author: MAXWELL, J., for the Court:

text:
    Johnny Charles SHORTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-00112-COA.
    Court of Appeals of Mississippi.
    Nov. 24, 2009.
    Rehearing Denied April 27, 2010.

      Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorneys for appellee.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J., for the Court:

¶ 1. Johnny Charles Shorter was found guilty of murder in violation of Mississippi Code Annotated section 97-3-19 (Rev. 2006) by a jury in the Circuit Court of Rankin County, Mississippi. He was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Shorter argues the trial court erred in (1) admitting the 911 call of his divorce attorney, (2) admitting the 911 call of his wife, (3) refusing a manslaughter jury instruction, and (4) failing to grant his motion for a new trial.

¶ 2. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Shorter and his wife, Angelique Shorter, were having marital problems, and Shorter hired attorney Gill Baker to represent him in his divorce proceedings. After the couple separated, Shorter suspected Angelique of becoming romantically involved with another man. One night, while drinking at a local pool hall that he frequented, Shorter ran into Jim Beckman, who Shorter suspected was sleeping with Angelique. Shorter confronted Beckman, but Beckman denied any relationship with her. During their conversation, Shorter told Beckman he believed Angelique was involved with another man named Kenneth Boutwell.

¶ 4. Later that night, Shorter called his attorney, Baker, and informed Baker of his intention to kill a man. Baker understood that Shorter planned to kill Beckman and promptly called 911. In response to the attorney’s call, the Rankin County Sheriffs Department began searching for Beckman. However, soon after the search began, Angelique called 911 and reported that Shorter had shot Boutwell.

¶ 5. Shortly after the shooting, Shorter phoned his father-in-law, and told him he had just killed a man and was going to smoke a cigarette. Shorter also called his sister and informed her of what he had just done. Shorter then waited at the scene of the shooting until deputies from the sheriffs department arrived and arrested him. After being advised of his Miranda rights, Shorter asked one of the deputies, “Is the son of a bitch I shot dead?”

¶ 6. A jury convicted Shorter of murder, and he was sentenced to life in the custody of the MDOC. Shorter filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied.

DISCUSSION

I. Admissibility of Shorter’s Attorney’s 911 Call

¶ 7. Prior to trial, Shorter filed a motion in limine to exclude the contents of a 911 call from his attorney, Baker, to a dispatcher for the Hinds County Sheriffs Office. After hearing arguments outside the presence of the jury, the circuit court held the tape was admissible.

¶ 8. Shorter argues that this ruling was in error for two reasons. First, he contends the crime-fraud exception to the attorney-client privilege does not apply because he did not seek his attorney’s advice to aid him in the furtherance of a crime. Second, he claims the circuit judge improperly admitted the 911 recording based upon ethical rules, rather than an established rule of evidence.

A. Crime-Fraud Exception

¶ 9. “The application of privilege is properly a mixed question of law and fact, with the circuit court’s factual findings reviewed for clear error and its interpretation of the law reviewed de novo.” Hewes v. Langston, 853 So.2d 1237, 1241 (¶ 13) (Miss.2003) (citing United States v. Neal, 27 F.3d 1035, 1048 (5th Cir.1994)).

¶ 10. Generally, under the attorney-client privilege, a “client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.” M.R.E. 502(b). The privilege belongs to the client rather than the lawyer, and “the lawyer ... at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.” M.R.E. 502(c). Our supreme court has stated that the attorney-client privilege is broad, covering “all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client.” Hewes, 853 So.2d at 1244 (¶ 28). The privilege is a “two-way street,” including “communications made by the client to the attorney and by the attorney to the client.” Id. (citation omitted). Additionally, “the privilege does not require the communication to contain purely legal analysis or advice to be privileged.” Id.

¶ 11. The record before us does not contain any portion of the actual conversation between Shorter and Baker. The only indication of the topics discussed between the two are found in Baker’s subsequent 911 calls. After reviewing the contents of these calls, we find the attorney-client privilege applies to the information Baker chose to reveal. Therefore, our inquiry hinges on whether any applicable exceptions to the attorney-client privilege exist.

¶ 12. “The importance and sanctity of the attorney-client privilege is well established!, but] the privilege is not worthy of protection ‘at all costs.’ ” In re Grand Jury Subpoenas v. United States, 144 F.3d 653, 659-60 (10th Cir.1998) (citing Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). No privilege exists where “the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” M.R.E. 502(d)(1). The policy behind the crime-fraud exception is premised upon the theory that “it would be a perversion of the privilege to extend it to the client who seeks advice to aid him in carrying out an illegal or fraudulent scheme.” McCormick on Evidence § 95, at 164 (Kenneth S. Broun et al. eds., 6th ed. 2006).

¶ 13. There is no Mississippi case law addressing the specific factual situation before us. However, an Oklahoma appellate court, in a case with very similar facts, has ruled on the applicability of the crime-fraud exception. In Keller v. State, 651 P.2d 1339, 1341-42 (Okla.Crim.App.1982), the Oklahoma Court of Criminal Appeals found a trial court did not err in allowing two attorneys, in their client’s first-degree-murder trial, to testify about their client’s statements about “getting rid” of the victim. One of the attorneys recounted his client’s statement that “Mr. Busch [the victim] was a dead man and didn’t know it.” Id. at 1341. The Oklahoma court held the attorneys’ disclosure of these statements fell within the crime-fraud exception even though they were not sure their client was serious in requesting advice about “getting rid” of the victim. Id. at 1341-42. In interpreting Oklahoma’s crime-fraud exception, which contains language identical to Mississippi’s, the Oklahoma Court of Criminal Appeals reasoned:

[I]n order that a communication between a lawyer and his client be privileged, it must be for a lawful purpose, or in furtherance of a lawful end. Accordingly, communications made to counsel prior to the commission of a crime which is contemplated by the so-called client, and in reference to the perpetration thereof, or for the purpose of being guided or assisted therein, are in no sense privileged and the attorney may testify thereto.

Id. at 1342. The Oklahoma appellate court held that the State had made a prima facie showing that the crime-fraud exception applied; thus, the statements by the defendant to his attorney had “lost their confidential character.” Id.

¶ 14. Here, it is undisputed that Shorter called his attorney, Baker, and told Baker that he was about to commit a homicide. Baker, who was acting in accordance with Mississippi’s rules of ethics, chose to disclose this information to law enforcement.

¶ 15. Baker first called 911 at approximately 1:00 a.m. on September 6, 2007, shortly before Shorter’s wife, Angelique, called 911 about Boutwell being shot. Baker told the 911 dispatcher that he “just got a call from a client who said he was fixin’ to drive about two miles down the road, stick a gun to a man’s head, and kill him.” Later in the conversation, the police dispatcher asked Baker, “You know what it’s about?” Baker responded, “He [Shorter] was coming to see me about a divorce.” Baker provided law enforcement with Beckman’s name, whom Baker suspected Shorter intended to kill. Baker said he would call back with Beckman’s contact information.

¶ 16. Shortly thereafter, Baker again called 911, and the following exchange took place:

Baker: I was just speaking with someone out there about a possible murder about to happen.
Baker: Johnny was drunk; he had found out about his wife and Mr. Beckman ... over the last couple days. He was supposed to come see me in the morning about a divorce, and that’s all I know about it.... He said he had nothing to lose.
911 dispatcher: Oh yeah he does.
Baker: Yeah, that’s what I’m trying to convince him.

¶ 17. From this conversation, we glean that Shorter, whom Baker refers to as his “client,” did not merely tell Baker what he intended to do and then immediately hang up the phone. Rather, the recording depicts that the two had a conversation about Shorter’s proposed actions. While, according to Baker, Shorter contended he had nothing to lose, Baker attempted, albeit unsuccessfully, to persuade Shorter otherwise and to point out the potential consequences of Shorter’s actions.

¶ 18. Our supreme court has instructed that when a client seeks the attorney’s services to engage in a future crime or fraud, there must be “proof that the crime or fraud actually occurred.” Hewes, 853 So.2d at 1247 (¶ 40). This burden was undoubtedly met, given the abundant proof that Shorter called his attorney, revealed his intention to commit a murder, and shortly thereafter went through with it.

