author: KITCHENS, Justice,

text:
    Ivan Russell McCLELLAN v. STATE of Mississippi.
    No. 2009-KA-00327-SCT.
    Supreme Court of Mississippi.
    March 25, 2010.
    Rehearing Denied May 27, 2010.

      Office of Indigent Appeals by George T. Holmes, Leslie S. Lee, Gary Goodwin, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorneys for appellee.

      Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. Following a jury trial in Lowndes County Circuit Court, Ivan Russell McClellan was convicted of possessing two methamphetamine precursors and possessing 250 dosage units of pseudoephedrine under Mississippi Code Sections 41-29-313(l)(a) and 41-29-313(2)(c), respectively. McClellan was sentenced as a habitual offender under Mississippi Code Section 99-19-81 to serve thirty years in the custody of the Mississippi Department of Corrections for the precursor conviction and five years for the pseudoephedrine conviction, those sentences to run concurrently.

FACTS

¶ 2. On December 5, 2007, Officer John Pevey of the Columbus Police Department responded to a call from dispatch informing him that a white male and a white female had just made large purchases of pseudoephedrine at Fred’s Dollar Store in Columbus, Mississippi. At trial, Pevey explained that pseudoephedrine is the main ingredient used for the manufacture of methamphetamine. A Fred’s sales clerk told police that the man and woman each had purchased four boxes of pseudoephed-rine, for a total of eight boxes. The sales clerk also related to police that the pair had left the store in an older-model blue automobile, and that the vehicle was last seen traveling east on the Highway 82 bypass.

¶ 3. Pevey set out to find this car while Mississippi Bureau of Narcotics Agent Eddie Hawkins proceeded to Fred’s Dollar Store to investigate the purchase further. Hawkins learned from the Fred’s sales clerk that the couple had left in an older-model blue Mustang with an Alabama tag, and that the individuals had used identification to purchase the pseudoephedrine which identified them as Ivan McClellan and Katina McGee. Hawkins relayed this information to Pevey via radio.

¶ 4. Pevey subsequently located the Mustang at Dutch Village Family Pharmacy. Pevey parked across the street to maintain surveillance of McClellan and McGee, and he continued to follow them after they left Dutch Village and proceeded to Dollar General Store, where the suspects learned the store did not carry pseudoephedrine products. As Pevey continued to follow the suspects, Hawkins went into the Dutch Village Family Pharmacy and learned that the suspects had purchased more pseudoephedrine. Again, Agent Hawkins relayed this information to Officer Pevey via radio.

¶ 5. From Dollar General, Pevey followed McClellan and McGee onto Highway 50 and ultimately stopped them on Highway 182 between New Hope Road and Mount Vernon Road. Pevey testified that, after he had verified the identities of the occupants of the vehicle as Ivan Russell McClellan and Katina McGee, he obtained consent to search the vehicle. Upon searching the car, Officer Pevey discovered a total of 308 pseudoephedrine pills, three cans of starter fluid, three cans of granular drain opener, a pack of unopened lithium batteries, and a plastic bag with Fred’s Dollar Store insignia on it. Also found were a bottle of isopropyl alcohol and another box of pseudoephedrine pills in a suitcase inside the car. At trial, Agent Hawkins testified that each of these items is a known methamphetamine precursor, and he explained how each of these products is used in manufacturing methamphetamine.

¶ 6. McClellan and McGee immediately were arrested, and, in due course, McClellan was charged in a two-count indictment. The first count charged a violation of the provision of the Mississippi Code that prohibits the simultaneous possession of two or more chemicals appearing on a list of identified precursor materials used in the manufacture of methamphetamine under circumstances demonstrating that the possessor knew (or reasonably should have known) that the materials would be used illegally to manufacture methamphetamine. Miss.Code Ann. § 41-29-313(l)(a) (Rev.2009). The materials named in the indictment were lithium (batteries), sodium hydroxide (granular drain opener), ether (starter fluid), and isopropyl alcohol. The second count charged a violation of the provision of the Mississippi Code that prohibits the possession of 250 dosage units of pseudoephedrine, knowing, or under circumstances where one reasonably should know, that the pseudoephedrine will be used to manufacture a controlled substance unlawfully. Miss.Code Ann. § 41-29 — 313(2)(c)(I) (Rev.2009). McClellan was convicted on both counts.

ISSUES

¶ 7. McClellan raises four issues on appeal: (1) whether there was an illegal search, requiring exclusion of (A) the items found in the car and (B) his confession to police, (2) whether the verdict is supported by the weight of the evidence, (3) whether the trial court allowed improper impeachment evidence, and (4) whether merger prohibited prosecution for both possession of precursors and possession of more than 250 dosage units of pseudoephedrine.

DISCUSSION

l.A. Motion to Suppress the Seized Items

¶ 8. McClellan moved to exclude the items seized in the search of his vehicle, but the motion was overruled. The trial judge held that the stop of McClellan’s vehicle was valid and that it was made with sufficient probable cause for an investigatory stop. McClellan claims that the officers lacked reasonable suspicion to make an investigatory stop because the initial description of the suspect vehicle by police dispatch was vague.

¶ 9. A police officer may conduct an investigatory stop if he or she has “reasonable suspicion, grounded in specific and articulable facts, that a person [the officer encounters] was involved in or is wanted in connection with a completed felony ... or ‘some objective manifestation that the person stopped is, or is about to be engaged in criminal activity.’ ” Williamson v. State, 876 So.2d 353, 355 (Miss.2004) (quoting Floyd v. State, 500 So.2d 989, 992 (Miss.1986)). Reasonable suspicion may be based on the officer’s personal observations or an informant’s tip, as long as the tip bears an indicium of reliability. Id. (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 118 (Miss.1999)). In Williamson, police received information from pharmacy employees that two white males had purchased large quantities of pseu-doephedrine from two different stores. Id. at 354. One of the tipsters told police that the two white men had left the store in a white van, and he gave police the license plate number and the direction in which he had seen the van traveling. Id. A police officer located the van and followed it to a Fred’s Dollar Store, where he obtained consent to search the vehicle. Id. In the Williamson case, this Court concluded that the information provided by the pharmacy employee, “the color of the van, the number and race of the occupants, the license plate number and the direction of travel, including the name of the street,” provided a sufficient basis for the officer’s reasonable suspicion to stop the vehicle. Id. at 356.

¶ 10. While in this case the initial description may have been somewhat vague, police were able to accumulate many more details about the individuals, their pseu-doephedrine purchases, and the vehicle in which they were traveling before officers made the investigatory stop. Agent Hawkins investigated at both Fred’s Dollar Store and Dollar General Store soon after the suspects had driven away from each. Hawkins relayed to Officer Pevey the information he had obtained, and Pevey subsequently made the investigatory stop after reasoning that he had enough information, or probable cause, to do so. Thus, the trial court did not err in denying McClellan’s motion to suppress the fruits of the vehicle search.

l.B. Motion to Suppress the Confession

¶ 11. After McClellan was arrested and Mirandized pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he gave a statement to police admitting that he was “going to take these items and make methamphetamine.” He added, “The female that was with me was helping me get some of the items needed.... I guess she was going to help me cook.... I was going to use the finish [sic] product myself and Katina was going to use the product also.” At trial, McClellan moved to suppress this statement, claiming that it was the product of an illegal arrest, but the motion was denied.

¶ 12. “To effect arrest for a felony, either with or without a warrant, a police officer must have reasonable cause to believe a felony has been committed, and reasonable cause to believe that the person proposed to be arrested is the one who committed it.” Jones v. State, 841 So.2d 115, 125 (Miss.2003). As established above, Officer Pevey had probable cause to stop McClellan and was given consent to perform a search of his car. Upon finding the pseudoephedrine pills, starter fluid (ether), granular drain opener (sodium hydroxide), lithium batteries, and isopropyl alcohol, Officer Pevey had reasonable cause to believe that McClellan had committed the felony of possessing precursors for methamphetamine. Only after being arrested and informed of his Miranda rights did McClellan make his incriminating statement. Thus, the trial judge did not err in refusing to suppress his confession.

