text:
    Billy Ray WILLIAMS v. Jennifer Collins WILLIAMS State of Louisiana v. Jennifer Collins Williams.
    Nos. 09-472, 09-473.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Jeffrey H. Thomas, Thomas Law Firm, Natchitoches, Louisiana, for Defendant/Appellant, Jennifer Collins Williams.
    Katharine Geary, Attorney at Law, Alexandria, Louisiana, for Plaintiff/Appellee, Billy Ray Williams.
    James P. Lemoine, District Attorney, Thirty-fifth Judicial District, Renee W. Dugas, Assistant District Attorney, Colfax, Louisiana, for Appellee, State of Louisiana.
    Court composed of MARC T. AMY, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ^efendant/Appellant, Jennifer Collins Williams, filed a Petition to Nullify Judgments relative to her divorce and child support. The trial court dismissed Ms. Williams’s petition for nullity after sustaining the peremptory exception of prescription filed by PlaintiffiAppellee, Billy Ray Williams. Ms. Williams appeals. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Judgment of Divorce

On August 16, 2006, Mr. Williams filed a Petition for Divorce in Grant Parish pursuant to La.Civ.Code art. 102. This matter is entitled Billy Ray Williams versus Jennifer Collins Williams and bears the docket number 18188. According to the petition, the parties were married in Rap-ides Parish on October 27, 2005. Two children were born prior to the marriage of the parties: namely, Trent Andrew Williams, born on December 15, 1999, and Destín Cole Williams, born on July 19, 2001. In said petition, Mr. Williams requested joint custody of the children; however, on August 24, 2006, Mr. Williams amended his petition seeking sole custody of the children subject to supervised visitation for Ms. Williams.

The trial court’s minutes reflect that on September 11, 2006, a hearing on a Rule for Custody was held wherein the trial court ordered “joint custody with [Mr. Williams] being domiciliary parent with Ms. Williams having [supervised visitation] 12every other weekend.” The trial court, however, mistakenly signed a judgment on September 21, 2006, which stated that Mr. Williams was “granted sole custody of the minor child[ren].”

On September 28, 2006, Ms. Williams filed a Petition for Protection from Abuse against Mr. Williams. In her petition is a handwritten notation made by Ms. Williams in which she declared that Mr. Williams was “granted sole custody [of the children] per [j]udgment [dated September 21, 2006.]” The trial court issued reciprocal temporary restraining orders at a hearing held on October 9, 2006.

Pursuant to a Rule to Show Cause on whether the divorce should be granted, a hearing was held on May 14, 2007. At said hearing, Mr. Williams testified that he and Ms. Williams had lived separately for one hundred and eighty days. Though she was not represented by counsel, Ms. Williams was present at said hearing. When asked by the trial court whether she wanted to testify or to call any witnesses, Ms. Williams answered, “No. I’m ready for it to be over with.” The trial court again questioned whether Ms. Williams wished to contest the divorce. She reiterated, “No, I just, I just want a divorce.” The trial court then granted the divorce. Though this hearing occurred in May of 2007, a Judgment of Divorce was not signed by the trial court until March 13, 2008.

On June 19, 2008, Ms. Williams filed a Petition to Nullify Judgments. In her petition to nullify the judgment of divorce, Ms. Williams alleged that the judgment rendered pursuant to the divorce confirmation hearing on May 14, 2007, “was based on false and perjured testimony of [Mr. Williams] since the parties had not lived separate and apart since the original Petition for Divorce was filed on August 16, 2006[,] but had, in fact, reconciled and lived together from late October of 2006 until kjFebruary 14, 2007.” Ms. Williams argued that Mr. Williams’s actions constituted “fraud and ill practices” pursuant to La.Code Civ.P. art. 2004. She also asserted that since the judgment of divorce was not signed by the trial court until March of 2008, her nullity action was timely filed; therefore, she was entitled to a nullification of the judgment of divorce.

On July 14, 2008, Mr. Williams filed a Peremptory Exception of Prescription to Petition to Nullify Judgment. In his exception, Mr. Williams argued that Ms. Williams “was aware of all actions that she contends were fraud or ill practices more than a year before [the] filing of this motion to nullify judgment as she was present in open court on May 14, 2007.”

At the hearing on Mr. Williams’s exception held on September 22, 2008, Ms. Williams testified that it was not until March of 2008 that she became aware that the judgment of divorce was based upon erroneous facts. According to Ms. Williams, she discovered the judgment of divorce was based upon erroneous facts when she hired Jeffrey H. Thomas, her present attorney.

The trial court issued written Reasons for Judgment on Peremptory Exception of Prescription on October 15, 2008. Relying upon the fact that Ms. Williams was present in court on May 14, 2007, and that she witnessed Mr. Williams’s testimony, the trial court ruled that the prescriptive period for Ms. Williams’s nullity action relative to her divorce began to run on May 14, 2007. Specifically, the trial court reasoned:

Louisiana courts have consistently held that the plaintiffs knowledge of certain facts, rather than the legal consequences of those facts, commences the running of the prescriptive period. Succession of Albritton, 497 So.2d 10 (La.App. 4 Cir.1986), writ denied, 498 So.2d 742 (La.1986); Bellamy v. Janssen, 477 So.2d 928 (La.App. 4 Cir.1985), writ denied, 484 So.2d 667 (La.1986).

|4Since Ms. Williams’s nullity action was not filed until June 19, 2008, it was not filed within the one-year period mandated by La.Code Civ.P. art. 2004. Consequently, the trial court sustained Mr. Williams’s peremptory exception. A judgment to that effect was signed by the trial court on October 27, 2008. Ms. Williams appeals that judgment.

Child Support Judgment

On October 13, 2006, a Petition to Register Louisiana Support Order for Enforcement and Modification Under the Provisions of La. Code Civ.P. Article 2785 was filed on behalf of Mr. Williams. This matter is entitled State of Louisiana versus Jennifer Collins Williams and bears the docket number S-2919. According to the petition, Mr. Williams was seeking enforcement of a judgment against Ms. Williams. The judgment, rendered in La-Salle Parish and signed on May 15, 2002, ordered that Ms. Williams pay $275.00 per month to Mr. Williams for support of their two children. On February 26, 2007, an Order and Judgment Confirming Registration of Louisiana Support Order was signed which made the May 15, 2002 support order against Ms. Williams executory and enforceable.

A Petition to Establish Medical Support was filed on behalf of Mr. Williams on March 26, 2007. The record reflects that on May 8, 2007, the parties appeared before a hearing officer on the issue of medical support. Ms. Williams was present. According to the minutes therefrom, “[Ms. Williams] is not currently employed. She did agree to provide medical support if ever reasonably available.” Because neither Mr. Williams nor Ms. Williams filed an objection to the hearing officer’s recommendations, said recommendations were decreed to be a judgment of the trial court signed on May 14, 2007.

|fiAlso on May 8, 2007, Ms. Williams accepted service of a Summons and Rule to Show Cause for Contempt and Past Due Support. This matter was heard by a hearing officer on June 12, 2007. The hearing officer found Ms. Williams to be in arrears in the amount of $2,200.00. According to the minutes of this hearing, “For contempt, [Ms. Williams was] sentenced to [ninety] days at the [Grant Parish Jail] ... [and her sentence was to be] suspended and she [was to] be placed on [twenty-four] months probation if she [paid] the $2,310.00 purge amount.” Because neither Mr. Williams nor Ms. Williams filed an objection to the hearing officer’s recommendations, said recommendations were decreed to be a judgment of the trial court signed on June 20, 2007.

On June 19, 2008, Ms. Williams filed a Petition to Nullify Judgments. In her petition to annul the trial court’s orders and judgments relative to her child support obligation, Ms. Williams argued that Mr. Williams’s actions constitute “fraud and ill practices” pursuant to La.Code Civ.P. art. 2004. She asserted that when Mr. Williams requested the State’s assistance in enforcing the May 15, 2002 support order against her, Mr. Williams “did not inform the State of Louisiana, Department of Social Services, that he and [Ms. Williams] had married on October 27, 2005.” Ms. Williams alleged that after the Petition to Register Louisiana Support Order for Enforcement and Modification Under the Provisions of La.Code Civ.P. Article 2785 was filed on behalf of Mr. Williams on October 13, 2006, she and Mr. Williams “reconciled and lived together from late October of 2006 until February 14, 2007[.]” Therefore, Ms. Williams argued “that the reconciliation of the parties resulted in the extinguishment” of the Order and Judgment Confirming Registration of Louisiana Support Order which was signed on February 26, 2007.

| (¡On July 14, 2008, Mr. Williams filed a Peremptory Exception of Prescription to Petition to Nullify Judgment. In his exception, Mr. Williams asserted:

[Ms. Williams] shows in her rule that a hearing was held in this matter on June 12, 2007. [Ms. Williams] was present in open court on that date. This exception [of nullity] was filed June 19, 2008, more than one year following the hearing on June 12, 2007. An action to annul a judgment due to fraud or ill practices must be brought within one year of discovery of the fraud or ill practicesf, and Ms. Williams] was aware of the issuance of the order which she contends was enforced by fraud or ill practices on or before June 12, 2007, more than one year prior to the filing of this petition to annul judgment.

