author: WILSON, J.,

text:
    In the Matter of the ESTATE OF Richard L. GARDNER, Deceased: Linda Gardner Callington, Andrew Gardner and Larry Ross, Appellants v. Mae Otha GARDNER, Appellee
    NO. 2015-CA-01447-COA
    Court of Appeals of Mississippi.
    02/21/2017
    Rehearing Denied June 6, 2017

      ATTORNEY FOR APPELLANTS: JOSHUA A. TURNER ,
    ' ATTORNEYS FOR APPELLEE: WILLIAM R. SANDERS JR., DARRIN JAYWESTFAUL
    BEFORE BARNES, P.J., WILSON AND GREENLEE, JJ. .
   WILSON, J.,

FOR THE COURT:

¶ 1. Richard Gardner died leaving a will that devised his entire- estate to his wife, Mae Otha Gardner. An estate was opened and later declared- insolvent. However, a fire destroyed a building owned by the estate, and insurance proceeds were sufficient to pay the estate’s debts and leave a surplus for Mae Otha. At that point, Richard’s children filed a petition to contest the will A jury returned a verdict for the children, finding both that Richard did not sign the will and that he lacked testamentary capacity. However, the chancellor granted Mae Otha’s motion for judgment notwithstanding the verdict. On appeal, Richard’s children argue that there was sufficient evidence to sustain the verdict, but we agree with the chancellor that Mae Otha was entitled to judgment as= a matter of law. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Richard was born in Indianola in 1925 and lived most of his life in Charleston, Mississippi,, Richard and his first wife had three children, Linda Gardner Calling-ton, Andrew Gardner,, and Sylvia Gardner Moore. Richard had a fourth child, Larry Ross, by another woman. Richard’s first wife passed away, and in February 1987 he married Mae. Otha. At the time of them marriage, Richard was sixty-one years of age, and Mae'Otha was forty-two. No children were born to their marriage.

¶3. Linda testified that before-Richard married Mae Otha, he told Linda that he wanted her to be the-executor of his estate and that he wanted each of his children to receive a child’s part. Linda testified that after Richard married Mae Otha, he stated that Mae Otha should also receive a child’s part of his estate.

¶4. Linda testified that in “the latter part of 2008” her father “started being a little sick,” and in February 2009 he had a “little light stroke.” Linda testified that he recovered from the stroke but became “sicker and weaker.” Linda testified that Richard was taking Risperdal, Hydroco-done, and Plavix. Linda’s husband, Jeff Callington,. claimed that the Risperdal “would render [Richard] helpless”'and unable to open his eyes or sometimes caused his hands to shake. Linda also testified that Richard had started bouncing checks, so the children encouraged him to execute a power of attorney in favor of Mae Otha.

¶ 5. Mae, Otha. testified that she and Andrew took Richard to the hospital in February 2009 because she thought he had a stroke. However, the doctors told her that they could not find anything wrong with Richard and that, if anything, he had a “mini-stroke” that did not show up on his MRI or other tests. Richard was released from the hospital on March 1, 2009.

¶ 6. On March 2, 2009, Richard went to see attorney William Sanders of Charleston. According to Sylvia, she and Richard first went to the mayor’s office because Richard had decided to withdraw from an election for city commissioner, a position he previously held for approximately twenty years. Sylvia testified that at the may- or’s office, Richard “started fumbling with some ... material that was on [a woman’s] desk,” and she had to tell him to stop. Richard and Sylvia then met Mae Otha at Sanders’s office. Sylvia testified that all three of them met with Sanders, that they discussed the contents of a power of attorney, and that Richard signed the power of attorney. Sylvia testified that she never left her father’s side while at Sanders’s office and that a will was never mentioned or discussed. Sylvia testified that Richard’s “mental capacity” “was okay, but he wasn’t real talkative.... [H]e was okay at that particular time. But he was real weak still, kinda like wasn’t able to function.”

¶ 7. Sylvia’s testimony about the visit to Sanders’s office conflicted with that of everyone else present. Mae Otha testified that Sylvia told Richard that morning that he needed to get a will and a power of attorney. According to Mae Otha, Sylvia drove her and Richard directly to Sanders’s office, and Richard withdrew from the commissioner’s race on a different day. Mae Otha testified that she stayed in the waiting room, while Richard and Sylvia went into Sanders’s office. She testified that at some point, someone came out and asked her “about an old will or something,” so she went home to look for one, but by the time she returned to Sanders’s office, they had finished preparing* the power of attorney and will.' Mae Otha subsequently filed the power of attorney with the chancery clerk. Mae Otha testified that her husband’s mental condition was fine on March 2, 2009, and that he understood what he was doing.

¶ 8. Sanders testified that he knew Richard well because he had been the city attorney for many years while Richard served as a commissioner. Richard did not have an appointment on March 2, 2009, but Sanders agreed to meet with Richard and Sylvia. According to Sanders, both Richard and Sylvia wanted Sanders to prepare a power of attorney and a will for Richard. Sanders testified that he asked Sylvia to leave the room so that he could talk to Richard alone. Sanders testified that he asked Richard several questions to ensure that Richard knew where he was, who and where his family members were, and that he desired to make out a will. Sanders testified that Richard stated several times what he wanted in his will. According to Sanders, Richard stated that he had already “given most of [his] money away” to his children and other relatives, so he “want[ed] everything [he had] left to go to ... Mae Otha.” Sanders then prepared the will and power of attorney and asked for Sylvia and his secretary, Mary Roussel, to come into his office. Richard signed both documents, and Sanders and Roussel also signed both documents as witnesses.

¶ 9. Roussel testified that she had known Richard for over twenty years. She confirmed that she witnessed him sign both the will and power of attorney and that she signed as a witness. Roussel testified that she had a “normal conversation” with Richard that day, they talked about his children, and he seemed to be fine. Roussel also testified that Mae Otha stayed in the waiting room while Richard and Sylvia went back to see Sanders.

¶ 10. Linda testified that she saw Richard on March 2, 2009, after he returned home from Sanders’s office. According to Linda, she asked to see the will because Richard had told her previously that he had written out his will and that he wanted her to review it. Mae Otha responded, “It’s at the lawyer’s office.” Her father nodded in agreement and told her that she could read it later. Apparently there was no further discussion of the will.

¶ 11. Linda testified that on March 2, 2009, her father’s “physical state was terrible—mentally and physically.” According to Linda, he was too weak to get in and out of the car without physical assistance. Linda also testified that Richard had agreed to withdraw from a political race; according to Linda, Sylvia had persuaded him to withdraw because his “mind [was] not good enough to run for” office.

¶ 12. Mae Otha testified that Richard’s mental condition was fine on March 2, 2009, and continuing until his death. Mae Otha testified that Richard decided to close a laundromat that he owned on or about March 12, 2009, because he was losing money on the business.

¶ 13. Richard passed away in Charleston on April 20, 2009, at the age of eighty-four. On May 11,2009, Mae Otha filed a petition to probate the will and for letters testamentary, and in May and June 2009, notice to creditors of the estate was duly published in the Sun-Sentinel, a newspaper.published in Tallahatchie County.

¶ 14. On July 29, 2009, Mae Otha filed a motion to declare Richard’s estate insolvent and to permit the sale of certain estate assets. The motion showed the estate's assets as consisting primarily of a commercial building and lot (the former laundromat); commercial washers and dryers and other fixtures found inside the building; various vacant lots in Charleston; Richard’s home, in which Mae Otha continued to reside; and a riding lawnmower. Richard’s debts included, among others, $44,977 plus interest owed to the Tallahatchie County Bank, which was secured by the commercial property, his home, and a vacant lot; $9,936.23 plus interest owed to the Tallahatchie County Bank and secured by the lawnmower; and several years of unpaid property taxes. The estate’s motion represented that these assets could not be sold or their value estimated easily and requested permission to. begin attempting to sell assets in order to pay debts. The court subsequently approved requests by the estate to sell the riding lawn mower and one vacant lot, and the proceeds of those sales were used to make partial payment to,the bank and to pay some of the, unpaid property taxes.

¶ 15. On December 28, 2009, the old laundromat was destroyed in a fire. The property was insured, and the insurer paid $237,108.27 for the loss. The insurance proceeds were used to pay the estate’s remaining debts, which totaled $89,687.21. The court then granted Mae Otha’s motion to close the estate and to allow her to distribute the remaining assets to herself, as the sole beneficiary of the will. The court’s order, which was entered on March 9, 2010, approved attorneys’ fees and expenses of $23,899.05, which left a surplus of $123,522.01 from the insurance proceeds.

¶ 16. On April 15, 2011, Richard’s four children filed a petition to contest and to set aside their father’s will. The children alleged that the will should be set aside because Richard lacked testamentary capacity, because Mae Otha exerted undue influence over him, and because the will was a forgery and was not duly executed.

¶17. In March 2015, á jury trial was held on the petition. Before submitting the case to the jury, the chancellor granted a directed verdict on the' issues of undue influence and forgery.' By a 10-2 vote, the jury returned a verdict for the children. The- verdict specifically found both' that Richard lacked testamentary capacity and that he did not sign the will.

¶ 18. On April 7, 2015, Mae Otha filed a motion for JNOV or, in the alterhative, a new trial. On August 24, 2015, the chancellor entered an order granting Mae Otha’s motion for JNOV. The chancellor reasoned that he should not have submitted the case to the jury because the children presented no evidence that Richard lacked testamentary capacity. The chancellor also reasoned that because he had already granted a directed verdict on the issue of forgery, the question whether Richard signed the will should not have been submitted to the jury either. On appeal, the children argue that the verdict should be reinstated and the case remanded for further proceedings.

DISCUSSION

¶ 19, “Our standard of review for a trial court’s grant of a motion for [JNOV] is de novo.” Watts v. Radiator Specialty Co., 990 So.2d 143, 150 (¶ 21) (Miss. 2008). We “consider the evidence in the light most favorable to the non-mov-ant, giving that party ... the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Forbes v. Gen. Motors Corp., 935 So.2d 869, 872 (¶ 3) (Miss. 2006). “[I]f the facts so considered point so overwhelmingly in favor of the movant that reasonable jurors could not have arrived at a contrary verdict,” then the movant is entitled to JNOV. Id, However, “if there is substantial evidence, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, we cannot affirm the grant óf a [motion for JNOV].” Id.