¶ 19. Under these circumstances, we find that although the complained of conversation was privileged, the crime-fraud exception applies. Accordingly, the circuit court did not err in admitting Baker’s 911 call under this exception.

B. Waiver of Privilege Based Upon Rules of Professional Conduct

¶ 20. The circuit judge, as Shorter correctly points out, based his decision in part on the basis that the attorney-client privilege was waived as to the statements in Baker’s 911 call because Baker, pursuant to his ethical duties, properly revealed Shorter’s plans to commit murder. Mississippi Rule of Professional Conduct 1.6 states, in pertinent part, that:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm[.]

¶ 21. Shorter argues that the attorney-client privilege cannot be waived by virtue of a rule of ethics and that the circuit judge essentially disregarded the rules of evidence in ruling on the admissibility of the 911 call.

¶ 22. We find Shorter’s arguments on this issue unpersuasive. The record makes clear that the circuit judge did consider the rules of evidence in addressing the admissibility of Baker’s 911 call. Specifically, as Shorter acknowledges in his brief, the circuit judge stated that “the Court based it’s [sic] ruling [on the admissibility of Baker’s 911 call] in that instance ... after reviewing Rule 1.6 of the Mississippi [Rules] of Professional Conduct ... and Mississippi Rule[] of Evidence 502, [and] the Court made an analysis of [probative [v]alue versus ... prejudicial effect!.]”

¶ 23. Although the circuit judge did not use the words “crime-fraud exception,” he did cite Mississippi Rule of Evidence 502, which specifically addresses the crime-fraud exception. He even pointed out that he was, in part, basing his ruling on Mississippi Rule of Evidence 502.

¶ 24. Since we have determined Baker’s 911 call falls within the crime-fraud exception to the attorney-client privilege, we need not address whether an attorney’s disclosure under Rule 1.6 of the Rules of Professional Conduct also waives the attorney-client privilege.

¶ 25. Furthermore, due to the substantial evidence of Shorter’s guilt, even if we held the admission of these recordings, or any part of them, was error, we find such error would be harmless. Mississippi Rules of Evidence 103(a) provides: “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected!.]” In addition, “[t]o warrant reversal, the error by the trial court must have ‘the effect of denying the defendant a fundamentally fair trial.’ ” O’Neal v. State, 977 So.2d 1252, 1256 (¶ 19) (Miss.Ct.App.2008) (citation omitted). Here, Shorter received a fundamentally fair trial, and any error in the admission of the recording of his attorney’s 911 call was merely harmless in light of the overwhelming evidence of Shorter’s guilt.

II. Admissibility of Shorter’s Wife’s 911 Call

¶ 26. Before trial, Shorter filed a second motion in limine to exclude his wife’s statements made during her 911 call. After hearing from both sides, the circuit judge held the recording of Angelique’s 911 call was admissible. Shorter claims this too was error.

¶ 27. He first contends admission of the recording violated spousal-competency principles. Second, he claims Angelique’s statements from the 911 call were testimonial in nature and their admission violated the Confrontation Clause.

¶ 28. In determining the relevancy and admissibility of evidence, trial courts enjoy considerable discretion. Their rulings will not be reversed unless there was an abuse of discretion that prejudiced the accused. Fisher v. State, 690 So.2d 268, 274 (Miss.1996) (citing Shearer v. State, 423 So.2d 824, 826 (Miss.1982)).

A. Spousal Competency

¶ 29. Mississippi Rule of Evidence 601(a) provides, in pertinent part, that: “In all instances where one spouse is a party litigant the other spouse shall not be competent as a witness without the consent of both[.]”

¶ 30. In response to Shorter’s spousal-competency argument, the State cites Dowbak v. State, 666 So.2d 1377, 1382 (Miss.1996). In Dowbak, our supreme court found there was no violation of the husband-wife privilege or spousal-competency principles in the State’s use of the defendant’s wife as a confidential informant against her husband. Id. (interpreting spousal-competency statute, Mississippi Code Annotated section 13-1-5 (Supp. 1990), now embodied in Rule 601); see also M.R.E. 601 cmt. (Rule 601(a) “retains the substance of superseded M.C.A. § 13 — 1— 5.”). In Dowbak, the supreme court rejected the defendant’s argument that all testimony resulting from his wife’s conversations with police violated spousal-competency principles, and the court declined to hold that spouses “cannot help law enforcement officers investigate or solve crimes in which their spouse might be involved.” Dowbak, 666 So.2d at 1382.

¶ 31. In Dowbalc, neither the defendant’s wife nor the officer to whom she had spoken testified at trial. Id. at 1381. Similarly, here, Angelique, did not actually testify as a witness in court. However, her 911 recording was played to the jury. While Dowbalc is somewhat instructive, we are faced with an issue that was not before the supreme court in that case: whether Rule 601 prevents a spouse’s out-of-court statements from being admitted into evidence.

¶ 32. Although not cited by either party, we note that our supreme court has held the admission of a spouse’s out-of-court statements may violate spousal-competency principles. Ford v. State, 218 So.2d 731, 733 (Miss.1969) (interpreting the spousal-competency provision from the former code section, which contained in substance the same language as Rule 601 with an additional provision regarding discovery). In Ford, the defendant, Billy Ray Ford, was convicted of attempted murder of the Warren County Sheriff. Id. at 732-33. During Ford’s trial, the sheriff was permitted to testify about “telephone conversations initiated by the defendant’s wife wherein she related to him the major details of the plot by her husband and others to take [the sheriffs] life.” Id. at 733. The supreme court held that admission of the sheriffs testimony about the wife’s out-of-court statements was reversible error based upon spousal-competency principles. Id. at 734. However, we find the present matter distinguishable from Ford, and decline to extend spousal-competency rules to bar admission of statements of nontestimonial character.

¶ 33. In Ford, unlike the case at hand, there were no indications that the telephone calls were made under circumstances of an ongoing emergency. See id. As explained further below, although Angelique’s out-of-court statements (in the 911 call) were made to law enforcement, her statements cannot be characterized as resembling in-court testimony because they were made during an ongoing emergency. Therefore, we find the circuit court did not violate Rule 601 in admitting Angelique’s 911 recording.

B. Confrontation Clause

¶ 34. Shorter contends that, under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and its progeny, admission of Angelique’s 911 recording violated the Confrontation Clause of the United States Constitution. We review de novo an assignment of error based on the Confrontation Clause. Smith v. State, 986 So.2d 290, 296 (¶ 18) (Miss.2008) (citation omitted).

¶ 35. The Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]” U.S. Const, amend. VI. The purposes underlying the Confrontation Clause include:

(1) insuring] that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forcing] ... witnesses] to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth; [and] (3) permitt[ing] the jury that is to decide the defendant’s fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility.

Smith, 986 So.2d at 296 (¶ 19) (quoting Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)) (internal quotation marks omitted).

¶ 36. The Confrontation Clause applies to both in-court and out-of-court statements that “bear testimony.” See Crawford, 541 U.S. at 50-51, 124 S.Ct. 1354. In Crawford, the United States Supreme Court defined “testimony” as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact,” and explained that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 51, 124 S.Ct. 1354. In addition, the Court observed: “Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse.” Id. at 56 n. 7, 124 S.Ct. 1354.

¶ 37. The Crawford Court held that when an out-of-court statement is testimonial, it is inadmissible unless the person who made the statement is unavailable to testify and the defendant had a prior opportunity to cross-examine such person. Id. at 53-54, 124 S.Ct. 1354. Although the Crawford decision did not fully define “testimonial,” the Supreme Court held that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68, 124 S.Ct. 1354.

¶ 38. In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the United States Supreme Court elaborated on the definition of “testimonial” in the context of police interrogations. The Davis Court held that a statement is testimonial “when the circumstances objectively indicate that there is no ... ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 822, 126 S.Ct. 2266. Furthermore, a statement is nontestimonial when “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id.

