source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, CONCURRING:

license: Public Domain

text:
    Cindy HENDERSON and John Henderson v. COPPER RIDGE HOMES, LLC, Richard Coney, Individually and First Bank, a Mississippi Banking Corporation
    NO. 2017-CA-00959-SCT
    Supreme Court of Mississippi.
    June 6, 2019
    ON MOTION FOR REHEARING
   BEAM, JUSTICE, FOR THE COURT:

¶1. The motion for rehearing filed by First Bank is denied. The previous opinions are withdrawn, and these opinions are substituted therefor.

¶2. This appeal stems from a breach-of-contract and tort case in the Pike County Circuit Court. John and Cindy Henderson filed suit against Copper Ridge Homes ("Copper Ridge") and First Bank regarding the construction of their new home in Magnolia, Mississippi. However, the case quickly spiraled into foreclosure proceedings upon the Hendersons' defaulting on their loan with First Bank. Instead, the judge granted First Bank's motion for judicial foreclosure.

¶3. After that, the Hendersons unsuccessfully moved multiple times to amend their complaint to add wrongful foreclosure.

The judge granted Copper Ridge's and First Bank's motions for summary judgment on all of the Hendersons' claims, finding that the claims, which arose from the alleged faulty construction of the house traveled with the title to the property. Because the Hendersons no longer owned any interest in the house and land, the judge found that they had lost their right to seek damages.

¶4. On appeal, the Hendersons argue that the trial court erred by granting First Bank a judicial foreclosure, by granting Copper Ridge's and First Bank's motions for summary judgment, and by denying their motions for leave to amend and to add wrongful foreclosure to their complaint. Finding that the trial court erred in granting Copper Ridge's and First Bank's post-foreclosure motions for dismissal of the Hendersons' claims, the Court affirms the grant of judicial foreclosure, reverses the grant of summary judgment to both parties, and remands the case to the trial court for determination of the Hendersons' claims.

FACTS AND PROCEDURAL HISTORY

¶5. The Hendersons and Copper Ridge entered into a new-home construction contract on May 9, 2014, in Magnolia, Mississippi. Shortly thereafter, on May 24, 2014, the Hendersons contracted with First Bank to finance the construction of their new home.

¶6. The Hendersons' complaint stems from a dispute over the price of the home and whether the contract was a fixed-price or cost-plus contract. The Hendersons contend that the contract was a fixed-price contract for $ 320,000, but Copper Ridge contends it was a cost-plus contract.

¶7. The construction contract contained a provision regarding the changes to the scope of work: any changes to be made had to be in writing. The record contains no evidence of any change orders. Yet the Hendersons received two invoices from Copper Ridge for overage charges in the amounts of $ 24,386.07 and $ 29,829.44.

¶8. The Hendersons further allege that First Bank, which exercised sole and exclusive control over the disbursements, had paid approximately $ 316,000 to Copper Ridge, leaving approximately $ 4,000 to complete the house under the fixed-price contract. John Henderson was asked to sign three backdated draw disbursements for First Bank. However, he refused to sign a final disbursement because the house was not close to being completed.

¶9. Dissatisfied with Copper Ridge and First Bank, the Hendersons filed their complaint on April 30, 2015, alleging breach-of-contract and tort claims against both parties. Shortly after filing their complaint, the Hendersons did not make their payment on May 23, 2015, as required by the promissory note. First Bank amended its initial answer on October 1, 2015, to include a counterclaim for judicial foreclosure. In response, the Hendersons filed a motion for leave to amend their complaint so they could add wrongful foreclosure, fraud, and breach of the duty of good faith and fair dealing to their complaint.

¶10. Because the foreclosure had not occurred at that time, the judge disallowed adding wrongful foreclosure, but he allowed the Hendersons to amend their complaint to include fraud and breach of the duty of good faith and fair dealing. At the summary-judgment hearing on judicial foreclosure, the trial court found that the Hendersons had not produced sufficient evidence to rebut the foreclosure; therefore, the judge granted First Bank's motion for an order of judicial foreclosure.

¶11. Following the judicial foreclosure, the Hendersons sought leave to amend their complaint to add wrongful foreclosure a second time. Simultaneously, Copper Ridge and First Bank sought to dismiss the Hendersons' claims altogether. The trial court denied the Hendersons' motion for leave to amend and granted Copper Ridge's and First Bank's post-foreclosure summary-judgment motions, finding that the claims arising out of the alleged faulty construction of the house traveled with the title to the property. In view of the foreclosure, the trial court found that because the Hendersons no longer owned any interest in the house and land, they had lost their right to seek damages.

¶12. A third time, the Hendersons moved for leave to amend their complaint to add wrongful foreclosure, and the trial judge denied the motion. Aggrieved, the Hendersons appeal the orders entered by the trial court.

LAW AND ANALYSIS

I. Standard of Review

¶13. We must review three rulings on appeal-two grants of summary judgment and a denial of a motion to amend the complaint.

¶14. "We review the grant or denial of a motion for summary judgment de novo, viewing the evidence 'in the light most favorable to the party against whom the motion has been made.' " Karpinsky v. Am. Nat'l Ins. Co. , 109 So. 3d 84, 88 (Miss. 2013) (quoting Pratt v. Gulfport-Biloxi Reg'l Airport Auth. , 97 So. 3d 68, 71 (Miss. 2012), overruled on other grounds by Wilcher v. Lincoln Cty. Bd. of Supervisors , 243 So. 3d 177, 188 (Miss. 2018) ).

Summary judgment is appropriate and "shall be rendered" 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 judgment as a matter of law."

Id. (quoting M.R.C.P. 56(c) ).

¶15. We review the denial of a motion to amend for abuse of discretion. Webb v. Braswell , 930 So. 2d 387, 392 (Miss. 2006).

II. First Grant of Summary Judgment: Judicial Foreclosure

¶16. First Bank first moved for summary judgment on its judicial foreclosure counterclaim. Tracking the summary judgment standard, First Bank argued there was no material fact dispute that the Hendersons had defaulted by not paying the construction loan and, consequently, First Bank was entitled to foreclosure as a matter of law. In support of its motion, the bank produced evidence of the promissory note that the Hendersons signed on May 23, 2014. The promissory note stated that the Hendersons had agreed to "pay this loan in one payment with all outstanding principal plus all accrued unpaid interest on May 23, 2015," and to pay "regular monthly payments of all accrued unpaid interest due as of each payment date beginning July 5, 2014, with all subsequent interest payments to be due on the same day of each month after that." First Bank also provided evidence of the Hendersons' security for the promissory note, the assignment of the deposit account, and a construction deed of trust with First Bank as lender and beneficiary. The promissory note was not paid by May 23, 2015, and as of September 28, 2015, the payoff on the deed of trust was $ 326,969.38.

¶17. In response to First Bank's motion, the Hendersons did not argue that the loan documents were erroneous; rather, they argued that First Bank's alleged material breach was an excuse or defense to their default. The Hendersons further contended that ruling on the motion for judicial foreclosure then would have been premature when their other claims had yet to be adjudicated.

¶18. At this point, the trial judge granted First Bank's request to foreclose, while expressly leaving open the Hendersons' ability to pursue claims for damages against First Bank based on, among other things, alleged breaches of the loan agreement. Because the Hendersons chose to sue for money damages, the judge assured them, "nothing about a ruling, nothing about granting summary judgment on the foreclosure, cuts off any damages of the Plaintiff. As a matter of fact, it may create damage arguments for the Plaintiff."

¶19. The judge's decision to foreclose first and litigate later perhaps complicated matters. In hindsight, it would have been more practical for the court to delay granting a judicial foreclosure until it had resolved the Hendersons' contract-based claims. That said, we cannot say the trial judge reversibly erred by allowing First Bank to foreclose based on the undisputed evidence of the Hendersons' failure to pay the promissory note or by finding that the Hendersons had elected to pursue a claim for money damages against the bank instead of retaining title.

III. Second Grant of Summary Judgment: Dismissal of All Claims

¶20. We do, however, find error in the judge's granting of First Bank's second motion for summary judgment, which Copper Ridge joined. In these motions, both defendants argued the judicial foreclosure cut off the Hendersons' right to pursue claims related to the alleged damage to the home.

¶21. First Bank argued it had purchased all of the Hendersons' claims in the foreclosure. Similarly, Copper Ridge contended that because First Bank held title to the property, First Bank held all rights and claims associated with repairs or completion costs, so the Hendersons had no standing to pursue damages for construction claims against Copper Ridge. The Hendersons responded by arguing that their claims were personal and belonged to them and not to the real property. As they saw it, they lost neither claims nor standing in the foreclosure.

¶22. The trial judge agreed with First Bank and Copper Ridge. After previously stating at the judicial foreclosure motion hearing that the Hendersons would not forfeit the opportunity to argue their other claims, the trial judge found the judicial foreclosure "cut off" the Hendersons' right to pursue their claims. Specifically, the trial judge ruled that "the claims arising out of the faulty construction of the house travel with the property" and that "no longer being in possession or owner[ship] of the property, those claims, to the extent that they exist, don't belong to Plaintiff anymore."

¶23. The Court finds that the trial court erred in finding that the claims traveled with the land and that the Hendersons thus lost rights to those claims. The deed of trust specifically stated that it conveys

all of Grantor's right, title, and interest in and to the following described real property , together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights and ditch rights; and all other rights, royalties and profits relating to the real property including without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Pike County, State of Mississippi.

