author: ISHEE, J.,

text:
    Danny HURT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00424-COA.
    Court of Appeals of Mississippi.
    Sept. 15, 2009.
    Rehearing Denied Feb. 23, 2010.
    Certiorari Denied May 20, 2010.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. A jury in the Circuit Court of Franklin County found Danny Hurt guilty of armed robbery. Hurt was sentenced to twenty-five years in the Mississippi Department of Corrections as a habitual offender, without eligibility for parole or probation. Hurt’s sentence was also enhanced by Mississippi Code Annotated section 99-19-351(Rev.2007) because the victim of the armed robbery was a person over the age of sixty-five years. Hurt was ordered to pay restitution to the victim in the amount of $1,700 and all court costs, including attorney’s fees. Aggrieved by the circuit court’s ruling, Hurt appeals, alleging that the prosecutor’s comments during trial regarding his post-arrest, pre-Miranda silence violated his Fifth Amendment rights and thereby denied him a fundamentally fair trial. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Seventy-nine-year-old Curtley Hayes was the victim of an armed robbery on April 25, 2007. Hayes routinely checked several oil wells in Franklin County in his work as an independent oilfield pumper. Hayes was in the process of checking an oil well when someone came up from behind, held a knife to his throat, and hit him on the back of the head. The attacker knocked Hayes to the ground and took all the cash from his wallet. The attacker then threw Hayes’s cell phone into the woods, knocked off his glasses, and stole his truck. After the robbery, Hayes walked to a nearby home and contacted the Franklin County Sheriffs Department. When Sheriff James Newman arrived, Hayes described his attacker as about five-foot-nine and approximately 165 pounds. However, Hayes was unable to describe his attacker’s face because his attacker’s head and body were completely covered.

¶ 3. Sheriff Newman soon identified Hurt as a suspect in the armed robbery. Hayes knew Hurt as a result of Hurt’s previous work at Cornwell Well Services (Cornwell) repairing oil wells. Hayes had visited Cornwell in the past and had coffee with Hurt on several occasions. Hayes testified at trial that everyone, including Hurt, was aware of Hayes daily routine of checking the oil wells. It was discovered that Hurt was aware of the exact route Hayes generally took to inspect the oil wells. Hayes also testified that it was well known by the workers at Cornwell that he carried cash with him on his daily route.

¶ 4. A warrant was issued for Hurt’s arrest, and Sheriff Newman and Troy Travis of the Mississippi Highway Patrol traveled to New Albany to arrest him. Hurt was told at the time of the arrest that he was being charged with the armed robbery of Hayes that occurred on April 25, 2007. Sheriff Newman testified that Hurt never said a word after his arrest on the trip back until they stopped at the Brookhaven Highway Patrol substation. Sheriff Newman brought Hurt into the substation to interview him, and at that time, he first advised Hurt of his Miranda rights. According to Sheriff Newman, Hurt stated that he had about fifteen or twenty witnesses that would put him in New Albany at the time of the armed robbery. Hurt refused to give the names of any of the witnesses, and he refused to make any other statements. Sheriff Newman testified that at that point, Hurt became violent and said, “If you take these cuffs off of me, I’ll whip you’re a — .” The officers then transported Hurt to the Franklin County Jail. Upon arrival, Sheriff Newman attempted to talk to both Hurt and Bridget Jones, who had identified Hurt as a suspect. However, Hurt began screaming at Jones, calling her a “ratty whore” and asking “why did she rat [Hurt] out.”

¶ 5. Jones, an acquaintance of Hurt, who sold him illegal drugs every few days, testified against him at trial. Jones claimed that she was with Hurt at the time of the robbery. Jones testified that Hurt came to her home, and she agreed to ride with him to pick up some money from Hayes. Hurt parked his vehicle near a church and left her in the vehicle while he went to collect the money from Hayes. Jones testified that Hurt soon returned driving Hayes’s truck. When he returned, he was in a hurry. He parked Hayes’s truck, and he quickly jumped back in his own vehicle and drove away quickly. Jones claimed that Hurt later confessed to her that he had robbed Hayes. Possessing this information, Jones visited Hayes at his home and identified Hurt as the perpetrator of the armed robbery. Jones then relayed the information to Sheriff Newman. Jones was subsequently arrested for armed robbery, and she took the sheriff to the place where she had waited for Hurt. She said that Hurt passed her notes while she was in jail and told her to keep her mouth shut.

¶ 6. Arthur Ball also testified against Hurt. Ball was incarcerated in an adjoining cell to Hurt for a short period of time. Ball claimed that Hurt admitted to committing the armed robbery, and he said that he witnessed Hurt attempting to pass notes to Jones in jail.

¶ 7. During the State’s opening statement and during its case-in-chief, the prosecutor commented on Hurt’s post-arrest silence for most of the trip from New Albany to Franklin County. The prosecutor questioned why Hurt would remain silent about his alibi until they reached Brookhaven, preventing Sheriff Newman from interviewing potential alibi witnesses while he was still in New Albany. During Sheriff Newman’s testimony, he repeatedly stated that Hurt made no comment during the trip from New Albany to the Brookhaven substation. Hurt also testified in his own defense at trial. During the cross-examination, the prosecutor questioned why Hurt did not ask Sheriff Newman any details about the crime but instead remained silent upon his arrest. Hurt responded that: “I am being transported. There’s no need for conversation.” Again, in closing arguments, the prosecution referred to Hurt’s initial silence for an almost three-hour trip after his arrest before he disclosed he had alibi witnesses.

¶ 8. Hurt was indicted on September 11, 2007, under Mississippi Code Annotated section 97-3-79 (Rev.2006) for armed robbery, enhanced by Mississippi Code Annotated section 99-19-351 because the victim was a person over the age of sixty-five. At trial, Hurt moved for a directed verdict of acquittal at the close of the State’s case and again at the close of trial, which the circuit court denied Following the jury trial, Hurt was found guilty of armed robbery and was also found to be a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Hurt was sentenced to twenty-five years in the Mississippi Department of Corrections, without eligibility for parole or probation. Hurt was also ordered to pay restitution to the victim in the amount of $1,700 and to pay all court costs, including attorney’s fees.

DISCUSSION

Whether it was error to allow the prosecutor’s comments at trial.

¶ 9. Hurt argues on appeal that his constitutional rights were violated by the prosecutor’s repeated references to Hurt’s post-arrest, pr e-Miranda, silence during the trial. Hurt contends that the case against him consisted primarily of unreliable testimony from an accomplice, Jones, and from Ball, an untrustworthy jailhouse snitch. Therefore, Hurt argues that the State improperly augmented its case with questions and comments regarding Hurt’s silence after his arrest, using his silence as an implicit admission of guilt. During the State’s opening statement, the prosecutor stated the following:

Now, Sheriff Newman is going to tell you about he and Mr. Travis went to New Albany to get Danny Hurt.... That they went up there, they picked him up, and on the ride home, Mr. Hurt said absolutely nothing to either one of them. Now, he’s told what he’s charged with, armed robbery of Curtley Hayes that occurred on April 25th, last year. They drive all the way from New Albany to Franklin County, and Mr. Hurt says absolutely .nothing about it. They stopped in Brookhaven ... and at that time, Mr. Hurt says, “Oh, that’s not-I couldn’t have possibly been involved in that because I was in New Albany, Mississippi, on April the 25th.” Now they just left New Albany where the sheriff could have interviewed witnesses, gotten names and gone right then. He didn’t say a word when the sheriff first put him in the car. He waits until he gets to Brookhaven....

Similarly, during the State’s questioning of Sheriff Newman, the following exchange took place:

Q: Would you tell us what happened on [the trip from New Albany to Brookhaven]. What was said, what, if anything? What happened?
A: [Investigator Travis] and myself talked a little bit. Danny never said a word.
Q: Did he ask you anything about what he was being charged with or anything like that?
A: No, sir.
Q: No conversation at all?
A: He didn’t to me.
Q: Okay. Did he say anything to you before he left the sheriffs department in Union County?
A: Didn’t say nothing to me.
Q: He just got in the car?
A: That’s right.
Q: And rode all the way back down here?
A: We stopped at Brookhaven substation first.
Q: Sheriff, you indicated that you and Investigator Travis had returned from New Albany. About how long did that trip take in your car back down to Brookhaven?
A: About three hours.

¶ 10. Hurt initially notes that it is improper for a prosecutor to comment on a defendant’s post-arrest, post-Miranda silence, but he acknowledges that commenting on a defendant’s post-arrest, pre-Mi-randa silence has not been held to be reversible error under Mississippi law. Hurt argues that such reasoning is logically inconsistent and that both pre-Miranda and post-Miranda silence should not be used against a defendant at trial. Hurt contends that the use of his silence before he was given Miranda warnings should only be permissible when used to impeach his trial testimony. Hurt concedes that there was no contemporaneous objection to the comments with which he now takes issue, but he argues that this Court should review the issue under plain error. Based on this sole issue, Hurt asks that his conviction be reversed and his case remanded for a new trial.

¶ 11. The State responds that the matter is procedurally barred because Hurt failed to object, and additionally, that the comments regarding Hurt’s silence did not constitute plain error. The State submits that the prosecutor merely commented on Hurt’s decision not to mention his alibi until three hours after his arrest, upon arriving in Brookhaven, even though his alleged alibi witnesses were located in New Albany, where he was arrested. According to the State, the comments were not regarding Hurt’s silence, but were regarding his decision not to tell the officers about the alleged witnesses until they traveled three hours away from their location. Finally, the State argues that even if allowing the comments was error, the remarks did not rise to the level of prejudicing Hurt’s case.

