author: ROBERTS, J.,

text:
    Chester SMITH, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CA-01934-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2008.
    Rehearing Denied Sept. 1, 2009.
    Certiorari Denied Dec. 17, 2009.
    John D. Watson, Southhaven, attorney for Appellant.
    Office of the Attorney General by Ladonna C.Holland, attorney for Appellee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Chester Smith, Jr., pled guilty to armed robbery. The DeSoto County Circuit Court originally sentenced Smith to thirty years in the custody of the Mississippi Department of Corrections with twenty years to serve followed by ten years post-release supervision. However, because the circuit court was concerned about remarks and nonverbal communications by Smith that could reasonably be interpreted as threatening, the circuit court did not file Smith’s sentencing order. Additionally, the circuit court instructed escorting authorities to report back if Smith made more threatening remarks. Two law enforcement officers heard Smith make threatening remarks while he was being transported to the DeSoto County Jail. The circuit court had Smith brought back before the court and sentenced Smith to serve thirty years in the custody of the MDOC with no portion of that sentence suspended.

¶ 2. Smith filed a motion for post-conviction collateral relief and argued that the circuit court violated his rights to due process. According to Smith, the circuit court failed to give him proper notice when the court resentenced him or revoked his prior sentence. Smith also argued that his sentence was grossly disproportionate to the crime he committed. The circuit court found Smith’s argument unpersuasive and denied Smith’s motion. Aggrieved, Smith appeals and claims the circuit court violated his due process rights when it amended the previous, unfiled sentencing order. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. The record indicates that Smith’s codefendant, Andrew Bledsoe, aimed a sawed-off shotgun at two men while Smith took their personal property. During Smith’s guilty plea hearing, one of the victims described the events as follows:

Your Honor, we were at the car wash, and when [Smith and Bledsoe] approached us, we had [a] conversation. They came back. We talked again, and then they came back with the gun. [Bledsoe] put a sawed[-]off shotgun to my side, and he said, “[g]ive me your money.” ... And then I handed him my wallet, and I turned to look at [the other victim] as Mr. Smith was steadily trying to take his arm off his watch [sic]. He took [the other victim’s] knife out of his pocket and started patting him down to try to find anything else. Mr. Smith got in my truck, tried to rip my CD player out, got every penny I had in my truck out [sic], went through my glove box, my glove compartment, and got my cell phone and an old cell phone that didn’t even work. And then they started — I heard one of them scream take his truck, but they never did, and he was rough with [the other victim], but Mr. Bledsoe, he was not rough with me. He just demanded me [sic], “[g]ive me your money.” So I simply handed him my wallet.

¶ 4. Bledsoe pled guilty and agreed to testify against Smith. In exchange, the prosecution agreed to recommend that Bledsoe receive a lenient sentence. The mother of Bledsoe’s child, Jamie Vinson, also agreed to testify against Smith. Their testimony was not necessary, because Smith pled guilty. The circuit court sentenced Bledsoe to thirty years in the custody of the MDOC with twenty years suspended and ten years to serve. The circuit court explained that Bledsoe was given “a great deal of consideration because of his cooperation and participation and early acceptance of his responsibility and his willingness to help the State with the case with [sic] Mr. Smith.”

¶ 5. Incident to Smith’s guilty plea, the circuit court sentenced Smith to thirty years in the custody of the MDOC with twenty years to serve followed by ten years post-release supervision. The circuit court added, “I do feel like that Mr. Smith was more in control in this situation and [the] more experienced, aged person, and I don’t feel like he’s been honest [with] the Court up here; and also, the Court can obviously take into consideration his entire record and the threats made to law enforcement officers.” The circuit court asked Smith whether he had “a problem with this.” Smith answered, “[n]o, sir.”

¶ 6. At that point, the circuit court observed, “you looked at your partner back there now like you want to do something to him, and then you looked at these boys over here again like you want to do something to them. Who do you want to do something to?” Smith answered, “Mo-body, Your Honor.” The circuit court then noted that Smith sent a letter to Vinson and posted Vinson’s social security number and birth date on the envelope. Smith’s letter to Vinson stated in part, “I sent your baby’s daddy [sic] weak a-out. Men do what they want [to] do. Boys do what they can.” The circuit court then recessed and stated for the record:

This is an unusual circumstance without [Smith] present, ... but I’ve instructed my court bailiff to go back there and tell the police officers, the deputy sheriffs [sic] taking him back to the jail, that I want to know anything and everything [Smith] says between here and the jail in case any more threats are made because this Court will not sign the sentencing order until after [it] gets a report back about what Mr. Smith’s conduct and statements were between here and the jail and when he gets back to the jail and will in fact retain jurisdiction for the purpose of changing the sentence and upping the sentence if more threats or violence towards police officers or such related incidents or statements are made or occur.
All right, I know this is a strange step, but the Court is extremely concerned about Mr. Smith’s behavior.

¶ 7. The circuit court reconvened later that same day and stated:

The Court’s been informed that, as the Court had concern when we sentenced him earlier about his demeanor here in court and his conduct, the Court instructed the court bailiffs to inform the Court if any other — any threats were made, and the Court is informed that something like that occurred.

The circuit court judge recognized that he had signed a sentencing order, but the order had not been entered into the minutes. Smith’s attorney objected, but the circuit court proceeded. At that point, Mike Philley of the DeSoto County Sheriffs Department testified that while Smith was in a holding room, Smith “made comments about killing somebody.” Deputy Philley also testified that Smith saw Vinson on the way to the county jail and said “he should have probably killed her.” Deputy Philley clarified that those were not Smith’s exact words and that Smith’s actual statement contained profanity. Deputy Philley had audio recording equipment in his patrol car. The recording equipment captured Smith’s statement, which was played for the circuit court.

¶ 8. Deputy Chris Cheslock also testified. According to Deputy Cheslock, as he left the courtroom with Smith, Smith said, “I should have killed the b-Additionally, as he escorted Smith down a set of stairs, Deputy Cheslock heard Smith say, “I should have killed the b -, a, and he better never let me out.”

¶ 9. The circuit court gave Smith an opportunity to be heard. Smith addressed the circuit court and explained as follows:

Your Honor, when I had left out [sic], I went back to the back, you know what I’m saying. I had told — I said, “[a]ll this time I got, I might as well kill myself.” The other officer took it the wrong way. He heard kill, and, you know, we had a little altercation.
So we go down there to the car and get in the car. When we passed by there, they were laughing and pointing and giggling like 20 years of my life, you know what I’m saying, is something small, something to look over. So that’s why I said what I said, but I’m not going to touch — I’m not a murderer or a robber. I’m not going to touch them [sic] folks.

The circuit court then sentenced Smith to thirty years in the custody of the MDOC. Unlike the circuit court’s initial sentencing order, the circuit court did not suspend any portion of Smith’s thirty-year sentence.

¶ 10. Smith subsequently filed a motion for post-conviction relief. Smith argued that his sentence was prohibitively and unnecessarily disparate to Bledsoe’s sentence as well as the sentences imposed on similar offenders in the same jurisdiction. Smith also argued that the circuit court violated his right to due process in that the circuit court did not provide his attorney with notice of what his attorney termed the “re[-]sentencing or revocation hearing.” Ultimately, the circuit court denied Smith’s motion. Smith now appeals.

STANDARD OF REVIEW

¶ 11. In reviewing a circuit court’s decision to deny a motion for post-conviction relief, we will not disturb the circuit court’s factual decisions unless they are clearly erroneous. Gatewood v. State, 909 So.2d 754, 756(¶3) (Miss.Ct.App.2005). However, we review questions of law de novo. Id.

ANALYSIS

I. WHETHER THE CIRCUIT COURT VIOLATED SMITH’S RIGHT TO DUE PROCESS.

¶ 12. According to Smith, the circuit court violated his rights to due process because his attorney did not receive written notice of what Smith terms his “resen-tencing” or, alternatively, the hearing on the “revocation of his suspended sentence.” However, as the State persuasively argues, Smith was not re-sentenced, nor was his suspended sentence revoked. The record plainly demonstrates that the circuit court only sentenced Smith once.

¶ 13. “[T]he date of rendition of the judgment of the circuit court in term time, as well as in vacation, is the date when the judgment is signed by the judge and filed with the clerk for entry on the minutes; or if the judgment is not signed by the judge, the rendition date is the date it appears on the minutes of the court.” Mitchell v. State, 792 So.2d 192, 214(¶ 83) (Miss.2001) (quoting Jackson v. Schwartz, 240 So.2d 60, 62 (Miss.1970)). Initially, the circuit court tentatively sentenced Smith to thirty years in the custody of the MDOC with twenty years to serve followed by ten years of post-release supervision. However, the circuit court was concerned by Smith’s threatening behavior, so it never filed the tentative sentencing order with the circuit clerk for entry on the minutes. Accordingly, the circuit court did not resentence Smith, nor did it revoke Smith’s suspended sentence.

