author: COLEMAN, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

text:
    Forrest THOMAS, III v. MISSISSIPPI DEPARTMENT OF CORRECTIONS and Gloria Gibbs, Director of Records
    NO. 2017-CP-00152-SCT
    Supreme Court of Mississippi.
    March 15, 2018 Rehearing Denied June 14, 2018
    ATTORNEY FOR APPELLANT: FORREST THOMAS, III (PRO SE)
    ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN, ANTHONY LOUIS SCHMIDT, JR.
    BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. After exhausting the administrative remedies program within the Mississippi Department of Corrections, Forrest Thomas III appealed to the Marshall County Circuit Court for review of the Department's decision denying him trusty time credit and meritorious earned time credit, the denial of which was based upon his conviction of kidnapping a child under the age of sixteen pursuant to Mississippi Code Section 97-3-53 and classification as a sex offender pursuant to Mississippi Code Section 45-33-23(h)(i). The circuit court denied Thomas relief as well, so Thomas filed the present appeal. While we affirm the circuit court's affirmance of the Department's decision that Thomas is not entitled to credit on his kidnapping conviction, we remand on an issue related to the order in which the Department is running Thomas's convictions.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2007, Thomas pleaded guilty to manslaughter for the death of Kimberly Norton. He also pleaded guilty to kidnapping their two children, who were both under the age of sixteen, pursuant to Section 97-3-53. The circuit court sentenced Thomas to serve twenty years in the custody of the Department for his manslaughter conviction. In a separate sentencing order, the circuit court sentenced Thomas to serve fifteen years in the custody of the Department, with his sentence for kidnapping to be served consecutively to his manslaughter sentence.

¶ 3. Thomas filed a motion for post-conviction relief, in which he claimed he was not guilty of kidnapping and that his attorney was ineffective. Thomas v. State , 107 So.3d 1046, 1048 (¶ 2) (Miss. Ct. App. 2012). The Court of Appeals affirmed the circuit court's denial of Thomas's motion for post-conviction relief. Id. at 1049 (¶ 7).

¶ 4. Then, Thomas filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254 in the federal court. Thomas v. Outlaw , 2014 WL 3699922, *1 (N.D. Miss. July 24, 2014). The federal court granted the State's motion to dismiss due to the untimeliness of Thomas's motion. Id. at *2. The federal court dismissed Thomas's argument that he was factually innocent of the kidnapping charge by explaining that he had pleaded guilty to the kidnapping charge, "acknowledged that he had taken the children against the will of their mother, who had custody [of the children, who had an active restraining order against Thomas,] and who was killed by Thomas." Id. at *3. Further, "Thomas pleaded guilty to kidnapping, and he admits that he did not have custody and had no legal right to the children at the time they were taken." Id. Lastly, the federal court addressed Thomas's claim that he has received an illegal sentence based on the fact that kidnapping is considered a sex crime, and as such, his sentence is mandatory. Id. The federal court noted that Thomas's guilty-plea petition included the following language:

(2) a sentence of fifteen (15) years for kidnapping to serve within the custody and control of the [Department] to run consecutive to the sentence for manslaughter .... The defendant understands and agrees that the sentence imposed for kidnapping pursuant to ... Section 45-33-23(g)(i) is a mandatory day-for-day sentence. The defendant will be given credit for any and all time served in pretrial detention.

Id. In determining that his sentence was not illegal, the federal court said:

Under Mississippi law, the kidnapping of a victim below the age of eighteen is a "sex offense" or a "registrable offense." Miss. Code Ann. § 45-33-23(g)(i). Thomas acknowledged the facts of the kidnapping charge at his plea colloquy, including the fact that the children were under the age of sixteen. Therefore, the crime is considered a sex offense under Miss. Code Ann. § 45-33-23(g)(i). Moreover, Thomas agreed to a plea offer that explicitly informed him that he would be sentenced pursuant to this statute, and that his sentence would be mandatory. Accordingly, his sentence is not illegal and does not warrant equitable tolling of the federal limitations period. The instant petition will be dismissed as untimely.

Id. at *4.

¶ 5. In February 2015, Thomas filed his first request for administrative remedy relief. Thomas received his response in March 2015, stating that his meritorious earned time and trusty status was removed from his time sheet due to his serving a day-for-day sentence on his kidnapping conviction. Thomas indicated he was unsatisfied with the response and proceeded to step two of the administrative remedy process. He received a response to his second request in June 2015. The response informed him that "[k]idnapping under [ Section] 97-3-53 is coded as kidnapping of a minor under the age of [sixteen] is a mandatory crime. You will have to serve the entire [fifteen] years day for day, without any type of good time. Upon completion of the [fifteen] years you may qualify for trusty earned time on the [twenty] years manslaughter charge."

¶ 6. Based upon his dissatisfaction with his second response, he sought judicial review in the circuit court. When the Department did not respond, Thomas filed a motion to compel on September 20, 2016, which the circuit court granted. The circuit court directed the Department "to respond to [Thomas's] claims of whether 42 U.S.C. § 14071, which was in effect at the time of [Thomas's] crime and sentencing, can be applied to exempt [Thomas] from the State of Mississippi's sex offender registration requirements." The Department responded and filed a motion to dismiss. The circuit court entered an order affirming the Department's decision and Thomas filed the present appeal.

¶ 7. On appeal, Forrest raises three issues:

I. The Department is unlawfully classifying Thomas as a sex offender pursuant to section 45-33-23(h)(i) and contrary to 42 U.S.C. section 14071 and 42 U.S.C. section 16911, which provide an exception for parents convicted of kidnapping their own children from sex offender classification and registration. Thomas further contends that the classification violates several constitutional rights, including: his right to be free from double jeopardy, his right to fundamental fairness, his right to due process and equal protection, and his right to be free from cruel and unusual punishment.
II. The Department is unlawfully transforming Mississippi's sex offender registration statute, Section 45-33-23(h)(i), into a criminal penalty. Thomas again contends that several of his constitutional rights are violated, including his right to be free from double jeopardy, his right to fundamental fairness, his right to due process and equal protection, and his right to be free from cruel and unusual punishment.
III. The Department's findings of fact are unsupported by substantial evidence, arbitrary and capricious, beyond the power of the agency to make, and violate Thomas's statutory and constitutional rights.

As noted above, we identified an issue with the order in which the Department is running Thomas's sentences, and we address the issue below.

STANDARD OF REVIEW

¶ 8. The Court will not disturb a decision of an administrative agency, like the Department, unless the decision is unsupported by substantial evidence, is arbitrary or capricious, is beyond the agency's scope or powers, or is a violation of the party's constitutional rights. Edwards v. Booker , 796 So.2d 991, 994 (¶ 10) (Miss. 2001) (quoting Miss. State Bd. of Pub. Accountancy v. Gray , 674 So.2d 1251, 1253 (Miss. 1996) ).

ANALYSIS

I. Order of Sentences Served

¶ 9. The circuit court sentenced Thomas to serve twenty years in the custody of the Department for his manslaughter conviction. In a separate sentencing order, the circuit court sentenced Thomas to serve fifteen years in the custody of the Department for his kidnapping conviction. The sentencing order and the notice-of-criminal-disposition form sent to the Department explicitly state that his kidnapping sentence is to be served consecutively to his manslaughter sentence.

¶ 10. Inexplicably, it appears that the Department is running Thomas's sentences in the opposite order, contrary to the unambiguous language of the sentencing order. That is, instead of Thomas serving his manslaughter sentence first, for which he could be eligible for trusty time and meritorious earned time, he is serving his kidnapping sentence, which is a mandatory, day-for-day sentence.

¶ 11. Mississippi Code Section 99-19-21(1) (Rev. 2015) provides that if a person is sentenced for two or more convictions, "the imprisonment on the second, or each subsequent conviction shall, in the discretion of the court , commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction." While the Department is vested with the authority and discretion for the "management and control of the correctional system" pursuant to Mississippi Code Section 47-5-23, the Department's authority and discretion cannot usurp a clear directive from the court via its sentencing orders.

¶ 12. Therefore, the Department erroneously is having Thomas serve his kidnapping sentence before his manslaughter sentence, contrary to the circuit court's sentencing order. We remand for the circuit court to order the Department to correct the error, which has a direct impact on the case sub judice .

