source: Caselaw Access Project

author: COLEMAN, JUSTICE, FOR THE COURT

license: Public Domain

text:
    Tony SWINNEY a/k/a Tony Deshaun Swinney v. STATE of Mississippi
    NO. 2016-KA-00469-SCT
    Supreme Court of Mississippi.
    January 11, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE
    BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
   COLEMAN, JUSTICE, FOR THE COURT

¶ 1. On April 2, 2015, Audrey Swinney drove her brother Tony Swinney and their cousin LaMarvin Swinney to rob Bullets, a convenience store in Flora, Mississippi. Tony and his cousin LaMarvin entered the store and robbed Pyare Lal, the seventy-three-year-old proprietor of the store.

¶ 2. On May 6, 2015, a grand jury indicted Tony for robbery with an enhancement for a crime committed against a victim of sixty-five years of age or older, and conspiracy to commit robbery. On October 27, 2015, a Madison County jury found Tony guilty on both counts. The trial court sentenced Tony as a habitual offender under Mississippi Code Section 99-19-83 (Rev.

2015), to life in prison without the possibility of parole or early release for each count, with the sentences to run concurrently.

ISSUES

¶ 3. Tony appeals, raising the following issues:

I. Whether the trial court erred in sentencing Tony to life imprisonment as a habitual offender.
II. Whether the trial court erred in failing to declare a mistrial where the State elicited testimony of Tony exercising his constitutional right to remain silent.
III. Whether the multiple instances of hearsay evidence attributing guilt to Tony denied him a fair trial.
IV. Whether testimony by a state witness of having been in prison with Tony was improper evidence of other bad acts.
V. Whether the jury was improperly instructed by instruction peremptorily directing that a robbery occurred and that a witness was an accomplice, thereby relieving the State of its burden of proof.
VI. Whether counsel for Tony was ineffective.
VII. Whether the multitude of error herein, if held individually to be harmless, constitutes cumulative error.

FACTS AND PROCEDURAL HISTORY

¶ 4. On the morning of April 2, 2015, Audrey picked up her cousin LaMarvin and her brother Tony. While in the car, the three made a plan to rob Bullets convenience store. They planned that LaMarvin would put an item on the counter so the cashier would open the register, tackle the cashier, and take the money from the register. Meanwhile, Tony would destroy the surveillance video footage. Audrey would serve as the getaway driver.

¶ 5. Audrey, Tony, and LaMarvin arrived at the store around 9:00 a.m. Tony and LaMarvin entered the store. Because too many people were outside, Tony and LaMarvin exited the store and returned to the vehicle. Audrey drove away and they waited across the street. About twenty minutes later, they returned to the store's parking lot and pulled up to one of the gas pumps. Tony and LaMarvin remained with the vehicle, and Audrey got out as if she were going to pump gas. Lal did not turn on the pump. Audrey got back in the vehicle and drove away.

¶ 6. About fifteen or twenty minutes later, Tony and LaMarvin returned and entered the store. LaMarvin placed an item on the cashier's counter. When Lal opened the register, LaMarvin rushed around the counter and tackled Lal to the ground. LaMarvin grabbed money from the register while holding Lal down. Meanwhile, Tony went into Lal's living quarters behind the counter. When Tony came back out, he and LaMarvin exited the store. Audrey picked up Tony and LaMarvin beside the store and they left the scene.

¶ 7. Lal called the police, and Flora's Assistant Police Chief Clifton Nelson responded. Lal reported that $500 had been taken from the register, $200 from a stand near the register, and $1,500 from a bank deposit bag located in Lal's living quarters, for a total of $2,200. Chief Nelson reviewed the store's surveillance video showing the robbery. The surveillance video of the robbery was shown to the jury at trial. Chief Nelson learned from a witness at the scene that two males, matching the appearance of the two robbers depicted in the surveillance video, ran and got into a blue Honda near the store after the robbery.

¶ 8. Lal could not identify Tony or LaMarvin; however, Lal identified the driver of their vehicle as Audrey Swinney. Audrey was Lal's former employee, whom he had terminated for theft. Upon the information gathered by Chief Nelson, Audrey was developed as a suspect in the robbery. That afternoon, Audrey voluntarily appeared at the police station and agreed to be interviewed. Audrey denied any involvement in the robbery at Bullets and was released. Before Audrey left the police station, Chief Nelson took photographs of Audrey's vehicle, a blue Honda matching the witness's description given at the scene.

¶ 9. On April 6, 2015, a warrant was issued for Audrey's arrest. Audrey agreed to be interviewed a second time. During the interview, Audrey said that Eric Jackson and Milton Deemus were the two males with her at the store the day of the robbery. Audrey posted bond and was released. Eric Jackson and Milton Deemus were arrested the next day. After Eric Jackson was arrested, his brother Joshua Jackson came forward with information implicating Tony in the robbery. Joshua Jackson claimed that he had overheard Audrey, Tony, and Milton Deemus planning to rob Bullets days prior to the robbery. Milton Deemus provided an alibi. Eric Jackson and Milton Deemus later were released.

¶ 10. Chief Nelson issued an arrest warrant for Audrey for impeding the investigation. Audrey was arrested and interviewed a third time. Audrey stated that the individuals she had previously named as assisting her in the robbery were incorrect. Audrey stated that her brother Tony and her cousin LaMarvin assisted her in the robbery. At trial, LaMarvin admitted that he, Audrey, and Tony had planned and carried out the robbery of Bullets. LaMarvin identified himself and Tony as the two males depicted in the surveillance video robbing Lal.

¶ 11. During a recess of Tony's trial, Audrey pleaded guilty to robbery. The State did not call her to the stand to testify. After the State rested its case in chief, Tony rested without testifying and without putting any witnesses on the stand.

¶ 12. The jury returned a verdict finding Tony guilty of robbery of a person of the age of sixty-five years or over and conspiracy to commit robbery. On November 2, 2015, the trial court conducted a sentencing hearing. The trial court sentenced Tony as a habitual offender under Section 99-19-83 to life imprisonment without the possibility of parole or early release on both counts, with each sentence to run concurrently with the other.

STANDARD OF REVIEW

¶ 13. Tony raises several arguments for the first time on appeal. "Generally, a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because otherwise it is procedurally barred." Parker v. State , 30 So.3d 1222, 1227 (¶ 15) (Miss. 2010). As a result, Tony asks the Court to review the arguments raised for the first time on appeal under the plain error doctrine.

¶ 14. "The plain error doctrine is employed only in situations when a defendant's substantive or fundamental rights are affected." Green v. State , 183 So.3d 28, 31 (¶ 6) (Miss. 2016). "Plain-error review is properly utilized for correcting obvious instances of injustice or misapplied law." Id. "For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity or public reputation of judicial proceedings."

Hall v. State , 201 So.3d 424, 428 (¶ 12) (Miss. 2016).

¶ 15. "To determine if plain error has occurred, this Court must determine if the trial court has deviated from a legal rule, whether that error is plain, clear, or obvious, and whether that error has prejudiced the outcome of the trial." Conner v. State , 138 So.3d 143, 151 (¶ 19) (Miss. 2014). "Prejudice often is lacking when the weight of the evidence against a defendant is overwhelming." Hall v. State , 201 So.3d at 428 (¶ 12).

ANALYSIS

I. Habitual Offender

¶ 16. First, Tony argues that the trial court erred by sentencing him as a habitual offender under Section 99-19-83, because the State failed to prove that Tony had served two terms of confinement of a year or more for his prior felony convictions. Second, Tony argues that the State failed to prove that at least one of his previous felony convictions had been a crime of violence as required by Section 99-19-83. The Court does not reach Tony's second argument because it is undisputed that the State failed to prove that Tony served two terms of confinement of a year or more for his prior felony convictions.

¶ 17. Both Tony and the State agree that the Court should vacate his sentences and remand for resentencing because there was insufficient proof demonstrating that Tony actually had served a year or more for his prior felony convictions. "An illegal sentence is an obvious error subject to plain-error review." Martin v. State , 214 So.3d 217, 220 (¶ 6) (Miss. 2017). As such, the issue raised for the first time on appeal of whether the State failed to prove his habitual offender status under Section 99-19-83 is reviewable as plain error. Conner v. State , 138 So.3d 143, 150-51 (¶ 19) (Miss. 2014).

¶ 18. Under " Section 99-19-83, the maximum term of life imprisonment will be imposed if the State can prove beyond a reasonable doubt that the defendant has previously been convicted of two or more felonies on charges separately brought and arising out of separate indictments at different times, that the defendant was sentenced to and served separate terms of one year or more in any state or federal penal institution, and that at least one such felony was a crime of violence." Long v. State , 52 So.3d 1188, 1196 (¶ 26) (Miss. 2011).

¶ 19. On October 19, 2015, the trial court entered an order granting the State's motion to amend the indictment to charge Tony as a habitual offender under Mississippi Code Section 99-19-83. At the sentencing hearing, the State sought to prove Tony's habitual offender status by offering three collective exhibits into evidence showing Tony's prior convictions and sentences. Each collective exhibit included an indictment, sentencing order, and notice of criminal disposition.

¶ 20. The first collective exhibit showed that Tony was convicted of attempted escape, occurring on August 24, 2008. Tony was sentenced to one year for the conviction, but the notice of criminal disposition did not show that Tony actually served a term of at least one year. The second collective exhibit showed that Tony was convicted of two counts of burglary of a dwelling occurring on July 30, 2004, and November 23, 2004. Tony was sentenced to six years, with three years to serve and three years suspended, on both counts, with the sentences to run concurrently. The notice of criminal disposition provided an initial confinement date but did not indicate whether Tony actually had served a term of at least one year for either count.

¶ 21. The third collective exhibit showed that Tony was convicted of burglary of a dwelling, occurring on January 6, 2008. Tony was sentenced to twenty-five years, with fifteen years to serve and five years of post release supervision. The notice of criminal disposition showed that Tony had been confined for at least one year for the conviction.

¶ 22. An essential element of Section 99-19-83 is that the defendant must have served at least one year under each sentence. Ellis v. State , 485 So.2d 1062, 1064 (Miss. 1986) ( Ellis II ). Here, the State presented insufficient evidence to make the requisite showing under Section 99-19-83 because the collective exhibits did not demonstrate that Tony had been convicted of at least two previous felony convictions and sentenced to and served separate terms of one year or more for each conviction. See Ellis II , 485 So.2d at 1064. "Sentencing as an habitual offender under Miss. Code Ann., § 99-19-83 shall be vacated where the State at trial proves that the defendant has two felony convictions but fails to prove that the defendant actually served one year or more on each conviction." Armstrong v. State , 618 So.2d 88, 89 (Miss. 1993). As such, Tony's sentences must be vacated.