¶ 14. Additionally, the State ably points out that even if we were to find that the circuit court resentenced Smith — which we expressly do not find — there would still be no error in the circuit court’s decision. As the circuit court judge noted in denying Smith’s motion for post-conviction relief, “a circuit court has ‘inherent authority’ to alter a sentence until a regular term of court expires.” Ales v. State, 921 So.2d 1284, 1286(119) (Miss.Ct.App.2006). See also Miss. Comm’n on Judicial Performance v. Russell, 691 So.2d 929, 944 (Miss.1997) (holding “there is no indication that circuit court judges have inherent authority to modify sentences after the end of the term of court during which the sentence [was] given.”). It follows that we find no merit to this issue.

II. WHETHER SMITH’S SENTENCE IS GROSSLY DISPROPORTIONATE TO THE SENTENCES FOR SIMILAR CRIMES IN THE SAME JURISDICTION.

¶ 15. Smith abandoned this issue. To be precise, Smith’s attorney stated, “[a]f-ter reviewing the requirements of Hoops v. State, 681 So.2d 521 (Miss.1996), Appellant concedes that he cannot overcome the burden to show that the sentence was grossly disproportionate.” Accordingly, we will not consider this issue. Suffice it to say, we find no reversible error.

¶ 16. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ„ CONCUR. KING, C.J., CONCURS IN RESULT ONLY.

      .Smith was twenty-five years old when the circuit court sentenced him. Bledsoe was nineteen years old. As for “the threats made to law enforcement officers,” testimony during Smith's guilty plea hearing indicated that during an unrelated incident, Smith was stopped for speeding in Memphis, Tennessee. After he was stopped, Smith was able to flee in his car. When authorities finally caught up to Smith, he fought multiple officers and injured at least two of them. After Smith was captured, he tried to kick out the window of a patrol car, spat in the backseat, and threatened violence against an officer and the officer's family.

      2. During an unrelated incident in Memphis, Tennessee, "[Smith] refused to stop for [the] police. He resisted arrest. I believe he kicked the car door. He cussed. He threatened the officers. He threatened violence to their persons when he got out of jail."

      . During Smith's initial sentencing hearing, the circuit court judge noted that he did not intend to sign Smith’s tentative sentencing order until after Smith was transported to the jail and the circuit court received word whether Smith made more threats. The record indicates that Smith's attorney did not hear the circuit court judge’s statement and— without any ill intent — presented a draft sentencing order. The record also indicates that the circuit court judge signed Smith's initial sentencing order under the mistaken impression that it was Bledsoe's sentencing order he was signing. In any event, the circuit court never entered Smith's initial tentative sentencing order into the clerk's minutes.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Jamie C. BOLDEN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00108-COA.
    Court of Appeals of Mississippi.
    April 7, 2009.
    Rehearing Denied Sept. 8, 2009.
    Certiorari Denied Dec. 17, 2009.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Jamie C. Bolden was convicted of sexual battery and sentenced to thirty years in the custody of the Mississippi Department of Corrections with ten years suspended and twenty years to serve, five years of post-release supervision, and registration as a sexual offender. He now appeals his conviction alleging the following errors: (1) he was irreparably prejudiced by improper opinion testimony; (2) violation of the witness-sequestration rule requires reversal; (3) the trial court erred in refusing the jury instruction regarding impeachment; and (4) the verdict was contrary to the weight of the evidence. We find each of these issues to be without merit; therefore, we affirm the trial court’s conviction and sentence.

FACTS

¶ 2. On September 25, 2004, Demetria Moore took her eight-year-old son, E.M., to a birthday party at Patricia Bolden’s home. A.B., a nine-year-old male, and D.B., an eleven-year-old male, were also attending. Patricia is Bolden’s grandmother. That night E.M. spent the night with A.B. at Patricia’s house after the party. Eighteen-year-old Bolden lived with his mother, Penny Bolden, at the house next door to where the birthday party was held. Bolden is a cousin of both A.B. and D.B., and although he is not related to E.M., all lived on Little Egypt Road in Benton County when the incident is alleged to have taken place.

¶ 3. The next day, Sunday, Demetria returned home from church and saw E.M. walking in front of their driveway with Bolden and Bolden’s two sisters. Demet-ria picked up E.M. and drove down their driveway to their home. After she and E.M. got out of the car, but before they could get inside their house, E.M. disclosed to his mother that Bolden had taken him, A.B., and D.B. into a wooded area off Little Egypt Road near a pipeline that runs through the area. E.M. told his mother that Bolden had sex with E.M. and D.B. He then forced A.B. and E.M. to have sex with each other.

¶ 4. Upon hearing this, Demetria got back into her car and went to Frank Bol-den’s house. A.B. and D.B. were sitting on the front porch of the home. She asked the boys what had happened that day, and they related the same account to Demet-ria. Demetria then traveled to Penny’s home. There, she told Penny that Bolden had “messed with” E.M. Demetria testified that Bolden’s mother had stated that “[t]his boy going to make me have a heart attack” upon hearing the news. Next, Demetria and E.M.’s father, Russell Hunt, took E.M. to the Tippah County Hospital where a rape kit was performed. Seminal fluids were found on E.M.’s buttocks.

¶ 5. At trial, the jury was shown a videotaped interview of E.M. conducted by the Family Crisis Center in Oxford approximately one week after the sexual assault. In the video, E.M. relates the same story he told his mother on the night of the incident, detailing how Bolden forced the boys to have sex with him as well as each other. The nurse who aided in the administration of the rape kit, Kelty Childs, also testified. She assisted Dr. Roger Marlin in following the protocol of the rape kit which involved a Woods lamp, a blue fluorescent light that makes sperm or seminal fluid glow when the overhead lights are turned off. She testified that she swabbed the area near E.M.’s rectum that had glowed under the fluorescent light and placed the swab in the rape kit package for evidence. A serologist from the Mississippi Crime Laboratory testified that the swabbed substance from the rape kit was seminal fluid. She also testified that the Woods lamp does not give false positives and only glows in relation to sperm or seminal fluid.

¶6. David Murphy with the Benton County Sheriffs Department testified that the sheriffs office had requested a DNA analysis after the serology report confirmed the presence of seminal fluid on the rape kit swabs taken from E.M. There was an insufficient sample for the Mississippi Crime Laboratory to determine the presence of DNA, but Scale Biolab, a private laboratory, was able to determine that the substance contained the DNA of E.M. and a second person. The sample was insufficient to determine the identity of the second person.

¶ 7. D.B. was called as a witness for the defense. On the stand, he testified that Bolden did not do anything to him, A.B., or E.M., but that Bolden had previously caught A.B. and E.M. in the woods and threatened to tell on them. D.B. testified that he and his mother, Lisa Bolden, had met with District Attorney Ben Creek-more on the day of trial, and Lisa was upset because D.B. was going to testify against Bolden knowing he might go to jail. Lisa and Bolden’s mother are sisters and are very close. D.B. did not remember telling Creekmore that the story he had related to the Family Crisis Center in Oxford was true, or that he was angry at Bolden when he made up the accusations against him. The day of the trial was the first time that D.B. claimed the accusations he made against Bolden were false.

¶8. Pammie Davidson was called as a rebuttal witness for the State. She is the victims’ advocate coordinator for the Benton County District Attorney’s Office. Her duties include preparing victims for trial. When it became apparent that D.B. was going to recant his statement, the State asked her to leave the courtroom so it could call her as a rebuttal witness. Prior to this time, it was not anticipated that she would be called as a witness, and she was not subjected to the sequestration rule. Because of her presence in the courtroom, Bolden objected to her testimony. The prosecutor advised the trial court that she left the courtroom almost immediately after D.B. took the stand. The trial court held that she could testify, but it would entertain any contemporaneous objections if testimony contradicted the State’s position that she was an unexpected witness. Bolden did not make any such contemporaneous objections while Davidson was on the stand.

¶ 9. Davidson testified that she had been present during the conversation before trial between D.B. and his mother, Lisa. Davidson said that Lisa had become very upset when D.B. affirmed his prior statements. Lisa screamed and pointed her finger in the face of D.B., causing him to become tearful and withdrawn. Lisa told D.B. that he was making her chest hurt, she was sick to her stomach, Bolden was going to jail, and D.B. was going to help put him there. Lisa also told D.B. that Bolden’s trial was tearing the family apart. After the exchange, Creekmore attempted to question D.B. again, but D.B. remained very upset and shook his head “no” to all the questions he was asked, including whether his testimony would be the same. The State did not call D.B. as a witness during its case-in-chief.