II. Sentence Reduction

¶ 13. Though we are remanding for the reason explained in Issue I, Thomas's argument that he is entitled to trusty time and meritorious earned time while serving his kidnapping sentence still will be an issue when Thomas begins serving his kidnapping sentence.

¶ 14. The crux of Thomas's argument is that, pursuant to 42 U.S.C. Section 14071 and 42 U.S.C. Section 16911, a "congressional exemption" has been created for parents convicted of kidnapping their own biological children from sex-offender registration. Thomas claims that the Mississippi statute, Section 45-33-23, finding his conduct to be a sex crime or sex offense must yield as it is in conflict with the federal statute and is a violation of his constitutional rights. See Miss. Code Ann. § 45-33-23 (Rev. 2015).

¶ 15. It is important to note that Section 14071 was repealed in 2009 and Section 16911 was transferred to 34 U.S.C. Section 20911, effective September 1, 2017, also known as the Sex Offender Registration and Notification Act. Nonetheless, Thomas is correct that the old statutes and the most current version ( Section 20911 ) contain language that does not include parents convicted of kidnapping their minor children in registration requirements. "The term 'tier III sex offender' means a sex offender whose offense is punishable by imprisonment for more than [one] year and-(B) involves kidnapping of a minor (unless committed by a parent or guardian) ...." 34 U.S.C.A. § 20911(4)(B). Section 14071(A)(i) stated: "The term 'criminal offense against a victim who is a minor' means any criminal offense in a range of offenses specified by State law which is comparable to or which exceeds the following range of offenses: (i) kidnapping of a minor, except by a parent[.]"

¶ 16. While Thomas contends the federal statutes are in conflict with our own statute, the difference is that the federal statutes are considered the floor or minimum of what a state must require in order to comply with the Sex Offender Registration and Notification Act. In the national guidelines to the implementation of the Sex Offender Registration and Notification Act, the federal government, through the Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, stated: "The Sex Offender Registration and Notification Act ... provides a new comprehensive set of minimum standards for sex offender registration and notification in the United States." Dep't of Justice, The National Guidelines for Sex Offender Registration and Notification , https://smart.gov/pdfs/final_sornaguidelines.pdf 3 (last visited March 13, 2018) (emphasis added). In a further explanation, the guidelines state:

[The Sex Offender Registration and Notification Act] establishes a national baseline for sex offender registration and notification programs. In other words, the Act generally constitutes a set of minimum national standards and sets a floor, not a ceiling, for jurisdictions' programs. Hence, for example, a jurisdiction may have a system that requires registration by broader classes of convicted offenders than those identified in [the Sex Offender Registration and Notification Act.]

Id. at 6 (emphasis in original). Finally, and most importantly to the present case, the guidelines explain that "[i]t is left to jurisdictions' discretion under these clauses whether registration should be required for such offenses in cases where the offender is a parent or guardian of the victim." Id. at 19.

¶ 17. Therefore, our statute and the federal statutes are not in "conflict" such that our statute violates Thomas's constitutional rights, as Thomas contends. Rather, our Legislature decided to expand the definitions found in the federal statutes to include, as a sex offense subject to classification and registration, the crime of kidnapping a minor under the age of sixteen. The Legislature's expansion of the sex-offender registration laws was permissible and not violative of Thomas's constitutional rights. Thomas's argument is without merit.

¶ 18. Thomas next argues that the Department is "unlawfully transforming Mississippi's sex offender registration statute into a criminal penalty ...." Thomas acknowledges and relies on the Court's opinion in Garrison v. State , 950 So.2d 990, 993 (¶ 4) (Miss. 2006), relying on Smith v. Doe , 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), wherein the Court explained that our sex-offender registration law was a "civil, non-punitive regulatory scheme." Thomas does not argue that the Court incorrectly decided Garrison or that the statute itself is punitive, but rather, it appears that he is arguing that the Department's actions denying him trusty time or meritorious earned time are punitive because it is "increasing his sentence." Thomas equates the Department's denial of any reduction to his sentence to be the Department "resentencing" him.

¶ 19. The Court has explained that the permissive language found in the sentence-reduction statutes means that "correctional officials are vested with discretionary power to award time under certain conditions, and therefore, inmates are not entitled to it." Ross v. State , 584 So.2d 777, 779 (Miss. 1991). Thomas's argument that his sentence is extended by the denial of any reduction presupposes that he is entitled to such reduction, which he is not. The Department requiring Thomas to serve his full, fifteen-year sentence, consistent with Sections 45-33-23 and 47-7-3, imposed by the circuit court, is not an extension or increase in Thomas's sentence.

CONCLUSION

¶ 20. In summary, Thomas was convicted of kidnapping a minor under the age of sixteen pursuant to Section 97-3-53. Section 45-33-23(h)(i) defines a sex offense as a conviction pursuant to Section 97-3-53"if the victim was below the age of eighteen (18)[.]" Pursuant to Section 47-7-3(1)(b), a person convicted of a sex crime or sex offense shall not be eligible for parole, and also, Section 47-7-3(2) provides that the person shall not be eligible to receive any "earned time, good time, or any other administrative reduction of time[.]" It is apparent that Thomas's conviction falls within each of the above statutes, making him ineligible for parole and ineligible for any reduction in his sentence. Therefore, we affirm the Marshall County Circuit Court's affirmance of the Department's denial of Thomas's claim that he is being improperly classified as a sex offender and is entitled to trusty time or meritorious earned time, as the decision is supported by substantial evidence, not arbitrary or capricious, not beyond the scope of the Department to make, and does not violate Thomas's constitutional rights. Additionally, we remand for the circuit court to order the Department to run Thomas's sentences consistently with the sentencing orders.

¶ 21. AFFIRMED AND REMANDED.

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

KITCHENS, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶ 22. I respectfully concur in part and dissent in part. I agree with the majority's decision to remand for the Circuit Court of Marshall County to order the Mississippi Department of Corrections (MDOC) to correct its error in calculating Thomas's sentences in a manner inconsistent with the sentencing orders. I disagree that Thomas is granted no relief on his claim that he is entitled to trusty time and meritorious earned time when he has served his kidnapping sentence. I would find that, because Thomas's kidnapping of his own children was lacking any sexual aspect, there is no rational basis for the MDOC to classify him as a sex offender under Mississippi Code Section 45-33-23(h)(i).

¶ 23. After killing his ex-wife, Thomas kidnapped their two children. He pled guilty to manslaughter and kidnapping, and he was sentenced to twenty years for manslaughter and fifteen years for kidnapping, with the kidnapping sentence to run consecutively to the manslaughter sentence. During the guilty plea colloquy, Thomas acknowledged that the kidnapped children had been under the age of sixteen. But no facts were adduced or even suggested to show that Thomas's act of kidnapping his children had any sexual motive, involved any sexual acts, or had any sexual component whatsoever.

¶ 24. The crime of kidnapping, in itself, is not a sex crime. Kidnapping is codified at Mississippi Code Section 97-3-53, which provides that "[a]ny person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will" is guilty of kidnapping. Miss. Code Ann. § 97-3-53 (Rev. 2014). However, Mississippi Code Section 45-33-23(h) provides that a " 'Sex offense' or 'registrable offense;' means any of the following offenses: ... (i) Section 97-3-53 relating to kidnapping, if the victim was below the age of eighteen (18)." Miss. Code Ann. § 45-33-23(h) (Rev. 2015). Under Mississippi Code Section 47-7-3(1)(b), a person convicted of a sex offense "shall not be released on parole," and under Section 47-7-3(2), such a person shall not be eligible for "earned time, good time or any other administrative reduction of time[.]" Miss. Code Ann. § 47-7-3(1)(b) (Rev. 2015); Miss. Code Ann. § 47-7-3(2) (Rev. 2015). The majority concludes that, under the above statutes, Thomas's kidnapping conviction is categorized as a sex offense; therefore, he is ineligible for parole or any reduction in his sentence.

