still sufficient untainted evidence to sustain the jury's verdict. The evidence taken from the trunk of the blue Impala was only part of the damning evidence against the Appellants. No claim is made that the evidence removed from the Ada Street address pursuant to the search warrant was in any way inadmissible. And, as discussed, the circuit court's error in refusing to allow impeaching testimony from Alex did not deny Appellants a fair trial or have the probable effect of impacting the verdict. Accordingly, we affirm the judgment of the circuit court.

¶ 49. THE SEPARATE JUDGMENTS OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF EACH APPELLANT OF COUNT I, BURGLARY OF A DWELLING; COUNT II, ARMED ROBBERY; AND COUNT III, KIDNAPPING, AND CONSECUTIVE SENTENCES OF TWENTY-FIVE YEARS, THIRTY-EIGHT YEARS, AND THIRTY YEARS, RESPECTIVELY; AND THE ADDITIONAL CONVICTION OF APPELLANT MEEKCO JOHNSON OF COUNT IV, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND CONSECUTIVE SENTENCE OF TEN YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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

      The record includes several spellings of Meekco's name; we will use "Meekco," as it is spelled in the indictment.

      For the sake of clarity, we will refer to the three defendants in this matter by their first names.

      For efficiency, we combine analysis of Meekco's argument with Trevontae's argument that the trial court erred in refusing to allow a police investigative report into evidence for the purpose of impeaching Latham, as the two are substantially similar. Meekco also argues that his right to present a defense was limited by the trial court's erroneous exclusion of one of the defense's rebuttal witnesses, Alex Johnson, who would have testified that Latham was in a gang. We combine this argument with Isaac's argument that the trial court erred in excluding one of the defense's rebuttal witnesses.

      For efficiency, we combine analysis of Isaac's argument with Meekco's argument that the trial court erred in denying his motion to suppress the evidence obtained from the allegedly unlawful traffic stop, as the two are substantially similar.

      Latham's statement was given to Officer Jeremy Arendale of the Greenville Police Department and was audio recorded.

      No evidence of the text-message-group thread or alleged photographs were produced at trial.

      As the language of these two provisions is nearly identical, we will refer to both in conjunction as the "Fourth Amendment" throughout the remainder of this opinion.

      One of the guns-a .22-caliber rifle-was never located.


source: Caselaw Access Project

author: CARLTON, J., FOR THE COURT:

license: Public Domain

text:
    In the Matter of the ESTATE OF Louis LABASSE, Jr., Deceased: Wendy Chester, Individually and as Executrix of the Estate of Louis Labasse, Jr., Appellant v. Ruby D. LABASSE, Appellee
    NO. 2016-CA-00414-COA
    Court of Appeals of Mississippi.
    September 12, 2017 Rehearing Denied February 20, 2018 Certiorari Denied May 3, 2018
    ATTORNEY FOR APPELLANT: G. CHARLES BORDIS IV
    ATTORNEY FOR APPELLEE: JAMES L. GRAY
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Louis Labasse Jr. died on June 11, 2014. He was survived by his wife, Ruby Labasse, and his daughters from a prior marriage, Wendy Chester and Pamela Ortis.

The Pearl River County Chancery Court granted Wendy's petition to probate her father's last will and testament and to be appointed executor of his estate. Throughout the probate proceedings, Ruby filed multiple petitions and motions requesting various relief. Aggrieved by the chancellor's grant of relief to Ruby, Wendy appeals and argues the chancellor erred by: (1) considering Ruby's petition to contest the will; (2) ruling upon the final accounting, the petition to close the estate, and Ruby's objections to the final accounting; (3) awarding Ruby a one-third interest in Louis's estate; (4) ruling on Ruby's "Motion for Citation of Contempt" against Wendy; and (5) awarding Ruby attorney's fees. Through two motions filed at the same time as her appellate brief, Ruby raises additional issues for this Court's consideration: (1) whether Pamela should be dismissed as an appellant from this appeal; and (2) whether she is entitled to attorney's fees and expenses on appeal.

¶ 2. Upon review, we affirm the chancellor's judgment. We also find Ruby's motion to dismiss Pamela as an appellant is well taken, and we therefore dismiss Pamela in this matter. However, although Wendy's claims on appeal ultimately prove unsuccessful, we decline to find her appeal frivolous. We therefore deny Ruby's motion for attorney's fees and expenses on appeal.