¶ 20.-The children argue that the chancellor erred by granting Mae Otha’s motion for JNOV because there was “evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment” (id.) could have found that Richard lacked testamentary capacity or did .'not sign the will. We address these issues in turn.

I. Testamentary Capacity

¶21. “For a will to.be,valid, the testator must possess testamentary, capacity.” Noblin v. Burgess, 54 So.3d 282, 291 (¶ 32) (Miss. Ct. App. 2010). To have testamentary capacity, an individual must be of “soupd and disposing mind.” Miss. Code Ann. § 91-5-1. (Rev. 2013), “Testamentary capacity is determined based on three factors: (1) whether the testator had the ability at the time of the will tp understand' and appreciate the effects of his act; (2) whether the testator had the ability at the time of the will to understand the natural objects or persons to receive his bounty and their relation to him; and (3) whether the testator was capable of determining at the time of the will what disposition he desired to make of his property.” In re Estate of Laughter, 23 So.3d 1055, 1061 (¶ 20) (Miss. 2009). In addition, “[recognizing that a testator may not always possess testamentary capacity, [the Supreme Court has] held that he may nevertheless execute a valid will during- a lucid interval.” In re Estate of Edwards, 520 So.2d 1370, 1373 (Miss. 1988). “The key to testamentary capacity is mental competency at the time the will is made.” Lee v. Lee, 337 So.2d 713, 715 (Miss. 1976).

¶ 22. “The burden .of proving testamentary capacity is on the proponents of the will, who can present a prima facie case simply by offering into evidence the will and the record of probate.” Laughter, 23 So.3d at 1061 (¶ 18), “Once a prima facie case has been established, the burden of going forward shifts to the contestants to overcome the prima facie case.”’ Id, The ultimate burden of proof remains on the proponent, who “may,... present rebuttal proof if necessary.” Edwards, 520 So.2d at 1373. The Supreme “Court has held that the testimony of subscribing witnesses is entitled to greater weight than the testimony of witnesses who were not present at the time of the will’s execution or did not see the testator on the day of the will’s execution.” Id, “In fact, the subscribing witnesses to a will may testify as experts on the question of testamentary capacity.” Id.

¶ 23. “Furthermore, ... opinions of lay witnesses regarding testamentary capacity [must] be supported by ‘facts as a basis for the witnesses’ conclusion.’ ” Estate of Rutland v. Rutland, 24 So.3d 347, 363 (¶ 20) (Miss. Ct. App. 2009) (quoting In re Estate of Briscoe, 293 So.2d 6, 8 (Miss. 1974)). “Overly broad or generalized testimony indicating a lack of capacity will be deemed insufficient where it is contradicted by competent evidence and is ‘obviously based upon the infirmities of advancing age rather than upon any abnormal conduct indicative of mental aberration.’ ” Id. (quoting Briscoe, 293 So.3d at 8).

¶ 24. In the present case, we conclude that the chancellor correctly granted Mae Otha’s motion for JNOV because the children, failed to come - forward with evidence “to overcome the prima facie case” of testamentary capacity. Laughter, 23 So.3d at 1061 (¶ 18). As discussed above, Sylvia, who accompanied Richard to Sanders’s office.and claims to have been present at the power of attorney’s execution, testified that Richard’s “mental capacity” “was okay, but he wasn’t real talkative..,. [H]e was okay at that particular time. But he' was -real .weak still, kinda like wasn’t able to function.” Linda testified, without specificity, that later in the day on March 2, 2009, Richard’s “physical state was terrible—mentally and physically.” She. also testified that he was too weak to get in and out .of a car .without assistance. However, physical weakness does not preclude -one from making a will, and a bare and. unexplained assertion that a testator’s mental state was “terrible” does not raise a jury issue as to his mental capacity.

¶ 26. The children also point to Richard’s decision to withdraw from a local' election, they say because of concerns that his mind was not up to the task. However, Richard’s agreement that he-was no longer up to the task of campaigning-for elected office does not amount to ,an admission, or even evidence that he lacked the mental capacity to sign a will. Finally, the children rely, on testimony from Linda and Jeff about the effects of medication on Richard. However, neither Linda nor Jeff was present when Richard executed his will, and none of those who were present testified that Richard was under the influence of medication to the extent that he appeared incapable of understanding what he was doing.

¶ 26. The subscribing witnesses .to the will—Sanders and Roussel—had both known Richard for many years, and both testified that -he was mentally alert and capable of understanding what he was doing when he executed his will. Sanders further testified that Richard was clear and- specific regarding his wishes. Moreover, in addition to the absence of any evidence that Richard lacked testamentary capacity, we note that the mental capacity required to execute a general power of attorney is essentially the same- as the capacity required to execute a will. See Dowdy v. Smith, 818 So.2d 1255, 1258-59 (¶ 16) (Miss. Ct. App. 2002). With Linda’s encouragement, Sylvia took Richard to Sanders’s office for the specific purpose of signing a general power of attorney, and Sylvia testified specifically that she believed that her father had the mental capacity to sign the power of attorney. Yet neither- Sylvia nor Linda was able to explain at trial why they thought Richard had the capacity to sign the power of attorney but not the will.

¶ 27. In short, the children presented no evidence that Richard lacked testamentary capacity at the time he executed his will. All testimony relevant to his mental capacity on March 2, 2009, indicates that he had sufficient capacity to execute both a general power of attorney and a will. Accordingly, the chancellor’s ruling granting Mae Otha’s motion for JNOV was correct as it relates to the issue of testamentary capacity. See Hayward v. Hayward, 299 So.2d 207, 209-11 (Miss. 1974); Noblin, 54 So.3d 291-95 (¶¶ 34-45); Rutland, 24 So.3d at 351-53 (¶¶ 10-22); In re Estate of Pigg, 877 So.2d 406, 410-11 (¶¶ 12-23) (Miss. Ct. App. 2003).

II. Richard’s Signature

¶28. As discussed above, Sylvia claimed that she witnessed her father sign the power of attorney but that a will was never mentioned or discussed. When asked at trial whether the signature on the will appeared to be her father’s, she testified, “It don’t seem to be.” When asked on cross-examination whether the signature on the power of attorney was her father’s, she testified, “It’s not my father’s—well, this is my father’s, looks like it’s my father’s writing.” And when asked to explain the difference between the two signatures—which, to the lay eye, look the same—Sylvia testified that the signature on the will dipped ever so slightly below the signature line, whereas the signature on the power of attorney did not. Jeff and Linda also testified that the signature on the will does not appear to be Richard’s, although Linda testified that it “describes” her father’s signature “a little bit.” No other examples of Richard’s signature were offered or admitted into evidence.

¶29. In contrast, the two subscribing witnesses to the will—Sanders and Rous-sel—both testified unequivocally that they personally observed Richard sign the will and that the signature on the will was his.

¶ 30. When counsel for the parties began discussing jury instructions, counsel for the children essentially conceded that there was no evidence of “forgery” but nonetheless contended that the question whether Richard signed the will should be submitted to the jury. Counsel for Mae Otha argued that he had proven as a matter of law that the signature was Richard’s and that any suggestion to the contrary was frivolous. The chancellor' ultimately agreed to submit the issue to the jury without any mention of “forgery.”

¶ 31. We agree with the chancellor’s post-trial ruling that there was no evidence from which a rational juror could have found that Richard did not sign the will. Logically, if the signature on the will were not Richard’s, someone must have forged it, and Sanders and his secretary must have been complicit in the forgery. But the children do not even argue that there is any evidence of forgery. Furthermore, the testimony of Linda, Jeff, and Sylvia that the signature does not appear to be or does not look like Richard’s is insufficient to create a jury issue in the face of the testimony of two subscribing witnesses that it is his signature. This is particularly true given that the signature on the will is virtually indistinguishable from the con-cededly authentic signature on the power of attorney, which was executed on the same day. Compare Culbreath v. Johnson, 427 So.2d 705, 708-09 (Miss. 1988) (affirming chancellor’s finding that a deed was forged based on not only lay testimony but also the “tremendous variance” between the challenged signature and admitted true samples of the grantor’s signature, expert testimony, and the fact that the only purported witnesses to the deed’s execution were the grantees and their minor children). Accordingly, the chancellor’s ruling granting Mae Otha’s motion for JNOV was also correct as it relates to the question whether Richard signed the will.

CONCLUSION

¶ 32. For the foregoing reasons, there was no evidence from which a rational juror could have found that Richard lacked testamentary capacity or did not sign the will. Accordingly, we affirm the ruling of the chancery court granting Mae Otha’s motion for JNOV.

¶ 33. THE JUDGMENT OF THE TAL-LAHATCHIE COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Charleston is governed by a mayor and a board of commissioners pursuant to a "special” or "private” charter.

      . Linda testified that she recalled Mae Otha returning home to look for an old will.


source: Caselaw Access Project

author: GREENLEE, J.,

license: Public Domain

text:
    Lamontay MARSH a/k/a Lamontay D. Marsh a/k/a Lamontay D’Shawn Marsh a/k/a Moe, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00072-COA
    Court of Appeals of Mississippi.
    02/28/2017
    Rehearing Denied June 6, 2017

      ATTORNEY FOR APPELLANT: LA-MONTAY MARSH (PRO SE)
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART JASON L. DAVIS
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. This is an appeal from Lauderdale County Circuit Court where LaMontay Marsh moved for post-conviction collateral relief (PCR), which was denied. On appeal, Marsh asserts that the circuit court erred because (1) his indictment contained the word “unlawfully” instead of “without authority of law”; (2) he is actually innocent; and (3) his trial counsel’s assistance'was ineffective. Because (1) the term “unlawfully” is synonymous and interchangeable with the phrase “without authority of law’; (2) Marsh failed to demonstrate that it is more likely than not that no reasonable juror would'convict him; and (3) we fail to see that the assistance of Marsh’s counsel was ineffective, wé affirm the circuit court’s denial of Marsh’s motion for PCR.

