author: CARLTON, J., FOR THE COURT:

text:
    Tameka SMITH a/k/a Tameka Marquieta Smith a/k/a Tameka M. Smith, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01375-COA
    Court of Appeals of Mississippi.
    July 24, 2018 Rehearing Denied December 4, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, JACKSON
    DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. On October 16, 2013, Tameka Smith was indicted by a Forrest County grand jury on one count of armed robbery of a Dollar General store on June 5, 2013. The case proceeded to trial on March 18, 2015, and the jury found Smith guilty of armed robbery. Smith was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC), with twelve years to serve, eight years suspended, and five years of post-release supervision.

¶ 2. On appeal, Smith asserts that (i) the trial court erred in overruling Smith's Batson objection; (ii) prosecutorial misconduct during closing arguments violated Smith's right to a fair trial; (iii) testimony from the State's witness, Detective Casey Sims, violated Smith's Sixth Amendment Confrontation Clause right to confront adverse witnesses; (iv) the trial court erred in refusing Smith's requested jury instruction on the defense's theory of misidentification; and (v) the trial court erred in allowing the State to introduce CD exhibits in envelopes containing written notations. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. This case concerns an armed robbery of a Dollar General store near Hattiesburg, Mississippi, on June 5, 2013, at around 8 p.m. Store manager Paige Arnold and cashier Kelly James were working at the Dollar General that night. Arnold was the State's first witness. She testified that she was on the toothpaste aisle when a woman in a gray hoodie with a white towel over her face approached her and said she had a toothache. Arnold testified that she was 5' 9½? tall, and she guessed that the woman was around 5' 6? tall. Arnold showed the woman where the oral pain medications were, then resumed straightening up the toothpaste aisle. Later, the cashier, Kelly James, accompanied the same woman to the toothpaste aisle, and showed her the same medicine Arnold had shown her. Kelly returned to her register at the front of the store.

¶ 4. About ten minutes later, a customer approached Arnold and said she was needed up front. Arnold testified that she walked to the front of the store, and the female customer from the toothpaste aisle told her she did not have the money to buy the medicine and needed Arnold to cancel the transaction, which Arnold did. The customer was standing off to the side when Arnold opened the cash register. Arnold testified that the female customer ran between her and James (the cashier) and started grabbing money out of the cash register. Arnold testified that she jumped on the woman's back and started taking the money back from her, and James also started grabbing the money back from the woman.

¶ 5. According to Arnold, the woman dragged Arnold and James outside, and Arnold pulled off the woman's jacket and towel and looked at the woman. The woman got in a car, and Arnold got a description of the vehicle and the vehicle's tag number. Arnold recalled she watched the woman for about a minute while she was in her car because there was another car entering the parking lot, so the woman had to wait to leave. Arnold testified that she and the woman made eye contact as the woman drove away. Arnold called 911 and gave a description of the woman and the car and gave the tag number of the vehicle. Arnold then waited for the police to arrive.

¶ 6. The State showed Arnold several photographs, including a photo of the vehicle driven by the woman and the vehicle's license plate (JDM 592). Arnold identified the vehicle and the license plate as the ones involved in the armed robbery. A copy of the Dollar General surveillance video of the crime was presented, as was a recording of Arnold's 911 call; both were played for the jury.

¶ 7. Arnold testified that she was shown a photo lineup three days after the robbery and she was 80 percent sure when she identified Smith. She explained in her trial testimony that "I told Detective Sims, my gut instinct is 80 percent sure it was the defendant; 20 percent sure it was the other person." According to Arnold, the reason she did an eighty percent identification was that "[t]here was ... another person in the lineup that had been in my store earlier that day that I went and did the police lineup. She's a regular customer, and ... it threw me a little bit." At trial, Arnold identified Smith as the person who committed the armed robbery.

¶ 8. James, the store cashier, also testified for the State. She corroborated Arnold's testimony about the woman looking for toothache medicine. James then testified that when the woman reached her cash register to check out, James rang up the medicine and told the woman her total. At that point, James said the woman came around the cash register and got behind her and said, "I have a gun. I have my kids in the car. Just give me a little bit of the money." James then testified that the woman also grabbed a pair of scissors from the counter and put them against James's back. At one point in the surveillance video, a pair of scissors can be seen hanging out of the woman's pocket. James told the woman that because she had already rung up the sale, the cash register could not be opened without the manager using her key to void the sale. The woman repeatedly told James to just hit the "enter" or "total" buttons to open the cash register; James hit the buttons, and the woman hit buttons herself, but the cash register would not open.

¶ 9. In the meantime, other customers were waiting at the register to check out, and the woman walked from behind the counter and stood nearby. Arnold arrived and voided the sale, and James began ringing up the next customer. According to James, when the cash register opened, the woman stuck her hand in the cash register drawer and said, "I'm sorry. Thank you." James said that the woman grabbed "a whole bunch of money, and we just started wrestling with her - me and my manager - out the door." At that point James's boyfriend emerged and assisted.

¶ 10. James positively identified Smith as the robber in a photo lineup three days after the robbery. James also identified Smith as the robber in court. James gave police a description of the woman and said the woman was around 5' 2? tall, because she was taller than James, who is 4' 11? tall.

¶ 11. Officer Eric Prouix testified that he was working on patrol for the Hattiesburg Police Department on June 5, 2013. He was dispatched to the Dollar General and preserved the register/counter area for potential fingerprints, if any could be found. He also helped secure the scene. Officer Prouix testified that no fingerprints were found.

¶ 12. Officer Tammy Hoadley of the Hattiesburg Police Department testified that she was also working on patrol on the evening of June 5, 2013. She responded to a dispatch call around 8 p.m. regarding an armed robbery and reported to the Dollar General. When she got there, she helped secure the area and spoke with the victims, Arnold and James. Officer Hoadley testified that she did not collect any fingerprints and she did not transport anything to the crime lab for DNA analysis.

¶ 13. Detective Casey Sims worked for the Hattiesburg Police Department and investigated the armed robbery at Dollar General that took place on June 5, 2013. Detective Sims testified that he ran the tag numbers that were reported, and he determined that the vehicle belonged to an elderly woman who lived out of town, a Ms. Bobbie Fairley. He testified that he asked Ms. Fairley to come to Hattiesburg on a pretense. He met with her, seized her vehicle, and processed the vehicle as a crime scene. Detective Sims further testified that during the course of his investigation he was able to determine the names of the people who were at Ms. Fairley's house on the evening of the robbery, which included Tameka Smith, who was Ms. Fairley's grandson's girlfriend. Detective Sims said he was informed that on June 5, 2013, Ms. Fairley's grandson took Smith's vehicle and left Smith and her two children with Ms. Fairley. Once Detective Sims ascertained that Smith had been at Ms. Fairley's home on the evening of the robbery, he brought Smith in for questioning.

¶ 14. Detective Sims testified that about three days after the robbery, he presented photo lineups to James and Arnold. Detective Sims corroborated Arnold's testimony that she circled Smith and another person; and Detective Sims likewise confirmed that James positively identified Smith in the photo lineup. Both Arnold and James identified Smith in court as the robber.

¶ 15. Detective Sims testified that he arrested Smith for armed robbery and that Smith's booking information reflects that she is 5' 7? tall and weighed 235 pounds. Detective Sims also obtained Smith's cell phone records, which were admitted as an exhibit at trial. The records showed that Smith made a call from around Prentiss, Mississippi, at 7 p.m. that lasted 582 seconds (9 minutes and 41 seconds). The records also reflected that Smith made a call from around Prentiss at 8:43 p.m., which lasted 252 seconds (4 minutes and 12 seconds). Detective Sims testified that the call reporting the robbery came out "around 2000 hours, which is 8 p.m." The time stamp on the store's surveillance video indicates that the robbery occurred at about 7 p.m., or 19:00 hours. Arnold, the store manager, testified that the time on the surveillance video was an hour behind because the district manager was the only one who could adjust the system, and the district manager was on sick leave when the time changed, so the time had not been set forward. Detective Sims testified that the Prentiss area is about forty minutes from the Dollar General store.

¶ 16. Steve Pazos, an investigator with the District Attorney's office, testified that he conducted a follow-up investigation into the case. Specifically, Investigator Pazos testified that he interviewed Smith's mother and alibi witness, Jennifer Smith. According to Investigator Pazos, Jennifer said she was on the phone with her daughter during the time that the robbery took place because they spoke from 7:00 p.m. to 7:09 p.m. Investigator Pazos testified that his phone conversation with Jennifer discredited Smith's alibi that she was on the phone with her mother when the robbery took place because the actual call for service came in through the police department's line at 7:54 p.m. A recording of Investigator Pazos's interview with Jennifer was played for the jury and admitted into evidence.

