author: ISHEE, J.,

text:
    Larry Wayne McKENZIE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01603-COA.
    Court of Appeals of Mississippi.
    Sept. 22, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied March 18, 2010.

      Larry Wayne McKenzie, pro se.
    Office of the Attorney General by Deirdre McCrory, attorneys for appellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Larry McKenzie filed a motion for post-conviction relief in the Circuit Court of Lauderdale County. The circuit court dismissed McKenzie’s motion, finding that he had previously filed two motions for post-conviction relief that had been denied; therefore, his present motion was procedurally barred as a successive writ. McKenzie timely appealed from the circuit court’s dismissal of his motion. He argues that the offense he committed did not occur in Lauderdale County; therefore, the circuit court lacked jurisdiction to accept his guilty plea. Finding no error, we affirm the circuit court’s dismissal of McKenzie’s motion for post-conviction relief.

DISCUSSION

¶ 2. On appeal of a circuit court’s dismissal of a motion for post-conviction relief, we will not disturb the court’s factual findings unless they are found to be clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004) (citing Pace v. State, 770 So.2d 1052, 1053(¶ 4) (Miss.Ct.App.2000)). However, we will review questions of law under a de novo standard. Id.

¶ 3. An order from a circuit court dismissing or denying a party’s motion for post-conviction relief is a final judgment and is conclusive unless reversed. Miss. Code Ann. § 99-39-23(6) (Supp.2008). Such an order is a bar to a second or successive motion for post-conviction relief. Id. Exceptions to the procedural bar allow a prisoner to file a second or successive post-conviction relief motion in the following instances: (1) in cases of “supervening mental illness before the execution of a sentence of death,” (2) if there “has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States that would have actually adversely affected the outcome of his conviction or sentence,” (3) if the prisoner “has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence,” or (4) if the prisoner’s “sentence has expired or his probation, parole or conditional release has been unlawfully revoked.” Id.

¶ 4. McKenzie has not shown that any of the statutory exceptions apply to the procedural bar. He previously filed two motions for post-conviction relief, the denials of which were affirmed by this Court. See McKenzie v. State, 946 So.2d 392 (Miss.Ct.App.2006); McKenzie v. State, 856 So.2d 344 (Miss.Ct.App.2003). In the first case that McKenzie appealed to this Court, we found that his present argument — that the Circuit Court of Lauderdale County lacked jurisdiction to accept his guilty plea — was without merit. McKenzie, 856 So.2d at 351(¶ 21). In both cases, McKenzie filed a petition for writ of certiorari, and in both cases, the supreme court denied his petitions. See McKenzie v. State, 947 So.2d 960 (Miss.2007); McKenzie v. State, 864 So.2d 282 (Miss.2004).

¶ 5. McKenzie’s motion for post-conviction relief was procedurally barred because it was untimely filed and because it was a successive writ. Accordingly, we find that the circuit court properly dismissed McKenzie’s motion for post-conviction relief. This issue is without merit.

¶ 6. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

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


source: Caselaw Access Project

author: BARNES, J„

license: Public Domain

text:
    Yance AGENT, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00111-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.

      Yance Agent, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   BARNES, J„

for the Court:

¶ 1. Yance Agent appeals the denial of his motion for post-conviction relief by the Circuit Court of Pearl River County. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On September 5, 2006, Agent pleaded guilty to statutory rape and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with two hundred and forty-two days to be served in custody and the remaining fourteen years and one hundred twenty-two days to be served under post-release supervision (PRS). The sentence gave Agent credit for time served, and he was immediately released to PRS. One of the terms of Agent’s PRS was that he was not to possess or consume any alcoholic beverages or mood-altering drugs. Further, as an additional requirement of his PRS, Agent successfully completed the Alcohol/Chemical Treatment Series (A.C.T.S.).

¶ 3. However, on May 22, 2007, Agent’s probation officer, Charlotte Penton, filed an affidavit alleging that Agent had violated the terms of his PRS by testing positive for methamphetamine and marijuana on February 1, 2007, and testing positive for methamphetamine, marijuana, and amphetamines on March 12, 2007. A revocation hearing was held on July 5, 2007. At the hearing before the circuit court, Agent confessed that the drug test results were accurate and that he did violate the terms of his PRS. The circuit court judge revoked Agent’s PRS and remanded him to the MDOC to serve the remainder of his entire sentence. Agent was also ordered to complete an intensive drug and alcohol program.

¶ 4. On December 10, 2008, Agent filed a pro se motion for post-conviction relief. This motion was summarily denied by the circuit court on December 19, 2008. Agent timely appealed the denial of his motion. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. Absent a finding that the “ruling was clearly erroneous[,]” a circuit court’s denial of a motion for post-conviction relief will not be reversed on appeal. Jones v. State, 994 So.2d 829, 830 (¶ 4) (Miss.Ct.App.2008) (citing Kirksey v. State, 728 So.2d 565, 567 (¶ 8) (Miss.1999)). “However, when issues of law are raised, the proper standard of review is de novo.” Steele v. State, 991 So.2d 176, 177 (¶ 3) (Miss.Ct.App.2008) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

I. Whether the Circuit Court Erred by Denying Agent a Fundamentally Fair Revocation Hearing in Violation of the Fifth and Fourteenth Amendments to the United States Constitution

¶ 6. Agent contends that he was denied due process as he was not given adequate notice of his revocation hearing, which would have allowed him to bring witnesses or evidence showing mitigating circumstances. “The revocation of probation or post-release supervision involves a loss of liberty and requires that the offender be afforded due process.” Ivory v. State, 999 So.2d 420, 427 (¶ 18) (Miss.Ct.App.2008) (citing Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Thus, a probationer “is constitutionally entitled to a preliminary [revocation] hearing” in order to determine if there is probable cause “to hold the probationer for a final decision concerning revocation.” Hubbard v. State, 919 So.2d 1022, 1027 (¶ 16) (Miss.Ct.App.2005) (citing Riely v. State, 562 So.2d 1206, 1210 (Miss.1990)). The minimum due-process requirements for a probation-revocation hearing are:

(1) written notice of the claimed violations of probation; (2) disclosure to the probationer of the evidence against him; (3) an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing such confrontation); (5) a neutral and detached hearing body or officer; and (6) a written statement by the fact-finder as to the evidence relied on and reasons for revoking the probation.

Loisel v. State, 995 So.2d 850, 852 (¶ 7) (Miss.Ct.App.2008) (quoting Payton v. State, 845 So.2d 713, 719 (¶ 22) (Miss.Ct.App.2003)). Loisel is factually similar to the case before us. Like Agent, Eugene Loisel admitted to the circuit court at his revocation hearing that he had violated his probation twice and had been discharged from the MDOC’s Restitution-Correctional Center in Pascagoula, Mississippi. This Court found “that this was an adequate basis for the circuit court to determine that he [had] violated his probation.” Id. at 853 (¶ 9). At Agent’s revocation hearing, the circuit court asked:

THE COURT: So, Yance, you’re denying that the test was done and you tested positive; is that correct?
THE DEFENDANT: No, sir. I’m not denying that.
THE COURT: Well, then you’ve given a chance to waive your hearing, you admitted to the charges, I mean.
THE DEFENDANT: Right, sir. I was looking for you to give me a chance to try to better myself without sending me up that road.
THE COURT: Well, you were given that chance by Judge Eubanks. The only choice I’ve got is if. you violate your terms and conditions I’ve got to revoke you. So do you have anything you want to offer that it’s untrue or incorrect.
THE DEFENDANT: No, sir. Everything is true.

¶ 7. Thus, we find no indication that the minimum requirements for a revocation hearing were not met in this case. Penton filed a written affidavit alleging that Agent had violated the terms of his probation. A revocation hearing was held where the charges were read to Agent and he was given an opportunity to respond to the charges. Although Agent claims that he could have produced witnesses which would have attested to the fact that he attempted to get help for his drug addiction, the fact remains that he failed to do so. Further, as the circuit court aptly noted in its denial of Agent’s motion for post-conviction relief, the only evidence that Agent claims he would have presented was merely regarding his rehabilitation efforts, not to refute his violation of the terms of his PRS. Accordingly, this issue is without merit.

II. Whether Agent Was Denied Effective Assistance by his Probation Officer

¶ 8. Agent contends that a worker in the A.C.T.S. program, Kathy Mason, led him to believe that Penton, in speaking to the circuit court regarding his violation of PRS, had recommended that Agent be placed in the MDOC’s Regimented Inmate Discipline (RID) program. To support this contention, Agent submitted a letter, addressed to him from Mason, which corroborated his claim. However, as he was not placed into the RID program, Agent asserts that the probation officer failed to advocate his cause effectively at his hearing.

¶ 9. We find that this argument by Agent is without merit. The Mississippi Supreme Court has recognized that a probation officer does not hold the same position as legal counsel with respect to a defendant. Although dealing with a mental health counselor rather than a probation officer, the supreme court in Mohr v. State, 584 So.2d 426, 429 (Miss.1991), acknowledged that:

A probation officer is not in the same posture with regard to either the accused or the system of justice as a whole. Often he is not trained in the law, and so is not in a position to advise the accused as to his legal rights. Neither is he a trained advocate, skilled in the representation of the interests of his client before both police and courts. He does not assume the power to act on behalf of his client by virtue of his status as adviser, nor are the communications of the accused to the probation officer shielded by the lawyer-client privilege. .... A probation officer simply is not necessary, in the way an attorney is, for the protection of the legal rights of the aecused[.]

(Quoting Fare v. Michael C., 442 U.S. 707, 722, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)). Consequently, a claim of ineffective assistance simply would not be applicable to a defendant’s probation officer.