¶ 12. The test to determine whether reversal is required as a result of a prosecutor’s improper comment at trial “is whether or not the natural and probable effect of the statement is to create an unjust prejudice against the accused so as to result in a decision influenced by prejudice.” Jackson v. State, 924 So.2d 531, 542(¶ 36) (Miss.Ct.App.2005) (citing Harvey v. State, 666 So.2d 798, 801 (Miss.1995)). “The prosecutor’s remarks are viewed in light of the entire trial.” Jackson, 924 So.2d at 542(¶ 36) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). However, “[wjhere it was alleged that the prosecutor made improper comments during both opening and closing arguments as well as while examining witnesses, but no objections were raised at tidal, the defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.” Jackson, 924 So.2d at 542(¶ 35) (quoting Watts v. State, 733 So.2d 214, 233(¶ 53) (Miss.1999)). Similarly, Hurt must rely on plain error regarding his claim that it was error to allow Sheriff Newman to testify regarding Hurt’s silence. See Moss v. State, 977 So.2d 1201, 1213(¶ 27) (Miss.Ct.App.2007) (applying plain-error analysis when no contemporaneous objection was made at trial when a witness gave objectionable testimony).

¶ 13. It has long been recognized that “[a] defendant has the right to remain silent following arrest, and not have that silence used against him.” Carr v. State, 655 So.2d 824, 845 (Miss.1995). Regarding the State’s cross-examination of Hurt with his silence: “In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the [United States] Supreme Court held that the Due Process Clause ordinarily prohibits the use of a defendant’s post-Miranda silence to impeach his trial testimony.” United States v. Salinas, 480 F.3d 750, 756 (5th Cir.2007). The Fifth Circuit Court of Appeals further explained in Salinas that “[although the Doyle line of cases focused primarily on due process, in each of those cases, the prosecution used the defendant’s silence only to impeach the defendant’s trial testimony, so the privilege against self-incrimination was inapplicable.” Id. at 758 n. 6. As the Mississippi Supreme Court noted in McGrone v. State, 807 So.2d 1232, 1235(¶ 11) (Miss.2002) quoting Fletcher v. Weir, 455 U.S. 603, 606-07, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982):

[I]n Anderson v. Charles, 447 U.S. 404, 407-08, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), [the United States Supreme Court] explained that use of silence for impeachment was fundamentally unfair in Doyle because ‘Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him.... Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.”

¶ 14. In McGrone, 807 So.2d at 1232(¶ 1), the Mississippi Supreme Court addressed the issue of cross-examining a defendant with his post-arrest, pre-Mi-randa silence. Unlike the present case, in McGrone, the references to the defendant’s post-arrest, pre-Miranda silence were made during cross-examination of the defendant for impeachment purposes, and the prosecutor additionally referred to McGrone’s silence during the State’s closing argument. Id. at 1233(¶ 3). The Mississippi Supreme Court considered the issue of whether the defendant could “be impeached at trial on his failure to provide, at some time after his arrest, his version of the events leading up to his arrest.” Id. at 1232 (¶ 1). Initially, McGrone’s conviction was reversed and the case remanded by this Court, and the Mississippi Supreme Court summarized that holding as follows:

[I]f it was improper for the State to cross-examine a defendant regarding his silence after being arrested and read his Miranda warnings, then it was also improper to cross-examine McGrone in this manner, where there was no evidence in the record as to whether he had been given Miranda warnings or not. The Court of Appeals found that a defendant would have the protection of the Fifth Amendment in either case, and if cross-examination was prohibited under the first scenario, it was also prohibited under the second.

Id. at 1233-34(¶ 4). In reversing this Court, the Mississippi Supreme Court cited the United States Supreme Court case of Fletcher, 455 U.S. at 607, 102 S.Ct. 1309 in support of its decision. McGrone, 807 So.2d at 1235(¶ 11). In Fletcher, the United States Supreme Court held that:

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to post[-]arrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post[-]arrest silence may be deemed to impeach a criminal defendant’s own testimony.

Fletcher, 455 U.S. at 607, 102 S.Ct. 1309.

¶ 15. Following Hurt’s testimony, the prosecutor questioned Hurt on cross-examination about his silence and mentioned it again during the State’s closing argument. Under Fletcher and McGrone, the cross-examination of Hurt concerning his post-arrest, pr e-Miranda silence and the prosecutor’s comments during closing arguments do not constitute error. Due process was not offended, and Hurt’s privilege against self-incrimination was not at issue because he had chosen to testify.

¶ 16. Unlike the cases discussed previously, Hurt’s pr e-Miranda silence was initially brought up, not during cross-examination, but during the State’s opening statement and then again during the State’s direct examination of Sheriff Newman. In such situation, the Fifth Amendment is implicated because, at the time the prosecutor made the comment and Sheriff Newman testified concerning Hurt’s silence, Hurt had not taken the stand. Neither the United States Supreme Court nor our Mississippi Supreme Court has addressed the specific issue at hand, namely, whether the use of a defendant’s post-arrest, pre-Miranda silence as substantive evidence of a defendant’s guilt violates the Fifth Amendment privilege against self-incrimination.

¶ 17. Unfortunately, Hurt failed to raise an objection to the prosecution’s comments regarding his post-arrest, pre-Miranda silence. As such, this Court is limited to reviewing this issue under a plain-error analysis. The law on plain error is as follows:

A review under the plain[-]error doctrine is necessary when a party’s fundamental rights are affected, and the error results in a manifest miscarriage of justice. Williams v. State, 794 So.2d 181, [187] [ (¶ 23) ] (Miss.2001) [ (overruled on other grounds) ]. To determine if plain error has occurred, we must determine “if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.” Cox v. State, 793 So.2d 591, 597 [ (¶ 22) ] (Miss.2001).

McGee v. State, 953 So.2d 211, 215(¶ 8) (Miss.2007).

¶ 18. A split exists among the federal circuit courts regarding the issue of post-arrest, -pre-Miranda silence being introduced against a defendant in the prosecution’s case-in-chief. In Salinas, the Fifth Circuit summarized that split and noted that the Seventh, Ninth, and D.C. Circuits have all held that the use of post-arrest, pre-Miranda silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination. Salinas, 480 F.3d at 758-59 (citing United States v. Velarde-Gomez, 269 F.3d 1023, 1028-30 (9th Cir.2001); United States v. Whitehead, 200 F.3d 634, 637-39 (9th Cir.2000); United States v. Moore, 104 F.3d 377, 384-90 (D.C.Cir.1997); United States v. Hernandez, 948 F.2d 316, 322-23 (7th Cir.1991)); see also United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991) (finding the same for the Tenth Circuit). In addition, the First and Sixth Circuits have held that the substantive use of even pre-arrest silence can violate a defendant’s right against self-incrimination. Salinas, 480 F.3d at 759 (citing Combs v. Coyle, 205 F.3d 269, 280-83 (6th Cir.2000); Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st Cir.1989)). The Second Circuit has also made the assumption that the use of a defendant’s post-arrest, pre-Miranda silence is likely a violation of the defendant’s rights. Salinas, 480 F.3d at 759 n. 9; (citing United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981)). “The Fourth, Eighth, and Eleventh Circuits have, on the other hand, found the substantive use of post-arrest, pre-Miranda silence during the prosecution’s case-in-chief permissible.” Id. at 759 (citing United States v. Frazier, 408 F.3d 1102, 1109-11 (8th Cir.2005); United States v. Rivera, 944 F.2d 1563, 1567-68 (11th Cir.1991); United States v. Love, 767 F.2d 1052, 1063 (4th Cir.1985)).

¶ 19. The Fifth Circuit has yet to rule on the present issue. In Salinas, the Fifth Circuit ultimately declined to address the issue of whether use of the defendant’s post-arrest, pr e-Miranda silence as substantive evidence of guilt violated the Fifth Amendment. Salinas, 480 F.3d at 759. In that case, the prosecution made comments regarding Mario Alfredo Salinas’s post-arrest, pr e-Miranda silence during its opening statement and also questioned a police officer regarding Salinas’s silence during its case-in-chief. Id. at 755. Salinas argued that these comments were improper and were used as substantive evidence of his guilt. Id. at 754. The Fifth Circuit found that Salinas did not properly preserve his claim of error regarding the prosecution’s comments on his post-arrest, pre-Miranda silence in its case-in-chief. Id. at 755. Although Salinas’s attorney objected at trial to each of the references to his silence, and the trial court sustained each objection, Salinas never requested a mistrial. Id. at 755-56. The Fifth Circuit concluded that Salinas received all the relief he had requested and that it would only “consider the challenged comments under the plain[-]error standard.” Id. at 756. The Fifth Circuit determined that it did not need to reach the ultimate issue of “whether the prosecution can, at trial, introduce substantive evidence that the defendant remained silent after he was arrested and taken into custody, but before he was given the Miranda warnings,” in part, because the law was unclear. Id. at 758. Relevant to the present issue, the Fifth Circuit found that “[bjecause this circuit’s law remains unsettled and the other federal circuits have reached divergent conclusions on this issue, even assuming that the prosecutor’s comments were improper, Salinas cannot satisfy the second prong of the plain[-]error test — that the error be clear under existing law.” Id. at 759.

¶ 20. This issue was again raised in United States v. Pando Franco, 503 F.3d 389, 395 (5th Cir.2007). In Pando Franco, the Fifth Circuit again declined to address the issue of whether the Fifth Amendment privilege against self-incrimination applies to post-arrest, pr e-Miranda silence because each of the statements referencing the defendant’s post-arrest, pre-Miranda silence also included references to the defendant’s post-arrest, post-Miranda silence. Id. at 396. The Fifth Circuit found that because the comments included references to Juan Angel Pando Franco’s post-arrest, post-Miranda silence, the issue was “squarely governed by Miranda. Id.

