author: CARLTON, J., FOR THE COURT:

text:
    Daniel WILLIAMSON a/k/a Daniel Larry Williamson a/k/a Daniel L. Williamson, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00634-COA
    Court of Appeals of Mississippi.
    June 5, 2018 Rehearing Denied September 25, 2018
    ATTORNEY FOR APPELLANT: DANIEL WILLIAMSON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Daniel Williamson pleaded guilty to one count of manslaughter and one count of arson. The Neshoba County Circuit Court accepted Williamson's guilty plea and sentenced him to serve twenty years in the custody of the Mississippi Department of Corrections for his manslaughter conviction and twenty years for his arson conviction, with the sentences to run consecutively, for a total of forty years to serve.

¶ 2. Williamson filed a motion for postconviction relief (PCR), which the trial court dismissed as a successive writ, duplicitous request, and lacking merit. Williamson now appeals, arguing that the State failed to meet its burden of proving that Williamson committed a crime. Finding no error, we affirm the trial court's dismissal of Williamson's PCR motion as a successive writ. See Miss. Code Ann. § 99-39-23(6) (Rev. 2015).

FACTS

¶ 3. In May 2013, a Neshoba County grand jury indicted Williamson with one count of murder and one count of arson stemming from the death of Williamson's girlfriend, Terri Gwyn.

¶ 4. During Williamson's trial held on November 11, 2013, the trial court heard testimony from four witnesses for the State: Terry Cremeen, Williamson's coworker; Tiffany Miller, Gwyn's close friend; Ralph Sciple, chief investigator for the Neshoba County Sheriff's Department; and Pete Adcock, a deputy at the State Fire Marshal's office.

¶ 5. Cremeen testified that on the morning of March 2, 2013, he arrived at Williamson's trailer to give him a ride to work. Williamson was waiting outside of his trailer holding a box of moonshine. Cremeen testified that Williamson put the moonshine in the back of Cremeen's truck and told Cremeen that he needed to go back inside to get his lunch box. After about ten minutes, Williamson came back outside carrying a cooler and got into Cremeen's truck. Cremeen testified that as he backed up to leave, he observed flames coming from the bedroom of the trailer. Cremeen yelled at Williamson to call 911, and he asked Williamson if anyone was inside of the trailer. Williamson answered "Yes. My old lady."

¶ 6. Tiffany Miller testified that Gwyn and Williamson lived together in a trailer and were in a romantic relationship. According to Miller, Gwyn called her a little over a week before the fire and informed her that she and Williamson had gotten into a fight. Gwyn told Miller that she had made plans to move out of the trailer and back to North Carolina, but she did not want Williamson to know. Miller stated that a few days before the fire, she went over to the trailer to help Gwyn pack. Gwyn told Miller that she planned to leave on Saturday, March 2, 2013, after Williamson left for work.

¶ 7. Investigator Sciple testified that on March 2, 2013, he received a call to assist on a fire investigation at Williamson's trailer. When he entered the trailer, Investigator Sciple stated that he observed three or four suitcases in the living room, "like somebody was either mov[ing] in or fixing to leave." Investigator Sciple testified that when he entered the bedroom, "[t]here was a body still on the bed," and he described the body as "burnt beyond recognition." Investigator Sciple stated that he found a purse in the living room, next to the suitcases, containing Gwyn's driver's license. However, he admitted that he "still could not identify the person that was on the bed."

¶ 8. Investigator Sciple testified that after his investigation of the scene, he determined the cause of the fire to be arson. Investigator Sciple stated that the fire originated on the bed in the bedroom, and an accelerant was used to make the material burn faster. Investigator Sciple stated that through the course of his investigation, he learned that the owner of the trailer was renting the property to Gwyn.

¶ 9. Deputy Adcock also testified that the fire originated in the bedroom. Deputy Adcock specified that the fire started on the bed, and that whoever started the fire used an accelerant.

¶ 10. At the conclusion of Deputy Adcock's testimony, the transcript reflects that Williamson expressed his desire to enter a guilty plea. The trial court then adjourned the trial and held a guilty plea hearing that afternoon.

¶ 11. At Williamson's guilty plea hearing, the trial court asked Williamson if he was "pleading guilty to killing this lady that's involved in this case." Williamson answered, "Yes, sir." The trial court also asked Williamson if he was pleading guilty to "[b]urning [the] trailer while she was an occupant of the trailer." Williamson again answered, "Yes, sir." The trial court accepted Williamson's guilty plea to one count of manslaughter and one count of arson and sentenced him to twenty years in the custody of the MDOC for manslaughter and twenty years in the custody of the MDOC for arson.

¶ 12. On September 29, 2015, Williamson filed a petition to show cause, in which he alleged that the trial court was denying him due process by failing to furnish him with a copy of the record in his case. On October 14, 2015, Williamson filed a motion to amend his petition to show cause or to clarify his demands. In his amended motion, Williamson attacked the validity of his guilty plea and his conviction.

¶ 13. On November 18, 2015, the trial court, treating Williamson's filing as a PCR motion, entered an order denying Williamson relief. In its order, the trial court stated that it had denied two prior PCR motions filed by Williamson and therefore found Williamson's motion to be "a successive writ and a duplicitous request."

¶ 14. On April 7, 2016, Williamson filed another PCR motion, this time raising six grounds for relief. The trial court entered an order on April 17, 2017, denying relief and dismissing Williamson's motion. The trial court held that Williamson's current PCR motion was procedurally barred as a successive writ, explaining that Williamson had sought postconviction relief "on at least three prior occasions" and been denied. After acknowledging that Williamson's PCR motion was procedurally barred, the trial court also found that Williamson's claims of error lacked merit.

¶ 15. On May 10, 2017, Williamson filed his notice of appeal.

STANDARD OF REVIEW

¶ 16. When reviewing a trial court's denial of a PCR motion, "we review the trial court's findings of fact for clear error and its determinations of law de novo." Wilkerson v. State , 89 So.3d 610, 613 (¶ 7) (Miss. Ct. App. 2011). The petitioner bears the burden of showing he is entitled to relief by a preponderance of the evidence. Shavers v. State , 215 So.3d 502, 505 (¶ 7) (Miss. Ct. App. 2016).

DISCUSSION

¶ 17. In his PCR motion before the trial court, Williamson raised six grounds for relief. However, in his appellate brief, Williamson only raises one assignment of error-the State failed to meet its burden of proof to show that he committed a crime. Williamson specifically claims that "the record is bare of any showing of corpus delecti." In support of his assertion, Williamson argues that the State failed to present any testimony or evidence that established the identification of the body found in the trailer, whether the person found in the bed was even deceased, or the cause of death.

¶ 18. Williamson's appeal contains several procedural issues. The first procedural issue before us involves Williamson's assignment of error on appeal. In his PCR motion filed in the trial court, Williamson asserted the following assignments of error: (1) his multi-count indictment is illegal; (2) he was denied the right to a jury trial; (3) no factual basis existed for the trial court to accept his guilty plea for arson; (4) the trial court abused its discretion by stopping Williamson's trial and thus subjected Williamson to double jeopardy; (5) the trial court erred by allowing multiple punishments growing out of the same set of operative facts; and (6) ineffective assistance of counsel. On appeal, the only issue that Williamson raises is that the State failed to meet its burden of proof to show that Williamson committed a crime. Williamson failed to raise this issue in his PCR motion before the trial court, and he cannot raise it for the first time on appeal. Fluker v. State , 17 So.3d 181, 183 (¶ 5) (Miss. Ct. App. 2009) ("[A] defendant who fails to raise an issue in his [PCR motion] before the trial court may not raise that issue for the first time on appeal."). We also find that Williamson has abandoned the six issues presented in his PCR motion before the trial court. Id. at 182-83 (¶ 4) ("Issues that are unsupported and not argued are abandoned and need not be considered on appeal.").

¶ 19. The State appears to interpret Williamson's claim on appeal as an attack on whether a factual basis existed for the trial court to accept Williamson's guilty plea, and the State bases its argument on appeal around this claim. In his PCR motion before the trial court, Williamson did raise the issue of whether a factual basis existed for the trial court to accept his guilty plea for arson. However, Williamson's argument on appeal is entirely different. In fact, in his appellate brief, Williamson fails to mention that he pleaded guilty. We recognize that in his reply brief, Williamson responds to the State's argument that a factual basis existed for the trial court to accept Williamson's guilty plea, but Williamson then directs his argument back to whether the State met its burden of proof.

¶ 20. By pleading guilty, Williamson waived his right to have the State prove each element of the offense beyond a reasonable doubt. Joiner v. State , 61 So.3d 156, 158 (¶ 7) (Miss. 2011). The record reflects that, on appeal, Williamson does not challenge the validity of his guilty plea. Furthermore, Williamson's assertion on appeal that the State failed to meet its burden of proof lacks merit.

¶ 21. Second, we recognize that in its order dismissing Williamson's PCR motion, the trial court held that the motion was barred as a successive writ. The Uniform Postconviction Collateral Relief Act (UPCCRA) imposes a bar against successive writs. See Miss. Code Ann. § 99-39-23(6) (Rev. 2015) ("[A]ny order dismissing the petitioner's motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article."). However, the UPCCRA provides an exception to the successive-writ bar if the petitioner can show:

[T]hat there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are those cases in which the petitioner has filed a prior petition and has requested DNA testing under this article, provided the petitioner asserts new or different grounds for relief related to DNA testing not previously presented or the availability of more advanced DNA technology.

Id.