¶ 23. The State requests that Tony be resentenced under Mississippi Code Section 99-19-81 (Rev. 2015), because the evidence presented at the sentencing hearing met the requirements of Section 99-19-81. Unlike Section 99-19-83, Section 99-19-81 does not require the serving of any time on the two prior felony crimes. Section 99-19-81 provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss. Code Ann. § 991981.

¶ 24. In Smith v. State , 477 So.2d 191, 192 (Miss. 1985), the trial court sentenced the defendant to life imprisonment under Section 99-19-83. On appeal, the Court noted that the indictment at issue did not specifically cite under which of the two habitual offender statutes the State was proceeding. Id. at 193. Moreover, the indictment did not allege that the defendant had served separate terms of one year or more as required by Section 99-19-83. Id. The indictment "clearly notic[ed] the defendant that the [S]tate was seeking only a seven year term [under Section 99-19-81 ]." Id. at 196. The Court reversed the defendant's sentence and remanded to the trial court for proper sentencing under the applicable statute, Section 99-19-81. Id.

¶ 25. Similarly, in Ellis II , the Court held that the State had failed to prove the essential element under Section 99-19-83 that the defendant had served at least one year for each of his previous sentences. Ellis II , 485 So.2d at 1064. The Court said "[t]he [S]tate's proof would have only sustained a conviction under [ Section] 99-19-81." Therefore, the Court concluded that the case came under Smith , and remanded it to the circuit court for "appropriate sentencing." Id. The case reached the Court again, and the Court clarified that its remand for "appropriate sentencing" meant that it had remanded to the circuit court for sentencing under Section 99-19-81. Ellis , 520 So.2d 495, 496 (Miss. 1988) ( Ellis III ).

¶ 26. Here, the evidence presented at the sentencing hearing would have met only the requirements of Section 99-19-81. Accordingly, we vacate Tony's sentences and remand the case to the circuit court for Tony to be resentenced.

II. Right to Remain Silent

¶ 27. Tony argues for the first time on appeal that his fundamental right to remain silent was violated when Chief Nelson testified that Tony "declined to interview" upon Chief Nelson's request. The State argues that nothing in the record shows that Tony had received a Miranda warning at the time Chief Nelson said he declined to be interviewed. The State argues that Chief Nelson's testimony in reference to post-arrest, pre- Miranda silence does not constitute reversible error. Alternatively, assuming the testimony was in reference to post-arrest, post- Miranda silence, the State argues that it was harmless error because of the overwhelming evidence of Tony's guilt.

¶ 28. Tony asks the Court employ plain error review because there was no objection to Chief Nelson's comment. Tony's assignment of error is predicated on the following exchange that occurred during the State's direct examination of Chief Nelson:

COUNSEL FOR THE STATE:
Q. So-after after your discussions with LaMarvin Swinney, the minor involved, who was the other defendant?
A. I-I attempted to offer an interview to Tony. Tony declined to interview.
CO-COUNSEL FOR THE STATE:
Excuse me, Your Honor. I'm sorry, Your Honor.
COUNSEL FOR STATE:
I'm going to restate the question, Your Honor.
COUNSEL FOR THE STATE:
Q. After your conversation with or your interview of the-of the minor, did that pretty much conclude your investigation in this matter?
A. Yes.

¶ 29. "An accused has the right to remain silent, guaranteed by the Fifth Amendment to the United States Constitution." Austin v. State , 384 So.2d 600, 601 (Miss. 1980). "Evidence of post-arrest silence is improper, because it violates the accused's right against self-incrimination." Id. (citing Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). "It is improper and, ordinarily, reversible error to comment on the accused's post- Miranda silence." Quick v. State , 569 So.2d 1197, 1199 (Miss. 1990). "The accused's right to be silent then is equally as strong as the right not to testify and it is error to comment on either." Id.

¶ 30. Chief Nelson's testimony does not indicate whether Tony had been given his Miranda warning at the time he "declined to interview[,]" so it is unclear whether Chief Nelson's testimony was referencing Tony's pre- Miranda or post- Miranda silence.

¶ 31. The Court of Appeals has noted a split of authority on whether the introduction of a defendant's post arrest, pre- Miranda silence during the prosecution's case-in-chief violates a defendant's Fifth Amendment privilege against self incrimination. Jenkins v. State , 75 So.3d 49, 58 (¶ 24) (Miss. Ct. App. 2011). In Jenkins , the Court of Appeals held that the trial court did not commit plain error when it did not, sua sponte, prohibit a police officer from testifying that the defendant had opted to remain silent after he was arrested.

Id. at 56, 58 (¶¶ 20, 24) ; see also Hurt v. State , 34 So.3d 1191, 1197, 1199 (¶¶ 17, 21) (Miss. Ct. App. 2009) (holding that a prosecution's comments regarding the defendant's post-arrest, pre- Miranda silence did not constitute plain error in light of the significant circuit split on the issue and the current law in Mississippi).

¶ 32. To the extent that Chief Nelson's testimony referenced pre- Miranda silence, the evidence does not constitute plain error because the Court cannot say that the "trial court deviated from a legal rule" or that the error was "plain, clear, or obvious" in light of the split of authority on the issue.

¶ 33. On the same note, it is not "plain, clear, or obvious" that the testimony actually referenced post- Miranda silence. The Court cannot say the testimony resulted in plain error in light of the uncertainty surrounding the timing of when the refusal to make a statement was made. Green , 183 So.3d at 31 (holding plain error review is properly utilized for correcting obvious instances of injustice or misapplied law).

¶ 34. Furthermore, the State did not intentionally elicit Chief Nelson's comment, and it was not directly responsive to the State's question. Chief Nelson's comment was the sole reference over the course of Tony's trial regarding his choice to remain silent, and the State did not suggest to the jury that Tony was guilty because he declined to interview. We discern no manifest miscarriage of justice or that the fairness, integrity, or public reputation of the judicial proceeding was seriously affected. See Hall , 201 So.3d at 428 (¶ 12).

III. Hearsay

¶ 35. Tony argues that "multiple instances of hearsay evidence" going directly to the elements of the charges denied him a fair trial.

¶ 36. " 'Hearsay' is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Miss. R. Evid. 801(c). "Admission or suppression of evidence is based on the discretion of the trial court, but the trial court's discretion must be consistent with the Mississippi Rules of Evidence." Franklin v. State , 136 So.3d 1021, 1028 (¶ 22) (Miss. 2014). "Reversal is required only where abuse of that discretion can be shown to cause prejudice to the defendant." Id. "When determining whether a statement is prejudicial, th[e] Court has established an objective test asking how a reasonable objective observer would under the circumstances be likely to perceive the statement." Id. at 1029 (¶ 26) (citations and quotations omitted).

¶ 37. Tony first takes issue with Chief Nelson's "narrative of the robbery of Bullets as he believed it had happened" even though he was not there. Tony claims that Chief Nelson "was iterating Lal's testimony, but with detail and in chronological order." Tony's trial counsel objected twice to Chief Nelson's testimony as to what Lal had reported to him. The trial court overruled the first objection. Following the second objection, the trial court asked the parties to approach the bench, and it directed the State to guide Chief Nelson through its questioning, in a way so as to avoid hearsay.

¶ 38. "Primarily, hearsay testimony obtained by an officer in conducting an investigation is inadmissible." Bridgeforth v. State , 498 So.2d 796, 800 (Miss. 1986). "The conversation of an informant is generally inadmissible as hearsay where it is a part of the State's development of its proof on the merits in a criminal case, but not in other circumstances where probable cause for an arrest or search is at issue."

Swindle v. State , 502 So.2d 652, 657 (Miss. 1987).

¶ 39. "It is elemental that a police officer may show that he has received a complaint, and what he did about the complaint without going into the details of it." Id. at 658. Moreover, "[a] statement is not hearsay if it is offered merely to show its effect on someone." Gillett v. State , 56 So.3d 469, 504 (¶ 98) (Miss. 2010) ; see also Franklin , 136 So.3d at 1029 (¶ 23) (holding that a statement obtained by a police officer was not offered to prove the truth of the matter asserted but to prove why the police officer acted as he did.). Here, the trial court did not abuse its discretion in allowing Chief Nelson's testimony of what Lal had reported to him because it was offered to show why he acted the way he did during the course of his investigation.

¶ 40. Tony argues that, after the trial court cautioned the State against eliciting hearsay testimony, Chief Nelson continued to testify to hearsay statements without objection. The failure to object to hearsay operates as a waiver of the issue on appeal:

When the hearsay goes into evidence without objection, the trial court has no opportunity to evaluate the proffered testimony under M.R.E. 803(24), or any other exception. Thus, the failure to object to hearsay operates as a waiver of the issue on appeal. [The defendant] made no hearsay objection to [the] Officer['s] testimony, and therefore, his objection is procedurally barred for failure to object.

Rubenstein v. State , 941 So.2d 735, 764 (¶ 113) (Miss. 2006). Tony has waived the issue on appeal for failing to object. Because Tony failed to object to the alleged improper hearsay testimony, he relies on the plain error doctrine. Parker , 30 So.3d at 1227 (¶ 15). Tony claims that the multiple instances of hearsay evidence alluding to his guilt, which were introduced without objection, denied his right to a fair trial.

¶ 41. Tony first points out that Chief Nelson testified that the car from the surveillance video was a blue Honda, information he learned from a third party. The Court has held that "an informant's tip is admissible to the extent required to show why an officer acted as he did and was at a particular place at a particular time[.]" Id. at 657-58. Chief Nelson's testimony arguably was not hearsay and does not constitute plain error.

¶ 42. Tony also points out that Chief Nelson relayed statements given by Audrey, implicating Tony in the robbery. Chief Nelson testified that LaMarvin agreed to go along with the robbery because he was scared of Tony due to his violent behavior. Chief Nelson testified that LaMarvin's statement was "pretty much the same" as Audrey's third and final account of the robbery. Chief Nelson testified that Joshua Jackson had told him that he had overheard Audrey, Tony, and Milton Deemus planning the robbery.

¶ 43. The State contends that the statements were offered to show why Chief Nelson acted as he did in developing suspects in the robbery. See Gillett , 56 So.3d at 503-04 (¶ 98). We agree with the State that Chief Nelson's testimony did not constitute inadmissible hearsay, because he testified about what he did and learned over the course of his investigation, including why he took certain steps. See Rubenstein , 941 So.2d at 764-65 (¶¶ 111-115). Because the testimony was not hearsay, the admission of the evidence did not result in plain error.