¶ 10. Bolden testified in his own defense. On the stand, he claimed that he woke up Sunday around 12:40 p.m. and went to Holly Springs with his girlfriend, Hailey Crosby. He did not return home again until 11:00 or 11:20 p.m. Sunday night. Bolden was cross-examined by the State regarding his notice of alibi which stated that Bolden, Edmond Morgan, and Travis Hodges had driven from Ashland to New Albany to Holly Springs and back to Ashland on that Sunday and had not returned until after dark on the same day. Prior to trial, both Morgan and Hodges had denied being with Bolden. The State also questioned Bolden about his statement to the nurse who performed the rape kit — that he had never left the backyard that Sunday. He denied making that statement and asserted that he had been confused as to the exact date he, Morgan, and Hodges visited Holly Springs.

¶ 11. After hearing all the evidence presented, the jury convicted Bolden of sexual battery. The trial court sentenced Bolden to thirty years in the custody of the Mississippi Department of Corrections with ten years suspended, twenty years to serve, five years of post-release supervision, and registration as a sex offender. He appeals this conviction and the resulting sentence, alleging four errors.

DISCUSSION

I. WHETHER IMPROPER OPINION TESTIMONY CAUSED IRREPARABLE PREJUDICE.

¶ 12. The admission of expert testimony is within the sound discretion of the trial court. Seal v. Miller, 605 So.2d 240, 243 (Miss.1992) (citing Hooten v. State, 492 So.2d 948, 950-51 (Miss.1986)). Unless this Court can say that the trial court’s ruling was so arbitrary or clearly erroneous that it constituted an abuse of discretion, the trial court’s decision is insulated from reversal. Id.

¶ 13. Mississippi Rule of Evidence 701 states that a lay witness is limited to opinions which are “(a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Rule 702 states that an expert witness may give opinion testimony if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

¶ 14. Bolden contends that Nurse Childs gave improper opinion testimony as to the dried secretions obtained during the administration of E.M.’s rape kit. Prior to Childs taking the stand, Bolden made an objection to her giving any type of opinion testimony about whether the substance she swabbed was seminal fluid, because she had not received any specialized training in that area. The State assured the trial court that it was only planning to ask Childs if she had used a blue light and if she detected a foreign substance that should not have been on the child’s buttocks. Given the State’s limitation, Bolden agreed to withdraw his objection.

¶ 15. During Childs’s direct examination by the State, she testified to the following:

We use what is called a Woods lamp. It’s a blue floreseent light. You turn the lights low or off in the room and you use the blue fluorescent light and sperm or seminal fluid will usually floress [sic] and glow just a little so that you can see them easier.

Bolden did not contemporaneously object to this statement by Childs. Instead, he waited until after the State had finished its direct examination to complain to the trial court that Childs had said that the Woods blue-light test is used to identify seminal fluid or sperm. The trial court responded that it did not feel that Childs rendered any opinions beyond those she was qualified to render, and it noted that defense counsel had failed to make a contemporaneous objection to the statement. The trial court advised defense counsel to question Childs on any specialized training in the area of seminal identification if counsel felt that it was needed.

¶ 16. On appeal, Bolden contends that the admission of this statement was in error because Childs gave improper lay opinion about the substances gathered from E.M. This contention is barred, however, because there was no contemporaneous objection during trial. “It is axiomatic that a litigant is required to make a timely objection,” and “if no contemporaneous objection is made, the error, if any, is waived.” Smith v. State, 797 So.2d 854, 856(¶ 7) (Miss.2001). Bolden was aware of the direction the State would take with Childs’s direct examination, and he had no objection to the State questioning Childs about whether she used a blue light, detected a foreign substance, collected a sample of that substance, and sent it to the crime lab. This was essentially what the State asked Childs. Childs volunteered the information about what the Woods light is used for, but defense counsel did not object to the statement when it was made. It was not until after the entire direct examination had been completed that Bolden’s counsel challenged her statement. Even then, the objection was couched as an inquiry to the trial court of what extent defense counsel could cross-examine Childs about her qualifications without opening the door to an in-depth redirect by the State. It was not an outright objection to her statements, or even a request for a limiting instruction to the jury; it was an inquiry as to how far defense counsel could question her as to her qualifications without opening the door to further questioning by the State as to the dried secretions. Thus, the objection was not properly preserved by Bolden at trial.

¶ 17. However, even if there had been a contemporaneous objection by Bol-den to Childs’s statements, it would not have been reversible error for the trial court to allow the testimony. The State questioned Childs regarding hospital protocol in administering a rape kit, which was within her personal knowledge as she had worked at the hospital as a nurse for six years. As a nurse, she personally assisted Dr. Marlin in performing the rape kit. See Moody v. State, 841 So.2d 1067, 1093-94 (¶¶ 80-82) (Miss.2003) (nurse who personally observed the taking of vaginal swabs during an autopsy had personal knowledge regarding the procedure used by the doctor in doing the autopsy).

¶ 18. Also, the trial court correctly noted that Childs did not give any opinions beyond what she was qualified to render. This Court dealt with a similar issue in Marbra v. State, 904 So.2d 1169 (Miss.Ct.App.2004). In that case, Marbra challenged the admissibility of testimony by a firearms specialist and a sergeant who took part in the investigation. This Court held that even though the firearms specialist, who was employed by the Mississippi Crime Laboratory, was not qualified by the trial court as an expert, his testimony was properly admitted because the witness did not give an opinion, much less an expert opinion, at any point during his testimony. Id. at 1174-75(¶ 16). He only testified as to the results of an accidental-firing experiment he performed to test the defendant’s claim that the shooting had been accidental. Id. All of this information was found in his report, which had been given to the defense. Id. The specialist did not give an expert opinion or any opinion during his testimony.

¶ 19. Also in the Marbra case, the testimony of a sergeant who took part in the investigation was challenged. The sergeant testified that if a person held a gun in the manner which the defendant claimed, gunpowder residue would be present on that person’s hand after the gun was discharged. Id. at 1177(¶ 30). This Court found the evidence was properly admitted under Rule 701 because it was based on his experience and perception as a law enforcement officer, and it helped the jury to determine the material issue of whether the gun had fired accidently. Id. at (¶ 33).

¶ 20. Similarly, Childs did not testify as to whether, in her opinion, the dried secretions found on E.M.’s buttocks were seminal fluid. She testified as to the purpose of using a Woods lamp. This knowledge was gained through her experiences and observations over six years as a nurse. It helped the jury understand the process by which the evidence was gathered and analyzed. She did not state that the dried secretions were seminal fluid; she only stated that a foreign substance was found by a process that is used to detect seminal fluid. This was not an opinion, and it was gained through her personal observation and experiences. The trial court, therefore, did not err in allowing the testimony.

¶ 21. Finally, assuming that a contemporaneous objection had been made to Childs’s statements and her testimony did constitute reversible error, the information relayed to the jury through her testimony was harmless. This Court will not reverse unless there has been both an abuse of discretion and prejudice to the defendant. White v. State, 847 So.2d 886, 892(¶ 23) (Miss.Ct.App.2002). There was no prejudice to the defendant in this case because a serologist from the Mississippi Crime Laboratory, who was qualified as an expert by the trial court, testified that the substance swabbed was, in fact, seminal fluid. Thus, even if Childs had only said that they used a blue light to highlight secretions on the skin, the fact that the matter was seminal fluid would have been properly disclosed to the jury by the serol-ogist. Thus, this issue is without merit.

II. WHETHER A VIOLATION OF THE SEQUESTRATION RULE REQUIRES REVERSAL.

¶ 22. Bolden contends that the testimony of Davidson, the victim’s advocate, was improper because she was allowed to sit in on the majority of the trial in violation of the sequestration rule. Davidson was called to rebut the testimony of D.B., who testified for the defense and stated that Bolden did not sexually assault him or the other boys. Davidson relayed to the jury that she had witnessed an argument between D.B. and his mother, in which D.B.’s mother told him that he was putting his cousin Bolden in prison and tearing their family apart. After this exchange, D.B. became sullen and withdrawn and indicated that he was going to change his testimony. When D.B. took the stand for the defense, he recanted his prior statements implicating Bolden and stated that the other boys had made up the accusations after Bolden caught them in the woods.

¶ 23. Mississippi Rule of Evidence 615 requires that the trial court, at the request of either party or upon its own motion, exclude all witnesses so that they cannot hear the testimony of other witnesses unless that witness is also: (1) a party, if that party is a natural person, (2) an officer or employee, designated by the attorney as the representative of a party, if the party is not a natural person, or (3) a person whose presence has been shown to be essential to the presentation of a party’s case.

¶ 24. “The purpose of the rule is to prevent a witness from adapting his/ her testimony to previous testimony.” Kiker v. State, 919 So.2d 190, 194(¶8) (Miss.Ct.App.2005) (citing Douglas v. State, 525 So.2d 1312, 1316 (Miss.1988)). The rule applies equally to rebuttal witnesses and ease-in-chief witnesses. Finley v. State, 725 So.2d 226, 233(¶21) (Miss. 1998). This Court is limited to an abuse of discretion standard when reviewing an alleged sequestration violation. Whittington v. State, 748 So.2d 716, 719(¶ 19) (Miss.1999). A defendant must show on appeal that the trial court not only abused its discretion, but also that the error caused prejudice to his defense. Finley, 725 So.2d at 233(¶22). This Court will not simply reverse a trial court for failing to either declare a mistrial or exclude testimony after a sequestration violation. Id.