¶ 22. We recognize that errors affecting fundamental rights are also excepted from the UPRCCA's procedural bars. Fluker v. State , 170 So.3d 471, 475 (¶ 11) (Miss. 2015). "Only four fundamental-rights exceptions have been expressly found to survive procedural bars: (1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post facto laws." Carter v. State , 203 So.3d 730, 731 (¶ 7) (Miss. Ct. App. 2016). The Mississippi Supreme Court has clarified that "merely asserting a constitutional-right violation is insufficient to overcome the procedural bars." Fluker , 170 So.3d at 475 (¶ 11). Additionally, "there must at least appear to be some basis for the truth of the claim of a fundamental-constitutional-rights violation." Evans v. State , 115 So.3d 879, 881 (¶ 3) (Miss. Ct. App. 2013) (internal quotation marks omitted).

¶ 23. In the trial court's order denying Williamson's April 2016 PCR motion, the trial court explained that Williamson had filed approximately three prior PCR motions, all of which the trial court denied. The record before us contains only one other prior PCR motion filed by Williamson-an October 2015 motion titled "Motion to Amend Petition to Show Cause or to Clarify Petitioner's Demands." In this motion, which the trial court treated as a PCR motion, Williamson asserted arguments similar to those set forth in his April 2016 PCR motion; namely, that the trial court lacked a factual basis to accept his guilty plea, the trial court abused its discretion by stopping Williamson's trial and therefore subjected him to double jeopardy, and ineffective assistance of counsel. The record reflects that in November 2015, the trial court entered an order denying relief, explaining that Williamson "ha[d] twice been denied post[ ]conviction relief by this [c]ourt," and therefore his October 2015 PCR motion constituted "a successive writ and a duplicitous request."

¶ 24. Our review of Williamson's April 2016 PCR motion presently at issue before this Court also reflects that Williamson failed to show that his constitutional-rights-violations claims possessed any merit; accordingly, Williamson's successive and duplicitous claims do not survive the procedural bars of the UPCCRA. Fluker , 170 So.3d at 475 (¶ 11).

¶ 25. After our review of the record, we affirm the trial court's dismissal of Williamson's PCR motion as a successive writ.

¶ 26. AFFIRMED.

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

      In his appellate brief, Williamson also makes a vague suggestion that he was arrested without probable cause. However, this argument did not appear in his PCR motion before the trial court, and, as stated, Williamson cannot raise it for the first time on appeal. Id. at 183 (¶ 5).


source: Caselaw Access Project

author: TINDELL, J., FOR THE COURT:

license: Public Domain

text:
    Mark Edward CAMPBELL, Appellant v. Misty McDaniel CAMPBELL, Appellee
    NO. 2017-CA-00331-COA
    Court of Appeals of Mississippi.
    June 19, 2018
    ATTORNEYS FOR APPELLANT: CHARLES E. WINFIELD, ASHLYN BROWN MATTHEWS, Starkville
    ATTORNEY FOR APPELLEE: A. E. (RUSTY) HARLOW JR.
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. Mark Campbell appeals the Grenada County Chancery Court's judgment increasing his monthly child-support payments and awarding attorney's fees to his ex-wife, Misty Campbell. Upon review, we reverse the chancellor's upward modification of Mark's child-support obligation and render a judgment restoring the amount agreed upon by the parties in their child-custody and property-settlement agreement. We likewise reverse the chancellor's award of attorney's fees to Misty, but we remand the issue for further proceedings consistent with this opinion.

FACTS

¶ 2. Mark and Misty married on July 25, 1992, and they separated on November 29, 2008. The parties had four children during their marriage. At the time the parties filed for divorce, their children were ages 13, 11, 9, and 6. The parties consented to an irreconcilable-differences divorce and submitted to the chancellor a written agreement on the issues of child custody and property settlement. The agreement provided that the parties would share joint legal custody of their children and that Misty would retain physical custody while Mark received reasonable visitation rights. In addition, the agreement acknowledged that Mark's current monthly gross income amounted to $66,666.67 and that he would pay Misty "child support [in] the sum of $1,250 per month per child" until the children reached "the age of 21, marr[ied], join[ed] the armed forces[,] or [were] otherwise fully emancipated according to law, whichever occur[red] first." On September 20, 2010, the chancellor entered a final divorce judgment that granted the parties an irreconcilable-differences divorce. The chancellor's judgment adopted and incorporated by reference the parties' child-custody and property-settlement agreement.

¶ 3. On March 18, 2016, Mark filed a petition for contempt and for modification of the divorce decree. Mark alleged that his oldest son had become emancipated, which should relieve him of his child-support obligation to that son. In addition, Mark claimed that his income had dramatically decreased, which constituted a material change of circumstances and prevented him from paying his current child-support obligations. Mark therefore asked the chancellor to reduce his child-support payments in accordance with Mississippi's child-support guidelines. Finally, after asserting that, among other things, Misty had abused or neglected the parties' three minor children and intentionally interfered with Mark's relationship and parenting time with the children, Mark requested that the chancellor hold Misty in contempt and award him physical custody of the minor children.

¶ 4. On April 11, 2016, Misty answered Mark's petition and filed a counterpetition for contempt and modification of the divorce decree. Misty alleged that Mark had failed to comply with his current child-support and alimony obligations and that a material change in circumstances had occurred that necessitated an increase in future child-support payments. The following month, on May 31, 2016, Misty filed a temporary motion for emergency relief. In the temporary motion, Misty asserted that one of the minor children needed braces and that Mark was still behind on his child-support and alimony payments. Misty therefore asked the chancellor to order Mark to pay the orthodontic fees and the arrearages on his child-support and alimony obligations.

¶ 5. The chancellor held an October 5, 2016 hearing on the parties' various petitions and motions. At the hearing, the parties introduced their financial statements and Mark's tax returns for 2010 through 2012. Although the parties had previously agreed that Mark's monthly gross income amounted to $66,666.67, Mark submitted an affidavit stating that his average monthly income had now decreased to $22,363.34. On October 14, 2016, the chancellor entered an order nunc pro tunc as of October 5, 2016, that addressed both Mark's petition and Misty's counterpetition for contempt and modification of the divorce decree. Based on Mark's various allegations against Misty, the chancellor appointed a guardian ad litem (GAL) for the minor children and ordered Mark to pay a $2,500 retainer fee to the GAL within thirty days of the order's entry. The chancellor also bifurcated the matter to first hear the parties' contempt issues and to reserve all issues regarding modification until the completion of the GAL's report.

¶ 6. After finding that Mark failed to prove his contempt allegations against Misty, the chancellor denied Mark's request to hold Misty in contempt. The chancellor next found, however, that Mark had failed to timely pay child support, alimony, and other sums to Misty as directed by the court's previous order. The chancellor therefore held Mark in willful contempt and ordered him to pay Misty $80,287.38 ($42,485 for unpaid child support and alimony; $27,057.38 for unpaid medical and other support; and $10,745 for attorney's fees).

¶ 7. On November 7, 2016, Misty filed another petition for citation of contempt and alleged that Mark had failed to comply with the chancellor's October 14, 2016 order. Specifically, Misty argued that Mark had failed to pay the sums owed to her under the chancellor's previous order. The same month, on November 30, 2016, Mark filed another petition to modify child support. Mark asserted that, under the terms of the parties' child-support agreement, his second oldest son's enlistment in the United States Army relieved him of his child-support obligation toward that son.

¶ 8. The chancellor held a December 21, 2016 hearing on Mark's March 18, 2016 petition for contempt and modification of the divorce decree, Misty's November 7, 2016 contempt petition, and Mark's November 30, 2016 petition for modification. At the start of the hearing, Mark announced he no longer intended to pursue his claims of abuse and neglect against Misty or his request for physical custody of the parties' minor children. The hearing therefore proceeded only on the issues of Mark's request for modification of his child-support payments and Misty's contempt petition. With regard to Mark's request for modification, Misty asked the chancellor to incorporate the financial documents introduced into evidence at the prior hearing on October 5, 2016. Mark neither objected to Misty's request nor introduced any updated information regarding his income and finances.

¶ 9. On January 27, 2017, the chancellor entered an order acknowledging that Mark had requested the dismissal of his March 18, 2016 petition. The chancellor further found that the terms of the parties' child-custody and property-settlement agreement required termination of Mark's child-support obligation to the parties' second oldest son since the child had enlisted in the Army. The chancellor stated that he would recalculate and set child support for the two remaining minor children the following month.

¶ 10. In his subsequent order entered February 9, 2017, the chancellor found as follows: (1) the emancipation of the parties' second oldest son was unforeseen, constituted a material change in circumstances, and justified a modification of the divorce decree; (2) Mark presented no credible evidence to show his income reduction was unforeseen or involuntary; (3) "it would be inequitable[ ] and to the detriment of [the parties'] other children[ ] to allow a voluntary reduction of income to reduce their support"; (4) Mark's current gross monthly income amounted to $67,000, and after deducting forty percent in allowable taxes, his adjusted monthly income amounted to $40,200; (5) clear and convincing evidence showed that Mark, without justification, willfully declined to follow the chancellor's previous order to pay $2,500 for the GAL's fees; (6) Mark's allegations against Misty for abuse and neglect of the minor children necessitated the GAL's appointment, but Mark failed to pursue his claim; and (7) Mark's allegations of abuse and neglect lacked substantial evidentiary foundation and were brought "for the purpose of harassment and delay, requiring [Misty] to expend unnecessary cost and fees for which she should be reimbursed."

¶ 11. Based on his findings, the chancellor increased Mark's child-support obligation to comply with the statutory guidelines and ordered Mark to pay Misty $8,050 a month (or twenty percent of his monthly adjusted gross income). The chancellor stated, however, that the parties' other agreed-upon provisions for child support and maintenance would remain unmodified. The chancellor next held Mark in contempt for failing to comply with the previous order to pay $2,500 for the GAL's fees. Finally, the chancellor awarded Misty $4,141.97 in attorney's fees incurred defending against Mark's allegations of abuse and neglect.