¶ 10. Agent further claims that the court was “duty bound” to appoint him counsel for his revocation hearing, or at a minimum, advise him of his right to be represented by counsel. However, there is nothing in the record to show that Agent ever requested counsel prior to or during his hearing. Moreover, “[tjhere is no per se right to appointed counsel at a revocation hearing.” Henderson v. State, 12 So.3d 26, 30 (¶ 11) (Miss.Ct.App.2009) (citing Riely, 562 So.2d at 1209). The general presumption is that counsel should only be provided in revocation cases that are “complex or otherwise difficult to develop.” Id. Here, Agent admitted to the court that he had violated the terms of his PRS. As such, we find that the issues presented at Agent’s revocation hearing were neither difficult nor complex; therefore, this issue is without merit.

III. Whether the Circuit Court Erred in Sentencing Agent to a Lengthy Term of Imprisonment Rather Than a Less Drastic Punishment

¶ 11. After Agent admitted that he twice violated the terms of his PRS, the circuit court judge revoked all of Agent’s suspended sentence. Agent argues that the circuit court had the discretion not to revoke his probation, and that it was unjust to sentence him to such a lengthy term of imprisonment rather than a lesser punishment. Mississippi Code Annotated section 47-7-37 (Supp.2009) states that if a probationer is found to have violated the terms of his PRS:

[T]he court, in termtime or vacation, shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.

(Emphasis added). Thus, a judge is vested with the discretion to revoke and reinstate a defendant’s entire suspended sentence. Consequently, although Agent is correct that the circuit court judge had the discretion to impose a lesser sentence, the judge also has the authority to reinstate the entire sentence.

¶ 12. Additionally, Agent attempts to argue that his violations were not “per se” crimes; rather, they were a result of a “disease,” namely Agent’s drug addiction. Thus, he argues that the court should have imposed a sanction other than imprisonment. However, a conviction is not necessary in order to revoke probation. Loisel, 995 So.2d at 853 (¶ 11) (citing Younger v. State, 749 So.2d 219, 222 (¶ 12) (Miss.Ct.App.1999)). Rather, “[probation may be revoked upon a showing that the defendant ‘more likely than not’ violated the terms of his probation.” Id. (quoting Younger, 749 So.2d at 222 (¶ 12)). Agent admitted that he had twice violated a specific term of his PRS, giving the circuit court judge the discretion to revoke and impose any portion or all of his suspended sentence. Therefore, we find no abuse of discretion in the circuit court’s revocation and imposition of Agent’s entire sentence.

¶ 13. As this issue is without merit, we find that the circuit court’s denial of Agent’s motion for post-conviction relief was not in error and affirm.

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

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


author: BARNES, J.,

text:
    Nolan WILLIAMS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00092-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.

      Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. On November 18, 2008, Nolan Williams, Jr. was convicted by a jury in the Pike County Circuit Court of unlawful possession of at least one-tenth but less than two grams of cocaine with intent to distribute. As Williams had been previously convicted of the same crime in 2004, he received an enhanced sentence under Mississippi Code Annotated section 41-29-147 (Rev.2005) of thirty-five years, with twenty-three years to be served in the custody of the Mississippi Department of Corrections (MDOC), the remaining twelve years suspended, and five years of post-release supervision. He was also fined $5,000. He now appeals, claiming that the verdict is against the overwhelming weight of the evidence. Finding no reversible error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On August 20, 2007, during an undercover drug investigation, Deska Varna-do, a narcotics agent with the McComb Police Department, purchased crack cocaine from Williams at the Economy Inn in McComb, Mississippi. Agent Varnado and his confidential informant did not know Williams’s name, but the informant stated that he thought it was “Nolan.” As part of his ongoing investigation, Agent Varnado continued to monitor Williams’s activity. On August 24, 2007, Eddie Isaac, Williams’s brother-in-law, picked Williams up at the Economy Inn, and they left in Isaac’s car. Agent Varnado requested police assistance to follow the duo. Officer Lyle Tadlock responded, and upon observing that Isaac was not wearing his seat belt, he initiated a traffic stop. Agent Varnado immediately arrived upon the scene and approached the vehicle. He noted that Williams, who was the passenger, had an open beer can; so the officer asked both men to step out of the vehicle. The men complied, and Officer Tadlock proceeded to perform a pat-down search of Williams, while Agent Varnado attended to Isaac. Agent Varnado then noticed, in plain view, a bag of crack cocaine on the floorboard of the car on the driver’s side. At about the same time, Officer Tadlock discovered a small bag in the waistband of Williams’s pants. The bag contained a small amount of crack cocaine, valued at approximately $20. Additionally, Williams had over $800 in cash on his person; Isaac had approximately $750. Both men were taken into custody. Agent Varnado interviewed Williams, and after signing a waiver of his Miranda rights, Williams admitted that the cocaine was his but that it was not for sale, but rather, for his personal use.

¶ 3. Williams was indicted pursuant to Mississippi Code Annotated section 41-29-139 (Rev.2005) for unlawful possession of at least one-tenth but less than two grams of cocaine with intent to distribute, and a jury trial was held in the Pike County Circuit Court on November 18, 2008. Pri- or to trial, it was discovered that Williams had previously pleaded guilty to the same offense in 2004. Williams filed a motion in limine to prevent the introduction of this prior conviction into evidence. However, the circuit court denied the motion finding that the evidence, while admittedly prejudicial, was admissible under Mississippi Rule of Evidence 404(b) to prove intent. Further, Williams’s original indictment was amended to reflect his previous conviction, which subjected him to an enhanced sentence under section 41-29-147. This section states that:

Except as otherwise provided in Section 41-29-142, any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.
For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this article or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs.

Miss. Code Ann. § 41-29-147.

¶ 4. Williams was convicted and, on November 21, 2008, sentenced under the enhancement statute to thirty-five years: twenty-three years to be served in the custody of the MDOC, with the remaining twelve years suspended, and five years of post-release supervision, and ordered to pay a $5,000 fine. On November 26, 2008, Williams filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The circuit court denied the motion in two separate orders: one dated December 4, 2008, and filed on December 9, 2008, and one dated December 31, 2008, and filed on January 12, 2009. Williams also filed his notice of appeal on January 12, 2009, which was more than thirty days after the entry of the first order.

JURISDICTION

¶ 5. Mississippi Rule of Appellate Procedure 4(a) requires a notice of appeal to be “filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” The record is silent as to why there are two separate, yet identical, orders from the circuit court; and we see no defect in the entry of the first order which would have necessitated entry of the second order by the circuit court. Neither Williams nor the State has addressed the issue of jurisdiction. However, from the timing of the orders, there is no question that Williams’s appeal is untimely, having been filed more than thirty days after the entry of the first order denying his motion for a new trial.

¶ 6. Rule 2(c) of the Mississippi Rules of Appellate Procedure, however, allows this Court to suspend the thirty-day requirement of Rule 4(a) and permit an out-of-time appeal in a criminal case for “good cause shown” and “in the interest of expediting decision.” An out-of-time appeal may be granted in cases where the prisoner, “through no fault of his own[,3 is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.” Dorsey v. State, 986 So.2d 1080, 1084 (¶ 12) (Miss.Ct.App.2008) (citation omitted). Williams was represented by counsel, and there is a strong likelihood that any fault for the untimely appeal was not attributable to Williams. Counsel for Williams prepared and signed both orders. Accordingly, dismissal for lack of jurisdiction by this Court would likely result in a subsequent claim by Williams of ineffective assistance of counsel. Thus, “in the interest of expediting decision” pursuant to Rule 2(c) we will suspend the rules and review Williams’s out-of-time appeal on the merits.

WHETHER THE CIRCUIT COURT ERRED IN DENYING WILLIAMS’S MOTION FOR A NEW TRIAL.

¶ 7. Williams argues that his motion for a new trial should not have been denied as the verdict is against the overwhelming weight of the evidence. “A motion for a new trial attacks the weight of the evidenee[.]” Turner v. State, 910 So.2d 598, 602 (¶ 16) (Miss.Ct.App.2005) (citation omitted). In our appellate review, we “accept as true all evidence which supports the verdict and will reverse only if convinced that the [circuit] court abused its discretion in not granting a new trial.” Christian v. State, 998 So.2d 1019, 1023-24 (¶ 11) (Miss.Ct.App.2008) (quoting Saucier v. State, 950 So.2d 262, 265 (¶ 9) (Miss.Ct.App.2007)). Therefore, a new trial should only be granted if “the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice.” Turner, 910 So.2d at 602 (¶ 16) (quoting Wetz v. State, 503 So.2d 803, 812 (Miss.1987)).

¶ 8. Williams admits that he was in possession of the cocaine in question; however, he claims that the cocaine was for his personal use and that the evidence failed to show that he had intent to distribute. Upon our review of the record, however, we find that there was ample evidence to support the verdict. Agent Varnado identified Williams as the person who had sold him crack cocaine four days prior to the incident. Although the agent was unaware of Williams’s name at the time, he was clearly identifiable in the video of the transaction. Testifying on his own behalf, Williams even admitted that he was the person in the video during the drug sale; he just denied selling the drugs to Agent Varnado. He stated:

Q. Isn’t that you that’s on the video that Agent Varnado talked about?
A. That’s me that I seen on that video, but I didn’t see no selling or nothing.

¶ 9. Further, when asked by defense counsel whether Williams was given a drug screen, Agent Varnado explained that, since Williams was on probation from his previous conviction, it was unlikely that he would be using drugs as Williams was subject to routine drug tests. It was additionally noted that, at the time of the arrest, Williams did not possess any paraphernalia associated with smoking crack cocaine and that there was a large, separate amount of cocaine found inside the car. Lastly, Williams possessed a generous amount of cash, although he claimed that the money had been given to him by his parents to repair his home.

