author: ISHEE, J.,

text:
    Marcus H. HARRIS a/k/a Marcus Herbert Harris a/k/a Marcus Harris, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01244-COA
    Court of Appeals of Mississippi.
    12/13/2016
    Rehearing Denied August 1, 2017
    Certiorari Denied November 30, 2017

      MARCUS H. HARRIS (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: BARBARA BYRD, ATTORNEY FOR APPELLEE
    BEFORE IRVING, P.J., ISHEE, FAIR AND WILSON, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. In 2010, Marcus H. Harris pleaded guilty to murder and aggravated assault in exchange for the State’s agreement to reduce his capital-murder charge to murder. In accordance with Harris’s plea agreement, the Jackson County Circuit Court sentenced him to serve a life sentence in the custody of the Mississippi Department of Corrections (“MDOC”) for his murder conviction, and to serve twenty years for his aggravated-assault conviction. The circuit court also ordered Harris to pay a $5,000 fine for each of his convictions and all court costs. Harris filed a petition to clarify his sentence, believing his sentence had subsequently been reduced. The circuit court denied Harris relief. Harris now appeals the denial of his petition. Finding no error, we affirm the circuit court’s judgment.

STATEMENT OF FACTS

¶ 2.. On March 2, 2010, Harris was indicted for capital murder and aggravated assault after fatally shooting Sema Hall and permanently paralyzing Willie Williams. Harris originally pleaded not guilty. However, in exchange for the State’s agreement to reduce Harris’s capital-murder charge to murder, Harris withdrew his not-guilty plea, and pleaded guilty to murder and aggravated assault. On March 1, 2011, Harris received a life sentence in the custody of the MDOC for his murder conviction, and a twenty-year sentence for his aggravated-assault conviction. In addition, the circuit court ordered Harris to pay a $5,000 fíne for each conviction, as well as all court costs,

¶3. On July 31, 2014, Harris filed a petition to clarify his sentence, based upon his belief that the circuit clerk’s docket summary revealed that the crime he had been indicted for, and the sentence he received, had been reduced. Harris cited to an erroneous docket entry, contending that his sentence had been amended, his murder conviction reduced to possession of a controlled substance, and his sentence reduced to twenty years in,MDOC custody, with twelve years suspended and eight years to serve. In reality, the circuit clerk’s docketing software malfunctioned, causing Harris’s file to be inadvertently merged with another criminal file. As a result, a separate file’s sentence was shown on the docket summary. Harris presented a copy of the erroneous docket entry 'as the sole piece' of support for his petition, raising no alternative issues. In response, the State provided the circuit court with an accurate version of Harris’s docket summary.'' On August 19, 2014, upon review of Harris’s petition and the State’s response, the circuit court held Harris’s sentence was unambiguous and, therefore, denied him relief. Harris now appeals.

STANDARD OP. REVIEW

¶4. A motion for postconviction relief (“PCR”) “shall be filed as an original civil action in the trial court, except in cases in which the prisoner’s conviction and sentence have been appealed to the [S]upreme [C]ourt of Mississippi and there affirmed or the appeal dismissed,” Fuller v. State, 914 So.2d 1230, 1231 (¶ 3) (Miss. Ct. App. 2005) (quoting Miss. Code Ann. § 99-39-7 (Rev. 2015)). “This, Court reviews a denial of a [PCR motion] under an abuse of discretion standard.” McDonald v. State, 16 So.3d 83, 84 (¶ 4) (Miss. Ct. App. 2009). “In reviewing a trial court’s decision to deny a PCR [motion], [this Court] will not disturb the trial court’s findings unless they are clearly erroneous.” Massey v. State, 161 So.3d 1132, 1133 (¶ 5) (Miss. Ct. App. 2015). Where questions of law are raised, on appeal, however, “we employ a de novo standard of review.” Johnson v. State, 31 So.3d 647, 649 (¶ 5) (Miss. Ct. App. 2010).

DISCUSSION

¶5. At the outset, we must first note that Harris’s-petition to-clarify his sentence falls within the purview of post-conviction relief, as Harris asserts that- his sentence is ambiguous. See Laneri v. State, 167 So.3d 274, 277 (¶ 6) (Miss. Ct. App. 2015) (citing Burns v. State, 933 So.2d 329, 331 (¶ 8) (Miss. Ct. App. 2006)) (holding “[a]n argument, that a sentence violates law ... because it is unredeem-ably ambiguous or incomplete, would be proper under [PCR] procedures”). Though Harris did not explicitly file a PCR motion in the circuit court, Harris’s petition takes issue with the ambiguity of his sentence. Therefore, we consider Harris’s appeal as one from a denial of PCR, See Fuller, 914 So.2d at 1231-32 (¶ 3). Because Harris pleaded guilty, however,-his PCR motion is time-barred under Mississippi Code Anno.-tated section 99-39-5(2) (Rev. 2015), as he filed his motion more than three years after the entry of his judgment of conviction, Owens v. State, 17 So.3d 628, 634 (¶ 17) (Miss. Ct. App. 2009). Notwithstanding section 99-39-5(2)’s time-bar, this Court will address the merits of Harris’s appeal with respect to his claim that his sentence is ambiguous.

¶6. To support Harris’s argument that his sentence is ambiguous, he relies solely on a docket entry derived from the circuit clerk’s docket summary. The erroneous entry to which Harris cites allegedly confirms that Harris’s murder charge was reduced to possession of a controlled substance, reducing his sentence to a twenty-year sentence with twelve years suspended and eight years to serve. The State, however, responded by providing the circuit court with an accurate version of'the docket summary, contending that “the [c]ircuit [c]lerk’s ... software, at times, inadvertently merges files.” As a result, “[Harris] was subject to the inadvertent merging of files, and a separate file’s sentence was shown on the docket summary screen.” To further support this contention, the State showed even the erroneous docket summary listed the withdrawal of Harris’s not-guilty plea, the reduction of his capital-murder charge to murder, and his receiving a life sentence for that conviction and a twenty-year sentence for his aggravated-assault conviction. Finding on behalf of the State, the circuit court determined that the docket summary to which Harris referred was, in-fact, “the result of the inadvertent electronic merging of files.” In light of that finding, the circuit denied Harris’s petition.

¶ 7. The record reveals that on March 1, 2011, Harris pleaded guilty to murder and aggravated assault, and received the sentence he is currently serving within MDOC custody. Moreover, the record does not reflect that Harris was ever indicted for, that he pleaded guilty to, or that he was sentenced to a term of imprisonment for possession of a contfolled substance.

¶ 8. For the first time on appeal, Harris argues that it was his understanding that he was pleading guilty to manslaughter, andwould be sentenced to serve twenty years for that conviction. Thus, Harris alleges the mistaken docket entry should have stated his murder charge had been reduced to manslaughter, rather than possession of a controlled substance. Because this Court is limited to review of those issues asserted by Harris in his PCR motion, this argument is without merit. Webster v. State, 152 So.3d 1200, 1202 n.2 (Miss. Ct. App. 2014). In addition, all other issues raised by Harris for the first time on appeal are procedurally barred. See Lockett v. State, 614 So.2d 888, 893 (Miss. 1992) (holding the petitioner bears the burden of proving that no procedural bar exists).

CONCLUSION

¶ 9. Upon review, we find nothing in the record to overturn the circuit court’s denial of Harris’s PCR motion. Harris pleaded guilty to the charges of murder and aggravated assault. Harris received a life sentence for his murder conviction, .and a twenty-year sentence for his aggravated-assault conviction. As such, this Court finds that Harris’s PCR motion was time-barred and that his sentence was not ambiguous. We therefore affirm the circuit court’s denial of Harris’s PCR motion.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ.,, BARNES, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Ladell MAGGETT, Jr., Jerry Stewart a/k/a Jerry Undre Stewart and Kelvin Taylor a/k/a Kevin Taylor, Appellants v. STATE of Mississippi, Appellee
    NO. 2015-KA-00215-COA
    Court of Appeals of Mississippi.
    12/13/2016
    Rehearing Denied April 25, 2017
    Rehearing Denied July 18, 2017
    Certiorari Denied November 16, 2017

      AZKI SHAH, KELVIN TAYLOR (PRO SE), JERRY STEWART (PRO SE), OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, FOR APPELLANTS.
    OFFICE OF THE ATTORNEY GENERAL, BY: LADONNA C. HOLLAND, FOR APPELLEE.
    BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. The body of Quenton McKay was found on a gravel road in Bolivar County, about a mile off Highway 61. McKay had been shot six times, and his wrists were bound with duct tape. The State alléged that McKay was executed on the orders of Jerry Stewart after a drug deal gone bad. Stewart, Laddell Maggett, and Kelvin Taylor were convicted of capital murder. Each was also convicted of possession of a firearm after a felony conviction. They appeal, raising numerous issues. We find no error and affirm.

FACTS

¶2. The prosecution was built on the testimony of two accomplices turned State’s witnesses, Tresten Chatman and Christopher Anderson. Thei*e were some differences in their accounts, but both agreed that McKay and Chatman had arranged for Stewart to buy a kilogram of cocaine from an associate of McKay’s in Memphis, and the cocaine turned out to be mostly baking soda. On the way back from the exchange, Stewart summoned Anderson, Maggett, and Taylor for assistance. McKay’s hands were bound, and he was given a phone and told to get the money back. After McKay could not do it, they took him to a remote location, where Chatman was ordered to shoot McKay or be killed himself. Chatman fired one or more shots, followed by Maggett, and depending on the account, Taylor.

¶ 3. Chatman testified that his family had been threatened if he talked. But Chatman was soon arrested, and after initial denials, he implicated Stewart, Taylor, and Anderson—and, eventually, Maggett. Anderson’s account agreed in most respects, but he, like Chatman, appeared to minimize his own culpability.

¶ 4. Stewart testified in his own defense. He admitted to being involved in the drug deal, but according to him, his role was just to drive the vehicle. Anderson and Stewart’s brother were the real purchasers of the cocaine. Stewart claimed that he parted ways with Chatman, Anderson, and McKay after returning from the drug deal, with the implication that the State’s witnesses had ■ murdered McKay and were trying to pin it on him. Stewart and Mag-gett also produced alibi witnesses who claimed to have been with them at thb time of the killing.