¶ 12. Aggrieved by the chancellor's upward modification of his child-support payments and award of attorney's fees to Misty, Mark appeals.

STANDARD OF REVIEW

¶ 13. Where substantial evidence supports a chancellor's findings of fact, this Court will affirm the "chancellor's findings unless the chancellor abused his discretion, was manifestly wrong[ ] or clearly erroneous, or applied an erroneous legal standard." Strait v. Lorenz , 155 So.3d 197, 203 (¶ 19) (Miss. Ct. App. 2015). However, we review questions of law de novo. Id.

DISCUSSION

I. Child Support

¶ 14. Mark challenges the chancellor's upward modification of his monthly child-support payment from the agreed-upon $1,250 per child to $8,050. "A chancellor may modify a child-support award if there has been a substantial or material change in the circumstances of one or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the entry of the decree to be modified." In re C.T. , 228 So.3d 311, 316 (¶ 12) (Miss. Ct. App. 2017) (internal quotation marks omitted). "The change must occur as a result of after-arising circumstances of the parties not reasonably anticipated at the time of the agreement." Davis v. Davis , 222 So.3d 1101, 1104 (¶ 8) (Miss. Ct. App. 2017) (citing Corkern v. Corkern , 58 So.3d 1229, 1232 (¶ 13) (Miss. Ct. App. 2011) ).

¶ 15. The chancellor found the parties' second oldest son became emancipated following his enlistment in the Army. According to the chancellor, this emancipation was unforeseen and constituted a substantial and material change in circumstances that justified a modification of Mark's child-support obligation. However, the parties' child-custody and property-settlement agreement, which the chancellor adopted and incorporated by reference into the final divorce judgment, clearly contemplated such an event. The agreement explicitly stated that Mark would pay Misty "child support [in] the sum of $1,250 per month per child" until the children reached "the age of 21, marr[ied], join[ed] the armed forces [,] or [were] otherwise fully emancipated according to law, whichever occur[red] first." (Emphasis added).

¶ 16. Because the parties discussed and provided for this exact situation when considering child support, we find the chancellor manifestly erred by concluding the second oldest son's decision constituted an unanticipated event that warranted modification of Mark's child-support obligation. We therefore reverse the portion of the chancellor's judgment modifying Mark's child-support obligation and render a judgment to restore the amount agreed upon by the parties in their child-custody and property-settlement agreement. On remand, Mark is entitled to a credit for any child support he has paid in excess of the amounts provided for in the parties' agreement.

II. Attorney's Fees

¶ 17. Mark next challenges the chancellor's award of $4,141.97 in attorney's fees to Misty. After finding Mark's allegations of abuse and neglect against Misty lacked evidentiary support, the chancellor ordered Mark to pay the fees Misty incurred defending against the unsubstantiated claims. See Miss. Code Ann. § 93-5-23 (Rev. 2013). Mark asserts on appeal, however, that Misty's attorney never separated the fees incurred defending against the abuse and neglect allegations from the fees incurred litigating other matters. Since the chancellor only ordered Mark to pay the attorney's fees related to the litigation of the abuse and neglect allegations, Mark argues the chancellor abused his discretion by failing to separate those fees from the "fees otherwise incurred in Misty's defense of Mark's request for decreased child support and pursuit of her own request for increased child support."

¶ 18. The decision to award attorney's fees is largely entrusted to a chancellor's sound discretion. Evans v. Evans , 75 So.3d 1083, 1089 (¶ 22) (Miss. Ct. App. 2011) (citing McKee v. McKee , 418 So.2d 764, 767 (Miss. 1982) ). After finding Mark's claims of abuse and neglect to be unsubstantiated, the chancellor was well within his authority to award Misty the attorney's fees she incurred defending against the allegations. See Miss. Code Ann. § 93-5-23. However, the chancellor never made a finding that Misty lacked the ability to pay her attorney's fees incurred litigating other matters. See Ewing v. Ewing , 203 So.3d 707, 716 (¶ 33) (Miss. Ct. App. 2016) ("Generally, unless the party requesting attorney's fees can establish [an] inability to pay, such fees should not be awarded." (quoting Bredemeier v. Jackson , 689 So.2d 770, 778 (Miss. 1997) ) ). As a result, we find the chancellor abused his discretion by failing to separate the attorney's fees Misty incurred defending against Mark's allegations of abuse and neglect from those fees incurred litigating other matters. We therefore reverse this portion of the chancellor's judgment and remand the issue so the chancellor may determine which attorney's fees Misty incurred defending against Mark's unsubstantiated allegations.

CONCLUSION

¶ 19. Because we find the emancipation of the parties' second oldest son failed to constitute an unanticipated event, we reverse the chancellor's upward modification of Mark's child-support obligation and render a judgment restoring Mark's monthly child-support payment to the amount agreed upon by the parties in their child-custody and property-settlement agreement. We further reverse the chancellor's award of attorney's fees to Misty and remand the issue so the chancellor can specifically determine which fees Misty incurred defending against Mark's allegations of abuse and neglect.

¶ 20. REVERSED, RENDERED IN PART, AND REMANDED IN PART.

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

      The parties' agreement contained other provisions regarding Mark's continued financial support of the minor children. With regard to Misty, the agreement stated that Mark would pay her $16,000 as a property-settlement payment and $576,000 in lump-sum alimony, to be paid in ninety-six installments of $6,000 a month until May 15, 2018.

      The record reflects the chancellor later found the parties' oldest son became emancipated upon reaching his twenty-first birthday.

      The parties' agreement also obligated Mark to do the following: (1) maintain health and dental insurance for the minor children and pay all related uncovered medical expenses; (2) maintain at least a $750,000 life-insurance policy for the children; (3) pay "all mandatory costs, fees[,] and expenses associated with providing each of the children ... a private[-] school education through high school"; (4) pay all college "expenses associated with providing each of the minor children ... a college education for four years from the date of graduation from high school"; and (5) "pay for the lodging expenses for a seven[-]day period associated with a vacation for [Misty] and the minor children" each year.

      See Miss. Code Ann. § 93-5-23 (Rev. 2013).


author: WESTBROOKS, J., FOR THE COURT:

text:
    John PHINIZEE a/k/a John L. Phinizee Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-01230-COA
    Court of Appeals of Mississippi.
    June 19, 2018 Rehearing Denied September 11, 2018
    ATTORNEY FOR APPELLANT: BLEWETT W. THOMAS, Gulfport
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, Jackson
    BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. John Phinizee appeals the Lowndes County Circuit Court's dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following facts are taken from Phinizee v. State , 983 So.2d 322, 324-26 (¶¶ 3-10) (Miss. Ct. App. 2007) :

In April 1999, an officer of the Lowndes County Narcotics Unit (LCNU) made an undercover purchase of forty dollars worth of cocaine from Bernard's Pool Hall. No arrest was made at the time.
In July 2001, officers of the LCNU received a letter from a concerned citizen stating that a man by the name of John was selling drugs from Bernard's. Again, in April 2002, Officer Larry Swearingen of the LCNU received a letter from a concerned citizen stating that Phinizee was selling cocaine and marijuana from Bernard's. Shortly thereafter, Officer Swearingen talked with Phinizee at Bernard's but no arrest was made at the time.
In October of 2003, Georgia Whitmore's husband came to Officer Swearingen's office and stated that his wife was regularly purchasing crack cocaine from Phinizee at Bernard's Pool Hall and sometimes at one of the Citco stations in Columbus, Mississippi. He stated further that his wife had been buying from Phinizee for a long time and was addicted to cocaine.
On December 8, 2003, Whitmore's husband called Officer Swearingen and informed him that Whitmore planned to meet Phinizee to buy cocaine the next day between 7:00 a.m. and 9:00 a.m. at one of two Citco stations, located either on Highway 45 North or at the intersection of Military Road and Martin Luther King Drive. Whitmore's husband supplied the tag number of Phinizee's vehicle, which he described as a black extended-cab Chevrolet truck. Whitmore's husband also stated that his wife would be driving a maroon 2000 Prism. Officer Swearingen then ran the tag number and confirmed that the truck was registered to Phinizee and his wife.
The following day, Officer Swearingen conducted surveillance of the Citco station at the intersection of Military Road and Martin Luther King Drive. During the hours suggested, he observed Whitmore arrive at the gas station, park her car, and make a call from a pay phone located directly behind a barbeque pit near the gas station. After completing the phone call, Whitmore got back in her car and drove around to the front of the barbeque pit. A few minutes later, Phinizee arrived at the gas station in a black Chevrolet truck. Officer Swearingen then observed Phinizee and Whitmore exit their respective vehicles and make an exchange which he believed to be a drug transaction. Whitmore then left the gas station and was pulled over a short distance therefrom at approximately 8:45 a.m. Whitmore was searched and a Trophy chewing tobacco pouch containing cocaine was found in her brassiere. Upon her arrest, [Whitmore] gave a written signed statement that she had purchased cocaine from Phinizee for a couple of years, and that she had [...] just bought cocaine from him that morning. She also stated that she had purchased cocaine from Phinizee at least a hundred times at Bernard's over the past few years.
At approximately 10:30 a.m., Officer Swearingen and Officer Joey Brackin returned to the Citco station to arrest Phinizee. A few minutes after they arrived, Phinizee pulled into the parking lot and was arrested as he exited his vehicle. Officer Swearingen testified that he looked into Phinizee's truck and was able to see numerous Trophy chewing tobacco pouches identical to the one taken from Whitmore's bra. He then searched the interior of the truck and found cocaine inside one of the tobacco pouches. Phinizee's vehicle was towed and he was taken to the sheriff's office for processing.
After these events transpired, Officer Swearingen submitted an affidavit for a search warrant of Bernard's Pool Hall. Officer Swearingen signed the "Underlying Facts and Circumstances" sheet which was attached to his affidavit submitted to Justice Court Judge Chauncey Green. Judge Green issued the requested search warrant and Phinizee accompanied Officer Swearingen to his place of business. The ensuing search of the pool hall yielded marijuana and cocaine. Once back at the station, Phinizee admitted that he had been selling drugs from Bernard's Pool Hall and gave a signed written statement to that effect after signing a waiver of rights.