2. Weight of the Evidence

¶ 13. When reviewing a claim that the verdict was against the overwhelming weight of the evidence, the evidence is weighed in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844 (Miss.2005). This Court will not order a new trial unless it finds that the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 14. McClellan argues that the State did not prove that he had actual or constructive possession of the pseudoephed-rine or the methamphetamine precursors. Although all of the materials were found in McClellan’s car, he argues that the only substance within his control was the 212 dosage units of pseudoephedrine. The rubbing alcohol and ninety-six dosage units of pseudoephedrine were found in McGee’s luggage, and the cans of starter fluid and granular drain opener were found in the back seat. McClellan also points out that only McGee purchased pseudoephedrine at the Dutch Village store.

¶ 15. To support a conviction for possession of a controlled substance, “there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Wall v. State, 718 So.2d 1107, 1111 (Miss.1998) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). Moreover, “[i]t is quite possible to have joint constructive possession.” Wall, 718 So.2d at 1111 (citing Powell v. State, 355 So.2d 1378, 1379 (Miss.1978)).

¶ 16. McClellan was the operator of the vehicle in which the contraband was found, and there was nothing to rebut the presumption that he was in constructive possession of the contents of the vehicle. Through his confession, he admitted that he was “aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Id. In his statement, he admitted to police that McGee was helping him acquire the ingredients for methamphetamine and that the two of them intended to manufacture and use the finished product. Accordingly, we find that the verdict was not against the overwhelming weight of the evidence.

3. Evidence of Prior Conviction

¶ 17. McClellan was convicted of burglary on July 3, 1996, and received a three-year sentence. At the close of the State’s presentation of the evidence, the trial judge, after finding that the probative value of admitting McClellan’s prior conviction outweighed its prejudicial effect under Peterson v. State, 518 So.2d 632 (Miss.1987), ruled that the State could use McClellan’s prior burglary conviction as impeachment evidence, pursuant to Mississippi Rules of Evidence 609(a)(1)(B), should he choose to testify on his own behalf. Following the trial court’s ruling, McClellan chose not to testify. McClellan argues on appeal that the trial court’s ruling was an abuse of discretion that resulted in his inability to put on a defense.

¶ 18. Where a criminal defendant chooses not to testify after the trial court has ruled that his or her prior convictions may be used as impeachment evidence, the defendant is procedurally barred from arguing on appeal that such a ruling prevented his putting on a defense or had a “chilling effect” on his right to testify if he fails to proffer his proposed testimony. Heidelberg v. State, 584 So.2d 393, 395 (Miss.1991). “At the very least, a defendant wishing to present the point on appeal, absent having taken the witness stand himself, must preserve for the record substantial and detailed evidence of the testimony he would have given so that we may gauge its importance to his defense.” Id. Because McClellan failed to proffer his testimony, he is procedurally barred from arguing that the trial court’s ruling which would have allowed the State to impeach him with his prior burglary conviction prevented his putting on a defense.

U- Merger

¶ 19. McClellan argues that the charge of the possession of 250 dosage units of pseudoephedrine should merge into the offense of possession of precursors, and, therefore, he should not have been charged and convicted of both offenses, as they arose from the same set of facts. In other words, McClellan argues that these two convictions amount to double jeopardy, or multiple punishments for the same conduct.

¶ 20. This Court follows the rule announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See also, Powell v. State, 806 So.2d 1069, 1074 (Miss.2001). “[WJhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (citation omitted). In addition, “[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Id. (quoting Morey v. Commonwealth, 108 Mass. 433 (1871)).

¶ 21. However, in the present case, McClellan was indicted and tried for two separate acts: (1) possession of precursors, namely, lithium, sodium hydroxide, ether, and isopropyl alcohol; and (2) possession of more than 250 dosage units of pseudoephedrine. McClellan’s contention is equivalent to arguing that one cannot be convicted of unlawful possession of marijuana and unlawful possession of cocaine simply because the defendant was found in possession of both substances at the same time. While it is true that pseudoephed-rine is listed as a precursor under Mississippi Code Section 41 — 29—313(l)(b), the precursors which McClellan was convicted of unlawfully possessing did not include pseudoephedrine. See Miss.Code Ann. § 41 — 29—313(l)(b) (Rev.2009). The State did not use the pseudoephedrine found in McClellan’s car to support its charge for possession of precursors. See Hunt v. State, 863 So.2d 990, 993 (Miss.Ct.App.2004) (holding that by using the same pseudoephedrine to support convictions for possession of precursors and possession of more than 250 dosage units of pseu-doephedrine amounted to double jeopardy). Because the pseudoephedrine was not listed as one of the precursors, we find that McClellan was properly charged with, tried for, convicted of, and sentenced for two distinct crimes.

CONCLUSION

¶ 22. For the foregoing reasons, we find no reversible error, and the convictions are affirmed.

¶ 23. COUNT I: CONVICTION OF POSSESSION OF PRECURSORS AND SENTENCE AS A HABITUAL OFFENDER OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY A FINE OF $1,000,000, AFFIRMED. COUNT II: CONVICTION OF POSSESSION OF 250 DOSAGE UNITS OF PSEUDOEPHEDRINE AND SENTENCE AS A HABITUAL OFFENDER OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY A FINE OF $5,000, AFFIRMED. SENTENCE IN COUNT II TO RUN CONCURRENTLY WITH THE SENTENCE IMPOSED IN COUNT I.

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

      . From the record, it cannot be determined whether the consent to search McClellan’s car was verbal or written in form.

      . Agent Hawkins testified that "sodium hydroxide is your everyday household Drano, or Red Devil Lye,” and that "starling fluid has ether in it.”

      . We can deduce from the record that McClellan's conviction occurred outside the ten-year window of Mississippi Rule of Evidence 609(b); however, there are no judicial or Department of Corrections records to substantiate defense counsel's statements that McClellan served only one year of the three-year sentence. Thus, this Court cannot determine when McClellan was released from the confinement imposed for his burglary conviction. However, because this aspect of Rule 609 was not argued by McClellan at trial, and is not argued on appeal, this Court will not address this issue.


source: Caselaw Access Project

author: GRAVES, Presiding Justice, LAMAR, Justice,

license: Public Domain

text:
    Jessica Nicole RICE v. Scott Thomas MERKICH.
    No. 2009-CA-00318-SCT.
    Supreme Court of Mississippi.
    May 6, 2010.
    Jeffrey P. Hubbard, Jackson, Stacey L. Strain, attorneys for appellant.
    T. Jackson Lyons, Jackson, David Edwin James, attorneys for appellee.
   GRAVES, Presiding Justice,

for the Court:

¶ 1. Jessica Rice appeals the judgment of the Madison County Chancery Court changing the surname of her minor child to that of the father pursuant to a paternity action. As this is a case of first impression, this Court must interpret Mississippi Code Section 93-9-9(1) of the Mississippi Uniform Law on Paternity. For the reasons stated herein, we affirm the judgment of the chancellor.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jessica Rice and Scott Merkich had been dating on and off for about two years when they discovered that Rice was approximately eight weeks pregnant in June 2007. Rice and Merkich were living together at the time of the pregnancy. Rice and Merkich had planned to get married, but they ultimately ended the relationship on August 25, 2007, and Rice moved in with her parents. Rice admitted that she had dated other men while she and Mer-kich were broken up, and Merkich questioned the child’s paternity. However, the parties remained in contact after the break-up. Prior to ending the relationship, Merkich accompanied Rice on two doctor’s visits. After the break-up, Mer-kich planned to accompany Rice to at least one other doctor’s visit, but Rice changed the date of the appointment without informing him of the new time. Merkich also contributed to the payment of two medical bills related to the pregnancy.

¶ 3. The baby was due January 22, 2008, but was born on January 3, 2008. Rice did not contact Merkich when she went into labor and, thus, he was not present when she gave birth to the baby girl, which Rice named Presley Annsleigh Rice. Rice did not inform Merkich of Presley’s birth until January 6, 2008, the day after she was discharged from the hospital.

¶ 4. On January 16, 2008, Merkich filed a Petition for Determination of Paternity, seeking paternity testing. The parties agreed to DNA testing, and the results established a 99.98 percent probability that Merkich is Presley’s father. Thereafter, Merkich filed in that same action on March 7, 2008, a Complaint for Determination of Child Custody and Visitation. Merkich asked for joint legal and physical custody of Presley, asked that her surname be changed to Merkich, and stated that he was willing to pay his statutorily-required child-support obligation. Rice filed a Response to Complaint for Determination of Child Custody and Visitation and Respondent’s Counterclaim for Back Child Support and Other Relief on April 1, 2008. Rice denied that Merkich should be awarded joint care, custody and control of the minor child. Rice also denied that Presley’s surname should be changed to Mer-kich. Rice admitted that Merkich should pay child support and counterclaimed for back child support. Merkich filed an answer on April 2, 2008.