FACTS

¶ 3. On May 22, 2014, less than a month before his death, Louis published and declared an instrument that purported to be his last will and testament. Subject to certain restrictions, the will left Ruby a life estate in real property that served as the couple's homestead. Ruby also received Louis's interest in the couple's joint checking account. Louis's daughters Wendy and Pamela received the remainder of Louis's property. On July 18, 2014, Wendy filed a petition to probate her father's will and to be appointed executor of his estate. On July 24, 2014, the chancellor entered an order to admit the will to probate in common form and to appoint Wendy executor.

¶ 4. On October 10, 2014, Ruby renounced the bequest and devise of the probated will and filed a spousal-share election pursuant to Mississippi Code Annotated section 91-5-25 (Rev. 2013). The following month, on November 20, 2014, Ruby filed a petition to contest the will and remove Wendy as executor, and she requested an accounting and a widow's allowance. The same day, Ruby also filed a petition to establish her widow's right to the possession and use of the couple's homestead.

¶ 5. On February 11, 2015, the chancellor entered an order on Ruby's various petitions. The chancellor found that Wendy had changed the locks on Louis and Ruby's homestead and had removed property from the homestead. In addition, the chancellor determined that, prior to Louis's death, Wendy used a power of attorney to write checks to herself and withdraw $24,795.98 in funds from Louis and Ruby's joint checking account. In her February 11, 2015 order, the chancellor (1) dismissed Ruby's petition to contest the will after acknowledging that Ruby had withdrawn the petition; (2) denied Ruby's petition for a widow's allowance; (3) denied Ruby's petition to remove Wendy as executor, subject to Wendy's compliance with the requirements the chancellor established in the order; (4) granted Ruby's petition to establish her right to the possession and use of the homestead; and (5) granted Ruby a spousal-share election and awarded her a one-third interest in Louis's estate. In addition to the other requirements, the chancellor ordered Wendy to return all the personal property she had removed from the homestead and to deliver the homestead keys to Ruby.

¶ 6. On May 18, 2015, Ruby filed a "Motion for Citation of Contempt" against Wendy, claiming that Wendy had willfully disobeyed the chancellor's February 11, 2015 order. Following a hearing on Ruby's contempt motion, the chancellor entered an agreed order that, among other things, directed Wendy, as estate executor, to file an inventory and accounting, place certain funds into the account for Louis's estate, and pay Ruby attorney's fees related to the contempt action.

¶ 7. On July 2, 2015, Wendy filed her inventory and accounting, to which Ruby timely objected. At a telephonic hearing, the chancellor ruled that, in lieu of ordering Wendy to deposit certain funds into the estate account, she would award Ruby a monetary judgment against Wendy. Thus, on September 2, 2015, the chancellor entered an order awarding Ruby $18,795.98 plus interest against Wendy for Wendy's failure to comply with the chancellor's earlier order. The chancellor reserved a ruling on Ruby's request for attorney's fees until the close of Louis's estate.

¶ 8. On November 24, 2015, after Wendy failed to comply with the chancellor's order to file a final accounting and close the estate, the attorney for the estate signed and filed the final accounting and the petition to close the estate and discharge Wendy as executor. On February 8, 2016, the chancellor granted the petition to close the estate. Aggrieved by the chancellor's grant of Ruby's various requests for relief, Wendy appeals.

STANDARD OF REVIEW

¶ 9. This Court declines to disturb a chancellor's factual findings unless the findings were manifestly wrong or clearly erroneous or the chancellor applied an erroneous legal standard. Turnage v. Brooks , 213 So.3d 103, 105 (¶ 2) (Miss. Ct. App. 2016). "As long as substantial evidence supports the chancellor's findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter." Id. (citing Joel v. Joel , 43 So.3d 424, 429 (¶ 14) (Miss. 2010) ). However, we review questions of law de novo. Id.

DISCUSSION

I. Whether Pamela should be dismissed as an appellant.

¶ 10. As an initial matter, we address the issue raised in Ruby's motion that Pamela should be dismissed as an appellant from this appeal. Mississippi Code Annotated section 11-51-3 (Rev. 2012) provides for an appeal "from any final judgment of a circuit or chancery court in a civil case, not being a judgment by default, by any of the parties or legal representatives of such parties ...." (Emphasis added). The Mississippi Supreme Court has explained that "statutes which allow a 'party' to appeal, as a rule, limit the right to those who were original parties to the action or proceeding." Ridgway v. Scott , 237 Miss. 400, 405, 114 So.2d 844, 845 (1959) (citation omitted). As Ruby correctly asserts, Pamela was never a party to this matter at the trial level and only purportedly became a party once the matter was appealed. We therefore grant Ruby's motion to dismiss Pamela as an appellant from this appeal. We next turn to a review of Wendy's various assignments of error before addressing the final issue Ruby raises in her second motion.

