author: KITCHENS, Justice, for the Court:

text:
    Homer HUTZEL v. CITY OF JACKSON, Mississippi.
    No. 2008-CA-02134-SCT.
    Supreme Court of Mississippi.
    May 6, 2010.

      Steven Price Nixon, Sean A. Milner, Clinton, attorneys for appellant.
    James Richard Davis, Jr., Lara E. Gill, Ridgeland, attorneys for appellee.
    Before WALLER, C.J., DICKINSON and KITCHENS, JJ.
   KITCHENS, Justice, for the Court:

¶ 1. Homer Hutzel filed suit for damages against the City of Jackson and Hemphill Construction Company alleging inverse condemnation, negligence, trespass, and nuisance arising out of the City of Jackson’s efforts to improve the High Street corridor. The trial court granted summary judgment in favor of the City, finding that Hutzel had released the City from any and all claims arising from the High Street project, and that the consideration paid for the release was an accord and satisfaction of such claims. Hutzel appeals.

FACTS AND PROCEDURE

¶ 2. The relevant facts of the case are not in dispute. In 1999, the City of Jackson sought to improve the segment of High Street between North State Street and Interstate 55. To that end, City Project Number 464, commonly known as the High Street Improvement Project, was approved, and the City proceeded with the improvements.

¶ 3. During the course of the project, a ten-foot strip of land on the south side of High Street, owned by Three W, a Mississippi general partnership, and subject to a leasehold held by Hutzel, was needed for the widening of the street. The City of Jackson approached Three W and Hutzel and ultimately obtained a warranty deed from Three W, conveying the strip of land to the City, and a quitclaim deed from Hutzel, conveying his interest in the property to the City. Hutzel was paid $2,500 as consideration for the conveyance. In addition to the legal description and the conveyance language of the quitclaim deed, the document contained a release provision, which read:

It is further understood and agreed that the consideration herein named is full, complete and final payment and settlement of any claims or demands for damage accrued, accruing, or to accrue to the grantors herein, their heirs, assigns, or legal representatives, for or on account of the construction of the proposed project No. 464, grade, water damage, and/or any other damage, right or claim whatsoever.

The quitclaim deed also said, “[i]t is further understood and agreed that this instrument constitutes the entire agreement between the grantor and the grantee, there being no oral agreements or representation of any kind.”

¶ 4. Prior to the conveyance of the land to the City, Hutzel had erected on the parcel a sign for Homer’s Barbecue, which was removed after the strip of land had been conveyed to the City. After the conveyance and the removal of the sign, however, Hutzel retained a leasehold interest in the parcel adjacent to (immediately south of) the ten-foot strip of land, where he continued to operate the restaurant, Homer’s Barbecue.

¶ 5. After commencement of the High Street Improvement Project, Homer’s Barbecue allegedly began to suffer financially. Hutzel claimed that the City and its contractors had placed equipment, including machinery, barrels, traffic signs, and vehicles, in front of Homer’s Barbecue during peak business hours and against the terms of the project, hindering customers from accessing the restaurant. Hutzel alleged that, as a consequence of these actions, Homer’s Barbecue had suffered financially and eventually was forced to close its doors because of lost revenues.

¶ 6. Hutzel filed suit against the City of Jackson and its contractor, Hemphill Construction Company, on January 13, 2008, alleging that the City’s actions that negatively had affected the parcel that was not conveyed, on which Homer’s Barbecue was located, were tantamount to an unconstitutional taking, negligence, nuisance, and trespass. On February 11, 2008, the City of Jackson filed its answer and affirmative defenses.

¶ 7. After engaging in discovery, on April 1, 2005, more than two years after the case had been filed, the City filed a motion for leave to amend its initial answer to include the affirmative defenses of release and accord and satisfaction. In its motion, the City alleged that certain events had transpired in the matter since the filing of its original answer, and that additional investigation had revealed additional defenses that were available to the defendant. The City did not reveal what events or investigation had led to the discovery of the new defenses. Hutzel objected to the motion, arguing that, because the City had failed to plead the defenses in compliance with Mississippi Rule of Civil Procedure 8(c), the City had waived its right to assert them.

¶ 8. Rejecting Hutzel’s argument, the trial court granted the City leave to amend, and the City’s amended answer was filed on August 29, 2005, affirmatively asserting release and accord and satisfaction. Shortly thereafter, the City filed a motion for summary judgment, alleging that the release provision in the quitclaim deed signed by Hutzel had released the City from any and all liability related to the High Street Improvement Project. On April 23, 2007, the trial court entered a memorandum opinion and order granting the City’s summary judgment motion, and a final judgment for the City was entered. It is from this order that Hutzel appeals.

ISSUES

¶ 9. The two issues presented on appeal are (1) whether the trial court erred in allowing the City of Jackson to amend its answer, and (2) whether summary judgment in the City’s favor was proper. The adjudication of this matter on the first issue eliminates the need to address the second.

STANDARD OF REVIEW

¶ 10. When considering a trial court’s decision to grant or deny a motion to amend a pleading, the standard of review is abuse of discretion. Pratt v. City of Greenville, 804 So.2d 972, 978 (Miss.2001).

ANALYSIS

¶ 11. Hutzel contends that, according to Mississippi Rule of Civil Procedure 8(c), the City waived its right to assert the affirmative defenses of release and accord and satisfaction when it failed to plead them in its initial answer and waited more than two years to assert these defenses. The City vaguely alleges that these defenses were not apparent at the time it filed the initial answer, and that pursuant to Rule 15(a), leave to amend the pleadings should be given freely. M.R.C.P. 15(a).

¶ 12. Rule 8(c) specifically requires that, in pleading to a preceding pleading, a party shall set forth affirmatively certain listed defenses, including accord and satisfaction and release. M.R.C.P. 8(c). This Court has interpreted this rule to mean that, generally, if a party fails to raise an affirmative defense in its original answer, the defense will be deemed waived. Pass Termite and Pest Control, Inc. v. Walker, 904 So.2d 1030, 1033 (Miss.2004) (holding that defendant had waived the right to compel arbitration). “Ordinarily, delay coupled with active participation in a lawsuit serves to waive affirmative defenses that otherwise would terminate the action.” Price v. Clark, 21 So.3d 509, 524 (Miss.2009) (citing MS Credit Center, Inc. v. Horton, 926 So.2d 167, 181 (Miss.2006)). This rule aids in “this Court’s effort to ensure judicial efficiency and the expeditious resolution of disputes.” Walker, 904 So.2d at 1035. Moreover, this approach gives parties incentive “to be more diligent in submitting defenses.” Id.

¶ 13. In MS Credit Center, Inc. v. Horton, 926 So.2d 167, this Court was presented with the question of whether a defendant’s failure to pursue actively the right to compel arbitration for eight months amounted to a waiver of that defense. The defendant in Horton had asserted an affirmative defense in prior pleadings, yet proceeded to engage in the litigation process by “consenting to a scheduling order, engaging in written discovery, and conducting Horton’s deposition.” Id. at 180. The Court in Horton noted that “[a] defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Id. at 181. The Court added that a party does not have an established number of days within which he or she must raise an affirmative defense; but, unless there are “extreme and unusual” circumstances which prohibit the party from asserting the defense, “an eight month unjustified delay in the assertion and pursuit of any affirmative defense ... coupled with active participation in the litigation process, constitutes waiver as a matter of law.” Id. at 181.

¶ 14. Ultimately, the Court found no reasonable explanation for the eight-month delay in asserting the arbitration defense, and it held that the defendant had waived its right to compel arbitration. Id. at 181. Importantly, the Court added that its holding in Horton was not limited to the assertion of the right to compel arbitration, but that its pronouncement should be taken as the general rule for all affirmative defenses. Id. at 180.

¶ 15. In compliance with the rule announced in Horton, this Court consistently has held that, absent a reasonable explanation, failure to plead an affirmative defense according to Rule 8(c) will result in a waiver of that defense. In Estate of Grimes v. Warrington, 982 So.2d 365 (Miss.2008), the defendant doctor pled that he was entitled to tort immunity under the Mississippi Tort Claims Act (MTCA), but did not pursue the affirmative defense until five years later in his motion for summary judgment. Id. at 370. On appeal, this Court affirmed the trial court’s finding that the doctor was immune from tort liability under the MTCA; however, because the doctor had actively engaged in the litigation and had failed to provide a reasonable explanation for his failure to raise the defense, he was prevented from using the otherwise outcome-determinative defense. Id.

¶ 16. Similarly, in East Mississippi State Hospital v. Adams, 947 So.2d 887 (Miss.2007), this Court was asked to determine whether the defendants, who had asserted the affirmative defenses of insufficient process and insufficient service of process in their initial answer, but had continued to participate in the litigation, had waived those defenses. Id. at 889. Relying on Horton, the Court held that, because the defendants had engaged in discovery and attended status conferences before reasserting these affirmative defenses nearly two years later, the defendants had waived the right to assert them. Id. at 891.

¶ 17. Applying the Horion rule to this case, we observe that the City of Jackson filed its initial answer on February 11, 2003, in which it raised several affirmative defenses, including lack of jurisdiction, sovereign immunity, contributory negligence, and an allegation that the statute of limitations had run. Yet the City did not raise the affirmative defenses of release and accord and satisfaction until approximately twenty-six months later, on April 1, 2005. This delay is three times the length of delay in Horton, 926 So.2d at 179, and thus satisfies the delay element.