¶ 17. Jennifer Smith testified for the defense. She testified that the suspect in the surveillance video was not her daughter because Smith was pigeon-toed, but the suspect was not; Smith's legs are straight, but the suspect's legs "bowed back"; the suspect was much wider than Smith; and the suspect's skin was darker than Smith's skin. Jennifer testified that she was at her home in Pattison, Mississippi, on the night of the robbery, and she talked to Smith on the phone about a business-plan homework assignment from about 7:00 p.m. to 7:10 p.m. On cross-examination, Jennifer acknowledged that Smith was staying at Ms. Fairley's house in June 2013.

¶ 18. Smith testified in her own defense at trial. Smith testified that she was not the person in the surveillance video and that she never went to the Dollar General on the night in question. She said she got to Prentiss (Ms. Fairley's home) at about four o'clock that evening with her children, and immediately began to work on homework. She made a five-minute trip to a corner store right down the street just outside of Prentiss sometime between 7:30 p.m. and 8:30 p.m., and she left the house a second time with her boyfriend at about 10 p.m. They went to the Junior Food Mart in Prentiss. Smith denied ever going to Forrest County on the night in question. Smith testified that she is about 5' 7? tall and, under cross-examination, Smith testified that she weighed 205 pounds at trial, which was about thirty pounds less than she weighed in June 2013. At trial, Smith stood up and showed the jury that she was pigeon-toed. She denied that she was guilty of the robbery.

¶ 19. In response to questions by the prosecutor, Smith denied that she lived with her boyfriend's grandmother (Ms. Bobbie Fairley) in 2013, but she acknowledged that she visited for a couple of days and was staying the night at Bobbie Fairley's home on June 5, 2013. Smith acknowledged that Bobbie Fairley lived in Jefferson Davis County, and that Bobbie Fairley's car was the car police tracked down using the tag number at issue. Smith testified that Bobbie Fairley lay down in bed about 7 p.m. or 7:30 p.m. on the night in question, but Smith testified that Bobbie Fairley was not asleep at that time. Smith also testified that Bobbie Fairley's car was not accessible to her because Bobbie Fairley kept her keys in her purse in the bedroom and usually locked the bedroom door. Smith acknowledged that Arnold reported the vehicle being driven by a person matching her general description, but she maintained that she never drove the vehicle that night or left Prentiss to go to Hattiesburg.

¶ 20. The jury was instructed on the offense of armed robbery, the lesser-included offense of simple robbery, and the alibi defense. The trial court denied Smith's requested instruction on misidentification. After retiring for deliberations, the jury returned a verdict, finding Smith guilty of armed robbery. Smith was sentenced to serve twenty years in MDOC custody, with twelve years to serve, eight years suspended, and five years of post-release supervision. Smith was also ordered to pay a $2,500 fine, $100 to the victim compensation fund, and all court costs. The sentencing order was entered August 13, 2015. Smith's trial counsel filed no post-trial motions. On September 3, 2015, Smith filed a notice of appeal, pro se. Smith was subsequently appointed appellate counsel through the Office of State Public Defender, Indigent Appeals Division, and an amended notice of appeal was filed on March 14, 2017.

DISCUSSION

I. Batson Challenge

¶ 21. Smith asserts that the State's use of three of five peremptory challenges against African American jurors constitutes a violation of Batson v. Kentucky because these jurors were not struck for race-neutral reasons. As addressed in more detail below, the trial court found that Smith did not meet her burden to go forward with a Batson challenge, and even if she had, the trial court found that the three African American jurors were struck for race-neutral reasons. Finding no error, we affirm the trial court's ruling on this issue.

¶ 22. The Mississippi Supreme Court has directed this Court to " 'give great deference to a trial court's determinations under Batson because they are based largely on credibility.' " Williams v. State , 126 So.3d 85, 94 (¶ 37) (Miss. Ct. App. 2013) (quoting Flowers v. State , 947 So.2d 910, 917 (¶ 8) (Miss. 2007) ). A Batson ruling may not be overturned unless the record indicates that the ruling "was clearly erroneous or against the overwhelming weight of the evidence." Id. (internal quotation mark omitted) (quoting Thorson v. State , 721 So.2d 590, 593 (¶ 4) (Miss. 1998) ).

¶ 23. As the Mississippi Supreme Court has explained, a Batson challenge should proceed as follows:

First, the defendant must establish a prima facie case of discrimination in the selection of jury members. The prosecution then has the burden of stating a racially neutral reason for the challenged strike. If the State gives a racially neutral explanation, the defendant can rebut the explanation. Finally, the trial court must make a factual finding to determine if the prosecution engaged in purposeful discrimination. If the defendant fails to rebut, the trial judge must base his decision on the reasons given by the State.

Berry v. State , 802 So.2d 1033, 1037 (¶ 11) (Miss. 2001).

¶ 24. In this case, after the trial court allowed two jurors to be struck for cause (Jurors 11 and 19), the State submitted its first twelve jurors, going up through, and including, Juror 20. Juror 17 was absent. Out of the remaining seventeen panel members, the record reflects that the State exercised the first five of its six peremptory challenges, striking three African Americans and two Caucasians. At this point the defense raised its Batson challenge. Smith's initial Batson challenge was based on her trial counsel's mistaken belief that the State had used four (not three) of its peremptory challenges to strike African Americans, namely Jurors 9, 10, 12, and 13. The trial court corrected Smith's counsel, noting on the record that Juror 12 was a Caucasian female.

¶ 25. In response to Smith's Batson challenge, the trial court judge stated that he did not know whether Smith had met her burden of showing a prima facie case of discrimination in the selection process, given that three of the State's peremptory strikes were against African Americans, and two were against Caucasians. The trial court, however, allowed the State to go forward and provide its race-neutral reasons for its strikes.

¶ 26. The State provided the following explanations:

Juror State's reason(s) for Number exercising peremptory strike Juror 9 "[W]e observed that she seemed to be disinterested, was not making eye contact." Juror 10 "[I]t was our observation that she frowned a lot during our voir dire and gave us the impression that she just didn't want to be here." Juror 13 "[S]he also seemed to be disinterested and not really engaged in the voir dire process."

The State also provided the reason it struck Juror 12 (a Caucasian female): "As to [Juror] number 12, she seemed not only disinterested, but also aggravated, at times with the entire voir dire process." Lastly, the State pointed out that of the twelve jurors submitted by the State at that point, four were African Americans.

¶ 27. The trial court then afforded Smith an opportunity to rebut the State's race-neutral reasons. Smith's counsel offered the following rebuttal:

Your Honor, the only thing that the State has proffered as a race-neutral reason is that they didn't want to be here. Nobody wants to be here, Your Honor. That's not a valid excuse or a reason to excuse somebody, and he said nothing else.

In response, the trial court held:

I think he said more than simply they don't want to be here. And quite frankly, I disagree with you that nobody wants to be here. These are my people. They like to come to court.
But in any event, I don't think you've met your burden to go forward with a Batson [c]hallenge. And in the event you have, I do not think that these jurors were -- well, I do think they were struck for race-neutral reasons.

In short, the only rebuttal offered by Smith was that "juror disinterest" was not a race-neutral reason because "nobody wants to be [on the jury panel]." The trial court rejected this argument based on its own experience and observation that "[t]hese are my people. They like to come to court."

¶ 28. On appeal, Smith asserts that the State's reasons for excluding the jurors in question included several of the five indicators of pretext. The Mississippi Supreme Court has specified five indicia of pretext for use in analyzing a race-based Batson challenge:

(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge; (2) the failure to voir dire as to the characteristic cited; (3) the characteristic cited is unrelated to the facts of the case; (4) lack of record support for the stated reason; and (5) group-based traits.

Lynch v. State , 877 So.2d 1254, 1272 (¶ 52) (Miss. 2004). Smith, as the opponent of the strikes at issue here, bears the burden in determining whether a race-neutral explanation is pretextual. Id. (citing Berry , 802 So.2d at 1042 (¶ 29) ). Smith's trial counsel, however, offered no evidence supporting his rebuttal argument that "nobody wants to be [on the jury panel];" nor did he address any of the above-cited indicators of pretext. As such, Smith is procedurally barred from raising this issue on appeal. See Sudduth v. State , 562 So.2d 67, 71 (Miss. 1990) ("In the absence of an actual proffer of evidence by the defendant to rebut the State's neutral explanations, this Court may not reverse on this point.").