¶ 39. Davis was the consolidation of two companion cases. Id. at 817, 819, 126 S.Ct. 2266. The first case, Davis v. Washington, No. 05-5224, involved a 911 call. Id. at 817, 126 S.Ct. 2266. In Davis, the victim, describing what had just happened with her former boyfriend, told the police dispatcher: “He’s here jumpin’ on me again,” and “[h]e’s usin’ his fists.” Id. at 817, 126 S.Ct. 2266. During the course of the conversation, the victim explained that the former boyfriend had “just [run] out the door.” Id. at 818, 126 S.Ct. 2266. The police arrived on the scene within four minutes of the 911 call, and they observed the victim in a very shaken state with injuries to her face and forearm. Id.

¶ 40. The second case, Hammon v. Indiana, No. 05-5705, also involved a domestic disturbance, but not a 911 call. See id. at 819, 126 S.Ct. 2266. The police responded to a “reported domestic disturbance” at the home of an alleged victim and attacker. Id. When the police arrived, the victim was on the porch and appeared “somewhat frightened,” but nevertheless, she told the officer “nothing was the matter.” Id. She allowed the police to enter the house, and once inside, the officers saw a gas-heating unit surrounded by broken pieces of glass. Id. Her husband was in the kitchen, and the police kept him separated from her, despite his efforts to participate in her conversation with the police. Id. at 819-20, 126 S.Ct. 2266. After hearing the alleged victim’s account, the interviewing officer had her execute an affidavit, which was later admitted at trial. Id. at 820, 126 S.Ct. 2266. Therein, she accused her husband of hitting her, shoving her down on the floor into broken glass, and attacking her daughter. Id.

¶ 41. The Supreme Court held that the statements in Davis, No. 05-5224, were nontestimonial because an ongoing emergency was taking place, while the statements in Hammon, No. 05-5705, were testimonial because there was no such emergency. Id. at 828-30, 126 S.Ct. 2266. In Davis, No. 05-5224, the Supreme Court emphasized that the victim was seeking help, and the statements did not even resemble in-court testimony. Id. at 828, 126 S.Ct. 2266. However, in Hammon, No. 05-5705, the Court emphasized that the “interrogation was part of an investigation into possibly criminal past conduct.” Id. at 829, 126 S.Ct. 2266 (emphasis added). The Court noted there was no existing threat to the alleged victim at the time of her interrogation, and the law enforcement officer “was not seeking to determine (as in Davis) “what is happening,’ but rather ‘what happened.’” Id. at 830, 126 S.Ct. 2266.

¶42. The Davis Court also explained that statements may be partially testimonial. In that event, trial courts are instructed to “redact or exclude the portions of any statement that have become testimonial[.]” Id. at 829, 126 S.Ct. 2266. For example, the Davis Court noted, but did not decide, that part of the 911 call in Davis, No. 05-5224, may have been testimonial, since the call continued after the former boyfriend left the premises. Id.

¶ 43. Here, it is clear that Angelique’s statements were nontestimonial. Angelique’s statements were given to police under circumstances very similar to the 911 call in Davis, No. 05-5224, and under far different circumstances than the battery affidavit at issue in Hammon, No. 05-5705.

¶ 44. At the beginning of her 911 call, Angelique told the police that someone had been shot. She then identified the victim as Boutwell, and the person who had shot Boutwell as Shorter. When asked if the victim was still alive, Angelique said “no,” but then she paused and said, “yes, barely.” Then, the following exchange occurred:

911 Dispatcher: Has your husband left the scene?
Angelique: No
911 Dispatcher: He’s still there?
Angelique: Yes, he is.
911 Dispatcher: OK
Angelique: I have a child here. Please send somebody immediately.
911 Dispatcher: OK, we’re sending somebody out there. The questions I’m asking you aren’t slowing them down any, OK.
Angelique: OK.

¶ 45. Toward the very end of the conversation, Angelique reported to the dispatcher that Boutwell had just died. Though she stated Shorter was not threatening to hurt her or her child, the record is clear that Shorter continued to remain in the house with Angelique during the call. Even after the 911 call had ended, when the law enforcement officers arrived, Angelique was still “shaking” and “distraught,” according to trial testimony.

¶ 46. Under these circumstances, taking into account the Supreme Court’s explanation of the testimonial/nontestimonial distinction in Davis, we find that there was an ongoing emergency taking place when the statements were made. Davis, 547 U.S. at 817-18, 822, 126 S.Ct. 2266. A man who had been shot, Boutwell, was barely alive, and the armed gunman who had pulled the trigger, Shorter, continued to remain in the house with Angelique and her child. Furthermore, Shorter shot Boutwell because he believed he was having an affair with his wife, Angelique, and Shorter was still on the premises at the time of Angelique’s 911 call. There is nothing in the record to establish involvement by the State to produce testimony with an eye toward trial. Rather, Angelique was clearly describing present events, and she was seeking help. Therefore, her statements to law enforcement were nontestimonial, and Crawford's requirements of witness unavailability and a prior opportunity for cross-examination are not implicated. Unlike Hammon, No. 05-5705, here, the police had not yet responded, diffused the situation, and secured the scene.

¶ 47. Assuming for the sake of argument that admission of Angelique’s 911 call, or part of it, violated the Confrontation Clause, any such violation was harmless. Even if the very end of Angelique’s 911 call is deemed testimonial, the vast majority of the recording, containing virtually all of the evidence damaging to Shorter’s case, is clearly nontestimonial under Davis.

¶ 48. As the Supreme Court has said, a criminal defendant is “entitled to a fair trial but not a perfect one, for there are no perfect trials.” Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) (citation and internal quotation marks omitted). The Supreme Court has also “repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Even violations of the Constitution are subject to harmless-error analysis, and, in fact, “most constitutional errors can be harmless.” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); see also Smith, 986 So.2d at 302 (¶ 37) (holding that a Confrontation Clause violation constituted harmless error).

¶ 49. In the present case, even if Angelique’s 911 call had been suppressed, the evidence of Shorter’s guilt is abundant. Such evidence includes Baker’s 911 call to warn that Shorter was about to murder someone, Shorter’s confessions after committing the crime to both his father-in-law and his sister, and Shorter’s questioning one of the officers about whether the “son of a bitch” he had shot was dead. There was also physical evidence matching Shorter’s weapon to the projectiles found in Boutwell’s body, which further established Shorter’s guilt. Although we find the circuit court did not violate the Confrontation Clause by admitting the contents of Angelique’s 911 call since it was nontestimonial in nature, even assuming a violation occurred, the error was at most harmless.

III. The Manslaughter Instruction

¶ 50. Shorter argues the homicide was committed in the heat of passion, and the circuit court erred in refusing a manslaughter instruction.

¶ 51. Manslaughter is defined as the “killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense....” Miss.Code Ann. § 97-3-35 (Rev.2006).

¶ 52. A manslaughter instruction should be given only when the facts developed in the case support the instruction. Simmons v. State, 805 So.2d 452, 473 (¶30) (Miss.2001) (citation omitted); see also Turner v. State, 773 So.2d 952, 954 (¶¶ 6-7) (Miss.Ct.App.2000). “Denial of a manslaughter instruction is proper where the record is clear that the decedent was shot with malice or deliberate design.” Id at 474 (¶ 32) (citation omitted).

¶ 53. Shorter conducted his own investigation to find out who was having sexual relations with his wife. After identifying Boutwell as the one having the affair, Shorter proceeded to Boutwell’s house armed with a .38-caliber pistol. Before Shorter arrived, he phoned his attorney and informed him of his intention to kill someone. The record also indicates that at the time of the shooting Boutwell was unarmed and smoking a cigarette.

¶54. Because there is abundant evidence that the killing at issue was done with deliberate design, the circuit court did not err in refusing Shorter’s manslaughter instruction.

IV. Weight of the Evidence

¶ 55. When reviewing a trial court’s denial of a motion for a new trial based upon an objection to the weight of the evidence, we weigh the evidence in the light most favorable to the verdict and “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted). “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 56. As thoroughly discussed throughout this opinion, the jury was presented with overwhelming evidence of Shorter’s guilt. Viewing the evidence in the light most favorable to the verdict, we cannot say that allowing the verdict to stand would sanction an unconscionable injustice. Accordingly, this issue is without merit.