FACTS AND PROCEDURAL BACKGROUND

¶ 2. On March 21, 2012, Marsh was indicted for capital murder for the killing of Thomas Eugene Tedeschi while engaged in the commission of the felony crime of armed robbery, in violation of Mississippi Code ' Annotated section 97—3—19(2)(e) (Rev. 2006). On November 29, 2012, Marsh entered a guilty plea and, per the récom-mendation of a plea agreement with' the district. attorney’s office, was adjudged guilty of noncapital murder and sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections with the possibility of parole.

¶ 3. On July 23, 2015, Marsh moved for PCR. On January 5, 2016, the Lauderdale County Circuit Court denied Marsh’s motion for PCR. On January 22, 2016, Marsh appealed the circuit court’s decision to this Court.

DISCUSSION

¶ 4. On appeal, Marsh asserts three errors: (1) his indictment did not contain, the words “without the authority of law”; (2) he is actually innocent; and (3) his trial counsel’s assistance was ineffective.

¶ 5. We review the denial of PCR for clear error; however, questions of law are reviewed-de novo. Ryals v. State, 51 So.3d 974, 975 (¶ 4) (Miss. App. Ct. 2010).

I. Marsh’s Indictment

¶ 6.- Because Marsh’s indictment did not include the phrase “without authority, of law,”. Marsh asserts (1) his indictment is defective,, and (2) the grand jury, trial court, district attorney, and his trial counsel committed plain error.

¶ 7. Marsh was indicted for capital murder in violation of Mississippi Code Annotated section 97-3-19(2)(e), which states that “[t]he killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases: ... when done with or without any design to effect death, by any person engaged in the commission of the crime of .., robbery ... or in any attempt to commit such felon[y.]” (Emphasis added). '

¶8. Instead of using the phrase “without authority of law,” Marsh’s indictment used the word “unlawfully.” The Mississippi Supreme Court has held that using the word “unlawfully” in place of the phrase '-'“without authority' of law” is not error because the words are synonymous and interchangeable. Turner v. State, 796 So.2d 998, 1003 (¶ 20) (Miss. 2001). Thus, Marsh’s indictment is not defective, and there was no plain error committed by the grand jury, the trial court, the district attorney, or Marsh’s trial -counsel. Therefore, we find this issue is without merit.

II. The Trial Court’s Denial of an Evidentiary Hearing

¶ 9. Marsh asserts that the, trial court erred in denying him an evidentiary hearing because he is actually innocent.

¶ 10. To prove actual innocence, Marsh must show that, in light of.all the evidence, it is more likely than not that no reasonable juror would have convicted him of the crime charged. Trotter v. State, 907 So.2d 397, 401 (¶ 12) (Miss. Ct. App. 2005) (citing Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)), “Actual innocence means factual innocence, not mere legal sufficiency.” Id.

¶ 11. In support of Marsh’s claim that he is actually innocent, he submitted his own affidavit concerning the events charged in his indictment. The summarized points of Marsh’s affidavit are that (1) Marsh did not shoot Tedeschi, (2) RaKeith Watson shot Tedeschi, (3) Watson’s and Alexander Jenkins’s statements to police that Marsh shot Tedeschi were false, (4) Marsh was not involved until after Tedes-chi was shot and killed, and (5) the only reasons Marsh pleaded guilty were because his trial counsel said he could not come up with a defense and because Watson asked him to do so.

¶ 12. However, Marsh’s affidavit contradicts his own statement made to police. In Marsh’s statement to police, he said that he was in the car when Tedeschi was shot and that the robbery happened as he was driving toward Quitman. -Further, Watson and- Jenkins both stated to police that Marsh shot Tedeschi. Also, according to the State’s offer of proof, Marqueze Gordon also stated-to police that “[Marsh] shot [Tedeschi]. They all came and told him that.” :

¶ 13. Based on those facts we cannot, say that no reasonable juror would have convicted Marsh. Thus, we find this issue is without merit.

III. Assistance of Marsh’s Counsel

¶ 14. To prevail on an ineffective-assistance-of-counsel claim, one must show that (1) his counsel’s performance was deficient and (2) prejudice resulted. Jackson v. State, 178 So.3d 807, 812 (¶ 19) (Miss. Ct. App. 2014) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “It is presumed that counsel’s representation falls within the range of reasonable professional assistance.” Id. at (¶ 20) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). To overcome the presumption, one must show that there is a reasonable probability that, but for counsel’s ineffectiveness, the result of the proceeding would have been different. Id.

¶ 15. On appeal, Marsh asserts his trial counsel was ineffective when he purportedly (1) gave Marsh false information by telling him that he would be eligible for parole, (2) failed to conduct a pretrial investigation, and (3) failed to put forth a defense.

¶ 16. At his plea hearing, the trial judge asked Marsh if he understood that anything his trial counsel told him about sentencing was only his opinion and that his trial counsel’s stating what sentence he thought Marsh would get was not binding, to which Marsh indicated that he understood. Marsh also stated that his trial counsel did discuss any possible legal defenses with him. When Marsh’s trial counsel was asked if Marsh had any legal defenses,- he stated that he did not. Further, Marsh indicated in his written and signed plea petition as well as verbally at his plea hearing that he felt his trial counsel was competent and adequately represented him. Even further, Marsh was sentenced to life with the possibility of parole, and Marsh’s felony armed-robbery charge was dismissed.

¶ 17. Based on our review of the record, there is nothing to suggest that Marsh’s counsel failed to conduct a pretrial investigation or that his counsel’s alleged failure to do so prejudiced Marsh. As indicated from the record, Marsh’s trial counsel negotiated Marsh’s plea and, as a result of the negotiation, Marsh was adjudged guilty of noncapital. murder, allowing him the possibility of parole—as opposed to being adjudged guilty of capital murder and not being afforded the possibility of parole—in exchange for his plea. Further, the record reflects that Marsh was sentenced to life imprisonment with the possibility of parole. Thus, we find that Marsh fails to show that his counsel’s assistance was ineffective. Thus, this issue is without merit.

CONCLUSION

¶ 18. We affirm the decision of the Laud-erdale County Circuit Court denying post-conviction relief.

¶ 19. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDER-DALE COUNTY.

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

      . Marsh entered an Alford plea. An Alford plea is a plea where the defendant enters a guilty plea but maintains his innocence in accord with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


text:
    Keith Leon JOHNSON a/k/a Keith L. Johnson a/k/a Keith Johnson, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00370-COA
    Court of Appeals of Mississippi.
    02/28/2017
    Rehearing Denied June 6, 2017

      ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN, GEORGE T. HOLMES
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, JASON L. DAVIS
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶1. This is an appeal from Newton County Circuit Court where Keith Leon Johnson was convicted of felony fleeing in a motor vehicle from a law-enforcement officer and sentenced as a habitual offender to five years’ incarceration with the Mississippi Department of Corrections (MDOC), without the possibility of early release. On appeal, Johnson asserts the circuit court erred in finding there was probablé cause for the stop and in denying his lesser-included-offense jury instruction on reckless driving. Finding no error, we affirm.

FACTS AND PROCEEDINGS BELOW

¶2. On Monday, June 2, 2014, at approximately 1:40 p.m., Officer Clay Garvin of the Decatur Police Department initiated a traffic stop of a vehicle for failing to signal a turn. After the vehicle came to a complete stop, Officer Garvin approached, and the driver identified himself as Johnson. While Johnson was retrieving his proof of insurance and transcribing his social-security number, Officer Garvin observed what appeared to be a box of alcohol and a white powdery substance in the back seat of Johnson’s vehicle. Officer Garvin asked Johnson if the box contained alcohol, and Johnson confirmed that it did. Officer Gar-vin .asked what the white powdery substance was on his back seat and Johnson stated that it was baby powder.. Officer Johnson returned to his patrol car to verify Johnson’s information, check the vehicle’s registration, and request backup.

¶3. After confirming Johnson’s information and backup had arrived, Officer Gar-vin returned to Johnson’s vehicle. He informed Johnson that it was illegal to possess alcohol in Newton County as it is a dry county and that he suspected Johnson of possessing illegal narcotics based on the white powder across Johnson’s back seat' and because he had previously arrested Johnson for cocaine. Officer Garvin requested that Johnson step out of the vehicle. As Officer Garvin was attempting to open Johnson’s driver door, Johnson fled from the officers on scene, and Officer Garvin and other law-enforcement officers gave chase to Johnson as he exceeded 120 miles per hour through traffic, crossing a double-yellow line multiple times. Shortly after, Johnson abandoned his attempted flight, stopped his vehicle, and was arrested. ■

¶4. On September 29, 2014, Johnson was indicted as a habitual offender on one count of fleeing in a motor vehicle from a law-enforcement officer in violation of Mississippi Code Annotated section 97-9-72(2) (Rev. 20Í4). On December 16, 2015, a jury trial was held, and Johnson was found guilty and sentenced as a habitual offender to five years’ incarceration in the custody of the MDOC. Johnson moved for a judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied. Johnson appeals to this Court.

DISCUSSION

¶5. On appeal, Johnson asserts the circuit court erred, because (1) Officer Garvin had no probable cause for his stop of Johnson, and (2) it denied his lesser-included-offense instruction when the evidence supported a conviction of the lesser-included offense of reckless' driving.

I. Probable Cause

¶6. Johnson asserts that Officer Garvin lacked probable cause to stop him. “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Woods v. State, 175 So.3d 579, 581 (¶ 13) (Miss. Ct. App. 2015) (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). “Section 63-3-707 requires [that] a driver turning right or left give a continuous signal for a reasonable distance before turning in the event any other vehicle may be affected[.]” Woods, 175 So.3d at 582 (¶ 14) (citing Melton v. State, 118 So.3d 605, 609 (¶ 18) (Miss. Ct. App. 2012)); see also Miss. Code Ann. § 63-3-707 (Rev. 2013). “Section 63-7-707 clearly requires a signal when other vehicles may be affected' by a turn—even when no accident is likely to occur as the result of the driver’s failure to give a proper signal.” Woods, 175 So.3d at 582 (¶ 14) (citing Melton, 118 So.3d at 609 (¶ 13)). It is well settled that a police officer personally observing a traffic violation is sufficient to meet the requisite cause for a stop. See Mosley v. State, 89 So.3d 41, 46 (¶¶ 16-17) (Miss. Ct. App. 2011).