¶ 29. Procedural bar notwithstanding, we also reject Smith's Batson challenge on the merits. As an initial matter, we recognized that when a Batson challenge is appealed, " '[i]t is the responsibility of the appellant to furnish the court with a record which is adequate to review the issues presented.' " Watson v. State , 991 So.2d 662, 665 (¶ 7) (Miss. Ct. App. 2008) (quoting Ward v. State , 958 So.2d 1233, 1236 (¶ 9) (Miss. Ct. App. 2006) (citing Williams v. State , 522 So.2d 201, 209 (Miss. 1988) ) ). In Watson , we held that the trial court did not err in denying the defendant's Batson challenges. Watson , 991 So.2d at 665 (¶ 7). We examined the record in reaching this conclusion, as follows:

Nothing in the record suggests that race played a role in the arrest or prosecution of Watson. The race of the two arresting officers is not mentioned in the record. The record is quite sparse concerning the racial composition of the entire venire panel, which consisted of approximately fifty people. Of the seventeen members on the venire panel first considered for peremptory challenges by the State for tendering to the defense, nine of those seventeen were African Americans. The State exercised five of its six available strikes. The State accepted and tendered four African American panel members even though it had one remaining peremptory strike. There is no indication in the record of the race of any of the six jurors peremptorily stricken by the defense. Likewise, there is no indication in the record of the race of the final juror excused by the State when it used its last peremptory strike. Needless to say, no information exists in the record to indicate the racial composition of the jury that actually tried Watson.

Id.

¶ 30. Just as we determined in Watson , we likewise find here no abuse of discretion in the trial court's Batson determination, as the record displays no racial discrimination in the jury selection in this case. In the Appendix to this opinion, we set forth the juror and jury selection information that this Court was able to glean from the record. From our review of the record, we find that it contains no information concerning the racial composition of the entire venire panel. As to the race of the seventeen members of the panel first considered for peremptory challenges by the State for tendering to the defense, the record indicates that the State exercised five of its six available strikes, striking three African Americans and two Caucasians. At this point, Smith's counsel made his Batson challenge. The record shows that at this time, the State had selected four African American panel members, although it had one remaining peremptory strike. The record contains no evidence of the race of any of the six jurors peremptorily struck by the defense; nor is there any indication of the race of the final juror struck by the State when in exercised its final peremptory challenge.

¶ 31. Having rejected the sole rebuttal argument offered by Smith, we find no abuse of discretion in the trial court's Batson decision herein based upon the race-neutral reasons given by the State. Thorson , 721 So.2d at 593 (¶ 2) ("If the defendant fails to rebut, the trial judge must base his decision on the reasons given by the State."); see also Watson , 991 So.2d at 665 (¶ 8). The trial court determined that even if Smith had met her burden with proceeding with a Batson challenge, the three African American jurors at issue were struck for race-neutral reasons-juror disinterest and inattention. Precedent supports that juror disinterest and inattention are race-neutral reasons for a peremptory challenge. See Horne v. State , 825 So.2d 627, 636 (¶ 24) (Miss. 2002) ("Inattentiveness alone has been accepted as a race-neutral explanation for the exercise of a peremptory strike."); see also Berry , 802 So.2d at 1043 (¶ 36) ("This Court has held [that] '[i]nattentiveness, boredom, dress, demeanor, unemployment, and sleeping during voir dire have all been determined by this Court to be racially neutral reasons.' ").

¶ 32. We also find no merit in the pretextual arguments that Smith asserts on appeal. Smith appears to be making a "disparate treatment" argument in asserting that it is "not sensible" for the trial court to have "assumed" that unchallenged Caucasian jurors were not "disinterested." Smith, however, points to no evidence in the record that indicates that selected Caucasian jurors showed disinterest. In fact, the record reflects that Juror 12, a Caucasian female, was struck by the State for the same reason, as follows: her disinterest and aggravation with the process as a whole. This supports a race-neutral reason for the State striking jurors on the basis of disinterest, rather than a purposefully racially discriminatory motive.

¶ 33. Smith also asserts that the race-neutral reasons provided by the State are "unrelated to the facts of the case" and therefore indicate pretext. Relying upon precedent, we disagree. In Lockett v. State , for example, the Mississippi Supreme Court expressly recognized that "[a]n expression of contempt or hostility may reasonably be assumed to spell trouble for the prosecution. Such demeanor is a legitimate reason, related to any case , for a prosecutor to exercise a peremptory challenge." Lockett v. State , 517 So.2d 1346, 1351-52 (Miss. 1987) (citing cases) (emphasis added). In the same way, we find that the demeanor of the three jurors in question is related to Smith's case, and does not constitute a pretextual basis for exercising a peremptory challenge.

¶ 34. Finally, Smith asserts that the fact that neither the prosecution nor the trial court judge questioned the three jurors regarding their demeanor and lack of interest indicates that these reasons were merely a pretext. Smith also argues that there is no record evidence that the three jurors in issue were disinterested or failed to make eye contact. We also reject these contentions. As we recognized in Watson , "although lack of support in the record may be an indication of pretext, 'the basis for the prosecutor's strike need not be in the record.' " Watson , 991 So.2d at 665 (¶ 9) (quoting Manning v. State , 765 So.2d 516, 520 (¶ 10) (Miss. 2000) ). Moreover, " 'a trial court's determination of whether or not a reason is race-neutral largely depends on the credibility of the prosecutor.' " Manning , 765 So.2d at 520 (¶ 11)

(quoting Thorson , 721 So.2d at 597 (¶ 23) ); see Wilson v. State , 72 So.3d 1145, 1155 (¶¶ 28-29) (Miss. Ct. App. 2011).

¶ 35. In Manning , the Mississippi Supreme Court found it relevant that "[t]he demeanor of a potential juror would not be reflected in the record absent comment from counsel or the trial judge, which did not occur in this case. As a result, ... the prosecutor's proffered reason is neither supported nor disproved by the record." Id. Under those circumstances, which are the same circumstances as in this case, the Court recognized that "[w]e have previously accepted a juror's demeanor as a valid race-neutral reason for a peremptory strike, and therefore give deference to the trial judge's acceptance of this race-neutral reason offered by the [prosecutor in this case]." Id. We apply this same reasoning here in rejecting Smith's pretextual contentions on the merits.

¶ 36. In light of the great deference given a trial court's determination on a Batson challenge, the applicable law, and the lack of evidence offered by Smith in support of her Batson challenge, we affirm the trial court's denial of Smith's Batson challenge in this case.

II. Prosecutorial Misconduct

¶ 37. Smith asserts that the State committed prosecutorial misconduct in its closing arguments by allegedly (1) making burden-shifting arguments; and (2) commenting on Smith's failure to call Bobbie Fairley as a witness. Bobbie Fairley was the grandmother of Smith's boyfriend at the time. Smith was visiting Bobbie Fairley's home in Prentiss, Mississippi, including spending the night at Bobbie Fairley's home on June 5, 2013-the evening of the robbery.

¶ 38. Where lawyer-misconduct during opening or closing arguments is alleged, the applicable standard of review requires the Court to determine "whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Terrell v. State , 237 So.3d 717 (¶ 92) (Miss. 2018).

A.Alleged Burden-shifting Arguments

¶ 39. Smith takes issue with the prosecutor's comments in closing that "[t]he defense hasn't put on one shred of evidence contradicting the elements of ... the crime ... of armed robbery];" and his argument later in closing that Smith's testimony and theory of defense was "no proof at all." Smith also takes issue with the following portion of the State's closing argument:

That's all they've given you. Not a shred of evidence to support their defense . As jurors, you have to take the evidence, apply that evidence to the law. Remember we talked about letting sympathies slip into your process? Okay. Other types of factors. Things outside of looking at the evidence and applying it to the law. I submit to you that if you do your duty as a juror , if you focus not on all this nonsense but on the evidence, and you apply the evidence to the law, you have to find her guilty 'cause there's nothing else to consider. Nothing has been provided to you by the Defense that would ....

At this point during the argument, Smith's counsel objected, stating, "Your Honor, I would object to this line. What he's saying is that the defense has a duty to do anything to present evidence. That is not the law, Your Honor." The trial court sustained the objection, instructing the defense to "stay away from that area [of argument]."