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

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

      . Although the circuit judge did not hold an in-camera review, he heard arguments from both sides as to the admissibility of the recordings. After asking defense counsel if the parties had “summed up" the contents of the recording and receiving an affirmative response, the circuit judge made his ruling without reviewing the recordings. On appeal, Shorter does not challenge the circuit judge's decision not to listen to the content of the recordings before admitting them into evidence.

      . Specifically, the circuit judge based his ruling on the admissibility of the 911 call in part on Rule 1.6 of the Mississippi Rules of Professional Conduct.

      . Conversely, nontestimonial hearsay falls outside the scope of the Confrontation Clause, but still "is subject to evidentiary rules concerning reliability.” Smith, 986 So.2d at 296-97 (¶ 20) (citing Crawford, 541 U.S. at 68, 124 S.Ct. 1354); see also Davis v. Washington, 547 U.S. 813, 823-24, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).


source: Caselaw Access Project

author: BARNES, J., for the Court:

license: Public Domain

text:
    Brenda LIDDELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-00747-COA.
    Court of Appeals of Mississippi.
    April 13, 2010.

      Leslie S. Lee, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J., for the Court:

¶ 1. Brenda Liddell was convicted in the Circuit Court of Tunica County of selling cocaine. She was sentenced to three years, with the sentence to run consecutively to a previously imposed sentence, in the custody of the Mississippi Department of Corrections (MDOC)'. On appeal, Liddell raises three issues, contending: (1) introduction of improper testimony from the confidential informant (C.I.) about prior drug transactions with Liddell, (2) ineffective assistance of counsel, and (3) inadequate weight and sufficiency of the evidence. We find no error and affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In December 2006, Mississippi Bureau of Narcotics (MBN) Agent Louis Hawkins, MBN Agent Maeena Cody, and a C.I., set up an undercover drug buy at Brenda Liddell’s trailer at 1002 Clark Cove near Tunica, Mississippi. The C.I. stated the area is a known drug area. He had been to “the Cove” numerous times in the past to purchase narcotics for himself.

¶ 3. The individuals met at a pre-buy location, where the C.I. was outfitted with a hidden camera and an audio recorder and given $150 in state funds to purchase the narcotics. The MBN agents thoroughly searched his body and vehicle for drugs to ensure he had no drugs of his own before he performed the buy. Having set up the purchase with Liddell the night before, the C.I. drove to Liddell’s trailer to purchase crack cocaine. The MBN agents established a surveillance position nearby, where they could hear what transpired during the buy from the relay of the audio recorder. The C.I. pulled up to the trailer, and Liddell was at the door. An unidentified individual was just leaving the residence. The C.I. entered the trailer and talked to Liddell, telling her he wanted to purchase $150 worth of crack cocaine. He put the money on the kitchen counter, and she told him to go outside; so the C.I. went to his vehicle and waited. The C.I. later explained that usually Liddell did not personally accept the money or hand over the narcotics; the “runner” did. A few moments later, Liddell and Catherine “Doll” Bogan came to the trailer’s door, and Bogan threw a little plastic container into the front yard for Liddell. The C.I. retrieved the container, checked its contents, and went up to the door of the trailer, asking Liddell if she had any pain pills or ecstasy for future buys. She stated that she did not deal with ecstasy, but she could get him as many Xanax pills as he wanted at two dollars per pill. After making the cocaine purchase, the C.I. drove to the post-buy location, where he turned over the container of crack cocaine, which he had just purchased, to the MBN agents.

¶ 4. Liddell was indicted for sale of a controlled substance pursuant to Mississippi Code Annotated section 41-29-139(a)(l) (Rev.2005). At trial, after the State’s opening statement in which the prosecutor stated that the C.I. had bought drugs from Liddell numerous times, the defense requested the trial judge instruct the C.I. not to refer to these other buys from Liddell, as it would unduly prejudice her. The State countered that it sought to introduce probative testimony which would be admissible under Mississippi Rule of Evidence 404(b) to show there was a “common plan” or a particular way that Liddell conducted her drug sales. The trial judge accepted the State’s argument and asked counsel to address whether the probative value of this testimony outweighed its prejudicial effect. After hearing their arguments, the trial judge concluded it did. The judge then requested the parties draft a proposed limiting instruction. The State offered the proposed instruction, which stated that the C.I.’s testimony on other drug buys should not be considered proof of guilt. The defense entered a continuing objection to the testimony.

¶ 5. At trial, Agent Hawkins testified for the State, during which the audio and video recordings of the drug buy were admitted into evidence, as well as the crack cocaine and its container. Agent Hawkins was familiar with Liddell’s voice and confirmed that she was the person who was speaking on the audio recording during the drug purchase, and in fact, the C.I. called Liddell by name on the recording. Agent Hawkins stated that the C.I. was paid for the covert drug buy; he was not “working off’ any charges, and the C.I. had been used in about ten cases. Agent Hawkins also confirmed that the C.I. had stated he bought some “bad dope” from Liddell in the past.

¶ 6. Over the defense’s objection, the C.I. testified that he had bought drugs on previous occasions at Liddell’s residence for his personal consumption. He explained how she usually never took the money or gave the drugs by hand; instead, she had a runner do it. The C.I. stated that it was very unusual that Liddell came to the front door. The State played the audio and video recording of the transaction with the defense requesting the entire recording, not just the relevant portions, be played. After the C.I.’s examination by both the State and the defense, the court gave the limiting instruction.

¶ 7. Finally, Gary Fernandez, a drug analyst for the Mississippi Crime Laboratory, took the stand for the State. After being qualified as an expert in forensic science, Fernandez testified that the substance found in the container was 1.8 grams of “base form,” or crack cocaine.

¶ 8. The defense’s only witness, Bogan, testified that she often spent the night at Liddell’s home, as did other individuals. Bogan stated she had seen the C.I. several times in Clark Cove. While she admitted she was incarcerated at the time of trial for another charge, she stated she was not charged in this case and denied that she was involved in any exchange of money for a drug purchase that day. Also, while she did not remember the day at issue, Bogan claims neither she nor Liddell threw the narcotics to the C.I. from the trailer. Bo-gan also maintained that she would not lie for her friend, Liddell; however, she admitted that they had smoked drugs together, and she is a recovering crack addict. She also denied that she was Liddell’s “runner” or that she and Liddell had ever sold drugs in Clark Cove.

¶ 9. However, on cross-examination, the State impeached Bogan’s testimony, as she is currently serving time for selling drugs at 1002 Clark Cove. However, Bogan maintained regarding that charge that she did not “know what was in the package ... on the deep freeze,” except she knew it was not cocaine. Then, Bogan confusingly explained she “took the charge because [she] did it.” Bogan also denied that Clark Cove is a known drug area.

¶ 10. The jury deliberated briefly before finding Liddell guilty as charged. The trial judge sentenced her to three years in the custody of the MDOC, with the sentence to run consecutively to her prior sentence in another drug sale case. Liddell filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial, which the trial judge denied. Liddell timely appeals.

ANALYSIS OF THE ISSUES

I. Testimony of the C.I. and Liddell’s Prior Drug Transactions

¶ 11. Liddell argues that the trial court erred in allowing, pursuant to the exceptions listed in Rule 404(b), the C.I. to testify about prior drug purchases from her. She claims that she was unfairly prejudiced. Furthermore, even if the admission were proper under Rule 404(b), Liddell claims the trial judge erroneously failed to make an on-the-record finding, pursuant to Rule 403 of the Mississippi Rules of Evidence, of whether the probative value of the testimony outweighed its prejudicial value. Finally, Liddell states that the limiting instruction offered to the jury after the C.I.’s testimony was merely a “legal fiction,” and it was useless in preventing prejudice.