¶ 3. Following a trial in 2006, Phinizee was convicted of one count of the sale of cocaine and two counts of possession of cocaine with intent to distribute. Phinizee was sentenced to thirty years in the custody of the Mississippi Department Corrections for each count with the sentences in counts two and three to run concurrently, and the sentence in count one to run consecutively with the sentences in counts two and three-for a total of sixty years.

¶ 4. Phinizee filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial; but Phinizee's conviction was affirmed on direct appeal. See Phinizee , 983 So.2d at 331 (¶ 30). In 2011, the Mississippi Supreme Court granted Phinizee's application for leave to file his PCR motion in the trial court following a change of attorneys. In that PCR, Phinizee alleged ineffective assistance of counsel because of his trial counsel's failure to raise his lack of intelligence, related brain disorders, and other mitigating circumstances which he claims hindered him from assisting with his defense. The Supreme Court remanded the case to the Lowndes County Circuit Court for an evidentiary hearing to determine the validity of Phinizee's claims.

¶ 5. In 2013, the circuit court conducted part one of the bifurcated evidentiary hearing to determine whether Phinizee received effective assistance of counsel. During that hearing, Dr. Bodsky, forensic psychologist and Phinizee's expert witness, testified that he was of the opinion that Phinizee was not competent to stand trial or aid his attorney in his defense during the 2006 trial.

¶ 6. Part two of the hearing was held in May 2016, after the State conducted its own mental evaluation of Phinizee. Dr. Robert Storer, a forensic psychologist, stated that he could not testify with medical certainty that Phinizee was competent to stand trial "because competency was a functional assessment." However, Dr. Storer stated that he did not detect any defect in Phinizee's understanding of his legal situation in 2006.

¶ 7. In August 2016, the circuit court denied Phinizee's PCR motion. Phinizee now appeals.

STANDARD OF REVIEW

¶ 8. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Alexander v. State , 228 So.3d 338, 340 (¶ 7) (Miss. Ct. App. 2017).

DISCUSSION

¶ 9. Phinizee argues that the circuit court's finding was "clearly erroneous" because his trial counsel failed to refer to his mental intelligence and failed to conduct a reasonable pre-trial investigation to discover his lack of mental intelligence. As a result, Phinizee argues that his counsel's performance was deficient. "In order to succeed on a claim of ineffective assistance of counsel, the defendant must prove that counsel's performance was deficient and that the deficient performance prejudiced the defense." Carson v. State , 161 So.3d 153, 155-56 (¶ 3) (Miss. Ct. App. 2014) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

¶ 10. " Rule 9.06 of the Uniform Rules of Circuit and County Court Practice[ ] provides the procedure for a circuit court's determination of whether a criminal defendant is mentally competent to stand trial." Brasso v. State , 195 So.3d 856, 860 (¶ 12) (Miss. Ct. App. 2016). " Rule 9.06 is meant to ensure that a defendant's due process rights are not violated." Id.

¶ 11. At the August 2013 hearing, Gary Goodwin, Phinizee's counsel at trial in 2006, testified that he met with Phinizee on several occasions to discuss the facts of his case. He stated that he felt that Phinizee adequately communicated with him, and that Phinizee understood the charges against him and the consequences he faced if convicted. Goodwin stated that Phinizee communicated that he was receiving social security benefits, and that Phinizee disclosed he suffered a brain aneurysm several years prior to his arrest, which resulted in brain surgery. However, Goodwin maintained that he saw no evidence that Phinizee lacked capacity to assist in his own defense.

¶ 12. Phinizee asserts that his trial counsel's assistance was deficient because Goodwin did not put on any witness testimony or present evidence to support the assertion that he lacked the mental capacity to stand trial. Furthermore, Phinizee asserts that Goodwin did not investigate any of these claims or order a mental evaluation once he learned of Phinizee's brain surgery. Phinizee also challenges Goodwin's decision to not submit mitigating factors at his sentencing hearing.

¶ 13. Goodwin testified that he spoke with Phinizee's wife, Mariah, for the first time at Phinizee's trial. Goodwin stated that she demanded an insanity or incapacity defense the morning of trial. However, Goodwin testified that he did not think that Phinizee was insane or lacked the capacity to understand the nature of the charges against him. Furthermore, Goodwin testified that he did not think Mariah had her husband's best interest at heart, because she waited until the trial had already commenced before speaking with him about her husband's possible lack of capacity.

¶ 14. This Court has held that "trial counsel is afforded 'broad discretion' in such matters of trial strategy, and we will not second-guess counsel's decisions that fairly may be characterized as strategic." Shinn v. State , 174 So.3d 961, 966 (¶ 12) (Miss. Ct. App. 2015). Moreover, "we look at the totality of circumstances to determine whether counsel's efforts were both deficient and prejudicial." Morton v. State , No. 2016-KA-00804-COA, 246So.3d 895, 905, 2017 WL 5614958, at *6 (¶ 27) (Miss. Ct. App. 2017) (quoting Williams v. State , 73 So.3d 1125, 1129 (¶ 12) (Miss. 2011) ). Our supreme court has also held that "there is no constitutional right to errorless counsel." Conway v. State , 48 So.3d 588, 593 (¶ 7) (Miss. Ct. App. 2010) ; see also Stack v. State , 860 So.2d 687, 696 (¶ 20) (Miss. 2003). We are of the opinion that the record does not convey that Phinizee's trial counsel had any reason to believe that Phinizee was unable to stand trial and assist with his defense.

¶ 15. During the oral argument, Phinizee maintained that in his opinion, he was never afforded a competency hearing. He asserts that the bifurcated hearings did not properly serve as a competency hearing. We disagree. Phinizee was examined by two experts to determine whether or not Phinizee was competent to stand trial. This Court has held that "the purpose of an evidentiary hearing is for the court to receive evidence in order to make findings of fact." Walton v. State , 233 So.3d 909, 912 (¶ 14) (Miss. Ct. App. 2017). As a result, we find that the bifurcated hearings properly served to determine whether Phinizee was competent to stand trial.

¶ 16. Further, Phinizee maintains that the trial judge's findings contradicted the expert opinions provided by both experts. As a result, Phinizee alleges that the circuit court made a biased and unsubstantiated determination that he was competent to assist his attorney during his trial. We disagree.

¶ 17. Dr. Brodsky examined Phinizee in May 2013. Dr. Brodsky testified that Phinizee could not read at all and did not demonstrate effective comprehension. The IQ tests reflected that Phinizee scored in the range of someone with mental retardation. As a result, Dr. Brodsky concluded that based upon Phinizee's major impairments and intellectual disabilities, he was unable to understand and assist in his defense during his trial.

¶ 18. However, Dr. Storer testified that while Phinizee had intellectual disabilities and certain deficiencies, he was unable to give an opinion with reasonable certainty that Phinizee was unable to understand and assist in his defense. However, Dr. Storer stated that it was his opinion to a reasonable degree of psychological certainty that he was not suffering from a mental disease or defect that could have interfered with Phinizee's ability to know the difference between right and wrong in relation to the crimes for which Phinizee was convicted. Dr. Storer voiced that his testimony was based on the fact that no one performed an examination of Phinizee in 2006 to determine whether he was competent to stand trial. Dr. Storer stated that "competency to stand trial has to be assessed at a specific time in a specific situation."

¶ 19. This Court addressed similar issues regarding competency and a trial judge's observations in Brasso , 195 So.3d at 867 (¶ 33). The dissent in Brasso noted "that the U.S. Supreme Court has stated that mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial." Id. at 866 (¶ 40) (Wilson, J., dissenting); see Atkins v. Virginia, 536 U.S. 304, 318, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). We agree.

¶ 20. Phinizee "has the burden of showing he is entitled to relief by a preponderance of the evidence." Kidd v. State , 221 So.3d 1041, 1043 (¶ 8) (Miss. Ct. App. 2016). However, we are of the opinion that Phinizee did not meet that burden. The trial court heard the testimony of both experts after their thorough examinations of Phinizee, but the trial court was not persuaded by the testimony of Phinizee's expert witness. As a result, the trial court rejected Dr. Brodsky's testimony regarding Phinizee's competency and found that Phinizee was competent to stand trial in 2006.

¶ 21. The trial court also took into account that Phinizee was able to manage Bernard's Pool Hall for a number of years. This Court must note that Phinizee filed his PCR motion alleging ineffective assistance counsel. Phinizee's trial counsel testified that Phinizee cooperated with him and he saw no signs of incompetency. The trial court heard the testimony presented and made a ruling. "[D]eference is given to the trial court as the sole authority for determining credibility of the witnesses." Walton , 233 So.3d at 911 (¶ 9).

¶ 22. As a result, the trial court found that there was no evidence presented to support Phinizee's assertion that he received ineffective assistance of counsel. Accordingly, we find no error.

¶ 23. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      We note that the Uniform Rules of Circuit and County Court relating to criminal practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. But, because the former rules were still in effect during Phinizee's trial, Rule 9.06 applies to Phinizee's case. The same applies to any other of the former rules cited in this opinion.

      Dr. Storer testified that the Mississippi Supreme Court had already decided that one could not determine whether someone was competent retroactively. However, the Supreme Court has recently held that "a trial court's competency evaluation order does not in and of itself conclusively (or necessarily) establish, for purposes of Rule 9.06's mandates, or appellate-review purposes, that the trial court had reasonable grounds to believe the defendant was incompetent to stand trial." Pitchford v. State , 240 So.3d 1061, 1069 (¶ 42) (Miss. 2017). "Such a determination must be made based on the facts and circumstances attending each particular case." Id. Therefore, retroactive competency hearings avoid due process rights.