II. Whether the chancellor erred by considering Ruby's petition to contest the will.

¶ 11. Wendy argues the chancellor erred by "considering, hearing, and adjudicating"

Ruby's petition to contest the will. According to Wendy, error occurred because Ruby failed to join Pamela as a necessary party to the will contest. See Garrett v. Bohannon , 621 So.2d 935, 937 (Miss. 1993) (recognizing that a decedent's heirs-at-law generally constitute necessary and interested parties to a will contest). However, as just discussed, the record reflects that Pamela was never a party to this matter in chancery court. In addition, the chancellor's February 11, 2015 order reflects that Ruby withdrew her petition to contest the will and that the chancellor thereafter dismissed the petition without prejudice. Thus, despite Wendy's assertions, the record fails to demonstrate that the chancellor ever considered, heard, or adjudicated the merits of Ruby's petition to contest the will. In fact, as Wendy herself admits, no hearing was ever conducted in open court, and "no evidence in the form of exhibits or live testimony on the record was presented." For these reasons, we find this assignment of error lacks merit.

III. Whether the chancellor erred by ruling upon the final accounting, the petition to close the estate, and Ruby's objections to the final accounting.

¶ 12. Wendy next argues that the chancellor erred by considering the final accounting, the petition to close the estate, and Ruby's objections to the final accounting. Wendy contends that the final accounting and the petition to close the estate were neither signed by her nor contained "a statement under oath [that] set forth the names and addresses of [Louis's] devisees, legatees[,] and [heirs-at-law.]" Wendy further argues that, after the filing of the final accounting and the petition to close the estate, no summons ever issued for Pamela, Pamela was never served with process, no notice of hearing ever issued, and the chancellor never conducted a hearing. Finally, Wendy claims that, "[d]espite the fact that the heirs and creditors were never listed in the pleadings and never served with process, the [chancellor] proceeded without a hearing and entered a [']Final Order Closing the Estate[,'] which awarded Ruby ... a one-third (1/3) interest in real estate."

¶ 13. The record shows that, pursuant to her February 11, 2015 order, the chancellor ordered Wendy, as executor, to file an estate inventory and accounting. However, Wendy failed to do so, which partially prompted Ruby to file her May 18, 2015 "Motion for Citation of Contempt." On June 8, 2015, the chancellor entered an agreed order directing Wendy to file the inventory and accounting "within ten ... days[ or] on or before June 18, 2015[,]" and to "take all necessary steps to properly administer and close [the estate] by August 30, 2015." The chancellor then entered a second agreed order granting Wendy an extension until July 3, 2015, to file the inventory and accounting. On July 2, 2015, Wendy filed the inventory and accounting, to which Ruby timely objected. In her September 2, 2015 order on Ruby's objections, the chancellor awarded Ruby a judgment against Wendy and directed Wendy to "take all necessary steps to properly administer and close [the estate] by September 30, 2015." However, the final accounting and the petition to close the estate and discharge Wendy as the executor were not filed until November 24, 2015. As the parties agree, these documents were signed by the estate attorney alone.

¶ 14. Our supreme court has explained that "[a]n appellant cannot complain on appeal of alleged errors which he invited or induced." Ill. Cent. R.R. Co. v. Jackson , 179 So.3d 1037, 1044 (¶ 15) (Miss. 2015) (quoting HWCC-Tunica Inc. v. Jenkins , 907 So.2d 941, 942 (¶ 4) (Miss. 2005) ). The record reveals that Wendy repeatedly failed to comply with the chancellor's orders. As executor, Wendy bore a responsibility to administer and close the estate, and she cannot now complain of errors she caused by failing to properly fulfill her duty. Furthermore, the record shows that Wendy failed to object-either contemporaneously or through posttrial motions-to the estate attorney signing and filing the final accounting and the petition to close the estate. As our caselaw clearly states, "a trial judge cannot be put in error on a matter which was never presented to [her] for decision." City of Hattiesburg v. Precision Constr. LLC , 192 So.3d 1089, 1093 (¶ 18) (Miss. Ct. App. 2016) (citation and internal quotation marks omitted). Accordingly, we find this assignment of error lacks merit.