¶ 12. The standard of review for the admission or exclusion of evidence is an abuse of discretion. Williams v. State, 991 So.2d 593, 597 (¶ 8) (Miss.2008) (citing Brown v. State, 969 So.2d 855, 860 (¶ 13) (Miss.2007)). “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Id. (quoting Shaw v. State, 915 So.2d 442, 445 (¶ 8) (Miss.2005)).

¶ 13. Mississippi Rule of Evidence 404(b) provides that “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” We note this list of “other purposes” in the rule is illustrative only, and the Mississippi Supreme Court has continued to expand the circumstances under which “other bad acts” evidence is admissible. Encyclopedia of Mississippi Law § 34:64 (2001). If other crimes or bad acts are admissible under Rule 404(b), they must also be admissible under Rule 403, where “the risk of undue prejudice must not substantially outweigh its probative value.” Ballenger v. State, 667 So.2d 1242, 1257 (Miss.1995) (citing Duplantis v. State, 644 So.2d 1235, 1246 (Miss.1994)). This balancing test is left to the trial court’s broad discretion. Sykes v. State, 749 So.2d 239, 245 (¶ 24) (Miss.Ct.App.1999). Finally, the burden is upon the trial counsel to request a limiting instruction be given to the jury, restricting the evidence to its proper scope, when evidence is admitted that is admissible for one purpose but not for another. Brown v. State, 890 So.2d 901, 913 (¶ 36) (Miss. 2004) (quoting M.R.E. 105).

¶ 14. In the case at bar, we first note that the specific issues Liddell raises on appeal regarding this testimony were not raised before the trial court. The right to raise these issues before the appellate court is thus waived. Walker v. State, 671 So.2d 581, 587 (Miss.1995). Waiver notwithstanding, we also find the issues without merit.

A. Rule b0Jp(b)

¶ 15. In the instant case, the C.I. specifically testified, during the State’s case-in-chief, that he had been to Clark Cove before to buy drugs. He stated Lid-dell normally would never take the “money or give [the] drugs by hand. You had to set the money on the counter, and she’d usually give it to a runner ... to give to you .... [s]o she wouldn’t get caught....” The C.I. related that this is how she operated during the instant transaction as well, and the video confirmed it. However, he stated Liddell usually never comes to the door of the trailer, but this time she did, and she spoke with the C.I. On cross-examination, the defense elicited from the C.I. that he would “run over [to Brenda’s] six, seven, eight times a day to buy dope from her every day for months.”

¶ 16. We find no error with the admission of this testimony pursuant to Rule 404(b). As the State notes, while the prosecutor argued for admission under a “common plan” exception, it is clear from the transcript that the prosecutor was offering the evidence to prove that Liddell had a modus operandi, or a certain way, of conducting business; and this evidence could be offered to prove her identity: that is, she was in fact the person who had sold the C.I. drugs. We do not find, from the context of the transcript, that the prosecutor, in using the term “common plan,” was attempting to prove a “conspiracy” between Liddell and the C.I., as Liddell contends. The evidence was admitted to show that Liddell purposefully and regularly took the aforementioned precautions when selling drugs in an attempt to prevent criminal liability. The C.I. testified about his prior dealings with Liddell to show that Liddell had conducted this transaction in the same way: she would not take the money in her hand, and she would have someone else — “a runner” — deliver the drugs to the purchaser.

¶ 17. Liddell contends that the prosecutor did not lay the proper predicate for the evidence to be considered under Rule 404(b), as required in Edlin v. State, 533 So.2d 403, 408 (Miss.1988): “(1) identify the consequential fact to which the proffered evidence of other crimes, wrongs or acts is directed, (2) prove the other crimes, wrongs, or acts, and (3) articulate precisely the evidential hypothesis by which the consequential fact may be inferred from the proffered evidence.” Id. (quoting 2 Weinstein’s Evidence, 404-58 (1986)). We disagree.

¶ 18. In reviewing the transcript, it is clear that the prosecutor stated that she was using the evidence to prove that Lid-dell had a particular way of selling narcotics and, thus, establish Liddell’s identity in the instant case. The prosecutor explained to the trial judge: “Because we believe that the way that Ms. Liddell conducted her business in the trailer is that she would normally have someone else, she wouldn’t talk with the customer ... about the ... transaction, take the money and then have someone else hand it to the person buying.” Whether this is termed a “common plan” or proof of identity is irrelevant. The prosecutor described in detail her “evidential hypothesis” of what she planned to prove. The C.I. later testified how Liddell usually conducted her drug business on the numerous other times he had purchased drugs from her. Furthermore, the evidence was necessary to further link Liddell to the instant crime, not just to prove she had bad character.

¶ 19. Additionally, we note that Lid-dell’s trial counsel actually first introduced the subject of the C.I.’s prior drug buys during the defense’s cross-examination of the State’s witness, Agent Hawkins. The defense asked Agent Hawkins if the C.I. had told him he could make arrangements to buy drugs from a specific person or just from that area. Agent Hawkins responded that the C.I. stated he could buy drugs from several violators in the area, and he specifically named Liddell. We also note that some of the C.I.’s testimony about other drug purchases from Liddell came out on cross-examination.

¶ 20. Liddell also takes issue with the “recency” of the C.I.’s prior drug buys. At trial, defense counsel did argue that the prior transactions were “too remote,” because it was not the same incident as the instant drug buy. However, we note that the prosecutor responded that the other drug transactions, which led to separate charges and a subsequent conviction, actually occurred after the incident in question here, and that the C.I. had bought drugs from Liddell “on several occasions.” Furthermore, as the State notes, the trial court cause numbers are consecutive in both cases (2007-0145 for the case at bar and 2007-0144 for the prior conviction), indicating the two charged transactions were close in time. We fail to see how these transactions could be considered too remote.

¶ 21. We find Liddell’s arguments regarding Rule 404(b) are without merit.

B. Rule 103

¶ 22. Additionally, Liddell contends the trial judge failed to perform an on-the-record Rule 403 balancing test of the probative value versus prejudicial effect of the testimony, and this was error.

¶ 23. The supreme court offers guidance on the Rule 403 balancing test requirement in Jones v. State, 920 So.2d 465, 475-76 (¶¶ 31-34) (Miss.2006), where the defendant claimed his due process rights were violated when the trial judge failed to make an on-the-record Rule 403 balancing test. The Jones court explained: “the weighing and balancing task required by Rule 403 is not one susceptible of mechanical performance as it asks only that a judge rely on his/her own sound judgment.” Id. at 476 (¶ 33) (citing Jenkins v. State, 507 So.2d 89, 93 (Miss.1987)). The supreme court held:

[Wjhile we clearly interpret the rules of evidence as requiring that all otherwise admissible evidence be “filtered” through the balancing test set forth in Rule 403, we do not interpret this requirement to be a regimented procedure that must be explicitly performed on pain of reversal. Though this Court certainly expects trial judges to have considered Rule 403 in making their evi-dentiary rulings, we certainly do not predicate the soundness of these determinations on the express use of magic words.... It follows that our review depends on the evidence and not the judge, and while a judge’s on-the-record analysis is recommended as it serves to fortify the judge’s position for purposes of review, the lack of such analysis is harmless unless we deem the evidence to be patently prejudicial.

Id. at (¶ 34).

¶ 24. Here, alter the trial judge found the evidence proper under Rule 404(b), he specifically stated: “I am required to engage in the balancing test in an effort to determine whether the probative value outweighs the prejudicial effect.” After counsel for both parties thoroughly addressed the issue, the judge made his ruling. While he did not make a lengthy analysis of the arguments presented, he ruled the probative value outweighed the prejudicial effect. Any error by the trial judge in not making a more detailed record of his analysis of the Rule 403 balancing test is harmless.

C. The Limiting Instruction

¶ 25. Liddell’s final argument on this evidentiary issue is that the limiting instruction was a “legal fiction,” and the jury could not ignore the highly prejudicial statements made by the C.I. Liddell also argues the limiting instruction allowed the jury to consider evidence for an improper purpose. Furthermore, Liddell objects to the fact the instruction contains Rule 404(b) exceptions not alleged by the prosecution in their argument for the testimony’s admission.