¶ 5. After a hearing for temporary relief, the chancellor entered a Temporary Order on July 10, 2008, finding that Rice and Merkich would share joint legal custody of Presley and that Rice would maintain primary physical custody subject to Merkich’s reasonable visitation rights. The chancellor also ordered temporary child support and set the matter for trial on January 13, 2009. On the date of trial, Rice and Mer-kich filed a joint stipulation that they agreed on all issues except those identified, which included Presley’s surname. The trial proceeded on those issues, including Presley’s surname. After hearing evidence and testimony, the chancellor found that Presley’s surname should be Merkich. Subsequently, Rice filed this appeal.

ANALYSIS

¶ 6. Rice raises the following issues:

I. Whether the trial court erred in denying Defendant’s Motion for Directed Verdict after Plaintiff failed to prove by clear and convincing evidence that it is in the minor child’s best interests for the trial court to change her surname.
II. Whether the trial court erred in granting Plaintiff’s petition to change the surname of the child pursuant to Miss.Code Ann. § 93-9-9(1) absent proof by clear and convincing evidence that it is in the minor child’s best interests to do so.

¶ 7. This Court “will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Powers v. Tiebauer, 939 So.2d 749, 752 (Miss.2005). “When reviewing questions of law, this Court employs a de novo standard of review and will only reverse for an erroneous interpretation or application of law.” Id.

¶ 8. Mississippi Code Section 93-9-9 of the Mississippi Uniform Law on Paternity states, in relevant part: “In the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.” Miss.Code Ann. § 93-9-9(1) (Rev. 2004) (emphasis added). Although the statute does not delineate those circumstances where the “judgment specifies otherwise,” it is reasonable to conclude that those circumstances should be examined in light of the best interest of the child, if, and only if, this is a contested issue. In other words, “in the event of court-determined paternity,” where a party to the action contends that the surname should not be “that of the father,” then, and in that event, that party must prove by a preponderance of the evidence that it is in the child’s best interest that the surname not be “that of the father.” We note that the parties assert a clear and convincing evidence burden of proof and that in Pendleton v. Leverock, 23 So.3d 424, 431 (Miss.2009), this Court referenced a clear and convincing standard with regard to a custody case involving a natural parent and a third party. However, we find that a preponderance of the evidence is the appropriate burden of proof in the instant case. Moreover, child-custody and adoption cases are categorically different from cases involving changing the surname of a child to the surname of the natural father pursuant to statute.

¶ 9. In the instant case, the statute’s plain language clearly indicates that Presley’s surname shall be Merkich unless Rice proves by a preponderance of the evidence that it is in the child’s best interest that her surname not be Merkich. Such an interpretation is consistent with and supported by other relevant statutory provisions and Department of Health rules. For example, Mississippi Code Section 93-9-9(3) states:

Upon application of both parents to the State Board of Health and receipt by the State Board of Health of a sworn acknowledgement of paternity executed by both parents subsequent to the birth of a child born out of wedlock, the birth certifícate of the child shall be amended to show such paternity if paternity is not shown on the birth certificate. Upon request of the parents for the legitimization of a child under this section, the surname of the child shall be changed on the certificate to that of the father.

Miss.Code Ann. § 93-9-9(3) (Rev. 2004) (emphasis added).

¶ 10. Mississippi Code Section 41-57-23(2) of the Vital Statistics Chapter provides that:

If a child is born to a mother who was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges paternity, the name of the father shall be added to the birth certificate if a notarized affidavit by both parents acknowledging paternity is received on the form prescribed or as provided in Section 93-9-9. The surname of the child shall be that of the father except that an affidavit filed at birth by both listed mother and father may alter this rule. In the event the mother was married at the time of conception or birth, or at any time between conception and birth, or if a father is already listed on the birth certificate, action must be taken under Section 41-57-23(1) to add or change the name of the father.

Miss.Code Ann. § 41-57-23(2) (Rev. 2009) (emphasis added). Rice testified that she had failed to disclose to Merkich that Presley had been born until after she had been released from the hospital. If Rice had informed Merkich earlier, and he had acknowledged paternity by completing the proper forms at the hospital, then, pursuant to this section, Presley’s surname would have been Merkich unless both Rice and Merkich had signed an affidavit stating otherwise.

¶ 11. Such a finding is also consistent with the Rules Governing the Registration and Certification of Vital Events by the Mississippi State Department of Health. Rule 103.04 states:

This section details the conditions under which the father’s name may be entered on the certificate, the specification of the child’s name under each condition, and conditions under which the surname of the child may be different from either the father’s surname or mother’s surname if no father is listed. Traditionally, a child assumes the legal surname of his or her father as listed on the birth certificate, or of the mother if no father is listed. When the surname given a child is not traditional, a signed statement, witnessed by a hospital representative, signed by both parents or the mother if no father is listed, and filed with the birth certificate shall be required, but the certificate shall not be considered nor marked as having been amended.

Miss. Dep’t of Health R. 103.04, available at Miss. State Dep’t of Health Website, http://unm.msdh.state.ms.us/ (last accessed May 3, 2010).

¶ 12. Further, Rule 18 states:

The surname of the child shall be determined in the following manner:
1. Mother married. If the mother was married at the time of conception or birth, or at any time between conception and birth, the surname of the child shall be that of the husband except that a statement, signed by both the listed mother and husband, and witnessed by a health facility representative, filed at the same time as the birth certificate is filed may alter this rule.
2. Mother not married; no acknowledged father. If the mother was not married at the time of conception or birth, or at any time between conception and birth, the surname of the child shall be that of the legal surname of the mother, except that a statement, signed by the listed mother and witnessed by a health facility representative, filed at the same time the birth certificate is filed may alter this rule.
3. Mother not married; acknowledged father. If the mother was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges such paternity, the surname of the child shall be that of the father except that a statement signed by both the listed mother and the acknowledged father, witnessed by a health facility representative, and filed at the same time the birth certificate is filed may alter this rule. The Acknowledgement of Paternity affidavit may be rescinded under Rule 19 — Rescission of acknowl-edgement of paternity, upon rescission the father’s information will be removed from the birth certificate and the surname of the child will be changed to the legal surname of the mother at the time of birth.
4. Court-determined paternity. In the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.

Miss. Dep’t of Health R. 18, available at Miss. State Dep’t of Health Website, http:// immv.msdh.state.ms.us/ (last accessed May 3, 2010).

¶ 13. The only evidence offered by Rice that Presley should not have the surname Merkich is possible embarrassment and confusion for Rice and Presley to have different names. Specifically, at the hearing to determine Presley’s surname, Rice testified:

A. Yeah. I’m her mother, and I think it would be embarrassing if I dropped her off at school, picked her up at school, went to church — they don’t understand, you know, maybe last name, but I know that does happen in the world today. But I want her to have the last name of Rice because that’s — she’s my little girl, and I wanted her this whole time. She—
Q. So I understand — I’m sorry. I didn’t meant to cut you off.
A. And you asked me if there’s any disadvantages. I mean, the disadvantage is she has a name. Her last name is Rice, and I’m sure she would be confused down the road why her birth certificate says something different. I don’t know how else to answer that question.

¶ 14. Later, Rice testified as follows:

Q. You think it would be unusual, or do you think that Presley would be at some disadvantage if she had a different last name than that of her mother?
A. A disadvantage? Of course not. I would love her just the same no matter what her name is. A disadvantage? No. But I see the advantages of her having my last name. I have a healthy child, and that’s what’s important.

¶ 15. Rice also testified that she would have taken Merkich as a last name if she and Merkich had married. Further, Rice testified that Merkich is a good father, who is very involved in Presley’s life and spends as much time with her as possible.