IV. Whether the chancellor erred by awarding Ruby a one-third interest in Louis's estate.

¶ 15. Wendy next asserts that the chancellor erred by awarding Ruby a one-third interest in Louis's estate after allowing Ruby to renounce Louis's will and file a spousal-share election.

¶ 16. Section 91-5-25 allows a widow to renounce her husband's will and to instead elect her legal share of her husband's estate. As section 91-5-25 states:

When a husband makes his last will and testament and does not make satisfactory provision therein for his wife, she may, at any time within ninety (90) days after the probate of the will, file in the office where probated a renunciation to the following effect, viz.: "I, A B, the widow of C D, hereby renounce the provision made for me by the will of my deceased husband, and elect to take in lieu thereof my legal share of his estate." Thereupon she shall be entitled to such part of his estate, real and personal, as she would have been entitled to if he had died intestate[.]

¶ 17. As discussed, Wendy filed a petition in Pearl River County Chancery Court to probate her father's will, and the chancellor granted the petition on July 24, 2014. Within the ninety-day time period established by section 91-5-25, Ruby filed in the same chancery court a renunciation of the provision made for her in the will and her intention to elect her spousal share. Although the record before us contains no trial transcript, the chancellor's February 11, 2015 order acknowledged that she conducted a hearing on Ruby's renunciation and spousal-share election. The chancellor's order further found that Ruby had complied with section 91-5-25 in electing her spousal share. As a result, pursuant to section 91-5-25, the chancellor awarded Ruby a one-third interest in Louis's estate. See Robert A. Weems, Mississippi Practice Series: Wills and Administration of Estates in Mississippi § 6:6 (3d ed. 2003) ("Where the deceased spouse left two children, [the surviving spouse's legal share] is one-third." (citing Miss. Code Ann. § 91-5-25 )).

¶ 18. Despite Wendy's argument that the chancellor erred by awarding Ruby a one-third interest in Louis's estate, we find that substantial evidence supports the chancellor's judgment. See Turnage , 213 So.3d at 105 (¶ 2). As a result, we find this assignment of error lacks merit.

V. Whether the chancellor erred by ruling on Ruby's "Motion for Citation of Contempt" against Wendy.

¶ 19. On May 18, 2015, Ruby filed a "Motion for Citation of Contempt" against Wendy, in Wendy's capacity as estate executor. The chancellor subsequently entered an order awarding Ruby attorney's fees against Wendy, as executor of the estate. On appeal, Wendy asserts the chancellor's order violated her individual due-process rights because she never received proper notice of the contempt action. She therefore asks this Court to reverse the chancellor's order.

¶ 20. As an initial matter, we note that Ruby argues her May 18, 2015 filing was a "motion." She further argues the filing was governed by and complied with the service requirements of Rule 5 of the Mississippi Rules of Civil Procedure. However, Ruby's "motion" actually constituted a petition for contempt and was therefore subject to the service requirements established in Rule 81 of the Mississippi Rules of Civil Procedure. See Pearson v. Browning , 106 So.3d 845, 849 (¶¶ 15-18) (Miss. Ct. App. 2012).

¶ 21. "Calling a 'petition for contempt' a 'motion' and using motion procedures with contempt actions is incorrect according to Rule 81." Pearson , 106 So.3d at (¶ 17) (citing Harris v. Harris , 879 So.2d 457, 458 n.1 (Miss. Ct. App. 2004) ). "Motions may be served by first-class mail." Id. at (¶ 18) (citing M.R.C.P. 5(b) ). However, "[t]he procedural mechanisms that apply to motions do not apply to contempt matters." Id. (citing Sanghi v. Sanghi , 759 So.2d 1250, 1256 (¶ 30) (Miss. Ct. App. 2000) ). "[I]n Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective. Actual notice does not cure defective process." Clark v. Clark , 43 So.3d 496, 499 (¶ 12) (Miss. Ct. App. 2010) (internal citations omitted).

¶ 22. The record here reflects that Ruby's attorney mailed a copy of the contempt "motion" to the estate attorney and that the chancery court issued a Rule 81(d) summons to Wendy in "care of" the estate attorney. These actions, however, failed to constitute proper service of process. Our caselaw and rules of civil procedure establish that Wendy, not the estate attorney, should have been served with Ruby's contempt "motion" and the Rule 81 summons. See M.R.C.P. 4 ; M.R.C.P 81 ; Sanghi , 759 So.2d at 1255-58 (¶¶ 27-37). Having found that Ruby failed to properly serve notice to Wendy of her contempt action, we next determine whether Wendy waived the issue for appeal.