At the hearing on Mr. Williams’s exception held on September 22, 2008, Ms. Williams testified that it was not until March of 2008 that she became aware that the child support judgments were obtained by fraud. According to Ms. Williams, this awareness was precipitated by the hiring of Jeffrey H. Thomas, her present attorney.

The trial court issued written Reasons for Judgment on Peremptory Exception of Prescription on October 15, 2008. The trial court ruled that Ms. Williams’s cause of action was extinguished for failure to assert the action within the one-year prescriptive period required under La.Code Civ.P. art. 2004. Specifically, the trial court reasoned:

[Ms. Williams] also seeks to annul the child custody judgment signed on September 21, 2006. [Ms. Williams] claims that this court awarded joint custody to the parties in open court, but the judgment submitted to and signed by this court awarded sole custody to [Mr.] Williams. [Ms. Williams] became aware of this fact no later than September 28, 2006 when she filed a Petition for Protection from Abuse, in which she stated Mr. Williams had sole custody of the minor children. [Ms. Williams] was aware of the facts that formed the basis for her action to annul the child custody judgment for more than one year prior to filing the petition for nullity on June 19, 2008.

17Since Ms. Williams’s nullity action was not filed until June 19, 2008, more than one year after September 21, 2006, it was not timely. Therefore, the trial court sustained Mr. Williams’s peremptory exception. A judgment to this effect was signed by the trial court on October 27, 2008. Ms. Williams appeals.

ASSIGNMENTS OF ERROR

Ms. Williams asserts the following assignments of error:

1. The [trial court] erred in finding that the [peremptive] period set forth in [La.Code Civ.P. art.] 2004 commenced to run from the date of the divorce hearing in open [c]ourt on May 14, 2007.
2. The [trial court] erred in not finding that the Petition to Nullify Judgments constituted a timely filed Mo-
- tion for New Trial in the [d]ivorce [proceedings.
3. The [trial court] erred in granting the exception of prescription and dismissing the Petition to Nullify Judgments in the [c]hild [s]upport [p]roceedings.

LAW AND DISCUSSION

Considering the facts in the record of this case, the applicable standard of appellate review is whether the trial court’s finding of facts was manifestly erroneous, or clearly wrong. London Towne Condo. Homeowner’s Ass’n v. London Towne Co., 06-401 (La.10/17/06), 939 So.2d 1227.

Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court[] finds that it is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the | ^evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Id. at 1231.

As noted, the bases of Ms. Williams’s nullity actions are that Mr. Williams engaged in fraud or ill practices in obtaining the divorce and child support judgments. This action is thus governed by La.Code Civ.P. art. 2004, which provides in pertinent part as follows:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

Relative to the divorce judgment, Ms. Williams contends on appeal that the trial court’s finding that her petition to nullify the judgment of divorce was not timely filed is contrary to law because “[u]nder the [trial] court’s ruling herein, an action to nullify under [La.Code Civ.P. art.] 2004 would have prescribed before the notice of signing and mailing of the judgment.” Ms. Williams also argues that La.Code Civ.P. art. 2004 “allows for nullification of a ‘final judgment.’ Hence, because the notice of mailing of the judgment of divorce was not made until June 19, 2008, the judgment was not final until the delays for filing a motion for new trial and appeal had passed.”

Relying upon the fourth circuit’s holding in Succession of Albritton, 497 So.2d 10, Mr. Williams counters that “Ms. Williams was also a direct participant as she was present in court, did not dispute Mr. Williams’[s] testimony[,] and requested that a judgment be granted.”

Relative to the judgment of child support rendered against her, Ms. Williams asserts, in brief, that “[i]n dismissing the Petition to Nullify Judgments in the [cjhild 19[s]upport [proceedings, the [trial] court did not make any findings but simply dismissed that petition in its Judgment.” She then argues that her nullity action is timely due to the fact that it. was filed within one year of the signing and mailing of the judgment of the trial court. Ms. Williams also asserts that the trial court’s ruling that her petition to nullify the child support judgment against her was not timely filed is contrary to law because “it is clear that [she] did not ‘discover’ the fraud or ill practices until undersigned counsel enrolled in March of 2008.”

In brief, Mr. Williams asserts that Ms. Williams was served with notice of the signing of the Order and Judgment Confirming Registration of Louisiana Support Order since February of 2007. Yet, Ms. Williams did not filed her petition to annul until June 19, 2008. Citing Succession of Albritton, Mr. Williams argues that Ms. Williams’s “knowledge of certain facts rather than legal consequences of those facts commenced the running of the [per-emptive] period.”

Contrary to the arguments on appeal asserted by Ms. Williams, the trial court’s reasons for maintaining Mr. Williams’s peremptory exception of prescription relative to the child support judgment are, in fact, declared in its written Reasons for Judgment rendered on October 15, 2008. The trial court found that Ms. Williams was aware of “the facts that formed the basis for her action to annul the child custody judgment for more than one year prior to filing the petition for nullity on June 19, 2008.”

The principle issue in the divorce proceeding is whether Ms. Williams had knowledge of Mr. Williams’s actions, the actions she alleges to be fraudulent. The record reflects that she did have such knowledge. Ms. Williams was present and witnessed Mr. Williams testify on October 9, 2007, that he and she had lived | Ulseparately for one hundred and eighty days. Though she was not represented by counsel, Ms. Williams was present. When asked by the trial court whether she wanted to testify or to call any witnesses, Ms. Williams answered, “No. I’m ready for it to be over with.” The trial court questioned Ms. Williams a second time as to whether she wished to contest the divorce, to which she reiterated, “No, I just, I just want a divorce.” Ultimately, the trial court granted the divorce. Unquestionably, Ms. Williams had the requisite knowledge of the facts that formed the basis of her nullity action well in excess of the one-year time period set forth in La. Code Civ.P. art. 2004.

The plaintiffs in Haney v. Davis, 06-1058 (La.App. 4 Cir. 2/14/07), 952 So.2d 804, cert. denied, 07-565 (La.5/4/07), 956 So.2d 611, argued that until the date on which they realized the legal significance of their knowledge, the one-year period provided in La.Code Civ.P. art. 2004 did not begin to run. The fourth circuit disagreed, stating:

The jurisprudence has held that “[i]t is the knowledge of these facts, and not their legal consequences which commences the running of prescription under [La. Code. Civ.P.] art.2004.” Succes sion of Albritton, 497 So.2d 10, 12 (La.App. 4th Cir.1986); A.S. v. M.C. and P.C., [96-948], p. 10 (La.App. 1 Cir. 12/20/96), 685 So.2d 644, 649 (citing Albritton, supra). Prescription commenced when Plaintiffs had knowledge of the facts that form the basis of their nullity action....

Id. at 808. We, likewise, find that the one-year period provided in La.Code Civ.P. art. 2004 began to run when Ms. Williams had actual knowledge of Mr. Williams’s alleged fraud, not when she was informed by her present counsel that she could have disputed same.

Under these circumstances, we find no manifest error in the trial court’s judgment sustaining Mr. Williams’s peremptory exception of prescription and | n dismissing Ms. Williams’s petition for nullity.

DECREE

For the above reasons, we affirm the judgment of the trial court. The costs of this appeal are assessed to Defendant/Appellant, Jennifer Collins Williams.

AFFIRMED.

      . When Mr. Williams filed this divorce proceeding in 2006, La.Civ.Code art. 102 provided that a divorce would be granted upon proof "that the spouses have lived separate and apart continuously for at least one hundred eighty days prior to the filing of the rule to show cause.” This article has since been amended to require that the parties lively separate and apart for a least three hundred and sixty-five days when the parties have minor children.

      . The trial court signed an Order on August 11, 2008, consolidating this matter with State of Louisiana versus Jennifer Collins Williams.

      . Though the trial court declared it to be a prescriptive period, this court has held that "the one-year limitation provided in La.Code Civ.P. art. 2004 is a period of peremption, rather than prescription.” Lowe’s Companies, Inc. v. Leblanc, 02-730, p. 4 (La.2/5/03), 839 So.2d 434, 437 (citing A.S. v. M.C., 96-948 (La.App. 1 Cir. 12/20/96), 685 So.2d 644, writ denied, 97-213 (La.App. 3 Cir. 3/14/97), 690 So.2d 38; Burkett v. Property of Douglas, 575 So.2d 888 (La.App. 2 Cir.1991)).


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    Olivia M. SLIMAN v. Mary Thi NGUYEN.
    No. 2008-CA-00957-SCT.
    Supreme Court of Mississippi.
    Nov. 19, 2009.
    Myles Ethan Sharp, attorney for appellant.
    Edmund J. Walker, Biloxi, attorney for appellee.
   CHANDLER, Justice,

for the Court.

¶ 1. This appeal stems from a car accident which occurred on November 12, 1999, in Ocean Springs, Mississippi. Mary Nguyen filed a complaint in the County Court of Jackson County against Olivia Sliman in an attempt to recover compensation for injuries she had received as a result of the accident. A trial was held, and the jury found that Sliman was not liable for Nguyen’s injuries. Nguyen then filed a motion for a new trial pursuant to Rule 59 of the Mississippi Rules of Civil Procedure, which was granted by the county court. Sliman appealed the grant of a new trial to the Jackson County Circuit Court, which affirmed the county court’s decision. From these proceedings, Sliman appeals.