¶7. Here, Officer Garvin testified that he personally observed Johnson make a right turn onto a state highway without signaling while traffic was presentía traffic violation. Johnson admitted to the same at trial. Thus, we find this issue is without merit.

II. Denial of Johnson’s Jury Instruction

¶8. Johnson asserts that the circuit court erred in denying his lesser-included-offense instruction because the evidence purportedly supported a conviction on a lesser-included offense of reckless driving.

¶9. The Court applies an abuse-of-discretion standard to jury instructions. Reith v. State, 135 So.3d 862, 864 (¶ 4) (Miss. 2014). Jury instructions are read as a whole, with no one instruction being read alone or taken' out of context. Id. at 865 (¶ 4). “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. A lesser-included-offense instruction is warranted where a rational or reasonable jury could find, from the evidence presented, that the defendant was not guilty of the principal offense charged in the indictment, but guilty of the lesser-included offense. Downs v. State, 962 So.2d 1255, 1261 (¶¶ 27-28) (Miss. 2007) (citing Green v. State, 631 So.2d 167, 173 (Miss. 1994)). For an offense to be a lesser-included one of the offense charged, all elements of the lesser offense must be included in the greater offense. Hye v. State, 162 So.3d 750, 754 (¶ 8) (Miss. 2015).

¶10. The crime of failing to yield to a law-enforcement officer requires the following: (1) a driver of a motor vehicle to be given a signal directing the driver to stop; (2) a law-enforcement officer acting in the lawful performance of his duty and with reasonable suspicion to believe that the driver has committed a crime; and (3) the driver to willfully fail to obey the law-enforcement officer’s direction. Miss. Code Ann. § 97-9-72(1) (Rev. 2014). A person commits reckless driving when he operates a motor vehicle in a manner indicating “either a willful or wanton disregard for the safety of persons or property.” Miss. Code Ann. § 63-3-1201 (Rev. 2013). It is clear that no element of the crime of reckless driving is included in the crime of fleeing a law-enforcement officer; thus, it is not a lesser-included offense. The Mississippi Supreme Court has explicitly rejected the authorization ’ of lesser-nonin-cluded-offense instructions. Hye, 162 So.3d at 764 (¶ 39).

¶11. Here, Johnson was charged with failing to yield to a law-enforcement officer as a felony, and no other crime. Thus, because reckless driving is not a lesser-included offense of fleeing a law-enforcement officer, Johnson was not charged with reckless driving, and lesser-nonin-cluded-offense instructions are not authorized, we find this issue is without merit.

CONCLUSION

¶12. We affirm the jury’s conviction of Johnson for felony failing to stop a motor vehicle pursuant to the signal of a law-enforcement officer and his sentence as a habitual offender.

¶13. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY OF CONVICTION OF FELONY FAILING TO STOP A MOTOR VEHICLE PURSUANT TO THE SIGNAL OF A LAW-ENFORCEMENT OFFICER AND SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, AND TO PAY A FINE OF $3,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

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

      . Officer Garvin first noticed Johnson's vehicle moments prior when Johnson came to a complete stop in the middle of an intersection with no stop sign or stoplight and again when Johnson made an unsignaled turn at aii intersection, all prior to the turn for which Officer Garvin stopped Johnson, Both Johnson and Officer Garvin testified that there was traffic present at the intersection and that Johnson was turning onto a state highway.

      . Johnson’s proof of insurance was expired; he did not have a current proof of insurance readily available.

      . Johnson státed that his driver’s license was in his "church pants” and not readily available. Johnson gave Officer Garvin his social-security number as an alternative form of identification,

      . Though Johnson asserts only that the circuit .court, erred in denying his lesser-included-offense instruction, we are unable to properly address that assertion without also addressing his assertion that Officer Garvin lacked probable cause for the initial - stop and that the evidence supported a lesser-included-ofiense instruction of reckless driving.


author: ISHEE, J.,

text:
    Erin HOWARD, Appellant v. R.M. SMITH INVESTMENTS, L.P., Appellee
    NO. 2015-CA-01235-COA
    Court of Appeals of Mississippi.
    02/28/2017
    See also 2016 WL 4530812.

      CRYSTAL WISE MARTIN, SUZANNE KEYS, JACKSON, ATTORNEYS FOR APPELLANT
    JAMIE D. TRAVIS, TUJUANA S. McGEE, JACKSON, ATTORNEYS FOR APPELLEE
    BEFORE IRVING, P.J., ISHEE, FAIR AND WILSON, JJ.
   ISHEE, J.,

FOR'THE COURT:

. ¶ 1. On June 5, 2013, while working as a manager at Dollar General, Erin Howard was kidnapped and assaulted at gunpoint by Justin Dennis. Dennis later pleaded guilty to kidnapping and was sentenced to fourteen years in the custody of the Mississippi. Department of Corrections. Erin Howard filed a negligence-based premises-liability claim against R.M. Smith Investments L.P., the owner of the property where the Dollar General was located. After proceeding with discovery, on October 30, 2014, R.M.. Smith filed its initial motion for. summary judgment. • The motion was denied, but renewed again on July 31, 2015. The Hinds County Circuit Court granted the renewed motion for summary judgment in favor of R.M. Smith, and Howard now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. Howard began working as a manager at the Dollar General located on Capitol Street in downtown Jackson approximately three years before the kidnapping'incident occurred. R.M. Smith leased the property to Dolgencorp LLC, the owners of the Dollar General franchise. Howard worked for Dollar General, and was in no way employed by R.M. Smith. Prior to the incident, there had only been two) instances of violence on the premises. While the surrounding neighborhood experienced frequent criminal activity, the Dollar General location was relatively unscathed.

¶ 3.' A few months prior to the kidnapping incident, Howard and Dennis had two volatile encounters in which Dennis became belligerent, and cursed at and threatened Howard. On both occasions, Howard subsequently banned Dennis from the store until further notice. Dennis generally abided by Howard’s ban. Howard never informed police, R.M. Smith, Dolgencorp, or any other authoritative figure of her prior encounters with Dennis.

¶ 4. On or about June 3, 2013, Howard was preparing the store and the employees for supervisory visits. However, during her preparation, the store telephone rang repeatedly. Howard answered the phone calls, but the caller hung up each time. She used the store’s caller-ID feature to obtain the caller’s phone number, and she used her personal cell phone to text the caller. Howard asked the caller if there was “anything or anyone at Dollar General can assist with [sic].” The caller responded crudely, and the pair exchanged a series of “heated” messages that insinuated threats of violence against the other. The caller ended the conversation with an ominous text telling Howard that they would “see [her] later” that day. Howard maintains that she was unaware that the caller was in fact Justin Dennis, and that she did not realize who the caller was until Dennis kidnapped her. Again, Howard did not inform anyone of this encounter.

¶ 5, Approximately thirty minutes after the last heated text message was exchanged, Howard went outside into the parking lot of the store. As seen" on the indoor security video" footage, one minute later, Howard ran back 'into the' store, trailed by Dennis, who was carrying a handgun: Dennis fired one shot in the store and brought Howard back outside and loaded her into his vehicle. Howard remained with Dennis "for roughly six hours before police officers successfully negotiated her freedom. There were no security guards employed by R.M. Smith for the Dollar General location, nOr were any working security cameras facing' the parking lot where a large part of the incident occurred.

¶ 6. R.M. Smith renewed its initial motion for summary judgment, which was granted on October 30, 2015. Howard appealed the circuit court’s decision and, while Howard asserts four issues in her brief, all of the issues relate to the larger issue of whether summary judgment was properly granted.

DISCUSSION

¶ 7. A trial court’s grant of summary-judgment is reviewed de novo. Thrash v. Deutsch, Kerrigan & Stiles LLP, 183 So.3d 838, 841 (¶ 10) (Miss. 2016). “Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to [a] judgment as a matter of law.” Id. at 841-42 (¶ 10) (citing M.R.C.P. 66(c)). The movant bears the burden of showing that no genuine issue of material fact exists, and the evidence must be viewed in the light most favorable to the nonmovant. Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss. 2005). “When considering a motion for summary judgment, the trial court must not try issues of fact; rather, it is to decide whether issues exist that must be determined at trial.” Crawford v. Custom Sign Co., 138 So.3d 894, 898 (¶ 11) (Miss. 2014). Summary judgment is appropriate where the non-moving party .cannot make a prima facie showing of all of the elements of her claim. Huynh v. Phillips, 95 So.3d 1259, 1262 (¶ 9) (Miss. 2012). “[Sjummary judgment is mandated where the respondent has failed to make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial.” M.R.C.P. 56(c); Smith ex rel. Smith v. Gilmore Memorial Hosp. Inc., 952 So.2d 177 (¶ 9) (Miss. 2007).

¶ 8. In a negligence-based premises-liability case, a plaintiff “must show that the defendant breached a particular duty owed to the plaintiff, and that the breach of duty proximately caused damages.” Kroger v. Knox, 98 So.3d 441, 443 (¶ 13) (Miss. 2012). The Mississippi Supreme Court has held that “failure on the part of [the invitee] to make any showing as to proximate cause, an essential element of his claim, makes summary judgment in favor of [the premises owner] appropriate in this instance.” Jeffrey Jackson et al., Encyclopedia of Mississippi Law § 13:170 (2015) (citing Crain v. Cleveland Lodge 1532, Order of Moose Inc., 641 So.2d 1186 (Miss. 1994)).