¶ 23. "It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal." Taylor v. Taylor , 201 So.3d 420, 421 (¶ 6) (Miss. 2016) (citations omitted). Mississippi caselaw has also repeatedly held that a defendant who appears and defends against the merits of a Rule 81 matter without asserting his or her objection to insufficient service waives the claim for appeal. See Reasor v. Jordan , 110 So.3d 307, 311-12 (¶¶ 14-17) (Miss. 2013) ; Dennis v. Dennis , 824 So.2d 604, 610-11 (¶¶ 16, 18) (Miss. 2002) ; Chasez v. Chasez , 935 So.2d 1058, 1062 (¶ 12) (Miss. Ct. App. 2005). See also Schustz v. Buccaneer Inc. , 850 So.2d 209, 213 (¶ 15) (Miss. Ct. App. 2003) ("[A] defendant appearing and filing an answer or otherwise proceeding to defend the case on the merits in some way-such as participating in hearings or discovery-may not subsequently attempt to assert jurisdictional questions based on claims of defects in service of process.").

¶ 24. As previously discussed, Ruby filed her contempt "motion" against Wendy in her capacity as estate executor. The attorney for Louis's estate, on Wendy's behalf, then filed a response to Ruby's contempt "motion." The response presented a defense on the merits of Ruby's Rule 81 contempt action without asserting an objection to the sufficiency of the service of the "Motion for Citation of Contempt." The record further reflects that, along with the estate attorney, Wendy, as estate executor, electronically signed the response to the contempt "motion." The chancellor subsequently entered an order on June 8, 2015, which, among other things, directed Wendy to pay Ruby's attorney's fees related to the contempt action.

¶ 25. Despite participating in the response to the merits of Ruby's Rule 81 contempt action without objecting to defective service, Wendy still contends on appeal that the record shows a clear violation of her due-process rights. To support her claim, Wendy points to a letter the court reporter below sent to the Mississippi Supreme Court Clerk's Office, in which the court reporter stated she found no recorded proceedings in the instant matter. According to Wendy, this letter demonstrates "[t]here was definitely no hearing conducted or evidence received by the [chancellor]" related to the contempt action.

¶ 26. In addressing Wendy's assertions, we first note that, at the beginning of her June 8, 2015 order, the chancellor acknowledged that the matter before her had "come on for consideration at the joint request of the parties" and that she had reached her decision after "having been fully advised in the premises" of the matter. The chancellor then went on to award attorney's fees to Ruby and direct Wendy to take certain other specified actions. In addition, the chancellor entered a subsequent "agreed order" on July 2, 2015, in which she granted Wendy an extension to comply with the obligations imposed in the June 8, 2015 order. The record reflects that, without asserting any objection to the chancellor's previous order awarding attorney's fees, both Ruby's attorney and the estate attorney, on behalf of Wendy as the executor, signed the July 2, 2015 agreed order. In addition, in referencing the earlier order that awarded attorney's fees, the chancellor's July 2, 2015 order once again acknowledged that the matter before her had "come on for consideration at the joint request of the parties[.]"

¶ 27. Upon review, we find that, despite the improper service of Ruby's Rule 81 contempt action, Wendy failed to raise the issue at her "first opportunity" or at any time thereafter in the proceedings before the chancellor. See Chasez , 935 So.2d at 1062 (¶ 12) ; S & M Trucking LLC v. Rogers Oil Co. of Columbia , 195 So.3d 217, 223 (¶ 24) (Miss. Ct. App. 2016). Wendy not only participated in responding to the merits of the contempt action without objecting to the defective service, but the estate attorney, on Wendy's behalf, also signed a subsequent agreed order without raising the issue. As a result, we conclude that Wendy has waived the issue for appeal. See Reasor , 110 So.3d at 311-12 (¶¶ 14-17) ; Dennis , 824 So.2d at 610-11 (¶¶ 16, 18) ; Chasez , 935 So.2d at 1062 (¶ 12). We therefore find this argument lacks merit.

VI. Whether the chancellor erred by awarding Ruby attorney's fees.

¶ 28. In her June 8, 2015 order, the chancellor ordered Wendy, as estate executor, to pay $1,500 in attorney's fees related to Ruby's action for contempt. On appeal, Wendy now challenges the award of attorney's fees.