      In Atkins , the U.S. Supreme Court held "that [capital] punishment [wa]s excessive and that the Constitution places a substantive restriction on the State's power to take the life of a mentally retarded offender." 536 U.S. at 321, 122 S.Ct. 2242 (internal quotation marks omitted).


text:
    Timothy MCCOY, Appellant v. DIRECT EXPRESS, Anthony McCoy and Kim Havard, Appellees
    NO. 2017-CP-00655-COA
    Court of Appeals of Mississippi.
    June 19, 2018
    ATTORNEY FOR APPELLANT: TIMOTHY ALLEN MCCOY (PRO SE)
    ATTORNEY FOR APPELLEES: NO APPEARANCE
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. Timothy McCoy (McCoy) appeals the Rankin County Circuit Court's dismissal of his complaint against Direct Express, Anthony McCoy, and Kim Havard (collectively, the Defendants). McCoy argues the circuit court erred by finding that he failed to perfect service of process on any of the Defendants within 120 days of filing his complaint. See M.R.C.P. 4(h). Finding no error, we affirm.

FACTS

¶ 2. On September 27, 2016, McCoy filed a pro se complaint against the Defendants. McCoy alleged that Anthony and Havard fraudulently used his Direct Express debit card to steal over $6,000 from his bank account and that Direct Express allowed Anthony and Havard to commit the unauthorized withdrawals. On February 1, 2017, the circuit court entered an order finding that McCoy had failed to serve a summons and copy of the complaint on any of the Defendants within 120 days of filing his complaint. See id. The circuit court gave McCoy thirty days to show good cause for his failure to effect service. See id. On February 16, 2017, McCoy responded to the circuit court's order. McCoy asserted that, on October 20, 2016, he mailed the following documents to each Defendant at the Defendant's last known address: (1) a notice, (2) the complaint, and (3) a summons. McCoy attached copies of these documents to his response. According to McCoy's information, Havard resided in Mississippi while both Anthony and Direct Express were located out of state.

¶ 3. On March 10, 2017, the circuit court entered a judgment finding that McCoy had failed to show good cause for his failure to timely serve the Defendants. The circuit court therefore dismissed McCoy's complaint under Rule 4(h). McCoy filed an unsuccessful motion for reconsideration. Aggrieved, McCoy appeals the circuit court's judgment dismissing his complaint.

DISCUSSION

¶ 4. Under Rule 4(h), a plaintiff has 120 days after filing his complaint to perfect service of process on a defendant. Where a plaintiff fails to perfect service within the 120-day period and fails to show good cause for the untimely service, Rule 4(h) directs the court to dismiss the plaintiff's complaint without prejudice. In the present case, McCoy argues the circuit court erroneously dismissed his complaint because he timely effected service of process on each Defendant.

¶ 5. McCoy attempted to serve the Defendants by mailing process to their last known addresses. Mississippi Rule of Civil Procedure 4(c)(3) provides a mechanism for service of process by mail. To perfect service under Rule 4(c)(3), a plaintiff must mail "a copy of the summons and ... the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment ...." "The defendant, either individually or through its agent, must then return the acknowledgment to the plaintiff." Tucker v. Williams , 7 So.3d 961, 965 (¶ 10) (Miss. Ct. App. 2009) (citing M.R.C.P. 4(c)(3)(A) ). Where the person or entity being served by mail fails to return the acknowledgment to the plaintiff "within 20 days after the date of mailing, service of such summons and complaint may be made in any other manner permitted by [ Rule 4 ]." M.R.C.P. 4(c)(3)(B).

¶ 6. Here, McCoy mailed each Defendant a copy of the notice, the summons, and the complaint. However, Rule 4(c)(3) required McCoy to mail two copies of the notice to each Defendant. The rule further required McCoy to mail two copies of an acknowledgment to each Defendant. See M.R.C.P. 4(c)(3). The record contains no proof, though, that McCoy ever mailed the Defendants an acknowledgment, and McCoy never asserts that he did so. As a result, McCoy never received the acknowledgment back from any of the Defendants "within 20 days after the date of mailing," which is the final required step for perfection of service by mail. M.R.C.P. 4(c)(3)(B). Thus, McCoy never perfected service of process on the Defendants by mail under Rule 4(c)(3).

¶ 7. Despite this failed attempt to mail process, McCoy remained free to make other attempts to serve process on the Defendants within the 120-day time period in any manner permitted by Rule 4. However, McCoy's unsuccessful mailing of process constituted his one and only attempt to serve the Defendants. We therefore find no error in the circuit court's determination that McCoy failed to timely serve the Defendants or to show good cause for not doing so. Accordingly, we affirm the circuit court's dismissal of McCoy's complaint.

CONCLUSION

¶ 8. Because McCoy failed to properly serve the Defendants under Rule 4, we affirm the circuit court's judgment dismissing his complaint.

¶ 9. AFFIRMED.

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


author: WILSON, J., FOR THE COURT:

text:
    Jerry PAGE a/k/a Jerry Abram a/k/a Jerry Abrams, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01464-COA
    Court of Appeals of Mississippi.
    June 19, 2018 Rehearing Denied September 25, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Following a jury trial in the Marion County Circuit Court, Jerry Page was convicted of first-degree murder, arson, possession of a firearm by a convicted felon, and simple assault on a law enforcement officer. The circuit court sentenced Page, as a violent habitual offender, to four consecutive terms of life imprisonment without the possibility of parole.

¶ 2. Through appellate counsel, Page argues that his convictions should be reversed for five reasons: (1) the trial judge erred by admitting an unredacted copy of Page's New Jersey Superior Court criminal case file, which the State used to establish that Page was a convicted felon, an essential element of the felon-in-possession charge; (2) Page's trial counsel provided ineffective assistance by refusing to stipulate that Page was a convicted felon, which led to the admission of the New Jersey court file; (3) the trial judge erred by allowing the jury to hear the audio of a witness's prior statement and by allowing the jurors to have a transcript of the statement while it was played; (4) the trial judge erred by limiting Page's cross-examination of a prosecution witness regarding the witness's criminal history; and (5) the cumulative prejudicial effect of these errors deprived Page of a fair trial. Page also filed a pro se brief that alleges additional errors. For the reasons discussed below, we find no reversible error and affirm Page's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 3. On Labor Day morning, September 1, 2014, a thoroughly burned, still smoldering pickup truck was found on East Reservoir Road in rural Marion County. A burned human body was in the bed of the truck. The truck was identified as a white Ford Ranger owned by Billy Paul Cooper. The body was identified as Billy Paul Cooper's son, Ryan Cooper.

¶ 4. Investigator Jamie Singley of the Marion County Sheriff's Department noticed a puddle of blood at the back of the truck and a trail of blood leading away from it. The trail led to another puddle of blood in the driveway of Jerry Page's residence on Goss-Bunkerhill Road. The blood trail then continued to James Kelly's home on nearby Expose Road.

¶ 5. Later that day, Singley was looking for Page when he saw a truck matching the description of Page's truck. Singley followed the truck to a gas station, and confirmed from a check of the license plate that it was Page's truck. Page parked at the gas station and exited his truck, and Singley exited his car and approached Page. Singley showed Page his badge and stated that he wanted to talk. Page then ducked behind a corner of the building, out of Singley's sight, and Singley heard the "very familiar sound" of "the rack of a pistol." Singley took cover and drew his pistol, and he saw Page pointing a pistol in his direction. Page then fled on foot, and Singley pursued him. Still holding his pistol, Page motioned at Singley in a threatening manner, as if to say "come on." Singley decided to wait for backup before continuing his pursuit of Page.

¶ 6. Page was apprehended that evening on Expose Road. The arresting officers saw Page throw something into a ditch just before he was taken into custody, and the officers recovered a black semiautomatic pistol, a Lorcin .380, from the ditch. Multiple witnesses implicated Page in Cooper's murder, and Singley's investigation led him to conclude that Page shot Cooper and that Anthony Abram helped Page move and burn Cooper's body. Page and Anthony Abram were indicted and tried together.

¶ 7. Alex Abram testified that on August 31, 2014, he hosted a barbecue at his home on Expose Road. As the party wound down, Abram and David Holmes walked to James Kelly's home, which was about a quarter of a mile away on Expose Road. As Alex Abram and Holmes approached Kelly's house, Abram heard people talking and arguing outside the house. Abram saw two white trucks, one of which he recognized as Page's truck. Alex Abram saw Page, Cooper, Anthony Abram, and Alex Garner outside the house. As Alex Abram and Holmes drew closer to Kelly's house, Alex Abram realized that Page and Cooper were arguing. Alex Abram saw Page with a gun, he "heard the gun cock," and then he and Holmes both turned and ran back toward his house.

¶ 8. Alex Abram testified that as he was running back to his house, he saw the two white trucks drive by, but he could not identify the drivers. The State was then allowed to refresh Abram's memory by playing the audio of his prior statement to law enforcement. The jurors listened to the audio and were provided with transcripts to follow along; however, neither the recording nor the transcript were admitted into evidence, and the transcripts were collected from the jurors immediately after the audio was played. His memory refreshed, Alex Abram testified that he could identify the drivers of the two trucks-Page was driving his own truck, and Anthony Abram was driving Cooper's truck.