¶ 44. Tony also takes issue with Joshua Jackson's testimony. Tony argues that Joshua Jackson improperly testified that he had heard Audrey talking about robbing Bullets with Tony and Milton Deemus because she was a former employee of Bullets. The testimony did not prejudice the outcome of the trial because the same testimony had been offered through Chief Nelson without objection when he was describing why he took certain steps during the course of his investigation into the robbery. Conner , 138 So.3d at 151.

IV. Evidence of Other Bad Acts

¶ 45. Tony argues that the State purposefully elicited improper testimony of a witness indicating that Tony had been charged with a crime and had spent time in jail with the witness. On direct examination, Joshua Jackson testified:

Q. All right. Now, how long have you known Tony Swinney?
A. A long time.
Q. All right. Have y'all ever had trouble?
A. One time.
Q. All right. How long ago?
A. About a couple of years ago when we was locked up together.

¶ 46. Rule 404(b) of the Mississippi Rules of Evidence provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, that upon request by the accused, the prosecution shall provide reasonable notice in advance of trial, or during trial if the military judge excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Miss. R. Evid. 404(b).

¶ 47. Because no objection was made, the Court must employ plain error review. Parker , 30 So.3d at 1227 (¶ 15).

¶ 48. The Court disagrees with Tony's claim that the State purposefully elicited the testimony. The State's question sought to determine whether animosity existed between Joshua Jackson and Tony. Joshua Jackson's response that he and Tony had been locked up together was an unsolicited response to the State's question.

¶ 49. In Watson v. State , 521 So.2d 1290, 1293-94 (Miss. 1988), the Court held that a similar "fleeting, unexplained reference" to prior jail time served by the defendant was not reversible error. In Watson , the State asked the witness whether she had recently had contact with the defendant. Id. at 1294. The witness responded, "He's come by the office where I work, but we didn't really talk. He was just telling me he was out of jail[.]" Id. The defense objected and moved for a mistrial, which was denied by the trial court. Id. The Court held that the answer was not responsive to the question and there was no purposeful effort or intent by the State to elicit such information from the witness. Id. at 1294. The Court also held that, assuming the answer constituted error, certainly it was harmless error. Id.

¶ 50. The lone "fleeting, unexplained" reference to prior jail time did not constitute reversible error and was at most harmless error. See id. at 1293-94. The reference did not result in plain error because it did not result in a manifest miscarriage of justice or seriously affect the fairness, integrity, or public reputation of judicial proceedings. Hall , 201 So.3d at 428 (¶ 12).

V. Jury Instruction

¶ 51. Tony argues that Jury Instruction Six, which instructed the jury, in part, that LaMarvin was an admitted accomplice, was improper. Tony contends that the instruction was peremptory in nature because it relieved the jury of its function of fact finding, specifically, that a robbery had occurred and LaMarvin was an accomplice.

¶ 52. Tony did not object to the jury instruction. Consequently, "the issue is without merit as it is procedurally barred." Smith v. State , 835 So.2d 927, 939 (¶ 34) (Miss. 2002). Again, Tony argues that the instruction resulted in plain error.

¶ 53. Jury Instruction Six read:

The Court instructs the jury that La'Marvin Swinney is an accomplice in this case and the uncorroborated testimony of an accomplice is to be considered and weighed with great care, caution and suspicion. You may give it such weight and credit as you deem it is entitled.

¶ 54. "The Court does not single out any instruction or take instructions out of context; rather, the instructions are to be read together as a whole." Wilson v. State , 967 So.2d 32, 36 (¶ 11) (Miss. 2007). Here, the trial court instructed the jury on every essential element of robbery and conspiracy to commit robbery. The trial court also instructed the jury that if the State had failed to prove any one or more of all of the essential elements of robbery and conspiracy to commit robbery beyond a reasonable doubt, it should find Tony not guilty. Thus, contrary to Tony's claim, the State was not relieved of its burden of proof.

¶ 55. The Court has approved similar cautionary instructions regarding accomplice testimony:

The Court instructs you that the testimony of an admitted accomplice should be viewed by you with great care, caution and suspicion and you should give it such weight and credit as you deem it is entitled.

Smith v. State , 907 So.2d 292, 297 (¶ 27) (Miss. 2005) (citing Rosenthall v. State , 844 So.2d 1156, 1160-61 (¶ 17) (Miss. 2003) ). More recently, in Jones v. State , 203 So.3d 600, 611-12 (¶ 35) (Miss. 2016), the Court has approved the use of the following accomplice jury instruction:

During the course of his testimony in this trial, the witness John Doe claimed to have participated with the defendant in [the crime for which the defendant is on trial]. Doe is an admitted accomplice, and, as such, the jury should consider his testimony with great caution and suspicion. The jury is the sole judge of the credibility and the believability of all the witnesses, and it is for the jury to decide how much weight and worth, if any, to give the testimony of the witnesses, including Doe. As you consider Doe's testimony, you may accept such portions, if any, that you deem credible, and reject such portions, if any, that you do not deem worthy of belief.

Jones , 203 So.3d at 611-12 (¶ 35).

¶ 56. LaMarvin testified that he had planned and participated in the robbery with Tony. In light of nearly identical cautionary jury instructions approved by the Court regarding accomplice testimony, the jury instruction at issue did not amount to any error, much less plain error. What is more, Tony argues, albeit under different assignments of error, that the case is "wholly dependant upon the inherently untrustworthy testimony of an accomplice" who "cut a sweet-heart deal for [his] testimony." The jury instruction, routinely requested by defendants, was favorable to his defense as it instructed the jury that LaMarvin's testimony was "to be considered and weighed with great care, caution and suspicion." As such, Tony certainly was not prejudiced by the instruction that coincided with his defense. The assignment of error is without merit.

VI. Ineffective Assistance of Counsel

¶ 57. Tony argues that he did not receive constitutionally effective assistance of counsel at trial. Tony argues that his trial counsel allowed the errors alleged in issues I through V, by failing to object to the State's proof of Tony's habitual offender status, Chief Nelson's comment on Tony's right to remain silent, Chief Nelson's and Joshua Jackson's hearsay testimony, Joshua Jackson's testimony that Tony had been in jail, and Jury Instruction Six.

¶ 58. "[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Dartez v. State , 177 So.3d 420, 422-23 (¶ 18) (Miss. 2015). The Court addresses ineffective assistance of counsel claims on direct appeal only where "[1] the record affirmatively shows ineffectiveness of constitutional dimensions, or [2] the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed." Bell v. State , 202 So.3d 1239, 1242 (¶ 12) (Miss. 2016).

¶ 59. "[T]o prevail on an ineffective-assistance-of-counsel claim, a defendant must first prove that his counsel was deficient, which requires showing that counsel made errors so serious that he or she was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Chamberlin v. State , 55 So.3d 1046, 1050 (¶ 4) (Miss. 2010) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "Secondly, a defendant must prove that the deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.

¶ 60. The Court strongly presumes that counsel's conduct falls within the wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy. Id. at (¶ 5). Thus, defense counsel is presumed competent, and even where professional error is proven, the Court must determine if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Id.

¶ 61. Tony argues that his counsel was ineffective for failing to contest the evidence offered by the State at sentencing to prove his habitual offender status. However, Tony's counsel contested Tony's habitual offender status under Section 99-19-83 on grounds that his prior convictions did not constitute crimes of violence. The ineffective assistance claim based on the failure to contest Tony's habitual offender status under Section 99-19-83 now is moot because the Court is vacating the sentences and remanding for resentencing due to plain error on separate grounds. See Smith , 477 So.2d at 196.

¶ 62. Tony's counsel was not deficient for failing to object or seek a mistrial in response to Chief Nelson's testimony that Tony had declined to be interviewed or Joshua Jackson's testimony about his and Tony's time in jail together. "[D]ecisions such as the decision not to object are considered tactical, and do not rise to the level of ineffective assistance of counsel." Golden v. State , 968 So.2d 378, 390 (¶ 50) (Miss. 2007). The Court has said that "counsel might [have] concluded that an objection would draw attention to the question and answer." Id.

¶ 63. Likewise, Tony's counsel was not deficient for failing to object to the "multiple instances" of hearsay. As previously discussed, Chief Nelson's testimony regarding statements he obtained was offered by the State "merely to show its effect" on how he proceeded with his investigation of the robbery. See Gillett , 56 So.3d at 504 (¶ 98). To the extent testimony was arguably hearsay, "counsel might have many reasons for deciding not to object to a question which is technically objectionable." Id. We hold that Tony's counsel was not deficient for choosing not to object, and Tony suffered no prejudice as a result, due to other direct evidence of his guilt.

¶ 64. Tony's counsel was not deficient for choosing not to object to Jury Instruction Six. The instruction was favorable to Tony's defense, i.e., that LaMarvin's testimony as an admitted accomplice should be received with "great care, caution and suspicion." As previously discussed, the favorable jury instruction did not prejudice Tony.

¶ 65. For the foregoing reasons, Tony's claim for ineffective assistance of counsel is without merit.

VII. Cumulative Error

¶ 66. Tony argues the cumulative effect of the alleged errors at trial, in their aggregate, serves as a basis for reversal. In cases where the Court discerns harmless error or error that is not reversible in and of itself, we have discretion to determine on a case-by-case basis whether the errors require reversal due to the resulting cumulative prejudicial effect. Parker v. State , 30 So.3d 1222, 1235 (¶ 50) (Miss. 2010).

¶ 67. At most, harmless error existed due to Chief Nelson's testimony that Tony had declined to be interviewed and the fleeting, unexplained reference to Tony's prior stint in jail. However, considering the circumstances of the present case and the overwhelming evidence of guilt, any cumulative effect of the two harmless errors does not require reversal.

CONCLUSION

¶ 68. The Court affirms Tony's convictions, vacates the sentences, and remands the case to the Circuit Court of Madison County for resentencing.

¶ 69. AFFIRMED IN PART; VACATED IN PART AND REMANDED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

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


author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    Deveaux CARTER v. Allen DAVIS
    NO. 2015-CT-00173-SCT
    Supreme Court of Mississippi.
    January 25, 2018
    WENDY WALKER BORRIES, ATTORNEY FOR APPELLANT
    DAVID C. FRAZIER, ATTORNEY FOR APPELLEE
    EN BANC.
    ON WRIT OF CERTIORARI
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. Twenty years after their divorce, Deveaux Carter filed for contempt against her ex-husband, Allen Davis, for failing to pay child support and for their daughters' medical, college, and other expenses.