¶ 9. In the case at bar, Howard was deposed by R.M. Smith, and in her deposition, she admitted that she initiated contact with Dennis by texting him from her personal cell phone. Because supervisors were inspecting the store later that day, Howard testified that she got the caller’s number from the store’s caller ID and initiated contact by asking, “[I]s there anything or anyone at Dollar General can assist you with [sic].” The conversation continued, and was escalated by both parties. At one point Dennis said, “You won’t make it to the next year.” To which Howard responded, “[T]hat’s fíne .... I hope your people can bury you like my people can bury me.” She further responded, “[Y]ou probably can’t read,” and Dennis ended the conversation by replying, “[S]ince I can’t read, you’ll have to see me.” Howard admitted later that Dennis informed her that he would see her that day.

¶ 10. After conducting two hearings on R.M. Smith’s motion for summary judgment, the circuit court weighed all of the evidence presented and found these text messages to be a provocation and an independent intervening cause of Howard’s injuries.

¶11. Property owners have a duty to remedy or warn of dangerous conditions on their property that are known, or should be known. Crain, 641 So.2d at 1186 (¶ 8). “Where the alleged dangerous condition is the threat of an assault, “[t]he requisite cause to anticipate the assault may arise from (1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists on the premises.” Knox, 98 So.3d at 466 (¶ 14). Even if there is evidence supporting the conclusion that the property owner knew of, and allowed, an atmosphere of violence to exist, the owner is not liable if the plaintiff created and caused the harmful event in question. Titus v. Williams, 844 So.2d 459, 466 (¶ 26) (Miss. 2003); see generally Kelly v. Retzer & Retzer Inc., 417 So.2d 556 (Miss. 1982). However, no duty to warn is owed to an invitee, licensee, or trespasser if the dangerous situation was one she created herself and was such that she was well aware of its presence. Titus, 844 So.2d at 466 (¶ 26).

¶ 12. Following the precedent in Titus, R.M. Smith owed no duty to Howard because she created the dangerous situation herself. She initiated contact with Dennis, provoked him over text messages, and failed to provide notice to anyone that Dennis may arrive at the store later that day. Dennis testified that upon receiving the text messages, he was extremely angry and that Howard was his only target that day. Howard was an independent intervening cause that was unforeseeable to R.M. Smith and, thus, severed any liability R.M. Smith might have regarding Howard’s injuries.

¶ 13. Additionally, Howard never informed R.M. Smith of her previous encounters with Dennis, nor did she inform it of her text-message conversation with Dennis on the day of the kidnapping. R.M. Smith did not have actual knowledge of the dangerous threat Dennis posed to Howard. Further, R.M. Smith did not have actual knowledge of an “atmosphere of violence” at the property. There had only been two previous crimes of violence at the property in the five years preceding Howard’s kidnapping. See Knox, 98 So.3d at 444 (¶ 16) (finding no atmosphere of violence existed even where there were four instances of criminal activity). The minimal amount of crimes of violence in the five-year period prior to the incident does not establish an atmosphere of violence. This is especially true when the two incidents are contrasted with the location of the store and the crime statistics of the surrounding area. For the same reasons stated above, R.M. Smith did not have constructive knowledge either. R.M. Smith cannot be expected to constructively know of a personal vendetta against an employee when that employee never informed it of such. Nor could it constructively know of an atmosphere of violence when one did not exist.

¶ 14. The circuit court used the aforementioned relevant precedent, in conjunction with the evidence and testimony presented, to correctly determine that no genuine issue of material fact existed. Howard failed to establish the essential element of proximate cause, and the circuit court correctly granted R.M. Smith’s motion for summary judgment. For these reasons, we affirm.

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

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

      . See Wright v. R.M. Smith Investments, L.P., 2015-CA-00199-COA, 2016 WL 4530812 (Miss. Ct. App. Aug. 30, 2016). In Wright, Pearlie Wright filed a negligence-based premises-liability claim against R.M. Smith. Wright retained the same expert as Howard did in this case, and the Hinds County Circuit Court struck Wright's expert's testimony and granted summary judgment in favor of R.M. Smith. The attorneys who represent Howard in today’s case are the same attorneys who represented Wright; thus the arguments presented by Howard are extremely similar to those previously presented by Wright on appeal,

      . Howard frames the issues on appeal as the following; (1) Summary judgment was improper because there existed genuine issues of material fact; (2). The circuit court erred in finding that Titus v. Williams, 844 So.2d 459 (Miss. 2003), and Kelly v. Retzer & Retzer Inc., 417 So.2d 556 (Miss. 1982), were controlling precedent; (3) The circuit court erred in drawing inferences favorable to the moving party; and (4) The circuit court usurped the province of the jury by determining the existence of an-intervening cause. All four issues share the common issue' regarding whether summary judgment was proper. Thus, the issues will be’ addressed under the larger heading.

      . Howard asserts in her appeal that the trial judge erred in characterizing these text messages as "heated,” and that such a characterization was an inference improperly drawn in favor of the movant, R.M. Smith. However, such a characterization is not an improper inference favoring the moving party, but merely a description of a hostile conversation.

      . The store is located in downtown Jackson, an area with a statistically higher crime rate.


author: WILSON, J„

text:
    Stephanie FIELDS, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01654-COA
    Court of Appeals of Mississippi.
    03/07/2017
    STEPHANIE FIELDS(PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, ATTORNEY FOR APPELLEE
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J„

FOR THE COURT:

¶ 1. Stephanie Fields pled guilty to and was sentenced on eighteen counts of exploitation of a vulnerable adult, accessory after the fact to culpable negligence manslaughter, felony identity theft, and three counts of felony use of a Social Security number. All charges were related to Fields’s operation of an unlicensed personal ,care home. Almost four years later, Fields filed a motion for post-conviction relief (PCR), which the circuit court summarily dismissed. We affirm because Fields’s claims do not satisfy any exception to the three-year statute of limitations of the Uniform Post-Conviction Collateral Relief Act (UPCCRA).

FACTS

¶2. In January 2010, in Cause No. 10-42, a Hinds County grand jury indicted Fields on one count of felony identity theft, Miss. Code Ann. § 97-45-19 (Rev. 2006); three counts of felony use of a Social Security number, id. § 97-19-85; one count of attempted felony use of a Social Security number; three counts of felony exploitation of a vulnerable adult, Miss. Code Ann. § 43-47-19(b) (Rev. 2004); and one count of attempted felony exploitation of a vulnerable adult. The various offenses were alleged to have been committed between dates in 2007 and 2009, all against the same victim, Troy Stingley, a man then in his late eighties.

¶ 3. In April 2010, a Hinds County grand jury returned separate indictments charging Fields with ’accessory after the fact to culpable negligence manslaughter in the January 2010 death of Janice Hollins (Cause No. 10-470).and fifteen additional counts of felony exploitation of a vulnerable adult -(Cause No. 10-471). Stingley, Hollins, and the alleged victims in Cause No. 10-471 were all living in an unlicensed personal care home operated by Fields in the City of Jackson. The counts in Cause No. 10-471 all alleged that Fields accepted payments as compensation for the victims’ care but failed to provide adequate shelter, food, water, or heat for them.

¶ 4. In November 2011, Fields pled guilty to all charges in the three indictments except for the two attempt charges in Cause No. 10-42, which were dismissed. At her plea hearing, the State provided a factual basis for all charges. In Cause No. 10-42, Fields used Stingley’s Social Security number to obtain a credit card, which she used to make purchases in excess of $8,000. In Cause No. 10-470, Hollins died of hypothermia around January 2, 2010, after Eugenia Johnson, a woman who worked for Fields as a “caretaker,” threw water on Hollins and left her to sleep overnight in a room with 'a broken window. When Hollins was found dead the next morning, Fields and Johnson removed Hollins’s wet clothes, moved her body and relocated the other residents of the home, and waited over twenty-four hours to notify law enforcement. In Cause No; 10-471, Fields admitted that she accepted compensation for the care of residents of the home without "providing adequate shelter, food, water, or heat.

¶5. Fields testified that she and her attorney had discussed her petition to plead guilty prior to the hearing, that she understood the charges against her, that no promises had been made to induce her plea, and that she was satisfied with her attorney. She admitted that she had committed the crimes'and described to the court some of the circumstances giving, rise to the charges. The circuit court explained the applicable maximum and minimum sentences for each charge and accepted her plea as knowingly and intelligently entered.

¶ 6. Fields was sentenced in December 2011. Representatives from the Mississippi Department of Health and the Attorney General’s Office testified at the sentencing hearing concerning conditions they observed when they investigated the subject home. The Department of Health had previously ordered Fields to cease and desist from operating a different unlicensed personal care home, but Fields did not comply with the order.

¶ 7. There were fifteen residents living in the subject home on February 9, 2010. Although the home had four bedrooms and two bathrooms, one bedroom and one bathroom appeared to be reserved for the exclusive use of the “caretaker,” Johnson, who had mental health issues of her own. The other three bedrooms had seven beds and two additional mattresses between them. The bathroom used by the residents had cold, dirty water backed up in the tub.

¶ 8. There was no hot water or heat in the house, and the temperature was extremely cold. One resident was clutching a space heater in an effort keep warm. Investigators found no food “of any nutritional value in the residence.” When they arrived, Johnson was cooking a large pot of grits, which the residents “devoured ... ravenously.” Residents also “devoured raw ramen noodles without any hesitation.” This “agitated” Johnson, but only because the ramen noodles belonged to her. Another resident was eating from a. tub of margarine.

¶ 9. Investigators also found a large box of various medications, including twenty-seven bottles of psychotropic drugs. There were no medical records or any other records of which drugs had been or were supposed to be given to which residents at which times. Most of the residents were disheveled and appeared to be mentally disturbed.

¶ 10. In Cause No. 10-470, the court sentenced Fields to five years in MDOC custody for accessory after the fact to culpable negligence manslaughter. On each of the seven remaining charges in Cause No. 10-42, the circuit court sentenced Fields to five, ten, or fifteen years in MDOC custody, with all sentences to run concurrently to one another and consecutively to the sentence in Cause No. 10-470. In Cause No. 10-471, the court sentenced Fields to ten years oh each of the fifteen counts, said sentences to be served concurrently to one another and concurrently with the sentences in Cause No. 10-42. Fields was also ordered to pay restitution in various amounts. Finally, the court ordered that all sentences imposed would run consecutively to Fields’s Madison County sentence. See supra n.1.