¶ 18. As for active participation, it is not evident from the record that the City of Jackson engaged in extensive pretrial practice. Nonetheless, the record reveals that both parties did participate in discovery by filing interrogatories and requests for production of documents beginning in November 2003. In addition, the trial court docket indicates that a notice of deposition was filed in December 2003; however, nothing in the record before us reveals which party filed the notice or identifies the intended deponent. Although there seems to have been a lull in activity in 2004, the reason for it cannot be determined from the record. Of course, this Court has no way of knowing whether the parties were engaged in settlement negotiations or mediation, trying to schedule depositions, actually conducting discovery, or engaging in other case-related activities not reflected in court records. Undocumented actions aside, the City’s filing of its initial answer on February 11, 2003, coupled with its participation in the discovery process commencing as early as November 2003, sufficiently establish that the City actively participated in the litigation.

¶ 19. Lastly, the record reveals no unusual or extreme circumstances that explain the City’s failure to assert the affirmative defenses in a timely manner. The only argument presented by the City is that the affirmative defenses did not become apparent until well into discovery; however, this contention is not persuasive, as the City actually drafted the quitclaim deed, the foundation of its affirmative defenses, and had received it from Hutzel well before the commencement of this action. Undoubtedly, the City knew about the contents of a document that it had drafted and had in its possession. Accordingly, no reasonable explanation accounts for the City’s failure to assert the affirmative defenses punctually.

¶ 20. Therefore, pursuant to HoHon and Rule 8(c), because the City actively participated in the litigation and has no reasonable explanation for its twenty-six month delay in raising the affirmative defenses, the City has waived its right to assert release and accord and satisfaction.

¶ 21. The City contends that, pursuant to Rule 15(a), the trial court properly allowed it to amend its answer to include its affirmative defenses. Rule 15(a) provides, in relevant part, that “a party may amend a pleading only by leave of court or upon written consent of the adverse party,” and that “leave shall be freely given when justice so requires.” M.R.C.P. 15(a). The City relies on Red Enterprises, Inc. v. Peashooter, Inc., 455 So.2d 793 (Miss.1984), and Bennett v. Madakasira, 821 So.2d 794 (Miss.2002), each of which stands for the proposition that amendments to pleadings should be granted freely if the nonmoving party is not prejudiced by the desired amendment.

¶ 22. In Red Enterprises, a case applying Rule 15(b), the defendant sought to prove accord and satisfaction at trial, having neither pled that affirmative defense nor sought leave to amend its pleadings. Red Enterprises, 455 So.2d at 794. During trial, the plaintiff objected to the introduction of the evidence, and the trial court sustained the objection, allowing a proffer. Id. On appeal, this Court held that, because the plaintiff would not have been prejudiced by the introduction of such evidence, the trial court had abused its discretion in not allowing the defendant to amend its pleadings under Rule 15(b). Id. at 796. However, in reaching this eon-elusion, this Court failed to address Rule 8(e)’s mandatory language and whether the defendant had a reasonable explanation for not having asserted the affirmative defense as required by the Rule 8(c). Even the United States Supreme Court’s decision of Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the opinion upon which the Red Enterprises Court relied, noted that, under Federal Rule of Civil Procedure 15(a), leave should be freely given only “[i]n the absence of any apparent or declared reason — such as undue delay....”

¶ 23. In Bennett, 821 So.2d at 802, the trial court allowed defendant doctors to assert that the statute of limitations had run after they had failed to plead that affirmative defense in their initial answer. Again, as in Red Enterprises, the plaintiff asserted that, pursuant to Rule 8(c), the defendants had waived their right to assert the affirmative defense that the statute of limitations had run. Yet, on appeal, this Court looked only to whether the plaintiff had been prejudiced. Id. It did not look to the extent of delay, the degree of the doctors’ participation in the litigation, or the reasonableness of the defendants’ failure to assert the affirmative defense as required by Rule 8(c). The Court ultimately held that plaintiff had not been prejudiced by the assertion of the defense, and that because “Rule 15(b) liberally permits the amendments of pleadings,” the trial court did not err in allowing the defendants to amend the pleadings according to Rule 15(b).

¶ 24. Reconciling this Court’s opinions in Red Enterprises and Bennett and the opinions in Horton, Warrington, and Adams, the former cases remain sound law with regard to when leave should be granted to amend pleadings pursuant to Rule 15; however, when reviewing a trial court’s decision to grant or deny a party’s request to amend pleadings pursuant to Rule 15 over an objection grounded in Rule 8(c), this Court will adhere to the rule expressed in Horton, giving full effect to the mandatory language of Rule 8(c). As stated supra, doing so ensures “judicial efficiency and the expeditious resolution of disputes.” Walker, 904 So.2d at 1035.

CONCLUSION

¶ 25. The City of Jackson failed to abide by Mississippi Rule of Civil Procedure 8(c) by pleading release and accord and satisfaction in its initial answer, and the City did not raise those defenses until twenty-six months later, having actively participated in the litigation during that period. As the City has not advanced a reasonable explanation to account for its inordinate delay, it has waived its right to assert release and accord and satisfaction, and the trial judge abused his discretion in allowing the City to amend its answer. This case is therefore reversed and remanded for a trial on the merits.

¶ 26. REVERSED AND REMANDED.

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

      . Hutzel and Hemphill Construction Company reached a settlement agreement, and an order dismissing Hemphill was entered on December 20, 2004.

      . The City of Jackson contends that Hutzel failed to preserve the issue of whether the City had waived its right to assert the affirmative defenses of release and accord and satisfaction by not raising these issues in his response to the City of Jackson's motion for summary judgment and by not raising the issue at the summary judgment hearing; however, because Hutzel objected to the City's motion to amend its answer in response to the motion, he has preserved the issue for appeal.

      . Mississippi Rule of Civil Procedure 8(c) reads, In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. (Emphasis added.)

      . Hutzel asserts that the lull in activity was the result of the City’s changing its deputy city attorney assigned to the case, which at the time of this appeal, allegedly had occurred four different times. The City of Jackson alleges that little happened in 2004 because Hutzel failed to prosecute the case; however, this contention was not developed by the City and is not supported by the record.

      . Mississippi Rule of Civil Procedure 15(b) allows amendments to pleadings when “issues not raised by the pleadings are tried by expressed or implied consent....” M.R.C.P. 15(b). Here, Hutzel objected to the City’s motion to amend its answer to include the affirmative defenses of release and accord and satisfaction. Therefore, he did not consent to the City’s assertion of these defenses. Moreover, the City does not allege that these affirmative defenses were tried by consent.


source: Caselaw Access Project

author: GRAVES, Presiding Justice, for the Court: RANDOLPH, Justice,

license: Public Domain

text:
    Charlie Demeko LONG a/k/a Meko v. STATE of Mississippi.
    No. 2008-KA-01877-SCT.
    Supreme Court of Mississippi.
    May 6, 2010.

      Ross R. Barnett, Jr., James T. McCaf-ferty, III, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before GRAVES, P.J., DICKINSON and CHANDLER, JJ.
   GRAVES, Presiding Justice, for the Court:

¶ 1. Charlie Demeko Long was convicted of one count of possession of cocaine with the intent to sell and one count of sale of cocaine in the Circuit Court of Grenada County. Long was sentenced as a habitual offender to life imprisonment on each count, to be served consecutively in the custody of the Mississippi Department of Corrections. Long’s post-trial motion was denied and he filed this appeal. We find that the issues raised by Long are without merit and that his conviction should be affirmed.

FACTS

¶ 2. On March 4, 2008, confidential informant Wesley Rogers made a drug buy from Charlie Demeko Long for the Grenada Police Department. Officer Mark Beck testified that both Rogers and his vehicle were searched and outfitted with audio and video recording equipment prior to the buy. Rogers telephoned Long and arranged the purchase of $80 worth of crack cocaine. The pair agreed to meet at Spain’s Supermarket. Five officers in two surveillance vehicles followed Rogers to Spain’s. At Spain’s, Rogers exited his vehicle and got into a white Toyota Camry owned by Lakendal Barnes, Long’s girlfriend. The video recording and still photographs show Rogers handing the person in the white Camry the $80 and the person handing Rogers what proved to be 0.7 grams of crack cocaine. The face of the person in the car cannot clearly be seen on the video recording. However, Rogers testified that Long was the person in the car who had sold the crack cocaine to Rogers. Further, the recording shows that the seller was wearing a gold watch and ring on his left hand, and that there was a yellow key chain on the keys in the ignition and a cell phone in his lap. Officers removed similar items from Long upon his arrest. Rogers testified that he had observed Long sell drugs some fifteen to twenty times.

¶ 3. On March 18, 2008, Barnes was driving the white Camry with Long as a passenger when she was stopped for a seatbelt violation. Barnes testified that, when she was pulled over, Long attempted to pass her some drugs, but she refused. Officers searched the car and located 4.8 grams of crack cocaine under the passenger seat. Upon the officers’ discovery of the drugs, Long attempted to flee. Barnes testified that she previously had observed Long cutting up large amounts of drugs, selling drugs, and counting large sums of money. Barnes identified Long as the person on the videotape selling drugs to Rogers, although she was not present in the car at that time.

¶ 4. Long was charged with possession of cocaine with intent to sell and one count of sale of cocaine in the Circuit Court of Grenada County. Barnes also was charged with possession in connection with the crack cocaine found under the passenger seat of her car. After a trial in which Long, assisted by counsel, briefly represented himself, Long was convicted on both counts and sentenced as a habitual offender to life imprisonment on each count, to be served consecutively in the custody of the Mississippi Department of Corrections. Long’s post-trial motion was denied and he filed this appeal.