¶ 25. Once a witness has violated the sequestration rule, the appropriate remedy is within the trial court’s sound discretion. Id. at (¶ 23). Such remedies can include:

prospectively excluding the witness where prejudice will otherwise ensue; striking the witness’s testimony where connivance gave rise to the testimony; striking the witness’s testimony where the testimony gave rise to prejudice; or, most appropriately, allowing the other party to subject the witness to a “full-bore cross-examination” on the facts of the rule violation. The court may also instruct the jury that it may consider the rule violation when the jury evaluates the violating witness’s credibility.

Baine v. State, 606 So.2d 1076, 1083 (Miss.1992) (internal citations omitted).

¶ 26. In the instant case, the trial court allowed Davidson to testify because she was an unanticipated witness who left the courtroom as soon as it became apparent to the State that she would be called as a rebuttal witness. The trial court noted that it would entertain any contemporaneous objections to testimony that indicated Davidson had known she was going to be a witness or had adapted her testimony as a result of not being subjected to the sequestration rule. There were no objections by the defense during Davidson’s direct examination concerning any sequestration violations.

¶27. These facts are very similar to those of Kiker, where this Court held there was no undue prejudice to a defendant when a deputy was called as a rebuttal witness by State after sitting in on most of the State’s case-in-chief. 919 So.2d at 195(¶ 11). The deputy left the courtroom as soon as it became apparent that he would be needed as a rebuttal witness, and he was not in the courtroom during the testimony of the witness he was being called to rebut. Id. This Court reasoned that those precautions prevented prejudice to the defendant and upheld the trial court’s decision to allow the deputy to testify. See id.

¶ 28. Likewise, Davidson was not present during the majority of D.B.’s testimony. Her testimony was not based upon anything which could have been tailored by hearing other parts of the State’s casein-chief. Her statements were limited to the interaction between D.B. and his mother. She did not testify as to anything that could have been adapted from hearing other witnesses. Also, the only objection made by the defense during Davidson’s direct examination was that a portion of a question involved hearsay, and the State withdrew that portion of the question. The defense also had the opportunity to cross-examine Davidson, which it employed to question her regarding her interaction with D.B. and his mother. Therefore, we find that allowing Davidson to testify was not an abuse of discretion by the trial court, and this issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN REFUSING THE JURY INSTRUCTION REGARDING IMPEACHMENT.

¶ 29. Bolden contends that the trial court erred in refusing to allow the proposed jury instruction regarding impeachment evidence. The supreme court has long held that:

The refusal of a timely requested and correctly phrased jury instruction on a genuine issue of material fact is proper, only if the trial court — and this Court on appeal — can say, taking the evidence in the light most favorable to the party requesting the instruction, and considering all reasonable favorable inferences which may be drawn from the evidence in favor of the requesting party, that no hypothetical, reasonable jury could find the facts in accordance with the theory of the requested instruction.

Hill v. Dunaway, 487 So.2d 807, 809 (Miss.1986). On review, jury instructions should be taken as a whole with all jury instructions being read together and not taking a single instruction out of context. Ellis v. State, 790 So.2d 813, 815(¶5) (Miss.2001) (quoting Higgins v. State, 725 So.2d 220, 223(¶ 16) (Miss.1998)). “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence.” Id.

¶ 30. Bolden relies on the cases of Fer-rill v. State, 643 So.2d 501, 505 (Miss.1994), and McGee v. State, 608 So.2d 1129, 1134 (Miss.1992), to support his contention that the refusal of the impeachment jury instruction was reversible error.

¶ 31. Bolden’s proposed instruction reads:

The Court instructs the jury that the testimony of a witness or witnesses may be discredited or impeached by showing that on a prior occasion they have made a statement which is now inconsistent with or contradictory to their testimony in this case. In order to have this effect, the inconsistent or contradictory prior statement must involve matter which is material to the issues in this case.
The prior statement of the witness or witnesses can be considered by you only for the purpose of determining the weight or believability that you give to the testimony of the witness or witnesses that made them. You may not consider the prior statement as proving the guilt or innocence of the defendant.

This proposed instruction is almost identical to those instructions not given in Fer-rill and McGee that were held to be necessary, warranting reversal and a new trial. However, Bolden relies on an incomplete statement of holdings in these cases. The supreme court has held that “the trial court’s general instruction that the jury determine the weight and credibility of a witness’s testimony, coupled with cross-examination of the witness concerning the inconsistent statement and closing arguments drawing attention to the inconsistencies is sufficient to remove error from the refusal to give an impeachment instruction.” Harris v. State, 861 So.2d 1003, 1020(¶ 48) (Miss.2003) (citing Swann v. State, 806 So.2d 1111, 1117 (¶¶ 23-24) (Miss.2002)).

¶ 32. All three of the above requirements were satisfied in this case. First, jury instruction C-l, which was given to the jury, was the trial court’s general instruction that the jury determine the weight and credibility of a witness’s testimony:

You are the sole judges of the facts in this case. Your exclusive province is to determine what weight and credibility will be assigned the testimony and supporting evidence of each witness. You are required and expected to use your good common sense and sound judgment in considering and weighing the testimony of each witness who has testified.

This section of the trial court’s general instructions to the jury sufficiently covers the areas of weight and credibility of witnesses in this case.

¶ 33. Second, each witness impeached with prior inconsistent statements was thoroughly cross-examined by the State and rehabilitated by the defense about these prior inconsistent statements. Specifically, the State cross-examined D.B. in depth about why his story about the alleged sexual abuse had changed the day of trial. The defense attempted to explain this by showing that D.B. was angry at Bolden at the time he made the accusations. Finally, the State was given ample opportunity to cross-examine Bolden concerning the change of his alibi three times during the trial process. Bolden was allowed to explain why these discrepancies existed. Therefore, each was given an opportunity to explain or explore thoroughly the prior inconsistencies during trial.

¶ 34. Third, the closing arguments of both parties referred to the prior inconsistent statements and attempted to explain those inconsistencies in a way that supported that party’s proposed explanation of the events on that day. Because other jury instructions discussed the matters of weight and credibility of the evidence, all impeached witnesses were questioned about the inconsistencies, and both closing arguments addressed the inconsistencies, we cannot say that the refusal of the proposed jury instruction was reversible error when taken in context with all other jury instructions. Thus, this issue is without merit.

IY. WHETHER THE VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 35. Bolden’s final contention is that the verdict was contrary to the overwhelming weight of the evidence. The appropriate standard of review for an objection to the weight of the evidence is whether the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The supreme court has consistent ly held that an appellate court “sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)). All “evidence should be weighed in the light most favorable to the verdict.” Id. (citing Herring, 691 So.2d at 957).

¶ 36. Sitting as a thirteenth juror, this Court cannot find that the jury’s verdict amounted to an unconscionable injustice, nor can we find that this is an exceptional case where the evidence preponderates heavily against the verdict. The State presented ample evidence to support a guilty verdict. Examples of this evidence include the testimony of the victim, the victim’s mother, the nurse who examined the victim on the night of the attack, a serologist who determined that the dried secretion found on the buttocks of the victim was seminal fluid, and members of the police department that participated in the investigations. The victim maintained a largely consistent story from his first reports to his testimony on the stand. All of the State’s witnesses presented testimony that implicated Bolden. Even though there was some conflicting evidence presented by the defense and the defendant presented an alibi, the evidence presented by the State was of such a level that we find that the guilty verdict was not against the overwhelming weight of the evidence. This issue is without merit.

¶ 37. THE JUDGMENT OF THE CIRCUIT COURT OF BENTON COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN YEARS SUSPENDED, TWENTY YEARS TO SERVE, FIVE YEARS OF POST-RELEASE SUPERVISION, AND REGISTRATION AS A SEX OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BENTON COUNTY.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Initials of the minor victims are used to protect the their identities.

      . Bolden later alleged that he caught A.B. and E.M. having sex in the woods, leading them to falsely accuse him of sexual assault.

      . This section of the analysis will be slightly different because in the Harris and Swann cases, the impeached witness was called by the State, but here it was Bolden who called the impeached witnesses and attempted to explain away their prior inconsistent statements. Therefore, it is necessary to make sure each party was given an opportunity to explore the prior inconsistencies.


author: BARNES, J.,

text:
    Glen D. JACKSON, Appellant v. Charles CARTER, Individually and in his Capacity as a Registered Forester and d/b/a Mid-South Forestry, Mid-South Forestry, Inc. and Richard Chism d/b/a Chism Logging, Appellees.
    No. 2008-CA-00376-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.
    Rehearing Denied Sept. 22, 2009.
    Certiorari Denied Dec. 17, 2009.