¶ 40. We acknowledge that "[t]he burden of proof in a criminal case never shifts from the State to the defendant." Randall v. State , 806 So.2d 185, 211-12 (¶ 61) (Miss. 2001). In this case, however, reading the prosecutor's comments in "the context and circumstances of the case," as we must, we find that the record reflects that the prosecutor was merely commenting on the inadequacy and weakness of Smith's defense. Precedent establishes that this is not error. The Mississippi Supreme Court has specifically recognized that it is "clearly proper" for a prosecutor to comment on the weakness of a defendant's defense. Holland v. State , 705 So. 2d 307, 349 (¶ 179) (Miss. 1997). This Court likewise has determined that "it is not error to comment on the defense's failure to offer any evidence whatsoever to counter or explain the State's evidence." Johnson v. State , 89 So.3d 630, 637 (¶ 23) (Miss. Ct. App. 2011). Nor is it "improper to argue in closing that a defendant's case is inadequate." Huggins v. State , 911 So.2d 614, 619 (¶ 14) (Miss. Ct. App. 2005) ; see Johnson , 89 So.3d at 637-38 (¶ 23) ; Dora , 986 So.2d at 923 (¶ 12) (recognizing that the prosecution is permitted to comment on the absence of evidence to support defendant's defense and to point out that the defense's position (theory) is unsupported by the evidence).

¶ 41. As addressed above, the record shows that the prosecutor's comments did not constitute error and the trial court sustained the defendant's objection. Further, jurors are presumed to follow the court's instructions. See Johnson v. State , 475 So.2d 1136, 1142 (Miss. 1985). In this case, the jury was properly instructed that their exclusive duty is to consider and weigh the evidence; that they must give Smith the benefit of any reasonable doubt; and that they could only find Smith guilty if the State proved all the elements of armed robbery beyond a reasonable doubt. Additionally, jury instruction D-3 addressed Smith's presumption of innocence, and the jury was also told that Smith was not required to establish the "truth of her alibi to [the jury's] satisfaction." In short, the State's comments on the inadequacy of Smith's defense did not shift the burden of proof, and, particularly in light of these jury instructions, we find that the natural and probable effect of the State's arguments did not create unjust prejudice against Smith. See Johnson , 89 So.3d at 638 (¶¶ 22-24). Finding no error, this issue lacks merit.

B.Failure to Call Bobbie Fairley

¶ 42. Smith also asserts that the State made an improper comment during its closing argument about her failure to call Bobbie Fairley as a witness to support Smith's alibi. The prosecutor said, "[Smith] doesn't have any evidence of alibi because she doesn't have an alibi. Ms. Bobbie Fairley - you know, she was staying at Ms. Bobbie Fairley's house, and she wasn't here to testify."

¶ 43. Smith's trial counsel objected to this comment and the trial court sustained the objection, admonishing the State to "[s]tick to the evidence that's been presented." Smith did not request a curative instruction, nor did Smith request a mistrial. As such, we reject Smith's assignment of error on this issue based upon the Mississippi Supreme Court's determination on similar grounds in Walker v. State , 671 So.2d 581, 616 (Miss. 1995).

¶ 44. In Walker , the defendant asserted on appeal that he was deprived of a fair trial based upon a number of incidences of alleged prosecutorial misconduct. In one instance, Walker's counsel objected to the prosecutor's remarks regarding stipulations made throughout trial, and the trial court instructed the prosecutor not to "raise a comment on why the stipulations were made.... Proceed." Walker , 671 So.2d at 616. Walker's counsel did not seek a curative instruction, nor did he seek a mistrial. Id. The Court held that "[b]ecause the trial court admonished the prosecutor in response to Walker's objection, effectively sustaining the objection, and because Walker requested no further action, this assignment of error is rejected." Id. We find the same analysis applies here. Not only did Smith's trial counsel fail to request a curative instruction or a mistrial, but he also filed no post-trial motion in which this objection could have been raised. We reject Smith's assignment of error regarding the State's reference to her failure to call Bobbie Fairley on this basis.

¶ 45. We also reject this assignment of error on the merits. "Mississippi caselaw recognizes that, generally, it is improper to comment on the failure of either party to call a witness equally accessible to both parties." Lathan v. State , 164 So.3d 484, 488 (¶ 16) (Miss. Ct. App. 2014) (internal quotation mark omitted). However, an exception exists to this general rule, as follows:

[T]he rule barring comment [does] not apply where a witness, while technically accessible to both parties, stood more available to the complaining party. Where a defendant fails to call a witness more available to him and presumptively in a closer relationship with him, the state is fully entitled to comment on the party's failure to call the witness.

Wallace v. State , 229 So.3d 723, 726 (¶ 16) (Miss. Ct. App. 2017) (quoting Ross v. State , 603 So.2d 857, 864 (Miss. 1992) ). Additionally, the State is allowed to comment on the evidence and point out that the defense's theory is unsupported by the evidence. Dora , 986 So.2d at 923 (¶¶ 12-13).

¶ 46. In this case, Bobbie Fairley was more accessible to Smith than to the State because Smith was presumptively in a closer relationship to Bobbie Fairley. As noted above, Bobbie Fairley was the grandmother of Smith's boyfriend, and Smith was spending the night at Bobbie Fairley's home on the night of the robbery, working on homework except for a five-minute trip to the corner store and, later that evening, a short trip to the Junior Food Mart in Prentiss. It was not improper for the State to comment on Bobbie Fairley's absence for this reason. See Wallace , 229 So.3d at 726 (¶ 16) (no error for State to comment on defendant's failure to call his friend as a witness); see also Ross , 603 So.2d at 864 (no error for prosecutor to refer to defendant's failure to call his brother as a witness); Pearson v. State , 64 So.3d 569, 576 (¶ 24) (Miss. Ct. App. 2011) ("Based on Pearson's testimony that he was at home with his wife at the time the sale took place, we find the State was permitted to delve into whether Pearson intended to call his wife to verify his alibi."). Further, it was also permissible for the State to comment on the lack of evidence supporting Smith's alibi defense due to Ms. Fairley's absence. Dora , 986 So.2d at 923 (¶¶ 12-13). We find this assignment of error without merit for these reasons.

III. Sixth Amendment Right to Confrontation

¶ 47. Smith claims that her Sixth Amendment Confrontation Clause right to confront adverse witnesses was violated when the State's witness, Detective Sims, testified that through his questioning of Bobbie Fairley and her grandson, he was informed that Smith was at Ms. Fairley's house on the night of the robbery; and that the grandson took Smith's car, leaving Smith at Ms. Fairley's house with no vehicle except Ms. Fairley's car, which was used in the robbery. "The standard of review for the admission or suppression of evidence is abuse of discretion." Fullilove v. State , 101 So.3d 669, 674 (¶ 16) (Miss. Ct. App. 2012).

¶ 48. Smith acknowledges that although her trial counsel objected to Detective Sims's testimony on the basis of "lack of foundation," he did not object to it on the basis that it was testimonial hearsay in violation of her rights under the Confrontation Clause. "The assertion on appeal of grounds for an objection which was not the assertion at trial is not an issue properly preserved on appeal." Smith v. State , 925 So.2d 825, 835 (¶ 26) (Miss. 2006) (quoting Haddox v. State , 636 So.2d 1229, 1240 (Miss. 1994) ).

¶ 49. Smith's failure to make a contemporaneous Sixth Amendment objection requires that she rely on the plain error doctrine. Fullilove , 101 So.3d at 675 (¶ 21) ; Foster , 639 So.2d at 1289 ("[A] defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal."). "Under the plain-error doctrine, 'we can recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant's fundamental, substantive right.' " Fullilove , 101 So.3d at 675 (¶ 21) (internal quotation mark omitted) (quoting Neal v. State , 15 So.3d 388, 403 (¶ 32) (Miss. 2009) ).

¶ 50. It is well-established that "only testimonial hearsay is capable of violating the Sixth Amendment." Neal , 15 So.3d at 403 (¶ 34) (citing Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ). As such, we must first examine whether the challenged testimony constitutes hearsay by determining "the purpose for admitting the testimony into evidence and review its relevance." Fullilove , 101 So.3d at 675 (¶ 18) (citing M.R.E. 401 & 402).

¶ 51. Mississippi Rule of Evidence 801(c) defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." We find that Detective Sims's testimony did not constitute hearsay. In Fullilove , we concluded that an investigating officer's testimony was not hearsay where he stated that another officer had identified three men, including the defendant Fullilove, on a store surveillance tape. Fullilove , 101 So.3d at 674-76 (¶¶ 15-21). The Court found that the testimony showed the investigator's reasons for proceeding to interrogate Fullilove, and was not admitted for the purpose of proving the truth of the other officer's assertion as to his alleged identification of Fullilove on the tape. Id. at 675-76 (¶¶ 20-21).