¶ 2. After a hearing, the chancellor calculated Davis's total financial obligations under the divorce decree to be significant-$201,187.66. But the chancellor also found Davis and his mother had made substantial contributions directly to the children. His mother also made payments to Carter. The chancellor credited these contributions-totaling $197,911-toward Davis's obligations. The chancellor then ordered Davis to pay the difference-$3,276.66. Citing these credits, the chancellor did not find Davis in willful contempt. But the chancellor awarded Carter $7,500 in attorney's fees. He did so because Carter had to file suit to enforce the support order, with which Davis concedes he had not fully complied.

¶ 3. Both parties appealed. We assigned this case to the Court of Appeals, which affirmed the chancellor's decision to deem Davis's mother's payments and Davis's direct payments as paid child support. Carter v. Davis , 2015-CA-00173-COA, 235 So.3d 106, 109-11, 2017 WL 1238134, at **2-3 (¶¶ 11-14) (Miss. Ct. App. April 4, 2017). But the appellate court reversed the attorney's fee award, based on the lack of a finding of willful contempt. Id. at 110-11 (¶ 15), 2017 WL 1238134, at *3 (¶ 15).

¶ 4. We granted certiorari to address the attorney's fees issue only. After review, we reverse the Court of Appeals' decision regarding the attorney's fees award.

¶ 5. The chancellor did not have to find Davis in willful contempt to award her attorney's fees. Instead, we have long held that, when there has been a default in child support, the party seeking to enforce the decree is entitled to attorney's fees, even when nonpayment was not due to willful contempt.

Mizell v. Mizell , 708 So.2d 55, 65 (Miss. 1998) ; Moore v. Moore , 372 So.2d 270, 272 (Miss. 1979), overruled on other grounds by Dep't of Human Servs., State of Miss. v. Fillingane , 761 So.2d 869, 871 (Miss. 2000) ; Pearson v. Hatcher , 279 So.2d 654, 656 (Miss. 1973). "Otherwise, the responsibility of support would be reduced by the amount the party seeking to enforce the decree would be required to pay an attorney to enforce the decree." Moore , 372 So.2d at 272 (citing Pearson , 279 So.2d at 656 ).

¶ 6. In reversing and rendering the attorney's fees award based on no willful contempt, the Court of Appeals cited McKnight v. Jenkins , 155 So.3d 730, 732 (Miss. 2013). But in that case, we found not only was there no willful contempt by the ex-wife who refused to pay a medical bill, we also found there was no obligation under the support order to pay the bill, which was really a litigation expense and not her child's medical expense. Id. And we reversed both the underlying award and the attorney's fees award connected to it. Id.

¶ 7. Here, by contrast, the chancellor found Davis had significant financial obligations under the divorce judgment. Though the chancellor credited Davis for his and his mother's direct payments, the chancellor still found Davis had failed to comply fully with the terms of the judgment. As the chancellor noted in his order, Davis acknowledged the arrearage. And this arrearage required Carter to initiate this action. Therefore, the chancellor rightly recognized that Carter-just like the ex-wives in Mizell , Moore , and Pearson -was entitled to attorney's fees, even though the chancellor did not find Davis in willful contempt based on the credits. See Mizell , 708 So.2d at 65 ; Moore , 372 So.2d at 272 ; Pearson , 279 So.2d at 656.

¶ 8. After finding attorney's fees were appropriate, the chancellor then determined $7,500 to be a reasonable amount-a decision that fell within his "sound discretion." Mizell , 708 So.2d at 65. Because the chancellor supported his decision with record evidence, we find no abuse in his awarding Carter $7,500 in attorney's fees. See id. ("We are reluctant to disturb a chancellor's discretionary determination whether or not to award attorney fees and of the amount of any award.").

¶ 9. For these reasons, while we affirm the Court of Appeals' judgment on the child-support-credit issues, we reverse its decision to reverse and render the attorney's fee award. We reinstate and affirm the judgment of the chancery court, which awarded Carter $3,276.66 in past-due child support and $7,500 in attorney's fees.

¶ 10. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS REINSTATED AND AFFIRMED.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR. RANDOLPH, P.J., AND ISHEE, J., NOT PARTICIPATING.

      Under Mississippi Rule of Appellate Procedure 17(h), we many limit the question on certiorari review. And, here, we find no reason to readdress the child-support-credit issue. The Court of Appeals applied the proper standard of review and controlling caselaw to conclude the chancery court did not abuse its discretion in crediting direct payments by Davis and further payments by his mother toward Davis's child-support obligations. See Carter , 235 So.3d at 109-11 (¶¶ 11-14), 2017 WL 1238134, at **2-3 (¶¶ 11-14).


author: MAXWELL, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, DISSENTING:

text:
    Larry D. CHRISTMAS, Jr. a/k/a Larry D. Christmas a/k/a Larry Christmas v. STATE of Mississippi
    NO. 2016-KM-01332-SCT
    Supreme Court of Mississippi.
    January 25, 2018
    ATTORNEY FOR APPELLANT: LARRY D. CHRISTMAS, JR. (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON
    BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. The circuit court dismissed as untimely Larry Christmas's misdemeanor appeal from county court. Christmas appealed the circuit court's dismissal to this Court. Because the record shows Christmas's notice of appeal was filed too late and that Christmas failed to request an extension, we affirm.

Background Facts and Procedural History

¶ 2. On December 15, 2015, Christmas was tried de novo in the County Court of Harrison County, First District, on two misdemeanor traffic charges-(1) improper turn and (2) no proof of liability insurance. At the close of trial, the county court found Christmas not guilty on the charge of improper turn but guilty of no proof of liability insurance. The court fined Christmas $200 plus court costs and remanded the matter to the justice court to enforce this penalty.

¶ 3. The county court's final judgment was entered January 13, 2016, giving Christmas thirty days to file his notice of appeal to circuit court. On February 9, Christmas filed a "Motion to Vacate Final Judgment and Order." Then on February 12, 2016-exactly thirty days after the final judgment was entered-Christmas mailed a notice of appeal and a $166 money order to the Harrison County Circuit Clerk. Due to President's Day being the following Monday, the post office did not deliver the mailing until Tuesday, February 16, 2016. Christmas's notice was stamped filed on February 17-five days after it was due.

¶ 4. On June 27, 2016, the circuit court requested Christmas show cause why his appeal should not be dismissed as untimely. Christmas responded in writing on July 11, 2016. First, he asserted his notice of appeal was timely because it was filed on February 12-the date he mailed it. Second, he argued his February 9 motion to vacate tolled the time to file his appeal. Third, he claimed he had complied with all filing requirements by February 12. And, but for the clerk's office supposedly closing early, his notice would have been filed that day.

¶ 5. The circuit court dismissed Christmas's appeal as untimely. Because the motion to vacate was not filed within ten days of the final judgment, it had not tolled the thirty-day time period to file an appeal. See M.R.A.P. 4(e) ; URCCC 10.05. Thus, Christmas had until February 12, 2016, to file -not mail, but file-his notice of appeal. See URCCC 12.03. And the record clearly showed Christmas's notice of appeal was not filed until February 17.

¶ 6. Upon dismissal, Christmas appealed to this Court.

Analysis

¶ 7. Christmas raises multiple issues challenging the underlying traffic stop that led to his no-proof-of-liability-insurance adjudication. But the record contains no evidence about the underlying stop. And "[w]e have on many occasions held that we must decide each case by the facts shown in the record, not assertions in the brief[.]" Mason v. State , 440 So.2d 318, 319 (Miss. 1983) (citations omitted). So, no matter how "sincere [Christmas] may be in [his] assertions," if facts asserted are not in the record, "we cannot know them." Id.

¶ 8. The only issue supported by the record-and the only issue addressed by the circuit court-is the timeliness of Christmas's appeal from county court. Consequently, this is the only issue before us.

¶ 9. Christmas's attempted appeal predated the adoption of the Mississippi Rules of Criminal Procedure. So former Uniform Rule of Circuit and County Court Practice 12.03 controlled. Under Rule 12.03, Christmas had thirty days from January 13, 2016-the date of the entry of his county-court adjudication-to file his written notice. See URCCC 12.03 ("Any person adjudicated guilty of a criminal offense by a county court, ... may appeal to the circuit court having jurisdiction by filing written notice with the clerk of the county court within 30 days of the entry of the judgment."). As the circuit court correctly noted, his February 9 motion to vacate did not toll the time to file an appeal, because it was not filed within ten days of the entry of the county-court judgment. M.R.A.P. 4(e) ; URCCC 10.05. Nor did mailing his notice and money order on February 12 perfect his appeal. While nothing prohibited Christmas from mailing his notice, Rule 12.03 is clear an appeal is perfected "by filing written notice." URCCC 12.03 (emphasis added). Here, the record is clear Christmas's notice was not filed until February 17, 2016-five days too late. So the circuit court did not err in dismissing the appeal as untimely.

¶ 10. Nor, as Christmas suggests on appeal to this court, did the circuit judge abuse his discretion by not granting him an extension under Mississippi Rule of Appellate Procedure 4(g). See URCCC 12.03 ("Extensions may be granted as proscribed [sic] in Miss. Sup. Ct. R. 4(g)."). By not giving him a Rule 4(g) extension, Christmas insists the circuit court wrongfully held him liable for the clerk's office's "premature closing" on February 12, 2016.

¶ 11. Christmas, however, never moved for an extension. And while Rule 4(g) makes clear a trial court may grant an extension, it may do so only "upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule." M.R.A.P. 4(g). While this rule gave Christmas until March 12, 2016, to move for an extension based on the clerk's office's alleged premature closing, the record shows he never sought an extension. Instead, he relied on his mistaken belief that either his February 9 motion tolled the thirty-day time limit, which it did not, or mailing his notice on February 12 was sufficient, which it was not.

¶ 12. Only after he had received the show-cause notice did he assert for the first time on July 11, 2016, that, but for the clerk's office closing at 4:55 p.m., his notice would have been on time. And at that point, three months had passed, and the circuit court was without authority to grant an extension. See M.R.A.P. 4(g). So, despite Christmas's assertions, the circuit judge did not abuse his discretion by not granting a Rule 4(g) extension.

¶ 13. The dissent insists the circuit judge abused his discretion because he did not suspend the criminal appeals deadline and give Christmas an untimely appeal. In other words, the dissent believes the circuit judge was wrong for following and enforcing Mississippi's established thirty-day criminal appeals deadline. We disagree.