¶ 11. In September 2015, Fields filed a PCR motion, alleging that (1) she told her attorney to file a PCR motion, but her attorney did not respond; (2) her plea was not voluntary because of her limited education and because she had developed a brain tumor prior to her plea; and (8) the indictments in Cause Nos. 10-42 and 10-470 were defective because they were not signed by the circuit clerk or a deputy circuit clerk. On September 11, 2015, the circuit court summarily dismissed Fields’s motion with prejudice. Fields filed a timely notice of appeal. On appeal, her arguments are similar to claims she raised in the circuit court. She also argues that she received ineffective assistance of counsel because her lawyer “did not fight on her behalf,” “did not advise her to go to trial and tell her side of the story,” and did not develop “evidence to prove her innocence.”

DISCUSSION

¶ 12. A circuit court “may summarily dismiss a PCR motion without an evidentiary hearing ‘if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.’” Scott v. State, 141 So.3d 34, 35 (¶ 2) (Miss. Ct. App. 2014) (quoting Miss. Code Ann. § 99-39-11(2) (Supp. 2013)). On appeal, this Court will not reverse the summary dismissal of a PCR motion unless the movant “(1) make[s] a substantial showing of the denial of a state or federal right and (2) show[s] that the claim is procedurally alive.” Id.

¶ 13. Fields’s PCR motion is barred by the three-year statute of limitations applicable to claims under the UPCCRA, Miss. Code Ann. § 99-39-5(2) (Rev. 2015), and she identifies no statutory or judicially created exception to the time-bar. See id. § 99-39-5(2)(a) (statutory' exceptions); 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 UPCCRA.”). “[A] claim of an involuntary guilty plea does not surmount the procedural bar.” Vitela v. State, 183 So.3d 104, 107 (¶ 12) (Miss. Ct. App. 2015) (quoting Hughes v. State, 106 So.3d 836, 839 (¶ 9) (Miss. Ct. App. 2012)); accord Cole v. State, 608 So.2d 1313, 1319 (Miss. 1992); Trotter v. State, 907 So.2d 397, 402 (¶¶ 14-15) (Miss. Ct. App. 2005). Likewise, claims of ineffective assistance of counsel are subject to the UPCCRA’s time bar, so Fields’s unsupported assertions that her lawyer was ineffective are also insufficient to overcome the bar. See Sanders v. State, 179 So.3d 1190, 1192-93 (¶ 9) (Miss) Ct. App. 2015); Hughes, 106 So.3d at 840 (¶ 12). Finally, the alleged defects in Fields’s indictments are non-jurisdictional and provide no basis for setting aside her convictions. See Johnson v. State, 196 So.3d 1118, 1120-21 (¶¶ 8-10) (Miss. Ct. App. 2016). Thus, Fields’s PCR motion raises no claim that is “procedurally alive.” Scott, 141 So.3d at 35 (¶ 2). Therefore, the circuit court did not err by summarily dismissing the motion. Id.

¶ 14. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      .- In addition, in December 2010, a Madison County grand jury indicted Fields for felony kidnapping and felony abuse of a vulnerable adult, The charges apparently relate to another unlicensed personal care home operated by Fields. The kidnapping charge was dismissed after Fields pled guilty to felony abuse. The Madison County Circuit Court sentenced Fields to ten years in the custody of the Mississippi Department of Corrections (MDOC) with five years suspended.

      . Fields has a GED and worked for eighteen years as a nurse’s aide. She attached a few pages of medical records to her PCR motion, but the records do not indicate that her tumor affected her capacity to plead guilty.

      . The indictments were not signed by the circuit clerk or deputy clerk on the signature pages. They were signed and stamped filed on the first pages.

      . We also note that Fields’s PCR motion attacks multiple judgments in violation of Mississippi Code Annotated section 99-39-9(2) (Rev. 2015), which provides that a PCR “motion shall be limited to the assertion of a claim for relief against one (1) judgment only.” This limitation applies even when, as in this case, multiple convictions result from a single plea hearing. Mosley v. State, 150 So.3d 127, 130 (¶ 7) ( Miss. Ct. App. 2014). "[I]t would have been proper for the [circuit] court to dismiss [Fields's motion] on that basis alone.” Id. at 131 (¶ 8). Nevertheless, we have reviewed Fields’s ‘claims and hold, for the reasons stated above, that none is excepted from the procedural bars of the UPCCRA. See id. (reviewing the merits of the PCR motion notwithstanding the movant's failure to comply with the single-judgment rule).


author: FAIR, J„

text:
    Nicholas Desmond MAYS, Appellant v. STATE of Mississippi Appellee
    NO. 2015-CA-01833-COA
    Court of Appeals of Mississippi.
    03/07/2017

      ATTORNEY FOR APPELLANT: J. EDWARD RAINER
    ATTORNEY FOR' APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
   FAIR, J„

FOR THE COURT:

¶ 1. Nicholas Desmond Mays pled guilty to sale of a controlled substance in Rankin County in 2012. As a subsequent drug offender, he was sentenced to serve sixty years in the custody of the Mississippi Department of Corrections, with 'fifty years to serve and five years’ post-release supervision.

¶ 2. Mays filed his first petition for post-conviction relief (PCR) in February 2013, claiming his counsel was ineffective. His PCR motion was dismissed. After unsuccessful appeals to this Court and the Mississippi Supreme Court, Mays filed his second PCR motion in September 2015. He reprised his ineffective-assistance-of-counsel claim and argued the Rankin County Circuit Court lacked jurisdiction because the crime actually occurred in Scott County. The circuit court dismissed Mays’s PCR motion as a successive “writ. Mays appeals.

STANDARD OF REVIEW

¶ 3. “When reviewing a trial court’s denial or dismissal of a motion for PCR, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review .. ...legal conclusions under a de novo standard of review.” Chapman v. State, 167 So.3d 1170, 1172 (¶ 3) (Miss. 2015) (citation and quotation omitted). We will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate “a claim procedurally alive substantially showing the denial of a ‘state or federal right.” Wilkerson v. State, 89 So.3d 610, 614 (¶ 7) (Miss. Ct. App. 2011).

DISCUSSION

¶4. Under Mississippi’s Uniform Post-Conviction Collateral Relief Act (UP-CCRA), any order denying or dismissing a PCR motion is a bar to a second or successive PCR motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). Section 99-39-23(6), in pertinent part, has an exception for newly discovered evidence. Such evidence must be “evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.” Miss. Code Ann. § 99-39-23(6).

¶ 5. In addition, “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA,” Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss. 2010). However, “the mere assertion of a constitutional right violation” does not trigger the exception. Wicker v. State, 16 So.3d 706, 708 (¶ 5) (Miss. Ct. App. 2009). To find an exception to the successive-writ bar, “[t]here must at least appear to be some basis for the truth of the claim” of a fundamental-constitutional-rights violation. Stovall v. State, 873 So.2d 1056, 1058 (¶ 7) (Miss. Ct. App. 2004).

1. Jurisdiction

¶ 6. Mays attempts to put his first-claim under the newly discovered evidence exception. Specifically, he argues the crime occurred outside of Rankin County’s jurisdiction.

¶7. In his first PCR motion, Mays claimed his attorney forced him to enter a guilty plea. Mays submitted an affidavit from Vanessa White, who stated she sold the cocaine and that Mays was just in the car during the exchange. Laneshia Hughes was also in the car. White indicated the crime occurred in Rankin County. Mays never argued that these events transpired outside of Rankin County.

¶ 8. His second PCR motion, the subject of this appeal, contradicts the evidence presented for his first. For example, Mays attached another affidavit from White that deviated significantly from her original account. This time, White stated that she “was only along for the ride” with Mays and Hughes and that she never saw any drugs exchange hands. She was also “positive” that they were stopped in Scott County. Hughes also submitted an affidavit, which was nearly identical to White’s.

¶ 9. Mays did' not raise this issue in the circuit court or his first PCR motion. In any event, Mays’s claim is not newly discovered evidence. Mays pled to committing the crime in Rankin County. The two affiants were known at the time of Mays’s arrest, one of whom originally indicated the crime occurred in Rankin County. Since this evidence could have been reasonably discovered at trial, Mays’s argument fails.

2. Ineffective Assistance of Counsel

¶ 10. Mays next argues his attorney was ineffective for failing to adequately investigate the location of the crime. To succeed on an ineffective-assistance-of-counsel claim, the appellant must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468 (Miss. 1984). “First, the defendant must show that counsel’s performance was deficient .... Second, the defendant must show that the deficient .performance prejudiced the defense.” Id. at 477 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

¶ 11. Mays only, makes bare assertions in support of his ineffective-assis-tanee-of-counsel claim. At the plea hearing, Mays pled guilty to selling cocaine in Rankin County. When asked whether he was satisfied with his representation, he responded in the affirmative. Mays has failed to show that his counsel’s performance was deficient, as required under Strickland. Furthermore, he has not shown that his counsel’s allegedly deficient performance “proximately resulted in his guilty plea, and [that] but for counsel’s errors, he would not have entered the plea.” Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss. Ct. App. 2006). So Mays’s claim has no merit.

CONCLUSION

¶ 12. Because Mays’s PCR motion does not raise an issue of newly discovered evidence or a violation of fundamental constitutional rights, it is procedurally barred as a successive writ. The circuit court was correct to hold, under section 99-39-23(6), that the motion was barred. Procedural bar notwithstanding, we find no merit to the motion. Therefore, we affirm the judgment of the circuit court.