FACTS

¶2. On November 12, 1999, Sliman pulled out of the Taco Bell parking lot, drove between two cars in a line of southbound traffic, and turned left into the northbound lane of Vermont Avenue. At approximately the same time, Nguyen turned left off Highway 90 onto Vermont Avenue and began traveling north. A collision ensued when the front of Nguyen’s car hit the front passenger side of Sliman’s car. Both parties agreed that part of Nguyen’s thumbnail had been ripped off during the accident. All other claims of damages were disputed at trial.

¶ 3. Following a trial, the jury found Sliman not liable. Nguyen filed a Rule 59 motion for a new trial, arguing that the verdict was against the overwhelming weight of the evidence. The county court granted the motion and ordered a new trial. The county court’s order did not provide any additional legal analysis or reasoning for the new trial. Sliman appealed the county court decision to the Circuit Court of Jackson County.

¶ 4. The Circuit Court of Jackson County affirmed the county court’s ruling, which granted a new trial to Nguyen pursuant to Rule 59. The circuit court affirmed the grant of new trial based on its assessment that the jury’s verdict was against the overwhelming weight of the evidence. Sliman now appeals to this Court, alleging the county court erred in granting the motion for a new trial, and if the grant of a new trial was not error, the circuit court erred in not retaining jurisdiction over the case. As a preliminary matter, this Court must determine whether the circuit court had appellate jurisdiction to review the county court’s order granting a new trial.

ANALYSIS

¶ 5. Sliman argues that, should this Court determine that the county court properly granted the motion for new trial, then, the circuit court should have retained jurisdiction of the case. Citing Mississippi Code Section 11-51-79 (Rev.2004) as authority, Sliman argues that any new trial must occur in the circuit court, because once appealed there, it belongs on the docket of the circuit court. Prior to addressing Sliman’s issue on appeal, this Court must determine whether the county court’s grant of a new trial was interlocutory in nature in order to determine whether the circuit court had jurisdiction in this appeal.

¶ 6. In Banks v. City Finance Co., 825 So.2d 642 (Miss.2002), the Court stated that a final judgment constitutes “a judgment adjudicating the merits of the controversy which settles all the issues as to all the parties.” Banks, 825 So.2d at 645 (citing Hindman v. Bridges, 185 So.2d 922 (Miss.1966)). See also Cotton v. Veterans Cab Co., 344 So.2d 730, 731 (Miss.1977) (“In sum, the judgment is final only when it settles all issues as to all parties.”).

¶ 7. Additionally, Mississippi Rule of Civil Procedure 54(a) defines a judgment as including “a final decree and any order from which an appeal lies.” The comments to Rule 54 state: “A judgment is the final determination of an action and thus has the effect of terminating the litigation.” See M.R.C.P. 54 cmt.

¶ 8. A brief review of Mississippi cases establishes that a trial court’s grant of a new trial is interlocutory in nature and generally not appealable, since it is not a final disposition or a final judgment of the case. Indeed, in Allstate Insurance Co. v. McGory, this Court stated “[ujnder the authority of a long line of cases, it is a general rule of this Court to respect and follow the holding of the trial judge with reference to his order in granting a new trial since such an order is not a final disposition of the case.” Allstate Ins. Co. v. McGory, 697 So.2d 1171, 1174 (Miss.1997) (quoting Standard Prods., Inc. v. Patterson, 317 So.2d 376, 379 (Miss.1975)). See also Franklin v. Franklin, 864 So.2d 970, 975 (Miss.Ct.App.2003) (where the court determined that “[a]n order granting a motion for new trial is not a final judgment which can be appealed as of right” and “[t]he only avenue for review of a decision on a motion for new trial alone is via an interlocutory appeal” or it may be appealed “as an assignment of error following the entry of a final judgment from the new trial”).

¶ 9. Here, Sliman appealed the Rule 59 grant of new trial from the county court to the circuit court. Once the circuit court affirmed the county court’s grant of new trial, Sliman appealed to this Court.

¶ 10. Though neither party raised the issue of jurisdiction in the context of Sli-man’s initial appeal from the county court’s grant of new trial to the circuit court, this Court is compelled to analyze the issue. This Court has determined generally that an order granting a new trial is interlocutory in nature, meaning it is not a final judgment and not yet ripe for appeal. Consequently, Sliman’s initial appeal from the county court to the circuit court on a matter that was interlocutory in nature was impermissible pursuant to Mississippi caselaw. Therefore, Sliman never had authority to file her appeal with the circuit court, and she never filed a petition for an interlocutory appeal to the Supreme Court. This Court has authorized interlocutory appeals from the county court to the Supreme Court. In fact, this Court notes the implementation of Uniform Circuit and County Court Rule 4.06, which states:

Interlocutory Appeal. An appeal from an interlocutory order in county court may be sought in the Supreme Court as provided in Rule 5 of the Mississippi Rules of Appellate Procedure.

Rule 4.06 was adopted effective July 1, 2008. While the Legislature has enacted Mississippi Code Section 11-51-79, which pertains to appeals from county court to circuit court, statutes do not provide authority for matters of procedure. This Court always has analyzed jurisdiction in matters pending before it via the Mississippi Constitution and the various Mississippi Rules of Court. See Miss. Const, art. 6. Again, the only issue raised in the appeal from county court to circuit court was whether the county court had erred by granting Nguyen’s Rule 59 motion for new trial.

¶ 11. The circuit court had no authority under the Rules to review the initial appeal from county court to circuit court. The grant of a new trial was interlocutory in nature and not appealable to the circuit court. Therefore, the county court retains jurisdiction for a new trial. Accordingly, the circuit court’s judgment is vacated, and this ease is remanded to the county court.

CONCLUSION

¶ 12. Because of the interlocutory nature of the order granting a new trial, it was error for the circuit court to review this case on appeal from the county court. We vacate the circuit court’s judgment and remand this case to the County Court of Jackson County for a new trial.

¶ 13. VACATED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND PIERCE, JJ., CONCUR.


text:
    Jonathan BARFIELD v. STATE of Mississippi.
    No. 2008-KA-01606-SCT.
    Supreme Court of Mississippi.
    Dec. 3, 2009.

      Office of Indigent Appeals by Benjamin Allen Súber, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorneys for appellee.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court.

¶ 1. Jonathan Barfield was indicted for the murder of Tiffany Deanna Talley. On July 3-10, 2008, Barfield was tried in the Circuit Court of the First Judicial District of Harrison County for the December 27, 2006, shooting of Talley. The jury convicted Barfield of the lesser offense of manslaughter for Talley’s death. The trial court sentenced Barfield to twenty years in the custody of the Mississippi Department of Corrections (MDOC). Barfield now appeals from that conviction. Finding no error, we affirm the jury verdict and sentence of twenty years in the custody of the MDOC.

FACTS

¶ 2. Barfield testified on his own behalf at trial. According to Barfield, he met Talley while the two attended high school. They dated for approximately two years before Talley’s death. At the time of the shooting, Barfield was living in his father’s FEMA trailer in a park near Canal Road in Gulfport, Mississippi. He kept two guns in the trailer because he thought the trailer park was “pretty scary,” and the police visited the park at least three times a week.

¶ 3. On December 27, 2006, after finishing basketball practice at Gulfport High School, Talley made several telephone calls to Barfield. Despite testimony to the contrary, Barfield denied that he and Talley had broken off their relationship on December 26, 2006, the day before the shooting. Barfield stated that as he was taking a shower, he answered Talley’s telephone call. While speaking to Talley, Barfield heard banging on his front door. He wrapped himself in a towel and headed to the door. Barfield told Talley to “hold on” and put the telephone down on a table. Upon reaching the door, Barfield saw that someone was twisting the door knob and attempting to get into the trailer. The bottom lock was unlocked, while the top lock was locked. Barfield grabbed his .22 revolver from the table, and he planned to “surprise” whomever was at the door. He never looked out the window or tried to see who was trying to get into the trailer. Barfield had the revolver cocked and ready when he opened the door. Then, he saw Talley. According to Barfield, he was trying to uncock the revolver as Talley entered the trailer. Talley was not in the door “a good 30 seconds” when she bumped Barfield, which caused the pistol to accidentally fire. Barfield said he was so shocked by the bang from the gun that he stepped outside and threw the revolver into an adjoining field. When questioned, Barfield stated that when he was trying to uncock the gun, the gun was angled upward, and when Talley had bumped into him, his hand was knocked upward as well.

¶ 4. When Barfield returned to the trailer, he saw Talley on the ground and thought that she had fallen to the ground to cover herself. He called Talley and told her to get up from the floor. At that point, Barfield stated, he saw blood. Bar-field tried to stop the bleeding with a sweatshirt that Talley had given him for Christmas. At that point, Barfield called his father and then called 911.

¶ 5. Deputy Joseph Fore was the first law enforcement officer to respond to the 911 call. When he arrived, Barfield told him that “It was an accident. I didn’t mean to shoot her, and I threw the gun over the fence.” According to Deputy Fore, Barfield also stated that he and Talley had “got into a little argument, nothing big, and that they were playing with the gun. He said he had the gun cocked by his leg, pointed at the ground and they had bumped into each other and the gun went off and shot her in the face.” Deputy Fore also described Barfield’s demeanor as similar to “talking about the weather.” Deputy Fore stated that Deputy Glen Roe, who arrived shortly after him, placed Bar-field in handcuffs while Deputy Fore checked on Talley. When Deputy Fore entered the trailer, he observed Talley face down in a pool of blood. On a nearby coffee table in the living room, Deputy Fore saw two boxes of .22 gun shells. On cross-examination, Barfield denied telling Deputy Fore that the gun was pointed toward the floor. In fact, he stated that the gun was pointed in an upward direction.