¶ 10. Taking into account all the testimony and evidence, coupled with Williams’s prior conviction of possession of cocaine with intent to distribute, we find that there was substantial evidence to support the verdict. Accordingly, viewing the evidence in a light most favorable to the verdict, we find that the verdict is not against the overwhelming weight of the evidence, and that the circuit court did not abuse its discretion in denying Williams’s motion for a new trial.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AND SENTENCE OF THIRTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWENTY-THREE YEARS TO SERVE, TWELVE YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A FINE OF $5,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. IRVING, J., NOT PARTICIPATING.

      . This cocaine was attributed to Isaac.


author: IRVING, J,

text:
    Jeffrey SHELLEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01284-COA.
    Court of Appeals of Mississippi.
    March 2, 2010.

      Erin E. Pridgen, attorney for appellant.
    Office of the Attorney General by Laura H. Tedder, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J,

for the Court:

¶ 1. Jeffrey Shelley was convicted of sale of cocaine by a Warren County jury, and the Warren County Circuit Court subsequently sentenced Shelley to twenty years in the custody of the Mississippi Department of Corrections, with fifteen years to serve and five years of post-release supervision. The circuit court ordered that the sentence be served consecutively to another sentence that Shelley was already serving. Feeling aggrieved, Shelley appeals and contends that the circuit court erred in allowing the State to proceed with an allegedly improper peremptory strike and in failing to object sua sponte to remarks made by the prosecutors during closing argument.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Shelley was in Vicksburg, Mississippi, on July 27, 2007, when he was approached by Christian Franklin Johnson, a woman who Shelley knew. The record indicates that Shelley and Johnson knew each other from them involvement in using and purchasing illegal drugs. However, unbeknownst to Shelley, on July 27, Johnson was working as a paid informant for the Vicksburg Police Department (VPD). On that day, Johnson was driving a vehicle that had been equipped by the VPD with several hidden cameras.

¶ 4. Officer Jeff Merritt with the VPD testified that the VPD chose to conduct undercover drug buys at a particular location in Vicksburg because the VPD “had received numerous complaints of drug activity in that area.” He testified that Johnson was a successful informant who was paid fifty dollars a day for her work with the VPD. Officer Merritt explained that, on July 27, Johnson was searched by VPD officers before driving an “undercover” VPD vehicle to the location where Johnson encountered Shelley. There is no evidence indicating that Johnson contacted Shelley prior to driving to the location chosen by the VPD. Officer Merritt testified that Johnson was given forty dollars in city funds with which to purchase drugs. Officer Merritt explained that, on July 27, the VPD was not targeting any particular individual, but “just that particular area due to the complaints we received.” Officer Merritt testified that Johnson had no access to the cameras that were in the vehicle. During cross-examination, Officer Merritt acknowledged that Johnson was “a self-admitted user of drugs.”

¶ 5. At trial, Johnson testified that she saw Shelley at the location where the VPD had instructed her to go. She stated that she knew Shelley, but that she had not seen him in a long time. Johnson explained that, after exchanging pleasantries, she told Shelley that she wanted to “get a [forty],” after which Shelley got in the vehicle with her. She testified that she and Shelley drove to a nearby house, where she handed Shelley the forty dollars in city funds before Shelley exited the vehicle. She further testified that Shelley went to the back of the house before he returned with crack cocaine that he placed in her hand. Johnson testified that, as Shelley handed her the crack cocaine, he stated “that’s a pretty good [forty].” During cross-examination, Johnson stated that she had never bought drugs from Shelley before July 27, 2007. Video footage from the car was also played for the jury.

¶ 6. Paige Mills, an analyst at the Mississippi Crime Laboratory, testified that she tested the substance that was submitted to her by the VPD. Mills testified that her examination led her to conclude that the substance contained four-tenths of a gram of cocaine.

¶ 7. Shelley’s wife, Séptima Johnson, testified on his behalf. She testified that Shelley had a drug addiction but that she had never known him to sell drugs.

¶ 8. Shelley testified that on July 27, 2007, he was employed as a construction worker, but that he had the day off. He testified that he spent the day “hanging out” with “some people.” Unlike Johnson, Shelley testified that he and Johnson had used drugs together “numerous times.” Shelley admitted that he is the person that can be seen on the videotape of the drug buy. Shelley explained that, when Johnson stated that she needed a “forty,” he thought: “I guess she wanted me to sell her 40, but I don’t sell. I don’t sell drugs. She knew where I could get it at.” Shelley stated that he then took her to the house of a drug dealer named “Terrance.” Shelley stated that the item that was in his hand as he exited Terrance’s house was not crack cocaine, but was a piece of paper with a telephone number on it. Shelley testified that he gave Johnson’s money back to her and gave her a phone number where he could be reached.

¶ 9. During the conference on jury instructions, Shelley requested and was given an entrapment instruction. After closing arguments, the jury retired and subsequently found Shelley guilty of selling cocaine. At his sentencing hearing on July 9, 2008, the circuit court sentenced Shelley to twenty years’ imprisonment, with the sentence to run consecutively to a sentence that Shelley was already serving. The circuit court then revoked Shelley’s probation for the prior sentence and ordered that Shelley receive drug and alcohol counseling while in prison.

¶ 10. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Batson Challenge

¶ 11. In his first issue, Shelley contends that the circuit court erred in allowing the State to proceed with a peremptory strike in light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the United States Supreme Court noted that a prosecutor has wide leeway in using peremptory strikes, but that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race....” Id. at 89, 106 S.Ct. 1712.

¶ 12. In reviewing the circuit court’s ruling on the State’s peremptory strikes, we remain mindful that we “re-vie[w] a trial court’s ruling on a Batson challenge with great deference and will not overturn the trial court’s ruling unless it is clearly erroneous or against the overwhelming weight of the evidence.” Pruitt v. State, 986 So.2d 940, 942 (¶ 8) (Miss.2008) (citing Flowers v. State, 947 So.2d 910, 917 (¶ 8) (Miss.2007)). As our supreme court has explained:

When addressing a Batson challenge, a trial court employs a three-step procedure: (1) the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose; (2) once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible, race-neutral justifications for the strikes; and (3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129, 138 (2005). The burden remains on the opponent of the strike to show that the race-neutral explanation given is merely a pretext for racial discrimination. Hicks v. State, 973 So.2d 211, 219 [ (¶ 23) ] (Miss.2007) (citing Berry v. State, 802 So.2d 1033, 1042 [ (¶ 29) ] (Miss.2001)).

Id.

(4) ¶ 13. Shelley objected to the State’s peremptory strike of Juror No. 126. The record reflects following a colloquy concerning the juror:

THE COURT: Okay. Next one ... No. 126.
[PROSECUTOR]: [Juror No. 126] wears his hair in long braids. I don’t accept jurors — male jurors with hair longer than my co-counsel. It tends to show nonconformity. And for the record, I also don’t accept male jurors that [sic] wear earrings. That’s — and the Supreme Court has said that dress, hairstyle and appearance are race-neutral reasons.
THE COURT: What says the defendant?
[DEFENSE ATTORNEY]: Your Hon- or, as someone who doesn’t style myself to the standard or the norm, I would object to that as a non-race-neutral reason for striking a juror. I don’t think that that should have any bearing on his decision to be able to judge a case or be able to determine whether someone is innocent or guilty.
[PROSECUTOR]: For the record, I’d respond. I have accepted no jurors— no Caucasian male jurors with long hair.
THE COURT: Okay. I’m going to accept that as a race-neutral reason. That’s fíne.

(Emphasis added). Shelley contends that the State’s reason for striking Juror No. 126 “was not race-neutral and amounted to a pretext for racial discrimination.”

¶ 14. Here, Shelley made a prima facie case of discriminatory use of peremptory strikes, and the State then offered a nondiscriminatory reason for the strike. After hearing argument from both the State and the defense, the circuit court determined that the State’s reason was race-neutral. We note again that the burden remained on Shelley to prove that the State’s reason for the strike was pretextual.

¶ 15. Our supreme court has noted that there are:

five indicia of pretext that are relevant when analyzing the race-neutral reasons offered by the proponent of a peremptory strike, specifically:
(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge; (2) the failure to voir dire as to the characteristic cited; ... (3) the characteristic cited is unrelated to the facts of the case; (4) lack of record support for the stated reason; and (5) group-based traits.

Flowers, 947 So.2d at 917 (¶ 9) (quoting Manning v. State, 765 So.2d 516, 519 (¶ 9) (Miss.2000)).

¶ 16. As to the first indicia, there is no dispute that there were no unchallenged Caucasian members of the panel with long hair. As to the second, there was no voir dire of Juror No. 126 regarding the length of his hair. There is no indication that long hair in any way relates to the facts of Shelley’s case. As to the fourth indicia, there was no dispute that Juror No. 126’s hair was, in fact, long and braided. Finally, no evidence has been introduced that long hair on a male is a group-based trait. We find that the five indicia support the circuit court’s finding that the State’s reason for striking Juror No. 126 was race neutral.