¶ 9. Holmes similarly testified that he and Alex Abram walked to Kelly's house after the barbecue at Abram's house. As they approached Kelly's house, Holmes saw Page, Cooper, and Alex Garner engaged in conversation. Holmes did not see Anthony Abram. Holmes testified that "[w]hen [he] heard a gun cock, [he] turned and ran." He did not see the gun, but he heard a gunshot as he ran. Holmes acknowledged that he had been indicted for hindering prosecution in connection with Cooper's murder, but the State agreed to drop the charge in exchange for his truthful testimony against Page.

¶ 10. Garner testified that he rode with Cooper to Alex Abram's barbecue. He testified that Cooper argued with Page, Anthony Abram, Alex Abram, and Holmes. Cooper and Garner then left the barbecue in Cooper's truck. As they drove away, someone fired a gun in their direction. Garner testified that he and Cooper drove to Kelly's house, and the other men followed in Page's truck and confronted Cooper again. Anthony Abram put a gun to Cooper's head but put it down. Page then walked up and shot Cooper in the face. Garner testified that Holmes and Alex Abram walked away after the shooting.

¶ 11. Garner testified that Anthony Abram put Cooper's body in the back of Cooper's truck. Anthony Abram then drove off in Cooper's truck, and Page followed in his own truck. Page returned about forty-five minutes later, and Garner gave him a gas can to help burn the blood in the driveway. Garner also helped Page cover up blood with dirt. Page then left.

¶ 12. Garner testified that Page threatened that he would kill Garner and Garner's mother if Garner told anyone about the murder. Garner testified that Page made these threats both on the night of the murder and later while they were both in jail awaiting trial. Garner acknowledged that he had been indicted as an accessory after the fact to murder and for hindering prosecution. Garner testified that in exchange for his truthful testimony against Page and Anthony Abram, the State had agreed to recommend that he receive a sentence of twenty years' imprisonment, with sixteen years suspended and four years to serve, as an accessory after the fact.

¶ 13. A Deputy State Fire Marshal examined the burnt truck and testified that the fire was not set accidentally or caused by an electrical incident. He determined that the fire started in the cab of the truck, but he could not determine the specific cause or source. Expert witnesses established that blood found at Cooper's burned truck, at Page's house, at Kelly's house, and at various points on the trail between those locations was Cooper's blood. The bullet that killed Cooper did not match the .380 Lorcin pistol that Page tossed into a ditch just before his arrest. The murder weapon was never recovered.

¶ 14. After the State rested, Anthony Abram called only one witness, Hilda Patton, who testified that Anthony Abram was a friend, that he lived at her house in August 2014, and that he was at her house on the night of the murder. Patton testified that she disclosed this information to Anthony Abram's attorney about two weeks before trial. She acknowledged that she had not told anyone else about this during the two years that Anthony Abram had been in jail pending trial. Page then recalled Singley for the purpose of having the transcript of Singley's interview of Garner read to the jury. Page then rested and the State finally rested. The jury found Page guilty on all four charges against him-first-degree murder, arson, possession of a firearm by a convicted felon, and simple assault on a law enforcement officer-and found Anthony Abram guilty as an accessory after the fact to first-degree murder. The court sentenced Page, as a violent habitual offender, to four consecutive terms of life imprisonment. See Miss. Code Ann. § 99-19-83 (Rev. 2015). Page filed a motion for judgment notwithstanding the verdict or a new trial, which the circuit court denied, and a notice of appeal.

ANALYSIS

¶ 15. As noted above, Page's appointed appellate counsel filed a brief that raises five issues. See supra ¶ 2. Page's supplemental pro se brief raises five additional issues. We address these issues in turn.

I. The trial judge did not abuse his discretion by admitting certified records of Page's prior convictions.

¶ 16. Prior to trial, the State indicated that it intended to introduce evidence of Page's prior felony convictions to prove the charge of illegal possession of a firearm. The State offered that it would not seek to introduce such evidence if Page stipulated that he was a prior convicted felon. Page's attorney responded, "We're not stipulating to anything ...."

¶ 17. Thus, at trial, the State offered a certified court file that included more than fifty pages related to Page's prior convictions in New Jersey. The file included judgments showing convictions for sexual assault, burglary, attempted burglary, robbery, armed robbery, resisting arrest, and possession of weapons for an unlawful purpose. It also included documents commenting on Page's unsuitability for probation based on his extensive criminal history, violent behavior, and the likelihood that he would re-offend; documents showing additional charges that were dismissed pursuant to a plea bargain (a weapons charge, assault, and assault with the intent to kill), a charge that ended in a mistrial (aggravated assault), and charges on which Page was acquitted (various weapons charges); documents describing some of the underlying facts of some of Page's prior offenses; mug shots and fingerprints; and miscellaneous other documents. The defense objected and argued that everything in the file should be redacted other than the judgment showing Page's first conviction for sexual assault, which was the only prior conviction identified in the indictment. The trial judge overruled the objection, stating that he was not going to "sanitize" the certified New Jersey records and that such extensive redactions would risk "confusing" the jury.

¶ 18. On appeal, Page argues that the trial court erred and that most of the file should have been redacted or excluded pursuant to Mississippi Rules of Evidence 401, 403, and 404(b). We review a trial court's admission of evidence for abuse of discretion. Chaupette v. State , 136 So.3d 1041, 1045 (¶ 7) (Miss. 2014). "We give great deference to the discretion of the trial judge, and unless we conclude that the [decision] was arbitrary and clearly erroneous, amounting to an abuse of discretion, the trial judge's decision will stand." Id. (internal quotation marks and brackets omitted). "Moreover, we may reverse ... only if the admission or exclusion of evidence results in prejudice and harm or adversely affects a substantial right of a party." Id. (comma and internal quotation mark omitted). In this case, we find no abuse of discretion.

¶ 19. "[W]hen pursuing a felon-in-possession charge, if the defendant does not offer to stipulate to his status as a prior-convicted felon, 'the prosecution is entitled to prove its case by evidence of its own choice.' " Minor v. State , 89 So.3d 710, 716 (¶ 18) (Miss. Ct. App. 2012) (quoting Esco v. State , 9 So.3d 1156, 1165 (¶ 37) (Miss. Ct. App. 2008) ; Old Chief v. United States , 519 U.S. 172, 186-87, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) ) (brackets omitted). "When a prior conviction is an element of a crime, the State is authorized to introduce evidence of the conviction and is not limited in its method of proof." Carter v. State , 941 So.2d 846, 854 (¶ 33) (Miss. Ct. App. 2006) (citing Evans v. State , 802 So.2d 137, 141 (¶ 9) (Miss. Ct. App. 2001) ). Here, Page expressly refused to stipulate to his status as a prior-convicted felon. Therefore, the State was "entitled to prove its case by evidence of its own choice." We cannot say that the trial judge abused his discretion by overruling Page's request for extensive redactions of the certified records that the State received from New Jersey. Page's earlier convictions, including the sexual assault conviction identified in the indictment in this case, were under the name Jerry Abram rather than Jerry Page. The admission of the complete file served to make clear that Jerry Abram and Jerry Page were the same person.

Moreover, the prosecutors did not even mention Page's additional convictions or charges. Rather, in closing argument, the State only briefly mentioned Page's one prior conviction for sexual assault, and it did so only to address the relevant element of the felony-in-possession charge.

¶ 20. Generally speaking, a defendant in a felon-in-possession case is entitled to stipulate to his status as a prior-convicted felon, and he can thereby prevent the introduction of evidence of the specific nature of his prior crimes. See Williams v. State , 991 So.2d 593, 605-06 (¶ 40) (Miss. 2008). However, the defendant cannot refuse to so stipulate-as Page refused in this case-and then dictate what evidence the State may use to meet its burden of proof. We find no abuse of discretion in the trial judge's ruling in this case.

II. The record does not establish that Page received ineffective assistance of counsel at trial.

¶ 21. Page also argues that trial counsel's "failure to offer a stipulation [to his prior felony convictions] is per se ineffective assistance of counsel." However, we generally decline to address ineffective assistance of counsel claims on direct appeal. See Pinter v. State , 221 So.3d 378, 386 (¶ 19) (Miss. Ct. App. 2017). "We will reach the merits on an ineffective assistance claim only where '(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding.' " Collins v. State , 221 So.3d 366, 372 (¶ 19) (Miss. Ct. App. 2016) (quoting Wilcher v. State , 863 So.2d 776, 825 (¶ 171) (Miss. 2003) ). Here, the record does not affirmatively show that Page's constitutional rights were violated, nor does the State stipulate that the record is adequate to make such a determination. Page may raise the issue in a properly filed motion for post-conviction relief. See Miss. Code Ann. § 99-39-7 (Rev. 2015) (providing that when the petitioner's conviction and sentence have been affirmed on direct appeal, the petitioner must obtain leave of the Supreme Court before filing a motion for post-conviction relief in the circuit court).

¶ 22. Although we do not reach the merits of Page's ineffective assistance claim, we do note that the specific decision to refuse to stipulate to a prior felony conviction "has been found to be a reasonable trial strategy." Collins v. State , 221 So.3d 366, 372-73 (¶ 21) (Miss. Ct. App. 2016), cert. denied , 220 So.3d 975 (Miss. 2017). "This Court has stated that stipulating to the prior felony could give 'the jury the impression that the defense had some reason to hide facts of the prior cases from them.' " Id. (quoting Williams v. State , 819 So.2d 532, 538 (¶ 18) (Miss. Ct. App. 2001) ) (brackets omitted). The decision not to stipulate not only avoids that risk but also puts the State to its burden of proof on each element of the crime. Thus, the decision is not "per se ineffective assistance of counsel," as Page argues. With that observation, we deny this claim without prejudice to Page's ability to raise the issue in a post-conviction proceeding.

III. The State's use of a prior statement to refresh a witness's memory was not reversible error.

¶ 23. Page next argues that the trial court erred by allowing the State to use the audio recording and a transcript of Alex Abram's statement to law enforcement as an improper means of "bolstering" Abram's testimony.