ANALYSIS

I. Whether the verdict was against the overwhelming weight of the evidence.

¶ 5. This Court reviews a trial court’s denial of a motion for new trial under an abuse-of-discretion standard. Dilworth v. State, 909 So.2d 731, 737 (Miss.2005). “A greater quantum of evidence favoring the [S]tate is necessary for the [S]tate to withstand a motion for a new trial, as distinguished from a motion for J.N.O.V.” Id. (quoting Pharr v. State, 465 So.2d 294, 302 (Miss.1984)). “Accordingly, we defer to the discretion of the trial judge, and ‘[w]e will not order a new trial unless convinced that 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.’ ” McLendon v. State, 945 So.2d 372, 385 (Miss.2007) (quoting Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). This Court has further said:

However, the evidence should be weighed in the light most favorable to the verdict. 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. Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Dilworth, 909 So.2d at 737.

¶ 6. Long asserts that a reasonable juror could not conclude beyond a reasonable doubt that he possessed and sold cocaine. Long further asserts that the State’s case was “based almost entirely upon the testimony of apparent criminals” Wesley Rogers and Lakendal Barnes. He cites Mister v. State, 190 So.2d 869 (Miss.1966), as authority for reversing the verdict. However, Mister is easily distinguished.

¶ 7. In Mister, this Court held that the verdict was against the overwhelming weight of the evidence where the State’s case was based solely on the testimony of a witness who was not an accomplice but was in a related situation and his “testimony contained material inconsistencies, was unreasonable in major respects, and, by his own admission, was impeached to some extent.” Mister, 190 So.2d at 871.

¶ 8. Long does not even assert that the testimony of either Rogers or Barnes contained material inconsistencies, that it was unreasonable in major respects, or that it was impeached. Further, Long has failed to establish that 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. Both Long and the State presented evidence. The jury weighed the evidence and determined that the State proved beyond a reasonable doubt that Long was guilty. Therefore, this issue is without merit.

II. Whether the trial court erred in admitting evidence of prior bad acts.

¶ 9. Long asserts that the trial court erred in allowing the district attorney to put on testimony of Rogers that he had witnessed fifteen to twenty cocaine sales by Long. Long cites Burrell v. State, 727 So.2d 761 (Miss.Ct.App.1998), as authority. However, as discussed below, Burrell does not support Long’s assertion. In Burrell, the trial court found that a confidential informant’s testimony that he had purchased drugs from Burrell on previous occasions was admissible to show identity, “not for the purpose of ‘identifying [the appellant] just as Freddie Bur-rell,’ but for ‘identifying him as Freddie Burrell who sells drugs.’ ” Id. at 767 (emphasis original). The Court of Appeals found that the testimony was impermissible prior-bad-acts testimony, noting that there was no need to establish intent, as the distribution of illegal drugs had indeed taken place. The Court of Appeals further found that the trial court had erred in failing to give a limiting instruction, stating:

“Even when other-crimes evidence is admissible under M.R.E. 404(b), it must pass through the ‘ultimate filter’ of M.R.E. 403.” ... When Rule 404(b) evidence is admitted and an objection to the admission is overruled, that objection is to be considered an invocation to the right of a Rule 403 balancing analysis by the court....

Burrell, 727 So.2d at 768-69.

¶ 10. Rule 403 of the Mississippi Rules of Evidence allows for the exclusion of certain relevant evidence and states that:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Miss. R. Evid. 403. However, such evidence may be admissible pursuant to Rule 404, which provides, in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Miss. R. Evid. 404(b).

¶ 11. In the instant case, the trial court considered Rogers’ testimony regarding Long’s prior bad acts pursuant to the Rule 403 balancing test outside the presence of the jury and found that the evidence was admissible. Specifically, the trial court found:

Okay. Well, of course, this matter, according to the Defendant’s wishes, has not been severed where possession with intent and sale are both counts that are against him in this particular case. The State can’t prove the entire case with one witness. The case law is clear that this testimony is admissible where one of the charges is that he was possessing drugs with the intent, with the intent to sell them. But it is limited by the fact that it must pass the 403 test, and then there must be a limiting instruction to the jury.
The court finds that the probative value in this case outweighs the prejudicial effect, and the court is going to allow it. But it will grant a limiting instruction that limits the consideration of this to the count that it is a possession count. Now should this not be all tied together at the end, you can, you may have another motion.

That limiting instruction was given, as Instruction 11 included the following language: “You are not, however, under any circumstances, to consider any evidence of alleged prior cocaine sales in reaching a verdict as to the charge of Sale of Cocaine as charged in Count I of the indictment, or for any other purpose not specifically authorized by this instruction.”

¶ 12. Long has failed to establish that the trial court erred in admitting Rogers’ testimony. Accordingly, we find that this issue is without merit.

III. Whether black potential jurors were systematically and unconstitutionally struck from the jury.

¶ 13. Long’s entire argument on this issue is as follows:

The transcript of the jury selection indicates that the jury was selected from an initial panel of 32 persons, 20 of whom were white, and 12 of whom were black. The prosecutor used his peremptory challenges to strike six jurors, four of whom were black, to which defense counsel objected.... The prosecution’s behavior strongly suggests an unconstitutional systematic exclusion of African-Americans from the jury below, which would have had a discriminatory effect on Mr. Long, an African-American, in violation of [Batson ], and in violation of applicable federal and state constitutional provisions. For that reason, if for no other, this case should be reversed and remanded.

¶ 14. Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a defendant must establish a prima facie case of purposeful discrimination as follows:

To establish such a case, the defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” ... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Batson, 476 U.S. at 96, 106 S.Ct. 1712 (citations omitted). However, as this Court has acknowledged, this test was somewhat modified by the U.S. Supreme Court in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).

In that case the Supreme Court held that Powers, a white, had standing to challenge the exclusion of black jurors on the grounds that the equal protection right of the juror to serve was protected by Batson. Powers, 499 U.S. at 406, 111 S.Ct. 1364. Essentially, this means that step three above becomes the pivotal inquiry to determine a prima facie case, as this Court recognized in Davis v. State, 660 So.2d 1228, 1240 (Miss.1995), cert. denied, 517 U.S. 1192, 116 S.Ct. 1684, 134 L.Ed.2d 785 (1996). Specifically, the pivotal question is whether the opponent of the stoike has met the burden of showing that proponent has engaged in a pattern of strikes based on race or gender, or in other words “the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Batson, 476 U.S. at 94, 106 S.Ct. 1712.

Randall v. State, 716 So.2d at 587 (Miss.1998). Pursuant to the third step, “this Court has examined the number of strikes on a particular class, the ultimate ethnic or gender makeup of the jury, the nature of questions asked during the voir dire, and the overall demeanor of the attorney.” Id. (citing Coleman v. State, 697 So.2d 777, 786 (Miss.1997); Davis, 660 So.2d at 1263 (Banks, J., concurring); Mack v. State, 650 So.2d 1289, 1299 (Miss.1994), cert. denied, 516 U.S. 880, 116 S.Ct. 214, 133 L.Ed.2d 146 (1995)). “Additionally, ‘[t]he [opponent of the strike] may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.’ ” Id. (citing Batson, 476 U.S. at 80, 106 S.Ct. at 1714).

¶ 15. Once the defendant has established a prima facie case of discrimination, the burden shifts to the State to provide a race-neutral reason for each strike. Batson, 476 U.S. at 97, 106 S.Ct. 1712. The trial court then makes a determination of whether the defendant has established purposeful discrimination. Id. at 98, 106 S.Ct. 1712. This Court has held that, in reviewing a Batson claim, we will not overrule a circuit court unless the record indicates the decision was clearly erroneous or contrary to the overwhelming weight of the evidence. Flowers v. State, 947 So.2d 910, 917 (Miss.2007). See also Thorson v. State, 721 So.2d 590, 593 (Miss.1998).

¶ 16. In the instant case, the trial court found that Long, who is African-American, did not establish a prima. facie case for racial discrimination and overruled the Batson challenge without requiring the State to provide race-neutral reasons for the strikes.

¶ 17. The record indicates that from the initial thirty-two jurors, the trial court struck five African-American jurors for cause, jurors 8, 12, 21, 24, and 29. The trial court also struck juror 35, a white male. Juror 1 was excused. In the first round of jury selection, the State used peremptory challenges on jurors 13 (white female), 16 (white female), 17 (black female) and 18 (black male). The State tendered jurors 2 (white male), 3 (white male), 4 (white male), 5 (black female), 6 (white male), 7 (white male), 9 (white female), 10 (white female), 11 (white male), 14 (white female), 15 (black female), and 19 (white female). Long used all six of his peremptory challenges in the first round on jurors 2 (white male), 3 (white male), 4 (white male), 6 (white male), 7 (white male), and 9 (white female).

¶ 18. In the second round, the State challenged jurors 23 (black female), and 28 (black female). The State accepted 20 (white female), 22 (black female), 25 (white male), 26 (white female), 27 (white male), and 30 (white female). With regard to the alternate, Long challenged juror 31 (white male), and juror 32 (white female) was tendered.

¶ 19. In summary, the final jury consisted of jurors 5 (black female), 10 (white female), 11 (white male), 14 (white female), 15 (black female), 19 (white female), 20 (white female), 22 (black female), 25 (white male), 26 (white female), 27 (white male), and 30 (white female).