¶ 17. This Court has found that a prosecutor’s striking of a potential juror because she was inattentive and had dyed her hair was a race-neutral reason. Jackson v. State, 5 So.3d 1144, 1149-50 (¶ ¶ 18-20) (Miss.Ct.App.2008). In so finding, we noted that “a race-neutral reason for a strike can be some aspect of a prospective juror’s appearance not particular to any race, such as wearing a beard or having long, unkempt hair.” Id. at 1149 (¶ 19) (citing Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). Furthermore, we note that multiple courts, including the United States Supreme Court, have found that long hair or other hairstyles is a sufficient race-neutral reason for a peremptory strike. Purkett, 514 U.S. at 768-69, 115 S.Ct. 1769 (holding that prosecutor’s explanation that he struck a potential juror for having “long, unkempt hair, a mustache, and a beard” was a race-neutral reason); U.S. v. Clemons, 941 F.2d 321, 325 (5th Cir.1991) (holding that the State “articulated non-racial reasons, those being age, hairstyle, and dress” and that “[a]ge and appearance have been recognized as legitimate reasons for peremptorily striking potential jurors.”); State v. Washington, 288 S.W.3d 312, 316-17 (Mo.Ct.App.2009) (holding that prosecutor’s peremptory strike of a juror for having a “very precise and very individualistic hairstyle” was a race-neutral reason).

¶ 18. There is no merit to this contention of error.

¾. Prosecutor’s Closing Argument

¶ 19. In his second issue, Shelley contends that the court erred in “failing to object, sua sponte, to the State’s inflammatory ‘send[-]a[-]message’ remarks made during closing arguments.”

¶ 20. In Spicer v. State, 921 So.2d 292 (Miss.2006), our supreme court adopted a two-part test to be used in determining whether a “send-a-message” argument is reversible error. That test was later altered slightly by our supreme court in Brown v. State, 986 So.2d 270 (Miss.2008). As the Brown court explained:

Depending upon the facts and circumstances of each case, “send-a-message” arguments may — standing alone — constitute reversible error. Payton v. State, 785 So.2d 267, 271 (Miss.1999). In Payton, this Court found the following “send-a-message” statement to be reversible error:
Send a message to these older, more mature, criminals, “We are not going to let you ruin young people’s lives like you have ruined these three people’s lives, and all these lives you endangered in the process.”
Id. at 270.
We recently addressed this issue in Spicer v. State, 921 So.2d 292 (Miss.2006), in which we set forth two threshold inquiries, followed by a two-pronged test. The first threshold question is whether defense counsel objected. We noted that, despite the absence of objection, we will not procedurally bar the issue where “the [send-a-message] argument is so ‘inflammatory’ that the trial judge should have objected on his own motion.” Id. at 317 (internal citations omitted).
Spicer’s second threshold inquiry is whether it appears, in examining the surrounding circumstances, that defense counsel invited the comment. Id. at 318. If so, of course, the issue may be waived. Once the two threshold questions are satisfied, Spicer provides that, for a finding of reversible error, “the court must determine (1) whether the remarks were improper, and (2) if so, whether the remarks prejudicially affected the accused’s rights.” Id. (internal citations omitted). In attempting to clarify the application of the test, we stated that
[i]t must be clear beyond a reasonable doubt, that absent the prosecutor’s comments, the jury could have found the defendant guilty. This goes beyond a finding of sufficient evidence to sustain a conviction.
Id. (internal citations omitted).
In analyzing this language in Spicer, we find we should have employed the term “would” instead of “could.” Thus, to meet the second prong of the test, we hold that it must be clear beyond a reasonable doubt that, absent the prosecutor’s inappropriate comments, the jury would have found the defendant guilty. This, of course, amounts to a harmless-error analysis, and is the analysis to be used for the second prong of the Spicer test.

Brown, 986 So.2d at 275-76 (¶¶ 12-16) (footnotes omitted). The Brown court also had the following to say about a prosecutor’s decision to use a “send-a-message” argument:

The jurors are representatives of the community in one sense, but they are not to vote in a representative capacity. Each juror is to apply the law to the evidence and vote accordingly. The issue which each juror must resolve is not whether or not he or she wishes to “send a message” but whether or not he or she believes that the evidence showed the defendant to be guilty of the crime charged. The jury is an arm of the State but it is not an arm of the prosecution. The State includes both the prosecution and the accused. The function of the jury is to weigh the evidence and determine the facts. When the prosecution wishes to send a message they should employ Western Union. Mississippi jurors are not messenger boys.

Id. at 275 (¶ 11) (quoting Williams v. State, 522 So.2d 201, 209 (Miss.1988)).

¶ 21. In the present case, the prosecutor made the following remarks during the State’s initial closing argument:

We did our part, and now it is time for you to do your part. It’s time for you to help us get drugs off of our street, to help us get these drugs off the street by getting the criminals that sell the drags off the streets. We must all do our part.
Now, the attorney for [the] defendant wants you to believe that he was just helping a friend. Well, does the fact that he was helping a friend or the fact that they’re friends somehow change the fact that he, in fact, sold drugs to her? In fact, as small as Vicksburg is, I’m sure there are plenty of drug dealers out there who are selling drugs to their friends.
So as I told you before, it’s time to do your part, and this may be the only opportunity that you have to play a part, to play a definite part in cleaning the drugs off of our streets, and not only cleaning the drugs off of our streets, but the defendants who sell drugs. Ladies and gentlemen, do your part this afternoon, and find the defendant ... guilty of [the] sale of cocaine.

¶ 22. During her closing argument, Shelley’s attorney made the following remarks:

Ladies and gentlemen of the jury, when we talked eaxlier this morning, most of you admitted that we do have a drug problem here in Warren County, and I think most of you, when you leave here today, you will continue to agree to that. But the reason for the drug problem here in Warren County is not Jeffrey Shelley. Jeffrey Shelley is a victim of the drug problem in Warren County.

¶ 23. A different prosecutor then concluded the State’s closing arguments with the following remarks:

On July 27, 2007, Jeffrey Shelley did what Jeffrey Shelley does. He violated the law. He sold some cocaine. And regardless of what he says on the stand, ... he sold cocaine, and it wasn’t entrapment. And he’s not such a great guy that he deserves a third chance. Okay. He takes you for fools. He’s been getting away with it since he can remember. I’m upholding mine. I’m not letting drug dealers get away with it. What are you going to do?

No objection was made by Shelley during the State’s remarks.

¶ 24. We find that the remarks were clearly improper. The State asked the jury, on multiple occasions, to do their part to get “drugs off the streets.” This was improper. The only question before the jury was whether Shelley had committed the crime of selling cocaine on July 27, 2007, yet the prosecutors’ remarks went far afield of that question. Since there was no objection to the remarks, we would have to find that the remarks were so “inflammatory” that the circuit court, in accordance with Spicer, was required to object sua sponte. We make no such finding.

¶ 25. Our supreme court has stated the following regarding when an appellate court will find that an error is harmless:

An error may be found ... to be harmless beyond a reasonable doubt only “where the weight of the evidence against the accused is overwhelming.” Clark v. State, 891 So.2d 136, 142 [ (¶ 29) ] (Miss.2004) ([quoting] Riddley v. State, 777 So.2d 31, 35 [ (¶ 12) ] (Miss.2000)). A harmless-error determination “requires an examination of the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt.” Hopkins v. State, 799 So.2d 874, 879 [ (¶ 10) ] (Miss.2001) [ (quoting Cooley v. State, 391 So.2d 614, 623 (Miss.1980)) ]. A harmless-error determination is made based on a de novo review of the record. [Arizona v.] Fulminante, 499 U.S. [279,] 295, 111 S.Ct. 1246 [113 L.Ed.2d 302] [ (1991) ].

Walton v. State, 998 So.2d 971, 976 (¶ 14) (Miss.2008).

¶ 26. Having weighed and considered the totality of the circumstances, including the facts, the context of the improper remarks, and any prejudice that may have been created by them against the strength of Shelley’s guilt, we find that any error in allowing the prosecutors to make improper remarks was harmless at worst. The evidence against Shelley, which included video footage and Johnson’s testimony, was overwhelming. It is clear beyond a reasonable doubt that the jury would have found Shelley guilty, even absent the improper remarks. Therefore, we find that no reversible error flowed from the remarks made during closing argument.

¶ 27. THE JUDGMENT OP THE CIRCUIT COURT OF WARREN COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS TO SERVE AND FIVE YEARS OF POST-RELEASE SUPERVISION, WITH THE SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCE IN WARREN COUNTY CAUSE NUMBER 05-0305CRV, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.


author: IRVING, J.,

text:
    Nathaniel Lavell COLEMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-02095-COA.
    Court of Appeals of Mississippi.
    March 2, 2010.
    Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General, by John R. Henry Jr., attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court:

¶ 1. Nathaniel Lavell Coleman was convicted of felony murder by a Jackson County jury and was sentenced by the Jackson County Circuit Court to life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved, he appeals and asserts that he was denied effective assistance of counsel and that the verdict is against the overwhelming weight of the evidence.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. At approximately 3:45 p.m. on October 13, 2006, Yvette Dott was shot in the back and killed outside of Deadrick Franklin’s residence at 3520 Kimberly Drive in Moss Point, Mississippi. The record clearly reflects that Franklin, rather than Dott, was the intended target. In June 2008, Coleman was indicted for deliberate-design murder. He was subsequently re-indicted and tried for felony murder pursuant to Mississippi Code Annotated section 97-3-19(l)(c) (Rev.2006). Nicholas Barnes and Latterice Barnes were also indicted for felony murder.

¶4. At trial, Franklin testified that he came home on October 13 to find that his home had been burglarized. According to Franklin, a trail of his clothing and other belongings led from his house to 3506 Kimberly Drive, where Nicholas and Nicholas’s brother Latterice lived. Franklin stated that, armed with a gun, he confronted Nicholas in an effort to get his things back. Franklin testified that Nicholas started “mouthing off’ and that Nicholas’s mother and sister appeared and began calling “other people up.” Franklin stated that, at that point, he left and returned to his home. Franklin recalled that shortly after Dott arrived at his house, she went to visit her friend who lived across the street from Nicholas. Franklin testified that Dott returned about ten minutes later, but before she made it into his house, he heard several gunshots. When he opened the door, he discovered that Dott had been shot. Franklin stated that immediately thereafter, he saw Coleman “speed past” Franklin’s house.