      John David Weddle, Tupelo, attorney for appellant.
    Matthew Anderson Taylor, John Lewis Hinkle, Ridgeland, attorneys for appellees.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Glen D. Jackson appeals the judgment of the Circuit Court of Union County, Mississippi, which granted summary judgment in favor of Richard Chism d/b/a Chism Logging and Charles Carter, individually and in his capacity as a registered forester and d/b/a Mid-South Forestry, Inc. Jackson has filed suit against them and other unknown defendants based on the wrongful cutting and removal of timber from his property. On appeal, Jackson argues that the circuit court erred in granting the motion for summary judgment on the grounds that Jackson’s claim is barred by the applicable statute of limitations, as set forth in Mississippi Code Annotated section 95-5-29 (Rev.2004). We conclude that section 95-5-29 bars this cause of action in its entirety. Accordingly, we affirm the trial court’s judgment in favor of the Appellees.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. The facts of this case are undisputed. On October 30, 2001, Chism d/b/a Chism Logging entered into a contract with Carter d/b/a Mid-South Forestry and Louie Wages for the harvesting of timber from property owned by Wages in Union County, Mississippi. Wages’s property is adjacent to the property owned by Jackson. Chism harvested all of the timber that had been pre-marked by Carter and utilized the boundaries that Wages provided regarding the harvesting that was to take place. On November 15, 2001, Chism completed the harvesting of timber from Wages’s property.

¶ 3. On or about April 18, 2007, while traversing his property with his brothers, Jackson discovered that an estimated twelve acres of timber had been harvested from his land without his knowledge or permission. The land was not used as a residence, and the acreage that was harvested is not visible from any public road.

¶ 4. On June 29, 2007, approximately five and one-half years after the alleged cutting, Jackson filed suit against Chism and Carter seeking damages pursuant to Mississippi Code Annotated section 95-5-10 (Rev.2004) for the alleged unlawful removal of trees from his property. After some discovery was completed, Chism and Carter moved the circuit court for summary judgment, arguing that the governing statute of limitations, section 95-5-29, operated to bar Jackson’s recovery since he failed to file suit within twenty-four months from the time the injury was committed. Jackson responded to the summary judgment motion arguing that the “discovery rule” should apply in this case to toll the statute of limitations until he could have discovered the unlawful harvesting of trees from his land. The circuit court granted the Appellees’ motion for summary judgment, and Jackson filed the present appeal.

STANDARD OF REVIEW

¶ 5. The Mississippi Supreme Court has consistently held that review of summary judgment is de novo. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49(¶ 8) (Miss.2005) (citing Hurdle v. Holloway, 848 So.2d 183, 185(¶4) (Miss.2003)). A summary judgment motion is properly granted only when no genuine issue of material fact exists. Lowery, 909 So.2d at 49(¶ 8); M.R.C.P. 56(c). The moving party has the burden of demonstrating that no genuine issue of material fact exists within the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and that he is entitled to judgment as a matter of law. Lowery at 49(¶ 8); see also Davis v. Hoss, 869 So.2d 397, 401(¶ 10) (Miss.2004) (noting that the court should review all evidence available to it when making its decision).

DISCUSSION

¶ 6. Jackson’s issue on appeal concerns the application and interpretation of section 95-5-29, which addresses the period of limitations of a timber trespass claim governed by section 95-5-10. The Mississippi Supreme Court has determined that section 95-5-10 is the exclusive remedy for “cutting trees without consent.” Stockstill v. Gammill, 943 So.2d 35, 49 (¶ 24) (Miss.2006); McCain v. Memphis Hardwood Flooring Co., 725 So.2d 788, 791(¶10) (Miss.1998) (overruled on other grounds). The code section that governs the time limit for filing a claim under section 95-5-10 is section 95-5-29, which provides that:

An action for the remedies and penalties provided by Section 95-5-10 may be prosecuted in any court of competent jurisdiction within twenty-four (21) months from the time the injury was committed and not after. All other actions for any specific penalty given by this chapter may be prosecuted in any court of competent jurisdiction within twelve (12) months from the time the injury was committed, and not after; and a recovery of any penalty herein given shall not be a bar to any action for further damages, or to any criminal prosecution for any such offense as herein enumerated. A party, if he so elect[s], may, under any of the provisions of this chapter, claim less than the penalty given.

(Emphasis added). While it is undisputed that Jackson failed to file his cause of action within twenty-four months from the time of the injury, he argues that the discovery rule applies to his injury and operates to toll the twenty-four-month limitations period until he knew or reasonably should have known about the damage or trespass to his property.

¶ 7. For the reasons set forth below, we find that application of the discovery rule to the case at bar would be inconsistent with the existing case law on claims of timber trespass. As a general rule, a plaintiffs ignorance of his injury and its potential cause of action does not operate to toll the statute of limitations; although, under certain circumstances, the “discovery rule” may be applied when a cause of action does not accrue until a plaintiff knows or reasonably should have known of his injury. Thomas B. Walter, Mississippi Limitations of Actions, § 2:05.1 (2009-2010 ed.2008). Some Mississippi statutes of limitation have an express provision for application of the discovery rule; however, if the discovery rule is not expressly provided for, Mississippi courts have imputed the rule in eases of latent injury. Id. (citing Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 205(¶ 16) (Miss.1999) (application of discovery rule to a Mississippi Tort Claims Act cases involving latent injuries)).

¶ 8. A latent injury is defined as one where the plaintiff is “precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question ... [or] when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Lowery, 909 So.2d at 50(¶ 12) (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 168(¶ 18) (Miss.1999)). “The term ‘latent injury’ while seemingly vague does have definitive boundaries .... [but][b]ecause there is no bright line rule, the specific facts of the case will determine whether the plaintiff knew or reasonable [sic] should have known that an injury existed.” Id. at 51(¶ 14). Accordingly, “if a latent injury is not present, the discovery rule would not apply.” Id. at 50(¶ 11).

¶ 9. The Appellees rely on McCain for the proposition that the discovery rule does not apply in timber trespass cases. In McCain, the plaintiffs filed suit against Memphis Hardwood for cutting trees and removing timber from the plaintiffs property without consent. The McCains testified that they did not learn of the timber trespass until over two years after the trees had been cut. They contended that the statute of limitations should not have run until they knew or should have known of the damage or trespass to their trees. The Mississippi Supreme Court stated:

This Court has applied the discovery rule where the plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscov-erable nature of the wrongdoing in question .... [a]n owner of trees requires no unique expertise to realize when his trees have been taken without his permission. Neither is the taking of such trees without consent of an owner a secretive or inherently undiscoverable act which justifies the discovery rule. Thus, application of a judge-made discovery rule would be inappropriate in the instant case.

McCain, 725 So.2d at 794(¶ 23).

¶ 10. Jackson contends that Punzo v. Jackson County, 861 So.2d 340 (Miss.2003) stands for the proposition that the discovery rule is applicable to all property cases including timber trespass cases such as his own. He further argues that Punzo overrules McCain because a careful reading of McCain indicates that applying the discovery rule is only inappropriate for the precise issues and facts presented in McCain, rather than all timber trespass cases. We find that Jackson’s interpretation of Punzo significantly overstates its holding, as Punzo does not operate to overrule McCain.

¶ 11. In Punzo, the supreme court applied the discovery rule to toll the twelvemonth statute of limitations of the Mississippi Tort Claims Act. Id. at 348(¶ 30). Punzo suffered extensive flood damage to his home over three years after Jackson County had negligently altered a nearby bridge. Id. at 343(¶ 5). When Punzo discovered that the negligent alteration of the bridge was the cause of the flooding, he properly filed a complaint against the County. Id. at 346(¶ 21). The circuit court granted the County’s motion for summary judgment finding that the statute of limitations had run on Punzo’s claim, and Punzo appealed. The supreme court held that the discovery rule should apply to Punzo’s cause of action because water flow and flood currents are subjects requiring expert knowledge to comprehend fully. Id. The supreme court further stated that “the discovery exception may be applied when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Id.

¶ 12. This Court recognized the limited applicability of the Punzo discovery exception in Sims v. Bear Creek Water Association, 923 So.2d 230, 233(¶ 11) (Miss.Ct.App.2005) by noting that the discovery exception in Punzo applies only to latent injuries that may require expert knowledge to discern that an injury has occurred. In Sims, the foundation of plaintiffs’ home and driveway began shifting because of a faulty water main that was keeping the subsoil too moist. Id. at 232(¶ 3). The Simses hired a civil engineer who confirmed the existence of the problem with the water system more than three years before they filed suit against Bear Creek Water Association, which was at least partly responsible for the Simses’s injury. Id. at 233-34 (¶¶ 11, 14). Unlike the plaintiff in Punzo, the Simses knew about the problem with their foundation and its cause at least three years before filing suit. Id. Accordingly, this Court refused to apply the discovery rule because the Simses had actual knowledge of the facts that would have allowed them to bring a claim against Bear Creek prior to the expiration of the applicable statute of limitations. Id. at 234(¶ 14).