¶ 6. While in the police car, Edward Twomey, former criminal investigator for the Harrison County Sheriffs Department, questioned Barfield about the shooting. Barfield told Twomey that Talley had stopped by his house before work, that she had shoved Barfield as she walked by him, and the gun fired. Later that day, Twom-ey conducted a second interview with Bar-field, which included a taped statement. Twomey characterized Barfield’s interview as “inconsistent.” According to Twomey, Barfield told him that when he had seen Talley at the door, Barfield had lowered the gun down by his side, and had the gun pointing at the floor. When Talley bumped Barfield, he heard an explosion as the gun fired.

¶ 7. When confronted with the location of Talley’s wound, Barfield then told Twomey that he “must have dropped the gun because he was holding it lightly, and that it must have hit the floor and went off.” Also, Twomey testified that Barfield initially stated that someone was banging loudly and knocking on the door, but later stated that someone just turned the knob to see if the door was open. Barfield also gave inconsistent information concerning the disposal of the weapon, according to Twomey. Barfield first stated that he had disposed of the gun after he had shot Talley, but later stated that he had disposed of the gun after calling his father and before the paramedics arrived at the scene. Barfield told Twomey that he threw the gun because, “that’s what had killed Talley.”

¶ 8. At trial, there was conflicting testimony as to whether Barfield and Talley were together and the nature of their relationship. A question arose concerning whether Barfield and Talley had broken up on December 26, 2006, the day before the shooting. According to Barfield, the relationship between the two of them was “just fine,” and they had been still together on December 27, 2006. Barfield described their relationship as “[pjretty much a regular relationship like anybody else, you have ups and downs, but for the most part everything was okay.”

¶ 9. Felicia Shaw, Talley’s aunt, testified at trial that she had spoken to Talley on the telephone the morning of her death. According to Shaw, Talley was taking something over to “Johnny’s” (Jonathan Barfield’s) house. Talley said they had broken off their relationship. Talley told Shaw that she was taking this item back to Barfield to show him that it was over for sure this time. Shaw stated that Talley and Barfield had broken off their relationship on more than one occasion in the past. When Shaw asked Talley if the relationship was over this time, Talley replied “Yes, this is it. This is the last time.”

¶ 10. Walter Jackson, a former coworker of Talley’s, testified about the status of Barfield’s relationship with Talley. Jackson had worked with Talley at the Nike Outlet Store in Gulfport. He had known Talley six or seven months prior to her death. He said Talley had described her relationship with Barfield as being “rocky” and that “there was a lot of on and off.” Talley also told Jackson that she was still with Barfield because she was scared to leave him and because she was unsure of what he was going to do. When asked what she meant by that, Talley told Jackson that Barfield had said that if he could not have her, then, no one could have her. She made this statement approximately one week or so before her death.

¶ 11. Julisia Taylor, Talley’s friend since the sixth grade, testified about Talley’s relationship with Barfield. Julisia saw Talley at basketball practice the morning Talley was shot. At basketball practice, Talley told Julisia that she and Barfield had broken up and that it was serious this time. Talley did not tell Juli-sia that she was going to see Barfield later that day.

¶ 12. Dr. Paul McGarry, a forensic pathologist, testified about the injuries that Talley sustained and her cause of death. He described Talley’s injury as a gunshot wound that entered her face at the center of her right cheek in line with the tip of her nose. The bullet went backward and upward at a forty-five degree angle and leftward at a twenty-five degree angle toward the top left of her head. The bullet was recovered from Talley’s brain. Around the entry wound, Dr. McGarry found stippling on the skin, or powder particles embedded in the skin. According to Dr. McGarry, stippling is indicative of a close-range gunshot wound. Dr. McGarry estimated that the gun would have had to be twelve to eighteen inches away from Talley to cause the stippling. The stippling was in an upward oval pattern, which indicated that the bullet entered the head in an upward direction and went leftward and backward. With the type of injury Talley sustained, Dr. McGarry estimated that she would have lived only minutes. He stated that the cause of death, within a reasonable degree of medical certainty, was a close-range gunshot wound that entered her right cheek, perforating her brain and causing massive hemorrhaging and aspiration on her own blood.

DISCUSSION

I. Photographs.

¶ 13. Barfield argues that the photographs admitted into evidence were gruesome and unfairly prejudicial. In particular, Barfield argues that the trial court erred by admitting State’s Exhibit 6 into evidence. State’s Exhibit 6 was an enlarged photograph of the injuries to Talley’s head, with an inserted probe showing the trajectory of the bullet. Barfield’s claim, however, is procedurally barred for failure to object to the introduction of the photograph into evidence at trial. When the State introduced the photographs at trial, Barfield failed to make any objection, and even replied to the trial court “No objection” prior to its admission into evidence. “Failure to make a contemporaneous objection waives an issue for purposes of appeal.” Jones v. State, 962 So.2d 1263, 1270 (Miss.2007) (citing Spicer v. State, 921 So.2d 292, 305 (Miss.2006)). Barfield’s claim is procedurally barred for failure to make a contemporaneous objection.

¶ 14. Notwithstanding the procedural bar, Barfield’s assertions are without merit. As a general rule, the admission of photographs is within the discretion of the trial court; “[ajdmission of photographs by the trial court is reviewed for abuse of discretion.” Chamberlin v. State, 989 So.2d 320, 340 (Miss.2008). This Court must consider whether the pictures were so gruesome and inflammatory as to lack any evidentiary purpose and, therefore, be inadmissible. McFee v. State, 511 So.2d 130, 134-35 (Miss.1987).

¶ 15. “Some probative value is the only requirement needed in order to support a trial judge’s decision to admit photographs into evidence.” Chamberlin v. State, 989 So.2d at 340 (quoting Jones v. State, 920 So.2d 465, 476-77 (Miss.2006)). However, “gruesome photographs which have no evidentiary purpose and which only arouse the emotions of a jury should not be admitted.” Sharp v. State, 446 So.2d 1008, 1009 (Miss.1984). While reversal for the admission of gruesome and/or cumulative photographs is rare, we have advised judges and prosecutors to “use great caution in this area.” Holliday v. State, 455 So.2d 750, 752 (Miss.1984). This Court has held that photographs have evi-dentiary value when they “(1) aid in describing the circumstances of the killing; (2) describe the location of the body and cause of death; [and] (3) supplement or [clarify] witness testimony.” McIntosh v. State, 917 So.2d 78, 83 (Miss.2005) (citations omitted).

¶ 16. Barfield cites Welch v. State, 566 So.2d 680 (Miss.1990), and Hewlett v. State, 607 So.2d 1097 (Miss.1992), as authority. In Welch, Joseph Ray Heath was killed by multiple severe trauma. Welch, 566 So.2d at 681. Heath sustained repeated blows to the head “with a ‘buddy bar,’ which is a large three-foot long iron bar, weighing sixty or seventy pounds.” Id. When Heath’s body initially was discovered, it was face-down with arms outspread, and partially clothed. Id. At trial, various photographs of Heath’s dissected body were admitted into evidence. Id. at 685. This Court held that the photographs of the victim’s dissected cadaver had no probative value. Id. The Welch Court found that the photographs “do not show the circumstances surrounding the death, the cruelty of the crime, the place of the wounds, or the extent of the force or violence used” and “were extremely unpleasant and used in such a way to be overly prejudicial and inflammatory.” Id.

¶ 17. The admission of State’s Exhibit 6 at Barfield’s trial is easily distinguishable from Welch. The dissected cadaver in Welch was not indicative of the state of Heath’s body at the time of its discovery, but rather its state during the autopsy process. The photograph introduced into evidence as State’s Exhibit 6 was not of a “dissected cadaver,” but a photograph of the victim’s face showing the gunshot wound and a rod inserted into the head to show the trajectory and angle of the bullet. Unlike Welch, the photograph placed before the jury depicted every aspect that the Court held the photographs in Welch lacked. State’s Exhibit 6, as explained by Dr. McGarry to the jury, showed the location of the wound, the stippling of gunshot powder, indicative of a close-range gunshot, the path and upward trajectory of the bullet and corresponding upward stippling of the gunpowder, the passage of the bullet through the right internal carotid artery and brain, which caused extensive bleeding, and the disruption of the sinus, showing the path from which the blood flowed over the face. This Court has held that, although photographs may be unpleasant, mere unpleasantry does not establish reversible error. See Noe v. State, 616 So.2d 298, 303 (Miss.1993) (“A photograph, even if gruesome, grisly, unpleasant, or even inflammatory, may still be admissible if it has probative value and its introduction into evidence serves a meaningful evidentiary purpose.”).