¶ 5. Law enforcement officials arrived shortly after the shooting and found a projectile, a bullet fragment, and numerous shell casings on Kimberly Drive. They also recovered a 12-gauge shotgun and a 9-millimeter handgun near Kimberly Drive. The handgun is believed to have been used in the shooting.

¶ 6. Several residents of Kimberly Drive, including Thelma Reece and her mother, Vida Anderson, testified about what they had witnessed the day of the murder. However, none of them were able to identify the shooter or shooters or any of the persons who were involved. Reece recalled that there were two shooters — one in Franklin’s front yard and one with a shotgun in Franklin’s backyard. Reece stated that she did not see their faces and could not identify them but that one of them wore a white T-shirt. Reece testified that the man who shot Dott was standing in Franklin’s front yard.

¶ 7. Following the shooting, Coleman provided a statement to Lieutenant David Lawson of the Moss Point Police Department. In the statement, Coleman implicated Latterice as the person who had shot and killed Dott. According to Coleman, he was summoned to Kimberly Drive by a person named Andrew. Coleman stated that when he arrived, Nicholas and Latter-ice were plotting retaliation against Franklin for pulling a gun on Nicholas. Coleman further stated that they all got into his vehicle and headed to Kimberly Drive and that during the ride, Nicholas told him that he planned to shoot Franklin. When they arrived at Franklin’s house, Coleman stated that Latterice jumped out of the car and fired five shots at a person that Lat-terice thought was Franklin. Coleman also stated that Nicholas fired four shots. Further, Coleman admitted that he had a gun with him that day, but he stated that he did not fire any shots. Coleman stated that he tried to get Latterice to stop shooting when he realized that the person that they were firing at was Dott, and not Franklin.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Denial of Continuance

¶ 9. In his first issue, Coleman argues that he was denied effective assistance of counsel because the trial judge refused to grant him a continuance of more than one day. On the first day of trial, Coleman’s attorney informed the court that he was not prepared to proceed on the felony-murder charge. He explained that he had received a notice of election from the State on September 18, 2008, that advised that the State would proceed to trial on cause number 30-07-10,377(3) for deliberate-design murder. Then, the prosecutor explained that he spoke with Coleman’s attorney and informed him that he was taking Coleman’s case back before a grand jury in an effort to get an indictment against Coleman for felony murder. The prosecutor stated that Coleman was then indicted in cause number 30-08-10,655(3) for felony murder, with aggravated assault being the underlying felony. The prosecutor also pointed out that a second notice of election was filed on October 17, 2008, and that that notice was for cause number 30-08-10,-655(3). The trial judge noted that Coleman’s attorney signed a waiver of arraignment in cause number 30-08-10,655(3) on September 19, 2008, and that the waiver was filed on September 22, 2008. The trial judge also noted that the waiver contained a trial date of October 27, 2008, which he noted was the same date that was reflected on Coleman’s original indictment. Coleman’s attorney claimed that he did not receive a copy of the notice of election for cause number 30-08-10,655(3). The prosecutor disputed Coleman’s attorney’s claim and argued that Coleman’s attorney was on notice that the State intended to try Coleman on the felony-murder charge pri- or to trial. Nevertheless, Coleman’s attorney made an ore tenus motion for a continuance, arguing that he was not prepared to proceed on the felony-murder charge and wanted additional time to research Mississippi’s felony-murder statute. After hearing testimony on the issue, the trial judge granted Coleman’s attorney a one-day continuance, even though he concluded that “it’s no surprise that this matter was set for trial October 27. The evidence is the same, and I don’t see any prejudice that would result proceeding to trial in 2008-10,655.”

¶ 10. “The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be reversed unless the decision results in manifest injustice.” Ruffin v. State, 992 So.2d 1165, 1174-75 (¶ 29) (Miss0.2008) (quoting Boone v. State, 973 So.2d 237, 241 (¶ 13) (Miss.2008)).

¶ 11. As stated, Coleman argues that he was denied the right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. Specifically, Coleman argues that the trial judge’s refusal to continue the case beyond one day resulted in his attorney not having adequate time to prepare for trial. He cites Cruthirds v. State, 190 Miss. 892, 2 So.2d 145, 146 (1941) wherein the Mississippi Supreme Court reversed a defendant’s conviction for unlawful possession of whiskey after finding that the trial judge erred in refusing to grant his motion for a continuance. In Cruthirds, the defendant, Henry Lyman Cruthirds, was allowed to confer with his attorney for a mere three minutes after he was arrested. Cruthirds’s attorney asked for a continuance because he was already involved in an action in another county and had not had an opportunity to investigate or prepare for trial. Id. The trial judge did not respond to his request, and the trial was set for the following day. Id. Cruthirds’s attorney made an ore tenus motion “asking for time to confer with his client and prepare his defense.” Id. However, the motion was overruled, and the defendant’s trial began “some five minutes after his counsel arrived.” Id. No witnesses testified on the defendant’s behalf, as Cru-thirds’s principal witness was out of state. Id. at 145-46. However, the witness stated in an affidavit that she would appear and testify if given the opportunity to do so. Id.

¶ 12. We find Cruthirds clearly distinguishable from our case. Here, Coleman’s attorney was on notice of the trial date at least five weeks prior to trial. While Coleman’s attorney alleges that he needed additional time to research Mississippi’s felony-murder statute, he has offered no explanation as to why he could not have done so during the five weeks that he was on notice that his client would be tried for felony murder. Therefore, we cannot conclude that the trial judge abused his discretion by granting Coleman a one-day continuance. In fact, we see no reason why the one-day extension was warranted under these facts. Accordingly, we find no merit to this issue.

2. Weight of the Evidence

¶ 13. Coleman also argues that the trial judge erred in denying his motion for a new trial because the verdict is against the overwhelming weight of the evidence. A trial judge’s decision to deny a motion for a new trial will only be disturbed in cases where the trial judge has abused his discretion in doing so. Wilkins v. State, 1 So.3d 850, 854 (¶ 11) (Miss.2008). Further, in Massey v. State, 992 So.2d 1161, 1164 (¶ 17) (Miss.2008) (quoting Jones v. State, 904 So.2d 149, 154 (¶ 14) (Miss.2008)), our supreme court held:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. The Jones court also stated that “the evidence should be weighed in the light most favorable to the verdict.”

¶ 14. Coleman contends that whether he acted in concert with Latterice in planning the attempted assault on Franklin was contested at trial. As noted, Coleman admitted that he drove Nicholas and Lat-terice to Franklin’s residence and that, while they were en route, Nicholas informed him that Nicholas planned to shoot Franklin. Coleman further admitted that, prior to leaving, he armed himself with a .25-caliber handgun with the intent of scaring Franklin. Therefore, based on the admissions in Coleman’s statement to the police, it is clear that he actively participated in the attempted aggravated assault against Franklin. Moreover, as previously noted, Franklin testified that he witnessed Coleman speed past his house immediately after the shooting. Thus, Franklin also placed Coleman at the scene of the shooting. In light of these facts, we cannot conclude that allowing Coleman’s conviction for felony murder to stand sanctions an unconscionable injustice. This issue lacks merit.

¶ 15. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF FELONY MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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

      . Section 97-3-19(l)(c) provides that:
      (1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
      z3
      (c) When done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnapping, burglary, arson, robbery, sexual batteiy, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or batteiy of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felonies[.]
      The killing of a human being during the commission of any of the crimes listed in subsection (c) constitutes capital murder when done without the authority of law by any means or in any manner. Miss.Code Ann. § 97-3-19(2)(e)(f) (Rev.2006).

      . As did Reece, Anderson testified that she witnessed the shooting but that she could not identify the shooter. Anderson also recalled that the shooter wore a white T-shirt.

      . Although Coleman did not testify at trial, his statement was admitted into evidence without objection.

      . According to Coleman, Andrew is Latter-ice's and Nicholas’s brother.

      . Although the record is not entirely clear, it appears that Latterice, Nicholas, and Coleman had either been indicted in separate cause numbers for deliberate-design murder or in a single indictment but had been granted severances. In any event, the notice of election advised that Coleman would be tried second unless Latterice’s case was continued. If that occurred, Coleman would be tried first.

      . The State contends, and we agree, that this issue is procedurally barred because Coleman failed to raise this issue in the trial court. Nevertheless, we will briefly address the issue on the merits.


text:
    Jerry MOSES, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01285-COA.
    Court of Appeals of Mississippi.
    March 2, 2010.

      E. Tucker Gore, Greenville, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court:

¶ 1. Jerry Moses was convicted in the Washington County Circuit Court of carjacking. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections and ordered to pay a $2,500 fíne. Aggrieved, Moses appeals and asserts (1) that the trial court erred in refusing to grant his proffered circumstantial-evidence jury instruction, (2) that there was insufficient evidence to support the verdict against him, (3) that the verdict is against the overwhelming weight of the evidence, and (4) that the trial court erred in admitting certain evidence.

¶ 2. Finding no reversible error, we affirm Moses’s conviction and sentence.