¶ 20. The transcript of the jury selection indicates that the following exchange then occurred:

BY [Long’s Counsel]: Okay. Your Honor, I am quite certain that Mr. Long is unfamiliar with the case of Batson v. Kentucky, and I am just noticing here that the challenges by the State, S-l is a white female. S-2 is a white female. S-3 is a black female. S-4 is a black male. S-5 is a black female and S-6 is a black female. So we have I guess 75 percent — well I better refrain from doing that. I think we have four out of six that are African-American, and so therefore, I think it would be incumbent for Mr. Long to invoke his rights under Batson and inquire if there are race neutral reasons for these challenges.
BY THE COURT: Let me see your list.
[Note: The Court Reporter furnished her jury list to the Court, and there was a long pause while the Court reviewed the race designations of the jurors. The jury list is included in the Circuit Clerk’s record on this appeal.]
BY THE COURT: Let the record reflect that on the panel there are — out of the first 32, which would include going through the alternate selection, there are 20 white people and 12 black people on the panel. On the jury that was tendered that we have just selected, there are nine whites and three blacks. The State exercised all of its peremptory challenges, two of which were on white females, four of which were on black. One, I believe, was a male and the other three were black females. The Court finds that that does not make a prima facie case for racial discrimination in this case. Therefore, the Batson challenge is overruled.

¶21. Although the State was not required by the trial court to provide a race-neutral reason for each strike, this Court may consider the record as a whole in determining whether the trial court’s decision was clearly erroneous or contrary to the overwhelming weight of the evidence. As stated previously herein, the standard established by this Court requires such an analysis. See Flowers v. State, 947 So.2d at 917; Thorson v. State, 721 So.2d at 593.

¶ 22. The State accepted two African-American jurors and challenged two white and two African-American jurors, Jessie Burt and Kevin Ellis, in the first round. Long used all six of his peremptory challenges against white jurors in the first round. The State then accepted one African-American juror and struck two African-American jurors in the second round. The record establishes that, during voir dire, Jessie Burt said that her son recently had been convicted of a drug offense and sent to prison. However, Burt also indicated that her son’s conviction and incarceration would not affect her performing her duty in Long’s case. Also during voir dire, Kevin Ellis said that he was a teacher’s assistant at the alternative school and had worked with Long when he was as a student there. Ellis also said that he knew some of Long’s family, was a close friend of Long’s aunt and could not be fair and impartial. Ellis later indicated that he could be fair. The responses of Burt and Ellis during voir dire would be sufficient race-neutral reasons for the State to strike them from the venire. Therefore, these two strikes should not be considered as evidence of any intent by the prosecutor to discriminate. The record does not specifically indicate any race-neutral reasons the State may have had for striking the two African-American jurors in the second round.

¶ 28. Pursuant to the Batson standard stated above, Long established that: (1) he is a member of cognizable racial group; and (2) that the prosecutor has exercised peremptory challenges to remove from the venire members of Long’s race. However, Long has failed to establish that the “facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Batson, 476 U.S. at 96, 106 S.Ct. 1712. Neither Long nor the record establishes that the prosecutor engaged in a pattern of strikes on the basis of race or gender. Moreover, neither Long nor the record establishes that the decision of the trial court was “clearly erroneous or contrary to the overwhelming weight of the evidence.” Flowers, 947 So.2d at 917. For these reasons, we find that this issue is without merit.

IV. Whether the sentence violated Long’s constitutional rights.

¶ 24. Long asserts that two consecutive life sentences for possession and sale of cocaine as a habitual offender are disproportionate to the offenses and constitute cruel and unusual punishment.

¶ 25. Long was sentenced as a habitual offender to two life terms pursuant to Mississippi Code Section 99-19-83, which states:

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

Miss.Code Ann. § 99-19-83 (Rev.2007). Long previously had two drug convictions and a conviction for attempted aggravated assault.

¶ 26. In White v. State, 742 So.2d 1126 (Miss.1999), this Court said:

As a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal. Wallace v. State, 607 So.2d 1184,1188 (Miss.1992). However, a sentence that is “grossly disproportionate” to the crime committed is subject to attack on Eighth Amendment grounds. Id.
The elements for evaluating proportionality are:
(1) The gravity of the offense and the harshness of the penalty;
(2) Comparison of the sentence with sentences imposed on other criminals in the same jurisdiction; and
(3) Comparison of sentences imposed in other jurisdictions for commission of the same crime with the sentence imposed in this case.

Id. at 1135 (citing Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (a criminal sentence must not be disproportionate to the crime for which the defendant is being sentenced)). White further states:

When a “threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality’ ” the proportionality analysis of Solem is used. Hoops v. State, 681 So.2d 521, 538 (Miss.1996) (quoting Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir.1996)). One seeking to prove a sentence violative of the Eighth Amendment carries a heavy burden. See Stromas [v. State, 618 So.2d 116, 123 (Miss.1993) ]. Although White’s sentence is severe, the Solem proportionality analysis is not implicated in this case. See id.

White, 742 So.2d at 1136. See also Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (“... Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee.”)

II27. Long relies heavily on White for the proposition that the trial court failed to exercise the discretion allowed by the Legislature. Specifically, Long asserts that the trial court exercised no discretion because there is no indication in the record that it seriously considered the alternative of concurrent sentences rather than consecutive sentences. However, Long does not offer any authority to support this proposition. Also, White involved a sentence enhancement for sale of cocaine within 1,500 feet of a church pursuant to Mississippi Code Section 41-29-142, which is not the enhancement in the instant case. See Miss.Code Ann. § 41-29-142 (Rev. 2009). Further, White specifically distinguished habitual-offender status under Sections 99-19-83 and 99-19-81 from a case such as White’s, where the trial court properly could exercise discretion.

Only when a defendant has been convicted of a felony or federal crime twice previously and sentenced to two separate terms of one year or more has the Legislature removed any element of judicial discretion and mandated the defendant be sentenced to the maximum term of imprisonment allowed. Miss. Code Ann. §§ 99-19-81 to -83 (1994).

White, 742 So.2d at 1137. However, this Court also has said:

The fact that the trial judge lacks sentencing discretion does not necessarily mean the prescribed sentence meets federal constitutional proportionality requirements. Notwithstanding § 99-19-81, the trial court has authority to review a particular sentence in light of constitutional principles of proportionality as expressed in Solem v. Helm. That authority is a function of the Supremacy Clause. U.S. Const. Art. VI, cl. 2; Bolton v. City of Greenville, 253 Miss. 656, 666, 178 So.2d 667, 672 (1965)....
Our approval of the sentence in this case should not be taken to intimate that reduced sentences for habitual offenders might become the rule. Solem v. Helm does not represent a de facto grant of sentencing discretion, but, rather, ties proportionality to the three-step analysis outlined therein.

Clowers v. State, 522 So.2d 762, 765 (Miss.1988) (this Court affirmed the trial court’s reduction of maximum sentence for forgery on the basis that it was disproportionate and cruel and unusual punishment).

¶ 28. In the instant case, Long argues that there is no indication that the trial court evaluated the proportionality of the sentence to sentences imposed for similar offenses in the trial court’s jurisdiction and in other jurisdictions. However, Long fails to establish that a threshold comparison of the crime committed to the sentence imposed leads to an inference of gross disproportionality. White, 742 So.2d at 1136. Notwithstanding Long’s failure to make this initial showing to warrant a Solem analysis, Long fails to address all three of the required factors set out above. Long alludes to the first Solem factor, but completely fails to address factors two and three. Therefore, Long’s claim is procedurally barred. See Willis v. State, 911 So.2d 947, 951 (Miss.2005). Even if Long’s claim was not procedurally barred, this Court previously has found that a defendant convicted of possession of a controlled substance may be sentenced to life without the possibility of parole as a habitual offender. See Wall v. State, 718 So.2d 1107, 1114-15 (Miss.1998); see also Oby v. State, 827 So.2d 731, 734-35 (Miss.Ct.App.2002).

¶ 29. Long also cites Ashley v. State, 538 So.2d 1181 (Miss.1989), for the proposition that the trial court was required to engage in a proportionality analysis under the Eighth Amendment. However, for the reasons stated previously herein, Long is mistaken.

¶ 30. In Ashley, Clyde Ashley was convicted of burglary as the result of the shoplifting and in-store consumption of two cans of sardines and breaking into a house to steal the money to pay for the sardines. Ashley, who had prior convictions for burglary and attempted robbery, was sentenced to life imprisonment as a habitual offender. In analyzing Ashley’s sentence, this Court noted that even the district attorney acknowledged the undue harshness of a life sentence for “Ashley’s great sardine caper.” Id,. at 1185. This Court vacated Ashley’s life sentence and remanded for an additional sentencing hearing consistent with Solem, 463 U.S. 277, 103 S.Ct. 3001. Ashley, 538 So.2d at 1185.

¶ 31. In the instant case, Long fails to make a clear argument. In addition to the previously mentioned arguments, Long appears to be making a proportionality argument based on his receiving consecutive rather than concurrent life sentences. However, Long fails to explain how a consecutive sentence is disproportionate, considering that Section 99-19-83 mandates life without parole. Long then asserts that the trial court had a duty under Ashley to determine whether Long’s prior conviction for attempted aggravated assault involved actual violence prior to sentencing him under Section 99-19-83. However, in Ashley, this Court found that attempted armed robbery is a crime of violence. Id at 1185.

¶ 32. Long also cites McQueen v. State, 473 So.2d 971, 973 (Miss.1985), for the proposition that there may be cases where it is not clear whether a conviction was for a crime of violence. In McQueen, this Court relied on authority from other jurisdictions, which found that “violence” and “force” are synonymous. Id. at 972-73. This Court held that the phrase “crime of violence” was not unconstitutionally vague, but acknowledged that there may be cases in which the application of the statute would not be clear. McQueen, 473 So.2d at 973. However, this Court further affirmed the trial court, finding that attempted rape was a crime of violence.