¶ 16. We find that Rice failed to prove by a preponderance of the evidence that it is in the child’s best interest that her surname not be Merkich. In so finding, we reject Rice’s argument that a best-interest-of-the-child analysis must be employed in each paternal surname change pursuant to Marshall v. Marshall, 230 Miss. 719, 93 So.2d 822, 825 (1957). An on-the-record, best-interest determination before changing a child’s surname to that of the court-determined father in paternity cases is not required pursuant to Section 93-9-9(1) and would serve only to impede the process of “legitimization” of children born out of wedlock. Further, Marshall did not fall within the purview of Section 93-9-9(1), which, again, is part of the Mississippi Uniform Law on Paternity. Paternity was not an issue in Marshall. Instead, the issue in Marshall pertained to a name-change action subsequent to a divorce in which the mother sought to change the surname of an eleven-year-old child from that of his father to that of the step-father. Notwithstanding that Marshall is factually distinguishable, this Court’s analysis in Marshall is not applicable. Again, Marshall involved a petitioner attempting to change the child’s surname to a different surname subsequent to a divorce and a remarriage.

¶ 17. Further, the cases from Arkansas and Tennessee cited by the dissent are distinguishable, as those states do not have similarly worded statutes. The applicable statute in Huffman v. Fisher, 343 Ark. 737, 38 S.W.3d 327, 329 (2001), states: “In any case in which paternity of a child is determined by a court of competent jurisdiction, the name of the father and surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court.” Ark.Code Ann. § 20-18-401(e)(3) (Rev. 2005). The Tennessee statutes discussed in Barabas v. Rogers, 868 S.W.2d 283, (Tenn.Ct.App.1993), contain a variety of options for surnames and time periods for so choosing, none of which is similar to Section 93-9-9. See Tenn.Code Ann. § 68-3-305 (Rev. 2006).

¶ 18. In the instant case, there is absolutely nothing in the record to support any conclusion that the chancellor interpreted the statute to mean that she had no choice other than to change the child’s surname to Merkich. In fact, the chancellor had a hearing on that issue because the mother objected to the child’s surname being changed. After “having heard and considered the joint stipulation made by the parties, testimony and evidence presented by both parties and the law presented by respective counsel and the argument thereof,” the chancellor found that the surname of the child shall be Merkich. (Judgment, Feb. 4, 2009). Further, the chancellor specifically stated on the record that she found no reason to deny the request to change the name to Merkich pursuant to statute. Clearly, the chancellor recognized that there may be cases where the general rule requiring the surname to be that of the father does not apply. However, the chancellor also correctly found that this was not one of those cases. The chancellor also correctly found that Rice had not proven by a preponderance of the evidence that it was in the child’s best interest that her name not be Merkich.

¶ 19. For the reasons stated herein, we find that the chancellor’s decision is supported by substantial evidence, was not manifestly wrong, clearly erroneous or an abuse of discretion. Therefore, we affirm the judgment of the Madison County Chancery Court.

¶ 20. AFFIRMED.

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

LAMAR, Justice,

dissenting:

1121. If, as this Court has held for generations, the “polestar” consideration in matters dealing with children is the best interest of the child, then I must begin this dissent by asking the question: Was the name change ordered by the chancellor in the best interest of the child, Presley Annsleigh Rice? We, of course, don’t know, because the chancellor was clearly under the erroneous impression that she was statutorily required to order the name change. Because I believe our chancellors should change the name of a child only when doing so is found to be in the best interest of the child, I respectfully dissent.

¶ 22. The issue presented is whether— upon a finding of paternity- — our statutes mandate that this child’s surname be changed to her father’s name, regardless of whether such change is in the child’s best interest. I would remand for a hearing to consider the testimony presented in light of the best interest of the child, as the record clearly shows that the chancellor did not apply a best-interest analysis. In my view, when there is a contested request for a name change following a finding of paternity, the chancellor should perform a best-interest analysis, with the moving party (the one seeking to change a child’s name) having the burden of proof to show by a preponderance of the evidence that the name change is in the child’s best interest.

¶23. Mississippi Code Section 93-9-9(1) provides in relevant part that “In the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.” Miss.Code Ann. § 93-9-9(1) (Rev. 2004) (emphasis added). Clearly, the Legislature contemplated that there would be occasions when a chancellor would “specify otherwise.” The majority fails to provide much-needed guidance to the bench and the bar as to appropriate considerations when faced with these disputes. Despite the majority’s finding that “it is reasonable to conclude that those circumstances should be examined in light of the best interest of the child” (Maj. Op. ¶ 8), it later contradicts itself by concluding that:

[a]n on-the-record, best-interest determination before changing a child’s surname to that of the court-determined father in paternity cases is not required pursuant to Section 93-9-9(1) and would serve only to impede the process of “legitimization” of children born out of wedlock.

(Maj. Op. ¶ 16). This is double-speak. Clearly, a best-interest analysis should govern the chancellor’s decision in these disputes and in all matters touching on the welfare of a child. Contrary to the majority’s assertion, I fail to see how making a proper record for appellate review would impede the process of “legitimization” of children born to unmarried parents.

¶ 24. More than fifty years ago, this court held that “ ‘[a]n application to change the name of an infant should be granted only where to do so is clearly in the best interest of the child.’ ” Marshall v. Marshall, 230 Miss. 719, 93 So.2d 822, 825 (1957) (quoting 65 C.J.S. Names § 11); see 65 C.J.S. Names § 23 (2009). Although factually distinguishable, the Marshall court established that a best-interest standard is applicable to a minor’s name change when such a change is contested. Id. at 825, 827.

¶ 25. The majority also finds (without citation to any authority) that the burden of proof in this case rests with the mother (the nonmoving party) to prove that the child’s name should not be changed. But see Huffman v. Fisher, 343 Ark. 737, 38 S.W.3d 327, 329 (2001) (“The burden of proof is on the moving party to demonstrate that the change is in the best interest of the child.”); Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn.Ct.App.1993) (same). There is no dispute that this child’s name was properly recorded on her original birth certifícate as Presley Amns-leigh Rice. Notably, Rice testified that Merkich was not listed on the birth certificate, because he had denied that Presley was his child and “had taken himself out of [her] life months prior.” Further, the Mississippi Department of Health has provided that, “[i]f the mother was not married at the time of conception or birth, or at any time between conception and birth, the surname of the child shall be that of the legal surname of the mother....”

¶ 26. Without explicitly so finding, the majority seems to accept Merkich’s argument that Section 93-9-9(1) creates a presumption that bearing the paternal surname is in the best interest of the child. In my opinion, no presumption exists in favor of either party and any such legislatively created presumption would raise serious Equal Protection concerns. Yet without finding any presumption exists, the majority inexplicably refuses to place the burden of proof on the party seeking relief from the court.

¶ 27. The learned chancellor clearly made her decision based on her interpretation of the statute, that is, that she had no option but to give the child her father’s name:

Scott Thomas Merkich shall be listed as the biological father of the minor child upon the birth certificate of the child. Amd pursuant to the statutes of our state, now having determined paternity, the surname of the child shall be that of the father, finding no reason for which to deny said name request pursuant to the statute. The statute is very clear to this Court, indicating the word “shall.” Therefore, the minor child shall, therefore, be known as Presley Annsleigh Merkich.

Her interpretation was erroneous. Accordingly, I would remand this case for the chancellor to consider the proof in light of the best interest of this child. I realize that, upon remand, the chancellor might reach the same conclusion. I want to be clear that it is not the result in this case that concerns me. It is the fact that the decision was made without a finding that it was in the best interest of the child.

¶ 28. This child was an infant of less than a year old when this dispute found its way to our courts. She was much too young even to know her last name. However, the decision handed down today will apply as well to children much older than this child. I can envision that in many of those cases there may be very legitimate reasons why it would not be in a child’s best interest to have his or her surname changed. Our bench and bar deserve some clear guidance when faced with those situations, and unfortunately they are not getting it today. For the foregoing reasons, I dissent.

DICKINSON, J., JOINS THIS OPINION.

      . A motion for directed verdict under Rule 50 of the Mississippi Rules of Civil Procedure applies only in cases tried by a jury. Miss. R. Civ. P. 50 cmt. However, while Rice should have filed a motion to dismiss pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure, she is not precluded from challenging the weight or sufficiency of the evidence supporting the judgment against her. Clements v. Young, 481 So.2d 263, 268-69 (Miss.1985); Miss. R. Civ. P. 41(b).