FACTS

¶ 8. On April 7, 2007, Verna Thomas was accosted by two men as she exited her vehicle in the parking lot of Jubilee Casino in Greenville, Mississippi. Thomas’s car keys fell to the ground during the ordeal, and one of the men picked them up and jumped into Thomas’s car. The other man followed suit, and they then fled the scene in Thomas’s car. Thomas’s vehicle was recovered in Arlington, Texas, several weeks later, containing a piece of paper and a photograph. The record is clear that neither the piece of paper nor the photograph was in Thomas’s car when it was stolen from her.

¶ 4. Thomas did not see either perpetrator’s face; however, during their investigation, officers with the Greenville Police Department learned that Corderro Kennedy was one of the men who was involved in the attack against Thomas. They also learned that Kennedy drove his mother’s white Mercury Tracer to the casino. Following the investigation, Kennedy was arrested in August 2007, and Moses turned himself in the following October. Moses went to trial in June 2008.

¶ 5. At trial, Thomas testified as to what occurred on April 7, 2007. According to Thomas, shortly after twelve o’clock p.m., she was approached by two men in the parking lot of Jubilee Casino. Thomas was not certain whether she was pushed to the ground or whether she fell, but she stated that she ended up on the ground. She stated that one of the men told her that he would kill her if she screamed. Thomas recalled that her car keys fell out of her hand, that one of the men retrieved them, and that both men got into her car and fled the scene. Thomas also recalled that one of the men had a “sack” in his hand. However, she testified that she did not know what the sack contained. According to Thomas, she then went inside the casino and sought help. There, she informed a security guard as to what had transpired.

¶ 6. Ken Trader, the security director at Jubilee Casino, testified that he viewed the surveillance footage of the parking lot for the day of the attack. Trader’s testimony made it clear that the video corroborates Thomas’s account of what transpired. Trader testified that he went to the location where the incident had occurred in an effort to find evidence that may have been left by the perpetrators, but he was unsuccessful. However, while looking for evidence, Trader noticed two vehicles in the parking lot that he considered suspicious— one of which was a white Mercury Tracer. Therefore, he called his security officer and requested that the owners of both of the vehicles be paged by the license plate numbers of the vehicles. When no one responded to the page, Trader contacted the Greenville Police Department and spoke with Investigator Robert Gibson.

¶ 7. Investigator Gibson testified that Trader requested that the Mercury be removed from the casino’s parking lot. Before removing the vehicle, Investigator Gibson ran the license plate numbers and discovered that the vehicle was registered to Thelma Miller at 338 West Reed Road in Greenville, Mississippi. He also inventoried the vehicle and found a piece of paper with a Social Security number on it. He ran the Social Security number and determined that it belonged to Moses. Investigator Gibson testified that he then went to Moses’s home to talk with Moses, but Moses was not there. Therefore, he spoke with Moses’s mother, Linda Gate-wood, who informed him that she did not know Moses’s whereabouts.

¶ 8. After leaving Gatewood’s home, Investigator Gibson went to the home of Kennedy’s parents, Keith and Thelma Miller. Investigator Gibson informed them that Kennedy was suspected of being involved in a carjacking. According to Investigator Gibson, he learned from Keith that Charlie Stevenson, a long-time friend of Kennedy and Moses, might know of Kennedy’s whereabouts. Investigator Gibson stated that he learned from Stevenson that Kennedy and Moses had come up with “a plan to make some money.” Investigator Gibson ran a National Crime Information Center System check on Kennedy and Moses and determined that Kennedy was incarcerated in Albuquerque, New Mexico.

¶ 9. Hattie Wilson, a patrol officer with the Greenville Police Department, testified that she and Investigator Gibson investigated the assault and carjacking and learned that Moses had left his mother’s house with Kennedy in Kennedy’s mother’s white Mercury Tracer on the day of the incident.

¶ 10. Further, Investigator Gibson testified that when Thomas’s vehicle was found in Arlington, Texas, it contained a couple of pieces of paper with telephone numbers and a photograph. An investigation revealed that the photograph, which had been taken many years prior to this incident, was of Moses’s mother.

¶ 11. Stevenson was contacted by the police and provided a statement. He also testified on behalf of the State about a gun that he asserted was used in the attack against Thomas. The State pointed out that Stevenson’s testimony differed from his statement, as he testified that Kennedy and Moses had “access to a gun” on the day of the incident. However, he said in his statement that Kennedy and Moses in fact had a gun on April 7, 2007. Stevenson testified that he did not know where Kennedy and Moses went after they left his company on April 7, that he did not know whether they were together, and that he did not see either of them with a gun.

¶ 12. Moses made a motion for a directed verdict at the close of the State’s case, which was denied by the trial court. Moses, asserting that the State had failed to prove its case, declined to call any witnesses in his defense. Shortly thereafter, Moses was convicted of carjacking, as charged.

¶ 13. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Circumstantial-Evidence Jury Instruction

¶ 14. Moses asserts that the trial court erred in failing to grant his request for a circumstantial-evidence jury instruction. It has long been the rule in this state that “[a] circumstantial-evidence instruction is required ‘only when the prosecution can produce neither an eyewitness nor a confession/statement by the defendant.’ ” Hughes v. State, 983 So.2d 270, 278 (¶ 26) (Miss.2008) (quoting Rubenstein v. State, 941 So.2d 735, 785 (¶225) (Miss.2006)).

¶ 15. Here, Kennedy pleaded guilty to carjacking and provided a statement to Investigator Gibson wherein he implicated Moses as his accomplice. Thus, Kennedy was an eyewitness to the crime. However, when he took the stand after being subpoenaed by the State, he refused to implicate Moses in the crime. Instead, he testified, inter alia, that he could not remember the events of April 7, 2007, that he did not know Moses, that he has never possessed a shotgun, and that he did not remember driving a white vehicle to the casino that day. The State did not examine Kennedy regarding the inconsistency between his statement and his trial testimony.

¶ 16. Although Kennedy was an eyewitness to the crime, he gave no eyewitness testimony. Therefore, we find that the State failed to produce an eyewitness that negated the necessity for a circumstantial-evidence instruction. Accordingly, we find that the trial court erred in failing to grant a circumstantial-evidence instruction. Nevertheless, we find that the trial court’s error does not warrant a reversal, as the evidence against Moses, though circumstantial, is overwhelming. Moreover, as Justice Robertson noted in his concurring opinion in Montgomery v. State, 515 So.2d 845, 849 (Miss.1987), the appropriate standard of proof in criminal cases should be “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Justice Robertson also observed “that the circumstantial-evidence rule and the perception upon which it is based is really much ado about nothing.” Id. at 851. We agree. It is illogical to suggest that an accused who has been found guilty beyond a reasonable doubt has not also been found guilty to the exclusion of every reasonable hypothesis consistent with innocence. It is clear that if a jury perceives a reasonable hypothesis consistent with the accused’s innocence, the jury has a reasonable doubt of the accused’s guilt and, therefore, would not convict if it were instructed that it had to find the accused guilty beyond a reasonable doubt before it could do so. Here, the jury was instructed that it could not convict Moses unless the State had proved his guilt beyond a reasonable doubt. Therefore, by its verdict, the jury attested that no hypothesis consistent with Moses’s innocence was raised by the evidence or lack thereof. Consequently, we find that the trial court’s failure to give a circumstantial-evidence instruction was harmless error.

2. Sufficiency

¶ 17. It is well settled in this state that in order to succeed on a challenge to the sufficiency of the evidence, a defendant must prove that no “trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Smith v. State, 925 So.2d 825, 830 (¶ 10) (Miss.2006) (quoting Brown v. State, 907 So.2d 336, 339 (¶ 8) (Miss.2005)). Also, challenges to the sufficiency of the evidence are viewed in the light most favorable to the State. Id. Further, an appellate court,

must accept as true all evidence consistent with [a defendant’s] guilt, together with all favorable inferences that may be reasonably drawn from the evidence, and disregard the evidence favorable to the defendant. If this evidence would support a verdict of guilty beyond reasonable doubt, the trial court’s denial of the motion must be affirmed.

Robinson v. State, 940 So.2d 235, 240 (¶ 13) (Miss.2006) (citations omitted). “As long as ‘reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ [then] the evidence will be deemed to have been sufficient.” Smith, 925 So.2d at 830 (¶ 10) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 18. Although Moses contends that the evidence is insufficient to support his conviction, he fails to point us to any such deficiency. Mississippi Code Annotated section 97-3-117(1) (Rev.2006) provides:

Whoever shall knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempting to do so, or by any other means shall take a motor vehicle from another person’s immediate actual possession shall be guilty of carjacking.

The record clearly indicates that two males, acting in concert, took Thomas’s vehicle by force in violation of section 97-3-117(1). Although Thomas was unable to identify her attackers, the evidence is overwhelming that those two males were Kennedy and Moses. For example, (1) Investigator Gibson testified that Kennedy implicated Moses as being present at the scene on the morning of the attack; (2) a photograph of Moses’s mother was recovered from Thomas’s vehicle after it was located in Texas, where Moses had relatives; and (3) a piece of paper with Moses’s Social Security number written on it was found in the vehicle that was left at the scene. This evidence is sufficient to support the jury’s verdict, which necessarily found that Moses was one of the perpetrators. Accordingly, this issue lacks merit.

3. Overwhelming Weight

¶ 19. Moses also contends that the trial court erred in denying his motion for a new trial. A motion for a new trial challenges the weight of the evidence. Tate v. State, 20 So.3d 623, 643 (¶ 52) (Miss.2009) (citing Bush v. State, 895 So.2d 836, 843-14 (¶ 16) (Miss.2005)). In Ivy v. State, 949 So.2d 748, 753 (¶ 21) (quoting Bush, 895 So.2d at 844 (¶ 18)), the Mississippi Supreme Court held that:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial, the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 [ (¶ 18) ] (Miss.2000). However, the evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” McQueen v. State, 423 So.2d 800, 803 (Miss.1982). Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial.