¶ 13. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Mays was charged on two counts. He pled guilty to count I, and an order of nolle prose-qui was éñtered for count II.'


author: CARLTON, J„

text:
    Jerami WILLIAMS a/k/a Jerami Wardell Williams a/k/a Jerami W. Williams a/k/a Jeramy Wardell Williams, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00356-COA
    Court of Appeals of Mississippi.
    03/07/2017

      . ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    DISTRICT ATTORNEY: RONNIE LEE HARPER
    BEFORE IRVING, P.J, CARLTON ' AND WESTBROOKS, JJ.
   CARLTON, J„

FOR THE COURT:

¶ 1. An Adams. County jury convicted Jerami Williams of burglary of a dwelling, and the Adams County Circuit Court sentenced Jerami as a habitual offender to serve twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). See Miss. Code Ann. § 99-19-81 (Rev. 2015). Jerami now appeals his conviction and sentence and asserts that his trial counsel was ineffective, thus violating his constitutional right to a fair trial. We decline to address the. merits of Jerami’s ineffective-assistance-of-counsel claim on direct appeal in this case, and we accordingly affirm the trial court’s judgment.

FACTS

¶ 2. On July 8, 2013, Christopher Williams awoke around approximately 1:30 a,m, to discover twcbmen kicking in one of the doors to the home he shared with his father. Christopher testified that he recognized both men: Travon Williams, who lived in Christopher’s neighborhood, and another man, who he" recognized as a former coworker of his father. Christopher did not know the man’s name at thé time. Christopher testified that the two men entered the house, unaware of his presence. Christopher then left the house unnoticed and walked down the street to his cousin’s house to call the police.

¶3. Christopher stated that the police arrived ten minutes later, and he then returned to his house where he witnessed police officers- enter his home and walk out with Travon Williams. While standing outside of his house, Christopher observed a green Mitsubishi automobile drive past the house, and he alerted the police about the vehicle. Christopher testified that he could not see inside of the vehicle due- to the' tinted glass.

¶ 4. Christopher provided a statement to the police officers. They showed Christopher a photo lineup, where Christopher identified Jerami as the other burglar whose name he did not- know. At trial, Christopher identified Jerami as-one of the men he witnessed breaking into his house.

-¶ 5. Officer Paulesha McBride of the Natchez Police Department responded to the call regarding the burglary on July 8, 2013. Officer McBride testified that she and several other officers entered Christopher’s home and encountered Travon hiding in a closet. As a result of questioning Travon, the officers discovered the identity of the second man suspected of breaking into the house: Jerami. Officer McBride further testified that based on information provided by Travon, the officers began looking for a green two-door car.

¶ 6. Officer McBride stated that while en route back to the police station, she observed an unattended green automobile parked at an Exxon gas station which fit the description of the vehicle described by Travon. Officer McBride stated that the vehicle’s tag was registered to Jerami,

¶ 7. Alexis Davis testified as a witness for the defense. Alexis provided that on the evening of July 8, 2013, she received a phone call from Jerami around midnight asking hér to pick him up near Fat Mama’s restaurant because his car had broken down. Alexis stated that she and her boyfriend, Kareem Baldwin, picked up Jerami, and afterwards the three of them drove around and smoked marijuana. Alexis testified that while out riding around and smoking, they drove past the Exxon where Jerami left his car and they observed a police officer around the car. Alexis explained that they did not stop because “Kareem [was] on curfew” ánd not supposed to be out of the house at that hour. However, on cross-examination, Alexis testified that she could not recall the precise time that she picked up Jerami from Fat Mama’s, agreeing that it could have been midnight or 3:00 a.m., or any time during the night. The State also questioned Alexis about a written statement that Kareem provided to an investigator on July 10, 2013, that she had also signed. At trial, Alexis confirmed that the statement was correct when she signed it. In the statement, Kareem claimed that it was Jerami, and not Kareem, who did. not want to stop at the Exxon due to the police presence.

¶ 8. Jerami testified in his own defense, stating that on the evening of July 8, 2013, his car began “acting up,” so he pulled into the Exxon and called Alexis and Kareem to bring him jumper cables. Jemari stated that he explained to the Exxon store clerk that he needed to leave his car in the parking lot temporarily. Jerami also testified that Alexis and Kareem-picked him up at the Exxon, and not Fat Mama’s, as Alexis previously testified. Regarding the contradictory testimony, Jerami explained that Alexis “was kind of in and out” that evening.

¶ 9. Jerami testified that after Alexis and Kareem picked him . up, he . shared some synthetic marijuana with them to show his appreciation. Jerami stated that the three rode around and smoked marijuana. Jerami explained that because they were smoking marijuana, and because Kareem was on probation, they did not stop when they drove past the Exxon and saw policemen around: his car. Jerami testified that Alexis and Kareem drove him home instead. When asked what time he was dropped off, Jerami responded that he “really didn’t look at the clock, .but [knew] it had to have been between 2:30, maybe close to 3:00” in the morning.

¶ 10. The jury found Jerami guilty of burglary of a dwelling. Following a hearing, the trial court determined that Jerami constituted a habitual offender pursuant’to section 99-19-81. The trial court accordingly sentenced Jerami to serve twenty-five years in the custody of the-MDOC, with no possibility of his sentence being reduced or suspended, and no possibility of parole- or probation. The trial court also ordered Jerami to pay all court costs and fees, including a $200 prosecution fee. On November 26, 2014, Jerami filed a motion for a new trial, which the trial court denied. Jerami now directly appeals his conviction and sentence.

DISCUSSION

¶ 11. Jerami argues that his trial counsel was constitutionally ineffective under the Sixth Amendment and Article 3, Section 26 of the Mississippi Constitution for: not requesting an alibi instruction; informing the jury during opening statements that Jerami had other convictions; and eliciting testimony from Jerami about his prior convictions.

¶ 12. The Mississippi Supreme Court has “reiterate[d] that, generally, ineffective-assistanee-of-counsel claims are more appropriately brought during post[ jconviction proceedings.” Dartez v. State, 177 So.3d 420, 422-23 (¶ 18) (Miss. 2015) (citing Archer v. State, 986 So.2d 951, 955 (¶ 15) (Miss. 2008)). The supreme court explained that

[a]n appellate court is limited to the trial-court record in its review of the claim(s), and there may be instances in which insufficient evidence and/or information exists within the record to address the claim adequately. In such a case, the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post[ jconviction relief (PCR).

Id. at 423 (¶ 10) (internal citation omitted). However, an ineffective-assistance-of-counsel claim can be addressed on direct appeal when “(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.” Johnson v. State, 196 So.3d 973, 975 (¶ 7) (Miss. Ct. App. 2015); see also Read v. State, 430 So.2d 832, 841 (Miss. 1983). In the case before us, both parties did not stipulate that the record is adequate for this Court to make a finding on direct appeal. Thus, the proper inquiry is whether the record affirmatively shows that Jerami was denied effective assistance of counsel. See M.R.A.P. 22(b).

¶ 13. In determining whether the record affirmatively shows ineffective assistance of counsel, we turn to the precedent of Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for guidance. In Strickland, 466 U.S. at 687-96, 104 S.Ct. 2052, the United States Supreme Court set forth a two-pronged test that a defendant must meet to prevail on an ineffective-assistanee-of-counsel claim: the “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.” Dartez, 177 So.3d at 423 (¶ 19). To determine whether the counsel’s performance was both deficient and prejudicial, this Court examines the totality of the circumstances, keeping in mind that “a strong but rebuttable presumption [exists] that [a] counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.; see also Braggs v. State, 121 So.3d 269, 273 (¶ 11) (Miss. Ct. App. 2013) (“[A] presumption exists that an attorney’s performance falls within the wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.”). Furthermore, the decisions by counsel “whether or not to file certain motions, call certain witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy.” Braggs, 121 So.3d at 273 (¶ 11). Accordingly, this Court will find a counsel’s performance deficient “[o]nly where it is reasonably probable that, but for the attorney’s errors, the outcome would have been different.” Dartez, 177 So.3d at 423 (¶ 19).

¶ 14. After reviewing the record herein and applying the standard set forth in Strickland, we find that the record before us reflects no affirmative showing of ineffective assistance of counsel on its face. Jerami’s ineffective-assistance-of-counsel claim is more appropriately brought during postconviction proceedings, and we therefore deny relief without prejudice as to Jerami’s right to pursue this claim during postconviction proceedings. See Braggs, 121 So.3d at 273 (¶ 11). Accordingly, we affirm the trial court’s judgment.

¶ 15. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

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


text:
    Jabroski LLOYD a/k/a Gucci, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00833-COA
    Court of Appeals of Mississippi.
    03/07/2017
    ATTORNEY FOR APPELLANT: AZKI SHAH
    • ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE

      DISTRICT ATTORNEY:- BRENDA FAY MITCHELL
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. Following a jury trial, Jabroski Lloyd was convicted of aggravated assault and sentenced to fifteen years in prison, with five years suspended, and five years’ post-release supervision. Lloyd argues that the jury’s verdict was against the overwhelming weight of the evidence. It was not, so we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. A Bolivar County grand jury indicted Lloyd for kidnapping Kendrick Gage, Keith Thomas, and Patrick Adams (counts I, II, and III) and aggravated assault of Touman Reed and Torian Johnson (counts IV and V). Just prior to trial, the State asked that counts II, III, and V be dismissed' because Thomas, Adams, and Johnson were not available to testify.

¶ 3. Cage testified that on the night of March 9, 2013, he went to a party at a club in Rosedale. Shortly after midnight on March 10, he left the club with his friends, Thomas and Adams. They got into a blue car owned by Cage’s girlfriend. Cage was in the driver’s seat, Thomas was in the front passenger’s seat, and Adams was in the backseat. Before Cage could start the car, he heard gunshots, and Lloyd jumped into the backseat. Cage did not know Lloyd, but Lloyd had a gun and ordered him to “drive,” As Cage drove through town, he bumped a red car- that was stopped at a stop sign. Cage started to stop, but Lloyd “had the gun on [him] and .., told [him] to keep going,” so he drove on. Thomas and Adams jumped out of the car when it slowed to make a turn. After Cage turned onto Highway 1. South, he saw the red car he had bumped in the rearview, mirror. Lloyd then jumped into the front passenger’s seat, leaned out the window, and fired at the red car. As the cars approached the town of Beulah, Lloyd fired- his gun again and ordered Cage to “keep on driving or he was going to kill [Cage] like he did someone else,” Lloyd used his cell phone to , call someone to pick him up, and Cage eventually -parked in the town of Benoit, Cage then fled the car and ran into the woods, leaving the key in the ignition and Lloyd in the car. Cage remained in the woods the rest of the night because he was afraid of Lloyd. In-the morning, he went to the Bolivar County Sheriffs Department and spoke to Investigator Michael Williams. .