¶ 25. I find it problematic that Thomas has been denied early release due to his classification as a sex offender when no factual basis has been established that his crime of kidnapping his children had any sexual aspect or ramification. I would find that Section 45-33-23(h)(i) is unconstitutional as applied to Thomas. Under the Fourteenth Amendment of the United States Constitution, the State shall not "deprive any person of life, liberty, or property, without due process of law...." U.S. Const. Amend. XIV. The Mississippi Constitution also affords due process protections. Miss. Const. Art. 3, § 14 ("[n]o person shall be deprived of life, liberty, or property except by due process of law."). Thomas is not a member of a suspect class and the State's denial of the possibility of early release does not implicate a fundamental right. See Bosarge v. State , 141 So.3d 24, 27 (Miss. Ct. App. 2014) (the State's denial of earned time and trusty time did not trigger heightened scrutiny). Therefore, under the federal and state due process clauses, to pass constitutional muster, the application of Section 45-33-23(h)(i) to Thomas must be rationally related to a legitimate government interest. Wells by Wells v. Panola Cty. Bd. of Educ. , 645 So.2d 883, 893 (Miss. 1994).

¶ 26. There is no rational basis for classifying Thomas as a sex offender. Logically, the government has a legitimate interest in rescinding early release opportunities for sex offenders to protect the public from those who commit crimes of a sexual nature.

The government also may have a legitimate interest in imposing heightened punishment on individuals who commit sex crimes. But Thomas's crime of kidnapping his minor children had no sexual aspect as an element of the crime. See Miss. Code Ann. § 97-3-53 (Rev. 2014). And no factual basis was established at the plea hearing that Thomas's particular acts were sexual in nature. Thus, the legitimate government interests of protecting the public from sex offenders and imposing heightened punishment on such offenders are not served by Thomas's classification as a sex offender. Because Thomas's kidnapping crime lacked any sexual aspect, denying him the opportunity for early release does nothing to protect the public from a sexual predator. Nor does denying him early release result in the increased punishment of someone who has committed a crime of a sexual nature.

¶ 27. I observe that the State's classification of a person convicted of kidnapping as a sex offender based only on the fact that the victim is a child, with no requirement that the kidnapping had a sexual aspect, risks including a significant number of offenders whose crimes were not sexual in nature. As this case illustrates, not every child kidnapping involves a sexual motive or act. Child custody disputes may erupt in kidnapping charges, with the charged parent under threat of perpetual registration as a sex offender if convicted, although the kidnapping crime lacked any sexual motive, sexual act, or sexual aspect whatsoever. See Montalto v. Miss. Dep't of Corr. , 2017 WL 4340273, at *1 n.1 (S.D. Miss. 2017). Kidnapping charges have arisen in the context of business robberies where the robber has confined the business's employees or patrons, and it is easy to conceive of a scenario in which a business's patrons include children under eighteen years of age. See Salter v. State , 876 So.2d 412 (Miss. Ct. App. 2003). A kidnapper might take a child for the sole purpose of holding him or her for ransom. Nothing justifies the classification of perpetrators of these nonsexual kidnappings as sex offenders, and the public gains nothing in the process. Because Thomas's kidnapping of his minor children was devoid of any sexual motive, act, or aspect whatsoever, I would find that Section 45-33-23(h)(i) is unconstitutional as applied to him.

KING, J., JOINS THIS OPINION.

      Thomas's innocence argument was that "he could not kidnap his own children, and that because his ex-wife was dead at the time he took the children, he could not have taken them against her will." Thomas , 2014 WL 3699922, at *3.

      In 2014, the Mississippi Legislature amended Section 45-33-23, so the language in subsection (g)(i) was moved and is now found in subsection (h)(i). There was no change to the language, only the location. See Miss. Code Ann. § 45-33-23 (Supp. 2017).


source: Caselaw Access Project

license: Public Domain

text:
    Charles NAYLOR a/k/a Charles Edward Naylor a/k/a Charles E. Naylor a/k/a Charles Ed Naylor v. STATE of Mississippi
    NO. 2017-KA-00604-SCT
    Supreme Court of Mississippi.
    April 5, 2018 Rehearing Denied August 9, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON
    BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. After discovering an interloper inside a parked, inoperable Volvo vehicle that he knew belonged to Bobby Brewer, Jerry McGill called the police, then pursued the man as he fled on foot. The police identified the man as Charles Naylor. Naylor had in his possession Brewer's global positioning system (GPS) and an insurance card that bore Brewer's name. He was convicted of burglary of an automobile and was sentenced, as an habitual offender pursuant to Mississippi Code Section 99-19-81 (Rev. 2015), to seven years' imprisonment without parole. On appeal, Naylor claims that the evidence was insufficient to support his conviction. Finding no merit in Naylor's claim on appeal, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jerry McGill owns an automobile mechanic shop in Hattiesburg, Mississippi, around the corner from Bobby's Muffler and Brake Shop (Bobby's Muffler), which is owned by Bobby Brewer. On October 29, 2015, McGill, who does mechanic work at night, was responding to a broken-down vehicle call when he drove by Bobby's Muffler. McGill noticed that a door was open on the Volvo parked outside Bobby's Muffler. McGill knew the vehicle belonged to Brewer.

¶ 3. When McGill stopped to close the door, a man raised his head inside the Volvo and got out. The man, whom law enforcement personnel later identified as Charles Naylor, walked over to McGill, who still was in his truck. Naylor informed McGill that the Volvo belonged to him, that he had dropped it off for repairs, and that Brewer was to work on it the next morning. McGill told Naylor that he worked at Bobby's Muffler and asked for Naylor's information, whereupon Naylor replied that the shop already had his information. When McGill snapped a photograph of Naylor, Naylor walked away. McGill telephoned the police at that point. He then got out of his truck, looked in the Volvo, and noticed that papers had been strewn about its interior and that the glove box had been "just tore all open ...."

¶ 4. McGill remained on the line with the police and followed Naylor, who was walking ahead, in his truck. McGill did not lose sight of Naylor and followed him until Naylor sat down on the sidewalk outside a McDonald's restaurant, located approximately a quarter mile from Bobby's Muffler. McGill, who was instructed to wait at a gas station across from the McDonald's, saw officers arrest Naylor outside the restaurant.

¶ 5. Officer Allen Grace of the Hattiesburg Police Department responded to McGill's call. Naylor was identified and was detained. In Naylor's possession, police found a global positioning system (GPS) unit and an automobile insurance card for a white Volvo which bore Bobby Brewer's name. Officer Grace testified that he had lifted some fingerprints from Brewer's Volvo but explained that those fingerprints were not Naylor's. According to Officer Grace, after apprehending Naylor, he had investigated the scene at Bobby's Muffler and found the Volvo unlocked with a door open; the vehicle's glove box also was open.

¶ 6. Bobby Brewer testified at Naylor's trial that the Volvo had been inoperable, locked, and parked in front of his shop until the alleged burglary and that "[i]t had been locked for sometime [sic] ...." He continued that his insurance card had been in the glove box and that his "GPS was either [lying] on the floorboard or somewhere other than the glove box."

¶ 7. Naylor was convicted of burglary of an automobile and was sentenced by the Circuit Court of Forrest County, as an habitual offender pursuant to Mississippi Code Section 99-19-81 (Rev. 2015), to seven years' imprisonment without parole. On appeal he claims that the State failed to "prove that Naylor actually broke into Mr. Brewer's Volvo[;] therefore, the evidence was insufficient and the verdict was contrary to the weight of the evidence."

STANDARD OF REVIEW

¶ 8. "When reviewing a challenge for sufficiency of the evidence, this Court must determine 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.' " Ambrose v. State , 133 So.3d 786, 791 (Miss. 2013) (citations omitted). "The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence." McClain v. State , 625 So.2d 774, 778 (Miss. 1993).

[I]f a review of the evidence reveals that it is of such quality and weight that, "having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense," the evidence will be deemed to have been sufficient.

Shelton v. State , 214 So.3d 250, 256 (Miss. 2017) (citations omitted).

¶ 9. "When the weight of the evidence is challenged, this Court 'will reverse only when the verdict [is] so contrary to the weight of the evidence that to allow it to stand would sanction an unconscionable injustice.' " Christian v. State , 207 So.3d 1207, 1214 (Miss. 2016) (quoting Wales v. State , 73 So.3d 1113, 1121 (Miss. 2011) ).