¶ 18. Barfield also relies on Hewlett v. State. In Hewlett, three family members died when Hewlett’s vehicle hit their vehicle and burst into flames. Hewlett, 607 So.2d at 1099. The trial court admitted two photographs depicting the charred bodies of two of the victims. Id. at 1101. Barfield is correct in his assertion that this Court stated, “[pjhotographs of a victim should not ordinarily be admitted into evidence where the killing is neither contradicted nor denied, and the corpus delicti and the identity of the deceased have been established.” Id. at 1102. However, the very next sentence of the opinion states, “Photographs may nevertheless be admitted into evidence in criminal cases where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory.” Id. (citing Sudduth v. State, 562 So.2d 67, 70 (Miss.1990)). Further, “photographs used to support testimony of witnesses have been accepted as relevant and their admission as evidence was not an abuse of discretion.” Id. (citing Lanier v. State, 533 So.2d 473, 484 (Miss.1988)). This Court ultimately affirmed the trial court’s admission of the photographs of the charred bodies, because they depicted the bodies as “viewed at the scene by the medical examiner” and they supplemented and clarified his testimony at trial. Id.

¶ 19. Again, Hewlett is easily distinguishable. Here, the State introduced the photograph during the testimony of Dr. Paul McGarry, a forensic pathologist. The photograph was used by Dr. McGarry to show the path the bullet traveled as it took the life of Talley. The photograph was also used to show the stippling, or powdered particles embedded in Talley’s skin. Dr. McGarry stated that the stippling was indicative of a close-range gunshot within twelve to eighteen inches. This evidence was significant because contradictory evidence was provided by testimony from other witnesses as to Barfield’s statements concerning the position of the gun at the time it fired and shot Talley. Contrary to the testimony of law enforcement officers, Barfield denied making any statement to law enforcement that the gun was pointed in a downward position or that the gun must have slipped and struck the ground, causing it to fire when Talley bumped into him as she entered the trailer. As the photographs were used to help the jury better understand the testimony of Dr. McGarry and the circumstances and cause of the shooting, they were clearly relevant. Likewise, pursuant to Mississippi Rule of Evidence 403, the probative value of these photographs was not substantially outweighed by the danger of unfair prejudice.

¶ 20. Additionally, Barfield used the photographs in the cross-examination of Dr. McGarry. Barfield’s counsel had Dr. McGarry hold the photograph for the jury to see, in order to explain the upward angle of the path of the bullet when it struck and killed Talley. Had counsel for Barfield seen these pictures as being more prejudicial than probative for his client, surely he would have sought to limit the jury’s exposure. Instead, he used the pictures himself while cross-examining Dr. McGarry and brought additional attention to the probe which had been inserted into the wound.

¶ 21. The trial court did not err by admitting the photograph, Exhibit 6. Bar-field failed to contemporaneously object, and the issue is procedurally barred. Alternately, Barfield’s argument is without merit, as the photograph served an eviden-tiary purpose, was not unduly prejudicial, and, therefore, was properly admitted at trial.

II. Venue.

¶ 22. Barfield asserts that he was denied the right to a fair trial due to the publicity generated by his case in and around Harrison County. He contends that the trial court abused its discretion by denying his motion for a change of venue.

¶ 23. This Court recently addressed a change-of-venue issue in Welde v. State, 3 So.3d 113 (Miss.2009). “The decision to grant or deny a motion for change of venue is within the discretion of the trial judge.” Id. at 118 (quoting McCune v. State, 989 So.2d 310, 316 (Miss.2008)). This Court has held that “[a] motion for change of venue ‘must be in writing and supported by affidavits of two or more credible persons showing that the defendant cannot receive an impartial and fair trial in that particular county because of prejudgment of the case or grudge or ill will to the defendant in the mind of the public.’ ” Gray v. State, 799 So.2d 53, 62 (Miss.2001) (quoting Davis v. State, 767 So.2d 986, 993 (Miss.2000)). When the application for a change of venue is filed, along with two supporting affidavits stating that the defendant is unable to receive a fair trial in a particular area, a presumption arises that an impartial jury is unattainable. Welde, 3 So.3d at 118; see also Miss.Code Ann. § 99-15-35 (Rev.2007).

¶ 24. Barfield did satisfy the requirements of a “proper application” in that he did file a motion with two attached affidavits alleging that Barfield could not receive a fair trial due to the publicity of the case. Upon this showing by Barfield, the burden then shifted to the State to rebut the presumption that Barfield would not be able to receive a fair trial.

¶ 25. This presumption, however, may be rebutted by the State upon proof that an impartial jury was empaneled during voir dire. Holland v. State, 705 So.2d 307, 336 (Miss.1997). In Gray this Court stated:

This Court enumerated “certain elements which, when present would serve as an indicator to the trial court as to when the presumption is irrebuttable.” White, 495 So.2d at 1349. The elements are as follows:
(1) capital cases based on considerations of a heightened standard of review;
(2) crowds threatening violence toward the accused;
(3) an inordinate amount of media coverage, particularly in cases of
(a) serious crimes against influential families;
(b) serious crimes against public officials;
(c) serial crimes;
(d) crimes committed by a black defendant upon a white victim;
(e) where there is an inexperienced trial counsel.
Id.; Davis, 767 So.2d at 993-94; Baldwin v. State, 732 So.2d 236, 241 (Miss.1999); Burrell, 613 So.2d at 1189-90.

Gray, 799 So.2d at 62.

¶ 26. First, the factors set forth by this Court to determine whether the presumption is irrebuttable are inapplicable to the facts of Barfield’s case because: (1) this was not a capital case; (2) no crowds had threatened violence against Barfield; (3) the amount of media coverage, which will be discussed in further detail, had not been inordinate, and the case had not been: (a) against an influential family; (b) against a public official; (c) a serial crime; (d) a black defendant against a white victim; and (d) trial counsel was not inexperienced.

¶ 27. Nonetheless, this Court will address the amount of media coverage, due to the number of exhibits filed by Barfield. Exhibits A-L all are newspaper articles submitted by Barfield in support of his motion for a change of venue. All of the articles asserted that Barfield had been charged in the death of Talley, but none specifically stated or implied that Barfield was guilty. Only one article seems to have come close to this assertion, Exhibit A. An article by the Biloxi Sun Herald quoted friends of Talley as saying that she had told them she was afraid to break up with Barfield, afraid he would kill her. The article read, “she may have been right.” Some articles, however, such as Exhibit B, another article by the Sun Herald, reported Barfield’s explanation that the gun had fallen from his hand, discharging upon impact with the ground. In all, the articles stuck to undisputed facts such as Bar-field’s arrest and manslaughter charge. (The manslaughter charge eventually was upgraded to murder.) These articles fail to meet the requirement of an “inordinate” amount of media coverage.

¶ 28. However, to better understand the meaning of “inordinate,” this Court may look at how the Court ruled in Harris v. State, 537 So.2d 1325, 1329 (Miss.1989). The Harris case involved far more publicity than in Barfield’s case. Yet the Court found that an impartial jury still could be empaneled. Id. at 1329. Harris involved a brutal rape covered at least twice by television and by nineteen newspaper articles. Id. at 1327. Here, only twelve news stories from both newspaper and television were designated as exhibits. Also, at veni-re in Hams, fifty-two of eighty-two venire persons had some knowledge of the case. In the present case, only thirteen of the sixty venire persons stated that they had read the prior media coverage, and those who had seen media coverage advised the trial court that they could still be impartial. During voir dire, only one member of the selected panel answered that she had seen the media coverage of the case prior to the trial. The juror also told the court that the media coverage would not affect her verdict and that she could rely on what she heard in the courtroom to decide the case.

¶ 29. “[Hjowever, the State can rebut this showing by proving from voir dire that the trial court impaneled an impartial jury.” Harris v. State, 537 So.2d at 1329 (quoting United States v. Harrelson, 754 F.2d 1153, 1159 (5th Cir.1985)). If the State demonstrates such, this Court will not overturn the trial court’s finding that an impartial jury could be found, despite adverse publicity. Id. This Court reviews the trial court’s finding under an abuse-of-discretion standard. Id. In any case, this Court will treat with deference a venire person’s assertions of impartiality. Scott v. Ball, 595 So.2d 848, 850 (Miss.1992).

¶ 30. As revealed in the record, the totality of the voir dire conducted by the trial court and counsel resulted in the seating of a fair and impartial jury, thus rebutting the presumption that an impartial jury could not be obtained by Barfield. Accordingly, this issue is without merit.

III. THE WEATHERSBY RULE

¶ 31. Barfield next argues that the trial court erred by denying his motion for directed verdict, and he was entitled to an acquittal based on the Weathersby Rule. See Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933). After the State rested, Barfield requested a directed verdict based, in part, on the Weathersby Rule. He asserts that his version of events was reasonable and not substantially contradicted in material particulars.

¶ 32. The Weathersby rule states: It has been for some time the established rule in this state that where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

Weathersby, 147 So. at 482.

¶ 33. However, this Court has provided some guidance for circumstances in which the Weathersby Rule would be inapplicable where a defendant was the only eyewitness to a homicide. See Johnson v. State, 987 So.2d 420, 425 (Miss.2008). “[I]f the defendant or the defendant’s eyewitnesses’ testimony satisfies all the elements of murder or manslaughter, the defendant would not be entitled to a directed verdict of acquittal, as their testimony would be the basis for a valid conviction.” Id. In addition, the Weathersby Rule is inapplicable where: (1) “the defendant’s version is patently unreasonable, or contradicted by physical facts”; (2) “where the accused, following the slaying, gives conflicting versions of how the killing took place”; and (3) where the accused “initially denies the act.” Id. (quoting Blanks v. State, 547 So.2d 29, 33-34 (Miss.1989)). When a defendant is the sole eyewitness to the killing and the Weathersby Rule does not apply, the question “then becomes a jury issue as to whether to believe or not believe the defendant’s testimony of how the slaying occurred, and to either convict or acquit.” Id. (quoting Blanks, 547 So.2d at 33-34).