¶ 21. Based on the foregoing, the complained of comments and testimony in the present case, even if improper, cannot be said to amount to plain error in light of the significant circuit split as to whether the use of a defendant’s post-arrest, pre-Miranda silence as substantive evidence of the defendant’s guilt offends the Fifth Amendment. Following the reasoning set forth by the Fifth Circuit in Salinas, we find that the references to Hurt’s post-arrest, pr e-Miranda silence do not meet all the elements of the plain-error test in that those references cannot be said to be “plain, clear or obvious” under the current law in Mississippi.

¶ 22. Ultimately, this Court does not reach the issue of whether the use of post-arrest, pre-Miranda silence as substantive evidence of a defendant’s guilt violates the Fifth Amendment privilege against self-incrimination. The United States Supreme Court has yet to address the issue, and the Fifth Circuit in Salinas and Panda Franco has also declined to address the issue. However, this Court does find the use of a defendant’s post-arrest, pre-Miranda silence in the prosecution’s case-in-chief troubling, at the very least. There is clearly potential for abuse in the practice of intentionally failing to advise an individual of his Miranda rights and then commenting at trial on his silence in an attempt to circumvent the individual’s Fifth Amendment privilege against self-incrimination. Many individuals are aware of their Fifth Amendment rights whether informed of them via Miranda warnings or not; therefore, it may be their intent to assert those rights even in instances when an officer has not instructed them as to those rights. The Nevada Supreme Court described the situation well when it stated:

[T]he Miranda warnings and an arres-tee’s right to remain silent have been widely publicized via the media, so that in many cases, the silence of an unwarned arrestee will be based on his personal knowledge of his Miranda rights; therefore, the “implicit assurance” of Doyle that his silence will not be used against him is inherently present.

Coleman v. State, 111 Nev. 657, 895 P.2d 653, 657 (1995).

¶ 23. As the Second Circuit described the Miranda warnings in an unrelated case: “Most ten year old children who are permitted to stay up late enough to watch police shows on television can probably recite them as well as any police officer.” United States v. McCrary, 643 F.2d 323, 330 (5th Cir.1981) (discussing the sufficiency of the Miranda warnings). Furthermore, while there is a split among the federal circuit courts, the majority of those courts have found that the use of a defendant’s post-arrest, pre-Miranda silence in the prosecution’s case-in-chief as evidence of substantive guilt violated the Fifth Amendment privilege against self-incrimination. While we do not find that the comments and testimony here rise to the level of plain error, this Court might have reached a different conclusion had Hurt made a contemporaneous objection to this testimony at trial.

¶ 24. In summary, Hurt argued that the prosecutor’s comments at trial regarding his post-arrest, pre-Miranda silence were improper. However, Hurt raised no contemporaneous objection at trial to those comments. As shown, the law surrounding the introduction of a defendant’s post-arrest, pr e-Miranda silence during the prosecution’s case-in-chief is far from “plain, clear or obvious.” There is a significant federal circuit court split regarding this issue, and the United States Supreme Court has yet to address it. The Fifth Circuit addressed the issue in Salinas and found, after reviewing the issue under a plain-error analysis, that the error could not be held to be a plain error in light of the unsettled law surrounding the issue. This Court agrees that, in the present case, the error cannot be found to meet all the elements of the plain-error test in that it cannot be said to be a “plain, clear or obvious” error under the law in Mississippi. Accordingly, this issue is without merit.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF FRANKLIN COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND TO PAY RESTITUTION OF $1,700 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FRANKLIN COUNTY.

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


source: Caselaw Access Project

license: Public Domain

text:
    Terry SANDERS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01396-COA.
    Court of Appeals of Mississippi.
    Sept. 22, 2009.
    Rehearing Denied Feb. 23, 2010.
    Certiorari Denied May 20, 2010.

      Terry Sanders, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Terry Sanders originally pleaded guilty to murder in 1981 and was sentenced as a habitual offender to life without parole. On June 24, 2008, Sanders filed a motion for post-conviction relief in the Circuit Court for the Second Judicial District of Harrison County. The circuit court found that Sanders had previously filed a motion for post-conviction relief based on the same allegations, the denial of which the supreme court had affirmed. See Sanders v. State, 700 So.2d 329 (Miss.1997). Therefore, the circuit court found that Sanders’s motion was barred as a successive writ, and the court denied relief. Sanders timely filed an appeal. In his appeal, he alleges that intervening rules and decisions of the supreme court prevent his claim from being barred as a successive writ. He also alleges that he was prejudiced because the Honorable James Thomas presided over an evidentiary hearing in 1985 and was also the assistant district attorney who handled Sanders’s indictment in 1981.

DISCUSSION

¶ 2. This Court will not disturb a circuit court’s denial of a motion for post-conviction relief unless the circuit court’s findings were clearly erroneous. Pullem v. State, 820 So.2d 793, 794(¶ 3) (Miss.Ct.App.2002) (quoting Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). Under Mississippi Code Annotated section 99-39-23(6) (Supp.2008), an order denying or dismissing a motion for post-conviction relief shall be a bar to the filing of a second or successive motion for post-conviction relief.

¶ 3. In the present case, the circuit court found that Sanders’s motion was barred as a successive writ because he had previously filed a similar motion for post-conviction relief, which had been denied. Sanders does not dispute this fact; instead, he argues that the enactment of Uniform Rule of Circuit and County Court 7.09 should allow him to overcome the successive-writ bar. He relies on the exception to section 99-39-23(6), which excepts a claimant from the successive-writ bar if he can show an intervening decision of the United States Supreme Court or the Mississippi Supreme Court that would have adversely affected the outcome of his conviction or sentence. We see no merit to this argument.

¶ 4. Rule 7.09 provides the following:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as [a] habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

Despite the fact that Rule 7.09 was enacted in 1995, it was the long-standing law in Mississippi that a substantive amendment to an indictment may only be made by a grand jury. In Griffin v. State, 584 So.2d 1274, 1275-76 (Miss.1991), the supreme court summarized the law on amending an indictment. The supreme court stated the following:

An indictment may not be amended to change the nature of [a] charge, except by action of the grand jury which returned the indictment. [Akins] v. State, 493 So.2d 1321, 1322 (Miss.1986), [ (jetting Jones v. State, 279 So.2d 650, 651 (Miss.1973)[) ]. “To be permissible, the amendment to an indictment must be of form and not of substance.” Id. [ (citing Contreras v. State, 445 So.2d 543, 545 (Miss.1984)[) ]; Hannah v. State, 336 So.2d 1317, 1321 (Miss.1976).

Griffin, 584 So.2d at 1275. There was no intervening case handed down by either the United States Supreme Court or the Mississippi Supreme Court that held otherwise.

¶ 5. Notwithstanding the successive-writ bar, Sanders entered a guilty plea with no objection to the indictment. A valid guilty plea waives all non-jurisdictional defects in an indictment. Kincaid v. State, 711 So.2d 873, 877(¶ 20) (Miss.1998) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)). A guilty plea does not waive either: “(1) the failure of an indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense” or “(2) subject matter jurisdiction.” Id. Neither of these exceptions apply to the present case. Therefore, Sanders waived the complaints he had with his indictment.

¶ 6. Additionally, in the case of a guilty plea, a motion for post-conviction relief must be filed within three years from the date of the entry of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Rev.2007). Sanders’s motion was filed approximately twenty-seven years after he entered his guilty plea, which was twenty-four years beyond the time he was allowed to file a post-conviction relief motion. Therefore, in addition to being barred as a successive writ, Sanders’s motion is also time-barred.

¶ 7. On appeal, this Court’s review is limited to what appears in the record, and we will not consider matters that are not contained in the record. Jones v. State, 776 So.2d 643, 649(¶ 17) (Miss.2000) (citing Medina v. State, 688 So.2d 727, 732 (Miss.1996)). “We can not [sicj decide an issue based on assertions in the briefs alone; rather, issues must be proven by the record.” Id. (quoting Medina, 688 So.2d at 732). The appellant bears the burden of including in his appeal all necessary items in the record. Bennett v. State, 933 So.2d 930, 944(¶ 45) (Miss.2006). There is nothing in the record to reflect that a hearing took place in 1985 or what may have taken place at that hearing. Therefore, not only was Sanders’s motion barred as a successive writ and as being untimely filed, there is nothing substantive presented for this Court to review.

¶ 8. We find no error with the circuit court’s ruling that Sanders’s motion for post-conviction relief was procedurally barred. Therefore, we find that Sanders’s appeal is without merit, and we affirm the circuit court’s denial of his motion for post-conviction relief.

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

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


author: KING, C.J.,

text:
    Gary LEE, Appellant v. Lawrence KELLY, Appellee.
    No. 2008-CP-01782-COA.
    Court of Appeals of Mississippi.
    Feb. 16, 2010.
    Rehearing Dismissed April 6, 2010.

      Gary Lee, appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, James M. Norris, attorneys for appellee.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   KING, C.J.,

for the Court:

¶ 1. On August 31, 2007, Gary Lee filed a petition with the Circuit Court of Sunflower County against Superintendent Lawrence Kelly, arguing that the Mississippi Department of Corrections (MDOC) improperly computed his discharge date and that he should be released from prison. The trial court dismissed Lee’s petition. Thereafter, Lee filed a motion to reconsider, which the trial court denied. Aggrieved, Lee timely filed his notice of appeal, raising three issues for this Court’s consideration:

I. Whether the trial court abused its discretion by dismissing Lee’s claim;
II. Whether Lee’s sentences were to run concurrently; and
III. Whether the State unlawfully amended Lee’s 1982 indictment.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 16, 1982, Lee pleaded guilty in the Circuit Court of Sunflower County to accessory after the fact of armed robbery and was sentenced to five years in the custody of the MDOC. Lee was given credit for the fifty-seven days that he was confined in the county jail.