¶ 29. Our caselaw establishes that contempt matters, including whether to award related attorney's fees, are matters largely within a chancellor's discretion. See Gardner v. Gardner , 130 So.3d 1162, 1167 (¶ 21) (Miss. Ct. App. 2013) ; McDonald v. McDonald , 850 So.2d 1182, 1192 (¶ 36) (Miss. Ct. App. 2002). "Awarding costs and attorney[']s fees because a contemptuous party has necessitated the holding of a hearing to enforce a prior order of the court is appropriate." McDonald , 850 So.2d at 1192 (¶ 40) (citing Mount v. Mount , 624 So.2d 1001, 1005 (Miss. 1993) ). As this Court has explained:

[I]n contempt actions, a chancellor is justified in awarding attorney's fees that are incurred in pursuing a contempt motion. Although chancellors are instructed to apply the factors in McKee v. McKee , 418 So.2d 764 (Miss. 1982), when granting or denying attorney's fees, this Court has held that establishment of the McKee factors is not necessary for a contemnee to recover attorney's fees where the contemnor has willfully violated a lawful court order. A specific finding of inability to pay is not required when attorney's fees are assessed against a party found to be in contempt.

Vincent v. Rickman , 167 So.3d 245, 251 (¶ 22) (Miss. Ct. App. 2015) (internal citations and quotation marks omitted).

¶ 30. In her May 18, 2015 "Motion for Citation of Contempt," Ruby asserted that Wendy had willfully disobeyed the chancellor's February 11, 2015 order. After a hearing on the matter, the chancellor awarded Ruby $1,500 in attorney's fees for the necessity of filing the contempt action. Because the record indeed reflects that Wendy failed to comply with the chancellor's prior order, we find sufficient evidence to support the chancellor's award of attorney's fees related to Ruby's action for contempt. See id. at 252 (¶ 24). We therefore find no abuse of discretion. Id. As a result, this assignment of error lacks merit.

VII. Whether Ruby is entitled to attorney's fees and expenses on appeal.

¶ 31. As previously stated, along with her brief, Ruby filed two motions on appeal. In addition to requesting Pamela's dismissal as an appellant, Ruby argues she is entitled to attorney's fees and expenses because Wendy's claims on appeal are frivolous. Although we conclude that Wendy's assignments of error lack merit, we find that she raised a nonfrivolous issue. We therefore decline to find her appeal frivolous.

¶ 32. Furthermore, in asserting her claim to attorney's fees and expenses on appeal, Ruby fails to cite any relevant statutory law, caselaw, or rules. See Miss. Code Ann. § 11-55-5 (Rev. 2012); M.R.A.P. 11 ; M.R.A.P 38. Instead, she cites two divorce cases in which the court awarded appellate attorney's fees either based on the husband's failure to prosecute the appeal or the wife's inability to pay. See Bullock v. Bullock , 201 Miss. 180, 183, 29 So.2d 79, 79 (1947) ; Hall v. Hall , 77 Miss. 741, 741, 27 So. 636, 637 (1900). Our supreme court has previously declined to award attorney's fees where the party making the request cited no "authority beyond the bare code section and rule numbers" and failed to argue the point. Theobald v. Nosser , 784 So.2d 142, 147 (¶ 15) (Miss. 2001).

¶ 33. Because we find that Wendy asserted a nonfrivolous issue on appeal, and because Ruby failed to cite relevant authority to support her claim, we deny Ruby's request for attorney's fees and expenses on appeal.

¶ 34. AFFIRMED.

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

      See Miss. Code Ann. § 91-7-49 (Rev. 2013) (discussing the executor's duty to publish notice so creditors can probate their claims); In re Estate of Carter , 912 So.2d 138, 144 (¶ 21) (Miss. 2005) (stating that an executor is an officer of the court, has a fiduciary relationship to all parties with an interest in the estate, and is held to the same standard of care as a general trustee).

      See Harper v. Harper , 491 So.2d 189, 194 (Miss. 1986) (holding that an executor must act in good faith and employ the same vigilance, diligence, and prudence a person of intelligence and discretion would employ in the management of his own affairs).

      See also M.R.A.P. 28(a)(7) ("The argument shall contain the contentions of [the party] with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.").


author: LEE, C.J., FOR THE COURT:

text:
    Jess GREEN a/k/a Jess Lee Green a/k/a Jess L. Green, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00197-COA
    Court of Appeals of Mississippi.
    September 19, 2017 Rehearing Denied February 6, 2018 Certiorari Denied May 10, 2018
    ATTORNEY FOR APPELLANT: JESS GREEN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
    EN BANC.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal, we must determine whether the trial court erred in finding Jess Green's motion for postconviction relief (PCR) was time-barred and without merit. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. On August 4, 2008, in the Jackson County Circuit Court, Green pleaded guilty in cause number 2007-11,197 to two counts of kidnapping, two counts of sexual battery, and one count of armed robbery. Green was ordered to serve thirty years for each count in the custody of the Mississippi Department of Corrections, with the sentences to be served concurrently with each other.