(Emphasis added.)

¶24. In support of its theory, the bank relied on Citizens National Bank v. Dixieland Forest Products, LLC , in which the Court held that the bank had purchased the plaintiff's lender-liability causes of action against the bank and thus had a right to be substituted as the party in interest and to have the case dismissed. Citizens Nat'l Bank v. Dixieland Forest Prods., LLC , 935 So. 2d 1004, 1014 (Miss. 2006). This case is not analogous to Citizens , though, because the bank in Citizens did not foreclose; it purchased the claims in order to satisfy a debt. Id. at 1008. The bank purchased those choses in action and later filed a motion in the lender-liability suit (which it had purchased) to substitute itself as the party plaintiff and to have the suit dismissed, arguing that it owned the remaining claims in the suit and could rightfully dismiss them. Id. The trial court denied the bank's motion; however, this Court on appeal reversed the trial court's ruling in light of Maranatha Faith Center, Inc. v. Colonial Trust Co. , 904 So. 2d 1004 (Miss. 2004). Citizens , 935 So. 2d at 1009.

¶25. The Maranatha Court had held that the bank had purchased the plaintiff's lender-liability causes of action against the bank and was subsequently substituted as a party of interest with rights to dismiss the case. Id. (citing Maranatha , 904 So. 2d at 1009 ). In Maranatha , a creditor was granted a judgment against its debtor, and the judgment went unsatisfied for months. Id. (citing Maranatha , 904 So. 2d at 1005 ). The creditor levied execution on Maranatha's choses in action against another company and found that the chose in action could be sold under execution. Id. at 1010 (citing Maranatha , 904 So. 2d at 1005 ). Here, First Bank was not asserting that it had purchased the Hendersons' claims to satisfy any remaining deficiency on a judgment; it suggested that the claims either traveled with the title to the property by virtue of the foreclosure or that the Hendersons had lost their rights and the bank should be substituted as the real party in interest.

¶26. The deed of trust specifically conveys only the property identified in the deed of trust in the event of foreclosure. It did not convey the Hendersons' contractual or common-law rights related to either the promissory note or its separate contract with Copper Ridge. Therefore, the Court holds that the trial court erred in finding that the Hendersons' claims traveled with the title to the property upon foreclosure. Accordingly, we reverse the grant of summary judgment to Copper Ridge and First Bank.

IV. Denial of Motion to Amend the Complaint: Wrongful Foreclosure

¶27. As a final matter, the Hendersons argue the trial judge abused his discretion when he denied them leave to amend their complaint to add wrongful foreclosure.

¶28. Under Mississippi Rule of Civil Procedure 15(a), "a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires." M.R.C.P. 15(a). "While the trial court has discretion to allow an amendment and should do so freely under the proper circumstances, an amendment should not occur when to do so would prejudice [the] defendant." Webb , 930 So. 2d at 393 (quoting Hester v. Bandy , 627 So. 2d 833, 839 (Miss. 1993) ).

¶29. Because we affirm the first grant of summary judgment permitting the foreclosure, we question whether the Hendersons will meet the high bar set for a traditional wrongful-foreclosure claim. Nat'l Mortg. Co. v. Williams , 357 So. 2d 934, 935-36 (Miss. 1978) ("A mortgagor is entitled to recover damages for a wrongful or fraudulent foreclosure of the mortgage, as where an unlawful foreclosure is attempted solely from a malicious desire to injure the mortgagor; or he may recover damages where the foreclosure is conducted negligently or in bad faith, to his detriment ...." (quoting 59 C.J.S. Mortgages § 491, at 774 (1949) )). That said, because we are reversing the second grant of summary judgment, we see no reason why leave should not freely be given to the Hendersons to amend their complaint to add claims based on alleged damages arising from the foreclosure. However, any amendment should be limited to a claim for money damages only. Generally, a wrongful-foreclosure claimant "has the right to elect between (1) having the sale set aside and (2) recovering from the mortgagee the damages suffered as a result of the wrongful foreclosure." Id. at 936. But in this specific case, we find that allowing the Hendersons to amend their complaint to add a claim to set aside the foreclosure sale would be prejudicial to First Bank and thus is outside the discretionary authority of Rule 15(a). Webb , 930 So. 2d at 393. As the record reflects, before the foreclosure, the Hendersons elected to affirm the contract with First Bank and to pursue a claim for money damages. And nothing in our ruling should be construed as permitting the Hendersons to reverse course and now seek recision and reclamation of title.

CONCLUSION

¶30. Finding that the trial court erred in granting Copper Ridge's and First Bank's post-foreclosure summary-judgment motions on the Hendersons' claims, the Court affirms the grant of judicial foreclosure, reverses the grant of summary judgment to Copper Ridge and First Bank, and remands the case to the trial court for proceedings consistent with this opinion.

¶31. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

RANDOLPH, C.J., KING, P.J., COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., AND BEAM, J. GRIFFIS, J., NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE, CONCURRING:

¶32. I fully join the majority opinion. I write separately to explain my vote with regard to whether the trial court erred in granting First Bank's summary judgment motion for judicial foreclosure.

¶33. Cindy and John Henderson allege that First Bank "made unauthorized disbursements of the Henderson new home construction loan fund to Copper Ridge Homes[.]" After discovering those "unauthorized disbursements," the Hendersons chose not to make any more payments on the promissory note. Assuming that is true, First Bank was the first party to breach the contract. The Hendersons essentially argue that, since First Bank breached first, the trial court erred in granting the bank a judicial foreclosure. That argument is but partially correct and is not well developed.

¶34. Under the common law, "[a] party who has breached or failed to properly perform a contract has a responsibility and a right to cure the breach." Byrd Bros., LLC v. Herring , 861 So. 2d 1070, 1073 (Miss. Ct. App. 2003) (citing Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith , 523 So. 2d 324, 328 (Miss. 1988) ). The nonbreaching party must give the breaching party notice of the breach and, assuming the breach can be cured, "must give [the breaching party] a reasonable opportunity to cure the breach." Id. (citing Fitzner , 523 So. 2d at 328 ).

¶35. Additionally, there is a difference between a material and an immaterial breach.

A breach is material when there "is a failure to perform a substantial part of the contract or one or more of its essential terms or conditions, or if there is such a breach as substantially defeats its purpose," or when "the breach of the contract is such that upon a reasonable construction of the contract, it is shown that the parties considered the breach as vital to the existence of the contract[.]"

UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc. , 525 So. 2d 746, 756 (Miss. 1987) (citations omitted). "Where the breach is a material one, the non-breaching party has a right to end the contract[.]" Herring , 861 So. 2d at 1073 (citing UHS-Qualicare, Inc. , 525 So. 2d at 756 ). "[I]f the breach is immaterial or minor, the nonbreaching party is not relieved of its duty to perform but may still sue for damages." Jeffrey Jackson, Mary Miller, Donald Campbell, et al., Encyclopedia of Miss. Law § 21:35 (2d ed.), Westlaw (database updated Oct. 2018) (citing Timms v. Pearson , 876 So. 2d 1083 (Miss. Ct. App. 2004) ).

¶36. Based on these authorities, the Hendersons could have terminated the contract with First Bank if the bank's breach had been material and if they had given First Bank an opportunity to cure it. Had the Hendersons terminated the contract, the trial court's granting a judicial foreclosure to First Bank would have been erroneous. The issues of breach and the remedies available both to the Hendersons and to the bank would have to have been resolved before a judicial foreclosure could have occurred. But the record and arguments in this case are unclear with respect to this issue.

¶37. In their appellate brief, the Hendersons cite only one authority on this issue, Ferrara v. Walters , 919 So. 2d 876 (Miss. 2005), using that case to define a material breach. However, the Hendersons offered no argument or legal authorities to explain the reason First Bank's breach was material as opposed to minor. Nor does the record reflect whether First Bank was given an opportunity to cure its alleged breach. Lacking argument on these points, we cannot ascertain from the record whether the contract was terminated before the Hendersons defaulted on their obligations under the promissory note.

¶38. "Failure to cite relevant authority obviates the appellate court's obligation to review such issues." Bell v. State , 879 So. 2d 423, 434 (Miss. 2004) (citing Simmons v. State , 805 So. 2d 452, 487 (Miss. 2001) ). Additionally, when no "meaningful argument" is given in support of an issue on appeal, "the issue is considered waived." Randolph v. State , 852 So. 2d 547, 558 (Miss. 2002). See also , Doss v. State , 956 So. 2d 1100, 1102 (Miss. Ct. App. 2007). The Hendersons waived a full consideration of the issue they presented by failing to cite relevant authority and to provide meaningful argument in support of the same.

¶39. Lawyers must provide authority in support of their arguments when appealing to this Court. If an issue is one of first impression, attorneys should state as much and, to the greatest extent possible, provide supporting authority for their arguments. The Court recognizes that Mississippi jurisprudence has not addressed every legal issue. All the same, citation of some relevant authority-whether from other jurisdictions or secondary sources-is an important feature of appellate practice. Miss. R. App. P. 28(a)(7).

KING, P.J., AND BEAM, J., JOIN THIS OPINION.

      A cost-plus contract is "a contract in which payment is based on a fixed fee or a percentage added to the actual cost incurred." Cost-plus contract , Black's Law Dictionary (3d ed. 2001).