¶ 13. We find that Punzo is easily distinguishable from McCain due to the latency of Punzo’s injury which would require unique expertise to perceive the injury and identify the source of the damage. Punzo’s injury stemmed from the negligent alteration of a nearby bridge by Jackson County. Because the negligent alteration was secretive and inherently undiscoverable, it was unrealistic for a layperson, such as Punzo, to identify the source of his injury without unique knowledge or expertise. It was only after a former Jackson County supervisor advised him of the modification to the bridge that he was able to identify the problem and realize that the County was responsible for the flooding. Punzo, 861 So.2d at 344(¶ 14). Accordingly, Punzo’s injury was latent as defined by Lowery, and the discovery rule was properly applied.

¶ 14. On the other hand, the injury in McCain was immediately apparent to McCain merely by his surveying the property with his naked eye. No unique expertise was necessary for McCain to discover his injury at the time when it occurred; nor was it unrealistic to expect a layperson, such as McCain, to identify the source of his injury. Loss of timber, as opposed to water flow and flood currents, is not secretive or inherently undiscoverable; therefore, it is realistic for a layperson to perceive and identify such an injury. Accordingly, the court in McCain refused to apply the discovery rule to McCain’s injury-

¶ 15. Applying McCain to the instant case, we find it clear that the injury to Jackson’s property is not latent since it does not require unique expertise to perceive or identify the injury or its source; and it is not unrealistic to expect a layperson to identify the injury or the source of the injury. The fact that he did not discover the injury until long after it occurred and the statute of limitations had run is of no consequence since the injury was not actually latent. Furthermore, the injury cannot be considered latent based on the inaccessibility of the property, as Jackson claims. On appeal, Jackson cites the dissent in McCain for the proposition that “trespass damage on large timber stands ... is the sort of secretive or inherently undiscoverable injury” where the discovery rule should apply. McCain, 725 So.2d at 796(¶ 35) (McRae, J., dissenting). Jackson argues that because he does not reside on the property, and it is so secluded from public roads, he would have had to walk the property to discover the cutting of his trees, which is not his duty. The McCain dissent proposed that “the property owner should not be charged with an affirmative duty to constantly patrol the premises for damages.” Id. at 797(¶ 37). However, we cannot accept the dissent’s rationale as a majority of the Mississippi Supreme Court’s justices adopted the rule in McCain that the discovery rule would not apply in such situations and rejected the dissent’s conclusions. We find that McCain is on all fours with the instant case. Accordingly, application of the discovery rule to Jackson’s time-barred claim is not appropriate. This issue is without merit.

CONCLUSION

¶ 16. Because “[a]n owner of trees requires no unique expertise to realize when his trees have been taken away without his permission,” and because the cutting and taking away of trees is not a “secretive or inherently undiscoverable act,” application of the discovery rule is inappropriate. McCain, 725 So.2d at 794(¶23). Therefore, we affirm the judgment of the trial court.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.

      . Jackson contends that the property lines between his property and Wages’s property were marked by a barbed wire fence line and were clearly visible.


author: IRVING, J.,

text:
    Senica Matthew FRANKLIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01436-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.
    Rehearing Denied Aug. 18, 2009.
    Certiorari Denied Dec. 10, 2009.

      Leslie S. Lee, Jackson, G. Eric Geiss, Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Senica Matthew Franklin was convicted by the Harrison County Circuit Court of two counts of murder and one count of arson. He was sentenced to serve a life sentence for each of the murder convictions and twenty years for the arson conviction, with the sentences to run concurrently. Aggrieved, Franklin appeals and asserts: (1) that the trial court erred in failing to grant his motion for a new trial, (2) that his trial attorney was ineffective, (3) that the trial court erred in refusing to grant his proposed circumstantial evidence jury instruction, and (4) that he was denied the right to confront a witness against him.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On the night of October 31, 2001, police discovered the charred bodies of Brenda Mason and Ronald Brock in Mason’s home located on Texas Avenue in North Gulfport, Mississippi. Mason and Brock had been shot, and Mason’s home had been set on fire. Almost three years later, Franklin was formally charged with two counts of murder and one count of arson. Franklin was tried three times before he finally was convicted on March 8, 2007.

¶ 4. Tosha Johnson testified that on October 31, 2001, she was walking north on Texas Avenue when Franklin came running toward her. According to Johnson, Franklin was running from the direction of Mason’s house. Johnson testified that she asked Franklin why was he running and that he responded, “because I’m running.” Johnson also testified that Franklin told her that she had “better go” and that she did just that. Johnson later testified that Franklin was walking fast, rather than running, when she encountered him. Initially, Johnson stated that she did not remember having any further conversation with Franklin. However, after being presented with a statement that she had previously provided to police, she remembered that Franklin had told her that there were two people in the burning house. Johnson remembered that Franklin was wearing black clothing.

¶ 5. Michael McCoy, a firefighter with the Gulfport Fire Department, recalled that when he arrived at the scene, the house was almost “fully involved” and that fire and heavy smoke were coming from most of the windows and eaves of the house. McCoy testified that he discovered two bodies that were so severely burned that he was unable to determine whether the victims were male or female.

¶ 6. David Dry, a deputy state fire marshal, also arrived at the scene while the fire was still in progress. He testified that while reconstructing the crime scene, he determined that the fire began in a “room inside the front porch.” Dry determined that the fire was “incendiary in nature, which is a fire set by human hands under circumstances which the person knows it should not be set.” Dry testified that he, along with other firefighters, collected seven samples and that they all came back negative for accelerants. Dry quickly pointed out that simply because acceler-ants were not found does not mean that accelerants were not in fact used. According to Dry, there are two equally plausible explanations as to why an accelerant was not found: the lab equipment may simply have been unable to detect one, or the accelerant may have been washed away by the water that was used to extinguish the fire.

¶ 7. Next, the State called Grady Sum-rail who testified that he, a female named Dusty, and Franklin were riding around on the day of the murders. Sumrall stated that early that day, they saw Mason at a local store. According to Sumrall, he witnessed Franklin and Mason engage in a discussion, but Sumrall claimed that he did not know what the discussion was about. Sumrall testified that Franklin mentioned that Mason owed him money but that Franklin did not mention anything about collecting the money from Mason. After being shown a statement that he had previously made, Sumrall remembered that Franklin had said, “I got to do Brenda [sic] something about my money.” However, Sumrall explained that this was merely a figure of speech. Sumrall also stated that, at some point throughout the course of the day, he observed that Franklin had a .380 caliber handgun in his waistband.

¶ 8. The State then called Billy Patton and Christopher Thompson. Both men grew up with Franklin and were incarcerated at the federal penitentiary in Oakdale, Louisiana at the time of Franklin’s trial. Prior to going to the federal penitentiary, Patton and Thompson served time in the Harrison County Jail at different intervals, and during each of the intervals, Franklin was also incarcerated.

¶ 9. Patton testified that while they were incarcerated at the Harrison County Jail, he and Franklin were roommates in the same cellblock. Patton further testified that during this incarceration, he and Franklin talked from time to time over the course of about six months and that Franklin told him what had happened on the day of the murders. Patton recalled that Franklin told him about a heated conversation that Franklin had had with Mason on the day of the murders at a house located across the street from Mason’s house. Patton testified that Franklin told him that he went home after the conversation. However, according to Patton, later that day, Franklin went to Mason’s house, shot Mason and Brock with a .380 caliber handgun, and set the house on fire. Patton stated that Franklin then went to Franklin’s apartment in the Ash-ton Park Apartment complex, which is located approximately five minutes from Mason’s house. Patton recalled that Franklin told him that he had thrown the gun in a septic tank that was located on the side of Mason’s house. The prosecutor asked Patton if he, prior to trial, had informed anyone in an “official capacity” of what Franklin had told him. Patton responded that he had told Terry Davis, a federal agent, after Davis approached him and asked him whether he knew anything about the murders.

¶ 10. Thompson testified that he was headed home at either a quarter to six or a quarter to seven on October 31, 2001, when he saw Franklin, who, he recalled, was wearing a black hooded jacket and jeans. According to Thompson, Franklin was looking at smoke that had formed in the sky. Thompson stated that Franklin flagged him down and told him that he wanted to pay him what he owed. In order to facilitate the payment, Thompson stated that Franklin got into his vehicle. Thompson testified that it was at that point that he noticed a chrome .380 caliber handgun on Franklin’s side. Thompson stated that Franklin exited Franklin’s vehicle a short while later and that he did not see Franklin again that night.

¶ 11. At some point later, however, Thompson and Franklin served time together at the Harrison County Jail and were incarcerated in the same cellblock. Thompson testified that Patton was not at the jail during the period of time that he and Franklin shared the cellblock together and denied speaking with Patton before Thompson entered the jail. Thompson also testified that Franklin did not discuss anything that had happened on the night of the murders but that Franklin did mention to him that Mason owed him money and that, as a result, he and Mason got into a “heated conversation.”