¶5. Convicted by the jury, Maggett, Stewart, and Taylor appeal.

DISCUSSION

¶ 6. All three defendants are represented by counsel on appeal, who have filed briefs on their behalf. Stewart and Taylor have also filed pro se supplemental briefs. We have consolidated and reorganized the issues for efficiency and clarity.

1. Impeachment of Anderson

¶ 7. Prior to trial, Maggett filed a motion to impeach Anderson with his prior convictions for possession of cocaine and armed robbery, which were more than ten years old. The trial court denied the motion.

¶8. On appeal, Maggett and Stewart contend that this was error. They rely on Young v. State, 731 So.2d 1145 (Miss. 1999), which found a trial court in error for essentially conducting a Mississippi Rule of Evidence 609(a)(1)(B) balancing test when the witness was not a party. It held that admissibility should have been analyzed under the more permissive Rule 609(a)(1)(A).

¶ 9. This authority is simply inapposite, as Rule 609(a) applies to convictions less than ten years old, and Anderson’s convictions were more than ten years old. Rule 609(b) applies to convictions over ten years of age, stating:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent, gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

The record reflects that the trial court properly considered this issue under Rule 609(b). No abuse of discretion has been shown.

2., Severance

¶ 10. Stewart and Maggett next contend that the trial court erred in denying their motions to -sever the trials based on retroactive misjoinder, as they were charged with felony murder and being in possession of a firearm after a felony conviction. This argument fails because the doctrine of retroactive misjoinder can only apply when one of the counts has been vacated or otherwise found to be invalid, and the appealing defendant was prejudiced by being tried on the supported and unsupported allegations together. See Williams v. State, 37 So.3d 717, 725-26 (¶ 25) (Miss. Ct. App. 2010). That, did not occur here, as we affirm both counts for all of the defendants.

¶ 11.-Maggett also presents a cursory argument that his trial should have been severed based on the fact that there was more evidence against Stewart than the other defendants.

¶ 12. “Defendants jointly indicted for a felony are not entitled to separate trials as a matter of right.” Carter v. State, 799 So.2d 40, 44 (¶ 13) (Miss. 2001). On the contrary, “[jjoint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability—advantages which sometimes operate- to the .defendant’s benefit.” Cavett v. State, 717 So.2d 722, 727 (¶ 30) (Miss. 1998) (quoting Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). A trial .court’s denial of a motion to sever will not be overturned on appeal absent an abuse of discretion. King v. State, 857 So.2d 702, 716 (¶ 19) (Miss. 2003); URCCC 9.03, Severance is required only when it “is necessary to promote a fair determination of the defendant’s guilt or innocence.” Carter, 799 So.2d at 44 (¶ 13). The two criteria to be considered in reviewing the denial of a severance- are (1) “whether ... the testimony of one co-defendant tends to exculpate that defendant at the expense of the other defendant” and (2) “whether the balance of the evidence introduced at trial tends to go more to the guilt of one defendant rather than the other.” Hawkins v. State, 538 So.2d 1204, 1207 (Miss. 1989). A. showing of prejudice from the failure to grant severance -is required to secure reversal on appeal. See id.

¶ 13. Here, ■ Maggett admits • that Stewart did not' attempt to exculpate himself at' his codefendants’ expense. He’ focuses only on the second factor, claiming that there was much more evidence of Stewart’s guilt than his own. Maggett points to the evidence concerning the drug deal, which Stewart was admittedly a part of. However, it was alleged that the crimes occurred in the immediate wake of the drug deal, and that the deal’s failure was the motive fbr McKay’S kidnapping and murder. Thus, the evidence of the drug deal would have been admissible in a hypothetical separate trial for Maggett, as evidence of motive and to tell the whole story of the offense. The State has a “legitirhate interest in telling a rational and coherent story of what happened.” Keller v. State, 138 So.3d 817, 855 (¶ 93) (Miss. 2014) (citation omitted). Evidence of prior bad acts, by the defendant or others, “is admissible in instances where the prior bad acts are integrally related in time, place and fact with the crime for which the defendant is being tried.” Id. (citation omitted).

¶ 14. We find no abuse of discretion in denying the motions to sever.

3. Legal Sufficiency of the Indictment

¶ 15. Next, all three appellants contend that their indictments for capital murder, with the underlying crime of kidnapping, were fatally defective because they failed to explicitly specify that McKay was the victim of the kidnapping as well as the murder.

¶ 16. This objection to the indictments was not raised before the trial court. Nonjurisdictional defects in the- indictment may not be attacked for the first time on appeal absent a showing of cause and actual prejudice. Crawford v. State, 716 So.2d 1028, 1050-51 (¶ 82) (Miss. 1998) (superceded by rule on other grounds, as recognized- by Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 39 (¶ 22) (Miss. 2003)). Mississippi law recognizes only two such jurisdictional defects: where the “indictment fails -to charge a necessary element of a crime or if there exists no subject matter jurisdiction.” Banana v. State, 635 So.2d 851, 853 (Miss.1994); see also Brown v. State, 37 So.3d 1205, 1209-10 (¶ 9) (Miss. Ct. App. 2009).

¶ 17. Here, the appellants appear to be attempting to travel under the first exception—the lack of a necessary element. They rely entirely on Rowland v. State, 98 So.3d 1032, 1038-39 (¶ 12) (Miss. 2012), where the Mississippi Supreme Court held that a capital, murder indictment, with the underlying offense of robbery of certain specified individuals “and others,” would not be valid as to the “others.” In so doing, the supreme court seemed to hold that the identity of the victim of the underlying offense, when it is robbery, is a necessary element of an indictment for cápital murder. See id. That would have been an aberration, as the supreme court had held before Rowland that, other than a limited exception for burglary, “it is not necessary to .specifically set forth the elements of the .underlying felony used to elevate the crime to capital murder.” Gray v. State, 728 So.2d 36, 70-71 (¶¶ 173-74) (Miss. 1998) (overruled on other grounds by Franklin v. State, 170 So.3d 481, 487 (¶ 22) (Miss. 2015)). Since Rowland, the old rule has been repeated in even more unequivocal language in Batiste v. State, 121 So.3d 808, 836 (¶ 43) (Miss. 2013): “In capital-murder cases, unless the underlying felony is burglary, the underlying felony that elevates the crime to capital murder must be identified in the indictment along with the section and subsection of the statute under which the defendant is being charged. No further detail is required.” (Citations omitted).

¶ 18. We conclude that Rowland has been superseded by Batiste on this point, and that the identity of the victim of the underlying offense is not a necessary elément of capital murder. The indictments' here were adequate under Batiste. This issue is without merit.

4. Admissibility of Statements

¶ 19. Maggett and Stewart challenge the denial of a pretrial defense motion to determine the admissibility into evidence of out-of-court statements made by Anderson and Chatman. The trial court found them to be hearsay and not subject to any exception, though it did allow the defendants to use the statements extensively in impeaching Anderson and Chat-man, including allowing the defendants to play nearly the entire recordings for the jury. On appeal, Maggett and Stewart contend that the statements were party admissions under Mississippi Rule of Evidence 801(d)(2)(A) and should have-been, admitted into evidence. This contention is without merit, as witnesses for the State are not “party opponents” under the hearsay exception in Rule 801(d)(2). See Goodson v. State, 566 So.2d 1142, 1148 n.11 (Miss. 1990). Maggett and Stewart- also seem to argue that the statements were admissible under Rule 801(d)(2)(E) as statements “by a co-conspirator of a party” opponent in furtherance of a conspiracy. This argument fails for the same reason as the first.

5. Sufficiency of the Evidence

¶ 20. Maggett and Stewart challenge the sufficiency of the evidence. In evaluating the sufficiency of the evidence, this Court must decide whether it allows a jury to find “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.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005). “[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.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 21. The appellants point to the rule of law that a conviction, cannot be upheld when it is solely based on the testimony of an accomplice, “if the accomplice testimony is uncorroborated and is unreasonable, self-contradictory, or substantially impeached.” Cowart v. State, 178 So.3d 651, 667 (¶ 44) (Miss. 2015) (citation omitted). The State seems to concede that both Anderson and Chatman were accomplices for the purpose of this analysis. We have previously observed that there is no Mississippi caselaw to support the contention that one accomplice cannot corroborate another, Hendrix v. State, 957 So.2d 1023, 1028 (¶ 9) (Miss. Ct. App. 2007); but the State seems to accept that accomplices cannot corroborate one another, and so we assume that for the purposes of our analysis.

¶ 22. We first address the State’s contention that the accounts were corroborated by certain details, especially Chatman’s testimony. Chatman claimed that McKay’s head was covered with a “Spider-Man” themed pillowcase, taken from Stewart’s house. When the house was searched by the authorities, Spider-Man bedsheets were observed, but not matching pillowcases. Chatman also said Stewart had snack cakes on top of his refrigerator, which he had seen because Stewart gave one to McKay; and snack cakes were found where he said they would be. It is true that “[o]nly slight corroboration of an accomplice’s testimony is required to sustain a conviction,” but “[t]he testimony that must be corroborated is the part connecting the defendant to the crime.” Osborne v. State, 54 So.3d 841, 846 (¶ 22) (Miss. 2011) (citations omitted). The pillowcase Chatman said was used to cover McKay’s head was never independently shown to be connected to the murder, nor were the snack cakes. This evidence simply showed that Chatman had been inside Stewart’s house; it did not necessarily tie the defendants to the murder. And so we cannot find the accomplice testimony here to have been corroborated.

¶ 23. “If the [accomplice] testimony is not corroborated-, a cautionary jury instruction is required.” Id. The instruction was, in fact, given, and the jury nonetheless convicted. So we take the question on appeal to be whether the accomplice testimony here was so “unreasonable, self-contradictory, or substantially impeached” that a properly instructed jury could not find it sufficient to sustain a conviction. See Cowart, 178 So.3d at 667 (¶ 44).