¶ 34. “Motions for a directed verdict and judgment notwithstanding the verdict challenge the legal sufficiency of the evidence, and the standard of review for a directed verdict and judgment notwithstanding the verdict are identical.” Nelson v. State, 10 So.3d 898, 905 (Miss.2009). “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Jones v. State, 904 So.2d 149, 153-54 (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). This Court has further stated:

In analyzing the sufficiency of the evidence, “[t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jones v. State, 904 So.2d 149, 153-54 (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). This Court “accept[s] as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and ... disregard^] evidence favorable to” [the defendant], Anderson v. State, 904 So.2d 973, 977 (Miss.2004).

Moore v. State, 996 So.2d 756, 760-61 (Miss.2008).

¶ 35. We find that this case properly was decided by a jury. Despite Barfield’s assertion that his testimony was uncontra-dicted, the evidence presented showed otherwise. The evidence showed inconsistencies as to the placement of the gun at the time of the shooting, the disposal of the gun, and the nature of the relationship between Barfield and Talley. “Where conflicting stories are given about a homicide by the accused, the Weathersby Rule does not apply.” Fairley v. State, 871 So.2d 1282, 1284 (Miss.2003).

¶ 36. When Deputy Fore arrived at the scene, Barfield told him that the shooting was an accident, he did not intend to shoot Talley, and that he had thrown the gun over a fence. Barfield also told Deputy Fore that he and Talley “got into a little argument, nothing big, and that they were playing with the gun. He had the gun cocked at his leg pointed at the ground and they bumped into each other and the gun went off and shot her in the face.” When Investigator Twomey questioned Barfield at the scene, Barfield gave no indication of a “little argument” between himself and Talley. While in the patrol car, Barfield told Twomey that Talley had stopped by the trailer, she had shoved him, and the gun fired. At a second interview, Barfield told Twomey that when he had seen Talley, he had lowered the gun down by his side, and it was actually pointing toward the floor.

¶ 37. When questioned about the location of the gunshot wound on Talley’s face, Barfield changed his version of events. Twomey stated that Barfield, confronted with the fact that Talley had suffered a wound to the face, stated that he “must have dropped the gun because he was holding it lightly, and that it must have hit the floor and went off.” Twomey also stated that Barfield was inconsistent concerning the disposal of the gun. Barfield first told Twomey that he had disposed of the gun after shooting Talley. Later, Bar-field stated that he had disposed of the gun after he had called his father, but prior to the arrival of paramedics to the scene.

¶ 38. Dr. McGarry testified concerning the wounds that Talley had sustained and the cause of death. By all indications, Dr. McGarrys testimony indicated that the gun was pointed in a upward direction and was fired at close range. Specifically, Dr. McGarry testified that the bullet that entered Talley’s right cheek was angled in an upward position. The bullet’s trajectory was upward at a forty-five degrees angle and toward the left at a twenty-five degree angle toward the top and left of Talley’s head. Furthermore, Talley’s face had stippling in a left, upward pattern. This stippling pattern indicated that the bullet had entered in an upward and left direction. The stippling also indicated a close-range gunshot wound. Dr. McGarry estimated that the gun was between twelve and eighteen inches from Talley when it was fired.

¶ 39. Numerous witnesses also testified concerning Talley and Barfield’s relationship. Twomey stated that Barfield had described his relationship with Talley as enduring. However, Shaw stated that Talley and Barfield had broken up on more than one occasion. Talley had told Shaw that she was taking something back to Barfield and that the relationship was over this time. The morning of the shooting, Talley had told Taylor, her childhood friend, that she and Barfield had broken up the relationship and that she was serious about it. In addition, Jackson stated that Talley had described her relationship with Barfield as “rocky” and “on and off.” Talley also told Jackson that she was afraid to leave Barfield because she did not know what Barfield would do about it. Approximately one week before her death, Talley told Jackson that Barfield had stated that if he could not have her, then, no one could have her.

¶ 40. We find that Barfield’s account of the event was not reasonable and that it was substantially contradicted sufficiently to give rise to a jury question. Therefore, the trial court did not err in denying Bar-field’s motion for a directed verdict.

¶41. Additionally, sufficient evidence supported the jury verdict of manslaughter in this case. Barfield was convicted by the jury of the lesser offense of manslaughter in lieu of the indicted charge of murder. Manslaughter has been defined by the Legislature as “[T]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense .... ” See Miss.Code Ann. § 97-3-35 (Rev.2006).

¶ 42. While the evidence is contradictory on a number of issues, Barfield admitted shooting Talley with his .22 revolver when she entered his home. The evidence showed that Barfield stated to Deputies Fore and Roe and Investigator Twomey at the scene that Talley’s death was an “accident.” Barfield told Deputy Fore that when Talley initially had come to the trailer that they had “a little argument, nothing big, and that they were playing with the gun.”

¶ 43. The testimony also showed that the position of the gun was at issue. Bar-field stated that his testimony was consistent because he always had stated that the gun was pointed in a upward direction when Talley had bumped into him. He claimed that there were no contradictory statements from him, and any statements to that effect were merely responses to theories posed to him by law enforcement officials.

¶ 44. Viewing the evidence in the light most favorable to the verdict, a rational trier of fact, the jury in this case, could have found the essential elements of manslaughter beyond a reasonable doubt. Therefore, Barfield’s issue is without merit.

IV. Weight of the Evidence.

¶ 45. Barfield argues that the jury’s verdict was against the overwhelming weight of the evidence, therefore, the trial court erred by denying his motion for new trial.

¶ 46. A new-trial motion challenges the weight of the evidence. Wilkins v. State, 1 So.3d 850, 854 (Miss.2008). This Court will reverse only if the trial court abused its discretion in denying a motion for new trial. Massey v. State, 992 So.2d 1161, 1164 (Miss.2008). This Court has stated:

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. Herring v. State, 691 So.2d 948, 957 (Miss.1997). The evidence should be weighed in the light most favorable to the verdict. Id.

Jones v. State, 904 So.2d 149, 154 (Miss.2005). On questions of witness testimony, this Court has held that “[t]he jury determines the weight and credibility to give witness testimony and other evidence.” Moore v. State, 933 So.2d 910, 922 (Miss.2006) (citing Johnson v. State, 904 So.2d 162, 167 (Miss.2005)). This Court “may 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.’” Id. (quoting Davis v. State, 568 So.2d 277, 281 (Miss.1990)).

¶ 47. Without reiterating all the evidence recited in Issue III above, and viewing the evidence in the light most favorable to the verdict, this Court cannot say that the verdict of manslaughter is so contrary to the overwhelming weight of the evidence that to allow the conviction to stand would sanction an unconscionable injustice.

¶ 48. Barfield admitted shooting the gun and causing Talley’s death. The jury heard the conflicting testimony of Bar-field’s account of the shooting and placement of the gun as opposed to the testimony of law enforcement officers who questioned Barfield concerning the facts of the shooting. The jury also heard the testimony of Dr. McGarry and saw the physical evidence concerning the angle of the bullet and subsequent stippling and injuries that Talley suffered from the gunshot wound, indicating an upward trajectory of the bullet. The jury also heard conflicting evidence concerning Barfield’s and Talley’s relationship.

¶ 49. After hearing all the evidence, including the conflicting evidence, the jury resolved the evidence in favor of a conviction against Barfield of the lesser offense of manslaughter. Accordingly, this issue is without merit.

CONCLUSION

¶ 50. For the foregoing reasons, this Court affirms the conviction of manslaughter and the sentence of twenty years in the custody of the MDOC.

¶ 51. CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND PIERCE, JJ., CONCUR.

      . There was no record of Talley having used her cell phone to call Shaw, but Shaw’s phone records were not put into evidence. Twomey testified that Talley could have just used another phone.

      . Shaw never asked, and Talley never said, what item she was returning to Barfield.

      . [State]: Your honor, we’d move number 6 into evidence at this time.
      The Court: Defense?
      [Defense]: No objection.
      The Court: It may be marked as State's 6 into evidence.

      . Harris also was used for comparison in Holland v. State, 705 So.2d 307, 336-37 (Miss.1997). In Holland, despite twenty-nine newspaper clippings and thirteen clips from the local television station, the Court held that an impartial jury still could be impaneled.


author: LAMAR, Justice,

text:
    Linda BREWER v. Jason WILTCHER.
    No. 2008-IA-01899-SCT.
    Supreme Court of Mississippi.
    Dec. 3, 2009.

      Stephen P. Kruger, Jan F. Gadow, Jackson, attorneys for appellant.
    Doug Wade, Jackson, Louis J. Guichet, III, Brandon, attorneys for appellee.
   LAMAR, Justice,

for the Court.

¶ 1. In this medical-malpractice action, we decide whether the trial court erred in denying a motion to dismiss under Mississippi Code Section 15-1-36(15). Finding error, we reverse and render the appropriate judgment, dismissal without prejudice.