¶ 14. We do however acknowledge there is authority conferred by Rule 2(c) that permits the "Supreme Court or the Court of Appeals" to suspend the appeals deadline in criminal cases. M.R.A.P. 2(c). But Rule 2(c) does not mention circuit courts.

Still, even if Rule 2(c) applies to a circuit court sitting as an appellate court -as the circuit court was here-its application is purely discretionary. What Rule 2(c) says is that the appellate court "may" suspend the rules. See M.R.A.P. 2(c). It does not say that the court "shall" or "must" suspend the rules. So discretion is obviously involved.

¶ 15. We recognize that, at first blush, the circuit court might be perceived as harshly enforcing a deadline. We also understand Christmas's argument and acknowledge the dissent's preference that the circuit judge grant an out-of-time appeal. But this Court is not supposed to substitute what we would have done, if we were in the circuit judge's position, faced with Christmas's show-cause response. After review, we simply cannot fault the circuit judge for abiding by the general thirty-day appellate deadline.

¶ 16. The dissent mentions that Christmas's explanation about why he mailed his notice was uncontradicted. But a similar pertinent truth is that his allegations were unsworn. Based on the paucity of record evidence, this Court lacks the "definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached" necessary to find the circuit court abused its discretion under Rule 2(c).

¶ 17. Therefore, we affirm.

¶ 18. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶ 19. Because I would permit this appeal to proceed in the circuit court, I respectfully dissent. The County Court of Harrison County, First Judicial District, entered a final judgment on January 13, 2016, that found Larry D. Christmas, Jr., guilty of having had no proof of liability insurance, ordered him to pay a $200 fine and court costs, and remanded the case to justice court for enforcement of the penalty. Uniform Rule of Circuit and County Court Practice 12.03 afforded Christmas an avenue for "appeal to the circuit court having jurisdiction by filing written notice with the clerk of the county court within 30 days of the entry of the final judgment," with extensions granted "as proscribed [sic] in [Mississippi Rule of Appellate Procedure] 4(g)." URCCC 12.03(A). Unless excused, the appellant also must provide a bond in an amount set by the judge or clerk of the county court. URCCC 12.03(B).

¶ 20. The thirty-day period for perfecting the appeal expired on February 12, 2016. On that day, Christmas mailed a notice of appeal and a money order in the amount of $166 to the Harrison County Circuit Clerk. The post office delivered the mailing on February 16, 2016, and the clerk's office filed the notice of appeal on February 17, 2016, five days late. Christmas never moved for an extension of time pursuant to Mississippi Rule of Appellate Procedure 4(g), which provides that, for good cause shown, "[t]he trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule." M.R.A.P. 4(g). A motion for an extension of time filed outside the thirty-day period may be granted for excusable neglect. M.R.A.P. 4(g).

¶ 21. On June 27, 2016, the circuit clerk issued a show-cause notice to Christmas, directing him to show cause why the appeal should not be dismissed as untimely. On July 11, 2016, Christmas, pro se , responded in writing to the show-cause notice, asserting, inter alia , that his appeal should be deemed timely because, but for the early closure of the clerk's office, he would have perfected his appeal in a timely manner on February 12, 2016. Christmas averred that he arrived at the courthouse at 4:37 p.m. on February 12, 2016, but was forced to wait for assistance while the clerk finished a phone call. After the conclusion of the phone call, the clerk reviewed Christmas's proposed filing, determined the amount that would be required to file the appeal, and directed him to obtain a money order in that amount. Christmas said that he obtained the money order from the nearby post office and returned to the courthouse at 4:55 p.m. After passing through security, he headed toward the clerk's office, but discovered that its employees were leaving for the evening; one of them informed him that the clerk's office was now closed. Christmas averred that, at 4:57 p.m., the doors to the clerk's office were locked. Christmas then elected to mail the notice of appeal and money order. He claimed that, because all that was required was his payment and a file stamp, three minutes would have been enough time to have enabled him to file the appeal on time.

¶ 22. Although Christmas served the show-cause response on the Harrison County prosecuting attorney, that attorney never responded to Christmas's averments concerning the early closure of the circuit clerk's office. Therefore, Christmas's factual account of the filing went uncontradicted and undisputed. In its opinion dismissing the appeal as untimely, the circuit court set forth Christmas's averments about the early closure of the clerk's office. Nonetheless, the circuit court applied the strict requirements of the applicable appellate rules and found that, because the appeal had not been delivered to the clerk's office within thirty days of the final judgment, it was untimely.

¶ 23. Although the majority casts the circuit court's decision to apply the rules strictly as an exercise of discretion, nothing indicates that the circuit court considered its authority to suspend the appellate rules to extend the time for Christmas's criminal appeal under Mississippi Rule of Appellate Procedure 2(c). Rule 2(c) provides:

(c) Suspension of Rules. In the interest of expediting decision, or for other good cause shown, the Supreme Court or the Court of Appeals may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction. The time for taking an appeal under Rules 4 or 5 may be extended in criminal and post-conviction cases, but not in civil cases.

M.R.A.P. 2(c). Rule 2(c) was applicable to Christmas's appeal because "[a]n appeal from county court to circuit court is controlled by the Mississippi Rules of Civil Procedure ("Miss. R. Civ. P."), the URCCC, and the M.R.A.P." Am. Investors, Inc. v. King , 733 So.2d 830, 832 (Miss. 1999) ; Van Meter v. Alford , 774 So.2d 430, 431 (Miss. 2000) (recognizing that the Mississippi Rules of Appellate Procedure govern appeals from county courts to circuit courts). We have held that this Court may suspend the appellate rules, when justice demands, to allow an out-of-time appeal in criminal cases. McGruder v. State , 886 So.2d 1, 2 (Miss. 2003). Rule 2(c) does specify that it is the Supreme Court or the Court of Appeals that may suspend the time for taking an appeal in a criminal case. But because the same due process considerations apply when the circuit court sits as an appellate court, logic demands that the circuit court likewise is empowered to suspend the appellate rules to extend the time for taking an appeal in a criminal case as provided in Rule 2(c).

¶ 24. I would find that, because Christmas made an unrebutted showing of good cause for the late filing of his notice of appeal, the circuit court should have suspended the rules and extended the time for taking an appeal. Christmas averred that, but for the early closure of the clerk's office, he would have perfected his appeal just before 5:00 p.m. on February 12, 2016. Although Christmas waited until the end of the thirty-day period to perfect his appeal, he was entitled to rely on the clerk's office remaining open during its statutorily prescribed hours from 8:00 a.m. to 5:00 p.m. Miss. Code Ann. § 25-1-99 (Rev. 2010); see also Miss. Const. Art. 3, § 24 (providing a state constitutional guarantee of open courts). His version of events is plausible. Most importantly, Christmas's averments went wholly unaddressed by the State. Thus, his claim that he would have perfected his appeal in a timely manner but for the early closure of the clerk's office stands unrebutted. An appellate court is empowered to grant a criminal appeal out of time if the failure to perfect the appeal was though no fault of the appellant and justice so demands. Stokes v. State , 66 So.3d 746, 749 (Miss. Ct. App. 2011). Because this standard was met in this case, I would reverse and remand for Christmas's appeal to proceed in the circuit court.

KING, J., JOINS THIS OPINION.

      Specifically, Christmas alleged he went to the circuit clerk's office on February 12 to file his notice of appeal. The circuit clerk calculated Christmas's cost bond and directed Christmas to return with a money order in that amount. So Christmas left the clerk's office and went to the post office to get the money order. According to Christmas, he returned to the clerk's office at 4:55 p.m. He passed the employees of the office leaving. They told him the office was closed. And when Christmas tried the doors, he found them locked. He claimed it was 4:57 p.m. Christmas insisted that, but for the clerk's office closing five minutes early, he would have been able to file his notice of appeal that day. Instead, he printed off a mailing label from the U.S. Postal Service's website and dropped his notice and money order in the mail that evening.

      The appellate record is limited to the circuit-court filings and does not include the county-court record.

      Effective July 1, 2017, Mississippi Rule of Criminal Procedure 30 now governs misdemeanor appeals from county court.

      To argue mailing his notice perfected his appeal, Christmas cited Mississippi Rule of Appellate Procedure 25. But that rule is even more clear that, even though "[f]iling may be accomplished by mail addressed to the clerk or by electronic means in conformity with procedures established by the Court," such "filing shall not be timely unless the papers are received by the clerk within the time fixed for filing[.]" M.R.A.P. 25(a) (emphasis added).

      We have held the Mississippi Rules of Appellate Procedure apply in appeals from county to circuit court. Am. Inv'rs, Inc. v. King , 733 So.2d 830, 832 (Miss. 1999).

      See also McGruder v. State , 886 So.2d 1, 2 (Miss. 2003) (holding appellate courts may suspend rules " 'when justice demands' to allow an out-of-time appeal in criminal cases" (quoting Fair v. State , 571 So.2d 965, 966 (Miss. 1990) ) ).

      Ill. Cent. R.R. Co. v. McDaniel , 951 So.2d 523, 526 (Miss. 2006).

      Rule 12.03 was eliminated effective July 1, 2017, the effective date of the Mississippi Rules of Criminal Procedure, which now govern criminal appeals to circuit court from county court. See M.R.Cr.P. 30. Although Rule 12.03(A) used the word proscribed , meaning prohibited , when the rule is read in context, undoubtedly the rule should have used the word prescribed , meaning to lay down a rule . Proscribe , Webster's Ninth New Collegiate Dictionary (9th ed. 1983); Prescribe , Webster's Ninth New Collegiate Dictionary (9th ed. 1983).

      By statute, Harrison County has two judicial districts, and the clerk of each judicial district's circuit court is also the clerk of the respective county court. Miss. Code Ann. § 9-1-39 (Rev. 2014).


author: CHAMBERLIN, JUSTICE, FOR THE COURT:

text:
    Susan HARRIS v. Thomas L. HARRIS
    NO. 2016-CT-00532-SCT
    Supreme Court of Mississippi.
    February 1, 2018
    ATTORNEY FOR APPELLANT: THOMAS L. TULLOS
    ATTORNEYS FOR APPELLEE: WILLIAM B. JACOB, JOSEPH A. KIERONSKI, JR., DANIEL P. SELF, JR.
    EN BANC.
    ON WRIT OF CERTIORARI
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. Thomas Leon Harris sought a reduction in the alimony award he paid to Susan Harris, due to the Social Security benefits she was receiving that were based on his income. After review of the applicable law in Mississippi and in other states, we overrule Spalding v. Spalding , 691 So.2d 435 (Miss. 1997), to the extent that it holds an alimony reduction to be automatic for Social Security benefits derived from the alimony-paying spouse's income. Further, we fully reverse the judgment of the Court of Appeals and remand for the trial court to perform the proper analysis under Armstrong v. Armstrong , 618 So.2d 1278 (Miss. 1993), and our alimony-modification caselaw in light of the instant holding.