ANALYSIS

¶ 10. "Every person who shall be convicted of breaking and entering, in the day or night, any ... automobile ... with the intent to steal therein ... shall be guilty of burglary and imprisoned in the penitentiary not more than seven (7) years." Miss. Code Ann. § 97-17-33(1) (Rev. 2014). Actual breaking has been defined by this Court as " 'any act of force, however slight, "employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or closed.' " ' Johnson v. State , 235 So.3d 1404, 1410 (2017) (quoting Templeton v. State , 725 So.2d 764, 766 (Miss. 1998) (quoting Smith v. State , 499 So.2d 750, 752 (Miss. 1986) ) ).

¶ 11. Naylor argues that, "with the evidence presented, it is just as likely that Naylor came upon the Volvo with the door already open and Naylor merely trespassed in the Volvo and committed petit larceny." But under this Court's standard for reviewing challenges to the sufficiency of the evidence, even if, "having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence is sufficient." Shelton , 214 So.3d at 256. Moreover, " 'when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony.' " Little v. State , 233 So.3d 288, 292 (Miss. 2017) (quoting Gathright v. State , 380 So.2d 1276, 1278 (Miss. 1980) ). Brewer testified that the Volvo was locked outside Bobby's Muffler at the time of the crime and that it had been locked for some time. In his closing argument, Naylor contended that he merely had happened upon a Volvo with an open door. Despite Naylor's contention to the contrary, the jury was entitled to believe Brewer's testimony that his Volvo had been locked until the alleged burglary.

¶ 12. In 1997, this Court adopted and applied a standard by which a defendant's participation in a burglary can be inferred by the defendant's possession of recently stolen property. Shields v. State , 702 So.2d 380, 382 (Miss. 1997). "That is, 'the inference of participation in the crime drawn from possession of the fruits of the crime is to be judged like any other inference, that is, on the strength of that inference in the light of the facts of each particular case.' " Id. (quoting Cosby v. Jones , 682 F.2d 1373, 1383 (11th Cir. 1982) ). Of course, "[t]he circumstances of possession and the presence or absence of evidence of participation in the crime other than mere possession must be viewed." Shields , 702 So.2d at 382 (citing Cosby , 682 F.2d at 1380, 1382-83 ). This Court noted some "common sense circumstances to be considered" in determining whether a burglary can be inferred from a defendant's possession of stolen items:

1. The temporal proximity of the possession to the crime to be inferred;
2. The number or percentage of the fruits of the crime possessed;
3. The nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge;
4. Whether an explanation is given and whether that explanation is plausible or demonstrably false.

Id. at 383 (quoting id. ).

¶ 13. In Shields , the defendant offered to sell three guns at a pawn shop the same day the guns had been stolen and their owner's house had been burglarized. Shields , 702 So.2d at 381. The pawn shop purchased two of the guns. Id. The third gun, which was not purchased by the pawn shop, was recovered at the pawn shop. Id. In affirming Shields's conviction, this Court considered the circumstances:

The first factor, the temporal proximity of possession, lends great strength to the inference that Shields committed the burglary. There is evidence that Shields possessed fruits of the burglary on the same day of the burglary. The second factor also lends strength. Three of the four items taken were identified in Shields' possession. The third factor detracts from the inference. Shields sold these guns, bearing serial numbers, in his own name without any attempt to hide his identity. Finally, the fourth factor lends strength to the inference, since Shields offered no explanation whatever. Although there is evidence that he told the pawnbroker that he bought and sold guns all of the time, there is no indication that he bought these guns or acquired them in any other manner.

Id. at 383.

¶ 14. Naylor claims that "more than proximity is needed" to sustain a burglary conviction. But evidence that Naylor possessed fruits of the burglary on the same day of the burglary when he was apprehended a quarter mile from the site of the burglary strengthens the inference that Naylor committed the burglary. Moreover, Naylor had not been out of McGill's sight from the time he walked away from the Volvo until he was taken into police custody. The first Shields "common sense circumstance," the temporal proximity of possession, is satisfied. Both items, the GPS and the insurance card, were found in Naylor's possession and, therefore, the second factor also strengthens the inference that Naylor committed the burglary. The third factor neither strengthens nor detracts from the inference that Naylor committed the burglary because the record does not reflect whether he attempted to conceal the contraband. Officer Grace could not remember whether the items were found in Naylor's backpack or in his pocket. The fourth factor strengthens the inference, because, according to Officer Grace's testimony, Naylor could not explain his possession of Brewer's insurance card.

¶ 15. Nevertheless, this Court also must consider the "circumstances of possession and the presence or absence of evidence of participation in the crime other than mere possession ...." Shields , 702 So.2d at 382 (citing Cosby , 682 F.2d at 1380 ). Plentiful evidence beyond the mere circumstance of Naylor's possession of the stolen items supports an inference that Naylor burglarized Brewer's Volvo.

¶ 16. McGill testified that he had seen a man later identified as Naylor in the Volvo, which McGill knew belonged to Brewer, with one of the vehicle's doors open. McGill testified that Naylor falsely claimed both that the car belonged to him and that he had dropped the car off to be repaired. McGill continued that, when he photographed the Volvo's occupant with his cellular phone, the man walked away. McGill then stated that he had called the police and remained on the line with the police while, in his truck, he followed Naylor, who was walking ahead on foot. McGill never lost sight of Naylor and followed him until Naylor sat down on the sidewalk outside a McDonald's, located approximately a quarter mile from Bobby's Muffler. McGill then witnessed officers arrest Naylor outside the McDonald's. In Naylor's possession, police found a global positioning system (GPS) unit and an automobile insurance card for a white Volvo which had Bobby Brewer's name on it.

¶ 17. Naylor references Ladd v. State , in which the Mississippi Court of Appeals held that "the mere act of walking through a raised, open garage door does not constitute an 'act of force, however slight, employed to effect an entrance' and is not a 'breaking.' " Ladd v. State , 87 So.3d 1108, 1115 (Miss. Ct. App. 2012). And this Court approved the decision of the Court of Appeals in Watson v. State : "We agree with the Court of Appeals in Ladd [ ] that merely walking through an open door does not satisfy the 'breaking' requirement for burglary of a dwelling." Watson v. State , 123 So.3d 446, 448 (Miss. 2013). However, in Ladd , the crime victim testified that she had left the garage door open. Ladd , 87 So.3d at 1114. Here, Brewer testified that his Volvo had been locked at the time Naylor is alleged to have burglarized it. The jury was entitled to believe Brewer's testimony.

¶ 18. While Naylor references an argument that the verdict was contrary to the overwhelming weight of the evidence in his brief's argument summary, he presents no further argument or authority in support of this claim. This Court "is under no obligation to consider an assigned error without citation to authority." Brown v. State , 798 So.2d 481, 497 (Miss. 2001) (citing Brown v. State , 534 So.2d 1019, 1023 (Miss. 1988) ).

CONCLUSION

¶ 19. Because the evidence was sufficient to support Naylor's conviction of burglary of an automobile, we affirm.

¶ 20. AFFIRMED.

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

      This photograph, taken with McGill's cellular telephone, was introduced in evidence as Exhibit 1 and shown to the jury.


author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    Jerry Lynn LOFTON a/k/a Gerry Lynn Lofton a/k/a Gerry Lofton a/k/a Jerry Loftin a/k/a Jerry Lofton v. STATE of Mississippi
    NO. 2016-KA-00990-SCT
    Supreme Court of Mississippi.
    April 26, 2018 Rehearing Denied August 9, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE RANDOLPH, P.J., MAXWELL AND BEAM, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. A jury found Jerry Lofton guilty of murder. He was sentenced as a habitual offender to life without parole. Lofton now appeals, claiming he was forced to proceed pro se without knowingly or voluntarily waiving his right to an attorney. But the record shows he was not left to his own defense as a pro se litigant. Instead, after being warned of the dangers of self-representation, he asked for and received a "hybrid defense." Lofton made it clear he wished to take the "lead" role in a "co-counsel" arrangement with his court-appointed attorney. And the judge allowed him to proceed in that fashion. Because Lofton "received the best of both worlds-the assistance of counsel while conducting his own defense[,]" he cannot now complain that he was wholly pro se or received inadequate warnings.

¶ 2. We thus affirm.