¶4. Reed, an off-duty deputy sheriff, was driving the red car. His cousin, Johnson, was with him. Reed followed the blue car when it left the scene of the collision, and he saw Thomas and Adams jump out of the car a few blocks later. Reed continued to follow the blue car onto Highway 1 South. He ended his pursuit after a passenger in the blue car leaned out the window and fired a gun at his car twice, Reed was certain that a passenger in the car, not its driver, fired at him. One of the two shots struck Reed’s car in the front bumper. Reed then went back and found Adams, whom he knew, and Thomas.

¶ 5. Investigator Williams interviewed Thomas, Adams, and Reed around 1:30 a.m. He then obtained a warrant and arrested Lloyd at Lloyd’s grandmother’s house in Rosedale around 3 a.m. Williams collected a gunshot residue kit from Lloyd, which he sent to the Mississippi Crime Lab for analysis; Particles indicative of gunshot residue were found on Lloyd’s left palm and -the -back of his left hand. Crime lab analyst Jacob' Burchfield testified that a test is- considered “positive” if round particles of lead, barium, and antimony are identified. If all three elements are present but the particles are not round, or if two elements are present and the particles are round, the test is considered “indicative of gunshot residue.” It is considered “indicative,” rather than “positive,” because studies have found that such particles -may reflect gunshot residue or exposure to brake pads or fireworks.

¶ 6. At trial, Lloyd’s attorney, Azki Shah, attempted to impeach Cage with a letter that Shah claimed to have received in the mail in August 2014. The letter was signed by Cage and dated August 6, 2014. In all capital letters, it stated as follows:

06 Aug 2014
Dear, Mr.' Shah
My name is Kendrick Cage. I am writing for you to visit me at the Bolivar County Correctional Facility in reguards to the false accusations made against Jabroski Lloyd. I was well aware of a past felonious charge that Jabroski Lloyd had. So I chose to make false allegations to the officers to avoid my own incarseration in regards to me accidentally ramming the back of Touman Reed’s car. This was the act that set things in motion with authorities. I gladly appreciate if you could visit me here at Bolivar to follow the proper protocol and procedures that need to be followed upon my behalf to -let these charges dismissed against your client Mr. Jabro-ski Lloyd. I do not want to proceed with my false accusations as well as testimonial circumstances. I was never kid-naped ■ nor threatened by Jabroski Lloyd. .
Respectfully submitted
[signature]

(Misspellings and other errors in original).

¶ 7. At trial, Cage testified that in September 2014 he was being held in the Bolivar County Correctional Facility on a domestic violence charge, and a guard told him that his lawyer was there to see him. He was then taken to meet with Shah, whom he had never met before. Shah’said, “Hey, Mr. Cage,” and asked him to sign the letter. Cage testified that he signed the document' without reading it because he thought that Shah was his lawyer and that the document was related to his release on bond. According to Cage, he and Shah discussed his domestic violence charge for five or six minutes, and then Shah left. Cage testified that Shah never inéntioned Lloyd or this case. Cage admitted that Shah never stated to him that he was his lawyer. Rather, Cage thought that Shah was his lawyer because a guard told him that. This was consistent with the facility’s visitor.log, which showed that Shah visited Cage on. September 23, 2014, and wrote “client visit” as the purpose of his visit. At trial, Cage admitted that he signed the letter; .however, he unequivocally denied that he wrote the letter, that its contents were true, or that he mailed it to Shah. He testified that he did.not, even know what the letter meant by “testimonial circumstances” or “protocol.”

' ¶ 8. The jury found Lloyd guilty of aggravated assault but could- not reach a verdict on the charge of kidnapping,' so a mistrial, was declared on that count. The court denied Lloyd’s motion for judgment notwithstanding the verdict or a new trial and sentenced him to fifteen years in prison, with five years suspended, and five years’ post-release supervision. Lloyd filed a timely notice of appeal and argues that the jury’s verdict was against the overwhelming weight of the evidence.

DISCUSSION

¶ 9. “When reviewing a denial of a motion, for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005). We must “view the evidence in the light, most favorable to the verdict,” and we must affirm unless “[t]he trial court ... abuse[d] its discretion in denying a new trial[.]” Id. at 845 (¶ 19).

¶ 10. Lloyd’s sole argument on appeal is that the verdict is against the overwhelming weight of the evidence because Cage is a “liar” and was impeached by the letter he signed. We disagree. Lloyd presented no evidence tending to prove his innocence after the Stdte rested, and the letter was used for impeachment only and was not admitted into evidence. Thus, there was no substantive evidence of innocence to “weigh” against the evidence of Lloyd’s guilt. See Moffett v. State, 456 So.2d 714, 719 (Miss. 1984) (“The prior inconsistent out-of-court statements made by one not a party may not be used as substantive evidence.”). Accordingly, it cannot be said that the verdict is “contrary” to any evidence, much less “contrary to the overwhelming weight of the evidence.”

¶ 11. Moreover, even if it were clear that Cage had recanted at some stage, that alone would not require a new trial. See Turner v. State, 771 So.2d 973, 976 (¶ 9) (Miss. Ct. App. 2000) (“Afficionados of television lawyer dramas may be under the impression that a new trial is automatically required when the sole eyewitness to a crime recants condemning testimony. Under Mississippi law, however, this is not so and for good reason.”). “[Tjhis Court will not ‘pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.’ ” Jones v. State, 95 So.3d 641, 647 (¶ 20) (Miss. 2012) (quoting Massey v. State, 992 So.2d 1161, 1163 (¶ 12) (Miss. 2008)). “When a criminal case is tried to a jury,’ the members of the jury act as the-finders of fact.” Brown v. State, 764 So.2d 463, 467 (¶ 9) (Miss. Ct. App. 2000). “They are charged to listen to the evidence, observe the demeanor of the witnesses, and decide the issue of the credibility of the witnesses and what weight to give to any particular piece of evidence.” Id. This is true even with witnesses who have given prior inconsistent statements. Id. at (¶ 10).

¶ 12. In this case, Cage testified unequivocally that Lloyd was.the person who shot at Reed’s car. His testimony is sufficient to uphold the verdict regardless of any alleged prior inconsistent statement. It is certainly sufficient here given the unanswered questions surrounding the purported recantation and the suspicious circumstances under which it was obtained. The verdict is not against the overwhelming weight of the evidence. Therefore, the trial judge did not abuse his discretion in denying the motion for a new trial.

¶ 13. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

      . The visitor log was attached to a pretrial motion in limine{ filed by the State but was not offered or admitted into evidence at trial.

      . Shah attempted to introduce what he represented to be the envelope in which he received the letter. According to Shah, the envelope would show that the letter was mailed to him from -the facility. However,, even assuming that the letter was mailed from the facility, Lloyd was being held there too. The trial judge excluded the envelope, which was not marked for identification or made a part of the record on appeal.


author: LEE, C.J.,

text:
    James GANDY a/k/a James Gandy, Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01511-COA
    Court of Appeals of Mississippi.
    03/07/2017
    JAMES GANDY (PRO SE), ATTORNEY FOR APPELLANT
    OFFÍCE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, ATTORNEY FOR APPELLEE .
    BEFORE LEE, C J., BARNES AND FAIR, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. In this appeal, we must decide whether the Circuit Court of Jones County properly denied James Gandy Jr:’s- motion for an order tó show cause. We dismiss for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶ 2, On September 16, 1986, Gandy was convicted in the Circuit Court of Jones County of kidnapping and sentenced as a habitual offender under Mississippi- Code Annotated section 99-19-81 (Rev. 2015) to life in the custody of the Mississippi Department of Corrections.

¶ 3. Several days later, on September 24, 1985, Gandy escaped from jail. As a result, on October 21, 1985, the State filed a motion to dismiss Gandy’s direct appeal, which the circuit court granted.

¶4. Nearly thirty years later, in July 2013, Gandy filed a motion for postconviction relief (PCR), claiming he received an illegal sentence. The circuit court dismissed Gandy’s PCR motion as time-barred, and Gandy appealed. In Gandy v. State, 197 So.3d 427, 429 (¶ 11) (Miss. Ct. App. 2015), this Court affirmed finding that, although an illegal sentence is an exception, to the time-bar, Gandy’s sentence was not illegal.

¶ 5. In August 2015, Gandy filed a motion for an order to show cause, claiming he was entitled to a copy of his trial transcript and sentencing hearing. In the alternative, Gandy claimed that he received an illegal sentence. The circuit court denied Gandy’s motion, finding Gandy abandoned his appeal when he escaped from jail, and noted that, due to the dismissal of Gandy’s appeal, nó trial transcript' existed. Gandy filed a motion for reconsideration, which was denied. The trial court determined that pursuant to Derrick v. State, 406 So.2d 48, 48 (Miss. 1981), Gandy had failed to show good cause why his appeal should be reinstated. Gandy appeals.

DISCUSSION

¶ 6. In his only issue on appeal, Gandy claims he is entitled to a trial transcript. However, Gandy filed this request as an independent action in the circuit court through a motion to show cause. A prisoner does not have “the right to institute an independent, original action for a free transcript or other documents, and then if dissatisfied with the [circuit court’s] ruling, to directly appeal that ruling to this court as a separate and independent action." Fleming v. State, 553 So.2d 505, 506 (Miss. 1989). In cases such as this, the proper result is to dismiss the appeal. See Haynes v. State, 174 So.3d 953, 955 (¶ 8) (Miss. Ct. App. 2015); Wooten v. State, 127 So.3d 322, 323 (¶ 8) (Miss. Ct. App. 2013).

¶ 7. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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

      , The record does not indicate when Gandy was captured, only that he was still ,at large when die State filed its motion to dismiss.

      , Gandy’s motion for rehearing was denied. In May 2016, Gandy filed a petition for a writ . of certiorari with the Mississippi .Supreme Court, which was denied on August 8, 2016.