FACTS

¶ 2. Jason Wiltcher filed a medical-malpractice action against Linda Brewer, Pe-lahatchie Medical Clinic (“the Clinic”), and John Does 1, 2, and 3. Prior to filing an answer, Brewer and the Clinic filed a motion to dismiss with prejudice based on Wiltcher’s failure to send any notice in compliance with Mississippi Code Section 15-1-36(15). See Miss.Code Ann. § 15-1-36(15) (Rev.2003). Wiltcher filed a response to the motion to dismiss, in which he stated that notice was sent on May 11, 2008, via U.S. mail to Linda Brewer. Wiltcher attached an unsigned copy of the notice letter to his response to the motion to dismiss. Thereafter, Brewer and the Clinic filed a reply to Wiltcher’s response to the motion to dismiss, arguing that Wiltcher had failed to provide the court with any admissible, credible evidence that a notice letter was sent.

¶ 3. The trial court conducted a hearing on the motion to dismiss and heard testimony from Lynn Douglas Wade, Wiltcher’s attorney. Wade testified as to his usual practice in preparing letters, which involves his paralegal placing a signed original in the mail. Wade testified that he had no independent recollection of signing the notice letter and that he personally did not place it in the mail. Wade also admitted that he had no knowledge that the notice letter was actually placed in the mail. Further, Wade stated that he does not maintain copies of all signed letters.

¶ 4. After hearing counsel’s arguments and Wade’s testimony, the trial court found that Wiltcher had failed to send any notice to the Clinic, as the notice letter was addressed only to Brewer. The court further ruled as to Brewer that it was “going to give the benefit of the doubt to the plaintiff and the United States mail.” In its final judgment, the trial court stated that it treated the motion as one for summary judgment, since matters outside the pleadings were considered. The court granted summary judgment to the Clinic but denied Brewer’s motion for the same relief. This Court granted Brewer’s permission to bring this interlocutory appeal. See Miss. R.App. P. 5.

DISCUSSION

¶ 5. This Court reviews the application of a question of law under the de novo standard of review. Jackson Med. Clinic for Women, P.A. v. Moore, 836 So.2d 767, 770 (Miss.2003). “When a trial judge sits without a jury, this Court will not disturb his factual determinations where there is substantial evidence in the record to support those findings.” Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994).

¶ 6. At the outset, we note that the trial court erred in converting the motion to dismiss to a motion for summary judgment. A motion to dismiss for failure to comply with Section 15-1-36(15) does not reach the merits of a cause of action; therefore, the trial court should not have treated the motion as one for summary judgment. Thomas v. Warden, 999 So.2d 842, 847 (Miss.2008); cf. Williams v. Skelton, 6 So.3d 428, 431 (Miss.2009) (holding that “dismissal for failure to comply with the pre-suit requirements of Mississippi Code Section 15-1-36 should be without prejudice.”). Therefore, this Court reviews the trial court’s judgment as one denying a motion to dismiss filed pursuant to Mississippi Code Section 15-1-36(15).

¶ 7. Brewer argues that Wiltcher failed to present any evidence to establish that pre-suit notice was mailed, delivered, or received. Brewer points to Wade’s testimony, in which he admitted that he did not have actual knowledge of the notice being mailed or received. Conversely, Wiltcher argues that Wade’s testimony regarding his habit and routine practice evidenced that the notice was mailed to Brewer.

¶ 8. This Court has held that the “mechanics” of Rule 5 of the Mississippi Rules of Civil Procedure apply when notice is mandated as a preliminary step to filing a lawsuit, such as the notice required under Section 15-1-36. Proli v. Hathorn, 928 So.2d 169, 173, 175 (Miss.2006). The Court in Proli relied upon its holding in Brocato v. Mississippi Publishers Corp., 503 So.2d 241 (Miss.1987), in determining that Rule 5 governed service of pre-suit notice under Section 15-1-36. Proli, 928 So.2d at 172-73. In Brocato, this Court held:

Because of the peculiar factual situation involved in this case, it is essential for the Court to determine what action constitutes the serving of notice under § 95-1-5, which is silent regarding how notice is to be served.
Rule 5 of the Mississippi Rules of Civil Procedure is generally utilized after suit has been filed. The official comments to Rule 5 state in part, “This rule presupposes that the court has already gained jurisdiction over the parties.” However, this Court finds the mechanics of Rule 5 may also be used in a situation such as the one at bar in which notice is required as a preliminary step to filing a lawsuit. Therefore, this Court holds that the notice requirements of § 95-1-5 should follow the Rule 5 out-lines [sic].

Brocato, 503 So.2d at 243.

¶ 9. Rule 5 provides in relevant part that “every written notice” shall be served by “mailing it to [an attorney or party] at his last known address” and that “[s]ervice by mail is complete upon mailing.” Miss. R. Civ. P. 5(a)-(b)(l) (emphasis added). Rule 5 further provides that “[p]roof of service of any paper shall be upon certificate of the person executing the same.” Miss. R. Civ. P. 5(d).

¶ 10. The outcome of this case depends upon whether the notice letter was properly served via mail upon Brewer. This Court has held that “[t]here is a presumption that mail deposited, postage prepaid and properly addressed is timely delivered to the person addressed.” Thames v. Smith Ins. Agency, Inc., 710 So.2d 1213, 1216 (Miss.1998) (emphasis added). In order for the presumption to arise, the proponent must present sufficient evidence that the letter was stamped and mailed. New York Life Ins. Co. v. Quinn, 171 Miss. 396, 157 So. 902, 903-04 (1934) (finding no presumption raised since plaintiff gave letters to postman for the postman to stamp and place in the mail). “Once the presumption is established, the burden shifts to the party denying receipt to present evidence to rebut the presumption.” Holt v. Mississippi Employment Sec. Comm’n, 724 So.2d 466, 470 (Miss.Ct.App.1998).

¶ 11. Wiltcher failed to present any witness to attest that the notice letter was actually stamped and placed in the mail. Wiltcher’s testimony regarding his usual practice and procedure is insufficient to establish that notice was served in compliance with Section 15-1-36(15) and Rule 5. Further, the unsigned letter attached to Wiltcher’s response lacked a certificate of service, which would provide some “[p]roof of service.” Miss. R. Civ. P. 5(d).

¶ 12. We find that Wiltcher failed to show that the notice letter was actually mailed, which is required under Rule 5 to complete service. Miss. R. Civ. P. 5(b)(1). Further, no presumption arose that the letter was received by Brewer because Wiltcher failed to show that the notice letter was deposited in the mail. See Thames, 710 So.2d at 1216. Because Wiltcher failed to present sufficient evidence that he complied with Section 15 — 1— 36(15) by serving Brewer with a copy of the notice letter via mail, we find that the trial court erred in giving “the benefit of the doubt to the plaintiff and the United States mail.”

CONCLUSION

¶ 13. For the reasons stated, the order denying Brewer’s motion to dismiss is reversed, and judgment is rendered in favor of Brewer, dismissing Wiltcher’s complaint without prejudice.

¶ 14. REVERSED AND RENDERED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Section 15-1-36(15) provides that:
      No action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. If the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for commencement of the action shall be extended for sixty (60) days from the service of the notice for said health care providers and others. This subsection shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.
      Miss.Code Ann. § 15-1-36(15) (Rev.2003) (emphasis added).


author: GRIFFIS, J.,

text:
    Stacy MARSHALL, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00113-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2009.
    Rehearing Denied June 2, 2009.
    Certiorari Denied Aug. 27, 2009.
    Certiorari Dismissed as Improvidently Granted Dec. 3, 2009.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Following a trial by jury, Stacy Marshall was found guilty of possession of cocaine and sentenced to a term of thirty years in the custody of the Mississippi Department of Corrections, with twenty-five years to serve and the remaining five years conditionally suspended on his successful completion of the community service program of the Jones County Circuit Court. Marshall now appeals and argues that: (1) the circuit court permitted plain error by allowing the State to make multiple references to Marshall’s right to remain silent and his right not to testify against himself; (2) the circuit court permitted plain error by allowing the State to make comments attacking the truthfulness of defense counsel; and (3) the cumulative effect of all errors requires reversal. Finding no error, we affirm.

FACTS

¶ 2. After conducting surveillance, the Laurel Police Department obtained a search warrant for the home of Marshall’s relatives. When the search warrant was executed, Marshall ran out the back door and was apprehended by the police. A lockbox was found in one of the bedrooms of the house, and the only key found during the search that would open the box was in Marshall’s pocket. The key was used to open the box, and over two pounds of cocaine were found inside. A scale used to measure the cocaine was also found near the box.

¶ 3. Marshall was charged with possession of cocaine within 1,500 feet of a church; however, the State failed to put forth any evidence of the distance between the house and the church, so the enhancement was dropped. The jury found Marshall guilty of possession of more than thirty grams of cocaine.

STANDARD OF REVIEW

¶ 4. There were no contemporaneous objections made at trial regarding any of Marshall’s assignments of error on appeal. As such, he asks this Court to review his claims under the plain-error doctrine. “The plain[-]error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice.” Williams v. State, 794 So.2d 181, 187(¶ 23) (Miss.2001) (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). “Further, [the appellate court] applies the plain[-]error rule only when it affects a defendant’s substantive/fundamental rights.” Id. (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991)).