        . See e.g. In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 433-34 (Miss.2009) (Chancellor’s decision to sua sponte ignore admissions in child-custody matter was error "committed with a ‘proper result in mind,’ the polestar consideration of the best interests of the child.”) (citing Gilcrease v. Gilcrease, 918 So.2d 854, 856 (Miss.Ct.App.2005)); Lowrey v. Lowrey, 25 So.3d 274, 281 (Miss.2009) ("Regarding child custody, the best interest of the child is the polestar factor.”) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)); S.G. v. D.C., 13 So.3d 269, 279 (Miss.2009) (Where the safety and well-being of children are not being adequately protected, refusal to allow intervention of third parties in custody battle would be "irresponsible and contrary to the polestar consideration in such cases of the best interests of the children.”); W.A.S. v. A.L.G., 949 So.2d 31, 35 (Miss.2007) ("The best interest of the child is a polestar consideration in the granting of any adoption”) (quoting In re V.M.S., 938 So.2d 829, 835-36 (Miss.2006)); Crider v. Crider, 904 So.2d 142, 144 (Miss.2005) ("Mississippi case law has clearly declared time and time again that the polestar consideration in all cases dealing with child custody and visitation is the best interest and welfare of the child.”) (citations omitted); Robison v. Lanford, 841 So.2d 1119, 1122 (Miss.2003) (“it is the responsibility of this Court, like the chancellor, to make the best interest of the child our "polestar” consideration”) (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss.2002)).

      . Miss. Dep’t of Health R. 18(2) (emphasis added), available at Miss. State Dep't of Health Website, http://www.msdh.state.ms.us/ (enter Rules Governing the Registration and Certification of Vital Events in search box) (last accessed April 5, 2010); cf. Hemphill-Weathers v. Farrish, 779 So.2d 167, 172 (Miss.Ct.App.2001) ("[T]he natural mother of [a child born out of lawful matrimony], when no father has taken steps to prove or formally assert his paternity, is the custodial parent with the legal authority to make day to day decisions concerning the welfare of the minors.”).

      . See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725-26, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) (requiring a close relationship between a state’s objective and means in order to assure that the “validity of a [gender] classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women”); see also Rio v. Rio, 132 Misc.2d 316, 504 N.Y.S.2d 959, 962 (N.Y.Sup.1986) (finding that "Equal Protection arguments against a paternal surname presumption are most persuasive”).


author: DICKINSON, Justice, KITCHENS, Justice,

text:
    Edgar PATTON v. STATE of Mississippi.
    No. 2008-KP-01699-SCT.
    Supreme Court of Mississippi.
    May 13, 2010.

      Edgar Patton, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   DICKINSON, Justice,

for the Court:

¶ 1. In this felony prosecution, the trial court allowed the defendant to represent himself -without first obtaining a knowing and intelligent waiver of counsel. We reverse on this important constitutional violation.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Edgar Patton was indicted for the crime of false pretenses. He unsuccessfully represented himself in the trial court. He appeals, claiming as one of nine assignments of error that he did not knowingly and intelligently waive his Sixth Amendment right to counsel. Because this issue is dispositive, we decline to address the others.

ANALYSIS

¶ 3. The United States Constitution’s Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” As is true with most constitutional rights, the Sixth Amendment right to counsel can be waived. Indeed, many states’ constitutions, including Mississippi’s, grant criminal defendants the right to represent themselves. However, it is not enough to say the defendant waived the right to counsel- — -the waiver must be knowingly and intelligently made. Accordingly, the narrow constitutional question presented is whether Patton’s waiver of counsel was knowingly and intelligently made.

I.

¶ 4. Our decision today is framed in the thirty-five-year shadow of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), wherein the United States Supreme Court stated:

[T]he integrity of and public confidence in the system are undermined, when an easy conviction is obtained due to the defendant’s ill-advised decision to waive counsel. The damage thus inflicted is not mitigated by the lame explanation that the defendant simply availed himself of the “freedom to go to jail under his own banner.... ” The system of criminal justice should not be available as an instrument of self-destruction.

Id. 422 U.S. at 839-40, 95 S.Ct. 2525 (citing United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir.1965)).

¶ 5. According to the record, Patton never expressly waived counsel. His only utterance concerning self-representation was when the trial judge asked him if he intended to represent himself and Patton replied: “Well, I’m in consulting.” Nevertheless, under the narrow facts of this case as presented in the record, we are satisfied that Patton’s actions — -coupled with the trial judge’s several admonitions that he obtain counsel — amounted to a manifestation of his intent to waive his right to counsel. However, our inquiry on the subject does not conclude until we focus on whether the waiver was knowingly and intelligently made.

II.

¶ 6. Almost a half-century ago, this Court held that a criminal defendant’s waiver of counsel was insufficient unless— prior to accepting the waiver — the trial court determined it was knowingly and intelligently made. Conn v. State, 251 Miss. 488, 170 So.2d 20 (1964). Specifically, the Conn Court held:

While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record. In accordance with these mandatory decisions we hold that there must be an intelligent and competent waiver of counsel by the defendant and that the trial court should so determine, and, further, that such determination, as well as the facts on which it is based, should appear in the record.

Id. at 23 (citing White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); United States ex rel. Goldsby v. Harpole, 263 F.2d 71, 83 (5th Cir.1959)).

¶ 7. In Faretta, the United States Supreme Court stated:

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.

Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (emphasis added) (internal citations omitted).

¶ 8. The “dangers and disadvantages” of self-representation require that appellate courts may uphold waivers of the right to counsel only where the defendant’s decision to proceed pro se was made knowingly and intelligently. United States v. Joseph, 333 F.3d 587, 589 (5th Cir.2003); United States v. Virgil, 444 F.3d 447, 452 (5th Cir.2006). Accordingly, it is to the “dangers and disadvantages of self-representation” of concern to the Faretta Court — and to how we ensure defendants are made aware of them before waiving counsel — that we now turn.

III.

¶ 9. We fully recognize that every case is different. The circumstances presented to a trial court will always require a case-by-case evaluation. Curlee v. State, 437 So.2d 1, 2 (Miss.1983). However, while courts have not always agreed on exactly what must be done to confirm that a waiver was knowingly and intelligently made, they generally agree that something must be done.

Rule 8.05

¶ 10. In providing assistance to trial judges faced with pro se criminal defendants; in setting forth the minimum examination that must take place to ensure that waivers of the right to counsel are knowingly and intelligently made; and in addressing the “dangers and disadvantages of self-representation” mentioned in Faret-ta, this Court — pursuant to its constitutional duty and authority to make rules governing the judiciary — promulgated Rule 8.05, which provides:

When the court learns that a defendant desires to act as his/her own attorney, the court shall on the record conduct an examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney. The court shall inform the defendant that:
1. The defendant has a right to an attorney, and if the defendant cannot afford an attorney, the state will appoint one free of charge to the defendant to defend or assist the defendant in his/her defense.
2. The defendant has the right to conduct the defense and that the defendant may elect to conduct the defense and allow whatever role (s)he desires to his/her attorney.
8. The court will not relax or disregard the rules of evidence, procedure or courtroom protocol for the defendant and that the defendant will be bound by and have to conduct himself/herself within the same rules as an attorney, that these rules are not simple and that without legal advice his/her ability to defend himself/herself will be hampered.
4. The right to proceed pro se usually increases the likelihood of a trial outcome unfavorable to the defendant.
5. Other matters as the court deems appropriate.
After instructing the defendant and ascertaining that the defendant understands these matters, the court will ascertain if the defendant still wishes to proceed pro se or if the defendant desires an attorney to assist him/her in his/her defense. If the defendant desires to proceed pro se, the court should determine if the defendant has exercised this right knowingly and voluntarily, and, if so, make the finding a matter of record. The court may appoint an attorney to assist the defendant on procedure and protocol, even if the defendant does not desire an attorney, but all disputes between the defendant and such attorney shall be resolved in favor of the defendant.

URCCC 8.05 (emphasis added).

¶ 11. Thus, according to the rule’s mandatory provisions, the trial judge in this case was required to advise Patton — on the record — of his rights and the warnings set forth in the rule. Then, having set forth those rights and warnings, and having made sure Patton understood them, the trial judge was required to ascertain if Patton still wished to proceed pro se, or if he wanted an attorney to assist him in his defense. If, after being advised of the rights and warnings as required by the rule, Patton still wished to proceed pro se, the court was required to determine whether Patton’s waiver was knowingly and voluntarily made. And all of this should have been on the record.