      We note the fact the Hendersons no longer own the home may impact the type of remedy or amount of damages available to them. But as we clarified in Business Communications, Inc. v. Banks , to prevail on a breach of contract claim, the plaintiff is required to prove by a preponderance of the evidence only "the existence of a valid and binding contract ... that the defendant has broken, or breached it[,]... without regard to the remedy sought or the actual damage sustained." Bus. Commc'ns, Inc. v. Banks , 90 So. 3d 1221, 1224-25 (Miss. 2012) (citation omitted)).

      "When reviewing an award of summary judgment, this Court ... will presume that all evidence in the non-movant's favor is true." Diogenes Editions, Inc. v. State ex rel. Bd. of Trustees of Insts. of Higher Learning , 700 So. 2d 316, 319 (Miss. 1997) (quoting Allen v. Mac Tools, Inc. , 671 So. 2d 636, 640 (Miss. 1996) ).

      The issue at hand does not fall into this category.


author: BARNES, J., FOR THE COURT:

text:
    Jeffrey Peyton HORN a/k/a Jeffery Horn a/k/a Jeffery P. Horn a/k/a Jep Horn, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01223-COA
    Court of Appeals of Mississippi.
    November 27, 2018 Rehearing Denied April 2, 2019
    ATTORNEY FOR APPELLANT: EDWARD D. LANCASTER
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, JACKSON
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. A Chickasaw County jury convicted Jeffrey Horn of aggravated assault with a deadly weapon; specifically, shooting his girlfriend in the thigh during a domestic altercation. The trial-court judge sentenced Horn to serve twenty years in the custody of the Mississippi Department of Corrections, with eight years suspended, twelve years to serve, and five years of postrelease supervision. He was also ordered to pay court costs, medical expenses, and restitution.

¶ 2. Horn appeals, arguing the trial court erred in not removing a "sleeping juror" from the jury panel and in granting a pre-arming jury instruction. Horn also argues a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, should have been granted due to a juror's relationship with the victim. Finally, Horn argues cumulative error warrants reversal. We find no merit to Horn's arguments and affirm his conviction and sentence.

FACTS

¶ 3. The shooting in this case stems from a relationship Horn had with the victim, Regenia Higginbotham. They began seeing each other in September 2014. Horn maintains their relationship was turbulent and mainly sexual, while Regenia claims they did not argue much and that she "truly loved" him. It was undisputed, however, that Regenia was frustrated because she wanted a more committed relationship than Horn was willing to offer and that Horn had a drinking problem.

¶ 4. Regenia claims their first physical altercation occurred at Horn's home in Houston, Mississippi, in November 2014, approximately four months before the instant assault. Horn claimed Regenia knew he was seeing other women, but she was in "constant contact" with him by telephone, text, or visits. Regenia had not seen Horn in a few days and decided to drive to his house and "check on him" unannounced. When Regenia knocked on the window of the utility-room door, Horn was inside entertaining a woman named Chelsea. Horn answered the door but was reluctant to let Regenia in. A scuffle ensued as Regenia attempted to come inside the house. According to Regenia, Horn grabbed her by the hair and placed her in a "choke-hold"; so, she took a broken window-pane glass shard and stabbed him in the ankle. According to Horn, Regenia went running through the house in an "absolute rage" screaming "where is she at, Jep?" Bleeding profusely, Horn walked through the house yelling at Regenia. He retrieved a nine-millimeter gun that was kept hidden under the mattress in his bedroom. Regenia-a nurse-satisfied no other woman was at Horn's house, calmed down and began tending to Horn's wound. Regenia began cleaning the blood from the floors with peroxide. Horn, angry, called 911. Horn told her she could leave before law enforcement arrived, but she declined. Law enforcement arrived and, unbeknownst to Horn, saw him holding a gun over Regenia's head while she cleaned the floor. Regenia was arrested for simple assault, but Horn later dropped the charges because Regenia would lose her nursing license. He claims Regenia called him four days later wanting to reconcile, but he adamantly declined.

¶ 5. However, in early 2015, the couple began communicating with each other again. By February, Horn stated they were having sex in his used-car business office, located in front of his house, several times a week during the lunch hour. On March 12, 2015, the sex- and alcohol-filled weekend that led to the instant assault began when, according to Regenia, Horn called and told her "to get her butt over [to his house]." Regenia complied. Both claimed to enjoy riding around the back roads of the area "looking at nature and stuff." Regenia would drive while Horn would drink. On this day, they took a long drive. Horn was drinking, but they were not arguing. According to Horn, they "had a lot of sex" that evening.

¶ 6. Horn testified the next day Regenia began "hammer[ing]" him "constantly" about a more exclusive relationship. They had "more sex" and drove around. Horn was drinking heavily. That afternoon, they ended up at "The Pony," a strip club in West Point, Mississippi. Regenia became irritated because Horn was frequently going to "the back" to enjoy lap dances. Later in the evening, Horn was removed from the strip club for slapping a dancer's buttocks during a lap dance. On the drive home, Horn testified that Regenia, apparently jealous from the lap dances, "just out of the blue ... tore me up" with her fingernails while she was driving. Regenia testified that Horn was the one who was angry-he was yelling and hitting the dash of the car while hitting and biting her right arm. Regenia admitted grabbing his face to make him quit hitting her. Photographs of Regenia's heavily bruised right arm and Horn's scratched face were entered into evidence. They returned to his home and calmed down. Later, Horn admitted to Regenia he did not remember hitting her arm in the car when she showed him her bruised arm.

¶ 7. On the morning of March 14, 2015, they woke up, had sex, and drove around back roads again until 8:00 p.m. According to Regenia, that day Horn consumed two pints of vodka, one-half of a case of beer, and approximately four Lime-a-ritas. According to Horn, Regenia had been "hammering" him more about "being together." Regenia testified that during a stop at the Dollar General store, Horn became paranoid that people were "coming after" him. Embarrassed, Regenia "fussed" at Horn about the incident. Horn became angry and told Regenia he was going to "whoop her butt" when they got home. Later, Horn admitted he did not remember going to the Dollar General store.

¶ 8. Upon arriving at Horn's house, Regenia said Horn suddenly pulled a gun on her from behind his back and pointed it at her. Initially, she headed toward the bathroom thinking she could escape from him there, but she realized he could shoot the door open and she would be trapped. Remembering there was a gun underneath the mattress in Horn's bedroom, she ran there instead. Regenia was uncertain if Horn was following her, but as she lifted the mattress she heard him at the doorway to the bedroom. The next thing Regenia knew she was shot in the thigh, and fell to the ground.

¶ 9. Horn's version of the shooting differed. Regenia was angry about the state of their relationship when they returned home. Horn was drinking a beer and smoking a cigarette in the utility room when Regenia entered, talking about "the same thing"-a more serious relationship. He told her "that's not what I want." Horn testified: "She quits talking. I see her. She opens the door. She walks into it, walks into the house, shuts the door like normal, and she takes off running." Describing her demeanor, Horn testified, "She's getting mad.... She actually puffs up ... but when she took off running, I knew where she was going ... to get that gun." He continued:

When I see her take off running, I get up; and I get my pistol; and I go into the house; and as I'm going into the house, I can see she made it through the dining area; and I see her turn down the hall. I follow her ... I'm walking down the hall fast; but as I get to where you can actually see into the bedroom, probably ... 6 or 7 feet before you actually get to the door frame, I mean she's right there. She's getting the gun. As I walk up to the door, she's got her back to me. She turns around, and she's pointing it directly at my head. I try to take cover .... I put mine on her. She's got the craziest look.... When I see those eyes, I actually lunge; and I shoot her.... I shoot her right in the middle.

He later testified "I popped her" because "she [was] fixing to kill me."

¶ 10. The bullet actually struck Regenia's left thigh. She collapsed in pain, dropping the pistol. Horn picked it up and put both guns on top of the washing machine in the utility room. Horn claimed he called 911 within seconds; Regenia claimed it was more like fifteen to thirty minutes. A recording of the 911 call, placed at 9:40 p.m. on March 14, 2015, was played for the jury and entered into evidence. Horn admitted a "woman's been shot," but was reluctant to give his name. He also exclaimed to Regenia "Do you not fu--ing see what you're doing to me?" He told the ambulance dispatcher that he had shot Regenia "in the gut." When asked if it was an accident he replied, "Well, I mean I wouldn't say that." Due to the bullet wound, Regenia's leg bone was shattered, and required two surgeries to insert a plate, rod, seven screws, and a wire into her thigh.

¶ 11. Horn was arrested and, once sober two days later, was interviewed by law enforcement. Horn admitted he meant to shoot Regenia in the leg to stop her, not her "gut." Horn maintained, however, that Regenia was "fixing to kill" him with the loaded nine-millimeter gun.

DISCUSSION

I. Alleged Sleeping Juror

¶ 12. Horn claims reversible error occurred when an alleged sleeping juror (number 23) was not removed from the jury panel. Horn argues the trial court's "denial" prejudiced him, depriving him of a fair trial and due process. We find, however, that Horn's counsel never objected or requested the alleged sleeping juror be removed; the only "denial" by the trial court related to Juror 23 was a challenge for cause.

¶ 13. Concern with Juror 23 began during voir dire, when the trial judge asked if anyone had worked the night before. Juror 23 responded affirmatively, stating she had worked from "6:30 to 3:30" and was usually asleep at this time of day. However, because she had not asked to be excused and she was not working that night, the trial judge let her choose if she wanted to remain in the jury pool or leave. She responded that she wanted to stay. When the prosecutor asked if jury duty would cause a problem with her work schedule tomorrow and the next day, she responded "I can do it."