¶ 3. Armed with a knife, Lee attempted to escape from the Bolivar County Jail on March 29, 1982. From this incident, Lee was charged as a habitual offender with the aggravated assault of a law enforcement officer. On December 6, 1982, Lee was convicted of the crime in the Circuit Court of Bolivar County and sentenced to a mandatory, thirty-year sentence in the custody of the MDOC and ordered to pay a $5,000 fine.

¶ 4. In a letter dated July 19, 2007, Lee initiated a grievance with the MDOC’s Administrative Remedy Program (ARP), arguing that the MDOC improperly denied him earned-time credit on his mandatory sentence for the aggravated assault of a law enforcement officer. On August 1, 2007, the ARP informed Lee that he had several complaints pending and stated, “[ujnless this office hears from you otherwise, stating that you wish to withdraw your previous complaints, your ARPs will continue as are, and your most recent complaint will be placed on backlog.” Lee responded and affirmed that he wanted all of his previous ARP complaints dismissed so that his current complaint could be addressed immediately.

¶ 5. On August 31, 2007, Lee filed a petition in the Circuit Court of Sunflower County. Lee stated that he had filed a grievance through the ARP. However, Lee claimed that the MDOC had refused to process his claim. In the petition, Lee argued that: his five-year sentence and his thirty-year sentence were to run concurrently; he was entitled to a two-and-a-half-year credit on his sentences; and he was eligible for release. The MDOC filed a motion to dismiss Lee’s petition, arguing that Lee had failed to fulfill the requirements of the ARP and had failed to fulfill the requirements of the Mississippi Uniform Post-Conviction Collateral Relief Act. In the alternative, the MDOC responded to Lee’s petition and conceded that Lee’s sentences were to be served concurrently. However, the MDOC argued that Lee was not entitled to any earned-time credit on his mandatory, thirty-year sentence.

¶ 6. The trial court found that Lee’s thirty-year sentence was to be served in its entirety, without reduction, and dismissed Lee’s claim. Thereafter, Lee filed a motion to reconsider, and the trial court denied the motion. Aggrieved, Lee timely filed his notice of appeal.

ANALYSIS

I. Jurisdiction

¶ 7. Neither of the parties has raised an issue regarding whether Lee’s petition was properly before the trial court. However, this Court must note the jurisdictional issue in Lee’s case.

¶ 8. The record shows that Lee initiated a grievance through the ARP. The administrative-review procedures provide that:

Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure under Sections 47-5-801 through 47-5-807 may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.

Miss.Code Ann. § 47-5-807 (Rev.2004). Section 47-5-807 clearly states that the offender may appeal the final decision rendered by the ARP. In the event that the offender has not completed the ARP process, the law provides that:

No state court shall entertain an offender’s grievance or complaint which falls under the purview of the administrative review procedure unless and until such offender shall have exhausted the remedies as provided in such procedure. If at the time the petition is filed the administrative review process has not yet been completed, the court shall stay the proceedings for a period not to exceed ninety (90) days to allow for completion of the procedure and exhaustion of the remedies thereunder.

Miss.Code Ann. § 47-5-803(2) (Rev.2004).

¶ 9. The State failed to raise this issue on appeal. However, there is clearly no evidence in the record showing that Lee exhausted his administrative remedies through the ARP. In accordance with section 47-5-803(2), the trial court should have stayed the proceedings for ninety days to allow time for Lee to exhaust his administrative remedies. See, e.g., Guy v. State, 915 So.2d 508, 510 (¶ 8) (Miss.Ct.App.2005).

¶ 10. Despite this, a reversal of this case would be futile. The Court is eonfi-dent that the trial court record is thorough, and the MDOC clearly provided the trial court with sufficient information to determine whether Lee’s sentence had been properly computed. Thus, for the sake of judicial efficiency, we will address the merits of Lee’s claim.

II. Earned-Time Credit

¶ 11. Lee argues that he is entitled to earned-time credit; therefore, he contends that the trial court abused its discretion by dismissing his petition and by denying his motion for reconsideration. In support of this claim, Lee relies on the Sunflower County Circuit Court case of Hicks v. Houston, No. 94-0234M (January 25, 1995). Hicks addressed the application of Mississippi Code Annotated section 47-5 — 139(l)(e) (Supp.1992) in Williams v. Puckett, 624 So.2d 496, 499-500 (Miss.1993). Section 47-5-139(l)(e), which was adopted in 1992, provides that an inmate is not eligible for earned-time credit if “[t]he inmate has not served the mandatory time required for parole eligibility for a conviction of robbery or attempted robbery with a deadly weapon.” Miss.Code Ann. § 47-5 — 139(l)(e) (Rev.2004); see also Williams, 624 So.2d at 500.

¶ 12. In Hicks, the trial court found that “prior to Williams, the MDOC allowed an inmate to receive earned-time credit on the entire term of his sentence [for armed robbery], without any regard to mandatory time.” See Adams v. Gibbs, 988 So.2d 395, 397 n. 1 (Miss.Ct.App.2008). Because the defendant in Hicks was convicted and sentenced for armed robbery prior to the 1992 amendment to section 47-5-139(l)(e), the trial judge found that Hicks was allowed earned-time credit during the mandatory part of his sentence for armed robbery, which was to be applied to the non-mandatory paH of his sentence. Id.

¶ 13. Hicks is clearly not applicable to Lee’s case. In the present case, Lee was sentenced to five years for accessory after the fact of armed robbery in February 1982, and that sentence has since expired. In December 1982, Lee was convicted for the aggravated assault of a law enforcement officer. Lee was then sentenced under the habitual-criminal statute, which at the time of his conviction and sentence stated that:

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

Miss.Code Ann. § 99-19-81 (Rev.2000) (emphasis added). Earned time is in essence a reduction in sentence. Section 99-19-81 clearly states that a habitual offender’s sentence “shall not be reduced.” Id. Thus, Lee was required to serve the maximum term of imprisonment for his crime. The maximum sentence prescribed for the aggravated assault of a law enforcement officer is thirty years’ imprisonment, which is the sentence that Lee received. See Miss.Code Ann. § 97-3-7(2) (Supp.2009).

¶ 14. In the proceedings below, the MDOC provided the trial court with a copy of Lee’s time sheet. Lee’s date of incarceration was listed as March 29, 1982, which is the day that he attempted to escape from prison. According to Lee’s time sheet, his tentative release date is March 21, 2012, approximately thirty years after his incarceration. Based on the foregoing, we find that the trial court did not err by finding that Lee was not entitled to any earned-time credit and that Lee’s time had been properly computed. Lee’s argument is wholly without merit.

III. Concurrent Sentences

¶ 15. Lee argues that his five-year sentence as an accessory after the fact of armed robbery and his thirty-year sentence for the aggravated assault of a law enforcement officer were to run concurrently. The State does not raise an objection to this argument on appeal, and the MDOC conceded this point below. As previously mentioned, Lee’s time sheet reflects that his time was computed accordingly. This argument is without merit.

IY. Indictment

¶ 16. For the first time on appeal, Lee argues that the State unlawfully amended his 1982 indictment for the aggravated assault of a law enforcement officer. Not only is this issue time-barred, but additionally, this issue is procedurally barred from the Court’s review because Lee did not present this issue to the trial court. See Capnord v. State, 840 So.2d 826, 828 (¶ 5) (Miss.Ct.App.2003).

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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

      . Section 99-19-81 has been in effect since January 1, 1977.

      . Section 47-5-139 was amended in 1992 in accord with the MDOC’s practice regarding earned time. Specifically, section 47-5-139(l)(b) states that "[a]n inmate shall not be eligible for the earned-time allowance if ... [t]he inmate was convicted as a habitual offender. ...” Miss Code Ann. § 47 — 5—139(1)(6) (Rev.2004).


author: MAXWELL, J.,

text:
    Cleveland C. PALMER a/k/a Cleveland Champion Palmer, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-02100-COA.
    Court of Appeals of Mississippi.
    May 4, 2010.

      Leslie S. Lee, Jackson, Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. A jury sitting in the Jackson County Circuit Court convicted Cleveland Palmer of murder. The trial judge sentenced Palmer to life in the custody of the Mississippi Department of Corrections. On appeal, Palmer claims he received ineffective assistance from his trial counsel. Specifically, he contends: (1) plain error resulted from his attorney’s failure to object to inadmissible evidence, and (2) his lawyer did not adequately prepare to defend his case.

¶ 2. Finding no obvious deficient performance on the part of Palmer’s trial counsel, we affirm his conviction and sentence.

FACTS

¶ 3. Palmer and his wife Felicia lived in the Oakwood Apartment Complex in Pas-cagoula, Mississippi. On October 26, 2007, Felicia reported to apartment management that them neighbor, Glenn Manning, had been stealing electricity from the complex’s electrical box. Manning later confronted Felicia about turning him in and called her a derogatory name. Felicia became angry and contacted her husband, Palmer.

¶4. Palmer testified that he arrived home between 5:00 and 7:00 p.m. that night and confronted Manning. An argument ensued when Manning refused to apologize to Felicia. A nearby neighbor, Aaron Stewart, testified that Sammy Tims left in one of Palmer’s cars and returned with a “small shotgun.” Stewart later saw Palmer with the same weapon.

¶ 5. Manning left the area but returned to the apartment complex around 9:00 p.m. Manning and Palmer again argued with one another. When Manning tried to return to his apartment, Palmer armed himself with a sawed-off shotgun and a stick. He then followed Manning into Manning’s apartment. The details surrounding the ensuing events vary. However, it is undisputed that the shotgun discharged, and Manning died as a result of a gunshot wound to his abdomen.