¶ 12. And as a final matter, if Patton— having been fully informed of the matters set forth in the rule — waived his Sixth Amendment right to assistance of counsel, then the court was required to consider whether Patton needed an attorney to assist on procedure and protocol, even though he did not desire an attorney to try his case.

¶ 13. According to the record before us, the trial judge wholly failed to comply with the requirements of Rule 8.05. During a May 13, 2008, motions hearing, the trial judge stated:

Let the record show that on August 9, '07, the defendant was present in court and stated he would represent himself; that on February 26, 2008, the Court advised him he needed to hire an attorney, and he was to let the Court know upon hiring an attorney.
On March 6th, '08, he was to hire an attorney or represent himself, which he chose. The case was at that time set for May 29. The case is set for that time. The Court assumes Mr. Patton has chosen to represent himself.

After ruling on the motions, the trial judge stated:

THE COURT: So I believe that tends to the motions. Now, I would like to ask you, the case is set in August, as you know. The Court is [sic] advised you that with this charge pending, the Court believes that it would be in your best interest to employ an attorney.
THE COURT: Now, again, as I was going to do and attempt to do, is, of course, to give you my advice to hire an attorney, which I’ve been doing for the period of time. For reasons I don’t know and may not be entitled to know, you intend to represent yourself; is that correct?
DEFENDANT PATTON: Well, I’m in consulting.
THE COURT: Okay. Let me put it this way, Mr. Patton: You know when your trial date is, you know when the next docket call is. Whether you choose to hire an attorney or not, of course, that’s your decision. This Court is satisfied you’ve been able to do so. So you be ready to go to trial, with or without an attorney, on the day it’s set.

¶ 14. Although the trial judge did warn Patton that he had better “be ready to go to trial, with or without an attorney,” he provided none of the warnings required by Rule 8.05. Nothing was said about Patton waiving his Sixth Amendment right to assistance of counsel. And Patton’s only statement in the entire transcript regarding a waiver of his right to counsel was: “Well, I’m in consulting.” While this cryptic pronouncement, together with Patton’s actions, may amount to an implied waiver of counsel, it hardly qualifies as one which was knowingly and intelligently made.

¶ 15. Faced with the trial court’s failure to comply with the requirements of Rule 8.05, and finding no evidence in the record that Patton was warned of the dangers and disadvantages of self-representation, we cannot conclude that Patton knowingly and intelligently waived his Sixth Amendment right to assistance of counsel.

IY.

¶ 16. In its brief to this Court, the State includes the following heading for Issue II: “Defendant Chose to Represent Himself and Was Aware of the Perils.” Following this heading, however, the State says nothing about the “perils.” The State does not even attempt to proffer an argument that Patton was warned, or actually knew, of the “dangers and disadvantages of self-representation” mentioned in Faretta. The only case cited by the State is Jackson v. State, 1 So.3d 921 (Miss.Ct.App.2008), wherein the Court of Appeals correctly held that “a waiver of the right to assistance of counsel ... must be made with a full understanding of its disadvantages and consequences.” Id. at 924-25.

¶ 17. Rule 8.05 was designed, in part, to provide trial judges a method of making sure criminal defendants’ waivers of counsel are knowing and intelligent. However, this case is less about a Rule 8.05 violation than about the trial court’s failure to obtain a knowing and intelligent waiver of the right to counsel, as guaranteed by the Sixth Amendment. We cannot overlook the trial court’s failure to do so, and we cannot find that failure was harmless error. While we agree that some constitutional violations are subject to harmless-error analysis, violations of rights essential to a fair trial (structural violations) clearly are not, nor should they be.

¶ 18. Simple logic requires us to conclude that when something essential to a fair trial did not happen, the trial was not fair. Were we to conclude otherwise, then the thing missing was not actually essential. The vast and consistent caselaw on this point clearly establishes that compliance with the Sixth Amendment is essential to a fair trial, and that a trial court’s failure to make sure a Sixth Amendment waiver is knowing and intelligent is per se reversible error, and not subject to a harmless-error analysis.

¶ 19. In Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182, the Supreme Court held that a Sixth Amendment violation “unquestionably qualifies as ‘structural error.’” In Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302, the Court held that a Sixth Amendment violation “def[ies] analysis by ‘harmless error’ standards” because it “affec[ts] the framework within which the trial proceeds” and is not “simply an error in the trial process itself.” And this Court has held that “[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” Conn, 170 So.2d at 23.

¶20. The hallmark Sixth Amendment case is Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), wherein Clarence Earl Gideon defended himself on a charge of robbing a pool hall. After overwhelming evidence of guilt was produced in his first trial, Gideon was convicted. The United States Supreme Court reversed, holding that the Sixth Amendment right to counsel was a fundamental right that is “essential to a fair trial.” Gideon, 372 U.S. at 342, 83 S.Ct. 792.

V.

¶ 21. The State argues that “the trial court, gently, made sure that defendant was not prejudiced by his unfamiliarity with the rules and the law.” This statement is not only unsupported by the record, but is in stark contrast to the following:

(1) On the second page of the transcript is found a discussion of Patton’s pretrial motions. The trial judge states:

There are motions pending before the Court. The first is a motion to sever charges or defendants. Let the record show that in this cause, there’s only one defendant, so I don’t know who the mov-ant intends to sever. There’s only one charge, so I don’t know what charges the defendant intends to sever.

One has difficulty concluding that a defendant who filed a motion to “sever charges or defendants” in a single-charge, single-defendant case, “knew exactly what he is doing.”

(2) The following exchange involving the Patton, the trial judge, and Assistant District Attorney Sweatt took place after the State rested its case-in-chief:

THE COURT (to Patton): Who do you call as the first witness?
PATTON: Detective Albert Preston.
THE COURT: I believe he needs to be sworn; is that correct?
MR. SWEATT: May we approach the bench, Your Honor?
THE COURT: Yes.
MR. SWEATT: We subpoenaed him and I didn’t need him. I think he’s going to be available, but we’ve got to call him and get him up here.
THE COURT: You subpoenaed him?
MR. SWEATT: Yes.
THE COURT: Did you put him on your witness list?
MR. PATTON: I believe I did, sir.
THE COURT: You didn’t subpoena him?
MR. PATTON: But I assumed from Mr. Sweatt he had been called. That’s the reason I did not.
MR. SWEATT: Well—
THE COURT: How long will it take to get him up here?
MR. SWEATT: It won’t take long if he’s on duty. I’ll ask Jeff to call.
THE COURT: What is the purpose? Is he the one that made the complaint?
MR. PATTON: Yes, sir. Basically he initiated the complaint. I was wondering if before the charges asking him, you know, telling him conditions of the charge.
THE COURT: But it doesn’t matter, you didn’t file a motion to suppress. That’s irrelevant. Who do you call as your next witness?
MR. PATTON: I can’t get him?
THE COURT: No. That’s irrelevant on the charge part.

Patton was not allowed to question Detective Preston.

(3)As far as can be told by review of the record, Patton was never arraigned, and never waived arraignment. Instead, a curious proceeding took place on the morning of trial, at the trial judge’s bench, rather than in open court. Although the record includes no transcript of what was actually said, the court reporter made the following notation in the trial transcript:

(AT THE BENCH, OUTSIDE THE HEARING OF THE JURY, THE DEFENDANT WAIVED THE FORMAL READING OF THE ARRAIGNMENT AND ENTERED A PLEA OF NOT GUILTY TO THE CHARGE OF FALSE PRETENSE.)

Although this procedure raises many questions, we shall say no more than to point out that trial judges are required to conduct arraignments in open court, and an unrecorded bench conference, held outside the hearing of the jury (and presumably the spectators), does not qualify as “open court.”

(4) The following took place during Patton’s cross-examination of one of the State’s witnesses:

BY MR. PATTON: Well, have you ever been convicted of a crime?
A. Is that relevant?
Q. It goes to honesty.
THE COURT: If you want to frame the question properly, I’ll admit it. But that’s not a proper form of the question.
BY MR. PATTON: Have you ever been convicted of a crime, I mean?
THE COURT: There are all kinds of crimes. Some go to truth and veracity, others don’t.
BY MR. PATTON: Have you ever been married prior to being married now?