ANALYSIS

1. Whether the circuit court permitted plain error by allowing the State to make multiple references to Marshall’s right to remain silent and his right not to testify against himself

a. The Prosecutor’s Direct Examination of the Narcotics Agents

¶ 5. Marshall first argues that his conviction should be reversed because the State was allowed to comment on his right to remain silent and his right not to testify against himself. The State responds that this issue was waived as there was no contemporaneous objection made. Even so, the State claims the issue has no merit because the prosecutor was merely responding to arguments made by defense counsel.

¶ 6. Marshall points to several instances in the transcript of the trial where he alleges that the State commented on his right to remain silent. The first instance is the testimony of Robert Strickland, a narcotics agent with the Laurel Police Department. On redirect, the State asked Strickland the following questions:

Q: Did you ever hear Mr. Marshall or did Mr. Marshall ever state to you that that was not his key on his key chain?
A: No.
Q: Did you ever hear Mr. Marshall make any comments about how the key got on his key chain?
A: No, I didn’t. I didn’t hear it.
Q: To your knowledge did he make any such statement?
A: Later on he made a statement that it was his.

¶ 7. The State also called Mitch Van Syckel, a narcotics officer with the Laurel Police Department. He testified that the key found on Marshall opened the lockbox. The prosecutor asked this witness:

Q: When Mr. Bounds opened that safe up and started pulling out this cocaine, did Mr. Marshall over there say anything?
A: I don’t recall, sir.

¶ 8. Marshall made no objections on the grounds of a violation of his Fifth Amendment right to remain silent. He thus relies on plain error; however, we do not find that this issue resulted in a manifest miscarriage of justice. Finding no plain error, this issue is procedurally barred.

¶ 9. Despite the procedural bar, the error, if any, was harmless and “unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” Williams v. State, 761 So.2d 149, 154(¶ 18) (Miss.2000) (citations omitted). The silence alluded to by the prosecutor’s questioning in no way prejudiced Marshall’s case presented to the jury. As to ownership of the key, the testimony showed that Marshall later admitted that the key was his. Regarding his silence as the lockbox was opened, the officer’s testimony was that he could not recall whether Marshall made a statement or not. Accordingly, this issue has no merit.

b. The Prosecutor’s Comments During Closing Argument

¶ 10. Additionally, Marshall claims that the State improperly commented on his right not to incriminate himself when the prosecutor stated during closing argument, “There ain’t no [sic] evidence. Ain’t no [sic] evidence he’s not guilty.” He argues that this statement by the prosecutor placed the burden on Marshall to take the stand and put on evidence of his innocence.

¶ 11. Again, we find that this statement does not constitute plain error. It did not “seriously affect[] the fairness, integrity or public reputation of [the] judicial proceedings.” Porter v. State, 749 So.2d 250, 261(¶ 36) (Miss.Ct.App.1999) (quoting United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). As such, this claim is procedurally barred.

¶ 12. Regardless of the procedural bar, we find no error in the prosecutor’s comments. “Attorneys are allowed wide latitude in closing arguments.” Howell v. State, 860 So.2d 704, 751(¶ 169) (Miss.2003) (citing Holly v. State, 716 So.2d 979, 988(¶ 33) (Miss.1998)). This Court must consider the allegedly improper statement in the context in which it was made. Id. at 752(¶ 169) (citing Ballenger v. State, 667 So.2d 1242, 1270 (Miss.1995)). The supreme court has held:

although a direct reference to the defendant’s failure to testify is strictly prohibited, all other statements must necessarily be looked at on a case[-]by[-]case basis. There is a difference, however, between a comment on the defendant’s failure to testify and a comment on the failure to put on a successful defense. Moreover, the State is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to a defendant’s failure to testify by innuendo and insinuation.

Strahan v. State, 729 So.2d 800, 807(¶ 27) (Miss.1998) (internal citations and quotations omitted).

¶ 13. When viewed in context, the prosecutor’s comments in this case referred to Marshall’s lack of defense and not to his failure to testify. In his opening statement, Marshall’s attorney told the jury that the cocaine was not Marshall’s. He further stated that he would show the jury to whom the drugs actually belonged. He implied numerous times that it was Marshall’s relatives, and not Marshall, who owned the drugs. However, there was no evidence at trial that any of Marshall’s relatives possessed the drugs. Marshall did not present any evidence whatsoever; thus, the prosecutor’s comment that there was no evidence that Marshall was not guilty referred to the promise made by Marshall’s counsel that he would prove that someone else, and not Marshall, was in possession of the cocaine.

¶ 14. Further, the prosecutor’s comment did not specifically reference Marshall’s right not to testify. He did not reference evidence that only Marshall could personally rebut. He merely made a general statement that there was no evidence presented — evidence promised by Marshall’s counsel — proving that someone other than Marshall possessed the cocaine. Such a statement is permissible as it directly refers to Marshall’s lack of a defense. Accordingly, this issue has no merit.

2. Whether the circuit court permitted plain error by allowing the State to make comments attacking the truthfulness of defense counsel.

¶ 15. Marshall also contends that the prosecutor’s comments during closing argument attacked the truthfulness of the statements made by his counsel during closing argument. The State responds that this assignment of error was also waived as there was no objection made at trial. Further, the State claims that this issue is lacking in merit.

¶ 16. After Marshall’s counsel delivered his closing argument to the jury, the prosecutor stated the following in rebuttal:

I just get a little bit outraged at some of the excuses that some of these lawyers can come up with. You know, this is supposed to be about a search. But what is the truth? Ain’t that all we need to worry about today? What is the truth about this today? That’s all we need to be concerned about.
You know, I’ve heard this gentlemen get up here that’s a lawyer, this gentleman from Jackson come up here with Stacy Marshall, and say to you this morning, you know, I try to — you know, you’ve got a right to be told the truth by the lawyers too. Let me say this, what I say is not evidence in this case. What he says is not evidence. When you took an oath this morning and you swore before God that you would go by the evidence. That’s the evidence, what the people said from the witness stand. That’s the evidence. Not what I say or what he says or he says or anybody else says.

(Emphasis added).

¶ 17. Marshall claims that the emphasized portion of this statement impugned the honesty of his counsel. However, Marshall’s counsel failed to object at trial. We do not find that this statement, when read in context, called into question the fairness of Marshall’s trial; thus, no plain error exists, and Marshall is procedurally barred from raising this issue on appeal.

¶ 18. The procedural bar notwithstanding, this issue has no merit. It is true, as Marshall argues, that this Court condemns any unwarranted personal attacks upon defense counsel. See Edwards v. State, 737 So.2d 275, 300-01(¶ 56) (Miss.1999). However, as we review the prosecutor’s comments in the context of the comments made by defense counsel, it becomes clear that the prosecutor was responding to Marshall’s theory of the case and was in no way personally attacking the truthfulness of Marshall’s counsel.

¶ 19. Throughout the trial, Marshall’s theory was that the cocaine belonged to his relatives and not to him. In his opening statement, Marshall’s counsel made it clear that Marshall did not own the home in which the cocaine was found; instead, he was just visiting his family. He promised repeatedly that the jury would be shown exactly who possessed the cocaine, and he concluded by warning the jury to “listen to the evidence and the investigation and it will reveal clearly whose cocaine this was.”

¶ 20. However, Marshall presented no evidence at trial. Instead, the entirety of the evidence proved that Marshall ran from the police; Marshall possessed the only key that would open the lockbox containing the cocaine; and Marshall’s picture identification card was found in a Walmart bag containing the receipt for the lockbox.

¶ 21. Marshall continued the same defense throughout the closing arguments, even though there was no evidence that the cocaine belonged to his relatives. His counsel stated the following:

This cocaine was found in his relative’s home in Laurel at this particular residence in the children’s bedroom. [Marshall] doesn’t have any children that live at that residence. Those people who own that house, who are [nowhere] to be found in here, they’re just leaving him to be charged with this, they’re just leaving him and hoping that they don’t get caught because they thought that leaving it in the children’s bedroom they wouldn’t be responsible for this. And they don’t care that he’s been charged. They just don’t want to be charged with this. That is very, very unfair.
[His family is] going to stay as far away as they can from this courtroom because they do not want to be found responsible for what they had in their home and having activities going on. And now that he’s been arrested, they want you [ ] to convict him for it.

Defense counsel concluded by saying that the defense had clearly shown the jury who owned the cocaine. Thereafter, the prosecutor made the comments in question regarding the excuses some lawyers come up with and the jury’s right to be told the truth by the lawyers.

¶ 22. The prosecutor’s comments were merely references to the fact that there was no evidence to support these arguments made by defense counsel. It does not constitute error for the prosecutor to comment on “the paucity of evidence before the jury to support the defendant’s defense.” Moss v. State, 727 So.2d 720, 727(¶ 31) (Miss.Ct.App.1998) (citations omitted). The prosecutor stated that the jury was not being told the truth because Marshall’s counsel repeatedly blamed Marshall’s relatives despite the overwhelming evidence that Marshall constructively possessed the cocaine and the lack of evidence that the relates possessed the cocaine. We find no reversible error in the prosecutor’s statements during closing argument. Accordingly, this issue has no merit.

8. Whether Marshall is entitled to relief based on the cumulative errors committed at trial.

¶ 23. Finally, Marshall argues that this Court should grant his requested relief based on the cumulative errors committed at trial. However, we have found that each of Marshall’s assignments of error is without merit. “As there was no reversible error in any part, so there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987). Accordingly, this issue is also without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWENTY-FIVE YEARS TO SERVE AND FIVE YEARS SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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