¶ 24. As discussed above, the State asked to play part of the audio of Alex Abram's prior statement to law enforcement after Abram testified that he did not see who was driving the two white trucks that drove away from James Kelly's house just after the murder. See supra ¶ 8. The State argued that the audio could "refresh" Abram's memory. Counsel for Page and Anthony Abram objected, but they did not object to the use of the recording per se. Rather, Page's attorney complained that the State was "cherry picking" by seeking to play only part of the recording, and Anthony Abram's attorney then insisted that the entire recording should be played. The trial judge gave the defense what it wanted and allowed the jury to hear the entire recorded interview, which lasted about nine minutes. The judge also ruled that the jurors should be given transcripts of the interview to follow along. Counsel for both defendants objected to the court's decision to give the jurors transcripts of the recording; however, the trial judge overruled their objections. The transcripts were collected from the jurors after the recording was played.

¶ 25. We first conclude that Page waived any objection to the use of the audio recording. Page did not object to the use of the recording per se; rather, the defendants seemed to agree that the jury should hear the entire interview. See M.R.E. 612(b) (describing an adverse party's options if a witness uses a recording to refresh the witness's memory); Galloway v. State , 122 So.3d 614, 645 (¶ 87) (Miss. 2013) ("A defendant cannot complain on appeal of alleged errors [that he] invited or induced ....").

¶ 26. Page did object to the trial judge's decision to allow the jurors to have transcripts of the interview while it was played. However, the Supreme Court has approved of a "transcript being provided merely for [jurors'] convenience to follow [a] tape [recording]." Coleman v. State , 697 So.2d 777, 785 (Miss. 1997) (citing Dye v. State , 498 So.2d 343, 344 (Miss. 1986) ; U.S. v. Onori , 535 F.2d 938, 946-49 (5th Cir. 1976) ). In Coleman , the judge told the jurors that the transcript "was only to be used as a guide" and that they should "pay attention to the tape" for any discrepancies. Id. In addition, "[t]he transcripts were retrieved from the jury, so that they weren't allowed to review [the transcript] during deliberations." Id. "Under [those] circumstances, the use of the transcripts was not error." Id.

¶ 27. In this case, the trial judge similarly told to the jurors that the transcript was to be used as an aid, although the judge did not expressly state that it was only to be used as a guide. In addition, as in Coleman , the judge cautioned the jurors that the transcripts would be taken up at the end of the recording, so during deliberations each juror "would have to use [his or her] best memory as to what [Abram] said." Under the circumstances, as in Coleman , the trial judge committed no abuse of discretion.

¶ 28. In summary, Page waived any objection to the playing of the interview, and it was not an abuse of discretion to allow the jurors to have transcripts. This issue is without merit.

IV. The limitation of Page's cross-examination of a prosecution witness was, at most, harmless error.

¶ 29. At trial, Alex Garner admitted on cross-examination that he was a convicted felon; however, when Page's trial counsel asked Garner to identify the crime of which he had been convicted, the judge sustained the State's objection. On appeal, Page argues that the judge's ruling was an abuse of his discretion.

¶ 30. "Given the constitutional right of a criminal defendant to confront those testifying against him, [the Mississippi Supreme Court has interpreted Mississippi Rule of Evidence] 609(a)(1) as allowing full impeachment of prosecution witnesses without the requirement of a balancing test, except in extreme situations such as where the prosecution witness has a prior conviction that is both highly inflammatory and completely unrelated to the charges pending against the accused." White v. State , 785 So.2d 1059, 1062 (¶ 10) (Miss. 2001) ; accord Reed v. State , 191 So.3d 134, 142 (¶ 23) (Miss. Ct. App. 2016). Under the Supreme Court's decision in White , "fullimpeachment " includes the right to cross-examine the witness about the witness's specific prior felony convictions. White , 785 So.2d at 1062 (emphasis added); see Jefferson v. State , 818 So.2d 1099, 1109-10 (¶¶ 24-28) (Miss. 2002). If the defendant were limited-as Page was in this case-to asking if the witness had been convicted of some unspecified felony, it would be unnecessary for the court to consider whether a specific prior conviction would be "highly inflammatory." White , 785 So.2d at 1062. Thus, the defendant generally is entitled to cross-examine prosecution witnesses about their specific prior convictions. Accordingly, the trial court erred by limiting Page's further inquiry into Garner's specific prior felony convictions.

¶ 31. Nonetheless, the trial court's ruling was not reversible error for two reasons. First, Page failed to make a proffer regarding Garner's prior felony conviction(s). Without knowing the nature of Garner's specific prior felony conviction(s), it is impossible for this Court to find that Page was prejudiced by the trial court's ruling limiting cross-examination to Garner's general status as a prior convicted felon. See Turner v. State , 732 So.2d 937, 951 (¶ 55) (Miss. 1999) ("When a trial court rules so as to prevent certain testimony from being introduced, it is incumbent on the party to make a proffer of what the witness would have testified to or the point is waived for appellate review.").

¶ 32. Second, although no proffer was made, the State infers from statements made during a sidebar that Garner's prior conviction was for residential burglary. If that is the case, any error was harmless. In his testimony, Garner admitted that he was a prior convicted felon, that he was testifying pursuant to a plea bargain, and that he would plead guilty as an accessory after the fact to first-degree murder. Given these admissions, Garner's prior conviction for residential burglary would have had only the slightest marginal impeachment value, if any. Moreover, Page's trial counsel thoroughly cross-examined Garner, highlighting his plea agreement with the State. Accordingly, on the facts of this case, we find that any error was harmless. See Jefferson , 818 So.2d at 1110 (¶ 28) (holding that the trial court's error in limiting cross-examination about a witness's prior conviction for selling cocaine was harmless given that the witness admitted during his testimony on cross-examination that he was a convicted felon).

V. The trial court did not abuse its discretion by excluding defense witnesses as a sanction for discovery violations.

¶ 33. In his pro se brief, Page argues that the trial court erred by excluding witnesses who would have provided an alibi and/or "testified to knowing why the victim was killed [for reasons] having nothing to do with [Page]." Page argues that under former Rule 9.04 of the Uniform Rules of Circuit and County Court Practice (URCCC), the trial court should not have excluded the witness but should have offered the State a continuance to interview the witnesses and prepare for their testimony. Page also argues that the witnesses' exclusion violated his right to compulsory process under the Sixth Amendment of the United States Constitution and article 3, section 26 of the Mississippi Constitution.

¶ 34. Page apparently disclosed the names of certain witnesses eleven days before trial; however, Page apparently failed to disclose anything about the substance of the witnesses' prior statements or anticipated testimony. Rule 9.04(C)(1) required Page to disclose the names and addresses of all witnesses that he intended to call at trial, along with a copy of any written or recorded statement "and the substance of any oral statements made by such witness." URCCC 9.04(C)(1). In addition, Rule 9.05 required Page to disclose the names and addresses of all alibi witnesses that he intended to call, together "the specific place or places at which [Page] claim[ed] to have been at the time of [Cooper's murder]." URCCC 9.05. On the morning of trial, the State argued that Page had violated both rules because he had disclosed nothing other than the witnesses' names. The State asked the trial judge to exclude the witnesses' testimony based on Page's discovery violations. See URCCC 9.04(I) & 9.05 ; McGregory , 979 So.2d at 17 (¶ 8) ;

Houston v. State , 752 So.2d 1044, 1045-47 (¶¶ 7-14) (Miss. Ct. App. 1999).

¶ 35. In response to the State's argument, Page's counsel stated as follows:

I don't know what they are to be quite frank. To be quite frank, when the investigator talked to them, we couldn't get much of anything out of them. My client gave me their names. I subpoenaed them to get them here so I can talk to them. My best guess is they're not going to be used, but I'm just grasping [at straws] to get-to try to prepare some kind of defense to some aspect of this case.

Based on this response, the trial judge granted the State's motion to exclude the witnesses.

¶ 36. We review the exclusion of witnesses as a sanction for discovery violations under the abuse of discretion standard. McGregory v. State , 979 So.2d 12, 17 (¶ 7) (Miss. Ct. App. 2008). The trial court must not "disregard the 'fundamental character of the defendant's right to offer the testimony of witnesses in his favor.' " Id. at (¶ 8) (quoting Coleman v. State , 749 So.2d 1003, 1009-10 (¶¶ 16-17) (Miss. 1999) ). However, "[u]pon weighing all relevant factors in the case, unless there is clear error in judgment as to the sanctions imposed ..., this Court will affirm the imposed sanction." Id. at (¶ 7).

¶ 37. Here, even on the morning of trial, Page's counsel was unable to state what the witnesses might say or whether any of them would attempt to provide an alibi. Under these circumstances, the trial judge did not abuse his discretion by excluding the witnesses as a sanction for Page's discovery violations. Moreover, trial counsel candidly admitted that the witnesses had provided little information to his investigator and probably would not be called, and the record contains no further proffer as to what the witnesses' testimony might have been. Thus, there is no support in the record for Page's pro se claim that he was prejudiced by the exclusion of the witnesses. This issue is without merit. See Davis v. State , No. 2015-KA-01491-COA, 243 So.3d 222, 234-38, 2017 WL 4386694, at *10-*12 (¶¶ 61-69) (Miss. Ct. App. Oct. 3, 2017) (rejecting a similarly unsubstantiated claim alleging error in the exclusion of defense witnesses), cert. denied , 2018 WL 2540527 (Miss. May 10, 2018).

VI. The trial judge did not err by telling the jury that Page had been indicted for possession of a firearm by a convicted felon.