¶ 6. After the shooting, Palmer ran from Manning’s apartment and threw the shotgun into a nearby river. Felicia remained at the scene and informed the police that she believed her husband had accidentally shot Manning during a struggle. Later that night, Felicia and Palmer went to the police station. There, Palmer told the police he did not intend to shoot Manning. He instead claimed Manning pulled a shotgun on him, and the two struggled over the weapon, which accidentally fired, killing Manning.

¶ 7. Officers investigating the shooting learned two men were present when Palmer entered Manning’s apartment. One man, known only as “Pops,” was not located, but the police did locate Rodney Cole. Cole told police that a black male entered Manning’s apartment with a gun and told Cole and Pops to leave.

¶ 8. Though Palmer initially claimed Manning had pulled a shotgun on him, Palmer later admitted this was false. Palmer claimed he had lied about the shotgun because he feared his wife’s probation would be revoked if law enforcement learned Palmer possessed the weapon. Palmer admitted in a third statement to the police and at trial that he did indeed arm himself with a shotgun before confronting Manning.

¶ 9. Though Palmer’s stories changed, he maintained the shooting was an accident and that he only meant to beat Manning with the stick. He claims he brought the shotgun along because he feared Manning had a gun in his apartment. Palmer testified that, once inside Manning’s bedroom, he threatened to whip Manning’s butt with the stick unless he apologized to his wife. According to Palmer, Manning refused to apologize, so he struck him with the stick. At this point, Palmer claimed Manning grabbed the shotgun, and the two struggled over the weapon. Palmer testified that the gun discharged when the two men fell to the floor. He then claimed he panicked, fled the apartment and ditched the gun in a nearby river.

¶ 10. Prosecutors proposed a different version. The State offered testimony about Palmer’s conflicting statements and initial falsehoods. It also attempted to contradict Palmer’s story that he dropped his stick in Manning’s bedroom prior to the struggle. Additionally, forensic pathologist Dr. Paul McGarry testified that heavy black soot found on Manning’s body evidenced a contact wound. According to Dr. McGarry, this meant the gun’s barrel was pressed against Manning when fired. The State also maintained the angle of the wound was inconsistent with a struggle. Further, Dr. McGarry testified Manning’s crippled left hand could not have grasped or wrestled the gun from Palmer.

¶ 11. The jury convicted Palmer of murder, and the circuit court denied his motion for a new trial.

DISCUSSION

¶ 12. Palmer does not attack the sufficiency or weight of the evidence underlying his conviction, nor does he contest the expert testimony supporting it. Instead, he claims ineffective assistance of counsel based on three instances of inaction by his trial attorney. The first alleged error stems from his defense counsel’s failure to object to an investigating officer’s testimony. The second results from his attorney’s failure to object to the admission of one of Palmer’s videotaped interviews. Palmer’s final claim of ineffective assistance of counsel stems from his attorney’s failure to review physical evidence.

¶ 13. To prevail on a claim of ineffectiveness of counsel, Palmer must demonstrate his counsel’s performance was both “[1] deficient and [2] that the deficiency prejudiced the defense of the case.” Burnside v. State, 882 So.2d 212, 216 (¶ 20) (Miss.2004) (quoting Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that an attorney’s performance falls within the wide range of reasonable professional assistance. Rankin v. State, 636 So.2d 652, 656 (Miss.1994). To establish prejudice, Palmer must demonstrate that, but for his attorney’s errors, there is a reasonable probability the outcome of his trial would be different. Id.

I. Failure to Object

A. Officer Jackie Trussell’s Testimony

¶ 14. Palmer first claims his attorney’s failure to object to certain testimony was deficient and prejudiced his defense. Palmer specifically contends statements made to Officer Jackie Trussed. by Felicia and Cole were inadmissible hearsay. He alleges their admissions violated the Confrontation Clause and urges this Court to find plain error.

¶ 15. Under the plain-error doctrine, appellate courts can address obvious error not properly raised by the defendant on appeal that affects a defendant’s fundamental, substantive rights. Neal v. State, 15 So.3d 388, 403 (¶ 32) (Miss.2009) (citing Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss.2008)). “The plain[-]error doctrine has a two-part test which requires: (i) an error at the trial level and (ii) such an error resulted in a manifest miscarriage of justice.” Stephens v. State, 911 So.2d 424, 432 (¶ 19) (Miss.2005) (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]” U.S. Const, amend. VI. The Mississippi Supreme Court has held, however, that in some instances a violation of a defendant’s right to confront witnesses may be deemed harmless error. Smith, 986 So.2d at 302 (¶ 37); see also Bynum v. State, 929 So.2d 312, 314-15 (¶ 6) (Miss.2006) (finding the trial court’s error in admitting the co-defendant’s statement was harmless); Clark v. State, 891 So.2d 136, 142 (¶ 30) (Miss.2004) (finding admission of statements made by a non-testifying accomplice in violation of the Confrontation Clause was harmless error).

¶ 16. At trial, Officer Trussell testified that after responding to the shooting, Felicia told him: “she thought her husband ... shot [Manning].... They got into a struggle over a gun, and the gun went off and [Manning] was shot.”

¶ 17. We agree with Palmer that Felicia’s alleged statement to Officer Trus-sell is hearsay and is, thus, inadmissible. See M.R.E. 801 and 802. Nevertheless, it directly supports Palmer’s version of the incident and his characterization that the shooting was an accident. Because Palmer is unable to show resulting prejudice, the error was at most harmless, and we do not find Palmer’s attorney ineffective for failing to object.

¶ 18. Next, Palmer complains about a statement Cole allegedly made to Officer Trussell. Officer Trussell testified that Cole told him he saw a black man enter Manning’s room carrying a gun. The man pointed the gun at Manning, told Manning “I got your motherf — king a-s now,” and then he told Cole and Pops to get out.

1Í19. While this testimony is hearsay, Palmer’s attorney did not object to its admission. The decision of whether to “ ‘make certain objections fall[s] within the ambit of trial strategy' and cannot give rise to an ineffective[-]assistance[-]of[-]counsel claim.” Jackson v. State, 815 So.2d 1196, 1200 (¶ 8) (Miss.2002) (quoting Cole v. State, 666 So.2d 767, 777 (Miss.1995)). In assessing whether an attorney’s representation meets constitutional standards, our supreme court has reasoned:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.

Mohr v. State, 584 So.2d 426, 430 (Miss.1991) (internal citation omitted) (quoting Lambert v. State, 462 So.2d 308, 316 (Miss.1984)).

¶20. Officer Trussell did not testify that Cole identified Palmer as the man with the shotgun. Also, Cole’s alleged statement did not contradict Palmer’s testimony that he entered the apartment armed with a shotgun. In fact, it is quite similar to Palmer’s admission that when he entered Manning’s apartment, he told him he was tired of “y’all F-ing with me,” and that he was going to “beat [Manning’s] as.” The difference, though, is that Palmer did not mention pointing the gun at Manning and did not recall anyone else in Manning’s apartment.

¶ 21. We are instructed to assess the totality of the circumstances in determining whether Palmer’s counsel’s assistance was effective. Wiley v. State, 750 So.2d 1193, 1199 (¶ 11) (Miss.1999). Based on the circumstances before us, we do not find the admission of Officer Trussell’s testimony creates a miscarriage of justice. We certainly cannot say that absent the exclusion of Officer Trussell’s testimony, the jury would have reached a different outcome. See Rankin, 636 So.2d at 656.

¶ 22. The State’s case did not depend solely on Officer Trussell’s testimony. Palmer testified he armed himself with the sawed-off shotgun before entering Manning’s apartment. The State also offered several witnesses placing Palmer in possession of the firearm. In addition, the jury heard evidence of Palmer’s initial false exculpatory statement to law enforcement that Manning was the aggressor with the shotgun. Further, expert testimony contradicted Palmer’s version of the events leading to Manning’s death. And Palmer fled from the apartment after the shooting and hid the weapon. Our supreme court has long instructed that evidence of flight is probative of guilt or guilty knowledge. See Brown v. State, 690 So.2d 276, 294 (Miss.1996); Lee v. State, 457 So.2d 920, 923 (Miss.1984).

¶ 23. Due to the overwhelming evidence of Palmer’s guilt, we find any errors resulting from the admission of these two statements harmless. Thus, Palmer’s attorney was not deficient for failing to object to the complained of testimony.

B. The Third Interview

¶ 24. The State introduced three videotaped interviews of Palmer. Palmer takes issue with his attorney’s failure to object to the introduction of his third statement to the police. He contends he did not voluntarily waive his Sixth Amendment right to counsel before this interview and that his attorney should have attempted to exclude the video. Alternatively, he contends that if any waiver did occur, it was limited in scope to issues surrounding his wife’s arrest.

¶ 25. “A statement by the accused is admissible if the accused was given the Miranda warnings, and then knowingly, intelligently and voluntarily waived the rights.” Prater v. State, 18 So.3d 884, 893 (¶ 34) (Miss.Ct.App.2009) (quoting Busick v. State, 906 So.2d 846, 855 (¶ 16) (Miss.Ct.App.2005)).

¶26. Palmer signed a waiver of his Miranda rights prior to engaging in his third conversation with the police. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is also important that Palmer initiated contact with the officers. Though Palmer’s initial concern dealt with his wife’s arrest, he made clear he also wished to speak generally about his case. He also maintained he understood his Miranda rights. Further, Palmer asked the officers if he was free to end the interview at any time, and the officers made clear that he had the right to terminate the interview at any time. They also advised Palmer he was free to refuse to answer any questions.

¶ 27. Though Palmer had appointed counsel, he claims he was unable to discuss his case with his attorney prior to the interview and that other public defenders were unavailable. Palmer relies on Justice Stevens’s recent dissent in Montejo v. Louisiana, — U.S. -, 129 S.Ct. 2079, 2094, 173 L.Ed.2d 955 (2009) (Stevens, J., dissenting), to support his invalid waiver argument.