Background Facts and Procedural History

I. Pretrial

¶ 3. Edroy James Ballard Jr. was shot and killed on June 3, 2014, in Horn Lake, Mississippi. A DeSoto County grand jury charged Lofton with Ballard's murder. Lofton was deemed indigent, and Adam Emerson was appointed to represent him. Several months later, Emerson filed a motion to reconsider Lofton's indigent status. Emerson informed the trial court that Lofton had refused to meet with him and wished to hire private counsel. Lofton, who had made a $100,000 bond and was employed, told the judge he desired to hire his own attorney. In response, the judge gave Lofton time to secure a private attorney. But he required Emerson to continue his representation of Lofton until Lofton hired a new lawyer. Though Lofton never hired private counsel, he had been granted trial continuances and given considerable time to do so.

¶ 4. Then, during a February 4, 2016 hearing, Lofton mentioned representing himself. The judge warned Lofton that his murder charge was very serious. And he "certainly would be no match for the State of Mississippi" if he tried to represent himself. At this point, the judge refused to let Lofton proceed without some type of counsel. The judge also instructed Lofton that if he wanted private counsel, he should secure an attorney quickly.

¶ 5. Months later, during a status hearing, Lofton asked the court if he could participate in some role in his defense. He insisted he wanted a hybrid defense-a defense in which he would approve all legal decisions and take the "lead" role in a "co-counsel" arrangement. The judge again warned Lofton of the associated dangers of this arrangement. But he granted Lofton's request, instructing Emerson to remain as appointed "co-counsel."

¶ 6. Less than a month later, Lofton filed a motion for new counsel. He claimed he and Emerson could no longer work together. Despite Lofton's complaints, the judge found Emerson had represented Lofton quite well and had diligently pursued his case. Still, the judge granted Lofton's request and removed Emerson as counsel. The judge then appointed Stacey Spriggs as Lofton's new attorney on July 22, 2016.

¶ 7. On August 19, 2016, the trial court conducted a hearing, entertaining arguments on numerous motions filed by Lofton. Lofton began with a motion for recusal. He argued the judge was biased against him because he had refused to reconsider revoking his bond. Spriggs informed the judge he had spoken at length with Lofton about the bond-revocation hearing, the burden of proof, and evidentiary matters, and had counseled against a motion for recusal. The judge found no basis to recuse and denied the motion. Lofton also moved for new appointed counsel, claiming Spriggs too was biased against him. He insisted they had trouble talking over the phone, and some mail had been returned when Spriggs moved offices. The judge found no basis to remove Spriggs and denied the motion.

¶ 8. Six days before trial, the judge heard the State's motion to amend Lofton's indictment to reflect his habitual-offender status. The State presented certified copies of two of Lofton's prior felony convictions. Lofton objected, arguing he needed more time to verify the authenticity of the copies. His objection was overruled, though the judge gave him time to review the documents. After that opportunity, the judge granted the State's motion to amend the indictment. Lofton again moved for new counsel. He claimed Spriggs had laughed at him during the previous hearing. He also reurged his returned-mail claim and that Spriggs was biased against him. The judge denied the motion, noting Spriggs had acted professionally while representing Lofton. In fact, he did not see Spriggs laugh, much less smile, during the previous hearing.

II. Trial

¶ 9. Lofton's trial began on September 12, 2016. The judge first determined Lofton was competent to stand trial. And almost immediately after, Lofton began hurling complaints about Spriggs. The judge again denied his request for new counsel. Dissatisfied, Lofton declared he did not want Spriggs to help represent him. He repeatedly mentioned he had the right to waive his attorney and wanted to invoke that right. Recognizing the pitfalls ahead, the judge required Spriggs to remain at the defense table with Lofton. And throughout trial, Spriggs, in fact, consulted with Lofton and assisted him in his defense.

¶ 10. Trial proceeded and, during voir dire, Lofton and Spriggs each addressed the jury. And Spriggs made peremptory challenges based on Lofton's directions. During voir dire, Lofton continued to complain about Spriggs. He also objected to the order of peremptory strikes and tried repeatedly to derail the trial, urging the proceeding was unfair. The trial judge noted Lofton's statements and objections but overruled his objections.

¶ 11. After the jury was selected, Lofton again asked to waive counsel. But the judge required Spriggs to remain as counsel to assist in any role Lofton desired. Once the State had made its opening statement to the jury, Lofton opted to deliver his own opening. The State then proceeded with its case, calling three eyewitnesses-Keith Patterson, Daphne Patterson, and Lashawn Wright. All three were present the day of Ballard's murder. And each testified they had seen Lofton with a revolver. They also had seen him flee in a vehicle immediately after the shooting. Wright specifically testified that Lofton came inside and asked another woman, Dontia Mickens, for her car keys and said "I had to hurt one of these n*****s." Wright explained that Mickens refused to give Lofton her keys but did drive him away from the scene. Lofton cross-examined each witness. And he consulted Spriggs for guidance during Wright's cross-examination. The State also called Detective Daniel Pounders, who investigated Ballard's murder, and Kristopher Wingert, who processed the crime scene. The State then called Dr. Mark LeVaughn, a medical examiner, and Starks Hathcock, a forensic firearms analyst. The bulk of these four witnesses' collective testimony was that: (1) Ballard's death was a homicide, (2) Ballard had been shot three times and his body was near Lofton's car, (3) no shell casings were found, and (4) the projectiles removed from Ballard's body were fired from the same .38 revolver. Lofton again opted to conduct the cross-examinations himself. The State then rested.

¶ 12. Lofton moved for a directed verdict, arguing the State had failed to meet its burden of proof. The judge disagreed. He found the State had made a prima facie case of murder and denied a directed verdict. The judge then asked if Lofton was ready to proceed with his witnesses. Lofton informed the judge he had no witnesses. He claimed he had insufficient time to provide witness names to Spriggs. The judge asked if Lofton was resting his case. Lofton said he was. And the judge confirmed Lofton's decision two more times. Before moving forward, the judge asked him if there was anything else he wanted to put in the record. Lofton told the judge no.

¶ 13. Before closing arguments, Lofton and Spriggs consulted about jury instructions. Lofton objected to the State's proposed instruction that the jury not draw negative inferences from his decision not to testify in his defense. Lofton claimed this was an improper comment on his right to remain silent. The judge overruled this objection. The jury was instructed, and the parties made their closing arguments. Lofton presented his own closing argument. The jury then retired to deliberate.

¶ 14. At some point after deliberations began, the jury sent the judge a note asking if Lofton was allowed to call any witnesses. The judge responded with a note, explaining the defense "chose not to call any witnesses," and he instructed the jury to continue its deliberations. Lofton objected. For the first time, he claimed the defense had issued some subpoenas for witnesses and documents, but they were misdated-commanding an appearance for the following day. The judge reminded Lofton that he had specifically asked him-before he rested-if the defense wished to call any witnesses, and Lofton had told him no. So the objection was overruled. But the judge noted that, according to the court clerk, some subpoenas had not yet been returned because they were for out-of-state witnesses, while other subpoenas were returned showing the witnesses as not found. He did allow Lofton to make a record that some subpoenas were filed with an incorrect date.

¶ 15. The jury found Lofton guilty of Ballard's murder. The judge heard Lofton's post-trial motions on November 22, 2016. In his motion for a new trial, Lofton argued he was forced to proceed pro se and never intelligently waived counsel. He argued his right to present witnesses was violated, the State withheld discovery, and that all of the State's witnesses had lied. He also argued the all-white jury rendered his trial unfair. The trial judge denied Lofton's post-trial motions. He sentenced Lofton as a habitual offender to life in prison without parole. Lofton now appeals.

¶ 16. Lofton's appellate counsel raises two issues. He argues that, although Lofton proceeded with the assistance of counsel, Lofton essentially was a pro se defendant at trial and was not given proper warnings about self-representation. Alternatively, he suggests Lofton's hybrid counsel was ineffective for misdating subpoenas to secure documents and witnesses for trial.

¶ 17. Lofton has also written his own pro se brief. In it, he claims: (1) a jury instruction improperly commented on his right to remain silent, (2) the judge denied him the right to present witnesses and evidence, (3) the State withheld exculpatory evidence, (4) his attorney was ineffective, (5) he was unfairly surprised by the State's witness Daphne Patterson, (6) all African-American potential jurors were wrongly struck, and (7) the State improperly amended his indictment.