¶ 24. As to the contention that the testimony was substantially impeached, the appellants point to Anderson’s and Chatman’s initial denials of knowledge of the murder and the contradictions between their two accounts.. Clearly, Anderson and Chatman were impeached; but prior inconsistent statements of an accomplice, if explained at trial, do not necessarily render the testimony “substantially” impeached as a matter of law. See Osborne, 54 So.3d at 847 (¶ 23); McNeal v. State, 757 So.2d 1096, 1098 (¶ 5) (Miss. Ct. App. 2000).

¶25, Likewise, the accounts were not self-contradictory, though they did contradict each other on some of the details, notably: whether McKay had a pillowcase over his head when he was shot, whether Chatman shot McKay once or many times, and whether Taylor was one of the shooters. These disputes between the two witnesses presented a question of credibility for the jury, and our standard of review does not permit this Court to substitute our judgment for that of the jury on the question of credibility. It has been “repeatedly held that in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the [S]tate or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court.” Hughes v. State, 735 So.2d 238, 276-77 (¶ 177) (Miss. 1999) (citation omitted). Furthermore, in reviewing the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the prosecution. Bush, 895 So.2d at 843 (¶ 16).

¶26. The record reflects that.Chatman and Anderson were thoroughly cross-examined on their initial denials and on the inconsistencies between their testimonies at trial. The jury was also properly instructed that it should view the testimony of accomplices with “great care and caution,” and it still elected to convict. We cannot find the convictions here to be unsupported by sufficient evidence.

6. Weight of the Evidence

¶ 27. Taylor contends that his conviction was against the overwhelming weight of the evidence. The legal standard for reviewing a challenge to the weight of the evidence is similar to, but distinct from, the review of a challenge to the sufficiency of the evidence. An attack on the weight of the evidence will be successful only when the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). “[T]he evidence must be viewed in the light most favorable to the verdict[.j” Jenkins v. State, 131 So.3d 544, 551 (¶ 23) (Miss. 2013). A new trial should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). And because the trial judge had a firsthand view of the trial, “reversal is warranted only if the trial court abused its discretion in denying [the] motion for a new trial.” Waits v. State, 119 So.3d 1024, 1028 (¶ 13) (Miss. 2013).

¶ 28. Factually, Taylor’s challenge to the weight of the evidence is similar to the other defendants’ challenge to its sufficiency. As we explained above, there were some contradictions between the accounts of the two witnesses, and each had previously made inconsistent statements. But the accounts were also largely in agreement, and the credibility of the individual witnesses was for the jury. Hughes, 735 So.2d at 276-77 (¶ 177).

¶29. Taylor adds the additional argument that the story advanced by Chatman and Anderson does not make sense—he asks why Stewart would call on his friends for assistance in dealing with Chatman and McKay, and why Stewart would blame McKay and Chatman for his being ripped off. Thus, according to Taylor, the' State’s proof is the “unreasonable,” uncorroborated accounts of accomplices, and thus cannot sustain his convictions. See Cowart, 178 So.3d at 667 (¶ 44). However, there are reasonable explanations for Stewart’s conduct: he called for help because he was outnumbered by McKay and Chatman, and he blamed them for the drug deal’s failure because they were the ones who had arranged it. We find no merit to these contentions, and we cannot find Taylor’s convictions to be against the overwhelming weight of the evidence.

7. Admissibility of Cell Phone Records

¶ 30. Next, Maggett and Stewart challenge the trial court’s refusal to admit into evidence cell phone records from phones allegedly belonging to or used by various individuals involved in the case. The trial court refused to admit the records into evidence because they were not authenticated. On appeal, Maggett and Stewart contend that the trial court erred in refusing to find the records self-authenticating under Mississippi Rule of Evidence 902(11) as a certified records of a regularly conducted activity.- However, Rule 902(11)(C) requires that “the propo-. nent give[ ] notice to adverse parties of the intent to offer the records as self-authenticating under this rule and provide[ ] a copy of the records and of the authenticating certificate” so that the adverse party has. “a fair opportunity to consider the offer and state any objections.” Here,- it is undisputed that notice was -not given pursuant to this rule. The rule specifically requires that the notice be of the intent to offer the documents as self-authenticating; providing them in discovery is not enough.

¶ 31. Maggett and Stewart contend that, even if the records are not self-authenticating, they would-have been admissible under the, “catch all” hearsay exception, Mississippi Rule-of Evidence 803(24). But even if we were to assume that the records met a hearsay exception, hearsay exceptions and authentication are separate issues. Burchfield v. State, 892 So.2d 248, 254 (¶ 20) (Miss. Ct. App. 2004). We find no error in the exclusion of the phone records on the basis of authenticity.

8. Prosecutorial Misconduct—Comments

¶ 32. Next, Stewart and -Maggett allege prosecutorial misconduct in two questions from the prosecutor during her cross-examination of Stewart. In one, Stewart was asked whether he owned a nightclub, which he denied. This was in reference to a business Stewart owned,, which he described as a restaurant. Later, in closing arguments, the prosecutor claimed that the restaurant really was a nightclub, apparently without any basis in record. Also during Stewart’s cross-examination, she asked Stewart where his girlfriend’s children were during the time she provided him with an alibi. Stewart replied that they were not doing well in school and had moved to live with their grandparents. The prosecutor then asked whether the children were doing poorly in school because of the conditions at-home, which Stewart denied.

¶ 33. We note that no objections were made to either the question or the statement during the closing argument. These issues were waived and are procedurally barred on appeal. Havard v. State, 928 So.2d 771, 791 (¶ 34) (Miss. 2006). Notwithstanding the procedural bar, we see no reversible error in either comment. The jury was properly instructed that remarks of counsel were not evidence and that it should disregard statements that were not based in the evidence. Furthermore, reversible error- can only be found where improper statements prejudicially affected the defendants’ rights and where “the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused as to result in a decision influenced by the prejudice so created.” Franklin v. State, 136 So.3d 1021, 1030 (¶ 31) (Miss. 2014). We cannot find that these statements of the prosecutor rose to that level.

9. Prosecutorial Misconduct—Cross-Examination of Stewart’s Girlfriend

¶ 34. Stewart complains in his pro se, brief regarding the prosecutor’s question to, his girlfriend, on cross-examination, about whether she was “aware of some property Jerry Stewart has on Douglas Street.” After an objection to the lack of a factual basis was overruled, without the prosecutor being required to give a factual basis for the question, the. prosecutor restated the question , as whether the girlfriend was aware of “any” property Stewart had on Douglas Street. The girlfriend answered “no.” On appeal, Stewart complains that the questions impermissively insinuated that Stewart possessed a location where some of the events took place, a house on Douglas Street in Clarksdale.

¶ 35. The. man who owned the house testified that it had been rented by Anderson, though he was inconsistent about whether Anderson rented the house at the relevant time. Anderson himself denied that he rented.it, though he admitted he had sometimes played video games there. Stewart denied that he owned or rented it; he claimed it was Anderson’s and that it was a “trap house.” Chatman said he had “heard on the street” that Anderson rented the house.

¶ 36. Thus, the record reveals a genuine issue about who controlled the house during the relevant time, but other than the fact that some witnesses described Stewart using the house as he pleased, there was little to no evidence Stewart owned or rented it. While we agree with Stewart that the questions suggest that he owned the house, and that there is no apparent good faith factual basis .for the question, we find any error here to be harmless. Insinuations on cross-examination can be reversible error, but to rise to the level of reversible error, they must be unfairly prejudicial and result in the denial of a fair trial to the accused. See Archer v. State, 118 So.3d 612, 619-20 (¶¶ 18-22) (Miss. Ct. App. 2012).

¶ 37. Again, the jury was instructed that remarks of counsel are not evidence, and that it should disregard statements that were not based in the evidence. The question of who owned the house was collateral to the crimes at issue, and any prejudice from being associated with a “trap house”' would be cumulative to'Stewart’s own admissions regarding his- participation in the drug trade, including previously visiting the house at issue. It is axiomatic that an accused is entitled to a fair trial, not a perfect one. See, e.g., Ronk v. State, 172 So.3d 1112, 1148 (¶ 109) (Miss. 2015). We cannot find that the prosecutor’s insinuation here denied Stewart a fair trial.

10. Prosecutorial Misconduct— Anderson’s Testimony

¶38. Maggett and Stewart complain that the prosecutors allowed Anderson to testify that he had not gone to Stewart’s house at a certain point, after he supposedly admitted he had done so when he pled guilty to charges relating to the incident. This contention is based on a purported guilty plea transcript that is not found in the record, and we cannot consider evidence outside the record. Galloway v. State, 122 So.3d 614, 638 (¶ 52) (Miss. 2013). Consequently we find this claim to be without merit.

¶ 39. Stewart also contends, in his pro se brief, that a mistrial should have been granted after the trial court sustained an objection to a question directed to Anderson on the question of why he did not come forward sooner. Anderson had testified that it was because he felt threatened, but on cross-examination he was asked about whether he had an opportunity to report everything the next day, which was Anderson’s birthday. Anderson admitted he had gone out to eat at a restaurant, and a police officer—who was the boyfriend of Stewart’s sister—had been there. On redirect, the prosecutor asked Anderson whether he knew the officer had been, “fired for'being a corrupt police officer.” Anderson answered “no,” but the trial court sustained a defense objection and admonished the jury not to consider the question for any purpose whatsoever. The trial court subsequently denied defense motions for a mistrial.

¶ 40. “Whether to grant a motion for a mistrial is within the sound discretion of the trial court.” Gunn v. State, 56 So.3d 568, 571 (¶ 14) (Miss. 2011) (citation omitted). Here, the subject of the question was collateral. Moreover, “[i]t is presumed that a jury follows the direction of a trial judge to disregard an improper comment or testimony.” Williams v. State, 971 So.2d 581, 590 (¶ 31) (Miss. 2007) (citation omitted). We cannot find any abuse of discretion in the trial court’s refusal to grant a mistrial.