¶ 14. After voir dire, during challenges for cause, Horn's counsel requested striking Juror 23, but the trial court denied his request.

BY [DEFENSE COUNSEL]: Judge, the only one we wanted to strike was number 23. It was the reason she stated that she had been up all night. She literally fell asleep out there a couple of times. I think for cause she couldn't sit here and actually hear the case the rest of the day. She was falling asleep during voir dire.
BY [THE PROSECUTOR]: I specifically asked her the next day and the next. She said she wants to stay.
BY THE COURT: I didn't notice her. Ms. Clerk?
BY THE CLERK: I didn't notice.
BY THE COURT: I am going to let her stay. That will be one you can use a challenge on if you would like to. She seemed awfully alert when I was talking to her anyway.

(Emphasis added). Later, when peremptory strikes were to be made, Horn's counsel did not move to strike Juror 23, even though he had only exercised two previous peremptory strikes.

BY THE COURT: That brings to the defense Juror 23....
BY [DEFENSE COUNSEL]: We're at 9 [jurors accepted].
BY THE COURT: You've got 10.
BY [DEFENSE COUNSEL]: I'm sorry. We would tender [Juror 23].

(Emphasis added). Defense counsel then exercised a third peremptory strike on the next juror.

¶ 15. During the first day of trial at 3:30 p.m., after three witnesses for the State had testified-the 911 operator and two county sheriff department officers who first arrived at the scene-defense counsel, outside of the presence of the jury, expressed concern about two jurors: "Your Honor, they[ ] are telling me that 20 and 23 have literally slept through the entire part of that testimony, and they tell [me] that when [the prosecutor] hit the microphone, one of them jumped up like she had been shot." There was more concern over Juror 20 than 23. The trial judge stated he had been observing Juror 20 but not Juror 23. He proceeded to give a detailed on-the-record description of Juror 20's behavior. He was not willing to call Juror 20 a sleeping juror yet, but he would continue to monitor her, and if it became appropriate to remove her, he would. As for Juror 23, the judge only stated he would try to pay more attention to her. The State concurred with defense counsel's descriptions of the two jurors but did not request their removal. The trial judge stated: "Regardless of whether I elect to move them into an alternate position, I'm not going to remove them from the jury panel." Defense counsel then asked if they could reconvene the next day because equipment had to be set up, as well as "due to the concern of the jurors." The trial judge agreed, and the court recessed for the day. No motion for removal or further mention was made of either juror being inattentive. Horn raised the issue in his motion for a JNOV or a new trial, which was denied. In the motion, Horn claimed that he "objected" to the alleged sleeping juror, but there is no such objection in the transcript. Counsel only made a challenge for cause that was denied.

¶ 16. The Mississippi Supreme Court has stated that a sleeping juror is a matter of "great concern" to the courts. Church v. Massey , 697 So.2d 407, 414 (Miss. 1997). "It is well founded that the trial judge has the discretion to excuse potential jurors for cause if the court believes the juror could not try the case impartially." Id. (quoting Burt v. State , 493 So.2d 1325, 1327 (Miss.1986) ). Further, "[t]his Court will not lightly interfere with a finding of fact made by the trial judge in a criminal case, and it will reverse only when it is satisfied that the trial court has erred in holding a juror competent ...." Id. (quoting Woodward v. State , 533 So.2d 418, 424 (Miss. 1988) ).

¶ 17. Horn's counsel did not make a motion to remove Juror 23, either during or at the end of trial. This Court has held that failure to make a motion for removal bars the defendant from raising the issue on appeal. Bush v. State , 222 So.3d 326, 334-35 (¶¶ 30-31) (Miss. Ct. App. 2017) (citing Jones v. State , 149 So.3d 1060, 1070 (¶ 55) (Miss. Ct. App. 2014) ). In Jones and Bush , similar situations occurred. In Jones , both defense counsel and the trial judge noticed one or two jurors sleeping more than once during the trial, and defense counsel suggested one of the jurors "may need to be replaced." Jones , 149 So.3d at 1068 (¶ 45). The trial court reserved ruling on the issue until the end of trial. Id. This Court stated the record did not show the juror slept through trial, but "perhaps" fell asleep during one afternoon; however, the trial judge watched her and the rest of the jury closely, and there were no further problems. This Court rejected the defendant's argument on appeal that the trial judge's failure to remove a juror "sua sponte" entitled him to a new trial. Id. at 1069 (¶ 48). This Court explained that "merely voicing concerns" over a sleeping juror was insufficient to preserve the issue for appeal; instead, an on-the-record motion to remove the juror was required. Id. at 1070 (¶ 53).

¶ 18. Likewise, in Bush , defense counsel did not request a sleeping juror be removed and replaced with an alternate. Even so, on appeal the defendant argued he was entitled to a new trial. Bush , 222 So.3d at 334 (¶ 28). This Court found the defendant waived the issue by failing to request relief from the trial court. Id. at 334-35 (¶ 31).

¶ 19. Here, the facts are similar, and the result is the same. Since Horn failed to request Juror 23's removal, the issue is waived. Notwithstanding the waiver, the record does not indicate that Juror 23 had any further problems staying awake. The record only suggests that the juror "might" have been sleeping during "part" of one officer's testimony. There is no evidence that Juror 23 was incompetent or that Horn suffered any prejudice.

¶ 20. Further, if we analyze Horn's argument, as the State suggests, as a denial of a challenge for cause or waiver of a peremptory strike, the issue is also without merit.

¶ 21. Our Court reviews challenges for cause by the following standard:

Generally, a juror removed on a challenge for cause is one against whom a cause for challenge exists that would likely affect his competency or his impartiality at trial. But, the selection of jurors is a judgment call peculiarly within the province of the circuit judge, and one we will not on appeal second guess in the absence of a record showing a clear abuse of discretion. The trial court is entitled to deference when its for cause strikes are reviewed because of its ability to evaluate the demeanor of potential jurors ....

Lomax v. State , 220 So.3d 211, 213 (¶ 3) (Miss. Ct. App. 2017) (citations and internal quotation marks omitted). Additionally, "before a claim related to a denial of a challenge for cause may be valid, (1) the defendant must have exhausted all of his peremptory challenges and (2) an incompetent juror must be forced by the trial court's erroneous ruling to sit on the jury." Id. at (¶ 7) (quoting Burgess v. State , 178 So.3d 1266, 1276 (¶ 28) (Miss. 2015) ).

¶ 22. The trial court did not abuse its discretion in refusing to strike Juror 23 for cause. When questioned by the trial judge, the juror stated she would not work that night and could serve. The fact she worked the night before did not affect her competency-witnesses' testimony started the next day. Further, the trial judge told Horn's counsel he could use one of his peremptory challenges to strike her if desired, but he did not. Because Horn had not exhausted all of his peremptory challenges when presented with Juror 23, we cannot find the trial court abused its discretion in allowing Juror 23 to sit on the jury.

II. Jury Instruction S-3

¶ 23. Horn argues that the granting of jury instruction S-3, a pre-arming instruction, over the defense's objection, was error because it deprived him of claiming self-defense.

¶ 24. The decision to give or refuse jury instructions is within the discretion of the trial court, and the well-settled standard of review is abuse of discretion. Moody v. State , 202 So.3d 1235, 1236-37 (¶ 7) (Miss. 2016). "Jury instructions must fairly announce the law of the case and not create an injustice against the defendant." Davis v. State , 18 So.3d 842, 847 (¶ 14) (Miss. 2009). "A criminal defendant is entitled to present his defense to the finder of fact." Keys v. State , 635 So.2d 845, 848 (Miss. 1994).

¶ 25. Jury instruction S-3 states:

The Court instructs the jury that if a person provokes a difficulty, arming himself in advance, and intending, if necessary, to use his weapon and overcome his adversary, he becomes the aggressor and deprives himself of the right of self defense.
If you believe from the evidence beyond a reasonable doubt that the Defendant, Jeffrey Horn, provoked a difficulty with the alleged victim after having armed himself with a deadly weapon in advance of pursuing Ms. Higginbotham through the house into the bedroom and intended, if necessary, to use such weapon and overcome Ms. Higginbotham, then Defendant cannot claim self defense.

The defense objected to S-3, and a discussion ensued. The State maintained it was a correct statement of the law. The trial judge stated he wanted to give an instruction on this theory of the law, and he wanted the parties to agree on the facts in the second paragraph of the instruction-that Horn pursued Regenia down the hall. The defense did not object to that portion, and the instruction was given. Other jury instructions given included aggravated assault, self-defense, and the definition of "reasonableness."

¶ 26. During deliberations, the jury sent the following note to the trial judge: "If Mr. Horn armed himself could he have been arming himself to defend himself and still be innocent instead of calling it provoking the situation?" After a discussion with both counsel, the trial court declined to clarify the instruction.

¶ 27. The purpose of a pre-arming instruction is "to inform the fact-finder that one cannot arm himself in advance when he is not in any physical danger, go forth and provoke a confrontation or difficulty with another, shoot the other, and then attempt to hide behind a smoke screen of self-defense." Hart v. State , 637 So.2d 1329, 1337 (Miss. 1994). However, the Mississippi Supreme Court has cautioned that pre-arming instructions only be used in "extremely rare incidents where the instruction [i]s supported by the evidence" because this type of instruction can prevent the jury from considering the defendant's theory of the case on self-defense. Dew v. State , 748 So.2d 751, 754 (¶ 19) (Miss. 1999).