¶ 26. We note defense counsel made a continuing objection to the limiting instruction; however, it was on the same ground as the admission of the testimony — -that it was “unduly prejudicial.” Lid-dell did not make the specific argument he now does; accordingly, it is waived. See Walker, 671 So.2d at 587. Nonetheless, the issue is without merit.

¶ 27. The limiting instruction, read to the jury after the C.I.’s examination, stated: “The witness ... has testified concerning prior drug transactions with the defendant. His testimony is not to be considered by you as proof of guilt. Rather, his testimony should be only considered by you as proof of the defendant’s intent, plan and/or identity of the defendant.” The trial court has the discretion to determine if the Rule 404(b) limiting instruction is appropriate given the totality of the circumstances. Brown, 890 So.2d at 913 (¶ 37). We note that the trial judge sua sponte requested both counsel draft the limiting instruction, even though the supreme court has held that the burden is upon trial counsel to request an instruction. See id. at (¶ 36).

¶ 28. In the instant case, we find no error with the grant of the limiting instruction or its content. As discussed earlier, the evidence was not improperly admitted; thus, the limiting instruction could not have had an improper purpose. Also, just because the instruction contained three possible exceptions for admitting the evidence — plan, intent, and/or identity— does not mean that the instruction suggests the jury should consider the evidence for improper purposes. Specifically, Lid-dell argues that her prior bad acts were used to prove “intent to distribute” because the term “intent” is included in the jury’s limiting instruction, and this topic is irrelevant to the instant charge. However, in reviewing the record we do not find that the evidence was offered for this purpose. Furthermore, in Scruggs v. State, 756 So.2d 817, 821 (¶ 14) (Miss.Ct.App.2000), this Court found no error when a limiting instruction included all of the purposes found in Rule 404(b), and counsel did not specifically object to the breadth of the instruction. Thus, we find no merit to this argument.

¶ 29. Liddell makes a corollary argument that even if the limiting instruction were proper, the jury improperly used the testimony as proof of guilt because they only took approximately four minutes to arrive at a verdict. As Liddell acknowledges, a jury is presumed to follow the instructions of the trial court. Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985) (citing Payne v. State, 462 So.2d 902, 904 (Miss.1984)). Further, the Mississippi Supreme Court has held that there is no formula to determine how long a jury must deliberate. Smith v. State, 569 So.2d 1203, 1205 (Miss.1990) (citing Johnson v. State, 252 So.2d 221, 224 (Miss.1971)). In Smith, the jury deliberated for three minutes on a charge of sexual battery. Smith, 569 So.2d at 1204-05. In Johnson, the jury’s deliberations did not exceed seven minutes. Johnson, 252 So.2d at 224. No error was found in either of these cases. Smith, 569 So.2d at 1206; Johnson, 252 So.2d at 224. Here, we cannot say that the length of time the jury deliberated indicates a bias against Liddell.

¶ 30. We find this issue is without merit.

II. Ineffective Assistance of Counsel

¶ 31. Liddell contends she received ineffective assistance of counsel. When a party raises an ineffective assistance of counsel claim on direct appeal, “the proper resolution is to deny relief without prejudice to the defendant’s right to assert the same claim in a post-conviction relief proceeding.” Willis v. State, 811 So.2d 450, 454 (¶ 8) (Miss.Ct.App.2001) (citing Read v. State, 430 So.2d 832, 837 (Miss.1983)). We may determine the merits of the claim on direct appeal only if “the record affirmatively shows ineffectiveness of constitutional dimensions, or ... the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc. are not needed.” Ramsey v. State, 959 So.2d 15, 25 (¶ 30) (Miss.Ct.App.2006) (citing Read, 430 So.2d at 841). We find neither factor was met in the instant case. Therefore, we decline to address the issue and dismiss it without prejudice.

III. Sufficiency and Weight of Evidence

¶ 32. Liddell challenges the sufficiency and weight of the evidence. She claims the State did not provide credible evidence to prove she sold cocaine. Lid-dell complains that she was unjustly convicted based solely on the contradictory and improper testimony of the C.I. She goes on to argue that it is questionable who actually sold the cocaine to the C.I.

¶ 33. A motion for a directed verdict and a JNOY challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “The evidence must show ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Brown v. State, 970 So.2d 710, 713 (¶ 7) (Miss.2007) (quoting Bush, 895 So.2d at 843 (¶ 16)). However, mindful of the reasonable doubt standard, if “ ‘reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Bush, 895 So.2d at 843 (¶ 16) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 34. Alternatively, a motion for a new trial challenges the weight of the evidence. Id. at 844 (¶ 18). The standard of review for the trial court’s denial of a motion for a new trial is an abuse of discretion. This Court will disturb a verdict only “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. The reviewing court acts as a “thirteenth juror” and views the evidence in the light most favorable to the verdict. Id. All “evidence consistent with the defendant’s guilt is accepted as true together with any reasonable inferences that may be drawn from that evidence.” Young v. State, 891 So.2d 813, 821 (¶ 21) (Miss.2005) (citing Heidel v. State, 587 So.2d 835, 838 (Miss.1991)).

¶ 35. Viewing the evidence in the light most favorable to the prosecution, we find sufficient evidence to convict Liddell of selling cocaine. Liddell was indicted under section 41-29-139(a)(l), which requires the State to prove that Liddell knowingly or intentionally sold a controlled substance. The State proved that the C.I. drove to Liddell’s trailer, greeted her, asked to see the cocaine he had arranged to purchase, entered the trailer, counted out $150, placed the money on the kitchen counter, and exited the trailer. The C.I. waited in his vehicle until a plastic container was thrown out of the trailer onto the yard. The C.I. retrieved it, spoke to Lid-dell and Bogan, who were at the trailer door, about other possible drug purchases, and then left. The container contained 1.8 grams of “base” or crack cocaine.

¶ 36. We do not find Liddell was convicted “solely” on the testimony of the C.I., as Liddell claims; and the testimony is neither contradictory nor improper. The C.I.’s testimony was corroborated by the video and audio tapes, which were entered into evidence and played for the jury. Additionally, Agent Hawkins’s testimony that he heard, over the remote audio device, the C.I. greet Liddell and ask to look at the drugs before he bought them, was corroborated by the C.I. Further, as the State points out, whether Bogan or Liddell tossed the drug container into the yard is irrelevant; there is still sufficient evidence to show, even though Bogan was a runner, Liddell sold the drugs to the C.I.

¶ 37. Moreover, we do not find the trial court abused its discretion in denying Lid-dell’s motion for a new trial. “Any factual disputes are properly resolved by the jury and do not mandate a new trial.” Moore v. State, 859 So.2d 379, 385 (¶ 26) (Miss.2003) (quoting McNeal v. State, 617 So.2d 999, 1009 (Miss.1993)). The jury chose not to believe Bogan’s contradictory testimony denying any wrongdoing by her or Liddell. We cannot say, viewing the evidence in the light most favorable to the verdict, that to allow this judgment to stand would sanction an unconscionable injustice. Therefore, the trial court did not err in denying Liddell’s motion for a JNOV or, alternatively, a new trial. Liddell’s arguments regarding the sufficiency and weight of the evidence are without merit.

CONCLUSION

¶ 38. We find no reversible error committed by the trial court. Liddell’s ineffective assistance of counsel claim is dismissed without prejudice to be raised in post-conviction relief proceedings, should she choose to do so. Thus, we affirm Liddell’s conviction and sentence.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCE TO RUN CONSECUTIVELY TO A PREVIOUSLY IMPOSED SENTENCE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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

      . Liddell was convicted of selling cocaine in a subsequent covert drug buy and was sentenced to ten years with five years suspended. The Mississippi Supreme Court affirmed that conviction in March 2009. See Liddell v. State, 7 So.3d 217 (Miss.2009).