¶ 28. We first point out that Justice Stevens’s dissent is not controlling law. But more importantly, Montejo dealt with a police-initiated interview following appointment of counsel. Here, Palmer, not the police, initiated the interview. Thus, we find Nelson v. State, 10 So.3d 898 (Miss.2009), more applicable. In Nelson, our supreme court dealt with a similar Sixth Amendment waiver issue and reiterated:

Nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney. Although a defendant may sometimes later regret his decision to speak with police, the Sixth Amendment does not disable a criminal defendant from exercising his free will.

Nelson, 10 So.3d at 911 (¶ 55) (quoting Mettetal v. State, 602 So.2d 864, 868 (Miss.1992)); see also Hunter v. State, 684 So.2d 625, 632 (Miss.1996) (“The law is well established that an accused person can waive his right to counsel by initiating conversation with law enforcement.”). Nelson falls squarely in line with the United States Supreme Court’s holding in Montejo. These two cases notwithstanding, Palmer’s limited waiver argument is not supported by the record.

¶ 29. Thus, we find Palmer knowingly, intelligently, and voluntarily waived his rights to counsel prior to the third interview. Because we find no error in the introduction of the videotape of this interview, his trial attorney was not ineffective for failing to object to its admission.

II. Physical Evidence

¶ 30. Palmer’s next claim stems from his attorney’s failure to inspect physical evidence possessed by the State. We point out that Palmer does not contend he was depi’ived of the opportunity to view the stick and shotgun. Nor does he argue his attorney’s inaction prejudiced his defense. Rather, he claims his attorney was constitutionally ineffective for merely failing to inspect the evidence.

¶ 31. “The duty to investigate and prepare is not limitless[.]” Thorson v. State, 994 So.2d 707, 719 (¶ 31) (Miss.2007) (quoting Brown v. State, 798 So.2d 481, 496 (¶ 22) (Miss.2001)). And criminal defense attorneys are “not required to pursue every path until it bears fruit or until all conceivable hope withers.” Id. (quoting Brown, 798 So.2d at 496 (¶ 22)).

¶ 32. Palmer admitted carrying the stick and shotgun. He even led investigators to the site where he disposed of the shotgun. Palmer’s entire defense was based on his theory of an accidental shooting, and he fails to demonstrate how the outcome of his trial would have differed had his attorney inspected these items. Accordingly, this issue is without merit.

¶ 33. Seeing no constitutionally deficient performance by trial counsel, we affirm Palmer’s conviction and sentence.

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

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


author: BARNES, J.,

text:
    SPECTRUM OIL, LLC, Appellant v. Marlon WEST, Wayne County Chancery Clerk, as Receiver of the Undivided Mineral Interest Claim or Owned by the Unknown Heirs of Thomas (Bob) Davis, Deceased, as Authorized by Final Decree and Order in Wayne County in Cause No. 2008-53; any Children or their Heirs of Thomas (Bob) Davis, Deceased, Trinity USA Partnership, L.P. and Marie M. Arledge, et al., Appellees. Spectrum Oil, LLC, Appellant v. Trinity USA Partnership, L.P. and Marie M. Arledge, et al., Appellees.
    Nos. 2008-CA-01624-COA, 2008-CA-02155-COA.
    Court of Appeals of Mississippi.
    May 11, 2010.

      David M. Ratcliff, Laurel, attorney for appellant.
    Jefferson D. Stewart, Jackson, Michael Scott Jones, J. Shannon Clark, Waynes-boro, attorneys for appellees.
    Before MYERS, P.J., BARNES, ISHEE and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. In these appeals, which were consolidated by order of the Court, we are called upon to determine if the chancellor correctly granted summary judgment to certain mineral owners and mineral leasees of real property in Wayne County, Mississippi, and in hereafter dissolving a receivership Specteum Oil, LLC (Spectrum Oil) had established on behalf of the purported descendants of Thomas (Bob) Davis. The chancellor, after initially granting Spectrum Oil’s motion for a receivership in favor of the descendants of Thomas (Bob) Davis and authorizing a mineral lease of the descendants’ interest in certain producing oil wells to Spectrum Oil, subsequently granted summary judgment in favor of the oil, gas, and mineral leasees and the mineral owners in their suit to remove the receivership as a cloud on their title. We shall reference the Appellees, who are the mineral owners and leasees of the property in question, collectively, as “Trinity USA.” The chancellor granted a default judgment against the descendants of Thomas (Bob) Davis and summary judgment against all other defendants finding no genuine issue that Thomas (Bob) Davis had had any descendants. Thus, there was no interest for Spectrum Oil to acquire and no need for the receivership, which the chancery court dissolved ab ini-tio.

¶ 2. In each appeal, Spectrum Oil presents the following issues for review, which we quote verbatim:

I. THE CHANCERY COURT OF WAYNE COUNTY MISSISSIPPI HAS NO AUTHORITY TO GRANT PARTIAL SUMMARY JUDGMENT AGAINST APPELLANT, SPECTRUM OIL, LLC, DISSOLVING ITS RECEIVERSHIP LEASE AND EFFECTIVELY DISSOLVING THE RECEIVERSHIP FOR THE HEIRS OF THOMAS (BOB) DAVIS ESTABLISHED BY DECREE OF THE WAYNE COUNTY CHANCERY COURT ON THE BASIS THAT PROCESS BY PUBLICATION HAS FAILED TO PRODUCE AN HEIR OR DESCENDANT OF THOMAS (BOB) DAVIS.
II. THE STATE OF MISSISSIPPI IS A NECESSARY PARTY PURSUANT TO MISSISSIPPI RULES OF CIVIL PROCEDURE RULE 19 AND SECTION 11-17-34 OF THE MISSISSIPPI CODE OF 1972 AS ANNOTATED AND AMENDED TO ANY EFFORT TO DISSOLVE A RECEIVERSHIP LEASE GRANTED BY PREVIOUS DECREE BY THE WAYNE COUNTY CHANCERY COURT.

An additional issue was set out in the first case to be appealed:

III. MISSISSIPPI RULES OF CIVIL PROCEDURE RULE 12 REQUIRES THE WAYNE COUNTY CHANCERY COURT TO ALLOW TEN (10) DAYS TO FILE AN ANSWER AND DEFENSES AFTER DENYING A RULE 19 MOTION TO DISMISS.

Finding no error, we affirm the chancellor’s judgments.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 3. Two producing oil wells were drilled on separate eighty-acre units of land in Wayne County. Ownership of two tracts of land, totaling 128 acres of these producing units, is involved in this litigation. On February 28, 2008, Spectrum Oil leased an undivided l/30th mineral interest in one of the two tracts at issue. On March 3, 2008, Spectrum Oil petitioned the Wayne County Chancery Court, in cause number 2008-53, for the appointment of the chancery clerk as the receiver for the mineral interest of the descendants of Thomas (Bob) Davis, deceased, a child of the original landowner, E.L. Davis. Only the “unknown heirs, administrators, legal representative, successors, and assigns, if any” of Thomas (Bob) Davis were given notice, and this was done by publication three times in the county newspaper. No other “interested parties” as set out in Mississippi Code Annotated section 11-17-33(3) (Rev.2004) were summoned. On April 8, 2008, the chancellor granted Spectrum Oil’s petition for a receivership and appointed the chancery clerk of Wayne County as the receiver for the interest of the descendants of Thomas (Bob) Davis. The order recites that Thomas (Bob) Davis, one of ten children born to E.L. Davis and his wife, Lacy Ann Kelly Davis, was born in 1878 and died in 1910. The order further states that E.L. Davis died intestate in 1937. According to the order, “It is believed that Thomas (Bob) Davis married Marguerite Rouse, and no one has been able to confirm if children were born to this marriage.” The order explained that if any descendants of Thomas (Bob) Davis were alive at the time of E.L. Davis’s death, they would own an interest in the property. As part of the receivership judgment, the chancellor ordered the chancery clerk to execute a mineral lease to Spectrum Oil for which Spectrum Oil would pay $5,001 to the chancery clerk and ordered that any royalties which might be produced on the property be paid to the chancery clerk for the benefit of the descendants of Thomas (Bob) Davis.

¶ 4. By June 2008, Trinity USA, along with eighteen other owners of oil, gas, and mineral leases on the property in question, and ten mineral owners, learned of the receivership. On June 25, 2008, they filed suit, in chancery cause number 2008-202, to remove the receivership as a cloud on their title and sought to dissolve the oil and gas lease given under the receivership. A deraignment of title set out in the petition showed that E.L. Davis a/k/a Elias L. Davis received the land in question in 1915 by warranty deed. E.L. and his wife, Lacy Davis, had ten children, but only six were alive at the time of E.L.’s death in 1937. Attached to the petition were affidavits from elderly children, grandchildren, and great grandchildren of E.L. and Lacy Davis who swore that growing up they had heard that Robert Thomas Davis a/k/a Thomas (Bob) Davis or Tom Davis was them uncle or great uncle and that he had died as a young man, but that they had never heard that he had any children.

¶ 5. In response to the complaint, Spectrum Oil filed a motion to dismiss for failure to join a necessary and indispensable party, the State of Mississippi. Despite summons by publication, no one answered the complaint claiming to be a descendant of Thomas (Bob) Davis. Upon request by Trinity USA, the chancery clerk filed an entry of default against any unknown descendants of Thomas (Bob) Davis.