11.Ineffective Assistance of Counsel—Stewart

' ¶ 41. Stewart contends, in his pro se brief, that he received ineffective assistance of counsel at trial. He points to counsel’s failure to object to certain questions and statements of the prosecutor, claiming that the prosecutor lacked a good faith factual basis for the questions.

¶ 42. Mississippi Rule of Appellate Procedure 22(b) provides that issues such as ineffective assistance of counsel, which may be raised in post-conviction-relief proceedings, are allowed on direct appeal only “if such issues are based on facts fully apparent from the record.” The State has not stipulated that the record is sufficient to review this issue on direct appeal. See Read v. State, 430 So.2d 832, 841 (Miss. 1983). Given that, and the fact that this claim depends on facts outside the record, we deny relief on direct appeal without prejudice to a future post-conviction claim. See Robinson v. State, 25 So.3d 1084, 1086 (¶ 11) (Miss. Ct. App. 2010).

12. Ineffective Assistance of Counsel/Judicial Misconduct—Taylor

¶ 43. In his pro se brief, Taylor contends that his trial counsel was constitutionally ineffective for numerous reasons, including failing to investigate his defenses relating to alibi witnesses and cell phone records. He also points to a bar complaint he apparently filed against his attorney.

¶44. Like Stewart’s contentions above, Taylor’s ineffective assistance of counsel claims are based on evidence outside the record and are best pursued in a motion for post-conviction relief. We deny relief on this issue without prejudice to a future post-conviction claim;

¶45. Táylor also alleges that the trial judge violated the Mississippi Code of Judicial Conduct by failing to act on letters he says he sent to the judge complaining about his trial counsel. The record reflects that Taylor’s counsel filed a motion to withdraw shortly before the trial, which the trial court denied. The court did, however, appoint a second attorney to represent Taylor. The judge then asked Taylor, directly and on the record, whether that would satisfy him, and Taylor responded that it would.

¶ 46. Taylor’s claim of- judicial misconduct appears to be a rehashing of his claim of ineffective assistance of counsel, and he has not shown how this alleged judicial misconduct could amount to reversible error, so we find it without merit.

13. Arrest Warrant—Taylor

¶ 47. Taylor next challenges the affidavit supporting the warrant for his arrest. He claims that affidavit is concluso-ry and not based upon personal knowledge.

¶48. It is unclear why Taylor believes that this was reversible error, but the issue appears to have been raised for the first time on appeal and is procedurally barred. Ronk, 172 So.3d at 1139 (¶ 68).

14. Arrest Warrant—Chatman

¶ 49. Taylor challenges the affidavit supporting the warrant for Chatman’s arrest, as well as the conduct of Chatman’s interrogation, which he claims was illegal. According to Taylor, all of the evidence stemming from Chatman’s arrest should have been excluded as “fruit of the poisonous tree.”

¶50. This issue is also raised for the first time on appeal and is procedurally barred.

15. Prosecutorial Misconduct—Suppression of Evidence

¶ 51. Taylor alleges several instances of prosecutorial misconduct. He complains that prosecutors committed a Brady discovery violation by failing to turn over results of a DNA test conducted on what appeared to be a few small spots of blood found about sixty feet from McKay’s body, marked “#4” at the scene. Taylor also accuses the prosecutors of placing the blood swabs from # 4 in a misleading place on the list of discovery, and he alleges some sort of subterfuge by the introduction into evidence at trial of a photograph of the spots rather than the blood swabs themselves or DNA test results. Taylor claims that if the blood had been DNA tested, it would have been shown to have come from the victim and that its placement was inconsistent with the State’s theory as to how McKay was killed.

¶ 52. Taylor further alleges that the State'suppressed evidence by refusing to concede the authenticity of the phone records previously discussed above. He also appears to allege that the prosecution suppressed evidence by contesting the admissibility of the recordings of statements given to police by the prosecution witnesses.

¶ 53. Taylor’s specific claim that the State failed to turn over DNA test results of the blood sample is simply unsupported by the record. Otherwise, he seems to concede that the blood sample was disclosed in discovery; where it appears on the list is of no consequence. Taylor’s other arguments seem to confuse discovery with the use and admissibility of evidence at trial. Discovery is the “compulsory disclosure, at a party’s request, of information that relates to the litigation.” Black’s Law Dictionary 478 (7th ed. 1999). Evidence that is discoverable is not necessarily admissible at trial, and a party does not commit a discovery violation by objecting to the admissibility of something it has previously disclosed in discovery. We find no merit to these contentions.

16.Prosecutorial Misconduct - False Testimony

¶ 54. Taylor alleges that the testimony of Anderson and Chatman was false and that the prosecutors offered it knowing that it was false—a Napue violation. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Taylor bases this argument on the.apparent blood drops discussed in the prior issue, which he claims conclusively prove that McKay was killed at a different location from where his body was found, and thus that Anderson and Chatman’s accounts were untrue.

¶ 55. The record reflects that the apparent blood drops were pointed out to the jury and were argued to be inconsistent with exactly how the prosecution alleged McKay was killed. This may have been a legitimate argument based on the unexplained presence of a-small amount of what appeared to be blood, but Taylor grossly exaggerates by contending that the blood drops were definitive and undeniable proof McKay was killed at a different location from the one alleged. He falls far short of showing that the State knowingly used false evidence to obtain his convictions. This issue is without merit.

' 17. Prosecutorial Misconduct—Cumulative Effect

¶ 56. Taylor argues that he has demonstrated prosecutorial misconduct, under his various prior issues, and that the cumulative effect denied him a fair trial. We have rejected Taylor’s contentions, and although we have acknowledged a few instances of improper comments by the prosecutor during this lengthy trial, we do not find their cumulative effect denied Taylor or the other defendants a fair trial. This issue is without merit.

CONCLUSION

¶ 57. .After reviewing the record, we find that no reversible error has been shown, and so we affirm the convictions and sentences of each of the defendants.

¶ 58. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY, SECOND JUDICIAL DISTRICT, FOR EACH APPELLANT, OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE; AND POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF TEN YEARS AND A $5,000 FINE; WITH THE SENTENCES TO BE SERVED CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

      . Maggett and Stewart are represented by the sáme attorney "on appeal, but he apparently makes this contention only on Maggett’s behalf.

      . Although both witnesses actually denied criminal responsibility for McKay's death, for our purposes one is considered an accomplice "if the evidence admits a reasonable inference that the witness may have been a co-perpetrator or the sole perpetrator.” Brown v. State, 890 So.2d 901, 910 (¶ 23) (Miss. 2004).

      . It is unclear whether the authorities actively searched for the pillowcases.

      . A trap house is one used in the drug trade or for other illicit activities. See, e.g., Gomillion v. State, 296 Ga. 678, 769 S.E.2d 914, 915 (2015).

      . From the puiported transcript, when stating the factual basis, the prosecutor said that Anderson “possibly” was there. At the murder trial, Anderson testified he was not there, but Chatman said he was.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


author: WILSON, J.,

text:
    Kent HOLIFIELD and Laurie Holifield, Appellants v. CITY SALVAGE, INC., Appellee
    NO. 2015-CA-01293-COA
    Court of Appeals of Mississippi.
    02/28/2017
    Rehearing Denied June 20, 2017
    Certiorari Denied December 7, 2017

      ATTORNEY FOR APPELLANTS: STEPHEN W. MULLINS
    ATTORNEYS FOR APPELLEE: EDWARD C. TAYLOR JASON R. GARROT KATIE RYAN VAN CAMP
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. This appeal. involves homeowner’s’ claims against a building materials supplier that sold defective Chinese drywall that was used in the construction of their home. The circuit court granted summary judgment for the supplier based on the “innocent seller” provision of the Mississippi Products. Liability Act (MPLA). Miss. Code Ann. § ll-l-63(h) (Rev. 2014). The circuit court correctly concluded that, as a matter of law, the supplier was an “innocent seller” within the meaning of the MPLA. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. ,In April 2006, the M/V Sanko Rally departed from port in Qingdao, China, with a large cargo of Chinese drywall. The Sanko Rally encountered rough seas, and upon-arrival in, Pensacola, Florida, about fifty-five, percent, of its cargo was deemed damaged. The drywall manufacturer’s insurer. sold some part of the drywall to Pensacola Stevedore .Company, which resold some part to third-party defendant Gulf Coast Shelter Inc. (“Gulf Coast”). Between 2006 and 2008, Gulf Coast resold some of the drywall to defendant-appellee City Salvage Inc., a building materials supplier in Laurel. In 2008, City Salvage resold some of the drywall to defendant Ronny Hill Construction Inc. (“Ronny Hill”), a contractor in Laurel. Ronny Hill used some of the drywall in a home that it built for plaintiffs Kent and Laurie Holifield.

¶ 3. In October 2011, the Holifields discovered that the drywall in their home was made in China. The Holifields allege that their drywall exhibits defects now known to be common in drywall manufactured in China during the relevant period, i.e., it contains elevated levels of sulfur and other substances, which result in the emission of smelly gasses that corrode copper piping and wiring and can cause serious health problems. See In re Chinese Manufactured Drywall Prods. Liab. Litig., 706 F.Supp.2d 655, 663-66 (E.D. La. 2010). In March 2013, the. Holifields filed a “shotgun complaint,” asserting numerous claims against Ronny Hill, City Salvage, and unknown manufacturers and distributors of the drywall. In June 2013, City Salvage answered and filed a third-party complaint against Gulf Coast, in which it alleged that it had no knowledge of the alleged defects in the drywall and that it was entitled to indemnification from Gulf Coast for any liability to the Holifields.

¶4. On April 24, 2015, City Salvage moved for summary judgment, arguing that it was immune from liability as an “innocent seller” pursuant to the MPLA. On July 23, 2015, the Holifields filed their response in opposition to City Salvage’s motion, and a hearing on the motion was held on July 27, 2015. The circuit court ruled that City Salvage was an “innocent seller” under the MPLA, granted summary judgment for City Salvage, and certified its ruling as final pursuant to Mississippi Rule of Civil Procedure 54(b). This appeal followed.