¶ 3. Green filed a PCR motion on July 27, 2015. The trial court denied Green's PCR motion in part, finding that most of Green's claims were time-barred and lacked merit. However, the trial court requested more information from the State regarding possible trace evidence recovered from one victim's car and whether this evidence was tested or capable of being tested. The State responded that no such evidence was collected. The trial court then denied Green's remaining claim and dismissed his PCR motion with prejudice.

¶ 4. Green now appeals, asserting the trial court erred in finding the following issues were time-barred and/or without merit: (1) the accuracy of his presentence investigation report (PSI); (2) the reliability of the DNA results in both cause numbers; (3) the voluntariness of his guilty plea; (4) the denial of seventeen additional claims; (5) the denial of his motion for a default judgment; (6) the denial of his motion for recusal; and (7) the denial of his motion for appointment of counsel.

STANDARD OF REVIEW

¶ 5. When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's decision if the trial court abused its discretion and the decision is clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review. Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012).

DISCUSSION

¶ 6. We first note that Green has sought PCR relief from more than one conviction. Mississippi Code Annotated section 99-39-9(2) (Rev. 2015) limits a PCR motion "to the assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions." We have held that this means that "a separate motion for [PCR] must be filed for each cause number or conviction." Bell v. State , 2 So.3d 747, 749 (¶ 5) (Miss. Ct. App. 2009). And we have found "[t]his rule applies even when ... the multiple convictions were imposed in the same plea hearing and sentencing order."

Rigdon v. State , 126 So.3d 931, 934 (¶ 6) (Miss. Ct. App. 2013) ; see also Hundley v. State , 803 So.2d 1225, 1229 (¶ 9) (Miss. Ct. App. 2001). However, the Mississippi Supreme Court recently declared this restriction unconstitutional, finding that our Constitution "grants the Legislature no power to limit the number of claims a litigant may plead in a particular hearing." Ashwell v. State , 2015-CT-00023-SCT, 226 So.3d 69, 72 (¶ 9), 2017 WL 3641243, at *2 (¶ 9) (Miss. Aug. 24, 2017) (mandate issued Sept. 14, 2017). The supreme court declined "to impose any such rule which ... unnecessarily would require duplicate filings." Id.

¶ 7. In Ashwell , the defendant filed a PCR motion attacking two convictions. Id. at 70-71 (¶ 4), at *1 (¶ 4). The trial court denied relief from one conviction on the merits and from the other conviction because the defendant attacked both convictions in the same PCR motion. Id. The supreme court found this was error. See id. at 71-72 (¶ 9), at *2 (¶ 9). As a result, we find Green's PCR motion is not procedurally barred for challenging more than one judgment.

¶ 8. However, Green's PCR motion is time-barred, as he pleaded guilty in 2008 and filed his first PCR motion in 2015, well after the three-year statute of limitations set forth in Mississippi Code Annotated section 99-39-5(2) (Rev. 2015). Nevertheless, we will address the merits of Green's appeal to determine whether he meets any exceptions to the procedural bar. See § 99-39-5(2)(a)-(b) (statutory exceptions to the time-bar); Rowland v. State , 42 So.3d 503, 507 (¶ 12) (Miss. 2010) ("[E]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Postconviction Collateral Relief Act (UPCCRA) ].").

I. Presentence Investigation Report

¶ 9. Green argues that his PSI report was inaccurate. The trial court determined that the use of PSI reports was discretionary, not mandatory; thus, Green had no right to a PSI report, and the procedural bar applied. We agree. A defendant does not have a right to a PSI. Roberson v. State , 595 So.2d 1310, 1315 (Miss. 1992). Since no statutory exception applies and Green's fundamental constitutional rights have not been implicated, the time-bar applies.

II. DNA Results

¶ 10. Green argues that the DNA results in both cause numbers were unreliable; thus, the DNA evidence should be subject to additional testing. To overcome the time-bar, Green must show that

there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.

§ 99-39-5(2)(a)(ii). However, Green has failed to show how a different testing method would produce more probative results than the method originally used. We find no applicable exception to the procedural bar.