¶ 6. Trinity USA thereafter filed a motion for default judgment against the descendants of Thomas (Bob) Davis and for summary judgment against all defendants. After a hearing held on August 27, 2008, the chancellor denied Spectrum Oil’s motion to dismiss and granted Trinity USA’s motion for a default judgment as to the unknown descendants of Thomas (Bob) Davis and its motion for summary judgment as to all defendants. In the default judgment, the chancellor found that Thomas (Bob) Davis died in 1910 leaving no heirs or descendants, and that his father, who owned the land, died some twenty-seven years later in 1937. Therefore, the chancellor found that because Thomas (Bob) Davis predeceased his father and had no descendants, Thomas (Bob) Davis and any reputed descendants had no claim or right to the land in question. As to the summary judgment, the chancery court found that neither Spectrum Oil nor any other defendant had submitted affidavits or other evidence to create a genuine issue for trial or a legitimate reason for failure to submit such affidavits. Spectrum Oil timely filed a notice of appeal which is docketed as appellate cause number 2008-CA-1624. No notice of appeal was filed by anyone claiming to be a descendant of Thomas (Bob) Davis.

¶ 7. Thereafter, Trinity USA filed a motion to intervene in the receivership proceeding, which the chancellor granted. Trinity USA’s motion for the court to rescind or dissolve the receivership was also subsequently granted and certified as a final judgment pursuant to Mississippi Rule of Civil Procedure 54(b). Spectrum Oil timely filed a notice of appeal, which was docketed as appellate cause number 2008-CA-2155. Trinity USA’s counterclaim for damages for slander of title is still pending in the chancery court.

¶ 8. Thomas (Bob) Davis died on June 23, 1910, at thirty-two years of age. Among the documents in the record was a Harrison County marriage license showing that R.T. Davis and Margurete Rouse were married on December 19, 1907. Also, in the record is an article from the local Gulfport newspaper, The Daily Herald, which tells of Thomas (Bob) Davis’s tragic end. Thomas (Bob) Davis had moved from Wayne County, Mississippi, to an area near the Mississippi Gulf Coast. The newspaper account said that Thomas (Bob) Davis was murdered in the Airey Community of Harrison County. Apparently, Thomas (Bob) Davis was lured from his home by a co-worker who shot him five times and then ran over him with a horse and buggy. Incredibly, Thomas (Bob) Davis survived for several hours, during which time he identified his murderer. The article states that Davis left a wife who, before her marriage, was Miss Rouse, the daughter of J.P. Rouse of Gulfport. There was no mention of children. However, in the same article the purported murderer was said to be a widower having “several children” living with relatives in Gulfport.

¶ 9. We have carefully reviewed the records in both appeals and can find no evidence that Thomas (Bob) Davis had any surviving descendants as of the date of E.L. Davis’s death. The closest Spectrum Oil came to proving that Thomas (Bob) Davis even had any descendant was at a hearing on Spectrum Oil’s motion to reopen evidence that was held on November 10, 2008. Spectrum Oil called Lawrence Rouse, the nephew of Margurete Rouse Davis Haller, who produced what he called “the Rouse family Bible.” Lawrence was asked if there was a reference in the births’ section of the Bible showing the birth of a Davis in 1908. He equivocated on his answer saying: “On the page of births there is a Robert Davis, 1908. To me it’s undecipherable.” On cross-examination, he admitted that he had never been told by any family members that his Aunt Margurete had any children. The attorney for Spectrum Oil asked the chancellor to inspect the Bible personally and look at the disputed birth entry. The chancellor said that it “appears to read Roy Robert Davis and it’s almost like something September, 1908. Then right under it appears to be another 1908. What I’m saying is, 1908 is written two times in connection with Roy Robert Davis.” A forensic document examiner testified about his review of the document. After his testimony, the chancellor gave his version of what the entry said and asked the expert if he agreed. The following exchange transpired:

THE COURT: Let me give you my version of what it says. You tell me whether you agree with it or not. It says Roy Robert Davis, September the 8th, 1908. Then, under it there is a line and 9 dot 8 dot 1908.
A. [the forensic document examiner]: That is what I believe. The same thing.

The expert told the chancellor that the handwriting of the name and of the date 9.8.1908 was made by the same hand.

¶ 10. The chancellor concluded that the evidence showed at most that Thomas (Bob) Davis and his wife “might” have had a child, with the only evidence being the listing in the family Bible. Further, the chancellor said that he had to “make a lot of assumption to even assume that he belonged to R.T. Davis,” but if there was a child born, the Bible notations show that it was either stillborn or died at birth. The chancellor then denied Spectrum Oil’s motion to reopen the evidence.

¶ 11. Additional facts will be given, as needed, during our discussion of the issues.

ANALYSIS OF THE ISSUES

¶ 12. Spectrum Oil’s first argument is that the Wayne County Chancery Court lacked authority to grant partial summary judgment against it, thereby dissolving its receivership and lease for the descendants of Thomas (Bob) Davis on the basis that the process by publication failed to produce a descendant of Thomas (Bob) Davis. Spectrum Oil makes two arguments on this issue. First, Spectrum Oil claims that the chancellor erred by ruling that there must be a descendant of Thomas (Bob) Davis in order to sustain the receivership and the receivership lease pursuant to section 11-17-33. Spectrum Oil argues that the whole purpose of the receivership statute is to allow production of oil, natural gas, and other minerals to go forward in situations where title to minerals is uncertain. Spectrum Oil says that the statute creates the legal entity of a receivership so that mineral interests, whose title is uncertain, can be placed and reasonably leased for development while at the same time protecting any claimants who may come forward in the future. Otherwise, Spectrum Oil argues that no risktaker would invest in an oil and gas venture.

¶ 13. Trinity USA counters that the chancellor had good cause to dissolve the receivership because the chancellor found that Thomas (Bob) Davis predeceased his father and had no descendants; thus, there was no mineral interest to place into the receivership and, therefore, no need for the receivership, which was properly dissolved.

¶ 14. This Court applies a de novo standard of review to the granting or denying of a summary judgment by the trial court. Hill v. Carroll County, 17 So.3d 1081, 1084 (¶ 7) (Miss.2009) (citing Channel v. Loyacono, 954 So.2d 415, 420 (¶ 12) (Miss.2007)). Under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

¶ 15. The United States Supreme Court explained the application of the identical Rule 56(c) of the Federal Rules of Civil Procedure when it stated:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

¶ 16. Trinity USA, as the movant, “has the job of persuading the court, first, that there is no genuine issue of material fact and, second, that on the basis of the facts established, [it] is entitled to judgment as a matter of law.” Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988). Spectrum Oil, as the nonmoving party, must support its claim by more than a “mere scintilla of colorable evidence,” but instead its evidence must be such that a fair-minded jury could return a favorable verdict. Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Bare assertions” are not enough to avoid summary judgment, and the non-movant may not rest upon the allegations or denials in its pleadings. Watson v. Johnson, 848 So.2d 873, 878 (¶ 18) (Miss.Ct.App.2002) (citing Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996)).

¶ 17. With these standards in mind, we find that Trinity USA sustained its burden of proving that there was not sufficient evidence to establish an essential element of fact regarding Spectrum Oil’s claim to retain the receivership; the essential element being that there were descendants of Thomas (Bob) Davis who had a “clear right” to the mineral interests involved. That being the case, we must find that the chancellor was not in error in dissolving the receivership pursuant to section ll-17-33(5).

¶ 18. To reach our conclusion, we consult the general law regarding receivers and receivership to determine this issue, as there is little Mississippi case law interpreting the receivership statutes. A receivership is a remedy where the court takes possession of the assets of the entity placed in receivership through a court-appointed receiver. 75 C.J.S. Receivers § 3 (2002). The purpose of the receivership is to preserve the property, which is the subject of the litigation, and to provide full protection to the parties’ rights to the property until a final disposition of the issues can be made. Id. A receivership will stand only when the party moving for it shows that it has a legal or equitable right to file for such relief. Clark v. Fleming, 130 Miss. 504, 511, 94 So. 458, 460 (1923). Whether to appoint a receiver is completely within the chancellor’s discretion. Thus, an appellate court will not overturn such a decision unless it is clear that there has been an abuse of discretion by the chancellor. Id. In Clark, the supreme court said that the first showing that a plaintiff seeking a receivership must show is that he has a “clear right to the property itself.” Id.

¶ 19. It is on this very point that the issue must be resolved against Spectrum Oil. Spectrum Oil and its reputed claimants, the heirs of Thomas (Bob) Davis, have no interest in any mineral interests of the property in question simply because there are no descendants of Thomas (Bob) Davis. As noted in a leading encyclopedia, “[i]n order to justify the appointment of a receiver the plaintiff must be able to show that it has something more than a mere claim but rather a valid legal claim.” 65 Am.Jur.2d Receivers § 22 (2001). “Stated another way, the plaintiff must show a reasonable probability of an ultimate judgment or success on the merits.” Id. Spectrum Oil completely failed to prove that Thomas (Bob) Davis had any descendants. The closest its proof got was a “maybe” which is not enough to show a valid legal claim. What was proven was that Thomas (Bob) Davis died in 1910 and did not have any descendants in 1937, when his father died and the land was divided. It is elementary property law that only a descendant of Thomas (Bob) Davis who was alive in 1937 when the landowner E.L. Davis died could be an heir to E.L. Davis and, thus, have an interest to be protected by a receivership. The proof shows that E.L. Davis’s son, Thomas (Bob) Davis, died as a young man without any issue by an apparent murder in 1910, some twenty years before his father’s death.

¶ 20. It is clear to this Court that Spectrum Oil failed to establish the first element necessary for the appointment of a receivership, that is, that it had a “clear right” to the property which is the subject of the receivership. In fact, Spectrum Oil failed to show that it had any legal or equitable right to the mineral interests through Thomas (Bob) Davis. Once the chancellor granted a default judgment against any descendants of Thomas (Bob) Davis and ruled there did not exist any genuine issue of material fact that Thomas (Bob) Davis had any descendants, there was no valid legal claim left for the receivership to protect. Therefore, we find that the chancellor did not abuse his discretion when he dissolved the receivership ab ini-tio, thereby voiding any mineral interest established by the receivership.