¶ 28. Horn claims that the pre-arming instruction nullified his self-defense instruction. In the numerous cases where a conviction has been reversed for a pre-arming instruction, there is usually no evidentiary basis, or an ambiguity, that the defendant pursued the victim, or no evidence the defendant intended to provoke a confrontation. See Jobe v. State , 97 So.3d 1267, 1270 (¶ 12) (Miss. Ct. App. 2012) (discussing facts of cases where self-arming instruction has been approved or denied). However, in the rare instances where this evidence is present, the Mississippi Supreme Court and this Court have approved a self-arming instruction. See Hart , 637 So.2d at 1337 ;

Hall v. State , 420 So.2d 1381, 1385 (Miss. 1982) ; Reid v. State , 301 So.2d 561, 564 (Miss. 1974) ; Jobe , 97 So.3d at 1270 (¶ 14).

¶ 29. Here, the pre-arming instruction was supported by the evidence, including the defendant's own testimony. The testimony of both parties shows Horn was in no physical danger from Regenia, and she was not provoking him, when Horn armed himself by grabbing a gun from on top of the cabinet in the utility room. Regenia testified that he suddenly "pulled the gun from his back" on her, and then she ran toward the back of the house. Additionally, Horn testified that he was sitting in a chair in the utility room when Regenia became angry and ran to the back of the house. Horn explained that he grabbed his gun because he "knew" she was running to the back of the house to get the gun from under the mattress. But she did not provoke him. In both scenarios, Regenia was running down the hall unarmed, and Horn was following her, armed. Further, Horn never abandoned his pursuit of Regenia down the hall or withdrew from the encounter, but instead he followed her with his gun.

¶ 30. Horn's theory of self-defense was not preempted. The jury was given a self-defense instruction, but rejected this theory. The trial court did not abuse its discretion in granting the pre-arming instruction.

III. Juror No. 1's Relationship to the Victim

¶ 31. Horn argues he is entitled to a new trial because during voir dire Juror 1 failed to inform the trial judge that his wife was Regenia's supervisor at Trace Regional Hospital in Houston, Mississippi.

¶ 32. During voir dire, when clearly and specifically asked by the trial judge, none of the potential jurors admitted they had any knowledge of, affiliation or social or family connection with, the alleged victim. After trial, during the hearing on Horn's motion for a JNOV or a new trial, Horn's sister, Shannon Carter, testified that Juror 1's wife was Regenia's direct supervisor at the hospital where Regenia worked. Carter also worked at that hospital, and she submitted an affidavit about the relationship, which was attached to the post-trial motion. No affidavit or testimony was ever presented from Juror 1 or his wife. Carter testified she was not present during voir dire, and there is no information in the record about when the relationship was discovered.

¶ 33. The Mississippi Supreme Court has articulated the analysis for whether a new trial should be granted in this situation:

[W]here ... a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court's determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror's failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered.

Sewell v. State , 721 So.2d 129, 137 (¶ 43) (Miss. 1998) (quoting Odom v. State , 355 So.2d 1381, 1383 (Miss. 1978) ). Further, "no precise formula exists for answering these three questions ... the trial court must make an ad hoc determination based on the facts before it." Id.

¶ 34. Here, the first two prongs are met-the inquiries were relevant to voir dire and unambiguous; however, whether the juror had substantial knowledge of the information is questionable. The trial court did not enter a detailed order analyzing the issues of Horn's post-trial motion, but did make findings from the bench at the hearing. The judge stated:

I'm going to assume that at that point in the proceedings somebody had said that the victim in this case worked at the Houston hospital. I don't know that to be the case. When that question was asked, do you know the defendant in this case; do you know the alleged victim in this case, I don't know at that point in response to those questions whether or not juror number one even knew the hospital was in issue at that time; so at this point I'm going to find that that's not a valid grounds for a new trial or verdict of acquittal notwithstanding the verdict.

While the judge did not have the transcript before him in making this ruling, our review of the voir-dire transcript confirms that at the time the judge asked the jurors whether they knew the victim, her place of employment had not been mentioned. Later during voir dire, when the prosecutor asked if anybody knew Regenia, he stated she was a nurse at Trace Family Clinic. While Juror 1 did not respond, there is no information in the record that he knew Regenia. Moreover, Carter's affidavit merely represented that the relationship existed between Regenia and the wife of Juror1; it did not allege that the juror knew her or knew of his wife's relationship with her. Nor does it appear that substantial prejudice could be inferred from the juror's failure to respond. Therefore, the trial court did not err in finding Horn had a fair and impartial jury, and he is not entitled to a new trial.

IV. Cumulative Error

¶ 35. Lastly, Horn argues the errors that occurred in his case, when taken together, warrant reversal. The cumulative-error doctrine states: "[I]ndividual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial." Ross v. State , 954 So.2d 968, 1018 (¶ 138) (Miss. 2007). "However, where there is no error in part, there can be no reversible error to the whole." Harris v. State , 970 So.2d 151, 157 (¶ 24) (Miss. 2007). Since we have found the trial court committed no individual errors, there is no cumulative error.

¶ 36. Based upon the foregoing, we affirm Horn's conviction and sentence.

¶ 37. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Chelsea was hiding in a closet, unbeknownst to Regenia.

      Horn claimed Regenia "loved" to go there; Regenia stated she felt "uncomfortable being there."

      It is unclear from the record who "they" is, but apparently counsel did not have first hand knowledge of the jurors' sleeping.


author: TINDELL, J., FOR THE COURT:

text:
    Cortez Deontae BASS a/k/a Tez a/k/a Cortez Bass, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01009-COA
    Court of Appeals of Mississippi.
    December 11, 2018 Rehearing Denied March 12, 2019
    ATTORNEYS FOR APPELLANT: CORTEZ DEONTAE BASS (PRO SE), HEATHER MARIE ABY, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE, JACKSON
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. A Tunica County grand jury indicted Cortez Bass and Dedrick Small for the first-degree (deliberate-design) murder of Donterrius Jackson with a firearm enhancement. See Miss. Code Ann. §§ 97-3-19(1)(a) (Rev. 2014) & 97-37-37(1) (Rev. 2014). The Tunica County Circuit Court later granted Small's motion to sever his trial. Following the completion of Bass's trial, the jury found Bass guilty of first-degree murder. Because Bass was seventeen when he committed the crime, the circuit court held a sentencing hearing to determine whether he was entitled to parole eligibility under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Finding that Bass was not entitled to any relief, the circuit court sentenced him to life without eligibility for parole (LWOP) for the murder conviction and to a consecutive five-year sentence for the firearm enhancement, with both sentences to be served in the custody of the Mississippi Department of Corrections (MDOC).

¶ 2. On appeal, Bass argues the following: (1) actions by law-enforcement officers violated his right to be free from self-incrimination; (2) the circuit court erred by failing to grant a mistrial; (3) the State erroneously denied him access to Jackson's criminal history; (4) the State committed prosecutorial misconduct; (5) the verdict was against the weight of the evidence; (6) the circuit court erred by denying his request for expert-assistance funds for mitigation investigation; (7) the circuit court's imposition of his sentence violated his constitutional right to a jury sentencing; and (8) the circuit court erred by sentencing him to LWOP.

¶ 3. Finding no error, we affirm the judgment of Bass's conviction and sentence.

FACTS

¶ 4. On the afternoon of March 10, 2014, Jackson and his friend, George Anderson, encountered Bass, Small, and Bass's cousin, Kendrick, at an intersection in Tunica. An argument erupted between the two groups. Seven witnesses testified that the altercation ended with Bass fatally shooting Jackson.

¶ 5. Prior to the shooting, witnesses testified that Jackson and Anderson were walking down Cotton Street when Bass drove by and tried to hit Jackson with his car. After missing Jackson, Bass drove away, and Jackson and Anderson entered a nearby house. Later that day, Jackson and Anderson exited the house and were standing near the Cottonland Village Apartments at the intersection of Beatline Road and Cotton Street, when Bass, Small, and Kendrick approached from the other side of the street. Although the two groups remained on their respective sides of the street, Bass and Jackson began to argue with each other.

¶ 6. At Bass's trial, multiple witnesses testified that Bass and Jackson initially appeared to be headed toward a fistfight. According to one witness, however, Bass claimed just prior to the shooting that he was going to kill Jackson. Witness testimony varied as to whether or not Bass obtained the gun he used from Small. Witness testimony also varied as to whether Bass fired the gun once or twice. Multiple witnesses for the State testified, however, that they never saw Jackson pull out a weapon and that he was trying to run away when Bass shot him. The medical examiner who performed Jackson's autopsy testified that Jackson died from a gunshot wound to the back of his head.

¶ 7. Jackson's younger brother, Kendarrius, testified that he witnessed Bass shoot his brother from the upstairs bedroom of his family's apartment. Kendarrius further testified that, after seeing the shooting, he retrieved a gun from a closet in the apartment and ran outside. Kendarrius stated that he no longer saw Bass in the area but that a crowd had gathered around his brother's body. As a result, Kendarrius testified that he shot the gun into the air a few times to disperse the crowd. Kendarrius identified State's Exhibit S-11, a Davis P-380 semiautomatic handgun, as the weapon he fired into the air.