The trial court’s interjection amounted to an objection on behalf of the State (the prosecutor never said a word concerning Patton’s question). Furthermore, the trial court’s implication — that unless the conviction related to “truth and veracity” it was inadmissible — was patently incorrect. And while it is certainly within a trial judge’s discretion to sua sponte comment on an objectionable question, we find it rarely happens where defendants are represented by counsel.

¶22. As this Court stated in Conn, “[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law.” Conn, 170 So.2d at 23 (citing Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932)).

CONCLUSION

¶ 23. We must reverse Patton’s conviction because nothing in the record supports the State’s contention that he knowingly and intelligently waived his Sixth Amendment right to counsel, and because the trial court failed to follow the mandatory requirements of Rule 8.05. Were our decision today different, the ramifications would extend far beyond this case. Our trial judges and lawyers would be left to wonder whether Rule 8.05, or any other rule, means what it says. It is no small concern to us that our rules and statutes are replete with provisions of what “shall” and “shall not” be done. Were we to hold otherwise, the bench and bar would surely wonder what definition de jour this Court might apply to “shall” in future cases.

¶24. In Box v. State, 437 So.2d 19 (Miss.1983), this Court — finding the prosecutor had violated Rule 4.06 — reversed a conviction for armed robbery, stating: “A rule which is not enforced is no rule.” Id. at 21-22. And more recently in Sanders v. State, 9 So.3d 1132 (Miss.2009), we reversed a conviction because the trial court failed to conduct an on-the-record mental competency hearing, as required by Rule 9.06. Id. at 1136-39.

¶25. This Court’s constitutional power to promulgate judicial rules is no small thing. It is an awesome responsibility, but no less so than our duty to enforce those rules fairly, evenly, and predictably. The bench and bar are entitled to rely on this Court to apply the rules no less diligently to the courts than to the lawyers and litigants. And when a rule that we promulgated says a trial court “shall” do a thing, justice and fairness demand that, absent extremely unusual circumstances, we either require trial courts to do it, or change the rule.

¶ 26. Many of our lawyers, I expect, have at one time or another experienced wrath from the bench over their (or their clients’) failure to comply with the rules. Were we in this case to excuse the trial judge’s failure to comply with Rule 8.05’s mandatory requirements, we would risk substantially — and understandably — compromising the judiciary’s credibility in the eyes of those lawyers and others. For this reason, and because we find Patton did not knowingly and intelligently waive his Sixth Amendment right to assistance of counsel, we reverse and remanded to the trial court for action consistent with this opinion.

¶ 27. REVERSED AND REMANDED.

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

KITCHENS, Justice,

Specially Concurring:

¶ 28. I agree with the majority that Patton’s conviction should be reversed based on the trial judge’s failure to ensure that Patton knowingly and intelligently waived his right to counsel. Although that issue is dispositive, I write separately to discuss the woefully inadequate indictment.

¶ 29. Our state and federal constitutions guarantee criminal defendants the specific right “to be informed of the nature and cause of the accusation.” U.S. Const. amend. VI; Miss. Const, art. 3, § 26. An indictment also must contain “sufficient facts to enable [the defendant] to plead double jeopardy in the event of a future prosecution for the same offense.” Berry v. State, 996 So.2d 782, 786 (Miss.2008) (quoting Gilmer v. State, 955 So.2d 829, 836-37 (Miss.2007)). See U.S. Const. amend. V (“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”); Miss. Const, art. 3, § 22 (“[n]o person’s life or liberty shall be twice placed in jeopardy for the same offense”). To safeguard these constitutional rights, this Court has declared that “[t]he indictment upon which the defendant is to be tried shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him.” Nguyen v. State, 761 So.2d 873, 874 (Miss.2000). See also URCCC 7.06 (using identical language).

¶ 30. The crime of false pretense is codified at Mississippi Code Section 97-19-39. The statute provides for a misdemeanor and a felony. Miss.Code Ann. § 97-19-39 (Rev.2006). Liability for the felony depends upon whether the value of the thing(s) obtained by false pretense is more than five hundred dollars. Miss. Code Ann. § 97-19-39(2) (Rev.2006). Patton was convicted of the felony under Section 97-19-39(2), which provides:

Every person, who with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of Five Hundred Dollars ($500.00) or more, upon conviction thereof shall be guilty of a felony and punished by imprisonment in the State Penitentiary not exceeding ten (10) years, and by a fine not exceeding Ten Thousand Dollars ($10,000.00).

Miss.Code Ann. § 97-19-39(2) (Rev. 2006).

¶ 31. The indictment charged Patton with the following:

[O]n or about the 22nd day of July, A.D., 2005[,] EDGAR PATTON did intentionally, willfully, designedly with intent to cheat and defraud Priscilla Watts New-som and Isadore Newsom by selling to Priscilla Watts Newsom and Isadore Newsom a 1981 Crimson 14 x 65 trailer bearing serial number ALW12614777 that the defendant did not own and the defendant Edgar Patton did obtain money on the said trailer, contrary to and in violation of Section 97-19-39 of the Mississippi Code of 1972, as amended, against the peace and dignity of the State of Mississippi.

¶ 32. Patton argues on appeal that the indictment was defective because it failed to notify him whether the crime charged was a felony or a misdemeanor. The State argues that the indictment is saved by its citation to the false pretense statute, but the citation does not specify the subsection pertaining to felonies. Yet, even if the prosecutor had included the proper subsection in the charging document, this would not have saved the indictment; statutory citations constitute mere surplusage and will not cure a fatally defective indictment. Cowan v. State, 399 So.2d 1346, 1351 (Miss.1981).

¶ 33. Clearly, the indictment is defective for failing to notify Patton that he was charged with a felony. The indictment neither uses the essential adverb felo-niously nor does it allege that the value of the property involved was $500 or more. This Court has held that the value of a stolen item is an essential element of grand larceny, and the State’s failure to prove the value warranted resentencing for petit larceny. Henley v. State, 729 So.2d 232, 238 (Miss.1998). Although Patton’s case involves false pretense and not grand larceny, there is no meaningful distinction for purposes of this analysis. Because the false pretense statute provides different levels of punishment depending on the value of the property obtained by means of the false representation, value is an essential element of the crime of felonious false pretense. Numerous Mississippi cases have held that the failure to include an essential element of the crime in the indictment is a jurisdictional defect that cannot be cured with extrinsic proof. See Banana v. State, 635 So.2d 851, 853 (Miss.1994); Copeland v. State, 423 So.2d 1333, 1336 (Miss.1982) (citing Brewer v. State, 351 So.2d 535 (Miss.1977)). Thus, the indictment’s failure to charge an essential element of the crime, value, violates fundamental federal and state constitutional rights and requires automatic reversal.

¶ 34. However, the indictment’s defects surpass the failure to charge the degree of the crime. “The gravamen of the offense of false pretenses is a false representation of a past or existing fact, made by [the] accused with knowledge of its falsity and with intent to deceive, a reliance thereon, and the obtaining of something of value thereby without compensation.” Young v. State, 209 So.2d 189, 189 (Miss.1968) (citing 35 C.J.S. False Pretenses § 6 (I960)). “Furthermore, the property or money obtained under false pretenses must have been ‘to the detriment or injury of the person from whom he obtains the same.’ ” Allred v. State, 605 So.2d 758, 761 (Miss.1992) (quoting Carter v. State, 386 So.2d 1102, 1105 (Miss.1980)). Thus, “[o]rdinarily, an indictment for obtaining property by false pretenses must allege to whom the property obtained belonged.” Young, 209 So.2d at 189-90 (citing 35 C.J.S. False Pretenses § 44b (I960)). The indictment in the instant case fails on almost all levels, for it does not allege that Patton made a representation that he knew to be false, that the Newsoms relied on this misrepresentation to their detriment, or that the money which Patton obtained belonged to the Newsoms.

¶ 35. Patton, acting pro se, filed a pretrial motion to have the indictment dismissed. The motion alleged that the indictment failed to inform Patton of the charge against him, but it did not expound on that assertion. Instead, Patton rambled irrelevantly about freedom of speech and the freedom to contract and whether the trailer was a “Crimson” or a “Red-man.” He never argued that the indictment failed to allege a felony, and the first time he raised this crucial issue was on appeal, and then only in his reply brief.