Discussion

I. Lofton's Representation

¶ 18. From the outset, the record shows the trial judge and both of Lofton's appointed attorneys exhibited tremendous patience and professionalism as Lofton flip-flopped often in his requests for representation. One moment he wanted private counsel; the next he wished to represent himself in some fashion. But what did remain constant, as trial approached, was Lofton's demand to play a substantial role in his defense. As he pointedly put it, he preferred "hybrid representation." And he asked for a lead role in a co-counsel arrangement, where his appointed attorney would not make any decisions without Lofton's approval. The trial judge ultimately granted this request, allowing Lofton to represent himself with assistance of appointed counsel.

¶ 19. Despite the judge crafting the exact hybrid arrangement Lofton proposed, Lofton and his appellate counsel now argue Lofton was really a pro se defendant at trial. And they argue the trial judge's warnings about the dangers of self-representation were not specific enough. In other words, Lofton did not understand the pitfalls of self-representation. So his decision to proceed pro se was not knowing or voluntary. The record certainly does not support this. Nor does it support that Lofton's defense was wholly pro se.

A. Lofton's Request to Participate

¶ 20. The Sixth Amendment to the United States Constitution grants every criminal defendant a right to the assistance of counsel. U.S. Const. amend. VI. To assess if a decision to proceed pro se was "knowingly and intelligently" made, we review whether the defendant was "made aware of the dangers and disadvantages of self-representation[.]" Faretta v. California , 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (citations omitted). What the record should show is that the defendant "knows what he is doing and his choice is made with eyes open." Id. (citation omitted).

¶ 21. Although Lofton was never without assistance of counsel, the record does show he was specifically warned about and professed an appreciation of the dangers of pro se representation. When an inkling arose of Lofton's desire to participate in his defense, the judge asked if he really wanted to represent himself. In response, the following exchange occurred:

Lofton: Well, do you want a yes or no answer? I would like to answer that like this. I think Abraham Lincoln said that a man who represented himself has a fool for a client. If I have a good attorney, I don't want to represent myself.
The Court: Have you ever heard of Lou Holtz?
Lofton: Yes, sir.
The Court: Lou Holtz said that not everybody can be a lawyer or doctor, but everybody thinks they can be a football coach.
Lofton: All right. Okay.

After making this analogy, the judge emphasized that murder was a "very serious charge." And the judge warned Lofton that he "would certainly be no match for the State of Mississippi." Having cautioned Lofton about self-representation, the judge still required Lofton's initial appointed counsel to continue to represent him.

¶ 22. But these admonitions aside, we need not dwell on the judge's precautionary warnings or matters of waiver because Lofton "was never left to his own defense" as a wholly pro se litigant. Hearn v. State , 3 So.3d 722, 734 (Miss. 2008) (waiver of counsel or adequate warning analysis is unnecessary when a defendant has hybrid representation); see also Metcalf v. State , 629 So.2d 558, 564 (Miss. 1993) (defendant's argument that trial court erred by not conducting a waiver-of-counsel inquiry was misguided because defendant had hybrid representation). Instead, Lofton initially was fully represented by counsel and, later, through hybrid representation when he opted to participate in his own defense.

¶ 23. Having been advised of the danger of pro se representation, Lofton later told the judge "I'd like to play a role in my defense." Or, as he more specifically put it, he wanted "to play the lead." The judge warned Lofton that he was "not a lawyer." To avoid any misunderstanding of his desires, Lofton explained to the judge:

What I'm saying is under the rules of URCCC, under the Uniform Rules of Circuit and County Court ..., I would like to exercise my right to play a role in my defense. I would like for it to be a hybrid defense , and I would like to play the lead.

(Emphasis added.) The judge granted Lofton's proposed arrangement. With the assistance of counsel, he said Lofton could have "such participation as [he] want[ed]."

B. Hybrid Representation

¶ 24. The aim of hybrid representation is "to strike a balance between the right to counsel and the right to self-representation." Henley v. State , 729 So.2d 232, 236 (Miss. 1998). "Hybrid representation consists of 'the participation by an attorney in the conduct of the trial when the defendant is proceeding pro se.' " Hearn , 3 So.3d at 734 (quoting Metcalf , 629 So.2d at 562-63 ). It stems from the Mississippi Constitution, Article 3, Section 26, which states that "[i]n all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both ...." (Emphasis added.) The following factors are relevant when determining if a defendant has proceeded pro se or received hybrid representation:

The defendant's accessibility to counsel; whether and how often he consults with counsel up to the point of the request; the stage of trial at which he requests a participatory role in his defense; the magnitude of the role he desires to assume; whether the trial court encourages immediate and constant accessibility of counsel; and the nature and extent of assistance of counsel which has been provided up to the point of the request, including both procedural and substantive aid.

Hearn , 3 So.3d at 734 (quoting Metcalf , 629 So.2d at 565 ).

¶ 25. Considering these factors, the record shows Lofton always had access to counsel. Lofton's first court-appointed lawyer, Emerson, fully represented him. Emerson conducted discovery, represented Lofton at several hearings, personally examined and cross-examined witnesses at hearings, and filed a variety of motions on Lofton's behalf. Then, nearly three months before trial, Lofton requested a "lead counsel" role in a "co-counsel" defense. The trial judge made sure he understood Lofton's precise request, confirming Lofton wanted to make all decisions and take a lead role in his defense with Emerson's assistance. And when the judge relieved Emerson and appointed Spriggs to represent Lofton, he did so under the same hybrid-representation arrangement that Lofton had previously requested.

¶ 26. With Lofton taking the lead, Spriggs was not as involved as Emerson. But he was present at all court appearances. And he assisted Lofton in some fashion at every proceeding from his appointment until Lofton's appeal. Much as lead counsel would typically do, Lofton filed motions, made arguments at motion hearings, cross-examined witnesses, made objections, and gave his own opening statement and closing argument to the jury. But Spriggs was still very much involved with Lofton's defense. Spriggs consulted Lofton on pretrial motions and offered opinions about various issues. He also assisted Lofton in voir dire and addressed the jury. He participated in jury selection and lodged peremptory challenges. And he also consulted with Lofton during his cross-examination of Lashawn Wright. Spriggs helped when Lofton struggled laying evidentiary foundations to impeach a witness. And when the judge sustained objections to the admission of some evidence, Spriggs had exhibits marked for identification for appellate review. He also consulted Lofton on jury instructions. And he helped Lofton during the post-trial hearing, conferencing with him several times about motions and arguments.

¶ 27. The relevant facts and legal arguments before us are quite similar to those this Court faced in Hearn v. State . In that case, after being found guilty of intimidating a judge, the defendant appealed and, like Lofton, argued he was "forced" to proceed pro se. Hearn , 3 So.3d at 732. But after considering "the totality of the circumstances," this Court disagreed. Id. at 735. We found Hearn, like Lofton, received hybrid representation. His attorney "was available throughout the entire trial and participated on several occasions." Id. So his legal "role was 'not merely that of a skilled bystander, but of a substantive litigator.' " Id. (quoting Metcalf , 629 So.2d at 565 ). Because Hearn was "never ... fully without the assistance of counsel," he could not "now complain about inadequate warnings ...." Id.

¶ 28. Lofton's situation is analogous to Hearn . From early on, well before trial, Lofton specifically asked to be lead counsel. And just as he wished, no decisions were made without his approval. While at times during trial Lofton became frustrated and claimed he wanted to waive counsel, the judge required Spriggs to continue to assist Lofton, as Lofton desired. And Spriggs in fact remained constantly accessible, rendering both procedural and substantive assistance before, during, and after Lofton's trial. So, in short, Lofton "received the best of both worlds-the assistance of counsel while conducting his own defense." Hearn , 3 So.3d at 735. And because Lofton was never left to his own defense, the trial court was not required to insure he properly waived counsel or warn him as though he were wholly pro se. Id.

II. Ineffective Assistance of Counsel

¶ 29. Lofton's next argument takes the opposite approach of his first. Though he initially pitched that he was forced to proceed wholly pro se, he alternatively argues his trial attorney was ineffective for filing trial subpoenas with incorrect appearance dates.