¶ 8. Contrary to the testimony of the State's witnesses, Bass and his cousin, Kendrick, testified that Anderson escalated the altercation between the groups by saying, "Let's pistol play." Both Bass and Kendrick testified that Jackson then pulled out a gun and pointed it at them. In response, Bass and Kendrick stated that Small pulled out a gun of his own, a nine-millimeter handgun, which Bass snatched from Small. Bass's and Kendrick's testimonies differed as to what happened next. Bass testified that he fired the gun once and that he, Kendrick, and Small immediately ran back to his home on Cotton Street. As he was running, Bass testified that he saw Jackson's brother, Kendarrius, arrive at the street corner and pick up Jackson's gun. Kendrick testified, however, that before Bass fired his shot, Kendarrius ran out of an apartment with a gun and started shooting at them. Despite this discrepancy, both Bass and Kendrick testified that Kendarrius followed them down the street toward Bass's house and shot in their direction.

¶ 9. The State's witnesses corroborated that Bass, Kendrick, and Small ran to Bass's home on Cotton Street after the shooting. One witness testified, however, that as Bass ran by her he said, "I hope I killed that bitch." Lieutenant Dennis Hopson testified that he arrived at Bass's home shortly after the shooting to take Bass into custody. According to Lieutenant Hopson, when Bass exited his home, his hands were wet and sudsy as though he had just washed them. Captain James Smith, who also responded to the dispatch about the shooting, testified that he performed a gunshot-residue test on Bass. The forensic scientist who analyzed the test results stated that, although thoroughly washing one's hands can remove gunshot residue, the test performed on Bass showed Bass still had particles indicative of gunshot residue on both his hands. The forensic scientist further stated that no gunshot residue was found on Jackson's hands. Emergency responders did, however, discover a .32-caliber handgun in Jackson's pocket after the shooting. The emergency responder who found the weapon testified that Jackson was wearing two pairs of pants and that the gun was tucked into the front right pocket of Jackson's inner pair of pants.

¶ 10. Captain Smith testified that he also collected evidence from the crime scene. Captain Smith stated that he found four .380-caliber shells in the front yard of the home on Cotton Street where the shooting occurred. He also found one nine-millimeter shell casing in the middle of the road.

¶ 11. After being taken into custody, Bass gave a recorded statement to law-enforcement officers. Investigator James Clark testified that Bass voluntarily waived his Miranda rights and spoke to both him and Captain Rico Harris. The State called Investigator Clark as a rebuttal witness to testify about the differences between Bass's pretrial statement and his trial testimony. Investigator Clark stated that, during their interview, Bass claimed Jackson pulled out a gun and shot at him twice. Bass then told the officers that he pulled out his own gun, which he had brought with him, and shot back at Jackson once or twice. Unlike during his trial testimony, Bass denied during the pretrial interview that Small gave him the gun. In fact, Investigator Clark testified Bass said Small had nothing to do with the gun. Bass instead told the officers that he had bought the gun from a man for $100 and that he kept the weapon under his mattress.

¶ 12. After considering all the evidence and testimony, the jury found Bass guilty of first-degree murder with a firearm enhancement. Prior to sentencing, Bass filed multiple motions, including a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial; a motion for sentencing pursuant to Miller ; and motions seeking expert-assistance funds for a psychologist and a mitigation investigator. The circuit court granted Bass's request for funds for a psychologist but denied the requested funds for a mitigation investigator. The circuit court also denied Bass's motion for a JNOV or, in the alternative, a new trial. After considering the evidence presented at Bass's sentencing hearing, the circuit court sentenced Bass to LWOP for first-degree murder and to a consecutive five-year sentence for the firearm enhancement, with both sentences to be served in MDOC's custody.

¶ 13. Aggrieved, Bass appeals.

DISCUSSION

I. Right against Self-Incrimination

¶ 14. For the first time on appeal, Bass contends that law-enforcement officers violated his right against self-incrimination. Specifically, Bass asserts that, because he was only seventeen years old at the time of the crime, Investigator Clark and Captain Harris should never have accepted his Miranda -rights waiver or questioned him without permission from a parent or guardian. Because Bass never raised this objection before the circuit court, he is procedurally barred from doing so now. See Morton v. State , 246 So.3d 895, 899 (¶ 35) (Miss. Ct. App. 2017). Notwithstanding the procedural bar, we find Bass's argument lacks merit.

¶ 15. The Mississippi Supreme Court has previously held "that minors can be treated as adults in such circumstances and are allowed to waive their rights and confess to a crime." Eskridge v. State , 765 So.2d 508, 511 (¶ 16) (Miss. 2000) (citing Clemons v. State , 733 So.2d 266, 269 (¶¶ 8-12) (Miss. 1999) ); see also Woodham v. State , 779 So.2d 158, 162 (¶ 19) (Miss. 2001) (finding under the totality of the circumstances that a sixteen-year-old's confession was admissible, even without an attorney present at the time he confessed, because the record indicated the defendant understood both his right against self-incrimination and the consequences of waiving the right). In Clemons , a fourteen-year-old boy confessed to fatally shooting several people. Clemons , 733 So.2d at 268 (¶ 5). On appeal, Clemons argued "that, because neither of his parents were present during his interrogation, his understanding of his rights was diminished and the interrogation was coercive." Id. at 269 (¶ 13). However, the supreme court affirmed the admissibility of the confession and held Clemons was not entitled to have a parent present during his interrogation. Id. at 269-70 (¶¶ 13-14).

¶ 16. In the present case, the State called Investigator Clark to testify on rebuttal about the discrepancies between Bass's pretrial statement and his trial testimony. Under a belief that the State planned to admit into evidence part of Bass's recorded interview, the defense asked the circuit court to restrict the admission to those interview portions that specifically rebutted Bass's trial testimony. The State informed the circuit court, however, that it only planned to have Investigator Clark testify about the interview and had no intention to introduce the actual recording into evidence. The defense raised no objections.

¶ 17. According to Investigator Clark, he and Captain Harris explained the Miranda rights to Bass, and Bass indicated he understood his rights before voluntarily waiving them. Investigator Clark further stated on cross-examination that Bass did not appear to be in an excited state of mind at the time he waived his Miranda rights and gave his statement. Bass himself confirmed during his testimony that Investigator Clark and Captain Harris explained his Miranda rights to him and that he still wanted to give a statement about the shooting. Therefore, based on our review of the evidence and relevant caselaw, we find no merit to Bass's assignment of error.

II. Motion for Mistrial

¶ 18. Bass argues the circuit court erred by failing to grant a mistrial. First, Bass asserts the circuit court should have granted a mistrial due to media coverage of the trial. Second, Bass contends the circuit court erred by not declaring a mistrial after learning the jury may have been "contaminated by a person entering the jury room [who] was not a member of the empaneled jury ...." We review the circuit court's denial of Bass's motion for a mistrial for abuse of discretion. See Williams v. State , 240 So.3d 436, 443 (¶ 15) (Miss. Ct. App. 2017). "The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant's case." Id. (quoting Rayner v. State , 186 So.3d 881, 893 (¶ 49) (Miss. Ct. App. 2015) ).

¶ 19. Prior to opening statements, Bass's attorney informed the circuit court that the "case and some of the alleged facts ... were covered fairly heavily on the Memphis[-]area news this morning." The defense did not move for a mistrial but asked the circuit court to inquire whether the jurors had seen or heard anything about the case in the media. The defense further requested that the circuit court instruct the jurors to refrain from watching the news during the trial.

¶ 20. Just minutes later, the circuit court informed the trial attorneys that a non-juror had entered the jury room. The circuit court explained that a member of the venire had failed to find out whether he had been selected for the jury and had instead shown up for the trial and entered the jury room. Upon learning this information, the defense moved for a mistrial on the basis of jury contamination. The circuit court noted that it was not particularly concerned about the incident because no proof had yet been presented in Bass's trial. The circuit court reserved its ruling, however, until after questioning the jurors.

¶ 21. Once the jurors entered the courtroom, the circuit court inquired whether they had seen the Memphis-area media coverage of the trial. None of the jurors indicated they had seen the coverage. The circuit court then instructed the jurors to refrain from watching the news for the duration of the trial. Next, the circuit court asked whether the jurors had "any type of conversation at all or anything about this case or anything relating to this case" with the venire member not empaneled as a juror. Again, the jurors indicated they had not. Because the parties had not yet presented any evidence and the jurors indicated they had neither seen the media coverage nor spoken with the non-juror about the case, the circuit court denied the defense's motion for a mistrial.

¶ 22. The following day of trial, the defense renewed its motion for a mistrial on the ground there had been additional media coverage of the trial and that such coverage prejudiced Bass. Bass's attorney admitted, however, that he had no evidence any jurors had actually observed the media coverage. When the circuit court subsequently questioned the jurors about the additional media coverage, they all responded that they had not seen the news. As a result, the circuit court again denied the defense's mistrial motion.

¶ 23. "[W]henever there is a question of outside influencing of a jury, the trial judge himself ought to examine the jury carefully to ensure that the jury's deliberations are based on the evidence produced at trial and not extraneous matters." Wells v. State , 698 So.2d 497, 505 (Miss. 1997). As the record reflects, several times throughout the trial the circuit court questioned the jury to determine if it had been affected by any outside influences. At the time of the defense's first mistrial motion on the basis of jury contamination, the circuit court correctly noted that no proof had yet been presented in the case and that all the jurors indicated they had not spoken to the non-juror about case-related matters. In addition, both times the circuit court questioned the jurors about whether they had seen the media coverage of the trial, they indicated they had not.