¶ 33. Clearly, attempted aggravated assault is a crime of violence. Assault is defined in Black’s Law Dictionary as: “Any willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability so to do [sic], and any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm, constitutes an assault.” Black’s Law Dictionary 114 (6th ed.1990).

¶ 34. Long’s sentence was in the statutory range, it was mandatory, and he has failed to establish that his sentence is grossly disproportionate to his crime. Therefore, the trial court did not err in sentencing Long to two consecutive terms of life imprisonment.

CONCLUSION

¶ 35. For the reasons stated herein, we affirm the judgment of conviction of one count of possession of cocaine with the intent to sell and one count of sale of cocaine in the Circuit Court of Grenada County and the sentences, as a habitual offender, to life imprisonment on each count to be served consecutively in the custody of the Mississippi Department of Corrections.

¶ 36. COUNT I: CONVICTION OF SALE OF COCAINE AND SENTENCE, AS A HABITUAL OFFENDER, OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. AFFIRMED. COUNT II: CONVICTION OF POSSESSION OF COCAINE WITH INTENT TO SELL AND SENTENCE, AS A HABITUAL OFFENDER, OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II TO BE SERVED CONSECUTIVELY TO THE SENTENCE IN COUNT I.

WALLER, C.J., LAMAR, KITCHENS AND PIERCE, JJ„ CONCUR. RANDOLPH, J., CONCURS IN PART AND IN RESULT WITH SEPARATE OPINION JOINED BY CARLSON, P.J., DICKINSON AND CHANDLER, JJ.

RANDOLPH, Justice,

concurring in part and in result:

¶ 37. I concur with the Majority’s analysis of Issues I, II, and IV. I write separately only to address the Majority’s analysis of Issue III, the Batson issue. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). While I agree with the Majority’s conclusion that Long’s argument is without merit, I find the attending analysis to go unnecessarily beyond Long’s lack of a prima facie showing of purposeful discrimination.

¶ 38. Long had the burden of showing that the “facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Batson, 476 U.S. at 96, 106 S.Ct. 1712. Long’s prima facie presentation was simply that the State had exercised four of its six peremptory challenges on African-American jurors. The circuit court concluded that this showing was insufficient for purposes of establishing a prima facie case of racial discrimination. Stated otherwise, Long failed to satisfy his burden of providing enough evidence to permit the circuit court to infer the fact at issue, i.e., purposeful discrimination. The Majority ostensibly agrees, and finds that this prima facie case ruling was not clearly erroneous or contrary to the overwhelming weight of the evidence, stating:

Long has failed to establish that the “facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Batson, 476 U.S. at 96, 106 S.Ct. 1712. Neither Long nor the record establishes that the prosecutor engaged in a pattern of strikes on the basis of race or gender.

(Maj. Op. at ¶ 23). Thus, no further inquiry or analysis is required.

¶ 39. Notwithstanding that conclusion, the Majority unnecessarily delves into a race-neutral-reason discussion in paragraph 21. As Long never established a prima facie case, no burden was placed upon (or shifted to) the State to provide a race-neutral reason. See Flowers v. State, 947 So.2d 910, 917 (Miss.2007) (quoting McFarland v. State, 707 So.2d 166, 171 (Miss.1997)) (“the party who objects to the peremptory strike ‘m,ust first make a pri-ma facie showing that race was the criteria for the exercise of the peremptory-strike’ ”) (emphasis added); Thorson v. State, 721 So.2d 590, 593 (Miss.1998) (“[a] Batson challenge ... should proceed as follows: First, the defendant must establish a prima facie case of discrimination (emphasis added); Batson, 476 U.S. at 97, 106 S.Ct. 1712. The Majority recognizes such analysis is superfluous, stating “[although the State was not required by the trial court to provide a race-neutral reason for each strike, this Court may consider the record as a whole in determining whether the trial court’s decision [on whether Long had established a prima facie case of purposeful discrimination] was clearly erroneous or contrary to the overwhelming weight of the evidence.” (Maj. Op. at ¶ 21). Indeed we “may,” but for what purpose?

¶ 40. Under Batson, the State was not required to address race-neutral reasons and, therefore, this Court should decline to offer race-neutral reasons not within the record before this Court. Accordingly, I concur in part and in result.

CARLSON, P.J., DICKINSON AND CHANDLER, JJ., JOIN THIS OPINION.

      . Section 99-19-81 provides that a habitual offender twice convicted of a felony shall be sentenced to the maximum term for such felony. Miss.Code Ann. § 99-19-81 (Rev.2007).


author: MYERS, P.J., for the Court.

text:
    Mario BROWN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02145-COA.
    Court of Appeals of Mississippi.
    Oct. 6, 2009.
    Rehearing Denied Feb. 16, 2010.
    Certiorari Denied May 6, 2010.

      George T. Holmes, Jackson, Phillip Broadhead, Oxford, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   MYERS, P.J., for the Court.

¶ 1. Mario Brown was convicted of manslaughter in the Coahoma County Circuit Court for a shooting that resulted in Sean Cole’s death. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC). Brown appeals his conviction and sentence arguing the trial court committed three errors: (1) the trial court erred in allowing the State’s forensic expert to testify about unreliable, inaccurate, and speculative matters; (2) the trial court erred in refusing Brown’s self-defense jury instructions; and (3) the trial court erred in failing to grant Brown’s motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On September 8, 2006, a fight occurred outside of Nanny’s Food and Games Café (Café) in Friar’s Point. The altercation began when Clarence Henderson and Corey Dorrough began exchanging words. According to Brown, two more people were with Dorrough during his exchange with Henderson. At some point during this argument, Brown exited the Café, and seeing his friend Henderson in trouble, punched Dorrough. Cole, who was one of the two people with Dorrough, then punched Brown. Brown testified that when he got up from the punch, he began retreating down the street, but Cole, Dorrough, and possibly a third individual began pursuing Brown with beer bottles in their hands. Brown then pulled his pistol to “intimidate” the group into stopping their pursuit; everyone stopped but Cole. Brown testified that he and Cole then began to fight. Brown testified that he attempted to hit Cole with his pistol, and that Cole attempted to take the pistol from Brown. During the scuffle, the pistol discharged three times. After the pistol fired, Cole ran back toward the Café and around to its side, and according to Brown, Cole did not appear to be shot. Brown ran to the other side of the Café. Brown testified that, while standing on the side of the Café, he saw someone running toward him and he fired his pistol three to five times at this person. Brown then fled the scene with Henderson, who dropped him off at an acquaintance’s house. Brown testified that he then learned Cole had died; Brown threw his pistol into a sewage lagoon. Brown turned himself in to police the next morning.

¶ 3. Brown and Henderson provided statements to the Mississippi Bureau of Investigation about the events that occurred. Brown stated in part: “me and [Cole] were scuffling and I tried to hit him with the gun. The gun went off. The gun went off a few more times.... I saw someone running. I thought it was [Cole] and I shot toward him. I think I shot three times.” Henderson’s statement provided in part that: “[Brown] started shooting. He was shooting wild.... The gun went off several times. It looked like [Brown] was shooting [Cole].... [Brown] walked down the street beside the building, then was looking to where [Dorrough] ran to. I heard four or five more shots.”

¶ 4. A Coahoma County grand jury subsequently indicted Brown for murder. At trial, Steve Chancellor, a crime scene analyst with the Mississippi Bureau of Investigation, testified that he recovered two groups of shell casings from the scene. A group of three shell casings were recovered in front of the Café, and a group of four shell casings were recovered on the side of the Café. All the shell casings were fired from a nine-millimeter pistol. Starks Hathcock, a forensic scientist with the Mississippi Crime Laboratory, testified that all of the shell casings recovered at the Café were fired from the same weapon. However, he could not determine if the projectile recovered from Cole was fired from the same weapon as the shell casings recovered. He testified that it would be virtually impossible to match the casing and the projectiles without the weapon.

¶ 5. Dr. Steven Hayne performed the autopsy on Cole and was admitted at trial as an expert in forensic pathology. He testified that Cole received three gunshot wounds: a bullet graze to the left side of the abdomen, a wound to the upper right chest, and a wound to his abdomen. He concluded that Cole suffered massive blood loss, which substantially contributed his death.

¶ 6. At the conclusion of Brown’s trial, the jury found him guilty of manslaughter. The trial court sentenced Brown to serve twenty years in the custody of the MDOC. Brown filed a motion for a new trial or, in the alternative, for a JNOV, which was denied by the trial court. Aggrieved, Brown appeals his conviction and sentence.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING PORTIONS OF DR. HAYNE’S TESTIMONY.

¶ 7. Brown alleges that the trial court permitted Dr. Hayne to testify about matters that were unreliable, inaccurate, and speculative. On direct examination, the prosecution asked Dr. Hayne how Cole was positioned when he was shot. Dr. Hayne stated that given the entry point and trajectory of the bullets, Cole was likely ducking and then leaning away when he was shot in the chest and abdomen, respectively. The prosecution then asked Dr. Hayne how far a person could run with the type of injuries Cole received. He responded that a person could run one hundred to two hundred yards before collapsing.

¶ 8. As the State correctly points out, Brown never objected to these statements made by Dr. Hayne. The “[supreme court] has consistently held that the failure to make a contemporaneous objection constitutes waiver of an issue on appeal.” Derouen v. State, 994 So.2d 748, 751(¶ 7) (Miss.2008). “The trial court will not be held in error on a matter that was never presented for its consideration.” Bogan v. State, 754 So.2d 1289, 1294(¶ 19) (Miss.Ct.App.2000). Having failed to object to the expert testimony, we find that Brown is procedurally barred from raising this issue on appeal.