DISCUSSION

I. Standard of Review

¶ 5. “We review the grant or denial of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party against whom the motion has been made.” Karpinsky v. Am. Nat'l. Ins., 109 So.3d 84, 88 (¶ 9) (Miss. 2013) (quotation marks omitted). Summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “Numerous!!,] immaterial facts may be controverted, but only those that affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., 759 So.2d 1203, 1208 (¶ 12) (Miss. 2000) (quotation marks omitted). In addition, the nonmovant “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

II. Innocent Seller Exemption

¶ 6. The MPLA’s “innocent seller” provision, Miss. Code Ann. § 11—1—63(h), states:

In any action alleging that a product is defective ..., the seller ... of a product other than the manufacturer shall not be liable unless [ (1) ] the seller ... exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; or [(2)] the seller ... altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; or [ (3) ] the seller ... had actual or constructive knowledge of the defective condition of the product at the time he supplied the product. It is the intent of this section to immunize innocent sellers who are not actively negligent, but instead are mere conduits of a product.

¶7. In support of its motion for summary judgment, City Salvage submitted an affidavit from its president and owner stating that City Salvage had no knowledge of the dangerous and defective properties of drywall manufactured in China when it sold the drywall at issue to Ronny Hill. In addition, at the hearing on City Salvage’s motion for summary judgment, the Holi-fields clearly and expressly disavowed any allegation that City Salvage knew or should have known of the defective properties of the Chinese drywall related to its chemical composition, Thus, the Holifields have conceded that City Salvage did not have actual or constructive knowledge of the defects alleged in the complaint. Nonetheless, the Holifields argue.that City Salvage is not an innocent seller because, allegedly, City Salvage knowingly sold “salvaged” or “damaged” drywall as “new.” However, this allegation fails to bring the case within any of the three exceptions to the MPLA’s innocent seller provision.

¶ 8. First, even if we assume that City Salvage made some representation regarding the drywall that could be characterized as “packaging or labeling ... the product,” its alleged “packaging or labeling” of the drywall as “new” is not an “aspect of the ... packaging or labeling of the product that caused the harm for which recovery of damages is sought.” Miss. Code Ann. § ll-l-63(h). The drywall is defective because of its chemical makeup, and the Ho-lifields seek to recover damages for alleged corrosion of piping and wiring in their home and harm to their health. The alleged “packaging or labeling” of the drywall as “new” has nothing to do with its defective properties or the alleged harm to the Holifields.

¶ 9. Second, for essentially the same reason, even if the alleged sale of the drywall as “new” somehow amounted to an “alteration or modification” of the product, the alleged alteration or modification was not “a substantial factor in causing the harm for which recovery of damages is sought.” Id. Again, the harms that the Holifields allege and the damages that they seek' to recover are related to the original, as-manufactured chemical composition of all Chinese drywall, not any damage that may have occurred during the shipping of the particular drywall installed in their home.

¶ 10. Third, City Salvage’s knowledge that the drywall was salvaged is not the same as “knowledge of the defective condition of the product.* Id. (emphasis added). There is no claim or evidence that the drywall was defective because it was salvaged. The defective condition is the drywall’s .original chemical makeup. As the Holifields candidly admitted in the circuit court, there is no evidence that City Salvage knew or should have known of that defect. Accordingly, we agree with the circuit court that City Salvage is entitled' to summary judgment because the innocent seller provision applies as a matter of law.

III. Other Claims and Request for Additional Discovery

¶ 11. On appeal, the Holifields briefly argue that the innocent seller provision of the MPLA does not apply to their implied warranty claims. They made the same assertion in cursory fashion in the circuit court. At the time the Holifields’ claim accrued and when their .complaint was filed, the MPLA applied “in any action for damages.caused by a product except for commercial damage to the product itself.” Miss. Code Ann. § 11-1-63 (Supp. 2013). The Legislature subsequently amended this provision to clarify the MPLA’s scope. As amended, it is clear that the MPLA applies “in any action for damages caused by a product, including, but not limited to, any action based■ on a theory of strict liability in tort, negligence or breach of implied warranty,” 2014 Miss. Laws ch. 383, § l'(H.B. 680) (Supp. 2013). The amendment was effective July 1, 2014, id. § 2; after the Holifields filed their complaint. The Holifields argue that the amendment does not apply to their case, and they note that the Mississippi Supreme Court previously held that the MPLA “does not abrogate a statutory cause of action for breach of implied warranty as grounds for recovery.” McKee v. Bowers Window & Door Co., 64 So.3d 926, 940 (¶ 42) (Miss. 2011) (alteration omitted) (quoting Bennett v. Madakasira, 821 So.2d 794, 808 (¶ 52) (Miss. 2002), abrogated on other grounds by Hutzel v. City of Jackson, 33 So.3d 1116 (Miss. 2010)).

¶ 12. Assuming that the issue is preserved for appeal, it is without merit. The Holifields are correct that, at the time their claim accrued’ and their complaint was filed, the MPLA did not completely “abrogate” a claim for breach of-implied warranty.-But even then, the provisions of the MPLA—including the innocent seller provision—broadly applied “in any action for damages caused- by a product except for commercial damage to the product itself.” Miss. Code Ann. § 11-1-63 (Supp. 2013), Thus, an implied warranty claim such as the Holifields’ is subject to-the innocent-'seller provision. The - United States Court of Appeals for the Fifth Circuit and several federal district judges have all reached the same conclusion on this issue. See Murray v. Gen. Motors LLC, 478 Fed.Appx. 175, 180 (5th Cir. 2012); Thomas v. FireRock Prods. LLC, 40 F.Supp.3d 783, 791 (N.D. Miss. 2014) (Brown, J.); Gross v. Baltimore Aircoil Co., No. 3:13-cv-423-DPJ-FKB, 2014 WL 1153706, at *8 (S.D. Miss. Mar. 21, 2014) (Jordan, J.); Gardner v. Cooksey, No. 2:11-cv-255-KS-MTP, 2012 WL 968026, at *3-*4 (S.D. Miss. Mar. 21, 2012) (Starrett, J,); Jenkins v. Kellogg Co., No. 4:08-cv-121-P-S, 2009 WL 2005162, at *4 (N.D. Miss. July 6, 2009) (Pepper, J.); Land v. Agco Corp., No. 1:08-cv-012, 2008 WL 4056224, at *3 (N.D. Miss. Aug. 25, 2008) (Mills, C.J.); Willis v. Kia Motors Corp., No. 2:07-cv-62-P-A, 2007 WL 1860769, at *8 (N.D. Miss. June 26, 2007) (Pepper, J.); Jones v. Gen. Motors Corp., No. 3:06-cv-00608-DPJ-JCS, 2007 WL 1610478, at *3 (S.D. Miss. June 1, 2007) (Jordan, J.); Collins v. Ford Motor Co., No. 3:06-cv-32-HTW-JCS, 2006 WL 2788564, at *3 (S.D. Miss. Sept. 26, 2006) (Wingate, J.)., We agree-with these courts .that the innocent seller provision applies to-such claims. To allow a plaintiff to circumvent the provision simply by relabeling a products liability claim as a warranty claim would “render! ] the innocent seller provision of the MPLA an exercise in futility and irrelevancy.” Gardner, 2012 WL 968026, at *4. We “doubt[ ] that the ... [Legislature intended to provide [this] protection ... in all areas of products liability'law except for the area of implied warranties.” Land, 2008 WL 4056224, at *3. Accordingly, the innocent seller provision also bars the Ho-lifields’ implied warranty claim.

¶ 13. The Holifields also assert that they have claims for fraud and.under the Consumer Protection Act, .Mississippi Code Annotated sections 75-24-1 to -29 (Rev. 2016), that are not barred by the innocent seller provision. However, the argument is nothing more than a bare assertion without citation .of authority. The issue was presented in the same cursory fashion in the circuit co.urt. Accordingly, the argument is waived. See Alexander v. Womack, 857 So.2d 59, 62 (¶ 12) (Miss. 2003); Randolph v. State, 852 So.2d 547, 558 (¶ 29) (Miss. 2002); M.R.A.P. 28(a)(7).

¶ 14. Finally, the Holifields assert that the circuit court should have granted' a continuance for additional discovery pursuant to Mississippi Rule of Civil Procedure 56(f). However, the Holifields identify no facts that discovery might have uncovered that would affect City Salvage’s entitlement to summary judgment under the innocent seller provision. Accordingly, this issue is also without merit.

CONCLUSION

¶ 15. City Salvage was entitled to judgment as a matter of law pursuant to the innocent seller provision of the- MPLA. Accordingly, we affirm.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY, SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO: THE APPELLANTS. -

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

      . See, e.g., Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1320-23 (11th Cir. 2015); Paylor v. Hartford Fire Ins., 748 F.3d 1117, 1125-28 (11th Cir. 2014).

      . For instance, counsel stated: "Can I concede some things and try to malte it easier? ... I’m not alleging that they should have known [of the problems with Chinese drywall]. Our allegation is that they knew it was salvaged and they failed to disclose that.... I don’t think that they knew ... [of] the defective nature of Chinese drywall at that time.” Counsel subsequently reiterated that there was no evidence that City Salvage had knowledge of the drywall’s alleged defects and stated: “City Salvage would have had no direct knowledge of the Chinese drywall emitting sulphuric compounds at the time.”

      . The Holifields have directly contradicted this concession on appeal and now argue that there is a "significant possibility” that City Salvage had actual or constructive knowledge of the defects in the drywall. However, they waived this argument by their clear concession in the circuit court. See, e.g., City of Hattiesburg v. Precision Constr. LLC, 192 So.3d 1089, 1093 (¶ 18) (Miss. Ct. App. 2016) (it is a "long-established rule” that issues not raised in the circuit court will not be considered on appeal); Washington v. Tem’s Junior Inc., 981 So.2d 1047, 1050 (¶ 10) (Miss. Ct. App. 2008) (a point conceded in the circuit court may not be relitigated on appeal).