¶ 12. At some point thereafter, Thompson was transferred to the federal penitentiary in Oakdale, Louisiana. It was at this point that Thompson came into contact with Patton. In 2004, Thompson told Craig Petersen, a lieutenant with the Gulf-port Police Department (GPD), what he knew about Franklin’s involvement in the murders after Lieutenant Petersen called the prison to speak with him about things that had transpired while he was in the Harrison County Jail.

¶ 13. Reginald Merritts testified that shortly after he arrived home around sunset on October 31, 2001, Franklin approached him and asked him to give him a ride to an apartment complex near the airport. Merritts stated that he agreed, and his girlfriend rode along. According to Merritts, as they made their way down the street, his girlfriend noticed that something was on fire on the street that Mason lived on. Merritts recalled that the street was cordoned off and that fire trucks and police were on the scene. Merritts stated that he then dropped Franklin off at the apartment complex.

¶ 14. Merritts was incarcerated at the Harrison County Jail after being arrested on September 19, 2002. Merritts testified that, during that time, Franklin was also incarcerated at the Harrison County Jail. Merritts recalled an occasion when Franklin “rapped” about the murders of Mason and Brock. Merritts testified that when he asked Franklin if he had been involved in the murders, Franklin responded that he had. When asked whether Franklin admitted shooting and killing Mason and Brock, he replied: ‘Tes, he had said that he shot her.” Merritts also testified that Franklin then asked him what would it take for a person to be convicted of murder if no murder weapon is found.

¶ 15. Dr. Paul McGarry, a forensic pathologist, performed autopsies on Mason and Brock and concluded that they died of gunshot wounds to the head. Dr. McGar-ry also noted that Mason and Brock were shot at contact range and that the bullets that were recovered were consistent with a bullet fired from a .380 caliber handgun. According to Dr. McGarry, both Mason and Brock were killed before their bodies were set on fire,

¶ 16. Charles Bodie Jr., a sergeant with the GPD and head of the department’s crime scene unit and evidence room, testified that after arriving at the scene, he recovered four spent .380 shell casings. He also recovered plastic gasoline containers from Franklin’s residence.

¶ 17. Lieutenant Petersen testified that he took over the case in October 2003. During the course of his investigation, Lieutenant Petersen interviewed Patton, Thompson, and Merritts and verified that each of them had been incarcerated at the Harrison County Jail during the period of time that each claimed to have been. He also verified that during their incarceration they served time in the same area as Franklin. Additionally, Lieutenant Petersen testified that he, along with other officers, interviewed Sumrall on November 2, 2001. During his interview, Sumrall stated that he had seen Franklin on the night of the murders and that Franklin had a “chrome” .380 caliber handgun on his person. At the conclusion of the interview, Sumrall was shown a photographic lineup wherein he positively identified Franklin.

¶ 18. The defense presented three witnesses: Ruby Brock (Brock’s mother), Kevin Keys, and Anthony Shade. Ruby testified that on the night of October 31, she passed by Mason’s house between 7:05 and 7:10 and witnessed three men, whom she did not recognize, sitting on the porch.

¶ 19. Keys testified that in either June or July 2002, while he was incarcerated in the Harrison County Jail, he witnessed a verbal altercation between Franklin and Patton over Ayana Hawthorne, a woman with whom Patton has a child. Keys stated that this relationship was a source of conflict between Franklin and Patton.

¶ 20. Shade, who had given a statement to the police on June 3, 2004, testified that he, Franklin, and a person whom he identified as “John John” were standing on a street corner on October 31, 2001, at approximately 7:00 p.m. Shade recalled that Franklin and “John John” left approximately forty-five minutes to an hour later. Shade further recalled seeing smoke and fire on Texas Avenue around 8:30 p.m., which he stated was approximately thirty minutes after Franklin left his company.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Denial of the Motion for a New Trial

¶ 21. In his first issue, Franklin claims that the trial court erred in refusing to grant his motion for a new trial. Specifically, Franklin contends that the verdict is against the overwhelming weight of the evidence and asserts: (1) that “there [is] no physical evidence, forensic or otherwise” that links him to the crime, (2) that a witness gave testimony that was inconsistent with the witness’s testimonies at Franklin’s previous trials, and (3) that the “jailhouse-sniteh” testimonies offered by the State were unreliable. “A motion for a new trial challenges the weight of the evidence.” Foster v. State, 919 So.2d 12, 16(¶ 20) (Miss.2005) (citing Sheffield v. State, 749 So.2d 123, 127(¶ 16) (Miss.1999)).

¶ 22. “[An appellate court] will disturb a jury verdict only when ‘it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Brown v. State, 970 So.2d 710, 713(¶8) (Miss.2007) (quoting Bush v. State, 895 So.2d 836, 843(¶ 18) (Miss.2005)). “[An appellate court] acts as a ‘thirteenth juror’ and views the evidence in the light most favorable to the verdict.” Id. (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

a. Lack of Physical Evidence

¶ 23. To support his lack of evidence argument, Franklin points out that none of the samples collected from the scene revealed that any accelerant had been used in the fire. Franklin also points out that Deputy State Fire Marshal Dry could not determine exactly what had caused the fire. It is true that Dry could not state conclusively what had caused the fire. However, he concluded that the fire was “incendiary in nature, which is a fire set by human hands under circumstances which the person knows it should not be set.” Dry also stated that even though no accel-erant was found, one should not conclude that an accelerant was not used.

¶24. Franklin also argues that none of the evidence collected by the officers connected him to the crime. Further, he notes that although several handguns were recovered, none were determined to be the murder weapon and that none of the guns that were found matched any of the projectiles that were recovered from the bodies of Mason and Brock. Franklin correctly states that several items, which were recovered or collected in the course of the investigation, did not connect him to the murders. However, there was other evidence in the way of testimonies from witnesses that did. The jury heard all of the testimony given during the trial and concluded that Franklin was guilty even though no physical evidence linked him to the crime. “The jury being the sole judge of the weight and worth of the testimony as its proper function, had before it the duty to determine the evidence it would accept as true and that which it would reject as untrue.” Wilson v. State, 234 So.2d 303, 311-12 (Miss.1970) (citing Alexander v. State, 251 Miss. 847, 855, 171 So.2d 517, 520 (1965)). There is no requirement that a criminal conviction must always be based on physical evidence.

b. Inconsistent Testimony of a Witness

¶ 25. Franklin argues that the testimony of one of the witnesses is unreliable because it conflicts with testimony that was given by the witness at Franklin’s previous trials. The remedy for this situation would have been to impeach the witness during the trial. Franklin failed to do so. Therefore, he cannot now complain. A jury is entitled to consider the testimony of all witnesses, even if a witness’s testimony conflicts with the witness’s previous testimony on a particular matter. See Hartley v. State, 161 Miss. 667, 670, 137 So. 518, 519 (1931).

a Inmate Testimony

¶ 26. Franklin argues that the testimonies of Patton, Thompson, and Merritts are unreliable because they are the testimonies of “jailhouse snitch[es].” He cites cites Moore v. State, 787 So.2d 1282 (Miss.2001) to support his argument. In Moore, the Mississippi Supreme Court recognized that “[jailhouse-snitch testimony] is ‘becoming an increasing problem in this state, as well as throughout the American criminal justice system.’ ” Id. at 1287(¶ 15) (quoting McNeal v. State, 551 So.2d 151, 158 (Miss.1989)). The defendant in Moore requested an instruction that advised the jury to weigh the testimony of a jailhouse snitch “with great care and caution and [to] look upon it with distrust and suspicion.” Id. at 1286(¶ 13). The trial court refused to grant such an instruction. Id. at 1287(¶ 16).

¶ 27. On appeal, the Mississippi Supreme Court reversed, holding as follows:

In view of our position on the unreliability of jailhouse informant or “snitch” testimony, we do not agree that [the instruction offered by the State] adequately instructed the jury on the weight to be given to [the jailhouse snitch’s] testimony. For the foregoing reasons, this Court finds that the trial court erred in refusing jury instruction D-24 and that it was an abuse of discretion to deny Moore a cautionary instruction in the face of evidence that [the jailhouse snitch] may have received favorable treatment in exchange for his testimony.

Id. (footnote added). We find that Moore is distinguishable for two reasons: first, Franklin did not request a cautionary instruction, and second, there is no evidence that either Patton, Thompson, or Merritts received or was promised anything in exchange for his testimony. While Patton admitted that he had received a reduction of his federal sentence in exchange for the favorable testimony that he had given in a federal case, he made it clear that he had neither received, nor been promised, any favorable treatment in exchange for his testimony in Franklin’s case, although he said he hoped that he would.

¶ 28. Thompson was asked on direct examination whether he had been “promised anything in return” for statements that he had given to police. He responded that he had not. Thompson was then asked whether he expected to receive a reward for his testimony, and he responded, “[i]t would be nice if they did.”