¶ 24. "We must assume that jurors answer truthfully when polled, else the entire polling procedure is rendered pointless." Id. Based on our review of relevant caselaw and the trial transcript, we find the circuit court's actions in questioning the jury and reminding them to avoid watching the news sufficiently ensured that Bass received a fair and impartial trial not contaminated by outside influences. We therefore find no abuse of discretion in the circuit court's denial of the defense's motion for a mistrial.

III. Jackson's Criminal History

¶ 25. Bass also contends for the first time on appeal that the State violated his constitutional rights by failing to provide him with Jackson's juvenile record. Because Bass never raised this issue before the circuit court, his argument is procedurally barred. See Britton v. State , 241 So.3d 639, 645 (¶ 22) (Miss. Ct. App. 2018). Notwithstanding the procedural bar, we find no evidence to show that the defense ever requested Jackson's juvenile record or that the State in any way suppressed such a document. Further, even had the defense sought and obtained Jackson's juvenile record, Bass raises no admissible purpose for the record's introduction. See M.R.E. 404 (discussing the admissible purposes for the introduction of evidence of a victim's character or prior bad acts). Without providing further detail or reasoning, Bass simply asserts the outcome of his trial may have been different had the jury been presented with evidence of Jackson's criminal history. Upon review, we find Bass's argument fails to overcome the procedural bar and lacks merit.

IV. Prosecutorial Misconduct

¶ 26. Bass further claims the State committed several incidences of prosecutorial misconduct. According to Bass, a majority of the State's witnesses presented perjured testimony. Bass claims that law-enforcement officers knowingly used this false testimony to arrest him and that the State knowingly presented the testimony at trial. In addition, Bass asserts the State withheld from him that it paid the forensic pathologist for his expert trial testimony.

¶ 27. Not only did Bass's trial attorney thoroughly cross-examine each of the State's witnesses, but the defense never raised these objections before the circuit court. See Britton , 241 So.3d at 645 (¶ 22). Furthermore, Bass has failed on appeal to direct this Court to any record evidence or relevant legal authority that supports his claims. See M.R.A.P. 28(a)(7) (providing that an appellant's brief must contain the appellant's contentions "with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on"); Satterfield v. State , 158 So.3d 380, 383 (¶ 6) (Miss. Ct. App. 2015) (finding that an appellant's failure to affirmatively demonstrate error in the trial court waives the issue on appeal). As a result, we find these arguments are procedurally barred.

V. Weight of the Evidence

¶ 28. Bass argues the jury's verdict was against the overwhelming weight of the evidence because the State failed to prove he had the "deliberate design" necessary for first-degree murder. When reviewing a challenge to the weight of the evidence, this Court views the evidence in the light most favorable to the verdict. Hall v. State , 245 So.3d 396, 403 (¶ 30) (Miss. 2018). We will only reverse where the verdict "is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. Where conflicts arise in the evidence, the jury acts as the sole judge of witnesses' credibility and determines "the weight and worth of their testimony." Little v. State , 233 So.3d 288, 292 (¶ 20) (Miss. 2017).

¶ 29. The jury convicted Bass under section 97-3-19(1)(a), which defines first-degree murder as "[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being ...." Thus, the State was required to prove Bass: (1) killed Jackson; (2) without authority of law; and (3) with deliberate design to effect Jackson's death. See Hall , 245 So.3d at 402 (¶ 22). In previously discussing deliberate design, this Court stated:

A person can quickly form the deliberate design to kill a person; perhaps only moments before the act. Deliberate design may be inferred through the intentional use of any instrument which, based on its manner of use, is calculated to produce death or serious bodily injury. Furthermore, intent may be proven by showing the acts of the person involved at the time, and the circumstances surrounding the incident. Ultimately, intent is a question of fact gleaned by the jury.

Crump v. State , 237 So.3d 808, 819 (¶ 37) (Miss. Ct. App. 2017) (citations and internal quotation marks omitted).

¶ 30. Despite Bass's contentions, the State presented evidence from which a jury could conclude that Bass acted with deliberate design to effect Jackson's death. The jury heard testimony that, shortly before the shooting, Bass attempted to hit Jackson with his car and then announced that he was going to kill Jackson. Although witness testimony varied as to how Bass obtained the gun he used, seven of the State's witnesses stated they watched Bass shoot Jackson in the back of the head. Multiple witnesses further testified they never saw Jackson with a gun and that he was actually trying to run away when Bass shot him. In addition, one of the State's witness testified that, as Bass ran past her after the shooting, he said, "I hope I killed that bitch."

¶ 31. As demonstrated by its verdict, the jury clearly accepted the State's evidence and the version of events presented by the State's witnesses. Viewing the evidence in the light most favorable to the verdict, we cannot say that upholding Bass's conviction fails to sanction an unconscionable injustice. See Hall , 245 So.3d at 403 (¶ 30). We therefore find this assignment of error lacks merit.

VI. Expert Funding for Mitigation Investigation

¶ 32. Prior to his sentencing hearing, Bass sought expert funding for a mitigation investigator and a psychologist. The circuit court granted the funding for a psychologist but denied it for a mitigation investigator. On appeal, Bass argues the circuit court's decision prevented him from presenting all aspects of his defense during sentencing. Bass further contends the circuit court erred because he was entitled to the same expert assistance during sentencing as a defendant facing the death penalty in a capital-murder case. "Whether an indigent defendant must be provided expert funding is decided on a case-by-case basis, and we review this issue for an abuse of discretion." Barnett v. State , 192 So.3d 1033, 1038 (¶ 17) (Miss. Ct. App. 2015) (quoting Barksdale v. State , 176 So.3d 108, 111-12 (¶ 18) (Miss. Ct. App. 2015) ).

¶ 33. Our caselaw recognizes the responsibility States bear to ensure defendants receive a fair opportunity to present their defense, including receiving expert assistance when the denial of such assistance would render a trial fundamentally unfair. Barksdale , 176 So.3d at 111-12 (¶ 18). Even so, courts are not required to provide an expert every time an indigent defendant requests one. Id. at 112 (¶ 18). "Rather, an indigent's right to defense expenses is conditioned upon a showing that such expenses are needed to prepare and present an adequate defense." Barnett , 192 So.3d at 1039 (¶ 18) (internal quotation marks omitted). Defendants must establish a substantial need for expert assistance and provide concrete reasons for requiring an expert. Id.

¶ 34. Even in relation to a capital-murder case, the supreme court has upheld the denial of expert assistance where the defendant failed to show the necessity for such funding. Crawford v. State , 218 So.3d 1142, 1153 (¶¶ 26-27) (Miss. 2016). In Crawford , the defendant argued in a successive postconviction relief (PCR) petition that his first PCR attorney failed to obtain needed expert assistance. Id. at 1146-47 (¶ 2). Crawford's first PCR attorney requested that the trial court grant expert funding for a mitigation investigator to thoroughly investigate evidence that should have been presented at the sentencing phase of Crawford's death-penalty case. Id. at 1152 (¶ 22). After the trial court denied the requested funding, Crawford's first PCR attorney filed a petition for an interlocutory appeal with the supreme court. Id. at 1153 (¶ 26). A three-justice panel denied the petition after concluding "that Crawford had failed to show that the appointment of a mitigation investigator ... was necessary." Id.

¶ 35. In the present case, the circuit court noted in its denial of Bass's requested funding for a mitigation investigator that all the caselaw Bass provided involved situations where a jury was "asked to make difficult decisions [on] ... issues that perhaps the jury is unfamiliar." By contrast, the circuit court stated that "[n]o jury [would] be involved in determining the instant question." The circuit court further stated that it was quite familiar with the factors to be analyzed at Bass's Miller hearing.

¶ 36. The circuit court also addressed the claim made by Bass's trial attorney that the defense required a social-history investigation "and that lawyers are trained in the law, not in conducting social histories." The circuit court pointed out that attorneys conduct investigations in all their cases as they sort through the facts and then present those facts to the jury. The circuit court also stated it was "not persuaded that attorneys are so confined in their intellect, experience[,] and training that they are incapable of researching and reviewing the personal history of a defendant, determining what is pertinent and material to the issue ...[,] and presenting such evidence to the court." For these reasons, the circuit court concluded funding for a mitigation investigator was unnecessary.

¶ 37. Upon review, we find the circuit court's denial of expert funds for a mitigation investigator neither deprived Bass of the opportunity to present his defense during sentencing nor rendered his sentencing hearing fundamentally unfair. After thoroughly considering both Bass's requests for expert funding, the circuit court determined Bass established a substantial need for a psychologist but not for a mitigation investigator. Because we find no abuse of discretion in the circuit court's decision, we conclude this issue lacks merit.

VII. Jury Sentencing

¶ 38. According to Bass, the circuit court's imposition of his sentence violated his constitutional right to have a jury determine his sentence. In several recent opinions, however, this Court rejected the argument that a defendant has a constitutional right to a jury sentencing at a hearing conducted under the Miller guidelines. Jones v. State , No. 2015-KA-00899-COA, --- So.3d ----, ----, 2017 WL 6387457, at *4 (Miss. Ct. App. Dec. 14, 2017) (recognizing that no constitutional right exists to a jury sentencing in a Miller hearing); Cook v. State , 242 So.3d 865, 876 (¶ 39) (Miss. Ct. App. 2017) (same); Davis v. State , 234 So.3d 440, 442 (¶ 10) (Miss. Ct. App. 2017) ("Our state Supreme Court post- Miller has treated life without parole as a sentencing option and the trial judge as an appropriate sentencing authority.").