      . After the appeal was perfected, this Court granted defense counsel's motion to withdraw and substituted Leslie S. Lee of the Office of Indigent Appeals as lead counsel for Liddell’s appeal. Liddell, in turn, moved to have law students at the University of Mississippi School of Law Criminal Appeals Clinic work on her appeal under the direction of the supervising professor/attorney Phillip Broad-head, as attorney of record. This Court granted the motion, and Laurel Blue and E. Daniel Martin, law students participating in the Clinic, and who had been previously admitted to limited practice under Mississippi Code Annotated section 73-3-207 (Rev.2008), were appointed as special counsel.


author: ROBERTS, J., for the Court:

text:
    Robert PORTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00657-COA.
    Court of Appeals of Mississippi.
    April 27, 2010.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   ROBERTS, J., for the Court:

¶ 1. A jury sitting before the Bolivar County Circuit Court found Robert Porter guilty of murder and simple assault. The circuit court found that Porter qualified for enhanced sentencing as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007). Accordingly, incident to Porter’s murder conviction, the circuit court sentenced Porter to life in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. As for Porter’s simple-assault conviction, the circuit court sentenced Porter to six months in custody. Additionally, the circuit court set that sentence to run consecutively to Porter’s sentence for murder. Aggrieved, Porter appeals and claims the evidence is insufficient to sustain his convictions for murder and simple assault. Alternatively, Porter argues that the evidence merely supported a manslaughter conviction, rather than a conviction for murder. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The events that led to Porter’s incarceration were set into motion in a club in Choctaw, Mississippi. On April 7, 2007, Porter went to a club described in the record as both “Clea’s Place” and “the L.A. Connection.” Once inside, Porter saw that his estranged wife, Rosemary Porter, and a male friend, Terry Moore, were sitting together. According to Rosemary, she and Terry did not have a romantic relationship, although she testified that she “used to court” Terry approximately seventeen years earlier.

¶ 3. Rosemary later testified that Porter walked up to the table where she and Terry were sitting together. Rosemary testified that Porter said, “[djidn’t I tell you, both of you, if I had [sic] caught y’all together I would kill both of you[?]” Terry’s nephew, Wendall Taylor, testified that he was sitting with Rosemary and Terry. Wendall corroborated Rosemary’s testimony regarding the substance of Porter’s statement. According to Wendall, Porter said, “didn’t I tell you that if I catch both of y’all together[,] I’m going to kill you and him[?]”

¶ 4. Rosemary testified that Porter then left the club and returned a short time later. According to Rosemary, upon reentering the club, Porter walked up to the table where she and Terry were sitting and stabbed Terry once. She testified that Terry never moved before Porter stabbed him. After being stabbed in the chest, Terry managed to get up from his chair. He grabbed a bottle from a nearby table, but he collapsed shortly afterward. The knife penetrated Terry’s right lung and punctured his heart. Terry died at the scene. Porter later claimed that he thought Terry was going to attack him. In other words, Porter claimed he was acting in self-defense.

¶ 5. According to Rosemary and Wen-dall, Porter attacked Rosemary after he had stabbed Terry. Rosemary testified that Porter said, “I’m going to kill your M.F. butt, too” and tried to cut her with the knife. Rosemary “threw her left arm up” and “kicked [Porter] off of her.” Porter then ran out of the club. Rosemary had a wound on her arm, but she did not receive medical attention. She later testified that Porter had cut her with a knife. However, Porter claimed that he had merely grabbed Rosemary and that his fingernail caused the wound on her arm.

¶ 6. Jeff Joel, an investigator with the Bolivar County Sheriffs Department, was dispatched to the club at approximately 11:45 p.m. Investigator Joel found no weapons near Terry. Neighboring authorities were informed to be on the lookout for Porter.

¶ 7. Officers with the Ruleville, Mississippi Police Department found Porter at a gas station. He was sleeping inside his car. He was also “highly intoxicated,” according to the description by Officer Arthur Coleman of the Ruleville Police Department. Deputy Mark Carpenter went to the gas station in Ruleville. Deputy Carpenter read Porter his rights and placed Porter in the back of his patrol car. According to Deputy Carpenter, he did not ask Porter any questions. Deputy Carpenter testified at Porter’s trial. Deputy Carpenter testified that, without any prompting from him, Porter spontaneously told him that he had told Rosemary and Terry that he would kill them if he caught them together. According to Deputy Carpenter, Porter then asked whether Terry was dead. Deputy Carpenter told Porter that Terry had died. Porter then said, “it served the son of a b-right,” and “it was too bad he didn’t kill the b-, too.”

¶ 8. On March 19, 2008, Porter was indicted for murder and aggravated assault. Additionally, the indictment contained an allegation that Porter was a habitual offender. On May 12, 2008, Porter’s trial commenced. The prosecution called six witnesses. Rosemary and Wendall testified regarding the events that occurred at the club. Investigator Joel, Officer Coleman, and Deputy Carpenter testified regarding their participation in the investigation and Porter’s apprehension. Deputy Carpenter also testified regarding Porter’s unprompted statements. Dr. Steven T. Hayne, a forensic pathologist, testified regarding the autopsy he performed on Terry’s body.

¶ 9. After the prosecution rested its case-in-chief, Porter chose to testify. Porter testified that he acted in self-defense when he stabbed Terry. He also testified that he did not attack or cut Rosemary with a knife. Porter’s precise testimony will be discussed in greater depth in the analysis portion of this opinion.

¶ 10. As previously mentioned, the jury found Porter guilty of murder. The jury did not find Porter guilty of the aggravated assault of Rosemary. Instead, they found him guilty of the lesser-included offense of simple assault. During a bifurcated proceeding, the circuit court found the prosecution sufficiently demonstrated that Terry qualified for enhanced sentencing as a habitual offender pursuant to section 99-19-81. For Terry’s murder, the circuit court sentenced Porter to life in the custody of the MDOC without eligibility for parole or probation. For the simple assault of Rosemary, the circuit court sentenced Porter to six months in custody, with the sentence to run consecutively to Porter’s life sentence for Terry’s murder. Following his unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial, Porter appeals.

ANALYSIS

SUFFICIENCY OF THE EVIDENCE

¶ 11. Porter claims the circuit court erred when it denied his post-trial motion for a JNOV. Within that motion, Porter’s generalized argument was simply that a JNOV was appropriate. Otherwise, Porter based his post-trial motion on “[a]ny and all other errors apparent on its face in the record.” Porter did not specify any of the circuit court’s rulings that he considered to be erroneous. Likewise, he did not specify what he considered to be a deficiency in the proof, or what elements of which charge that he considered to have been insufficiently demonstrated.

¶ 12. A motion for a JNOV must be specific regarding the movant’s challenge of the sufficiency of the evidence. Jordan v. State, 936 So.2d 368, 372 (¶ 20) (Miss.Ct. App.2005). When a movant fails to specify how the evidence was insufficient, we will not find that the circuit court erred in denying a motion for a JNOV. Id. Porter’s generic and conclusory argument that a JNOV was appropriate does not rise to the standard of specificity. It is no great challenge to argue something more than a generic argument. Simply stating that there was insufficient evidence of premeditation and then highlighting the deficiency with portions of the testimony would suffice. In any event, Porter’s motion was overly generalized. Accordingly, Porter is procedurally barred from raising this issue on appeal. Procedural bar notwithstanding, we also find no merit to his argument on appeal.

¶ 13. Regarding the standard of review incident to claims such as the ones Porter raises in this issue, the Mississippi Supreme Court has held as follows:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for ... [JNOV], the critical inquiry is whether the evidence shows beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. However, this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render. However, if a review of the evidence reveals that it is of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citations and internal quotations omitted). Porter claims there was insufficient evidence of murder as well as insufficient evidence of simple assault.

1. MURDER

¶ 14. On appeal, Porter presents a two-fold argument. First, Porter claims that the circuit court should have found that the evidence was insufficient to sustain a conviction for murder and should have then granted a judgment of acquittal. Alternatively, Porter argues that the evidence only supported a conviction for manslaughter, rather than murder.