¶ 52. In applying precedent to this case, similar circumstances lead us to the same conclusion here. The State claims, and the record supports, that the information from Ms. Fairley and her grandson referenced by Detective Sims was given to Detective Sims during the course of his investigation. The record further indicates that this information was presented to the jury to explain Detective Sims's course of investigation and the reason he brought Smith in for questioning. "Statements do not constitute hearsay when admitted to explain an officer's course of investigation or motivation for the next investigatory step by that officer." Fullilove , 101 So.3d at 675 (¶ 20) ; see also Birkley v. State , 203 So.3d 689, 696 (¶ 16) (Miss. Ct. App. 2016) ; Jefferson v. State , 214 So.3d 1071, 1078 (¶ 19) (Miss. Ct. App. 2016) ("An officer's testimony being offered to explain why he or she acted as he or she did, and not for the truth of the matter asserted, is not hearsay and is admissible."). In this regard, "[o]ut-of-court statements made to police during the course of their investigations are admissible." Fullilove , 101 So.3d at 675 (¶ 20).

¶ 53. Based on precedent, the record reflects that had a hearsay/confrontation clause objection been made, the trial court would not have abused its discretion in overruling that objection and allowing admission of Detective Sims's testimony for the following purpose served here: explaining Detective Sims's course of investigation and the reason he proceeded to bring Smith in for questioning. In short, Detective Sims's testimony was relevant and related to his decisionmaking in his investigatory process. The jury was not exposed to inadmissible hearsay, and Smith's rights under the Confrontation Clause were not implicated. Smith has not met her burden of showing that admission of this testimony violated a fundamental, substantial right. We therefore find that the admission of Detective Sims's testimony was not plain error. See Fullilove , 101 So.3d at 674-76 (¶¶ 15-21) ; Neal , 15 So.3d at 404 (¶ 36) (determining that investigator's testimony regarding information learned from a neighbor was admitted to explain Investigator's decision to proceed in his investigation; it therefore was not hearsay in violation of the Confrontation Clause and thus the plain error doctrine was not implicated).

IV. Jury Instruction on Misidentification Defense

¶ 54. Smith asserts that one of her defenses was misidentification, and thus the trial court erred in failing to give her proffered identification jury instruction D-9. The standard of review for the giving or refusing of jury instructions is abuse of discretion. Victory v. State , 83 So.3d 370, 373 (¶ 12) (Miss. 2012). In undertaking this review, "[n]o one instruction should be singled out." Id. Instead, the Court will "review[ ] the jury instructions as a whole to determine whether an error has occurred." Id. Although a defendant is entitled to present his theory of the case through jury instructions, he is not entitled to an instruction "[that] incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Harris v. State , 861 So.2d 1003, 1012-13 (¶ 18) (Miss. 2003). "There is no error if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law." Newell v. State , 49 So.3d 66, 73-74 (¶ 18) (Miss. 2010).

¶ 55. It is well-established under Mississippi law that "the trial court is required to provide [an identification] instruction when 'the identification of the accused rests entirely upon the testimony of a single witness.' " Taylor v. State , 109 So.3d 589, 595 (¶ 20) (Miss. Ct. App. 2013) (quoting Tugle v. State , 68 So.3d 691, 696 (¶ 21) (Miss. Ct. App. 2010) ). A defendant, however, "is only entitled to such an instruction if requested and if he is identified as the guilty party by, at most, one witness to his alleged crime." Id. ; see Warren v. State , 709 So.2d 415, 421 (¶ 28) (Miss. 1998). That is not the situation here. Although Smith requested an identification instruction in this case, Smith was identified as the guilty party by two witnesses. Under the precedent discussed above, Smith was not, therefore, entitled to an identification instruction, and the trial court did not err in refusing to give it.

¶ 56. Smith argues, however, that there was really only one eyewitness-identification in her case because only the store cashier, Kelly James, identified Smith as the robber in a photo line-up. Store manager, Paige Arnold, identified two women in a photo lineup, and testified at trial that she told the investigating officer that she was eighty percent sure that one woman was the robber (Smith) and twenty percent sure it was the other person. Arnold also testified at trial that the reason she was unsure was that the other person in the photo lineup was a regular customer, and that is what confused her. At trial both James and Arnold identified Smith in court as the robber.

¶ 57. We addressed nearly identical circumstances in Tugle , and found that the trial court did not err in refusing an identification instruction, as follows:

Although it is true that William and Brassel failed to correctly identify [the defendant] prior to trial, they did in fact testify that Tugle was the individual who had attempted to arm rob them. Further, through cross-examination, the jury was made aware of William's pretrial misidentification. As such, we find that the trial court did not err in refusing jury instruction D-2. This issue lacks merit.

Tugle , 68 So.3d at 696 (¶ 22). The same analysis applies here. Similar to the witnesses in Tugle , Arnold was only eighty percent sure Smith was the robber in the photo line-up, but she did, in fact, positively identify Smith at trial. The jury also heard about Arnold's pre-trial misidentification and the reason for her confusion. Further, this case is even stronger than Tugle , because James, the cashier, positively identified Smith in both the photo-line-up and at trial. As we held in Tugle , we also find here that the trial court did not abuse its discretion in refusing the identification jury instruction in this case.

¶ 58. Additionally, in addressing jury instructions dealing with eyewitness identification, the Mississippi Supreme Court, and this Court, repeatedly recognize that " 'the general instruction given to the jury to the effect that the State has the burden of proving each element of the offense charged beyond a reasonable doubt,' includes the misidentification issue." Smith v. State , 802 So.2d 82, 88 (¶ 20) (Miss. 2001) (quoting Robinson v. State , 473 So.2d 957, 963 (Miss.1985) ); see, e.g. , Taylor , 109 So.3d at 595 (¶ 20) ; Brunner v. State , 37 So.3d 645, 649-50 (¶¶ 15-18) (Miss. Ct. App. 2009).

¶ 59. The jury instructions given in this case included the misidentification/identification issue. The record reflects that instructions C-2, S-1, and D-3, instructed the jury that the State had to prove beyond a reasonable doubt that on June 5, 2013, Tameka Smith committed the elements of armed robbery. Instruction D-6 informed the jury, in part, "[y]ou have the duty to determine the believability of the witnesses. In performing this duty, you must consider each witness's intelligence, the witness's ability to observe and accurately remember the witness's sincerity, and the witness's demeanor while testifying."

¶ 60. Defense counsel's proffered identification jury instruction D-9, which the trial court refused, provided as follows:

The Court instructs the Jury that in reaching your verdict you are to consider all of the evidence concerning the entire case and the circumstances surrounding the crime. One of the issues in this case is the identification of Tameka Marquieta Smith as the perpetrator of the crime. As with each element of the crime charged, the State has the burden of proving identity beyond a reasonable doubt, and before you may convict Tameka Marquieta Smith you must be satisfied beyond a reasonable doubt of the accuracy of the identification of Tameka Marquieta Smith. If, after considering all of the evidence concerning the crime and the witness' identification of Tameka Marquieta Smith as the person who committed the crime, you are not convinced beyond a reasonable doubt that she is the person who committed the crime, then you must find her not guilty.
1) Did the witness have an adequate opportunity to observe the offender?
2) Did the witness observe the offender with an adequate degree of attention?
3) Did the witness provide an accurate description of the offender after the crime?
4) How certain is the witness of the identification?
5) How much time passed between the crime and the identification?
If after examining all of the testimony and the evidence, you have a reasonable doubt that Tameka Smith was the person who committed the crime, then you must find Tameka Smith not guilty.

In reading the jury instructions as a whole, as we must, we find no error in the trial court's refusal of the identification jury instruction proffered by the defense. As detailed above, the instructions given encompassed the misidentification issue. They addressed the State's burden of proving that Tameka Smith was the robber beyond a reasonable doubt, and instruction D-6 explicitly warned the jurors that they have the duty to determine the believability of the witnesses. Smith's assignment of error regarding the trial court's refusal of her identification jury instruction is without merit for this additional reason. See Taylor , 109 So.3d at 596 (¶ 23) ; Brunner , 37 So.3d at 650 (¶ 18).

V. Error in Allowing Exhibits with Notations on the Envelopes

¶ 61. The State introduced three CD/DVD exhibits at trial. These exhibits were admitted into evidence and played for the jury without objection. Each CD/DVD was in an envelope, and these envelopes had notations on them regarding the recordings. Smith asserts that the trial court erred when it allegedly allowed the jury to have the CD/DVD exhibits in these envelopes because, according to Smith, the notations on the envelopes were argumentative comments; they highlighted specific portions of the evidence; and the jury could have believed the notations were made by the trial court judge. The standard of review for a trial court's rulings "regarding matters of evidence, relevancy and discovery violations, ... is abuse of discretion." Montgomery v. State , 891 So.2d 179, 182 (¶ 6) (Miss. 2004). We find this assignment of error without merit for the following reasons.