¶ 29. Merritts was also asked during direct examination whether he had been promised anything in return for his testimony. Like Thompson, he stated that he had not. Since Patton, Thompson, and Merritts all testified that they had not received any benefit for their testimony against Franklin, we fail to see how Moore lends any support to Franklin.

¶ 30. Franklin also cites Sherrell v. State, 622 So.2d 1233, 1236 (Miss.1993) to support his argument that the trial judge should have given a cautionary jury instruction, even though he did not request one. We disagree. In Sherrell, the Mississippi Supreme Court acknowledged that “[t]he testimony of jail-house informants, or ‘snitches,’ is becoming an increasing problem in this state.... ” Id. (quoting McNeal, 551 So.2d at 158). The supreme court also stated that “[i]nformants are offering evidence against their fellow inmates in exchange for reduced sentences.” Id. The court further stated that “[a]l-though the trial judge allowed the testimony of [the informant] into evidence, he made certain that a cautionary instruction was given to the jury.” Id. While the supreme court in Sherrell approvingly took note of the trial judge’s action in giving the cautionary instruction, the court did not say that trial courts are required to give, sua sponte, a cautionary instruction whenever the evidence contains the testimony of a “jailhouse snitch.” As already noted, none of the witnesses received any benefit in exchange for their testimonies. Thus, Sherrell, like Moore, does not help Franklin in any way.

¶ 31. A review of the testimony offered at trial clearly reflects that Franklin’s guilty verdict is not against the overwhelming weight of the evidence, despite his assertions to the contrary. There is no merit to this issue.

2. Ineffective Assistance of Counsel

¶ 32. In Read v. State, 430 So.2d 832, 841 (Miss.1983), the Mississippi Supreme Court set forth the procedure for the appellate court to follow when a defendant has raised the issue of ineffective assistance of counsel on direct appeal:

The [c]ourt should review the entire record on appeal. If ... [after] a review of the record, ... [the][c]ourt can say that the defendant has been denied the effective assistance of counsel, the [c]ourt should also adjudge and reverse and remand for a new trial.... Assuming the [c]ourt is unable to conclude from the record on appeal that defendant’s trial counsel was constitutionally ineffective, the [c]ourt should then proceed to decide the other issues in the case.... On the other hand, if the [c]ourt ... affirmfs], it should do so without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.

(Internal citations omitted). Alternatively, if the appellate court affirms it may still “reach the merits of the ineffectiveness issue where ... the record affirmatively shows ineffectiveness of constitutional dimensions, or ... if the parties [have] stipulate[d] that the record is adequate and the [c]ourt determines that findings of fact by a trial judge[,] able to consider the demeanor of witnesses, are not needed.” Id.

¶ 33. Franklin argues that his trial attorney was ineffective because he failed to seek a cautionary jury instruction advising the jury to weigh the testimonies of Patton, Thompson, and Merritts with great care and caution and to look upon their testimonies with distrust and suspicion. Franklin also argues that his trial attorney rendered ineffective assistance because he failed to timely subpoena witnesses that Franklin contends were essential to his defense. With respect to Franklin’s contention that his attorney failed to timely subpoena witnesses, the record reflects that after the State rested its case, Franklin’s attorney informed the court that five days prior to trial he had subpoenaed eighteen witnesses. He also indicated that none of the witnesses that he had subpoenaed who were in the custody of the Mississippi Department of Corrections were present at the trial. Additionally, Franklin’s attorney stated in pertinent part:

Your Honor is aware we tried this thing three times. This is the same kind of thing I filed in the last case, and we didn’t have any problem locating witnesses then. I am not saying anyone did anything deliberate. I wouldn’t say that, because I don’t actually believe any of this is deliberate, but I think somewhere in the process there has been a little break down, and it has now caused some friction between myself and my client. We are at odds as to how to proceed here, what to do next. I have given him my opinion, that with the two witnesses, one in absentia, that we will be providing in certain stipulations and admissions of evidence between myself and the [S]tate, that we will have established what we need by way of evidence. But my client wants you to know that he objects to my theory of what we should do here, and I don’t know if it’s going to be a problem. I am comfortable myself in proceeding from [sic] now, but I know my client wants me to have this on the record.

¶ 34. Based on Franklin’s counsel’s statement, it would not be an impermissible inference to conclude that some of the ■witnesses who were subpoenaed but did not appear for trial testified in Franklin’s previous trials that resulted in mistrials. Hence, we cannot conclude that Franklin’s “counsel was constitutionally ineffective” because we are not informed as to what the testimonies of those witnesses might have been, and the parties have not stipulated that the record is adequate for us to make that determination. Therefore, in accordance "with Read, we decline to decide Franklin’s ineffective assistance of counsel claim. He may, if he desires to do so, file an appropriate motion for post-conviction relief raising the ineffective assistance of counsel issue.

3. Circumstantial Evidence Jury Instruction

¶ 35. The defense tendered jury instruction D-6, which reads as follows:

The Court instructs the jury that before you are warranted in convicting the Defendant on the evidence in this case you must exclude every reasonable hypothesis consistent with his innocence; and that if there is a reasonable hypothesis consistent with his innocence then it is your sworn duty to find the Defendant not guilty.

The State objected, arguing that a circumstantial evidence instruction was not warranted because direct evidence links Franklin to the murders. The defense disagreed and argued that the circumstantial evidence instruction should be given because there was no direct evidence that Franklin killed Brock and Mason. Initially, the trial judge concluded that instruction D-6 would be granted; however, the State continued to assert that a circumstantial evidence instruction was not warranted. The State argued that the testimonies of Patton and Sumrall qualify as direct evidence. Thereafter, the court agreed with the State and refused to grant the instruction.

¶ 36. “Circumstantial evidence instructions are required when the prosecution is without a confession and without eyewitnesses to the gravamen of the offense charged.” Simpson v. State, 553 So.2d 37, 39 (Miss.1989) (citing Woodward v. State, 533 So.2d 418, 431 (Miss.1988)).

¶ 37. We agree with the trial court that Franklin was not entitled to a circumstantial evidence instruction because the State presented the testimony of Patton and Merritts who testified that Franklin confessed to them that he had killed Mason and Brock. There is no merit to this issue.

Jh Confrontation Clause

¶ 38. In his final issue, Franklin contends that he was denied the right to confront a witness against him. Franklin argues that his attorney was attempting to impeach Johnson’s credibility by showing that she suffered from a mental condition and that she could not read. He contends that his attorney was prevented from doing so by the State’s objection and by the trial court’s sustainment of the objection. On this point, the record reflects the following exchange between Franklin’s attorney and Johnson:

Q. You’re aware that they recorded the statements that you made?
A. Right, recorded.
Q. And they were eventually reduced to typewritten.
A. I guess so.
Q. You never read—
A. I never read the statement, never.
Q. All right. Ms. Johnson, I’m not trying to embarrass you or anything, but you said you were unemployed. Why is that?
A. I draw disability, mental.
Q. What do you draw disability for?
A. Mental.
[ATTORNEY FOR STATE]: Object to relevancy, judge.
THE COURT: Sustained.
[ATTORNEY FOR DEFENDANT]: One moment, please, your Honor. No further questions.

¶ 39. We find that Franklin’s contention here is not borne out by the record. As the above colloquy shows, Franklin was not prevented from achieving the objective that he contends was the aim of his cross-examination: showing that the witness had a mental condition and could not read and write. He was able to elicit from the witness that she was mentally disabled and that she never read the statement that she gave to the police. The colloquy demonstrates unquestionably that Franklin’s attorney did not attempt to ask the witness whether she could read; rather he was attempting to ask her if she had read her statement when he was interrupted by her response that she “never read the statement, never.” After getting that response, Franklin’s attorney moved to another subject matter. All of this occurred prior to the objection. Therefore, we find that this issue lacks merit.

¶ 40. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT ONE: MURDER, AND COUNT TWO: MURDER, AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS ON EACH COUNT, AND CONVICTION OF COUNT THREE: ARSON, AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ALL SENTENCES TO RUN CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Due to her inability to read and write, the prosecutor was allowed to read a portion of her statement to her in order to refresh her recollection.

      . Patton was incarcerated for distribution of narcotics, and Thompson was serving a fourteen-year sentence for drug trafficking.

      . Thompson noted that he also had seen the smoke in the air before he ran into Franklin.

      . Thompson stated that he did not know how Lieutenant Petersen knew to contact him.

      .Merritts stated that the duplex where he lived is located in front of the apartment complex where Franklin lived.

      . Franklin and Hawthorne were dating in 2001 when the murders occurred. However, Patton claimed that he was unaware of Franklin and Hawthorne's relationship.

      . D-24 reads as follows:
      The Courl instructs the jury that the law looks with suspicion and distrust on the testimony of an alleged informant, and requires the jury to weigh [the] same with great care and suspicion. You should weigh the testimony from alleged informant, and passing on what weight, if any, you should give this testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.