STATEMENT OF THE FACTS

¶ 2. Susan Harris (Susan) and Thomas Leon Harris (Leon) were married on July 14, 1979. On the grounds of irreconcilable differences, they were divorced on February 25, 2011. At the time of divorce, Leon was sixty-one years old, and Susan was sixty years old. In the Property Settlement Agreement, Leon agreed to pay $2,755 per month to Susan as periodic alimony. The Property Settlement Agreement did not address any contingency with respect to the alimony other than that it would end at Susan's remarriage or death. After the divorce, when Susan became eligible for Social Security, she filed for and obtained derivative Social Security retirement benefits in the amount of $1,035 per month, based on Leon's income record with the Social Security Administration.

¶ 3. In 2015, Susan filed a complaint to review the health provision of the Property Settlement Agreement. Leon answered, filing a Motion to Dismiss Susan's complaint under Mississippi Rule of Civil Procedure 12(b)(6), and he filed a counterclaim to reduce or terminate his alimony payments in light of the fact that Susan had begun drawing Social Security benefits based on his earnings record. Leon maintained that he should be required to pay Susan only an additional $1,720 per month, since she was already drawing $1,035 per month from Social Security as a result of his earnings record.

¶ 4. The trial court granted Leon's Rule 12(b)(6) Motion to Dismiss, and the trial court entered a judgment modifying the Property Settlement Agreement by lowering Leon's alimony payments from $2,755 to $1,720 a month, stating, without explanation, that there had been a material change in circumstances. Susan appealed on the sole issue of the trial court's modification of the Property Settlement Agreement. The Court of Appeals affirmed the trial court's decision, holding that a material change in circumstances need not be shown and assessing all costs of the appeal to Susan. Susan sought rehearing, which was denied, but we granted certiorari.

STATEMENT OF THE ISSUES

¶ 5. Certiorari was granted on two issues. Stated verbatim, the two issues are:

(1) The lower court erred when it granted Leon credit for the Social Security benefits received by Susan.
(2) The chancellor erred when he modified the Agreed Property Settlement Agreement.

For clarity, we have restated the issues:

(1) Whether the Social Security benefits received by Susan based on Leon's income constituted an automatic downward modification in the alimony granted in the Property Settlement Agreement.
(2) Whether a material change in circumstances warranted a downward modification in the alimony granted in the Property Settlement Agreement.

STANDARD OF REVIEW

¶ 6. The standard of review of an alimony award is well-settled. "Alimony awards are within the discretion of the chancellor, and his discretion will not be reversed on appeal unless the chancellor was manifestly in error in his finding of fact and abused his discretion." Armstrong v. Armstrong , 618 So.2d 1278, 1280 (Miss. 1993) (internal citation omitted). However, if we hold the "chancellor's decision manifestly wrong, or that the court applied an erroneous legal standard, we will not hesitate to reverse." Id.

ANALYSIS

(1) Whether the Social Security benefits received by Susan based on Leon's income constituted an automatic downward modification in the alimony granted in the Property Settlement Agreement.

¶ 7. On certiorari, Leon maintains that the credit he received for the Social Security benefits was not a modification of the alimony provision because Susan still received the same amount of alimony ($2,755) between his payment and her Social Security benefits. Therefore, a material change in circumstances was never needed. On the other hand, Susan argues that holding an alimony credit to be automatic for Social Security benefits claimed and paid to the dependent spouse is a "complete break" from the requirement that a material change in circumstances is required.

¶ 8. "The purpose of permanent periodic alimony is to be a substitute for the marital-support obligation." Rogillio v. Rogillio , 57 So.3d 1246, 1250 (Miss. 2011). The award of permanent periodic alimony arises from the duty of the financially independent spouse to support the financially dependent spouse. Id. "The rule of law providing for the modification of periodic alimony awards arises from the nature of alimony itself, which is based upon the inherently changing financial ability of the [financially independent spouse] to support [the financially dependent spouse] in the manner to which [he or she] is accustomed." McDonald v. McDonald , 683 So.2d 929, 931 (Miss. 1996). In Mississippi, in determining whether to modify an alimony award, the trial court should "consider the present status of the parties ...." Spradling v. Spradling , 362 So.2d 620, 623 (Miss. 1978) ; see also Ivison v. Ivison , 762 So.2d 329, 334 (Miss. 2000) (holding that the material change in circumstances of one or both parties must be shown). Further, the Court found reversible error where the trial court failed to consider the substantial increase in earnings of the appellee who sought the modification in alimony. Spradling , 362 So.2d at 623. Also, the change in circumstances must be due to an after-arising circumstance that was not anticipated by the parties at the time of the original decree. Tingle v. Tingle , 573 So.2d 1389, 1391 (Miss. 1990) ; see also Holcombe v. Holcombe , 813 So.2d 700, 703 (Miss. 2002).

¶ 9. As stated above, the Court of Appeals held that a material change in circumstances was not needed to amend the Property Settlement Agreement. It cited Spalding v. Spalding , 691 So.2d 435, 439 (Miss. 1997), stating that the "chancellor did not abuse his discretion in failing to require Leon to show a material change in circumstances because Leon's obligation to pay alimony in the amount set forth in the Agreement remains the same." Harris v. Harris , 2017 WL 2129752, at ¶ 10 (Miss. Ct. App. May 16, 2017), reh'g denied (Aug. 22, 2017), cert. granted , 2017 WL 2129752 (Miss. Nov. 16, 2017).

¶ 10. The question before us comes down to whether the Spalding Court created an exception, as argued by Leon, in which a material change in circumstances is not needed to amend the Property Settlement Agreement with regard to alimony when Social Security benefits are received based upon the independent spouse's income. The issue in Spalding was one of first impression in Mississippi, and it asked the Court to determine whether William Spalding was entitled to a credit in the amount of alimony he paid to Betty Spalding because she had begun to claim her Social Security benefits based on his income. Spalding , 691 So.2d at 436-37. The Court held that William should be credited for the amount Betty received because the amount was based on his income. Id. at 439. The Spalding Court did not consider whether the benefits constituted an unforeseeable and material change in circumstances. It merely concluded that "no valid reason exists to treat derivative Social Security benefits differently with respect to alimony or child support." Spalding , 691 So.2d at 439. The Spalding Court based its decision on two cases: Mooneyham v. Mooneyham , 420 So.2d 1072 (Miss. 1982), and Frazier v. Frazier , 455 So.2d 883 (Ala. Civ. App. 1984).

¶ 11. The Mooneyham Court concluded that Social Security disability benefits-based on the noncustodial parent's disability-that are paid to the child should be credited to the noncustodial parent's support obligations. Mooneyham , 420 So.2d at 1074. Notably, the Social Security disability benefits were paid due to the noncustodial parent's inability to work, and the noncustodial parent received no additional Social Security benefits, aside from the benefits used to cover child support. Id.

¶ 12. Under 42 U.S.C.A. § 402, once a divorced spouse reaches the age of sixty-two, he or she is entitled to Social Security benefits that are "equal to one-half of the primary insurance amount of her husband (or, in the case of a divorced wife, her former husband) for such month." 42 U.S.C.A. § 402(b)(2). Further, use of the former spouse's income to receive benefits does not affect that former spouse's benefits. The applicable statute provides:

(C) When any of such individuals is entitled to monthly benefits as a divorced spouse under section 402(b) or (c) of this title or as a surviving divorced spouse under section 402(e) or (f) of this title for any month, the benefit to which he or she is entitled on the basis of the wages and self-employment income of such insured individual for such month shall be determined without regard to this subsection, and the benefits of all other individuals who are entitled for such month to monthly benefits under section 402 of this title on the wages and self-employment income of such insured individual shall be determined as if no such divorced spouse or surviving divorced spouse were entitled to benefits for such month .

42 U.S.C.A. § 403 (emphasis added). In other words, Leon's Social Security payments are not affected by Susan's use of his income to claim her Social Security benefits. Turning to Mooneyham , the noncustodial parent's only Social Security benefits were being received by the child. If, for instance, Leon had received his Social Security benefits and sent them or assigned them to Susan, the instant case would be on point with Mooneyham . However, Spalding and the instant case are materially distinguishable from Mooneyham , and the Spalding Court's reliance on Mooneyham is misplaced.

¶ 13. As stated above, the Spalding Court also relied on a decision from Alabama. See Frazier , 455 So.2d at 883. On an issue of first impression, the Frazier Court decided that an alimony credit should be received by the independent spouse, when the dependent spouse uses the independent spouse's income to claim Social Security benefits. We expound upon the basis for the Frazier Court's holding below.

¶ 14. First, like the Spalding Court, the Frazier Court considered Alabama caselaw that credited Social Security disability benefits to child-support obligations, as in Mooneyham . Frazier , 455 So.2d at 883. And, as explained above, the credit received for Social Security disability benefits in child-support cases is materially different from the credit sought here. Therefore, the child-support cases are materially distinguishable from Frazier , Spalding , and the instant case.

¶ 15. Second, it considered an Alabama case, Swindle v. Swindle , 429 So.2d 601, 603 (Ala. Civ. App. 1983), in which a husband was bound by the couple's property settlement to pay the mortgage on the house, but the court held that his agreement was satisfied when, due to a fire, the insurance company paid the mortgage. The court reasoned that "[t]here was no evidence of any duty which had been imposed upon the husband to furnish such a fire policy." Id. And the court concluded, "It makes no difference that the mortgage was satisfied by the insurance payment from the policy so furnished by the husband for, under the circumstances, payment by the insurer to the mortgagee was the legal equivalent of the husband's satisfaction of that debt." Id.

¶ 16. As with the Social Security disability benefits credited for child support, the husband in Swindle did not receive additional insurance payments, other than the insurance payments used to pay the mortgage. Further, the insurance payments were due to the husband's attainment and maintenance of the insurance policy. However, in the case of an alimony credit for Social Security benefits, the Social Security benefits belong to the dependent spouse, and although the amount is derived from the other spouse's income, the other spouse's Social Security benefits are not affected.