¶ 9. Notwithstanding the procedural bar, we find the trial court did not err in allowing Dr. Hayne’s testimony. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence,” and “reversal is only proper when such a discretion has been abused and a substantial right of a party has been affected.” Flaggs v. State, 999 So.2d 393, 401(¶26) (Miss.Ct.App.2008). “However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence.” Id.

¶ 10. “The admissibility of expert testimony is evaluated in light of M.R.E. 702, which holds that such testimony may be introduced when it is found to be relevant and reliable.” Id. at (¶ 27) (citation omitted). We have stated that such testimony is relevant if it assists the trier of fact in understanding or determining a fact at issue; Flaggs noted:

To meet the requirement of reliability, an expert’s testimony must be based on the methods and procedures of science, and not merely on subjective beliefs or unsupported speculation. Rule 702 expressly allows expert testimony regarding non-scientific matters, so long as the witness’s knowledge, skill, experience, training, or education qualify him as an expert in a given field, and (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the ease.

Id. at 401-02(¶27) (internal citation and quotations omitted).

¶ 11. Dr. Hayne was admitted as an expert witness in forensic pathology without any objection by Brown. “[I]t is the duty of a forensic pathologist to answer two basic questions: what was the cause of death, and what was the manner of death?” Williams v. State, 937 So.2d 35, 42(¶ 20) (Miss.Ct.App.2006) (citation omitted). “[A] forensic pathologist may testify as to what caused the victim’s injuries and what trauma the injuries would produce.” Id. (citation omitted). A forensic pathologist may also testify concerning “the victim’s wounds, suffering, and the means of infliction if the injury falls within the bounds of his expertise.” Id. at 43(¶ 20) (citation omitted).

¶ 12. As stated above, Dr. Hayne testified that Cole was likely ducking and then leaning away when he was shot. In Bell v. State, 725 So.2d 836, 853(¶ 50) (Miss.1998), the supreme court concluded that under Rule 702, an expert in forensic pathology could testify about the position of the victim at the time the fatal wounds were received. The Mississippi appellate courts have continued to allow an expert in forensic pathology to testify about the position of the victim’s body when he or she was shot. See Boyd v. State, 977 So.2d 329, 333 (¶¶ 8, 31) (Miss.2008) (victim was in a standing position when shot); Turner v. State, 796 So.2d 998, 1001(¶ 8) (Miss.2001) (victim was down, “essentially on the ground,” and “leaning forward” when the shooting occurred); Conway v. State, 915 So.2d 521, 526(¶ 21) (Miss.Ct.App.2005) (victim was in a seated and upright position when shot).

¶ 13. It is clear from the above cases that, under Rule 702, an expert qualified in forensic pathology can testify about the position of the victim at the time the fatal wounds were inflicted. Therefore, it was not error for the trial court to allow Dr. Hayne, who was tendered as an expert in forensic pathology, to testify about the position of Cole when he was shot.

¶ 14. Brown also argues that the trial court erred in allowing Dr. Hayne to testify about the distance a person could run after suffering the type injuries Cole received. Dr. Hayne responded that “a person could possibly run the distance of ... 100 yards or even 200 yards with a gunshot wound to the heart, a gunshot wound of this caliber to the heart.” Brown also failed to object to this assessment; therefore, he is procedurally barred from raising this issue on appeal. Bogan, 754 So.2d at 1294(¶ 19). Notwithstanding the procedural bar, we will consider his argument that it was erroneous for the trial court to permit such testimony.

¶ 15. “[W]e first note that the use of hypothetical questioning in order to elicit expert testimony is permissible in Mississippi.” Williams, 937 So.2d at 42(¶ 20). Moreover, as stated above, a forensic pathologist may testify about the trauma an injury can produce, about the victim’s wounds, and about the victim’s suffering. Id. Our courts have permitted a forensic pathologist to testify about the pain and suffering a victim suffered after being attacked because it was a result of the trauma produced by the incident. See Holland v. State, 705 So.2d 307, 341 (¶ 128) (Miss.1997) (“victim suffered a fatal heart attack as a result of trauma and stress induced by a beating and robbery”); Booker v. State, 5 So.3d 411, 423(¶ 32) (Miss.Ct.App.2008) (victim became unconscious sometime before his death, but during the infliction of the injuries, the victim was “very much aware of what was going on, and in great pain.”).

¶ 16. We find the response given by Dr. Hayne was a description of the type pain, trauma, and suffering Cole could have experienced after being shot; thus, it was admissible. His testimony revealed that, hypothetically, Cole could have been shot during the scuffle and still would have been capable of running back to the side of the Café. Dr. Hayne’s testimony also provided insight into the types of wounds Cole received and how much pain and suffering he would have experienced after being shot and while he was running to the side of the Café. Dr. Hayne’s testimony established that Cole’s death would not have been instantaneous, but Cole would have lived a few moments before dying.

¶ 17. We find that the trial court did not abuse its discretion in allowing Dr. Hayne’s testimony as Dr. Hayne’s testimony about the position Cole was in when he was shot and how far Cole could have run after being shot were within the scope of his expertise as an expert in forensic pathology. Accordingly, this issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING BROWN’S SELF-DEFENSE JURY INSTRUCTIONS.

¶ 18. Brown requested that the trial court grant three self-defense jury instructions. Brown argues there was sufficient evidence to support a self-defense jury instruction; Brown was attacked by Cole and two other individuals, retreated from their attack, and was pursued by Cole who was carrying a beer bottle, at which point Brown pulled his pistol in hopes of thwarting their pursuit and then engaged in a scuffle with Cole, which led to the pistol firing three times. However, the trial court refused Brown’s self-defense jury instruction on the ground that it had no evidentiary basis.

¶ 19. Our standard of review of the giving or refusal of a jury instruction is well established:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Hearn v. State, 3 So.3d 722, 738(¶ 45) (Miss.2008) (citations omitted).

¶ 20. In Burnside v. State, 882 So.2d 212, 216(¶ 21) (Miss.2004), the supreme court ruled that there was insufficient evidence to support a self-defense jury instruction on a charge for simple assault on a sheriffs deputy where the defendant denied hitting or striking the deputy. Similarly, in Dorrough v. State, 812 So.2d 1077, 1081(¶ 19) (Miss.Ct.App.2001), this Court ruled that the defendant was not entitled to a self-defense jury instruction when he denied having a weapon and inflicting injury on an aggravated assault charge.

¶ 21. Turning to the case at bar, Brown denied the shooting. Brown’s defense was not one of self-defense; rather, it was that someone else shot Cole. Brown testified that he did not know who pulled the trigger during the scuffle with Cole when the pistol was fired three times. He testified on direct examination that he did not do the second shooting. The trial court was somewhat perplexed by Brown’s self-defense jury instruction request. During the jury instruction conference, the trial court asked Brown’s counsel, “Is the defendant saying that he did it, he killed the victim!,] but he killed the victim in self-defense?” Brown’s counsel responded: “If I recall, when asked that question on cross[-examination] ... his response was that he really don’t [sic] know.” The trial court again asked Brown’s counsel whether Brown wanted to be heard regarding the self-defense jury instruction. To which, Brown’s counsel answered, “no,” and withdrew his self-defense instruction request. Brown cannot claim on appeal that the trial court erred when he did not allow the trial court to rule on whether to grant or refuse the jury instruction. Austin v. State, 971 So.2d 1286, 1288(¶ 8) (Miss.Ct.App.2008).

¶ 22. Procedural bar notwithstanding, we find that Brown’s argument on appeal that he was entitled to self-defense instruction because an evidentiary basis existed which showed that even if he did the killing, it was done in necessary self-defense, fails. Our supreme court has upheld the trial court’s denial of a self-defense jury instruction in a murder case as having no evidentiary basis when the defendant’s defense was that the shooting was unintentional and accidental. Wadford v. State, 385 So.2d 951, 955 (Miss. 1980). The supreme court clarified that “[t]he legal concept of self-defense in a homicide case is based upon justification of a purposeful killing because it was necessary to kill in order to save the killer from imminent danger of suffering death or grave bodily harm at the hands of the person killed” Id. Similar to the defendant in Wadford, Brown never admitted that he shot Cole in a purposeful manner, thus precluding him from being entitled to a self-defense jury instruction.

¶ 23. Accordingly, the trial court did not err in refusing to grant Brown’s self-defense jury instruction for a lack of an evidentiary basis. This issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN DENYING BROWN’S MOTION FOR A NEW TRIAL OR, IN THE ALTERNATIVE, FOR A JNOV.

¶ 24. Brown argues the trial court erred in not granting his motion for a new trial or, in the alternative, for a JNOV because the State failed to prove the necessary elements of manslaughter. In appealing the trial court’s decision to overrule his motion for a new trial, Brown challenges the weight of the evidence, and by appealing its decision to overrule his motion for a JNOV, Brown challenges the legal sufficiency of the evidence. Dear v. State, 960 So.2d 542, 545-46 (¶¶ 13-14) (Miss.Ct.App.2006). We will address each of Brown’s contentions separately.