¶ 38. Page next claims that the trial judge violated URCCC Rule 11.03 by informing the jurors that Page had been indicted on four counts, including possession of a firearm by a felon. Rule 11.03 governs procedure for "cases involving enhanced punishment for subsequent offenses." URCCC 11.03. The rule's purpose is "to keep the jury from hearing evidence of ... previous felonies" that are the basis for such enhanced punishment "so as to not influence its verdict on the present charge." Edwards v. State , 75 So.3d 73, 76 (¶ 7) (Miss. Ct. App. 2011). Rule 11.03 does not apply to felon-in-possession charges.

Jones v. State , 95 So.3d 672, 676 (¶ 9) (Miss. Ct. App. 2011). In a felon-in-possession case, proof that the defendant is a prior convicted felon is not a matter of "enhanced punishment." It is an element of the offense , which must be proven and found by the jury beyond a reasonable doubt. As discussed above, Page refused to stipulate to his status as a prior convicted felon, so the State was required to prove that element. The trial judge did not violate Rule 11.03, and this issue is without merit.

VII. The trial judge did not abuse his discretion by denying Page's motion to exclude one page allegedly omitted from the State's discovery.

¶ 39. Page next argues that the State committed a discovery violation by failing to disclose a lab report that was omitted from discovery provided by the State. During trial, Page's counsel moved to exclude part of a lab report, referred to as "Page 372," which contained the results of a test of a blood sample that was shown to be Cooper's blood. The State had provided the defendants with Bates-stamped discovery on a disc, and both defense counsel represented that they did not notice the omission of "Page 372" until trial was underway. Page moved to exclude the omitted page but did not request a continuance or mistrial. In response, the State noted that the disc was provided to the defendants more than a year before trial, and the State argued that defense counsel should have noticed the omission because "Page 372" was omitted from the disc (i.e., the disc skipped from page 371 to page 373) without explanation. The State also argued that the one-page omission was de minimis given that similar reports of other samples were disclosed. The trial judge found that the error was unintentional and that admission of the omitted page would not prejudice Page.

¶ 40. As discussed above, we review a trial judge's rulings on alleged discovery violations for abuse of discretion. Page did not request a continuance or a recess to review Page 372; he only requested that the document be excluded. However, even on appeal, Page fails to articulate how the admission of Page 372 prejudiced his defense. We find no abuse of discretion in the admission of Page 372.

VIII. Page's remaining complaints about the jurors and the trial judge are procedurally barred and/or without merit.

¶ 41. The final issue raised in Page's pro se brief is comprised of four claims about jurors and the trial judge. All four claims are procedurally barred and/or without merit.

¶ 42. First, Page complains that a juror "was allowed to cry" and "became emotional" in open court before she was excused. The incident occurred after closing statements. Before he excused the jurors to deliberate, the trial judge asked whether there was any reason that any of them could not go into the jury room, and one juror indicated that she could not. The judge asked the juror to approach the bench, and the judge noted for the record that the juror was "crying" and "visibly upset." The juror then stated that her son had been "shot" and "killed" at some earlier date, and, without further elaboration, she indicated that she was too emotional and distraught to deliberate. The judge excused the juror, and an alternate was substituted in her place. The jury then retired to deliberate without further incident. Neither defendant objected or moved for a mistrial. Accordingly, the issue is procedurally barred. See Bush v. State , 222 So.3d 326, 334 (¶ 29) (Miss. Ct. App. 2017). Moreover, there is nothing in the record to suggest that the incident prejudiced Page in any way.

¶ 43. Second, Page complains that the judge did not excuse a juror despite observing her sleeping during opening statements. However, the judge raised the issue with the parties, and neither defendant requested the juror's removal. Therefore, the issue is procedurally barred. See id. at 333-35 (¶¶ 28-31). Moreover, the judge asked the parties to help him keep an eye on the juror, stating that an attentive jury was "important to all sides" and that he would not allow such inattention. There is nothing in the record to indicate that the juror ever slept during the presentation of the evidence. This issue is without merit.

¶ 44. Third, Page claims that one juror "was like a bobble head doll" during the State's closing argument. Page does not elaborate, and there is nothing in the record to support this assertion. The issue is procedurally barred and without merit.

¶ 45. Fourth, Page complains that the trial judge questioned a witness, and he asserts that "the judge expressed pure hostility" to the witness and to Page's counsel, who objected. He cites to the trial judge's brief questioning of Alex Garner. Garner stated that he did not recognize the typed transcript of his statement to law enforcement, and the trial judge briefly questioned him to clarify his testimony. The defendants objected to the judge's questions, and their objections were overruled. The judge stated that he was within his discretion to restate a question to the witness to clarify the witness's answer. We agree.

¶ 46. A trial judge "may examine a witness regardless of who calls the witness," M.R.E. 614(b), and it may be proper to do so to clarify the testimony of "a witness whose testimony is confused and in a fog." Griffin v. State , 171 Miss. 70, 74, 156 So. 652, 653 (1934). "A judge may question a witness so long as the questioning is 'for the purpose of aiding the jury in understanding the testimony.' " Brent v. State , 929 So.2d 952, 955 (¶ 7) (Miss. Ct. App. 2005) (quoting United States v. Saenz , 134 F.3d 697, 702 (5th Cir. 1998) ). However, the judge should not "display[ ] partiality, become[ ] an advocate, or ... convey[ ] to the jury the impression that he has sided with the prosecution." Id. at 955-56 (quoting Layne v. State , 542 So.2d 237, 242 (Miss. 1989) ). In this case, the judge did not display partiality or advocate for the prosecution. There is no support in the record for Page's claim that the judge displayed "hostility" to the witness or to counsel. The judge only clarified the testimony of a confused witness. This issue is also without merit.

CONCLUSION

¶ 47. None of the issues raised by Page's appointed counsel or by Page pro se warrant reversal. Therefore, Page's convictions and sentences are affirmed.

¶ 48. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND TINDELL, JJ., CONCUR. WESTBROOKS, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      Page was formerly known as Jerry Abram. Page and Anthony Abram are brothers.

      Alex Abram testified that he and Page are distant cousins.

      Holmes testified that he and Alex Abram are cousins.

      Anthony Abram's appeal is also pending before this Court. See Abram v. State , No. 2016-KA-01396-COA.

      Rule 612 specifically contemplates that a witness may "use[ ] a writing, recording , or object to refresh [his or her] memory ... while testifying." M.R.E. 612(a) (emphasis added); see M.R.E. 612, advisory committee's note ("Effective August 12, 1992, Rule 612 was amended to allow recordings and objects to be used ...."). In general, if an audio recording is to be used, and the recording is not otherwise admissible, the witness should listen to the recording outside the presence of the jury. See 5 Clifford S. Fishman & Anne T. McKenna, Jones on Evidence: Civil and Criminal § 32:36 (7th ed. 1992) (citing Brock v. Commonwealth , 947 S.W.2d 24, 31 (Ky. 1997) ); accord J.G. v. State , 213 So.3d 936, 937 (Fla. Dist. Ct. App. 2017). Here, however, the defendants insisted that the jury hear the entire interview.

      On appeal, Page complains that as the transcripts were being distributed, the trial judge compared the transcript to a "hymn book." Page asserts that this gave the transcript "a virtual imprimatur of Gospel truth." We disagree. It is clear from the context of the trial judge's comment that it was intended only as an explanation of the transcript's purpose, not a voucher for the truthfulness of anything that Alex Abram said.

      In White , the Supreme Court also made clear that the defendant is entitled to cross-examine a prosecution witness about prior felony convictions, even if the offenses do not involve any dishonesty or false statement. See White , 785 So.2d at 1061 (¶¶ 4-6) ; Reed , 191 So.3d at 143 (¶ 27). Therefore, the trial judge also erred to the extent that he limited Page's cross-examination because he concluded that the commission of a residential burglary was not relevant to Garner's "veracity." See White , 785 So.2d at 1063 (¶ 12) (holding that the trial judge abused his discretion by refusing to allow cross-examination concerning a prior felony drug conviction); Reed , 191 So.3d at 142 (¶ 24) (same as to prior convictions for grand larceny and cocaine possession). However, the trial judge properly prohibited Page from cross-examining Garner about prior arrests that did not result in convictions. See Cassidy v. State , 110 So.3d 335, 340 (¶¶ 21-22) (Miss. Ct. App. 2013).

      Effective July 1, 2017, Rule 17 of the new Mississippi Rules of Criminal Procedure replaced former URCCC Rule 9.04. However, Rule 9.04 applies to the conduct of Page's trial since it was in effect at the time of trial. The same is true of any other URCCC rules cited in this opinion.

      This requirement applied to Page because he requested and received reciprocal discovery from the State. See URCCC 9.04(C).

      This requirement applied to Page because the State made a written demand for a notice of intent to offer an alibi. See URCCC 9.05.

      The second issue in Page's pro se brief also relates in part to the exclusion of the same witnesses. To that extent, Page's second pro se issue is without merit for the same reasons. As part of his second pro se issue, Page also alleges that the trial judge erred by granting the State's pretrial motion in limine to preclude Page from offering "evidence of Alex Garner's behavior in jail." However, the record is unclear as to what evidence of Garner's "behavior" Page would have offered, and we cannot say that Page suffered any prejudice or that the trial judge abused his discretion with respect to this ruling either.

      The indictment subsequently was amended to charge Page as a violent habitual offender. Consistent with Rule 11.03, the trial court did not mention Page's habitual offender status in the presence of the jury.

      As noted previously, Page's appellate counsel also argues that he is entitled to a new trial based on cumulative error. We have found only one harmless error (in the limitation of Page's cross-examination of Alex Garner). Therefore, Page's cumulative error argument also fails. See Keys v. State , 219 So.3d 559, 568 n.8 (Miss. Ct. App. 2017). As noted above, Page's ineffective assistance claim is dismissed without prejudice, so he may assert such a claim in a properly filed motion for post-conviction relief.