III. Involuntary Plea

¶ 11. Green claims his plea was involuntary. However, "[t]he time-bar includes a movant's PCR claim based on the involuntariness of a guilty plea." Smith v. State , 196 So.3d 986, 996-7 (¶ 35) (Miss. Ct. App. 2015). Regardless of the time-bar, Green's claim is without merit. Green's plea colloquy shows that the judge thoroughly advised him of the various constitutional rights he was waiving by pleading guilty, and found that his plea was knowingly and intelligently entered. See Dockery v. State , 96 So.3d 759, 763 (¶ 17) (Miss. Ct. App. 2012) (noting that the judge must advise a defendant of his rights, the nature of the charges, and the consequences of the plea to determine if the plea was voluntarily and intelligently given). This issue is without merit.

IV. Additional Claims

¶ 12. Green lists sixteen additional claims that he argues are not time-barred: mental incompetence; newly discovered evidence; speedy trial; double jeopardy; right against self-incrimination; unlawful search and seizure; ineffective assistance of counsel; due-process violations; lack of an initial appearance; negative pretrial publicity; discovery violations; defective indictment; suggestive identification by the victim; improper consolidation of causes; "due process in sentencing"; and actual innocence. Of these additional claims, the majority are simply bare assertions with no additional information or supporting authority. Thus, we are not obligated to review these claims. Cummings v. State , 130 So.3d 129, 132 (¶¶ 10-11) (Miss. Ct. App. 2013). The other claims Green raises-speedy trial, right against self-incrimination, and unlawful search and seizure-were waived when Green pleaded guilty. See Jones v. State , 174 So.3d 902, 907 (¶ 11) (Miss. Ct. App. 2015).

¶ 13. Green does contend that he was incompetent to enter a guilty plea. However, nothing in the record indicates this issue was ever raised before or during Green's guilty plea. This issue is without merit.

V. Default Judgment

¶ 14. Green argues that the trial court should have granted his motion for a default judgment when he did not receive the State's response to his PCR motion by the assigned date.

¶ 15. Mississippi Code Annotated section 99-39-11(3) (Rev. 2015) states that "[i]f the [PCR] motion is not dismissed under subsection (2) of this section, the judge shall order the [S]tate to file an answer or other pleading within the period of time fixed by the court ...." Here, the trial court ordered the State to respond to Green's allegations regarding DNA testing within thirty days of February 3, 2016. The State filed its response on March 7, 2016. Green then filed an entry of default with the clerk's office and a motion for a default judgment shortly thereafter. The trial court denied Green's motion, noting the lack of an entry of default by the clerk's office and the fact that the State did respond. We find no abuse of discretion by the trial court in denying Green's motion for a default judgment.

VI. Motion for Recusal

¶ 16. Green contends the trial court erred in denying his motion for the trial judge's recusal. Green argues that the trial judge was biased because he also presided over Green's guilty-plea hearing in 2008. The judge denied Green's motion, finding that "the facts as alleged are insufficient to require recusal."

¶ 17. "A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality." Rice v. State , 134 So.3d 292, 299 (¶ 18) (Miss. 2014). "The judge is presumed to be qualified and unbiased, and the challenger bears the burden of overcoming this presumption." Id. However, "presiding over both guilty-plea and PCR proceedings, alone, does not create an appearance of impropriety." Holton v. State , 189 So.3d 697, 700 (¶ 12) (Miss. Ct. App. 2016). Green has failed to overcome the presumption that the judge was unbiased. This issue is without merit.

VII. Appointment of Counsel

¶ 18. In his final issue on appeal, Green argues that the trial court erred in denying his request for appointed appellate counsel. However, "a criminal defendant has neither a state nor a federal constitutional right to appointed counsel in postconviction proceedings." Watts v. State , 981 So.2d 1034, 1037 (¶ 6) (Miss. Ct. App. 2008). We cannot find the trial court abused its discretion in denying Green's request. This issue is without merit.

¶ 19. AFFIRMED .

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

      We reiterate that "[e]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA." Rowland , 42 So.3d at 508 (¶ 16). However, merely asserting "a constitutional right violation is not sufficient to overcome the time[-]bar." Stovall v. State , 873 So.2d 1056, 1058 (¶ 7) (Miss. Ct. App. 2004). "There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived." Crosby v. State , 16 So.3d 74, 79 (¶ 10) (Miss. Ct. App. 2009).