¶ 36. Patton clearly was not capable of providing himself effective representation. An indictment is a technical document of critical importance and must be very fact intensive to charge felony false pretense properly. In this case, a trained legal eye would have spotted the indictment’s numerous deficiencies and a competent criminal lawyer would have pled and argued a demurrer. That Patton did not have the benefit of competent counsel, who could have made and argued a proper challenge to the indictment, highlights the importance of the trial judge’s ensuring that Patton knowingly and intelligently waived his right to counsel. It is clear that Patton did not understand what was at stake or the high level of technical skill and knowledge essential for a proper defense. Equally clear is that the learned trial judge fell far short of adequately apprising him in these regards. Thus, it cannot be said that this defendant’s waiver of his right to counsel was knowingly and intelligently made. Perhaps on remand, with the defendant’s being represented by counsel, the indictment will be properly addressed.

¶ 37. Suffice to say that even a member of the Bar not well versed in criminal law and procedure would not be in a significantly better position than Patton was to defend himself or herself on such a charge in a competent manner. Under established Mississippi law and practice, a false pretense indictment is a more complex pleading than a non-capital murder indictment. A properly drafted false pretense indictment is replete with essential legalese, long required by this Court, that would be unfamiliar to most attorneys, even law professors, other than those with significant experience as prosecutors, criminal defense attorneys or judges in Mississippi’s criminal courts. Of course, the ability to identify and respond to a defective indictment, such as the one in this case, is but one qualification necessary to the effective defense of a felony prosecution. The record provides no indication that Patton was qualified in any respect to defend himself, or that he even began to understand what would be involved in such an undertaking.

¶ 38. No matter what kind of criminal charge had been alleged against Patton, or any other person similarly situated in our court system, it would have been the duty of the trial judge to spend some time apprising the lawyerless litigant of the perilous path of pro se representation. At a minimum, the judge in this case should have questioned Patton, on the record, in accordance with the simple recipe provided in Rule 8.05. The judge had before him the indictment, which, as an experienced and learned jurist, he immediately would have recognized as being deficient. This alone should have heightened his concern that Patton understand the quite predictable folly of proceeding, in a case in which Mississippi has historically required the charge to be pled with a higher-than-usual level of technical specificity, without competent professional assistance. Yet, as aptly noted by the majority, the judge did not do even the minimum required by Rule 8.05. Moreover, as also observed by today’s opinion, Patton never clearly waived his right to counsel.

¶ 39. On remand, perhaps the State and the trial court will note that, if the present indictment is allowed to stand, and if Patton should be convicted under it again, our case law mandates that he be punished as if he were convicted of a misdemeanor. This Court has held that “if the indictment is ambiguous as to which statute applies, the defendant may only be punished under the statute with the lesser penalty.” Jenkins v. State, 888 So.2d 1171, 1174 (Miss.2004) (Weaver v. State, 497 So.2d 1089, 1092 (Miss.1986)). The indictment is ambiguous as to whether subsection (1) or subsection (2) of the false pretense statute applies. Accordingly, the trial court on remand must address whether Patton can be sentenced to any more than six months’ imprisonment in the county jail and to a fine no greater than $1,000. Miss Code Ann. § 97-19-39(1) (Rev.2006).

¶ 40. In sum, without competent legal assistance, Patton was ill-equipped to defend himself, and I agree with the majority that the case should be reversed based on the trial court’s failure to ensure that Patton knowingly and intelligently waived his right to counsel. However, the numerous defects in the indictment also require careful review and appropriate action by the State, the trial court, and Patton’s counsel.

DICKINSON, J., JOINS THIS OPINION. GRAVES, P.J., JOINS THIS OPINION IN PART.

      . U.S. Const, amend. VI.

        . E.g., Ariz. Const. art. 2, § 24; Ark. Const. art. 2, § 10; Colo. Const. art. 2, § 16; Conn. Const. art. 1, § 8; Del. Const. art. 1, § 7; Idaho Const. art. 1, § 13; Ill. Const. art. 1, § 8; Ind. Const. art. 1, § 13; Ky. Const. Bill of Rights, §11; Mo. Const. art. 1, § 18(a); Mont. Const. art. 2, § 24; Nev. Const. art. 1, § 8; N.H. Const. pt. 1, art. 15; N.M. Const. art. 2, § 14; N.Y. Const. art. 1, § 6; N.D. Const. art. 1, § 12; Ohio Const. art. 1, § 10; Okla. Const. art. 2, § 20; Ore. Const. art. 1, § 11; Pa. Const. art. 1, § 9; S.D. Const. art. 6, § 7; Tenn. Const. art. 1, § 9; Utah Const. art. I, § 12; Vt. Const., cl. 1 art. 10; Wis. Const, art. 1, § 7.

      . Miss. Const, art. 3, § 26 (1890). See also Gray v. State, 351 So.2d 1342, 1345 (Miss.1977).

      . Although Patton was strongly encouraged by the trial judge to obtain counsel, he never did. Instead, he prepared and filed numerous pretrial motions, filed a witness list for trial, cross-examined the State's witnesses, and called witnesses of his own.

      . URCCC 8.05.

      . This Court has held that, “unlike the discretionary nature of 'may,' the word 'shall' is a mandatory directive .... no discretion is afforded the trial judge.” Ivy v. Harrington, 644 So.2d 1218, 1221 (Miss.1994) (emphasis in original).

      .The term "state" appears to be an error in the rule. It is the court, not the state, that appoints counsel for indigent defendants.

      . This provision assumes the defendant is indigent. If not, the trial court must inform the defendant of the right to employ an attorney "to assist the defendant on procedure and protocol.”

      . The trial court did not comply with Rule 8.05's requirements, including the disclosures required by Rule 8.05(1) and (2), and the warnings required by Rule 8.05(3) and (4).

      . From these brief references, it appears that the trial court and Patton may have previously discussed Patton’s desire to represent himself. However, the record includes no transcript, or any other evidence, of the content of any such discussions.

      . The trial judge later corrected himself and stated that the trial date was August 28.

        . See also United States v. Gonzalez-Lopez, 548 U.S. 140, 149-50, 126 S.Ct. 2557, 2566, 165 L.Ed.2d 409 (2006); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); United States v. Chamberlain, 326 Fed.Appx. 640, 642 (3d Cir.2009) (Faret-ta-type error is structural, and requires automatic reversal); United States v. Forrester, 512 F.3d 500, 506-09 (9th Cir.2008) (harmless error analysis does not apply in context of Sixth Amendment violation); King v. Bobby, 433 F.3d 483, 490 (6th Cir.2006); United States v. Jones, 452 F.3d 223, 230 (3d Cir. 2006) (‘'When a waiver is deemed ineffective — i.e., not knowing, intelligent, and voluntary — there is no harmless error review, and the conviction must be vacated and the case remanded for a new trial.”); United States v. Barnett, 398 F.3d 516, 526 (6th Cir.2005); United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir.2004) (“On appeal, the burden of establishing the legality of the waiver is on the government.”); United States v. Arlt, 41 F.3d 516, 520-21 (9th Cir.1994) (“courts indulge in every reasonable presumption against waiver”) (quoting Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)); United States v. Mohawk, 20 F.3d 1480, 1484 (9th Cir.1994) (government's burden is “a heavy one").

      . An eyewitness testified he saw Gideon rob the coin machines in a pool hall and leave in a cab. A police officer testified he found Gideon shortly after the robbery with a large number of coins in his pocket.

      . In his second trial, with the assistance of counsel, Gideon was found not guilty. His counsel produced substantial evidence that the "eyewitness” from the first trial was probably the look-out for the actual perpetrator of the crime, and that the coins found in Gideon’s pocket were from a poker game.

      . We presume the court reporter meant “indictment" rather than "arraignment.”

      . URCCC 8.01.

      . See Mississippi Rules of Evidence 609(a)(1), which requires no evidence that the crime involved truth or veracity.

      . URCCC 4.06.

      . URCCC 9.06.

      . Before the 2003 amendment, Mississippi Code Section 97-19-39 did not explicitly distinguish between felony and misdemeanor false pretense offenses, although the statute did prescribe two sets of sentencing options, one of which, in practice, was applied to misdemeanors, and the other to felonies, depending on the way the offense was pled in the charging document. Even if a felony were pled, the trial court, quite properly, would sentence a convicted person as a mis-demeanant if the value proven did not meet the threshold prescribed for felonies. See Miss.Code Ann. § 99-19-17 (Repealed 2003).