¶ 62. The record contains the original CD/DVD exhibits in the envelopes containing the following notations:

Exhibit description Notation description Ex. 5 - surveillance video from Dollar 5:23 P. Arnold enters video General 6:28 ?'s face is exposed It appears that ? had a pair of scissors in her pocket ? went for the cash drawer use Quicktime player Ex. 6-911 recording Play this one *06-05-13 19.56.05 911 call from manager manager gave dispatch ?'s license plate #. you can hear the panic in her voice. Use Windows media player Ex. 9 - the recorded phone conversation Play Track 1 using Windows media player between Investigator Pazos and Jennifer "7:00-7:09 on phone" Smith (AR occurred at 8:00)

¶ 63. Smith claims that these exhibits, in their envelopes, were given to the jury. Even if they were, the record contains no contemporaneous objection from Smith's trial counsel regarding the envelopes and the notations they contained. Further, Smith's trial counsel did not file any post-trial motions, and thus this alleged error was never raised until Smith's appeal. Accordingly, even assuming the exhibits were given to the jury in their envelopes, we find that this issue is procedurally barred. As the Mississippi appellate courts repeatedly recognize, "[i]t is incumbent on the party asserting error to make a contemporaneous objection and obtain a ruling in order to preserve the objection." Ronk v. State , 172 So.3d 1112, 1128 (¶ 29) (Miss. 2015) ; see, e.g. , Terrell v. State , 952 So.2d 998, 1003 (¶ 17) (Miss. Ct. App. 2006). Smith did not do so.

¶ 64. Procedural bar notwithstanding, we also find that Smith's argument is without merit. Although the record reflects that the recordings were admitted into evidence, there is no indication in the record that the envelopes, containing the notations, were entered into evidence. There also is no indication in the record that the jury was given these exhibits in the envelopes. Even assuming this did occur, Smith acknowledges that "the comments on the envelopes in this case were almost certainly made by investigators or a member of [the] prosecution team;" yet Smith then speculates that there exists the possibility that one or more of the jurors could have believed the comments were made by the trial court.

¶ 65. We acknowledge the principle that judges "should be astutely careful so that unintentionally the jurors are not improperly influenced by their words and actions," Wilson v. State , 451 So.2d 724, 726 (Miss. 1984), but there is simply no evidence that this took place here. The record contains no indication at all that the trial judge made the notations, endorsed the notations, or that the judge even knew the notations were on the envelopes. In this regard, "[i]t is elementary that a party seeking reversal of the judgment of a trial court must present this Court with a record adequate to show that an error of reversible proportions has been committed and that the point has been procedurally preserved." Hansen v. State , 592 So.2d 114, 127 (Miss. 1991) (quoting Queen v. Queen , 551 So.2d 197, 199 (Miss. 1989) ). Further, "[t]his Court must decide each case by the facts shown in the record, not assertions in the brief." Id. (internal quotation marks omitted). Under these guiding principles, we find this assignment of error without merit because it is wholly unsubstantiated in the record.

¶ 66. AFFIRMED.

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

APPENDIX

JUROR AND JURY SELECTION INFORMATION ON FIRST TWENTY PANEL MEMBERS

Juror # State Defense 1 submitted accepted 2 submitted accepted 3 struck by peremptory challenge 4 submitted struck by peremptory challenge 5 submitted struck by peremptory challenge 6 submitted struck by peremptory challenge 7 submitted struck by peremptory challenge 8 submitted accepted 9 (African struck by peremptory American) challenge 10 (African struck by peremptory American) challenge 11 struck for cause without objection by defense 12 (Caucasian) struck by peremptory challenge 13 (African) struck by peremptory American)13 challenge 14 submitted accepted 15 submitted accepted 16 submitted struck by peremptory challenge 17 - Juror was absent 18 submitted struck by peremptory challenge 19 struck for cause without objection by defense 20 submitted

[Editor's Note: The preceding image contains the reference for footnote ]

      Arnold told the 911 dispatcher that a woman robbed the store and left in a vehicle with a Jefferson Davis County tag with license plate number "JDM 529 or 592." Arnold testified that she is dyslexic, so she "always make[s] sure that if I think I have a number reversed, I give both numbers."

      Detective Sims, the investigating officer, testified that the police recovered no fingerprints from the Dollar General store, and no DNA was recovered from the gray jacket. According to Detective Sims, the jacket was stored in a plastic bag which destroyed any possible DNA evidence.

      Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      We take judicial notice of the fact that at the time of trial, the trial court judge had served as a circuit court judge in Forrest County, Mississippi (Twelfth District) for over thirteen years; his observation in this regard is plainly entitled to deference.

      Smith relies on Snyder v. Louisiana , 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), in arguing that the trial judge is required to make an on-the-record, independent finding on a juror's demeanor when a peremptory challenge is based on that factor. In Thaler v. Haynes , 559 U.S. 43, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010), however, the United States Supreme Court made clear that Snyder does not stand for that "categorical rule;" and there was no suggestion in Snyder or Batson that "in the absence of [the trial judge's] personal recollection of the juror's demeanor, the judge could not have accepted the prosecutor's explanation." Id. at 48-49, 130 S.Ct. 1171 (also recognizing that "the best evidence of the intent of the attorney exercising a strike is often that attorney's demeanor."). In finding no abuse of discretion by the trial court here in his Batson ruling, we rely on these same principles which are also reflected in Mississippi precedent. See, e.g. , Manning , 765 So.2d at 520 (¶¶ 10-11) (recognizing the great deference given a trial judge's race-neutral determination and assessment of the prosecutor's credibility on a Batson challenge); Wilson , 72 So.3d at 1155 (¶¶ 28-29).

      The portions of the prosecutor's arguments that Smith argues are objectionable are in italics.

      Johnson v. State , 89 So.3d 630, 637 (¶ 22) (Miss. Ct. App. 2011) (quoting Sanders v. State , 939 So.2d 842, 846 (¶ 9) (Miss. Ct. App. 2006) ).

      See Dora v. State , 986 So.2d 917, 923 (¶¶ 12-13) (Miss. 2008).

      Smith relies on Randall v. State , 806 So.2d 185 (Miss. 2001) to support her burden-shifting argument. We first observe that even in Randall , a burden-shifting argument by the prosecutor was not found to be reversible error in and of itself, but rather the Court held that combined with other prosecutorial misconduct errors, the cumulative errors warranted reversal. Id. at 214 (¶ 74). In any event, Randall is also distinguishable because there the prosecutor told the jurors that "[t ]here is no evidence or exhibit that some other person did this [i.e., kill the victim, Eugene Daniels]." Id. at 212 (¶ 64) (emphasis in original). The Mississippi Supreme Court held that this line of argument was error, specifically recognizing that the defendant, "Randall[,] had no burden to prove that the two unidentified men were the actual killers." Id. at 212 (¶ 66). No such burden-shifting argument was made in this case; there was no suggestion by the prosecutor that Smith was required to show that "some other person" committed the armed robbery. As addressed above, we find no error because it was not improper for the State to comment on the inadequacy of Smith's defense, and, further, the jury was amply instructed on the State's burden of proving its case beyond a reasonable doubt.

      See also Foster v. State , 639 So.2d 1263, 1282 (Miss. 1994) ("Foster [the defendant] neither requested that the trial court admonish the jury to disregard the testimony [regarding bad acts by Foster], nor requested a mistrial. His only objection was sustained. We are of the opinion that any error created by Harris's unresponsive remark was effectively cured when the trial judge sustained Foster's objection.").

      U.S. Const. amend. VI ; Miss. Const. art. 3, § 26.

      Victory v. State , 83 So.3d 370, 373 (¶ 12) (Miss. 2012).

      Smith's trial counsel made his Batson challenge after the State exercised its fifth peremptory challenge against Juror 13. During argument on Smith's Batson challenge, the State pointed out that of the 12 jurors submitted by the State at that point in the jury selection process, four were African Americans. The trial court also observed that at this point in the jury selection process, three of the State's peremptory strikes were against African Americans, and two were against Caucasians.


source: Caselaw Access Project

author: IRVING, P.J., FOR THE COURT:

license: Public Domain

text:
    Barry D. WARE a/k/a Barry Dewayne Ware a/k/a Barry Ware, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CA-00711-COA
    Court of Appeals of Mississippi.
    September 4, 2018 Rehearing Denied December 4, 2018
    ATTORNEYS FOR APPELLANT: THOMAS M. FORTNER, JACKSON, VALERIE MOSS ANDREWS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Barry D. Ware appeals the judgment of the Attala County Circuit Court, denying his motion for post-conviction relief (PCR), arguing that: (1) his guilty plea was not entered voluntarily, intelligently, and knowingly; (2) he received ineffective assistance of counsel; and, (3) the court abused its discretion by showing him bias, prejudice, and ignoring evidence.

¶ 2. We find no error; therefore, we affirm.