¶ 30. This balancing act by Lofton proves difficult because when a defendant proceeds wholly pro se, any standby counsel is "without authority, discretion or control...." Estelle v. State , 558 So.2d 843, 847 (Miss. 1990). So any "charge that [Spriggs] rendered constitutionally ineffective assistance is without merit." Id. In other words, a defendant cannot complain of ineffective assistance of counsel if he or she proceeds with appointed counsel only standing by to provide assistance if called upon. Thus, if Lofton had proceeded wholly pro se, as he urges, he has no Strickland claim. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 31. But in truth, Lofton received hybrid representation. We consider this fact along with the principle that, typically, ineffective-assistance claims are "more appropriately brought during post-conviction proceedings." Archer v. State , 986 So.2d 951, 955 (Miss. 2008). "This is because during direct appeals the Court is limited to the trial court record in its review of the claim ...." Id. And from this record, we cannot discern much about his subpoena claim.

¶ 32. After the jury began deliberating, Lofton for the first time took issue with some trial subpoenas. At that point, he tried to make a record about those subpoenas and who bore the blame for supposedly incorrect appearance dates. Lofton claims Spriggs filed eight subpoenas with an incorrect appearance date. But the record does not contain any filed, returned copies of those subpoenas. Nor do any of those eight subpoenas bear Spriggs's certification signature, while previous subpoenas do. The judge did mention that the court clerk had informed him that some recipients were either in Memphis or could not be located. But other than that, there is little discussion and the record is pretty bleak. There is no definitive proof or finding about who actually prepared those eight subpoenas or any mention why September 14, 2016, was selected as the appearance date. Nor is it apparent why Lofton failed to seek a continuance, much less mention the allegedly defective subpoenas, when the State rested and defense witnesses were not present. Furthermore, the State does not stipulate that the record is sufficient to review this issue on direct appeal. See Read v. State , 430 So.2d 832, 841 (Miss. 1983). Rather, it insists the record is lacking for Strickland purposes.

¶ 33. In cases like this, where the record is insufficient to address a Strickland claim, this Court denies relief, preserving the defendant's right to raise the issue through a post-conviction-relief petition. Archer , 986 So.2d at 955. And we do so here.

III. Jury Instruction Eleven

¶ 34. Lofton next claims that the judge improperly instructed the jury to not draw unfavorable inferences against Lofton for him exercising his right to remain silent and not testify in his defense. The State proposed this instruction, which the judge granted over Lofton's objection that the instruction impermissibly commented on his right to remain silent.

¶ 35. "Jury instructions are generally within the discretion of the trial court[.]" Moody v. State , 202 So.3d 1235, 1236-37 (Miss. 2016) (citation omitted). If the given instructions fairly state the law and create no injustice, there is no reversible error. Fears v. State , 779 So.2d 1125, 1127 (Miss. 2000).

¶ 36. Typically it is the defendant, not the State, who requests the jury be instructed against drawing negative inferences when a defendant chooses not to testify. E.g. , Ragan v. State , 318 So.2d 879, 880-81 (Miss. 1975) ; Wood v. State , 221 Miss 901, 907, 74 So.2d 851, 853 (1954) ; Funches v. State , 125 Miss. 140, 87 So. 487, 488 (1921). "[I]t is subject to debate whether such an instruction helps or harms the defendant who does not testify." Schuck v. State , 865 So.2d 1111, 1124 (Miss. 2003). Often, there are tactical reasons in play when a defendant opts for or against the instruction.

¶ 37. Mississippi has never addressed a trial judge giving, over a criminal defendant's objection, a cautionary instruction that the jury not draw any adverse inference from the defendant's decision not to testify. But the United States Supreme Court has. In Lakeside v. Oregon , the Supreme Court recognized "it may be wise for a trial judge not to give such a cautionary instruction over a defendant's objection." Lakeside v. Oregon , 435 U.S. 333, 340, 98 S.Ct. 1091, 1095, 55 L.Ed.2d 319 (1978). Even so, the high court held "the giving [by a State trial judge] of such an instruction over the defendant's objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments." Id. at 340-41, 98 S.Ct. at 1095. This Court agrees. While the better practice is to follow the defendant's strategic choice, a proper cautionary instruction concerning a defendant's failure to testify, even when given over defendant's objection, is not itself prejudicial error.

¶ 38. Looking at instruction eleven, it fairly states the law that the jury not draw unfavorable inferences against Lofton for his exercising his right to remain silent and not testifying in his defense. See U.S. Const. amend. V ; Miss. Const. art. 3, § 26. Thus, there is no prejudice, injustice, or reversible error.

IV. Self-Defense Theory

¶ 39. Lofton next claims he was wrongly kept from calling witnesses or presenting evidence. Thus, he was hindered from pursuing a self-defense theory and jury instruction. There is no support for this assertion.

¶ 40. Nowhere in the record did the judge deny Lofton the right to present witnesses or evidence. What actually happened was that Lofton showed up for trial without either. He rested without even attempting to call witnesses, offer any evidence, or otherwise present a defense. Furthermore, Lofton never requested a self-defense instruction. Still, even if he had, there was no evidentiary support to grant it. Hearn , 3 So.3d at 739. This Court does not hold trial judges in error over instructions that were never requested. Cf. Rubenstein v. State , 941 So.2d 735, 788-89 (Miss. 2006). And it would be improper to do so here.

¶ 41. Because the trial judge did not deny Lofton the right to present witnesses or evidence, there is no error.

V. Brady Violation

¶ 42. Lofton also suggests the State improperly withheld exculpatory evidence, entitling him to a new trial. The evidence he mentions concerns a forensic interview of his seven-year-old son Lynn-an interview he suggests somehow shows Lofton's shooting was justified or committed in the heat of passion. After review, there is no indication that favorable evidence was suppressed and we see no cognizable Brady claim.

¶ 43. Under Brady v. Maryland , "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). " Brady claims involve the discovery, after trial of information which had been known to the prosecution but unknown to the defense." West v. Johnson , 92 F.3d 1385, 1399 (5th Cir. 1996) (internal quotation marks and citation omitted). But evidence is not deemed suppressed if "the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence." Id. (citation omitted). See also Rector v. Johnson , 120 F.3d 551, 560 (5th Cir. 1997) ; Williams v. Scott , 35 F.3d 159, 163 (5th Cir. 1994). And the State has no obligation to furnish a defendant with exculpatory evidence that is fully available to the defendant or that could be obtained through reasonable diligence. Gibbs v. Johnson , 154 F.3d 253, 256 (5th Cir. 1998).

¶ 44. Here, Lynn Lofton's interview is not part of the record before us. But the material portions Lofton now claims were suppressed are contained in a report by Dr. Criss Lott. This report was provided to the State; Lofton's first attorney, Emerson; and the court. At a June 17, 2016 hearing, at which Lofton was present, Emerson stated he had received Dr. Lott's report. So Lofton's counsel had a copy of it. And at no point did Lofton claim he had not received or seen the report, which the judge considered when determining Lofton's competency.

¶ 45. According to Dr. Lott's report, on the day of the shooting, a forensic interviewer from a child advocacy center spoke with Lofton's son. The seven-year-old told the interviewer that Ballard was lying on the ground when his dad shot him four times. Lynn recalled that after Lofton shot Ballard, Lofton asked him "how you like it." Dr. Lott's report also notes that Lynn had mentioned to the interviewer that, before the shooting, his dad told Ballard "he doesn't have any business messing with these kids"-meaning Lynn and his sister. But Lott's report recounts Lynn did not elaborate what this meant. Lynn told the investigator the man had only said "hello" to him and his sister, and did not detail how Ballard was messing with them. There is also mention in Lott's report that Lofton's getaway driver, Dontia Mickens, told police she heard the gunshots. At that point, Lofton "came running inside" and told her "I shot him, I shot him. He kept messing with the kids." Lofton was holding a gun when he asked her to help him flee.

¶ 46. Beyond Dr. Lott's report, at Lofton's bond-revocation hearing, an officer testified that Lynn had told a forensic interviewer that he had seen his father shoot someone. Lofton's girlfriend also testified at the hearing. She too testified that their seven-year-old son Lynn had seen Lofton shoot someone. She also explained that Lofton had been trying to coax Lynn into falsely claiming someone else had shot the victim.

¶ 47. Again, there is no Brady suppression if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence. See Lawrence v. Lensing , 42 F.3d 255, 257 (5th Cir. 1994) ; see also West , 92 F.3d at 1399. Here, the State exercised an open-file policy, providing Lofton's attorney inspection of all materials in its possession. Furthermore, the State gave Lofton's attorney a copy of Mickens's statement to the police. And his attorney also received a copy of Dr. Lott's report, detailing Lynn's interview and Mickens's statement. Lofton was also present during his bond-revocation hearing where Lynn's interview was discussed. Because Lofton was certainly well aware of the essential facts he now claims were withheld, there was no Brady suppression.