¶ 17. Finally, Frazier considered a Georgia case, Horton v. Horton , 219 Ga. 177, 132 S.E.2d 200 (1963), stating, "It has been decided that, inasmuch as the amount of alimony required to be paid is determined somewhat by income, Social Security benefits should be credited in discharging an obligation to pay periodic alimony."

Id. at 885. However, the issue in Horton was the calculation of alimony and that calculation included child-support payments . Horton , 132 S.E.2d at 200-201. More specifically, the court decided that the husband's Social Security disability benefits would be credited toward the child-support obligation. Id. at 201. Therefore, Horton is directly in line with Mooneyham and is materially distinguishable from Frazier , Spalding , and the instant case. Thus, considering the analysis of the Frazier Court, the Spalding Court's reliance on Frazier also is misplaced. ¶ 18. Further, Georgia subsequently spoke to our specific issue. See Bell v. Bell , 257 Ga. 172, 356 S.E.2d 869, 869 (1987). The Bell Court did not apply a credit to alimony benefits when the dependent spouse's Social Security benefits were derived from the independent spouse's income. Bell , 356 S.E.2d at 869. The Bell Court's reasoning is instructive:

A divorced wife is entitled, pursuant to 42 U.S.C.A. § 402(b)(1), to insurance benefits if she fulfills the requirements set forth in 42 U.S.C.A. § 402. Thus, under federal law the insurance benefits belong to the appellee. We have recognized that a wife's "efforts toward the furtherance of her husband's career [contribute] to the accumulation of ... retirement benefits, and that [the] efforts [are] made with the expectation that [the] retirement benefits [will] provide her with some measure of personal security and future well-being." Courtney v. Courtney , 256 Ga. 97, 99, 344 S.E.2d 421 (1986).

Id. Like Georgia, other states, such as South Carolina, Tennessee, and West Virginia, require a showing of a material or substantial change in circumstances to modify alimony due to the start of Social Security benefits. Serowski v. Serowski , 381 S.C. 306, 672 S.E.2d 589, 593 (S.C. Ct. App. 2009) (requiring a substantial change in circumstances); Harris v. Harris , 2004 WL 2607541, at *5 (Tenn. Ct. App. Nov. 16, 2004) (requiring an unforeseen material change in circumstances); Phillips v. Phillips , 184 W.Va. 727, 403 S.E.2d 744 (1991) (requiring a substantial change in circumstances).

¶ 19. Today, we hold that Mississippi falls in line with these jurisdictions. Social Security benefits derived from the other spouse's income do not constitute a special circumstance triggering an automatic reduction in alimony. When a spouse receives Social Security benefits derived from the other spouse's income, the trial court must weigh all the circumstances of both parties and find that an unforeseen material change in circumstances occurred to modify alimony. See Ivison , 762 So.2d at 334 (holding that the circumstances of both parties are considered to determine whether there was a material change); see also Tingle , 573 So.2d 1389, 1391 (Miss. 1990) (holding that change in circumstances must be after-arising and unanticipated). To the extent that Spalding states otherwise, it is overruled.

(2) Whether a material change in circumstances warranted a downward modification in the alimony granted in the Property Settlement Agreement.

¶ 20. Leon certainly may be entitled to a reduction in alimony, but it is not an automatic reduction due to Susan's Social Security benefits based on his income. The trial court is required to consider the Armstrong factors in its finding when it modifies a periodic alimony award. Armstrong v. Armstrong , 618 So.2d 1278, 1280 (Miss. 1993) ; see also Steiner v. Steiner , 788 So.2d 771, 776 (Miss. 2001) ("The chancellor must consider what has become known as the Armstrong factors in ... deciding whether to modify periodic alimony, comparing the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree."). The trial court also must consider the financial positions of both parties and whether the change in circumstances was due to an after-arising circumstance that was not anticipated by the parties at the time of the original decree. See Ivison , 762 So.2d at 334 ; Tingle , 573 So.2d at 1391 ; Spradling , 362 So.2d at 623.

¶ 21. Although the trial court was following the law under Spalding , because we overrule Spalding to the extent that it holds an alimony reduction to be automatic for Social Security benefits derived from the alimony-paying spouse's income, we hold the trial court's failure to consider the Armstrong factors, the financial positions of both parties, and the foreseeability of Social Security payments to be reversible error. Thus, we reverse the judgment of the Court of Appeals, including the assessment of costs on appeal, and we remand the case to the trial court to perform the proper analysis in light of our clarification that no automatic reduction in alimony is triggered by Social Security benefits derived from the alimony-paying spouse's income. To be clear, the instant holding separates Social Security benefits that affect alimony from Social Security benefits that affect child support, and the caselaw regarding Social Security benefits that affect child support is not changed by this holding.

¶ 22. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL AND BEAM, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.


author: WALLER, CHIEF JUSTICE, FOR THE COURT:

text:
    Jason HALL a/k/a Jason Ladell Hall a/k/a Jason L. Hall v. STATE of Mississippi
    NO. 2017-CA-00226-SCT
    Supreme Court of Mississippi.
    February 1, 2018
    ATTORNEYS FOR APPELLANT: SAMUEL STEVEN McHARD, MARCUS A. McLELLAND
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LEE DAVIS THAMES, JR.
    BEFORE WALLER, C.J., CHAMBERLIN AND ISHEE, JJ.
   WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. The sole issue presented is the interpretation of Mississippi Code Section 11-44-7, which provides the method for determining attorney's fees in a wrongful conviction and imprisonment case. The trial court held that the statute sets out an escalation of fees tied to each stage of the case, capping the fee award at 25%. We agree.

FACTS AND PROCEDURAL HISTORY

¶ 2. This Court reversed and vacated Jason Hall's conviction of accessory after the fact. Hall v. State , 127 So.3d 202 (Miss. 2013) ( Hall I ). Hall then sued the State under the Wrongful Conviction and Imprisonment Act, Mississippi Code Section 11-44-1, et seq . Hall appealed the grant of summary judgment in favor of the State, and this Court reversed the trial court's judgment and remanded the matter for further proceedings. Hall v. State , 187 So.3d 133 (Miss. 2016) ( Hall II ). Hall subsequently was awarded $126,507.00 for the wrongful incarceration pursuant to Mississippi Code Section 11-44-7(2)(a). At a subsequent hearing to determine attorney's fees, Hall's attorneys were granted $31,626.75-calculated at 25% of the amount awarded to Hall. Hall argues on appeal that the trial court misconstrued the statute for calculating the attorney's fee award.

STANDARD OF REVIEW

¶ 3. "Statutory interpretation is a matter of law which this Court reviews de novo." Lutz Homes, Inc. v. Weston , 19 So.3d 60, 62 (¶ 8) (Miss. 2009).

DISCUSSION

¶ 4. The interpretation of the following statute is at issue:

If the court finds that the claimant was wrongfully convicted and incarcerated pursuant to subsection (1) of this section, the court shall award: ... (b) Reasonable attorney's fees for bringing a claim under this chapter calculated at ten percent (10%) of the amount awarded under paragraph (a) of this subsection for preparing and filing the claim, twenty percent (20%) for litigating the claim if it is contested by the Attorney General, and twenty-five percent (25%) if the claim is appealed, plus expenses. These fees shall not be deducted from the compensation due the claimant, nor is counsel entitled to receive additional fees from the client for a claim under this section.

Miss. Code Ann. § 11-44-7(2)(b) (Rev. 2012).

¶ 5. For statutory interpretation, the initial inquiry is whether the statute at issue is ambiguous. Miss. Ins. Guar. Ass'n v. Cole ex rel. Dillon , 954 So.2d 407, 412-13 (¶ 20) (Miss. 2007). "If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction." Lawson v. Honeywell Int'l, Inc. , 75 So.3d 1024, 1027 (¶ 7) (Miss. 2011) (citations omitted). However, "[o]ur primary goal in interpreting statutes is 'to adopt that interpretation [that] will meet the true meaning of the Legislature.' " Legislature v. Shipman , 170 So.3d 1211, 1215 (¶ 14) (Miss. 2015). "Our duty is to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case." Corp. Mgmt., Inc. v. Greene Cty. , 23 So.3d 454, 465 (¶ 26) (Miss. 2009).

¶ 6. Hall argues that the word "and ," which is used as the coordinating conjunction to join the three phrases, operates in the conjunctive, thereby requiring the three percentages to be added together-should each condition be met (i.e. , the claim is filed, litigated, and appealed). The State in response states that the statute lays out a "three-tier scenario" with increased percentages according to the stage at which a case was settled or paid: filed, 10%; litigated, 20%; and appealed, 25%.

¶ 7. "This Court frequently looks to dictionaries to ascertain the meaning of a word in its common or popular sense." Lawson , 75 So.3d at 1028 (¶ 9). One of the dictionary definitions of the word "and " is "used to connect alternatives." And , Random House Webster's Unabridged Dictionary 1989 (2d ed. 2001); see also Ortho-McNeil Pharm., Inc. v. Mylan Labs., Inc. , 520 F.3d 1358, 1362 (Fed. Cir. 2008) (citing Webster's Third New International Dictionary (2002) ) ("[T]his court notes that dictionary definitions of and , while most often listing the additive sense as the most common usage of the term, also show usage of the term to connote alternatives."). The use of the word "if " to create conditional clauses-such as, "if the claim is appealed"-along with the lack of any other potentially additive language, reflects the Legislature's intent to use "and " to connect alternatives rather than aggregate numbers. In other words, the word "and " creates a sliding scale for calculating the fee award. As a result, the plain language of the statute does not require the percentages to be added together if the subsequent conditions are met.

CONCLUSION

¶ 8. Mississippi Code Section 11-44-7(2)(b) creates a sliding scale with increased percentages at each stage of the case (i.e. , when the claim is filed, litigated, and appealed). A plain reading of the statute does not aggregate those percentages for calculating the attorney's fee award. Accordingly, this Court affirms the judgment of the Circuit Court of Forrest County.

¶ 9. AFFIRMED.

RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      The trial court also ordered the State to pay attorney expenses of $3,460.90; that award is not contested by either party on appeal.

      The "and " to which Hall refers is located in the statute here: "contested by the Attorney General, and twenty-five percent (25%) ...." Miss. Code Ann. § 11-44-7(2)(b) (emphasis added).


text:
    Rothell CHAMBLISS a/k/a Rothel Chambliss, Appellant/Petitioner v. STATE of Mississippi, Appellee/Respondent
    No. 2016-CT-00316-SCT
    Supreme Court of Mississippi.
    December 12, 2017
    ORDER
   MICHAEL K. RANDOLPH, PRESIDING JUSTICE FOR THE COURT

This matter is before the Court on the Petition for Writ of Certiorari filed by Rothell Chambliss. The Court has considered the petition and finds that it should be denied.