A. Weight of the Evidence

¶ 25. In Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (internal citations omitted), the supreme court outlined our standard of review of the weight of the evidence supporting a jury’s verdict as follows:

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.... However, the evidence should be weighed in the light most favorable to the verdict. 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. Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

¶ 26. Brown bases his argument on the absence of proof that he shot Cole. Brown argues that no evidence proved that he shot Cole, but there is evidence that someone else fired the fatal shot at Cole. Brown points to his and Henderson’s version of the events to support his argument. Both of them stated that: Brown was involved in a scuffle with Cole; the gun fired three times during this scuffle; Cole was not bleeding when he ran off from the scuffle with Brown; and Brown did not fire the second round of shots. To support his argument, Brown cites to the rule enunciated in Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933), which held that: “where the defendant or the defendant’s witnesses are the only eyewitness to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particularly by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.” Brown argues that because the State did not present any witnesses to rebut his and Henderson’s account of what happened, their version of the events must be accepted as the truth.

¶ 27. However, the State correctly points out that Brown is procedurally barred from bringing his Weathersby argument because he did not bring it to the trial court’s attention and give the trial court the opportunity to make a ruling. Neese v. State, 993 So.2d 837, 843(¶ 12) (Miss.Ct.App.2008).

¶ 28. Additionally, weighing the evidence in a light most favorable to the verdict, we find the evidence supports Brown’s manslaughter conviction. While Brown and Henderson did provide alternative theories at trial of what occurred that night, their statements, when read aloud in open court, coupled with their testimonies, established that Brown’s gun went off three times while he and Cole were in a scuffle, and after Cole ran around the side of the Café, Brown went to the opposite side of the Café and fired three to five more shots in the direction of Cole. In fact, Henderson testified on direct examination that Brown was standing in the road when the second round of shots were fired, but on cross-examination, Henderson, admitted that he was distracted and not watching Brown the entire time after the scuffle. The State’s specialist in firearms identification testified that all the casings recovered by the Mississippi Bureau of Investigations from the scene were fired from the same weapon. Since no other type of casings were recovered at the scene, it is only logical to conclude that the shots that killed Cole were some of the six to eight shots fired by Brown. Therefore, we find that the weight of the evidence supports Brown’s manslaughter conviction.

B. Legal Sufficiency of the Evidence

¶ 29. In Bush v. State, 895 So.2d at 843 (¶ 16), the supreme court also reiterated our standard of review as to the legal sufficiency of the evidence as follows:

In Carr v. State, 208 So.2d 886, 889 (Miss.1968), we stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” However, this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original). Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render[, i.e. reverse and discharge]. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). However, if 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. Edwards, 469 So.2d at 70; see also Gibby v. State, 744 So.2d 244, 245 (Miss.1999).

¶ 30. Similar to his argument above, Brown argues the State’s evidence did not prove that he killed Cole, thus failing to meet the essential element of manslaughter that he killed another human being.

¶ 31. As stated above, there is sufficient evidence to sustain a manslaughter conviction. Brown fired three shots while scuffling with Cole and fired three to five more shots in the direction of Cole while standing on the side of the Café. The State’s firearm’s specialist testified that only one gun was fired that night at the Café. One of these six to eight shots resulted in the death of Cole. In viewing the evidence in the light most favorable to the State, we find that the evidence presented at trial was sufficient to uphold Brown manslaughter conviction. Accordingly, this issue is without merit.

¶ 32. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

KING, C.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. LEE, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Brown's pistol was never recovered by the police.

      . Brown and Henderson both testified that the statements they made to the police were inaccurate. Brown stated his statement omit-led portions he related to the police. Henderson testified he lied to police in his statement to get himself out of trouble.

      . The prosecution did not tailor the question specifically to the victim, Cole; the prosecution phrased it as "a person ... receiving! these injuries.”


author: KING, C.J., for the court.

text:
    Desmond KEYS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02221-COA.
    Court of Appeals of Mississippi.
    Oct. 13, 2009.
    Rehearing Denied Feb. 16, 2010.
    Certiorari Denied May 6, 2010.

      Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   KING, C.J., for the court.

¶ 1. Desmond Keys was convicted of murder and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC), and if released before the full sentence is served, he was ordered to complete the Eighteenth District Circuit Court’s Community Service Program. On appeal, Keys raises the following assignments of error: (1) the trial court committed reversible error by failing to instruct the jury on Keys’s theory of the case, and (2) the trial court erred in permitting Dr. Steven Hayne to testify in the area of terminal ballistics and to testify regarding the manner and cause of death. Finding no error, we affirm the judgment of the trial court.

FACTS

¶ 2. On the night of July 27, 2006, William Tucker, his cousin Vernon Washington, Leon Gavin, and Melvin were standing outside Tucker’s home at the Lone Oak Apartment complex in Laurel, Mississippi talking, when Keys stopped by to talk with the men. Tucker and Keys got into an argument, which led to a physical altercation. Washington testified that he was attempting to separate the men, when Keys threw his cell phone at Tucker and stated that he would be back. Tucker testified that fearing Keys would return, he and Washington left and went to Tucker’s brother’s house to avoid trouble. Keys returned while Tucker was gone and opened fire on Tucker’s apartment.

¶ B. Approximately thirty minutes later, Tucker returned home to find that his five-year-old daughter, Mariyanna Marie Tucker, had been shot as she lay sleeping in her bed. Mariyanna died as a result of her injuries.

¶ 4. State witnesses, Kametra Leggins and Donna Wilson, both testified that they witnessed Keys shoot multiple times into Tucker’s residence. During an investigation of the crime scene, investigators retrieved thirty-three shell casings outside the apartment and identified forty-three impacts or holes in the apartments’ walls and one hundred - and twelve defects caused by flying bullets.

¶ 5. Keys was tried and found guilty on November 16, 2007, of the murder of Mari-yanna. On November 21, 2007, Keys filed a motion styled Motion for Judgment of Acquittal Notwithstanding the Verdict or, in the Alternative, a New Trial. The trial court denied the motion on November 28, 2007. Keys timely filed this appeal.

ANALYSIS

I. Whether the trial court committed reversible error by failing to instruct the jury on Keys’s theory of the case.

¶ 6. Keys argues that the trial judge committed reversible error because he did not grant four jury instructions Keys requested. Keys asserts that the jury should have been instructed on his theory of the case, which was manslaughter. This Court’s standard of review to challenges of jury instructions on appeal is as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Lawrence v. State, 3 So.3d 754, 758(¶ 19) (Miss.Ct.App.2008). Although the trial court has considerable discretion as to the form and substance of jury instructions, the jury must be adequately instructed in a manner such that it understands each party’s theory. Brown v. State, 768 So.2d 312, 315(¶ 9) (Miss.Ct.App.1999). “If the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Lawrence, 3 So.3d at 758(¶ 19).

¶ 7. Keys proposed the following jury instructions: D-12, which defined heat-of-passion manslaughter; D-ll, which defined culpable-negligence manslaughter; D-10, which instructed on the lesser-included offense of manslaughter; and D-6, which instructed on the form of the verdict as to manslaughter. The text of the proffered jury instructions reads as follows:

Jury Instruction D-12
The Court instructs the jury that the term “heat of passion” is defined as a state of violent and uncontrollable rage engendered by a blow or certain other provocation given and will reduce a homicide from the grade of murder to that of manslaughter. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.
Therefore, if you find from the evidence and testimony in this case that Desmond Keys acted in the heat of passion, and while in a state of heat of passion caused the death of Mariyanna Tucker, by shooting her with an automatic weapon, then you shall find the defendant guilty of manslaughter.
Jury Instruction D-ll
The Court instructs the Jury that the killing of a human being by the culpable negligence of another, without authority of law, is manslaughter, and the Court further instructs the jury that culpable negligence is defined as negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life.
If you believe from the evidence beyond a reasonable doubt that the death of Mariyanna Tucker was caused by the culpable negligence of the defendant, Desmond Keys, then you shall find the defendant guilty of the crime of manslaughter.
Jury Instruction D-10
The Court instructs the jury that if you find from the evidence in this case that the defendant Desmond Keys, is not guilty of the crime of Murder, then you may proceed with your deliberations to determine whether the State has proven, beyond a reasonable doubt, all of the elements of the lesser crime of Manslaughter.
This provision is not designed to relieve you from the performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge of Murder but does justify a verdict for the lesser crime of Manslaughter.
However, notwithstanding this right, it is your duty to accept the law as given [to] you by the Court; and if the facts and the law warrant a conviction of the greater crime, then it is your duty to make such finding uninfluenced by your power to find a lesser offense.
Jury Instruction D-6
The Court instructs the Jury that if you find the Defendant guilty of murder, the form of your verdict shall be as follows: “We, the Jury, find the Defendant guilty of murder.”
The Court further instructs the Jury that if you find the Defendant guilty of manslaughter, the form of your verdict shall be as follows: “We the Jury, find the Defendant guilty of manslaughter.”
The Court further instructs the Jury that if you find the Defendant Not Guilty of murder and Not Guilty of manslaughter, then the form of the verdict shall be as follows: “We, the Jury, find the Defendant Not Guilty.”
You should write your verdict on a separate sheet of paper.

¶ 8. The trial court refused to grant these instructions on manslaughter, but it instructed the jury on murder. Keys asserts that even if everything the prosecution said were true, he could only be guilty of either culpable-negligence manslaughter or heat-of-passion manslaughter. He argues that the refusal of his requested instructions, precluded the jury’s consideration of his theory of defense, which was manslaughter, a lesser-included offense of murder. In determining whether a lesser-included-offense instruction should be submitted, this Court applies the following standard:

A lesser-included-offense instruction should be granted unless the trial judge — and ultimately this Court — can say, taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser-included offense (and conversely not guilty of at least one essential element of the principal charge).

Gates v. State, 484 So.2d 1002, 1004 (Miss.1986). Stated otherwise, absent an eviden-tiary foundation, no lesser-included-offense instruction will be granted. Agnew v. State, 783 So.2d 699, 703(¶ 10) (Miss.2001).