¶ 39. In Wharton v. State , No. 2017-CA-00441, --- So.3d ----, ----, 2018 WL 4708220, at *6-*7 (Miss. Ct. App. Oct. 2, 2018), while once again holding that no constitutional right to a jury sentencing in a Miller hearing exists, we recognized that a statutory right to such sentencing sometimes exists. "To determine the sentencing authority in a Miller hearing, we look to the statute under which the juvenile offender was convicted and sentenced, until and unless the Legislature prescribes otherwise." Id. at ----, at *7. The juvenile defendant in Wharton was convicted of capital murder under Mississippi Code Annotated section 99-19-101 (Rev. 1994). Id. at ----, at *4. With regard to sentencing under this statute, we explained:

Specifically, under section 99-19-101's sentencing scheme, the Legislature has vested sentencing authority in the jury, and that authority only allows a sentencing proceeding to be conducted before a trial judge without a jury if the right to a jury was waived or the defendant [pled] guilty, as follows:
If the trial jury has been waived, or if the defendant [pled] guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose or may be conducted before the trial judge sitting without a jury if both the State of Mississippi and the defendant agree thereto in writing.

Wharton , --- So.3d at ----, 2018 WL 4708220, at *4. Because Wharton neither waived his right to a jury sentencing nor pled guilty, we acknowledged that, at his resentencing pursuant to the Miller guidelines, he had a statutory right to be resentenced by a jury rather than the trial judge. Id.

¶ 40. Unlike in Wharton , Bass was not convicted and sentenced under a statute that specifically vests sentencing authority solely with the jury. After the jury found Bass guilty of first-degree murder, the circuit court sentenced him under Mississippi Code Annotated section 97-3-21(1) (Rev. 2014), which provides that "[e]very person who shall be convicted of first-degree murder shall be sentenced by the court to imprisonment for life in the custody of [MDOC]." (Emphasis added). Because section 97-3-21(1) explicitly vests sentencing authority with the court, Bass possesses no statutory right to a jury sentencing. And as previously discussed, our recent decisions clearly refute his claim of a constitutional right to a jury sentencing at his Miller hearing. We therefore find Bass's argument regarding this issue lacks merit.

VIII. Sentence of LWOP

¶ 41. Bass's appellate attorney argues on appeal that the circuit court erred by sentencing Bass to LWOP and that this Court should vacate Bass's sentence so he can be resentenced to life with eligibility for parole. Specifically, Bass's attorney asserts that the circuit court failed (1) to give proper weight to the expert opinion of Dr. Criss Lott, the clinical and forensic psychologist who provided a report for Bass's sentencing hearing, and (2) to properly consider and discuss all the Miller factors. In his supplemental pro se brief, Bass challenges the legality of his sentence. For the sake of brevity, we address these arguments together under one assignment of error.

¶ 42. Our supreme court recently rejected the argument that heightened scrutiny should apply to a review of a trial court's sentencing decision under Miller . Instead, the supreme court stated:

Heightened scrutiny is reserved for death-penalty cases due to the unique and irreversible nature of that punishment. The Court has no reasonable basis to raise its standard of review for a sentence in a noncapital case simply because it involves a juvenile offender. Accordingly, we hold that there are two applicable standards of review in a Miller case. First, whether the trial court applied the correct legal standard is a question of law subject to de novo review. If the trial court applied the proper legal standard, its sentencing decision is reviewed for an abuse of discretion.

Chandler v. State , 242 So.3d 65, 68 (¶ 7) (Miss. 2018) (citations omitted).

¶ 43. With regard to sentencing hearings for juvenile homicide offenders, " Miller does not prohibit sentences of life without parole .... Rather, it 'requires the sentencing authority to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.' " Parker v. State , 119 So.3d 987, 995 (¶ 19) (Miss. 2013) (quoting Miller , 567 U.S. at 480, 132 S.Ct. 2455 ) ). Miller identified several factors the sentencing authority must consider before sentencing a juvenile homicide offender to LWOP. Miller , 567 U.S. at 477-78, 132 S.Ct. 2455. These factors include the following: (1) an offender's "chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences"; (2) "the family and home environment that surrounds [the offender]-and from which he cannot usually extricate himself"; (3) "the circumstances of the homicide offense, including the extent of [the offender's] participation in the conduct and the way familial and peer pressures may have affected him"; (4) whether the offender "might have been charged and convicted of a lesser offense if not for incompetencies associated with youth-for example, his inability to deal with police officers or prosecutors ... or his incapacity to assist his own attorneys"; and (5) "the possibility of rehabilitation ...." Id. Where a "judge determines that Miller does not mandate parole eligibility, then the judge must deny relief because the Legislature has provided by law that persons convicted of murder are not eligible for parole." Cook , 242 So.3d at 873-74 (¶ 27) (citing Miss. Code Ann. § 47-7-3(1)(f) (Rev. 2015) ).

¶ 44. In the present case, the circuit court stated that, prior to reaching a decision, it carefully considered the witnesses' testimony and carefully reviewed Dr. Lott's twenty-seven-page report on the factors relevant to determining an appropriate sentence for a juvenile homicide offender. In sentencing Bass to LWOP, the circuit court addressed the Miller factors. As to chronological age, the circuit court noted that Bass was only about seventy days from his eighteenth birthday when he shot Jackson. The circuit court further noted that, prior to shooting Jackson, Bass had already compiled an extensive youth-court record between the ages of 11 and 17 and had previously used deadly weapons to commit crimes. In addition, the circuit court found that Bass's actions toward Jackson immediately prior to the shooting demonstrated a lack of impetuosity (a hallmark feature of the current Miller factor). Specifically, the circuit court stated that the threats Bass made to Jackson prior to the shooting displayed premeditation and/or an intention to kill Jackson. Based on these findings, the circuit court concluded Bass's chronological age weighed against granting parole eligibility under Miller .

¶ 45. As to Bass's family and home environment, the circuit court recognized that Bass's family and personal lives were regularly in a state of chaos, that Bass lacked a male role model, and that the lack of contact with his father affected Bass. The circuit court also found, however, that Bass had denied using drugs or alcohol and that Dr. Lott's report failed to provide a significant psychiatric history on Bass or to identify any particular incidents that significantly negatively impacted Bass's life. The circuit court determined Bass's family and home environment, especially the apparent lack of discipline in Bass's upbringing, weighed partially in favor of parole eligibility.

¶ 46. In considering the circumstances of Jackson's murder, the circuit court concluded this factor weighed against parole eligibility. Although testimony varied as to where Bass obtained the gun he used to shoot Jackson, witnesses repeatedly testified that Bass was the shooter and that he shot Jackson in the back of the head. The circuit court also discussed Bass's conduct toward Jackson immediately before the shooting, which included evidence that Bass tried to hit Jackson with his car and then verbally threatened to kill Jackson before shooting him. In addition, witnesses stated that Jackson was unarmed and was attempting to run away when Bass shot him. Based on the circumstances of the homicide, the circuit court found that Bass's actions displayed premeditation and/or an intention to kill Jackson.

¶ 47. Finally, with regard to the possibility of rehabilitation, the circuit court stated that Bass's youth-court record failed to provide "any positive factors" or "any real substantial hope of rehabilitation." The circuit court noted that Bass's youth-court record detailed the commission of progressively more serious and violent crimes, including those involving the exhibition and/or use of a deadly weapon. The circuit court further noted that this progression culminated with Bass shooting Jackson in the back of the head. The circuit court concluded the evidence "paint[ed] a picture of an individual with little or no regard for the value of human life or general decency among his fellow man" and "with little, if any, possibility of rehabilitation." The circuit court therefore found this factor also weighed against parole eligibility.

¶ 48. The circuit court did not directly discuss on the record whether Bass might have been charged and convicted of a lesser offense. However, the circuit court specifically provided that it conducted Bass's hearing and determined his sentence pursuant to Miller . Furthermore, in concluding its bench ruling, the circuit court stated that it was sentencing Bass to LWOP after considering all the factors , Dr. Lott's assessment, the witnesses' testimony, and the evidence presented. See Jones , --- So.3d at ----, 2017 WL 6387457, at *7 (recognizing that, while the circuit court did not specifically discuss each Miller factor on the record, "[n]either the United States Supreme Court nor the Mississippi Supreme Court has held that reversal is required just because the sentencing judge omits some factors from his on-the-record discussion of the reasons for the sentence").

¶ 49. Upon review, we find the circuit court conducted a hearing as required by Miller and only sentenced Bass to LWOP after applying every factor outlined in Miller . As a result, we conclude the circuit court applied the correct legal standard. In addition, we cannot say the circuit court abused its discretion by sentencing Bass to LWOP. Both the circuit court's bench ruling and its sentencing judgment sufficiently explained the court's reasoning for Bass's sentence, and substantial evidence supported the circuit court's findings. We therefore find Bass's assertions regarding this assignment of error lack merit.

CONCLUSION

¶ 50. Because we find no error in Bass's first-degree murder conviction and sentence of life without eligibility for parole, we affirm.

¶ 51. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      In addition to the arguments Bass's appellate attorney submitted on appeal, Bass filed a supplemental pro se brief that raised additional issues.

      The shooting occurred in front of 1251 Cotton Street, and Bass lived at 1185 Cotton Street. Both Bass and Kendrick testified it took them about ten seconds from the location of the shooting to reach Bass's residence.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).