      .Some of the diywall that City Salvage purchased from Gulf Coast was not damaged, and City Salvage denies that the drywall that it sold to Ronny Hill was damaged. In the circuit court, counsel for the Holifields conceded that he did not know whether the drywall sold to Ronny Hill was damaged, but he argued that City Salvage should have disclosed that the drywall was "salvaged” even if it was not damaged. Whether the drywall was damaged or only salvaged is not. material for purposes of summary judgment.

      . We also note that "[n]umerous [federal] district courts have recognized that the MPLA subsumes common law ... misrepresentation claims based on a defective product.” Gardley-Starks v. Pfizer Inc., 917 F.Supp.2d 597, 602 (N.D. Miss. 2013) (Aycock, J.) (quoting Lashley v. Pfizer Inc., 877 F.Supp.2d 466, 471 (S.D. Miss. 2012) (Ozerden, J.) (collecting cases)).


author: BARNES, J.,

text:
    Kevin MCKEOWN, Appellant v. Elizabeth Allison ESTES, Appellee
    NO. 2015-CP-01456-COA
    Court of Appeals of Mississippi.
    03/07/2017
    Rehearing Denied July 18, 2017
    Certiorari Denied October 26, 2017

      ■ ATTORNEY FOR APPELLANT: KEVIN McKEOWN (PRO SE).
    ATTORNEYS FOR APPELLEE: T. SWAYZE ALFORD, KAYLA FOWLER WARE.
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. After New York courts awarded Elizabeth Allison Estes physical custody of her son and authorized their move from New York City to Oxford, Mississippi, the New York County Family Court entered an order awarding visitation to the child’s father, Kevin McKeown, who remained in New York City. Among other things, the New York visitation order obligated Kevin to provide Allison with advance notice of his visitation, an itinerary, and the address where he would be staying with their son.

¶ 2. This appeal follows Allison’s successful complaint for contempt and modification of the New York visitation order. The Lafayette County Chancery Court found Kevin in contempt for his failure to fulfill the notice, itinerary, and address-disclosure requirements of the New York visitation order. The chancellor further held that Kevin’s visitation would be suspended until he disclosed his physical address. Additionally, the chancellor modified the visitation order so that Kevin would have to exercise his visitation in Mississippi if he did not fulfill the notice, itinerary, and address-disclosure conditions of his visitation.

¶3. Kevin appeals and claims that the chancellor should not have heard Allison’s complaint because he had taken preliminary steps to appeal the New York County Family Court’s decision that Mississippi was the proper forum for Allison’s complaint. He also claims that the process server lied ábout personally' serving him with process. Finally, Kevin argues that the chancellor did not consider the child’s best interest. Finding no error, we affirm the chancellor’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶4, In April 2012, a New York state court awarded Allison sole legal and physical custody of her son. After obtaining leave from the First Department of the New York Supreme Court, Appellate Division, Allison and her son moved to Oxford, where her family lived. Kevin McK. v. Elizabeth A.E., 111 A.D.3d 124, 129, 972 N.Y.S.2d 25 (N.Y. App. Div. 2013).

¶ 6. The New York County Family Court subsequently entered a visitation order. Along with visitation during certain holidays, Kevin received “eight uninterrupted weeks” of summer visitation. Kevin was obligated to provide Allison with notice regarding their son’s travel arrangements. And if either parent traveled with the child, he or she was obligated to provide the other with an itinerary for the trip, including contact information and the location where the child would be staying. If Kevin did not-have his own residence, he had to provide Allison with “an affidavit from the legal resident of the home where [the child] shall be staying indicating [the legal resident’s] willingness and availability” to have Kevin and his son as guests.

¶ 6. In November 2014, Allison filed a complaint in chancery court. She claimed that Kevin was in contempt of the New York visitation order because he would not give her an itinerary for his visitation or an affidavit from the. resident where he and the child would be staying during visitation. Allison also requested modification of the visitation order so that Kevin would be required to inform her of his physical address by giving her “a copy of his valid driver[’]s license ... prior to exercising any visitation.” . .

¶ 7. At least five summonses were issued for Kevin between November 14, 2014, and December 29,- 2014. All of them indicated that his mailing address was a post-office box in New York City, The record contains a process server’s return reflecting that Kevin had been personally served with process in New York City on February 6, 2015.

¶ 8. During an April • 2015 telephonic hearing, the chancellor and Judge Jane Pearl of the New York County Family Court discussed whether Mississippi was the proper jurisdiction for Allison’s complaint. Allison’s Mississippi and New York attorneys participated in the hearing; as did the child’s New York court-appointed attorney, and Kevin, who has consistently proceeded pro se. Ultimately, Judge Pearl “decline[d] continuing jurisdiction” because New York was an inconvenient forum for Allison’s complaint. Kevin has appealed Judge Pearl’s decision, but his appeal remains unresolved at this time.

¶9. In June 2015, Kevin sent a letter directly to the chancellor. According to the letter, Kevin “only learned yesterday of. certain purported Tilings” regarding Allison’s complaint. Kevin did not specify what “purported filings” he had recently discovered, nor how he had discovered them. In any event, Kevin claimed that the New York process server, attorney David Chi-dekel, had lied about personally serving him with process. He attached a 2003 article from the New York Daily News reporting a third-party claim that Chidekel had “admitted he was lying to help a client” in an unrelated criminal matter. Finally, Kevin’s letter indicated that he was appealing Judge Pearl’s decision that Mississippi was the proper forum for Allison’s complaint.

. ¶ 10. The chancellor, responded that Kevin should not contact him directly, but “should file whatever, pleading [he] desired” with the chancery clerk. The chancellor also said that Allison’s contempt action would “continue [in Mississippi] until [he] received] proper notice of [Kevin’s New, York] appeal ....” On August 14, 2015, the chancellor entered an order stating “[t]hat since June 26, 2016, [the chancellor had] received no Notice of Appeal” from Kevin. The order went on to state that the trial on Allison’s complaint was scheduled for August 28, 2015. The day before the trial, the chancery clerk received copies of the amended notice of appeal that Kevin had filed in New York.

„¶ 11. When Allison’s trial convened on August 28, 2015, Kevin did not attend. Allison’s lawyer discussed the fact that Kevin had just filed an amended notice of his New York.appeal with the chancery clerk. The chancellor commented that he had “no notice of anything from any lawyer or judge saying ... this case is stayed [or the New York Family Court’s] ruling is stayed pending the appeal,” and he did not know whether Kevin had perfected his New York appeal. After additional preliminary discussions with Allison's lawyer, the chancellor heard Allison’s testimony.

¶ 12. Allison testified that she did not want to reduce or modify the amount of Kevin’s visitation, but he • had not been complying with the New York visitation order. More specifically, she said that Kevin had not been providing her with adequate notice regarding when he planned to exercise his summer visitation. Although Kevin was obligated to inform her of when he would exercise his summer visitation by May 1, he did not send her notice until “the middle of June.” And the New York visitation order obligated Kevin to provide Allison with an itinerary, but he initially refused to do so. He later sent an itinerary with which he did not comply so Allison “never knew where [her son] was for a good portion of the month or so that he was” with Kevin.

¶ 13. Allison had made arrangements to pick her son up from the airport on the day Kevin said he would return him, but the night before, Kevin called and said their son would not be coming back that day. For the next week, Allison could not contact Kevin or her son. Kevin eventually called Allison’s father and said he was putting the child on a plane. Because Allison was traveling for work, she had to ask other people to pick up her son from the airport. According to Allison, Kevin had exercised his visitation five times, and he had never complied with the notice or itinerary requirements in the New York visitation order. Additionally, she never knew where her child went, during Kevin’s visitation, because he refused to disclose his physical address or where he would be staying with their son.

¶ 14. After finding Kevin in contempt of the New York visitation order, the chancellor suspended his visitation until he provided Allison with proof of his physical address. The chancellor further held that Kevin would be obligated to provide Allison with adequate notice when he planned to exercise his visitation, or he would have to exercise his visitation in Mississippi. The chancellor also awarded Allison approximately $2,200 in attorney’s fees and other expenses. Kevin appeals..

STANDARD OF REVIEW

¶ 15. An appellate court “applies a limited standard of review on appeals from chancery court.” Isom v. Jernigan, 840 So.2d 104, 106 (¶ 6) (Miss. 2003). We “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous[,] or [applied] an erroneous legal standard[.]” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss. 2002) (citation omitted).

■ANALYSIS

I. Kevin’s New York Appeal

¶ 16. First, Kevin claims that the chancellor “committed plain and reversible error by ignoring [his] own directive that the court had not formally been advised of a pending appeal regarding jurisdiction.” Kevin notes that the day .before Allison’s trial, the chancery clerk received a copy of his New York notice of appeal. Kevin reasons that the chancellor should not have heard Allison’s complaint.

¶ 17. First and foremost, Kevin does not cite any authority to support his claim under this heading. The failure to cite relevant authority renders an issue procedurally barred. Gary E. White Attorney P.A. v. Blackwell, 96 So.3d 733, 738 (¶ 13) (Miss. Ct. App. 2011). Notwithstánd-ing the procedural bar, we find no merit to this issue.

¶ 18. Kevin is correct that in response to his June 2015 letter, the chancellor stated that Allison’s “case will continue here until [he] receive[s] proper notice of the appeal .... ” Kevin latér sent the chancery clerk papers regarding the status of his New York appeal. Despite the chancellor’s statement, we do not find that the chancellor was obligated to stay the Mississippi proceedings simply because Kevin had taken preliminary steps to perfect his New York appeal.

¶ 19. Under Mississippi law, a chancellor can modify another state’s visitation order if the chancellor would have jurisdiction to make an initial determination,, and “[t]he court of the other state determines it no longer has exclusive, continuing jurisdiction ... or that a court of this state would be a more convenient forum Miss. Code Ann. § 93-27-203(a) (Rev. 2013). Furthermore, it is within a Mississippi court’s discretion to go forward with “a •proceeding to modify a child custody determination”—which includes aspects of a noncustodial parent’s visitation—when there is a similar proceeding in another state. Miss. Code Ann. § 93-27-206(3)(c) (Rev. 2013). We find that the chancellor did not err when he heard Allison’s complaint despite Kevin’s then-unperfected New York appeal.'