¶ 9. Keys contends that the culpable-negligence jury instruction was a proper statement of the law and that the trial court erred in refusing such instruction because this was not an intent-to-kill indictment, but a depraved-heart-murder indictment. There was no factual basis for Keys’s requested culpable-negligence-manslaughter instruction. The culpable-negligence-manslaughter instruction was inappropriate because the record indicates that after Washington broke up the scuffle between Tucker and Keys, Keys left the scene, went home and retrieved a semiautomatic assault weapon, returned, and fired multiple times toward and into Tucker’s apartment. The State asserts that the sheer number of bullets fired toward or into Tucker’s home completely negated any notion that Keys’s actions were negligent rather than intentional.

¶ 10. Katmetra Leggins testified that as she was turning into the Lone Oak Apartment complex, she saw Keys standing on the corner under a big tree by Tucker’s apartment shooting at the apartment. Leggins stated that when she saw Keys and asked him what was going on, he turned the gun on her and shouted some offensive language and told her that she “could get it too.”

¶ 11. Donna Wilson testified that she initially saw Keys standing beside the bushes shooting toward Tucker’s apartment, and then she saw him walk around the apartment shooting. Arianna Wilson also testified that she saw Keys shooting toward Tucker’s apartment.

¶ 12. Vivian Tucker testified that as she was returning home from the store she heard numerous gunshots and subsequently saw Keys walking away from the direction of her apartment toward a pink Ford Escort carrying a handgun in one hand and what appeared to be a semiautomatic assault rifle in the other hand.

¶ 13. As stated, Keys returned to Tucker’s home allegedly with two guns and fired upon Tucker’s apartment. The evidence indicates that Tucker’s apartment sustained significant damage. Investigator Mike Sumrall testified that bullets caused several defects in the walls, and the bullets penetrated the furniture and fixtures found throughout the apartment. Investigator Sumrall stated that the definite groupings and vertical angle of the bullets within the windows indicate intent which suggests that the intended target was of human height. Both Vivian and Tucker testified that Keys was aware that children lived at the residence and likely were asleep during the time of the shooting. Vivian stated that when she left the apartment to go to the store, Keys was standing there with Tucker and Washington when she informed Tucker that she had just put the girls to bed. The evidence clearly indicates that Keys acted with the deliberate intent to cause harm to those inside Turner’s apartment. Thus, we find that the evidence in this case did not support a culpable-negligence-manslaughter instruction.

¶ 14. Keys also asserts that a heat-of-passion instruction should have been given because an altercation occurred between Tucker and Keys prior to the shooting. The supreme court has defined heat of passion as follows:

In criminal law, a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. This term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Tait v. State, 669 So.2d 85, 89 (Miss.1996). According to Agnew, 783 So.2d at 703-04(¶ 14):

[P]assion and anger alone are not sufficient to reduce a crime from murder to manslaughter. Additionally, there must be such circumstances as would indicate that a normal mind would be roused to the extent that reason is overthrown and passion usurps the mind destroying judgment.

(Internal citations omitted).

¶ 15. “The test for determining whether a manslaughter instruction based on a heat-of-passion theory is warranted is whether [the defendant] acted in the heat of passion and without malice.” Neese v. State, 993 So.2d. 837, 850(¶ 31) (Miss.Ct.App.2008) (citations and internal quotations omitted). The supreme court in Moody v. State, 841 So.2d 1067, 1097(¶ 98) (Miss.2003) held that the determination of whether the defendant acted in the heat of passion and without malice is an objective question. That question is whether a reasonable person would have been so provoked. Id.

¶ 16. The facts and evidence in this case did not warrant a heat-of-passion instruction. Keys’s conduct was not a reaction made in the spur of the moment, but rather it was a deliberate action. The State presented testimony that Keys became upset because Tucker did not take Keys’s boast about being a “big shot” seriously. Washington testified that the discussion escalated to a physical altercation between Tucker and Keys. Washington stated that while trying to separate the two men, Keys threw his cell phone at Tucker and made certain scatological remarks and then stated that he would be back. Tucker testified that once the physical altercation ended, he and Washington immediately left. Tucker returned approximately thirty minutes after the altercation to find that his little girl had been shot.

¶ 17. The evidence indicates that Keys returned at some point within that thirty minute time period while Tucker was gone with his weapon(s) and fired upon Tucker’s home killing Mariyanna. The record contains no evidence of any action or offense which should have provoked in Keys such a violent and uncontrollable rage. However, if there were any provocation, the time between the alleged provocation and the shooting should have permitted Keys to “cool off.” Thus, the evidence does not support an instruction for heat-of-passion manslaughter.

¶ 18. The defense rested without presenting any evidence to refute the evidence presented by the State. Considering the evidence in the light most favorable to Keys, there was still no factual basis for the requested jury instructions. Thus, we find that no reasonable jury could find that Keys committed manslaughter rather than murder. The trial court did not err in refusing the proffered jury instructions. Therefore, this assignment of error is without merit.

II. Whether the trial court erred in permitting the testimony of Dr. Steven Hayne.

A. Terminal Ballistics

¶ 19. Keys argues that Dr. Hayne testified as an expert in terminal ballistics, although he lacked the necessary education and training to testify as an expert in the field. Keys asserts that because Dr. Hayne testified as an “expert,” the jury was more likely to give credence to his testimony. Keys contends that the trial court erred in allowing Dr. Hayne to testify that the bullet that killed Mariyanna was a high-velocity bullet. Keys claims that Dr. Hayne provided no scientific basis for his opinion.

¶ 20. We find that Dr. Hayne was qualified to testify as an expert in the area of terminal ballistics because terminal ballistics is a subfield of forensic pathology. See Williams v. State, 964 So.2d 541, 544(¶ 8) (Miss.Ct.App.2007). Furthermore, Keys failed to voir dire or object to Dr. Hayne’s qualifications. “The supreme court has refused to hold that an expert was not properly qualified when the opposing party did not object to the witness’s credentials but only to the testimony.” McBeath v. State, 739 So.2d 451, 454 (¶ 10) (Miss.Ct.App.1999). See Baine v. State, 604 So.2d 249, 255 (Miss.1992). Having failed to object to Dr. Hayne’s qualifications in the area of terminal ballistics, Keys is proeedurally barred from raising this issue. Keys did object to the State’s question on direct examination of Dr. Hayne regarding whether the bullet that killed Mariyanna was a high-velocity or low-velocity bullet. Before the trial court could rule on the objection, the State rephrased the question. Dr. Hayne was then asked if he had an opinion based on his training and experience to a reasonable degree of medical certainty as to the velocity of the bullet which caused the death of Mariyanna.

¶ 21. Mississippi Rule of Evidence 702 outlines the requirements permitting an expert to testify. Rule 702 states, in part, that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise....

¶ 22. Keys did not object to the rephrased question. If a defendant fails to timely object to an issue at trial, the issue is waived for purposes of appeal. Cavett v. State, 717 So.2d 722, 726(¶21) (Miss.1998). “The trial court will not be held in error on a matter that was never presented for its consideration.” Bogan v. State, 754 So.2d 1289, 1294(¶ 19) (Miss.Ct.App.2000). Accordingly, we find that this issue is both proeedurally barred and without merit.

B. Certification

¶ 23. Keys argues that the trial court erred by allowing Dr. Hayne to testify to the cause and manner of death of Mariyanna without having the proper medical credentials and qualifications. “[F]o-rensic pathology is generally accepted as a division within pathology!,] and a forensic pathologist ‘addresses two basic questions: what was the cause of death, and what was the manner of death?’ ” Ross v. State, 883 So.2d 1181, 1184(¶ 5) (Miss.Ct.App.2004) (citation omitted). The qualification of an expert who will offer expert opinion under Mississippi Rule of Evidence 702 is a matter vested in the sound discretion of the trial court. McNeal v. State, 617 So.2d 999, 1007 (Miss.1993). Dr. Hayne testified that he is a physician who works in the fields of anatomic clinical and forensic pathology. The trial court accepted that Dr. Hayne was qualified as an expert in the area of forensic pathology without any objection or voir dire from defense counsel. Therefore, we find that Dr. Hayne’s testimony as to the cause and manner of death of Mariyanna was permissible.

¶ 24. Keys also contends that the trial court erred by allowing Dr. Hayne to testify as a medical examiner although he is not board certified by the American Board of Pathology as required by statute. According to Mississippi Code Annotated section 41-61-55 (Rev.2005), only the State Medical Examiner is required to be certified in the area of forensic pathology by the American Board of Pathology, not a forensic pathologist performing autopsies. Dr. Hayne testified that he is a licensed physician with expertise in anatomic clinical and forensic pathology. Dr. Hayne stated that he works as the chief state pathologist with the Department of Public Safety for the medical examiner’s office for the State of Mississippi. Dr. Hayne did not testify that he was the State Medical Examiner. Therefore, Dr. Hayne is not required to be board certified by the American Board of Pathology. Accordingly, this assignment of error is without merit.

CONCLUSION

¶ 25. The trial court did not abuse its discretion in refusing jury instructions on culpable-negligence and heat-of-passion manslaughter. In addition, the trial court did not err by allowing Dr. Hayne to testify as an expert in the area of terminal ballistics and to the cause and manner of death of the victim. Therefore, we affirm the judgment of the trial court.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO COMPLETE THE EIGHTEENTH DISTRICT CIRCUIT COURT’S COMMUNITY SERVICE PROGRAM IF RELEASED BEFORE SERVING THE FULL SENTENCE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Melvin’s last name was not stated in the record.