¶ 15. To sustain a conviction for murder, the prosecution was obligated to prove, beyond a reasonable doubt, that Porter killed Terry, that he did so without authority of law, and that he did so with the deliberate design to effect Terry’s death. Miss.Code Ann. § 97 — 3—19(l)(a) (Rev.2006). As previously mentioned, Porter first claims that there was insufficient evidence of murder because he was acting in self-defense. Porter relies on his own testimony to bolster his argument. Porter claimed that he was afraid of Terry. According to Porter, he and Rosemary had an argument three weeks before he killed Terry. Porter testified that, during that argument, Rosemary, her nephew, and Terry “jumped” him and “beat” him. Porter testified that he filed charges against Terry, and as a result, Terry “had it out” for him. Additionally, Porter testified that when he confronted Rosemary and Terry, Terry had his hands inside the pockets of his nylon windbreaker jacket. According to Porter, Terry “was fumbling trying to get [his hands] out of [his pockets].” Porter testified that he said “[d]on’t do that” to Terry, but Terry “was still trying to come up with something out of his coat.” Porter went on to testify that Terry “kept coming up, and he was coming up. Once he got to a certain point, he was coming up gradually. I just — I just stuck him.”

¶ 16. Porter later testified that he was “scared” of Terry and that Terry’s “[r]eaching for a weapon had [him] scared.” Porter also testified that he never saw Terry with a weapon, but he insisted that he knew that Terry carried one. During his redirect testimony, Porter testified that he “was afraid [Terry] had something — you know he could do something.”

¶ 17. However, the record contains evidence that contradicted Porter’s version of events. Rosemary testified that Porter entered the club, approached her and Terry, and then said — “[d]idn’t I tell you, both of you, if I had [sic] caught y’all together I would kill both of you[?]” Terry’s nephew, Wendall, testified that he was sitting with Rosemary and Terry. Wendall testified that Porter approached their table and said, “didn’t I tell you that if I catch both of y’all together[,] I’m going to kill you and him[?]” Porter did not dispute that he said something to Rosemary and Terry. However, Porter testified that he said, “I told you I didn’t want to catch y’all together anymore ‘cause [sic] I don’t want to be — I don’t want to be responsible for my actions.” Later, he testified that he said, “I catch y’all together, I’m not responsible for my actions.” Viewing the evidence in the light most favorable to the prosecution, the jury could have found that Porter was reminding Rosemary and Terry of his threat to harm them.

¶ 18. Additionally, it was undisputed that Porter approached Rosemary and Terry. They did not approach him. Rosemary testified that Porter entered the club, spoke to them, left the club, re-entered, and immediately walked up to Terry and stabbed him without any provocation. Rosemary also testified that Terry never moved toward Porter. She testified that Terry “wasn’t doing [anyjthing with his hands.” She also testified that Terry “didn’t have [anything in his hands.” Additionally, she testified that Terry was sitting down at the table and that he had his hands in his lap. When asked whether Terry made “any kind of motion or anything, as if to attack Mr. Porter,” Rosemary responded, “[n]o, ma’am.” Wendall corroborated Rosemary’s testimony. Wendall testified that Porter stabbed Terry before Terry even reacted. Wendall also testified that: Porter and Terry did not argue; Terry did not have a weapon; and Terry did not make any aggressive movements toward Porter. Finally, Investigator Joel testified that there was no weapon on or near Terry when Investigator Joel arrived at the club. Considering Rosemary’s, Wendall’s, and Investigator Joel’s testimonies in the light most favorable to the prosecution, the jury could have concluded that Porter did not act in necessary self-defense when he stabbed Terry. In the same light, the jury could have found that Porter stabbed Terry with deliberate design to kill him.

¶ 19. Additionally, Deputy Carpenter testified that, without any provocation, Porter told him that he intended to kill both Terry and Rosemary. Deputy Carpenter also testified that, upon learning that Terry died as a result of the stab wound, Porter said, “it served the son of a b-right.” The jury was also within its discretion in finding Porter less credible than other witnesses. Porter testified that he always carried a knife with him because he used the knife when he was working on cars. However, Porter also testified that he had not been working on cars that day. Furthermore, Porter once testified that “[t]hey” say he killed Terry, implying that the claim he killed Terry was unfounded. However, he quickly clarified that he, in fact, had killed Terry. Additionally, Porter’s version of events fluctuated at trial. First, Porter testified that he stabbed Terry because Terry’s “[r]eaching for a weapon had [him] scared.” At another point, Porter testified that he never saw Terry with a weapon, but he assumed Terry had one because Terry had his hands in his pockets. At yet another point, Porter testified that he “didn’t realize that [he] had stabbed a man.” When asked to clarify, Porter relaxed his position and testified that he did not know that he had stabbed Terry “that bad.” When asked to further clarify, Porter testified that he was “saying [he] didn’t have [any] control of it at that time” because his “emotions alone” were controlling him. However, immediately afterward, Porter testified that he “was just moving [and that he] didn’t have any emotions.” Based on Porter’s various and wildly fluctuating version of events, the jury could have found that he was not credible, and/or he was attempting to be evasive with his responses during cross-examination.

¶ 20. What is more, Rosemary testified that Porter entered the club, saw her and Terry, reminded them that he had previously said he would kill them if he saw them together, and exited the club before he returned and stabbed Terry. The jury could have found that Porter left the club to arm himself. Deliberate design “may be formed quickly and perhaps only moments before the act ... [and] ... may be inferred through the intentional use of any instrument which based on its manner of use is calculated to produce death or serious bodily injury.” Wilson v. State, 936 So.2d 357, 364 (¶ 17) (Miss.2006).

¶ 21. Considering the volume of testimony described above, the jury was well within its discretion to find Porter guilty of Terry’s murder. The jury acted within its discretion when it discounted Porter’s various versions of events. The circuit court was within its own discretion to find that a rational trier of fact could have found that the prosecution proved that Porter was guilty of murder beyond a reasonable doubt. It follows that we find no merit to this argument.

2. SIMPLE ASSAULT

¶ 22. Next, Porter claims the circuit court erred when it failed to find that there was insufficient evidence to sustain his conviction for the simple assault of Rosemary. To sustain a conviction for simple assault, the prosecution was obligated to prove, beyond a reasonable doubt, that Porter “(a) attempted] to cause or purposely, knowingly or recklessly eause[d] bodily injury to another; or (b) negligently cause[d] bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempted] by physical menace to put another in fear of imminent serious bodily harm.” Miss.Code Ann. § 97-3-7 (Supp.2009).

¶ 23. Rosemary testified that Porter attacked her with a knife immediately after he had stabbed Terry in the chest. According to Rosemary, Porter said, “I’m going to kill your M.F. butt, too” as he tried to cut her. Wendall corroborated Rosemary’s testimony in that he testified Porter attacked her with a knife after he had stabbed Terry. Rosemary testified that Porter cut or stabbed her upper left arm. Porter, however, testified that he merely grabbed Rosemary, and because he had long fingernails, one of his fingernails cut into her arm. The jury saw a photograph of Rosemary’s bleeding left arm. That photograph was taken the night Porter killed Terry. Viewing the evidence in the light most favorable to the prosecution, we find that the evidence was legally sufficient to support the conviction of the simple assault against Rosemary. It follows that we find no merit to this issue.

¶ 24. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, MURDER, AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE ELIGIBILITY FOR PAROLE OR PROBATION, AND COUNT II, SIMPLE ASSAULT, AND SENTENCE OF SIX MONTHS IN THE BOLIVAR COUNTY JAIL TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

      . Rosemary testified that she and Porter had been separated for six months at the time. Porter testified that they were merely living in separate places due to financial issues. It is undisputed that they were not living together at the time.

      . The prosecution demonstrated that Porter had the following prior felony convictions in Florida: (1) aggravated assault in 1973; (2) uttering a forgery in 1973; (3) “aggravated battery” in 1977; (4) aiding an escape in 1977; (5) sexual battery in 1980; (6) "aggravated battery” in 1981; and (7) possession of a firearm by a previously-convicted felon, also in 1981. Additionally, the prosecution demonstrated that, in Mississippi, Porter had pled guilty to a fourth offense of driving under the influence in 1992. Each of the eight convictions were felony convictions.