¶ 21. Furthermore, in moving to dissolve the receivership, Trinity USA noted that the appointment of the receivership was initially based upon what essentially was an ex parte filing. The record shows that prior to the appointment of the chancery clerk as receiver, Spectrum Oil gave notice only to the heirs or descendants of Thomas (Bob) Davis by publication. At the hearing, the chancellor had the clerk call for the heirs or descendants three times in open court. No one appeared. Section 11-17-33(3) states: “No receiver shall be appointed under the provisions of this section unless all interested parties who are not party to the petition shall be made defendants and all such defendants shall have been served with process of the court provided by law for cases in chancery court.”

¶ 22. As we read the statute, “all interested parties” would include not only descendants of Thomas (Bob) Davis, who might have benefitted by the proceeding, but also the other descendants of E.L. Davis (and their successors) who would be detrimentally affected by the receivership. Had this subsection of the statute been followed, the receivership would most probably not have been granted as the twenty-nine mineral owners and lessees would have presented their proof as to the lack of the existence of any descendants of Thomas (Bob) Davis.

¶ 23. Spectrum Oil’s second issue on appeal is that the State of Mississippi was a necessary party to the receivership and subsequent proceedings pursuant to Rule 19 of the Mississippi Rules of Civil Procedure and Mississippi Code Annotated section 11-17-34 (Rev. 2004), which provides that unclaimed royalties in a receivership escheat to the State after being unclaimed for ten years. Our decision on the first issue, that the receivership was void ab initio, makes the consideration of this issue unnecessary, as we have found that there is no interest to be placed into receivership; thus, no royalties could ever escheat to the State. However, we will provide a brief review as to other reasons why this argument fails.

¶ 24. Spectrum Oil cannot call upon Rule 19 to aid its argument. Rule 81(a)(12) of the Mississippi Rules of Civil Procedure deals with the limitation of the applicability of the rules and it specifically states: “These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are governed generally by statutory procedures!:] proceedings brought under section! ] ... 11-17-33.” The chancellor recognized the specious nature of Spectrum Oil’s argument that the State needed to be a part of the proceedings, as is shown in the following exchange with Spectrum Oil’s attorney:

THE COURT: The interest that we’re talking about would be the Davis interest. Correct?
MR. RATCLIFF: Yes, sir. Presently held by the clerk.
THE COURT: Right. So, if I understand correctly, there have been multiple publications made to the unknown heirs of Thomas Bob Davis, deceased.
MR. RATCLIFF: Yes, sir.
THE COURT: In this case, other eases, matters before the Oil and Gas Board. Nobody appeared.!]
Mr. RATCLIFF: That’s correct.
THE COURT: How is an interest of the Davis heirs, who don’t exist, going to be affected by not having the State of Mississippi in the case?

¶ 25. Despite Spectrum Oil’s argument that the State must be a party to the action, Spectrum Oil did nothing to add the State as a party despite the fact that section 11-17-33(3) requires that “all interested parties who are not parties to the petition shall be made defendants and all such defendants shall have been served with process of the courtf.]” As the attorney for Spectrum Oil continued to press the chancellor arguing that the State needed to be added, the chancellor asked the attorney if he had “done anything from the standpoint of contact with the State through the Attorney General’s Office to ascertain their interest in this case?” Spectrum Oil’s attorney answered that he had not. The time for Spectrum Oil to have added the State as a party was when it filed the receivership suit. We will not allow Spectrum Oil to argue an error on appeal which it could have remedied in the chancery court simply by adding the State as a party. Spectrum Oil has done nothing to let the State know of this civil action, and we find that this issue is without merit.

¶ 26. The final issue Spectrum Oil brings for review comes from the suit to remove a cloud; Spectrum Oil argues that it was error for the chancellor not to allow Spectrum Oil ten days to file a responsive pleading after denying its motion to dismiss. Spectrum Oil claims the summary judgment granted in favor of Trinity USA was premature. Spectrum Oil’s argument is that it should have been allowed ten days under Rule 12 of the Mississippi Rules of Civil Procedure to file a responsive pleading after the chancellor denied its motion to dismiss. We find this argument without merit.

¶ 27. Rule 12(a) provides that the time for filing a responsive pleading is altered by the filing of a Rule 12(b) motion. If the court denies the motion, the responsive pleading must be served within ten days after the notice of the court’s action. M.R.C.P. 12(a). Rule 12(a) does not require that other proceedings be held in abeyance pending the court’s ruling on the motion or during the ten-day period to file a responsive pleading.

¶ 28. Rule 56(a) provides that a claimant may file for summary judgment at any time after the expiration of thirty days from the commencement of the action. There is no provision for this motion to be stayed or held in abeyance pending a Rule 12(b) motion. The comments to Rule 56 state that a Rule 56 motion may always be made by the defendant before answering “and under certain circumstances may be made by the plaintiff before the responsive pleading is interposed.” This is one of those circumstances.

¶ 29. In this case, Trinity USA filed its complaint on June 25, 2008, and its motion for summary judgment on August 12, 2008, more then thirty days later. Spectrum Oil filed its motion to dismiss on July 25, 2008, and there was a hearing held on August 27, 2008, for that motion and Trinity’s motion for a default judgment and summary judgment. At the hearing, the chancellor announced he was “adjudicating that Thomas (Bob) Davis died without descendants.” Thereafter, on September 4, 2008, Spectrum Oil filed its answer and defenses to Trinity USA’s complaint, four days before the chancery court entered the order granting summary judgment to Trinity USA and denying Spectrum Oil’s motion to dismiss. Although Spectrum Oil was not required to file a responsive pleading until its Rule 12(b) motion was ruled upon, the motion for summary judgment was properly filed and considered after the expiration of thirty days from the filing of the complaint, even though no responsive pleading from Spectrum Oil was on file.

¶ 30. Summary judgment for Trinity USA was not granted because of the lack of a responsive pleading by Spectrum Oil, but because Spectrum Oil did not come forward with any proof of a genuine issue of material fact in response to Trinity USA’s motion for summary judgment. Spectrum Oil was given proper notice and the opportunity to respond to Trinity USA’s motion for summary judgment but did not do so. At the hearing on the motion, Spectrum Oil did not come forward with any witnesses or proof creating a genuine issue of material fact. Finally, Spectrum Oil’s answer contained only general denials that would have had no effect on the propriety of the chancellor’s grant of summary judgment.

CONCLUSION

¶ 31. We find that the interest Spectrum Oil seeks to hold, that of the descendants of Thomas (Bob) Davis, does not exist; therefore, we find the chancellor did not abuse his discretion when he dissolved the receivership ab initio. Further, we find no error committed by the chancery court for not requiring the State to be a party to the receivership litigation. Finally, we find no error in the grant of summary judgment in favor of Trinity USA before Spectrum Oil responded to the complaint to remove a cloud on title.

¶ 32. THE JUDGMENTS OF THE CHANCERY COURT OF WAYNE COUNTY ARE AFFIRMED. ALL COSTS OF THESE APPEALS ARE ASSESSED TO THE APPELLANT.

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

      . The petition was filed pursuant to Mississippi Code Annotated section 11-17-33(1) (Rev. 2004) which allows the chancellor to appoint the chancery clerk as “receiver of any mineral interest claimed or owned by any person, or persons, whose whereabouts or identity is unknown,” if the chancery court is satisfied that such person or persons cannot be found after "diligent search and inquiry and that petitioners will suffer loss, damage or injury unless such receiver is appointed.”

      . Section 11-17-33(3) provides: "No receiver shall be appointed under the provisions of this section unless all interested parlies who are not parties to the petition shall be made defendants and all such defendants shall have been served with process of the court provided by law for cases in chancery court.” The subsection then sets out a form for summons by publication.

      .One other son, Ward Davis, had predeceased E.L. Davis and had no children. Accordingly, the descendants of Thomas (Bob) Davis would have owned a one-tenth interest after the death of E.L. Davis in 1937, which would have increased to a one-ninth interest had they survived the death of Lacy Davis in 1949.

      . Part of the record in the appeal from the receivership proceeding is the transcript of a hearing on Spectrum Oil's motion to reopen evidence in the suit to remove a cloud which was filed after the notice of appeal had been filed in that cause. The chancellor’s decision in that case, denying the motion, is not currently before the Court on appeal, except to the extent that the transcript and exhibits from that hearing are part of the record in the receivership proceeding.

      . Several spellings are used in the record among the documents and in the testimony for the first name of Margurete Rouse Davis Haller. We will use ''Margurete” for consistency throughout the opinion.

      . After the death of Thomas (Bob) Davis, Mar-gurete married John Haller. She died in 1929. Her obituary was produced in the record and stated that she was survived by her husband, five brothers, and four sisters; and it gave their names. There is absolutely no mention of any children. Also, census records from the time after Thomas (Bob) Davis’s death contained Margurete’s name, but it did not record the names of any children with the last name of Davis on her entry. Further, her tombstone honors Margurete as "the truest, sweetest wife ever lived” but makes no reference to her having been a mother.

      . That section states: "The receivership, once established, shall continue, unless dissolved by the court for good cause, for a period of at least ten (10) years.” Miss.Code Ann. § 11-17-33(5) (Rev.2004) (emphasis added).

      . Rule 19 deals with the joinder of any person needed for a just adjudication of a civil action.

      . During the permitting process for the eighty-acre oil units, notice was given to the unknown heirs of Thomas (Bob) Davis and his wife, Margurete Rouse Davis, to appear before the Mississippi Oil and Gas Board regarding the integration of any interest they might claim in the unit. The notice was published in the Wayne County News on June 21 and 28, July 5 and July 12, 2007. No person claiming an interest through Thomas (Bob) Davis appeared before the meeting of the Mississippi Oil and Gas Board.