FACTS

¶ 3. On February 8, 2012, Ware was indicted on a charge of first-degree murder in Attala County, Mississippi. On August 6, 2013, he filed a petition to enter a plea of guilty to second-degree murder. The court accepted his plea and sentenced him to thirty years in the custody of the Mississippi Department of Corrections. On August 5, 2016, Ware filed his PCR motion, which is the basis of this appeal, arguing that his plea was not entered voluntarily, intelligently, and knowingly because his counsel incorrectly advised him concerning his parole eligibility. He also claimed that his counsel was constitutionally ineffective because he would not have pleaded guilty but for the erroneous advice of his attorney.

¶ 4. Attached to his PCR motion were affidavits from himself; Pam Ware, his wife; and Mitchell Hedgepeth, his father-in-law. In each affidavit, Ware and his witnesses gave an account of times in which they were allegedly informed by Ware's attorney and District Attorney Doug Evans of different scenarios in which Ware would be released without having to serve his full sentence. Their recollection of the amounts of time that he would serve differed vastly, but centered on the fact that they were allegedly told that he would be eligible for some form of parole. However, after Ware began serving his sentence, they learned that a second-degree murder sentence must be served day-for-day.

¶ 5. On March 31, 2017, an evidentiary hearing was held to address the issues in Ware's motion, and testimony was elicited from Ware, Pam, Mitchell, Ware's trial attorney, and District Attorney Evans. Ware, Pam, and Mitchell testified consistently with their affidavits discussed above. District Attorney Evans testified that he never informed Ware, Pam, or Mitchell about Ware's eligibility for parole or early release. He contended that it was not his responsibility to do so, and he did not comment on such issues. He further testified that the charge of second-degree murder was a new crime recently established by the legislature, so he did not know what the parameters, if any, would be. Therefore, he could not have commented on them. Ware's attorney testified that he was certain that he did not advise Ware on the issue of parole eligibility, although he did provide advice to Ware regarding Ware's decision to plead guilty. According to him, it was not his practice to discuss with his clients the number of years they may or may not have to serve on a given sentence before becoming parole eligible because he never knew how much time the client would have to serve. He also stated that Ware's decision to accept the plea offer was based on the insurmountable evidence of guilt against him, not his ability to get released early.

¶ 6. On May 11, 2017, the court issued a detailed opinion and separate order denying Ware's motion. Ware has appealed.

DISCUSSION

¶ 7. "We review the dismissal or denial of a PCR motion for abuse of discretion. We will only reverse if the trial court's decision is clearly erroneous. When reviewing questions of law, our standard is de novo." Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012) (citation omitted).

I. Guilty Plea

¶ 8. Ware argues that his guilty plea was not entered into voluntarily, intelligently, and knowingly because he was affirmatively misinformed regarding his parole eligibility. "A voluntary guilty plea emanates from the defendant's informed consent. An allegation that the defendant pleaded guilty in response to counsel's mistaken advice may vitiate the plea, because it indicates the defendant may not have been fully aware of the consequences of the plea." Thinnes v. State , 196 So.3d 204, 208 (¶ 15) (Miss. Ct. App. 2016) (quoting Readus v. State , 837 So.2d 209, 212 (¶ 9) (Miss. Ct. App. 2003) ). Ware argues that he was misinformed about his eligibility for parole, trusty earned time, and conditional release-all ways in which a defendant could be released early from his sentence. He adds that, regardless of the fact that all three early release options are only chances for a defendant to be released early and are not guaranteed, being misadvised about those options makes his guilty plea invalid.

¶ 9. It is not a prerequisite to a voluntary plea that the defendant understand the nature of parole, his eligibility for parole, and the circumstances under which it may be granted. On the other hand, a plea is involuntary if a defendant is affirmatively misinformed regarding the possibility of parole and pleads guilty in reliance on the misinformation.

Id. at 209 (¶ 17) (quoting Mosley v. State , 150 So.3d 127, 136-37 (¶ 29) (Miss. Ct. App. 2014) ). Nevertheless, the State contends that the transcript of the guilty plea and the accompanying documents demonstrate that Ware's plea was voluntarily, intelligently, and knowingly entered. "[B]eing unaware of ineligibility for parole is not synonymous with ill or erroneous advice. A defendant does not possess a constitutional right to full parole information at or before his guilty plea." Jackson v. State , 178 So.3d 807, 810 (¶ 13) (Miss. Ct. App. 2014) (internal quotation mark omitted) (quoting Stewart v. State , 845 So.2d 744, 747 (¶ 11) (Miss. Ct. App. 2003) ).

¶ 10. We agree with the argument made by the State, as our jurisprudence is clear that in the face of competing, contradictory testimony, it was the trial court's duty, as the fact-finder, to determine the credibility of the witnesses and, ultimately, to determine whether Ware was misinformed about parole eligibility. The trial judge, "sitting as the trier of fact, is tasked with resolving all credibility issues that arise in a PCR hearing." Sharp v. State , 152 So.3d 1212, 1214 (¶ 10) (Miss. Ct. App. 2014). In this regard, the State notes that although Ware and his witnesses testified that his attorney informed them generally that he would be parole eligible if he pleaded guilty to second-degree murder, the specifics of their individual testimonies were inconsistent. And moreover, Ware's attorney testified that he did not advise Ware in any way or at any time regarding parole or earned time, adding that it was not his practice to advise clients on parole eligibility or earned time. The State asserts that the court was correct in finding that the testimony was irreconcilable and that the court had the power to make those credibility determinations based on the testimony before it-finding that Ware was not misinformed about his parole eligibility. We agree. This issue is without merit.

¶ 11. Ware further argues that his plea of guilty to second-degree murder was unintelligently given because he was not informed by his attorney that he could have been considered for conditional release if he had gone to trial and been convicted of first-degree murder. More specifically, Ware argues that knowledge of such information would have caused him not to plead guilty. As this claim centers on Ware's counsel's alleged failure to give advice regarding a charge which Ware did not plead guilty to, rather than to the charge that Ware pleaded guilty to because of allegedly erroneous advice, we reserve discussion of it until we address Ware's claim that he received ineffective assistance of counsel.

II. Ineffective Assistance of Counsel

¶ 12. Ware argues that his counsel was ineffective for misinforming him about the consequences of his plea agreement, namely his parole eligibility. We addressed this claim during our discussion of the first issue and found it to be without merit. We see no need to repeat that discussion here. Ware also argues that his trial counsel was ineffective for failing to advise him that had he been convicted of first-degree murder-a charge for which he was neither tried for nor convicted of-and sentenced to life imprisonment, he could have petitioned for a conditional release from prison after reaching the age of sixty-five years. Ware also makes the corollary argument-that counsel's advice that he would never be eligible for release if he was found guilty at trial of the charge also constitutes ineffective assistance of counsel.

¶ 13. We note that this is a particularly interesting argument given the fact that Ware was neither tried for nor convicted of the charge that would have given rise to the sentence of life imprisonment from which he could have sought a conditional release. We further note that Ware has provided no authority to support his argument. Therefore, we are not obligated to address it. Taylor v. State , 29 So.3d 134, 137 (¶ 8) (Miss. Ct. App. 2010). The procedural bar notwithstanding, we agree with the State's position that this argument is without merit.

¶ 14. To prove ineffective assistance of counsel, a defendant must demonstrate: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 15. The State argues that Ware's claims-that his counsel was ineffective for allegedly informing him that if he was convicted of first-degree murder he could spend the rest of his life in prison and for failing to inform him of the possibility of conditional release-are without merit. The State cites the circuit court's order in support of its contention that Ware's arguments regarding conditional release do not pass constitutional muster:

This code section provides no criteria that a sentencing court is to consider in determining whether conditional release should be granted. Thus, it appears that sentencing courts have unfettered discretion in determining whether it is granted. A trial court's denial of a recommendation for parole or early release pursuant to [ Mississippi Code Annotated section] 47-7-3(1)(g)(iii), is not an appealable judgment. Barnett-Phillips v. State , 195 So.3d 226, 230 [ (¶ 16) ] (Miss. Ct. App. 2016). Presumably, a court's denial of conditional release would also be a judg[ ]ment not subject to appellate review.
This court finds that if parole is a matter of legislative grace, then conditional release is a matter of judicial grace. Being unaware of ineligibility for parole, earned time, and meritorious time is not synonymous with ill or erroneous advice. A defendant does not have a constitutional right to full parole information at or before his guilty plea. Stewart v. State , 845 So.2d 744, 747 [ (¶ 11) ] (Miss. Ct. App. 2003). This court believes that it is also true of conditional release. This court finds that a criminal defendant is not entitled to be advised that he has the right to petition the court for conditional release, since the decision of whether to grant it is left totally to the whims of the judge to whom the request is presented.
This court finds that Ware's attorney was not deficient in failing to discuss parole or conditional release eligibility with him prior to the entry of his guilty plea. Therefore, this court finds that his claim of ineffective assistance of counsel claim is without merit.