IT IS THEREFORE ORDERED that the Petition for Writ of Certiorari filed by Rothell Chambliss is denied.

SO ORDERED, this the 12 day of December, 2017.

TO DENY: WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM, AND CHAMBERLIN, JJ.

TO GRANT: KITCHENS, P.J., AND KING, J.

SEPARATE WRITTEN STATEMENT OBJECTING TO THE ORDER BY KITCHENS, P.J., JOINED BY KING, J.

NOT PARTICIPATING: ISHEE, J.

KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶ 1. I would grant Rothell Chambliss's Petition for a Writ of Certiorari . Chambliss was indicted for burglary of a dwelling in Jefferson County, Mississippi. During voir dire , the trial judge inquired whether any of the venire members knew the defendant. William Marks, Prospective Juror Number 7, after explaining that he hadn't known who the defendant would be when he came to court that day, went on to say, "Well, I'm not sure if it's been a year and a half, two years ago I had to be here in court to testify against [Chambliss] for breaking in ...." It was the prosecutor who instantly recognized the extreme hazard of the prospective juror's revelation that Chambliss, in the fairly recent past, had been in the same courthouse under an accusation of the very same kind of felony for which he was about to be tried. The assistant district attorney, Daniella Shorter, instantly interrupted the venireman in mid-sentence with, "Your Honor, may we approach?"

¶ 2. This prompted the trial judge to say, "You don't need to say anything else. You don't think you could be fair?" Mr. Marks responded, "Well, I don't think it would be-I couldn't say I wouldn't lean one way or the other." The court then said to him, "Well we need jurors that will be right on the 50 yard line and won't lean one way or the other. Thank you, sir." The court, with apparent oblivion to the likelihood that Marks's statement had contaminated the entire panel, proceeded with his part of the voir dire examination.

¶ 3. Upon the court's tendering the panel to the State for its voir dire examination, defense counsel Pamela Ferrington approached the bench, and, outside the hearing of the venire, moved for a mistrial on the following grounds: "Number 7 [Marks] said that he had been up here a year and a half ago when he had to testify against Rothell [Chambliss]. Everybody laughed. And we're ready to go and everything but not with this jury." There was no opposition to the motion voiced by the prosecutor.

¶ 4. Apparently deeming the incident insignificant, the trial judge said:

I don't see ... there was no explanation, there was no charge I think that in a situation where ... I think in a situation where there was any indication, I would consider your request more harmful, but in this situation, the Court finds that there was nothing said that would create or cause any prejudice to the defendant. There was no mention of what kind of case it was, civil, criminal or anything else. Of course, the record will indicate what was said, but the juror merely indicated that he was up here testifying in a case that Mr. Chambliss was involved in, and that's all that was said and I ... I don't believe that there had been any prejudice that has been created that would inhere against the defendant, so I'll overrule your motion.

¶ 5. Defense counsel attempted to provide clarification for the court as follows: "Your Honor, I don't mean to argue with you, but I wanted to make it clear that what I heard was that he did specifically say for breaking in my place or whatever, but it's the same kind of case that he specifically said that." The judge went on to say that he had heard what was said, adding, "[h]e was stopped immediately." The defense lawyer asked, "[c]an we see what the recorder picked up?" The judge reiterated, "I overrule your motion, Counsel." Defense counsel was not allowed to have the court reporter's tape recording of Marks's comment played for the judge.

¶ 6. Given the circumstances and the context in which Mr. Marks's comment occurred, the following statement by the trial judge to the venire members, during voir dire, is significant:

Ladies and gentlemen of the jury, Jefferson County, thank goodness, and the counties that I preside in are relatively small counties and folks know each other and I'm sure that there are many of you who know the defendant or members of his family; is that correct?

(Emphasis added.) It was against that backdrop that the court began his quest to ascertain which, if any, of the venire members knew the defendant. The first prospective juror to respond was Marks, Prospective Juror Number 7. Voir dire examination by the State revealed that nine of the prospective jurors, including Marks, had been victims of burglaries. It was the prosecutor who later observed, verbally and in the presence of the entire venire, that Marks had been the victim of a house burglary.

¶ 7. Without objection, Marks was challenged for cause by defense counsel. Her challenge was granted. After all the challenges for cause and peremptory challenges had been made and ruled upon, defense counsel renewed the motion for a mistrial "... based on Juror Number 7's comments...." The court responded:

Well, I think the Court has covered that. With respect to the motion you made at the end of voir dire, it was not a contemporaneous objection; however, at the end of voir dire ... I didn't find after the entire voir dire ... I do find that there was no harmed [sic] caused. The witness testified he had been a witness of a case. There was no indication of a conviction or anything of that nature, so I find there was no prejudice that would inhere to the defendant based on the comments made by Juror Number 7. I again overrule your motion.

¶ 8. At least two of the venire members who had identified themselves as burglary victims-Prospective Jurors 27 and 28-ended up on the jury.

¶ 9. In the State's opening statement, the prosecutor began by saying, "Mr. Rothell Chambliss broke and entered the dwelling house of Michael and Patricia Dubois...." (Emphasis added.) In her summation, the prosecutor correctly recited the elements of burglary, which include "breaking and entering." She went on to say, "... he broke and entered that dwelling house...." (Emphasis added.) As she was entitled to do, during her argument, the prosecutor repeatedly emphasized that Chambliss had "broken" into the house. Of course, the jury was instructed by the trial court that the defendant's breaking into the house was one of the things the State had to prove beyond a reasonable doubt in order for the jury to convict.

¶ 10. In his post-trial motion for a new trial, or alternatively for a judgment notwithstanding the verdict (JNOV), Chambliss again raised the issue of Marks's improper comment during voir dire examination and assigned it as error. That motion was overruled:

Also, for the record, it was never pointed out to me that this witness ... this particular juror had been a witness before in any case and the Court had no idea of that before the trial began and the juror was actually asked that question and answered it truthfully, and that's what you would expect the juror to do, but I don't think that juror said anything that would taint the other jurors or have an effect whatsoever, and the Court hereby finds that there was no prejudice resulting from anything that he said.

¶ 11. I would grant Chambliss's Petition for Writ of Certiorari . Judge Pickard never instructed the jury to disregard the comment or undertook any sort of remedial action. This Court has affirmed denial of a mistrial following an improper comment by a venireperson because, after an objection from the defense, the trial court "instructed the jury to disregard the statement." Davis v. State , 530 So.2d 694, 697 (Miss. 1988).

¶ 12. This Court, in Grayson v. State , affirmed the trial court's denial of a mistrial after an improper remark by a venireperson, even though the trial court did not instruct the jury to disregard the comment. Grayson v. State , 806 So.2d 241, 253 (Miss. 2001). The Grayson Court held that because "the trial judge quickly interrupted [the venireperson's] statement" and because "it did later ask whether they could be fair, and the prospective members indicated that they could be," that the improper remark "was not so prejudicial as to warrant a mistrial, and the trial court did not abuse its discretion in denying that motion." Id. at 253. But in Grayson , the venireperson informed the trial court that he would be "automatically inclined to give the death penalty" because "apparently he's [the defendant is] mentally off ...." Id. (emphasis in original). And in Evans v. State , 725 So.2d 613, 649 (Miss. 1997), this Court affirmed the trial court's denial of a mistrial, despite the trial court's having failed to admonish the jury, after a prospective juror said "that she would be uncomfortable and unable to serve as a juror because she found 'it very difficult to be in the same room with [Evans] ....' "

¶ 13. Here, Marks told the venire that "a year and a half, two years ago," he had testified against Chambliss "for breaking in." An unlawful breaking is the first element of the crime of burglary. We cannot know what prejudicial effect the venireperson's statement had on the jurors before any evidence was presented in support of the State's case. The improper comments made by venirepersons in Grayson and Evans did not speak to specific elements of the crimes for which the defendants were charged.

¶ 14. Judge Pickard correctly observed that Jefferson County is a small jurisdiction where "folks know each other." No one asked the prospective jurors how many of them knew other members of the venire; but it is inevitable, in one of our state's most sparsely populated counties, that many, if not all, the persons summoned for jury duty that day knew each other, including Marks, who was sitting on the first or second row in a very small courtroom. Regardless of whether some or all of the others knew Marks, he was their peer; they were all in the same boat, having been called for jury service. Some of them could identify with him even more, because they, too, had been burglary victims.

¶ 15. As she made the brief argument allowed by the court, defense counsel stated without contradiction that, in reaction to Marks's having told the judge that he'd recently been in that very court to testify against her client "for breaking in," "everybody laughed ." The prosecutor did not disagree with her description of the venire members' spontaneous reaction to Marks's statement that he had been to court to testify against Chambliss in "the same kind of case."

¶ 16. It seems likely that the trial court did not fully comprehend what Marks had said. His statement, "... the record will indicate what was said, ..." may indicate an incomplete understanding of the striking relevance that Marks's statement had to the case at hand-another accusation that Chambliss had "broken in" to someone else's property in Jefferson County. Any uncertainty about Marks's exact verbiage would have been clarified if the judge had followed the defense attorney's practical and timely suggestion "to see what the recorder picked up[.]"

¶ 17. But the observation by defense counsel that "everybody laughed" in response to Marks's very public revelation that Chambliss previously had been in the same sort of fix provides strong indication that the prospective jurors, who were seated in very close proximity to Mr. Marks, did hear and understand precisely what had been said. What is abundantly clear is that the prosecutor heard Marks clearly, as is evidenced by her having instantly risen to interrupt and to bring to an abrupt halt what she recognized as an inflammatory and prejudicial remark.

¶ 18. Neither the trial court nor we can determine, with any degree of reliability, whether Marks's comment prejudiced any one or more of Marks's fellow Jefferson Countians who ultimately served on the jury that convicted Chambliss, at least two of whom, like Marks, had themselves been burglary victims.

¶ 19. Accordingly, the trial court erred in overruling Chambliss's motion for a mistrial.

At the very least, the judge, sua sponte, should have admonished the other venire members to disregard Marks's damaging revelation about the person over whom twelve of them were about to sit in judgment. Following such admonition, the court should have obtained their solemn commitment that they would do so.

¶ 20. I would grant certiorari .

KING, J., JOINS THIS SEPARATE WRITTEN STATEMENT.