¶ 48. Furthermore, the Brady rule applies only to exculpatory and impeachment evidence-not to inculpatory or neutral evidence. United States v. Nixon , 881 F.2d 1305, 1308 (5th Cir. 1989). See also Andrews v. Collins , 21 F.3d 612, 626 (5th Cir. 1994) ; Lawrence , 42 F.3d at 257. So, to the extent the gist of this evidence was inculpatory, i.e., that Lynn affirmatively stated his father had shot Ballard while he was on the ground, it does not qualify as Brady material.

VI. Discovery Violation

¶ 49. Though the record before us does not show the State listing Daphne Patterson as a trial witness, she testified at Lofton's trial. Lofton now claims the non-disclosure unfairly surprised him and amounted to a discovery violation.

¶ 50. If the State attempts to call a previously undisclosed witness, the defense may object and be afforded an opportunity to interview the witness. URCCC 9.04(I). If, after the interview, the defense claims unfair surprise or prejudice, the judge may either exclude the witness or grant a continuance or mistrial. Id. Lofton did not object to Patterson testifying at trial. Instead, he cross-examined her and had even attempted to subpoena her himself. Because Lofton did not object or in any way claim unfair surprise at trial, he has not preserved a discovery-violation-based claim. See Brewer v. State , 725 So.2d 106, 121 (Miss. 1998). See also Havard v. State , 928 So.2d 771, 791 (Miss. 2006). Thus, he has forfeited this claim.

VII. Batson Violation

¶ 51. During voir dire, Lofton used his own peremptory challenges to strike all African-American jurors on the panel. Though it was Lofton, not the State, who employed this tactic, he now asserts his own removal of African-American jurors resulted in an unfair trial.

¶ 52. Both Lofton and Spriggs participated in jury selection. And during voir dire, no Batson challenges were raised. Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). When a defendant fails to raise a Batson challenge at trial, he or she is procedurally barred from doing so on direct appeal. Corrothers v. State , 148 So.3d 278, 305-06 (Miss. 2014). But more pertinent here is the fact Lofton had no grounds to claim a Batson violation. By his own admissions-both in the record and on appeal-it was Lofton who desired to strike all black jurors out of fear they disliked him. And in line with Lofton's strategy, Spriggs utilized Lofton's peremptory challenges to strike all potential African-American jurors. Again, Lofton got just what he asked for and cannot now claim error about a perceived problem he created.

VIII. Habitual-Offender Enhancement

¶ 53. Lastly, while Lofton argues he was improperly sentenced as a habitual offender, he points to no viable reason why. He does not claim the State's request to amend his sentence was untimely. Nor does he mention any deficiency in his qualifying convictions and sentences. Instead, his complaint is that he had insufficient time to review the certified copies of his prior convictions-a 1981 Tennessee state-court conviction for receiving stolen property and a 2004 federal conviction for felon in possession of a firearm. This is simply unsupported by the record.

¶ 54. Under Uniform Rule of Circuit and County Court Practice 7.09, an indictment may be amended to charge the defendant as a habitual offender if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised. Adams v. State , 772 So.2d 1010, 1019-20 (Miss. 2000). And on June 16, 2016, well in advance of his trial, the State moved to amend Lofton's indictment to seek an enhanced sentence under Mississippi Code Section 99-19-81. See Miss. Code Ann. § 99-19-81 (Rev. 2015). The State's motion specifically detailed two of Lofton's prior felony convictions that resulted in a sentence of one year or more. And Lofton received a copy of the motion.

¶ 55. Then, almost three months later, on September 6, 2016, the trial judge heard argument and evidence for the amendment. The State presented certified copies of each of Lofton's judgments of convictions and sentencing orders. For months Lofton had known about the convictions relied upon by the State. But he now complained he needed additional time to verify the authenticity of the certified copies. Though Lofton asked for a continuance, the court denied one. Instead, the judge gave him additional time to review the certified documents. Lofton objected to the amount of time he was given but could not point to any deficiencies in the documents. His appointed counsel, Spriggs, candidly advised the court he had "no objection" to the certified copies of the convictions, which appeared to be the same ones "in the motion from the State." Based on the certified copies of both convictions, the judge ultimately amended Lofton's indictment to reflect his habitual-offender status under Section 99-19-81.

¶ 56. At his sentencing, Lofton, complained about his prior convictions but offered nothing to show why they were deficient for habitual-offender purposes. The judge properly sentenced Lofton to life in prison without the possibility of parole, the only possible sentence under Section 99-19-81.

¶ 57. Lofton had ample notice and opportunity to prepare a defense against an enhanced sentence; he just failed to do so.

Conclusion

¶ 58. After being sufficiently warned of the dangers of self-representation, Lofton was provided with exactly what he asked for-a hybrid defense. The trial judge afforded Lofton every opportunity to defend his case and was particularly sensitive to see that Lofton's rights were not violated. Because we see no error in the trial court's decisions, we affirm Lofton's conviction and sentence to life in prison as a habitual offender.

¶ 59. AFFIRMED.

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

      Hearn v. State , 3 So.3d 722, 735 (Miss. 2008).

      Lofton's bond was later revoked. The judge found he had improperly contacted witnesses and had attempted to influence a witness's testimony.

      Months earlier, on June 16, 2016, the State had filed a motion to amend Lofton's indictment to reflect his habitual-offender status. As evidence, it cited two prior felony convictions-a 1981 Tennessee state-court conviction for receiving stolen property and a 2004 federal conviction for felon in possession of a firearm.

      The judge inquired with the clerk about Lofton's subpoenas and found several were issued on September 9 for a September 14 appearance. The State rested its case September 13.

      Lofton argues the trial court failed to comply with Uniform Rule of County and Circuit Court Practice 8.05, that he specifically be warned about the dangers of self-representation. The rules governing waiver of counsel have changed now that the Mississippi Rules of Criminal Procedure have taken effect. See Miss. R. Cr. P. 7.1.

      The judge did however emphasize:
      [Y]ou still have to abide by all the rules of court and all the evidentiary matters and procedures ... [c]ertainly, you will be free to direct how your trial is conducted, but you will still have to abide by those rules and evidentiary procedures.
      And the judge explained that his counsel would help "in that regard."

      "This Court has held that a defendant's request during trial to dismiss his defense counsel and to continue the case until another attorney could be retained or appointed is untimely and that the decision to grant such a motion lies within the sound discretion of the trial court." Estelle v. State , 558 So.2d 843, 847 (Miss. 1990). See also Bostic v. State , 531 So.2d 1210, 1214 (Miss. 1988) ; Harrison v. State , 520 So.2d 1352, 1353 (Miss. 1987) ; and Collins v. State , 369 So.2d 500, 501 (Miss. 1979).

      Jury Instruction Eleven, State's Instruction Eight, states in full:
      Members of the Jury, the Defendant has exercised his constitutional right to remain silent, and you must not draw any unfavorable inferences against the Defendant for his decision not to testify.

      In reaching this decision, the Supreme Court noted that "[m]ore than 50 years ago, Judge Learned Hand dealt with this question in a single sentence: 'It is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it; but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity.' " Lakeside , 435 U.S. at 341 n.12, 98 S.Ct. at 1095 n.12 (quoting Becher v. United States , 5 F.2d 45, 49 (2d Cir. 1924) ).

      The judge ordered Lofton to undergo a competency evaluation, but Lofton refused to cooperate with Dr. Lott. Because Lofton would not agree to be interviewed, Dr. Lott reviewed police reports, interviews, medical records, and court documents to assess Lofton, and drafted a detailed report in which he discussed Lofton's mental status.

      Again, the Mississippi Rules of Criminal Procedure now control discovery violations in criminal cases. See Miss. R. Cr. P. 17.9.

      The privilege to use peremptory strikes "is subject to the commands of the Equal Protection Clause." Batson , 476 U.S. at 89, 106 S.Ct. at 1719. The Equal Protection Clause prohibits using peremptory strikes to engage in racial discrimination. Id.

      Since the adoption of the Mississippi Rules of Criminal Procedure, the rules for amending indictments have changed. See Miss. R. Cr. P. 14.4.