II. Credibility of the Process Server

¶ 20. Next, Kevin claims the chancellor “improperly ignored the ... unethical behavior of ... Chidekel, who publicly admitted to lying in, and to, a court of law by filing false court submissions, including sworn affidavits.” As mentioned above, in June 2015, Kevin sent the chancellor a copy of a 2003 article reporting that, in a completely unrelated criminal matter, a prosecutor had claimed that Chidekel admitted that he lied to help a client. Kevin concludes that Chidekel lied about serving him with process; so the chancellor erred when he heard Allison’s complaint. Kevin failed to cite any authority to support this claim. Thus, the issue is also procedurally barred. Blackwell, 96 So.3d at 738 (¶ 13).

¶ 21. Procedural bar notwithstanding, the record contains a return from Chidekel, who swore that he personally served Kevin with process. “If a process server has executed a return properly, there is a presumption that service of process has occurred.” Collins v. Westbrook, 184 So.3d 922, 929 (¶ 18) (Miss. 2016). That presumption is “rebuttable through the use of extrinsic evidence, including the testimony of the party who is contesting service.” Id. Kevin did not provide any support for his implication that Chidekel had not served him with process. It was within the chancellor’s discretion to find that the unrelated 2003 article Kevin submitted was inadequate to rebut the presumption that he had been served with process.

¶ 22. Kevin also argues that the chancellor ignored his “right of due process regarding sewer service by the admitted-lying attorney Chidekel .... ” “Generally, due process requires notice and a meaningful opportunity to be heard.” Virk v. Miss. Dep’t of Revenue, 133 So.3d 809, 815 (¶ 13) (Miss. 2014). The chancellor expressly informed Kevin that he should file anything he desired with the chancery clerk. Kevin never subsequently filed anything that could be considered as a motion contesting service of process. It is unclear how the chancellor could have denied Kevin notice or an opportunity to be heard on a motion that Kevin never filed. “[I]n the absence of.an objection and offer of proof by [a party, his] due-process argument is without substantive merit.” Wilburn v. Wilburn, 991 So.2d 1185, 1192 (¶ 16) (Miss. 2008). This issue is meritless.

III. Child’s Best Interest

¶23. Finally, Kevin claims that the chancellor showed “little regard to the best interest of [the child], [and] bias and poor discretion in ignoring the ‘totality of the circumstances.’ ” Kevin does not elaborate regarding how the chancellor allegedly showed bias or ignored the totality of some unspecified circumstances. In any event, Kevin cites Ash v. Ash, 622 So.2d 1264, 1266 (Miss. 1993), as support for his very brief claim.

¶ 24. Ash did not involve modification of visitation conditions. Instead, Ash followed an order modifying custody of a child. Id. at 1265-67. The mother’s “continued refusal” to allow the child to visit his father led to custody modification. Id. at 1266. But Ash does not support Kevin s claim that the chancellor erred by modifying certain conditions of Kevin’s visitation. Kevin does not argue that the modified conditions are unreasonable. Moreover, Kevin does not attempt to explain how those conditions are somehow contrary to the child’s best interest, or how they could negatively impact his relationship with his son. ,

¶25. “To modify a visitation order, it must be shown that- the prior decree for reasonable visitation is not working and that a modification is "in the best interest of the child.” Moreland v. Spears, 187 So.3d 661, 666 (¶ 17) (Miss. Ct. App. 2016). “The chancellor is granted ‘broad discretion’ in visitation determinations[,] and [an appellate c]ourt will' not reverse a chancellor’s findings of fact so long as they are supported by substantial evidence in the record.” Wilburn, 991 So.2d at 1194 (¶ 20). “[T]he best interest of the child is the main concern in determining visitation.” Id. at (¶ 23).

¶ 26. Alison testified that the New York visitation order .was not working because Kevin was. not complying with it, and there were no•consequences for his noncompliance. When he provided late, last-minute notice that he would exercise his summer visitation, it was difficult to-prepare their child for his long interstate trip. Kevin also failed to return the child when he said .he would; so the child missed activities that had been scheduled in advance. Additionally, Alison was not able to contact the child during Kevin’s visitation, and Kevin would not disclose the child’s location. Modifying the visitation order to provide specific provisions rather than ones that are flexible and vague was in the child’s best interest, because it tends to' foster a more positive anil harmonious relationship between Alison and Kevin. See Cox v. Moulds, 490 So.2d 866, 869 (Miss. 1986). Consequently, we find that the chancellor did not act contrary to the child’s best interest, and it was within his discretion to modify the New, York visitation order.

¶ 27. We recognize that “[a]bsent extraordinary circumstances, the noncustodial parent during visitation should have broad authority and discretion with respect to the place and manner of visitation.” Jaggers v. Magruder, 129 So.3d 965, 969 (¶ 21) (Miss. Ct. App. 2014). The chancellor’s decision does not impact Kevin’s broad authority and discretion regarding where he takes his son during his visitation periods. He must simply inform Alii-, son where he will be exercising it, and provide her with adequate notice before he does so. Considering the distance between Oxford and New York City, those conditions are not unreasonable. This issue is meritless.

¶28. THE JUDGMENT OF THE LAFAYETTE COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Kevin must have known that Allison had filed a complaint in Mississippi, because lie-participated in the telephonic hearing to determine whether -Mississippi was the proper jurisdiction for her complaint, and He had taken preliminary steps to appe'al Judge Pearl’s decision declining -continuing jurisdiction.

      . To be precise, section 93-27-203 (a) refers to another state’s "child custody determination,” and that term includes "a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.” Miss. Code Ann. § 93-27-102(c) (Rev. 2013) (emphasis added).

      . In Mississippi, an appeal is perfected by filing a notice of appeal. M.R.A.P. 3(a). That is not the case in New York, See N.Y. Comp. Codes R. & Regs. tit. 22, § 600.11,(a)(3)-(b)(l) (providing that an appeal tó the Appellate Division of the New York' Supreme Court is perfected when a party files a "note of issue” and an appellate brief). Kevin has recently sent this Court documents indicating that he filed his New York appellate brief .on December 5, 2016, and he is proceeding under "Article 6 of [New York’s] Family Court Act.” Kevin has not, however, cited any authority that his New York appeal acts as a stay of Judge Pearl’s ruling. Additionally, section 1114(a) of New York’s Family Court Act provides that “[t]he timely filing of a notice of appeal under this article does not stay the order from which the appeal is taken.” N.Y. Fam. Ct. Act § 1114 (McKinney 2010)'. Although section 1114(b) states that "a justice of the appellate division ... may stay execution of the order from which the appeal is taken[,]” Kevin has not provided this Court with such an order.

      . In his reply brief, Kevin argues that the chancellor erred because the child did not testify regarding his preference. Arguments raised for the first time in a reply brief are procedurally barred. Ogunbor v. May, 204 So.3d 840, 848 (¶ 33) (Miss. Ct. App. 2016). Additionally, Kevin cites no authority to support his claim that the child’s preference had any bearing in the proceedings before the chancellor.


author: WESTBROOKS, J.,

text:
    Sandra MORGAN a/k/a May Lee a/k/a Sandra L. Morgan, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00964-COA
    Court of Appeals of Mississippi.
    03/14/2017

      OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AI-KENS, GEORGE, ATTORNEYS FOR APPELLANT.T. HOLMES
    OFFICE OF THE ATTORNEY GENERAL BY: JASON L. DAVIS, KAYLYN HAVRILLA MCCLINTON, ATTORNEYS FOR APPELLEE
    BEFORE LEE, C.J., GREENLEE AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. A jury in the Circuit Court of Choctaw County, Mississippi, convicted Sandra Morgan (Morgan) of one count of conspiracy to commit capital murder. Morgan appeals the circuit court’s denial of two pretrial motions: (1) her motion for a mental-competency evaluation, and (2) her motion to suppress her second statement to the police. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Sandra Morgan (Morgan) and Billy Morgan (Billy) married in 1994. In 2012, Morgan was diagnosed with bipolar personality disorder and depression. Around February 2014, Morgan met Devonta Anderson (Anderson) at a community college in Holmes County. That spring, Morgan’s mother was killed by a tornado, and Morgan received $30,000 in insurance proceeds from the destruction of her mother’s home.

¶ 3. In the summer of 2014, Morgan moved Anderson in to her home that she shared with Billy. Morgan also permitted Anderson’s cousins, Leontay Ellington (Leontay) and Levontaye Ellington (Le-vontaye), and his friend, Michael Oliver (Michael), to stay at her home. Over the course of the summer, Morgan spent her insurance proceeds buying items for her guests. She spent most of the money on Anderson, buying him, among other items, a 2003 Ford Mustang, a gun, clothes, and shoes.

¶ 4. Morgan often complained to Anderson and Levontaye about Billy’s past treatment of her, and eventually asked Anderson to kill Billy. Anderson reluctantly agreed to do so. On or around July 14, 2014, Anderson entered Billy and Morgan’s bedroom, while Billy was sleeping, and pointed a gun at his head. According to Anderson, he decided he could not kill Billy after entering the bedroom. Morgan then walked in to the bedroom and told Anderson that if he killed Billy he would have to kill Billy’s Aunt Cleo, who lived next door, since she would likely hear the gunshot. Anderson claimed that the thought of having to kill both Billy and his aunt was too much, and he decided against it.

¶5. The Choctaw County Sheriffs Department eventually learned of Morgan and Anderson’s possible murder conspiracy through Levontaye and Anderson. On August 4, 2014, Morgan voluntarily walked in to the Choctaw County Sheriffs Department. Investigator Marcus Rodriguez (Rodriguez) and Chief Deputy Lee Up-church (Upchurch) placed her in the office and prepared to interview her. They gave Morgan a waiver-of-rights form and asked her if she understood what was read to her. She stated that she did and signed the form. Morgan proceeded to give two statements to Rodriguez and Upchurch. Though both statements were recorded, the recording of the first statement only captured a portion of the statement. Morgan was arrested and taken to the Winston County Jail.