For the reasons already stated, we find that allowing Moses’s conviction for carjacking to stand would not sanction an unconscionable injustice. There is no merit to this issue.

A Admission of Evidence

¶ 20. Moses argues that the trial court erred in allowing Investigator Gibson to testify concerning a statement that was provided to him by Kennedy wherein Kennedy implicated Moses as being present at the scene on the morning of the carjacking. Specifically, Moses asserts that the statement was offered in violation of the Sixth Amendment’s Confrontation Clause. Moses also cites Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) to support his argument.

¶ 21. We note at the outset that the audiotape and transcript of Kennedy’s statement were not allowed into evidence but were merely marked for identification purposes, to which the defense did not object. Since the statement was not admitted into evidence, Crawford is not implicated. The court did allow Investigator Gibson to testify as to a portion of what Kennedy told him. However, this was because counsel for Moses opened the door during his cross-examination of Investigator Gibson. During the cross-examination, counsel for Moses repeatedly questioned Investigator Gibson as to whether he had any direct evidence of Moses’s involvement in the carjacking. The court then ruled that counsel for Moses had opened the door, and the court then allowed Investigator Gibson to state that Kennedy informed him that Moses had been with him in the parking lot of the casino “on the morning of the incident.” This issue lacks merit.

¶ 22. Finally, Moses argues that the trial court erred in allowing the State to question Stevenson regarding Moses “possessing a shotgun on the evening of April 6, 2007.” Stevenson testified that Kennedy and Moses had been at his house on the night of April 6, but that they were not there when he awoke the following morning. As noted, Stevenson also testified that Kennedy and Moses had “access to a shotgun.”

¶ 23. We find that this argument is procedurally barred, as Moses failed to object at trial. See Spires v. State, 10 So.3d 477, 483 (¶ 24) (Miss.2009). Procedural bar notwithstanding, we find no merit to this issue. We fail to see how Moses suffered any prejudice as a result of Stevenson’s testimony regarding possession of the shotgun, as Moses was convicted of carjacking rather than armed carjacking. Therefore, whether Moses had a gun during the attack against Thomas did not play a role in his conviction. There is no merit to this issue.

¶ 24. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF CARJACKING AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $2,500 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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

      . Moses actually raises seven issues; however, because several of them are interrelated, we have combined them.

      . The record reveals that Moses has relatives who reside in Arlington, Texas.


author: LEE, P.J.,

text:
    The CITY OF LAUREL, Appellant v. Kenneth (Ken) KEYES, Appellee.
    No. 2008-CA-00984-COA.
    Court of Appeals of Mississippi.
    March 16, 2010.

      David M. Ratcliff, Laurel, Deidra J. Bas-si, attorneys for appellant.
    Thomas T. Buchanan, Laurel, John D. Smallwood, attorneys for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY AND FACTS

¶ 1. Ken Keyes was a shift captain with the City of Laurel Fire Department. Keyes had been shift captain since 1997. Keyes was passed over for a promotion to battalion chief. This promotion was given to a fireman who was a station captain, a rank below Keyes’s. Keyes filed a grievance with the City of Laurel (the City) and the Laurel Civil Service Commission (LCSC) for failure to promote him to battalion chief. After a hearing on the matter, the LCSC upheld the promotion and rejected Keyes’s grievance.

¶ 2. Keyes subsequently filed an appeal to the Jones County Circuit Court. The circuit court reversed the ruling of the LCSC and ordered the City to promote Keyes to battalion chief, effective June 23, 2003. The City appeals, asserting the following issues: (1) whether jurisdiction was proper; (2) whether Keyes had standing to pursue the appeal; (3) whether the LCSC’s decision to not promote Keyes was made in good faith for cause; and (4) whether the trial court’s decision should be reversed.

DISCUSSION

¶ 3. Keyes argues that the circuit court did not have jurisdiction over the appeal pursuant to Mississippi Code Annotated section 21-31-23 (Rev.2007). Section 21-31-23 concerns disciplinary proceedings and is not applicable to an application for promotion. However, Mississippi Code Annotated section 11-51-95 (Rev.2002) grants writs of certiorari to the circuit court to review proceedings from tribunals inferior, but Mississippi Code Annotated section 11-51-93 (Rev.2002) limits the circuit court’s scope of review to questions of law. Section 11-51-95 considers a municipal civil service commission an inferior tribunal. See Gill v. Miss. Dep’t of Wildlife Conservation, 574 So.2d 586, 591 (Miss.1990).

¶4. Keyes filed a notice of appeal and not a writ of certiorari. We must determine whether the notice of appeal could be deemed a writ of certiorari. According to 11-51-93, the writ of certiorari must be in the form of a petition and supported by an affidavit. In Crider v. Howard, 295 So.2d 776, 777 (Miss.1974), the supreme court treated a petition for judicial review as an application for writ of certiorari where all other essentials for appeal by certiorari were met within the time required by law. However, in Bertucci v. Mississippi De partment of Corrections, 597 So.2d 643, 647 (Miss.1992), the supreme court reversed the decision of the circuit court, finding that the circuit court erred in treating the MDOC’s notice of appeal as a writ of certiorari. The supreme court noted that the MDOC’s appeal lacked the statutory requirements; thus, the circuit court lacked jurisdiction over the appeal. Id. at 646.

¶ 5. In the case at bar, Keyes’s notice of appeal does not contain a petition or any supporting affidavit. The notice of appeal cannot be construed to be a petition for certiorari; thus, the circuit court did not have jurisdiction over Keyes’s appeal. Accordingly, the order of the Jones County Circuit Court is vacated.

¶ 6. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT IS VACATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: SEE, Justice.

text:
    Ex parte Willie Albert McCALL. (In re Willie Albert McCall v. State of Alabama).
    1070633.
    Supreme Court of Alabama.
    Nov. 7, 2008.
    Glenn L. Davidson of Collins, Davidson L.L.C., Mobile, for petitioner.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for respondent.
   SEE, Justice.

The Court of Criminal Appeals affirmed the trial court’s dismissal of Willie Albert McCall’s Rule 32, Ala. R.Crim. P., petition for postconviction relief. This Court granted McCall’s petition for the writ of certiorari to address a possible conflict between the Court of Criminal Appeals’ decision and this Court’s decision in Ex parte Grau, 791 So.2d 345 (Ala.2000). We hold that the Court of Criminal Appeals’ judgment conflicts with prior caselaw, and we therefore reverse that judgment and remand this case.

Facts and Procedural History

Willie Albert McCall was indicted and tried for capital murder and attempted murder and for being a convicted felon in possession of a firearm. He was convicted on the firearm charge and was sentenced to five years’ imprisonment. The jury, however, could not reach a unanimous verdict on the other two charges, and the trial court therefore declared a mistrial. McCall was reindicted and was eventually convicted of murder and attempted murder. He was sentenced to life imprisonment without parole on each conviction. McCall appealed his convictions for murder and attempted murder, and the Court of Criminal Appeals affirmed the trial court’s judgment, without an opinion. McCall v. State, 919 So.2d 1237 (Ala.Crim.App.2004) (table).

McCall then petitioned the trial court for postconviction relief under Rule 32, Ala. R.Crim. P., alleging ineffective assistance of counsel at both his trial and on appeal. He later amended his petition to allege 12 instances of ineffective assistance. The trial court held a hearing on his motion, at which McCall offered testimony on only 1 of his 12 claims: that his trial counsel’s performance was deficient because counsel had failed to move the trial court to dismiss his capital-murder and attempted-murder indictments even though, he argued, the State had promised to nol-pros those indictments if he withdrew his appeal of the firearms conviction. McCall contends that he withdrew his appeal of the firearms conviction but that the State tried him on the charges of capital murder and attempted murder anyway. McCall entered into evidence an appellate brief filed by counsel in the Court of Criminal Appeals, the State’s brief in response, and the Court of Criminal Appeals’ unpublished memorandum, which, McCall stated, were offered to show ineffective assistance of counsel “on the appeal process.”

In response to his claims, the State offered the testimony of McCall’s counsel and of the prosecutor. McCall’s counsel explained his trial strategy. The trial court dismissed McCall’s Rule 32 petition, stating:

“[McCall’s] allegations that the failure of the trial and appellate counsel to do certain things does not indicate how he believes any of those actions would have made a difference in the jury’s findings of guilt. The bare allegations of [McCall] do not rise to the level, either on a legal or practical trial level, of showing the reasonable probability of a different result, and they do not meet the requirements of Strickland[v. Washington], 466 U.S. 668 (1984).”

See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”).

McCall moved the trial court to alter, amend, or vacate its order, arguing that the trial court erred in not making specific findings of fact as required by Rule 32.9, Ala. R.Crim. P. The trial court denied that motion. McCall appealed the trial court’s decision, and the Court of Criminal Appeals affirmed, by unpublished memorandum. McCall v. State (No. CR-06-0021, Dec. 14, 2007), 19 So.3d 259 (Ala.Crim.App.2007) (table). McCall then petitioned this Court for the writ of certiorari. We granted the writ to determine whether the Court of Criminal Appeals’ decision conflicts with Ex parte Grau, 791 So.2d 345 (Ala.2000).

Issue

McCall argues that the Court of Criminal Appeals’ decision affirming the trial court’s dismissal of his Rule 32, Ala. R.Crim. P., petition, which was issued after an evidentiary hearing and which did not contain specific findings of fact, conflicts with Ex parte Grau.