¶ 6. On August 11, 2014, Rodriguez went to retrieve Morgan from jail. When Rodriguez arrived there, Morgan informed him that she wanted to speak with him again. Rodriguez told Morgan that he could not speak with her since she had an attorney. She asserted that she did not have an attorney. Rodriguez agreed to speak with her. When they arrived to the sheriffs department, Morgan executed another waiver-of-rights form prior to the interview. Morgan gave her second statement, and Rodriguez recorded it in its entirety.

¶ 7. Before trial, Morgan filed motions to suppress all references to the two statements. At the suppression hearing, Rodriguez and Upchurch both testified that Morgan appeared to understand the questions that were asked of her during her first statement, and she did not appear to be under the influence. Both officers also testified that she gave her statements willingly and voluntarily. Rodriguez also testified that Morgan appeared to be lucid and not under the influence when she gave her second statement. Rodriguez even highlighted the fact that Morgan asked to speak with him directly, stating that she was not represented-by counsel.

¶ 8. The State asserted that Morgan’s statements were voluntarily made since Morgan initiated the second statement by requesting to speak with Rodriguez. Morgan, on the other hand, testified that she felt pressured to answer Rodriguez’s questions, because she was struggling with her mother’s death and was not receiving any assistance with her grief. Morgan then stated that she told Rodriguez that she did not intend to kill Billy. After considering the testimony given during the suppression hearing, the trial court found that the first statement was tainted, since it was only partially recorded and could not fully depict the statements made between Morgan, Rodriguez, and Upchurch. Nevertheless, the trial court found the second statement should be allowed in evidence, because it was fully recorded; Morgan executed a waiver-of-rights form, and it appeared that the statement was “freely and voluntarily, given.” As' a result, the trial court suppressed the first statement, but admitted the second statement in evidence.

¶ 9. Morgan also filed a motion for a psychiatric evaluation. The circuit court held a hearing, at which Morgan’s counsel claimed that Morgan suffered from several disorders- and was unable to assist in the preparation of her defense. Billy was the only witness called to substantiate Morgan’s claim of mental incompetence. Billy testified to the number of medications that Morgan took for her personality disorder, and claimed that Morgan had shown some confusion after.she was released on bail. Morgan’s counsel never produced her medical records, her previous doctor’s diagnosis/evaluation, or a medical history of her mental illness. As a result, the trial court found that Billy’s testimony alone was not enough to substantiate Morgan’s claim. The judge denied Morgan’s motion stating, “the law presumes that people are sane and competent to stand trial. The evidence was totally insufficient to prove otherwise. And I do not find that she is incompetent to stand trial.”

¶ 10. At trial, -the -State called several witnesses, including-Levontaye, Rodriguez, Upchurch, and Anderson. Anderson, a key witness, discussed how1 the conspiracy began. Anderson testified that Morgan constantly complained about Billy, and she, wished someone would kill him. According to Anderson, Morgan told him that he could have anything that his heart desired if he killed Billy. Anderson agreed to kill Billy, but decided against it after Morgan told him that he would also have to kill Billy’s aunt. The jury found Morgan guilty of conspiracy to commit murder. Morgan was sentenced to fifteen years in the custody of the, Mississippi Department of Corrections, with five years suspended. Morgan now appeals.

¶ 11. Morgan raises two issues on appeal: the circuit court’s denial of (1) the motion’ for a mental-competency evaluation and (2) the motion to suppress Morgan’s second statement. Finding no -error, we affirm.

STANDARD OF REVIEW

¶ 12. The standard of review for an appellate court to determine if there was an abuse of discretion is whether “the trial judge received information which, objectively considered, should reasonably have raised a doubt about the defendant’s competence and alerted [the judge] to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid [her] attorney in [her] defense[,]” Goff v. State, 14 So.3d 625, 644 (¶ 66) (Miss. 2009) (quoting Conner v. State, 632 So.2d 1239, 1248 (Miss. 1993) (overruled on other grounds by Weatherspoon v. State, 732 So.2d 158 (Miss. 1999))).

¶ 13. The determination' of whether a trial coürt has a “reasonable ¿round” to suspect incompetency is addressed" to the discretion of the trial judge. Bradley v. State, 116 So.3d 1093, 1095-96 (¶¶ 13-14) (Miss. Ct. App. 2013) (quoting Harden v. State, 59 So.3d 594, 601 (¶ 14) (Miss. 2011)). When a trial court determines that a defendant is competent to stand trial, we will not overturn such a finding" unless it was “manifestly-against the overwhelming weight of the evidence.” Jay v. State, 25 So.3d 257, 261 (¶ 25) (Miss. 2009) (quoting Martin v. State, 871 So.2d 693, 697 (¶ 12) (Miss. 2004)).

¶ 14. This Court can reverse .a trial court’s denial of-a motion to suppress only: if the-incorrect legal principle was applied; if there was no substantial evidence to support a voluntary, knowing, and intelligent waiver of Miranda rights; and if the denial was a result of manifest error. Scott v. State, 8 So.3d 855, 861 (¶ 22) (Miss. 2008) (quoting Chim v. State, 972 So.2d 601, 604-05 (¶ 10) (Miss. 2008)). The standard of manifest error is high, and this Court cannot -reverse- unless the trial judge’s ruling has gone against the substantial weight of the evidence. Id: at 861.

DISCUSSION

¶ 15. To be deemed mentally competent to stand trial, a defendant must have “the sufficient present ability to consult- with his lawyer with' a reasonable degree of rational' understanding and a rational as well as factual understanding of the proceedings against him. “Coleman v. State, 127 So.3d 161, 164 (¶ 8) (Miss. 2013) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam)).

¶ 16. The trial judge found that Billy’s testimony during the hearing on Morgan’s motion for a psychiatric evaluation was insufficient to bring into question her mental competency. Billy testified that Morgan took multiple medications for her varying mental disorders. Billy further testified that while Morgan was home on bail, she showed signs of confusion. At the conclusion of his testimony, Billy stated that Morgan battled with a “nervous condition” for years. Billy claimed that when Morgan missed her medication, Morgan acted as if she had split-personality disorder. Billy’s testimony was the only proof presented by the defense at Morgan’s psychiatric hearing. Morgan’s counsel did not submit evidence of Morgan’s psychiatric medications, nor did they present any substantiating evidence to support Morgan’s mental-incompetence claim. The State rested, and the trial judge had only Billy’s testimony to rely on when determining Morgan’s competency. The trial judge found that Billy’s testimony alone was insufficient to find Morgan mentally incompetent, and we agree.

¶ 17. The evidence did not illustrate that Morgan was mentally incompetent when she gave her first statement to Rodriguez and Upchurch, or her second statement to Rodriguez only. Morgan walked in to the police station of her own volition, without the threat of arrest or detainment and initiated her interview with Rodriguez and Upchurch. She executed a waiver-of-rights form and acknowledged' that she understood her rights. Though the trial court found that the first statement was inadmissible, the inadmissibility was only a result of the statement being partially recorded.

¶ 18. Seven days after Morgan’s first statement, Morgan asked to speak directly with Rodriguez. Rodriguez stated that he would not speak to Morgan, because he believed that she was represented by counsel. Morgan expressly stated that she did not have an attorney and persisted in .giving a second statement. Morgan executed another waiver of rights and proceeded to give her second statement, implicating herself in a conspiracy to kill Billy. Morgan’s statement at the suppression hearing, coupled with the evidence, or lack thereof, presented at the hearing on Morgan’s motion for a psychiatric evaluation, failed to provide the trial judge with a reasonable ground to believe that Morgan was incompetent to stand trial or to give statements to the police.

. ¶ 19. Where “the trial judge did not find that a reasonable ground existed to suspect that [the defendant] was mentally incompetent to stand trial, [he] was not required to order a competency hearing.” Evans v. State, 984 So.2d 308, 313 (¶ 9) (Miss. Ct. App. 2007). Because Billy’s testimony regarding Morgan’s. mental state was insufficient to raise questions of her mental competency, we find that the trial court did not err in denying Morgan’s motion for a psychiatric evaluation.

¶20. The trial judge must determine beyond a reasonable doubt that a confession was voluntary and- knowing and that the defendant was given her Miranda rights prior to any custodial interrogation. Armstead v. State, 978 So.2d 642, 646 (¶ 11) (Miss. 2008). The burden lies with the State to prove that a confession is voluntary. Agee v. State, 185 So.2d 671, 673 (Miss. 1966). However, the Mississippi Supreme Court has held that the “burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward.” Scott v. State, 8 So.3d 855, 861 (¶ 24) (Miss. 2008). Morgan’s defense counsel moved to suppress all recorded statements that she gave during the police interviews, asserting that they were coerced and involuntarily given.

¶ 21. During the hearing on the motion to suppress, Rodriguez and Upchurch testified that Morgan did not appear under the influence of drugs or alcohol and appeared to understand the officers’ line of questioning when she made her first state"ment. There were no warrants out for Morgan’s arrest, and Morgan admitted that she was motivated to go to the sheriffs department when she learned that Levontaye and Anderson were being detained and questioned by law enforcement. Morgan’s first statement was only partially recorded. As a result, the trial court found that Morgan’s first statement was likely tainted and should be‘Suppressed. However, the trial court found that the second statement given by Morgan was voluntarily and freely made.

¶22. Morgan’s second interview took place seven days after her initial statement. Morgan requested to speak with Rodriguez specifically and expressly stated that she was not represented by counsel. Morgan executed another waiver-of-rights form and made statements that implicated her in a conspiracy to commit murder. Rodriguez also testified that Morgan did not appear to be under the influence, and that she understood his line of questioning when she gave her second statement. The trial court found that the statement was given voluntarily and without coercion. Finding no error, we find that Morgan was mentally competent to stand trial and the trial court did not err in admitting her second statement into evidence. Finding no error, we affirm the circuit court’s judgment.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF CHOCTAW COUNTY OF CONVICTION OF CONSPIRACY TO COMMIT CAPITAL MURDER AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHOCTAW COUNTY.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).