Analysis

McCall argues here that the Court of Criminal Appeals’ decision conflicts with Ex parte Grau because the trial court did not make specific findings as to the material issues of fact presented in his Rule 32, Ala. R.Crim. P., petition for postconviction relief. Grau was convicted of possession of a controlled substance and possession of drug paraphernalia. The arresting officer found cocaine and drug paraphernalia in the pocket of Grau’s companion, Holly Simmons. The Court of Criminal Appeals affirmed Grau’s conviction without an opinion.

Grau petitioned the trial court for post-conviction relief under Rule 32, Ala. R.Crim. P., alleging that his counsel should have solicited the testimony of an expert witness as to a drug test Grau had taken a few days after his arrest. Grau argued that the “expert testimony would have indicated that, because there was no cocaine in Grau’s system at the time of the test, Grau could not have ingested cocaine shortly before his arrest.” Grau, 791 So.2d at 346. Grau also argued that “his trial counsel should have subpoenaed Simmons to establish that he did not use the cocaine and did not know that Simmons was in possession of the cocaine and drug paraphernalia.” Grau, 791 So.2d at 346. The trial court denied Grau’s Rule 32 petition without making any findings of fact on his ineffeetive-assistanee-of-eounsel claim. The Court of Criminal Appeals affirmed.

On certiorari review, this Court concluded that “because the circuit court did not make specific findings of fact, any review of Grau’s claims by the Court would be premature.” Ex parte Grau, 791 So.2d at 346-47. We stated: “‘Rule 32.9(d), Ala. R.Crim. P., requires that if an evidentiary hearing is conducted on the Rule 32 petition, “[t]he court shall make specific findings of fact relating to each material issue of fact presented.” ’ ” 791 So.2d at 347 (quoting Anglin v. State, 719 So.2d 855, 857 (AJa.Crim.App.1996)). We went on to note that “ ‘[a] statement of the basis of the trial court’s decision is essential to ■afford the appellant due process.’ ” 791 So.2d at 347 (quoting Owens v. State, 666 So.2d 31, 32 (AIa.Crim.App.1994)). We then reversed the judgment and remanded the case to the Court of Criminal Appeals, with instructions for that court to remand the case to the trial court to make specific findings of fact and to state the basis of its ruling.

Here, McCall, like Grau, petitioned for postconviction relief, alleging ineffective assistance of counsel, and the trial court, like the trial court in Ex parte Grau, held an evidentiary hearing, but it did not issue specific findings of fact when it dismissed McCall’s petition. McCall argues, therefore, that the Court of Criminal Appeals should have reversed the trial court’s judgment and remanded the case to allow the trial court to issue specific findings of fact. The Court of Criminal Appeals’ failure to do so, McCall argues, is in conflict with the precedent set forth in Ex parte Grau; therefore, its judgment should be reversed and the case remanded. We agree.

The State argues that “[ajlthough McCall sufficiently pleaded some of his claims warranting him an evidentiary hearing, he failed to present any evidence at his evidentiary hearing showing that there was a material issue of fact concerning any of those claims.” State’s brief at 11. Specifically, the State argues that the trial court’s judgment was sufficient because McCall, unlike the petitioner in Ex parte Grau, did not present sufficient evidence of any prejudice he suffered as a result of counsel’s allegedly deficient performance. Therefore, the State argues, there was no violation of the Rule 32.9(d) requirement that “[t]he court shall make specific findings of fact relating to each material issue of fact presented.”

We note that Rule 32.7(d), Ala. R.Crim. P., provides:

“If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition. Leave to amend shall be freely granted. Otherwise, the court shall direct that the proceedings continue and set a date for hearing.”

Thus, a hearing need not be held if the petitioner fails to adequately present a material issue. If, however, the court holds a hearing, then Rule 32.9, Ala. R.Crim. P., provides, in pertinent part, as follows:

“(a) Hearing. Unless the court dismisses the petition, the petitioner shall be entitled to an evidentiary hearing to determine disputed issues of material fact ....
“(d) Findings of Fact. The court shall make specific findings of fact relating to each material issue of fact presented.”

Thus, the trial court must first determine whether the petition raises “material issue[s] of fact or law ... which would entitle the petitioner to relief under [Rule 32].” Rule 32.7(d). Once a hearing is held on those issues, the trial court is required to make findings of fact as to each of the material issues upon which the hearing was held. See Ex parte Grau, supra.

In this case, McCall petitioned for post-conviction relief alleging 12 grounds of ineffective assistance of counsel. The trial court held an evidentiary hearing on the petition. By holding that hearing, the trial court implicitly found that the issues presented were “material issue[s] of law or fact ... which would entitle [McCall] to relief,” Rule 32.7(d), and, under Rule 32.9(d), the trial court therefore had a responsibility to make findings of fact as to each of those issues. Instead of issuing any such findings, however, the trial court dismissed McCall’s petition on the ground that his “bare allegations” of prejudice were not sufficient to state a claim of ineffective assistance of counsel. Although this conclusion may have been an appropriate basis for a summary dismissal of the petition before a hearing was held, once a hearing has been held Rule 32.9(d) requires findings of fact in support of the judgment. Under our decision in Ex paite Grau, the trial court’s failure to issue such findings is grounds for reversal. Therefore, the Court of Criminal Appeals’ decision to affirm the trial court’s judgment conflicts with Ex parte Grow, and we reverse the Court of Criminal Appeals’ decision and remand the case to that court for proceedings consistent with this opinion.

Conclusion

Because the tidal court failed to issue findings of fact in support of its judgment as required by Rule 32.9(d), Ala. R.Crim. P., the Court of Criminal Appeals’ decision affirming its judgment is in conflict with Ex parte Grau. Therefore, we reverse the Court of Criminal Appeals’ judgment and remand the case for further proceedings.

REVERSED AND REMANDED.

LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., recuses herself.

      . The same attorney represented McCall at his trial and on appeal.

      . McCall alleged in his Rule 32 petition that the agreement to nol-pros related to his indictments for capital murder and attempted murder. However, his testimony at the evi-dentiary hearing was that the agreement related to "the capital murder case and first degree robbery.” McCall was not convicted of first-degree robbery, nor is there any indication in the record that he was actually indicted for that offense.

      .Rule 32.9(d) provides: "The court shall make specific findings of fact relating to each material issue of fact presented.”

      . This Court has stated:
      "[T]o establish a claim of ineffective assistance of counsel, a petitioner must prove (1) that counsel did not provide reasonably effective assistance and (2) that counsel’s deficient performance prejudiced the petitioner. ... ‘[To show prejudice, tire] defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' "

        Ex parte Land, 775 So.2d 847, 850 (Ala.2000) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

      . The State apparently confuses a "material issue of fact,” that is, a factual issue that is material to the claim for relief, with a "genuine issue of material fact,” that is, an issue of material fact that is supported by substantial evidence. See Black's Law Dictionary 708 (8th ed.2004) (defining genuine issue of material fact as "a triable, substantial, or real question of fact supported by substantial evidence”).

      . We stated in Ex parte Grau:

        “ ‘Rule 32.9(d), Ala. R.Crim. P., requires that if an evidentiary hearing is conducted on the Rule 32 petition, ”[t]he court shall make specific findings of fact relating to each material issue of fact presented.”'

      "Although the circuit court held an evi-dentiary hearing on Grau's claims, the only order that court entered is this notation in the case action summary sheet: ‘Petition for relief from conviction or sentence denied.’ Accordingly, the judgment of the Court of Criminal Appeals is reversed and the case is remanded for that court to remand the case for the circuit court to enter an order pursuant to Rule 32.9, Ala. R.Crim. P., making specific findings of fact as to each issue of fact presented and clearly stating the basis of its ruling on the petition.”
      791 So.2d at 347 (quoting Anglin, 719 So.2d at 857).

      .McCall raised the following grounds for postconviction relief: (1) trial counsel failed to invoke Rule 9.3, Ala. R.Crim. P., which requires that all witnesses who testily on the State’s behalf be removed from the courtroom: (2) trial counsel deprived him of his right to take the witness stand and testify in his own defense; (3) trial counsel failed to object or to move for a mistrial on the ground that the court failed to admonish the jurors before allowing them to separate during their deliberation; (4) trial counsel failed to secure funds to hire an identification expert to testily in McCall’s defense; (5) trial counsel failed to move to dismiss the indictment on the ground that the State had breached the agreement it reached to nol-pros the original charges; (6) trial counsel failed to request that the jury be polled when it returned the verdict; (7) trial counsel failed to move that the indictment be dismissed on the ground that favorable and material evidence had been intentionally destroyed or lost; (8) trial counsel failed to pursue and present as a defense the planting of or tampering with evidence by the corrupted officers; (9) trial counsel failed to request a mistrial or curative instructions when the trial court erroneously allowed the jury to consider inadmissible hearsay evidence; (10) appellate counsel failed to raise on appeal McCall's challenge to the composition of the venire from which the petit jury was selected; (11) appellate counsel failed to raise on appeal McCall's challenge to the prosecution's exercise of its peremptory strikes to remove males from serving on the petit jury; and (12) appellate counsel failed to properly present on appeal McCall's claim that he was denied a speedy trial.


author: WELCH, Judge.

text:
    Willie Albert McCALL v. STATE of Alabama.
    CR-06-0021.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 2009.
    Glenn L. Davidson, Mobile, for appellant.

      Troy King, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

WELCH, Judge.

On the authority of Ex parte McCall, 30 So.3d 400 (Ala.2008), we reverse the judgment of the circuit court and remand this cause to the Mobile Circuit Court for proceedings consistent with the Alabama Supreme Court’s opinion.

REVERSED AND REMANDED.

WISE, P.J., and WINDOM, KELLUM, and MAIN, JJ., concur.