¶ 16. Our law is clear, as the circuit court found, that a defendant does not have a constitutional right to be informed of parole eligibility at the time of or before his guilty plea is entered. However, as discussed earlier in this opinion, if such advice is given, it cannot be erroneous. Thinnes , 196 So.3d at 209 (¶ 17). We know of no caselaw or statutory authority, and Ware has cited none, holding that-in conjunction with a defendant's contemplation of entering a guilty plea to a lesser-included offense-it constitutes ineffective assistance of counsel for his counsel to give him erroneous advice regarding, or not to inform him of, any potential conditional release he could or could not receive if he were convicted of the greater offense with which he is charged. Since a defendant's attorney would not be required to advise the defendant of any potential conditional release from imprisonment if the defendant went to trial and was convicted of the charged offense, it seems quite logical that the defense counsel would not be required to give such advice when the defendant pleads guilty not to the offense charged, but to a lesser offense that happens to be included in the charged offense. When a defendant decides to plead guilty to an offense, our law requires that he be fully informed regarding the constitutional rights that he is giving up. The relinquishment of the right to seek a conditional release from imprisonment that would emanate from the sentence for conviction of a charge that the defendant could have been convicted of, but was not, is not one of those rights, as a defendant has no constitutional right to seek a conditional release from any imprisonment, even when the imprisonment stems from a sentence received as a result of a conviction by a jury or by a plea of guilty. In any event, since Ware has not provided any authority to support his argument, and it is his responsibility to do so, we find no merit to this issue. M.R.A.P. 28(a)(7).

III. Bias

¶ 17. Ware alleges that the trial court failed to consider all of the pleadings and erroneously made a conclusion without reviewing the entire record before it. He also alleges that from the very beginning, the trial judge showed a bias against him and his PCR attorney because his attorney had recently obtained a reversal of a judgment rendered in the trial judge's circuit district. He cites the judge's order as evidence of the judge's bias:

It is the opinion of this court that after sitting in prison for nearly three (3) years while learning the prison lingo, and after becoming aware of the case of Thinnes v. State , 196 So.3d 204 (Miss. Ct App. 2016), that Ware tailored the facts in this case to meet the facts in Thinnes , and then hired the prevailing attorney in Thinnes to represent him in this matter.

¶ 18. The State asserts that the trial court entered a lengthy, reasoned opinion in which it summarized the relevant testimony and evidence received at the hearing and provided a detailed analysis, which contradicts Ware's assessment that the court did not review the record. Next, the State asserts that Ware's complaints about the factual findings in the court's order are not supported by the record. Finally, the State points out that the matters that Ware raises as evidence of the trial court's bias against him is nothing more than the court expounding upon its findings regarding credibility issues. As we have noted, it is the trial court's function, when sitting as the trier of fact, to make credibility determinations. Simply because the trial court found Ware to lack credibility does not mean the trial court was biased against him. The State also points out that Ware cites to no authority to support his contentions with respect to this issue. We agree, and as discussed earlier in this opinion regarding the preceding issue, we are not required to address it. M.R.A.P. 28(a)(7).

¶ 19. "On appeal, a trial judge is presumed to be qualified and unbiased and this presumption may only be overcome by evidence which produces a reasonable doubt about the validity of the presumption." Jackson v. State , 962 So.2d 649, 663 (¶ 29) (Miss. Ct. App. 2007). "Mere speculation is insufficient to raise reasonable doubt as to the validity of the presumption that the trial judge was qualified and unbiased." Id. at (¶ 31). Based on our review of the record, we find that the trial judge thoroughly considered all of the evidence before him. Regardless, Ware failed to provide evidence sufficient to overcome the presumption that the judge was qualified and unbiased. This issue is without merit.

¶ 20. AFFIRMED.

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


author: SELLERS, Justice.

text:
    STV ONE NINETEEN SENIOR LIVING, LLC v. Dixie BOYD, by and through Mary Alice Boyd-Kline
    1160727
    Supreme Court of Alabama.
    February 16, 2018
    Lynn Etheridge Hare of Hare & Clement, P.C., Hoover.
    Submitted on appellant's brief only.
   SELLERS, Justice.

STV One Nineteen Senior Living, LLC ("STV"), appeals from an order of the Jefferson Circuit Court denying STV's motion to compel arbitration of certain counterclaims filed against it by Dixie Boyd, by and through her agent, Mary Alice Boyd-Kline, under a valid power of attorney. We reverse and remand.

Facts

On December 26, 2013, Dixie Boyd and Mary Alice Boyd-Kline, as holder of Boyd's power of attorney, signed a "residency agreement" with STV, which operated an assisted-living facility, in which STV agreed to provide Dixie Boyd with a private apartment and other related services, including, among other things, utilities, housekeeping, laundry, meals, maintenance, planned activities, transportation, and security and protection. The residency agreement contained the following arbitration clause:

"[STV] and [Boyd] agree that [STV] is engaged in interstate commerce and that, except for claims, disputes or controversies relating to unpaid Monthly Fees or the right to possession of the Apartment, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules ...."

(Emphasis added.)

Boyd resided at STV's facility from December 26, 2013, through March 18, 2016. On May 28, 2016, STV filed a collection action against Boyd, seeking to recover $10,475.28 in unpaid rent, plus statutorily stated interest, late fees, attorney fees, and court costs. On July 5, 2016, Boyd and Mary Alice Boyd-Kline (hereinafter referred to collectively as "Boyd") filed counterclaims against STV and fictitiously named defendants, alleging negligence, wantonness, negligent supervision and training, premises liability, and breach of contract. The counterclaims were based on the following allegation:

"On or about February 28, 2016, STV failed to sufficiently supervise certain residents of STV, such that two residents engaged in a physical altercation. Said altercation resulted in [Dixie] Boyd, who was not involved, being knocked to the floor by one of the residents, striking [Dixie] Boyd's head on a sharp edged coat rack."

On September 15, 2016, STV filed a motion to compel arbitration of Boyd's counterclaims, a copy of the residency agreement, and a supporting brief. Boyd thereafter filed amended counterclaims, deleting her breach-of-contract claim. On December 2, 2016, Boyd filed a motion in opposition to STV's motion to compel arbitration, arguing that her counterclaims, as amended, encompassed only tort claims and that those claims did not fall within the scope of the arbitration agreement.

On December 7, 2016, the trial court conducted a hearing at which the parties argued only the issue whether Boyd's counterclaims fell within the scope of the arbitration agreement. Boyd presented no argument or evidence concerning whether the transaction underlying the residency agreement involved interstate commerce. Following the hearing, Boyd moved the trial court to dismiss the motion to compel or, alternatively, to allow her additional time in which to acquire additional proof of her newly submitted defense, i.e., that the residency agreement containing the arbitration provision was a contract of adhesion and was thus unenforceable. On December 15, 2016, the trial court granted Boyd's motion in part, stating that it would consider the submissions received to that date from all parties and that STV would have seven days in which to file a response to Boyd's most recent amended submission.

On January 11, 2017, the trial court entered an order, denying STV's motion to compel arbitration without stating its reasons for doing so. STV filed, pursuant to Rule 59(e), Ala. R. Civ. P., a motion to alter or amend the order, in which it restated the facts and its arguments. STV also attached to its motion the affidavit of its agent, Brian Parker, who stated in detail the reasons the residency agreement evidenced a transaction involving interstate commerce. STV's Rule 59(e) motion was denied by operation of law. This appeal followed. We note that this appeal has been submitted to this Court solely on STV's brief; Boyd has not favored this Court with an appellee's brief.

Standard of Review

"This Court's standard of review on an appeal from a trial court's order granting or denying a motion to compel arbitration is well settled. Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1141 (Ala. 2003). A direct appeal is the proper procedure by which to seek review of such an order, Rule 4(d), Ala. R. App. P., and this Court will review de novo the trial court's grant or denial of a motion to compel arbitration. Bowen, 879 So.2d at 1141. The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction involving interstate commerce. Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala. 2003). The party seeking to compel arbitration must present some evidence tending to establish its claim. Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala. 2003). Once the moving party meets that initial burden, the party opposing arbitration has the burden of presenting evidence tending to show that the arbitration agreement is invalid or that it does not apply to the dispute in question. Bowen, 879 So.2d at 1141. See also Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1052-53 (Ala. 2007)."

Alabama Title Loans, Inc. v. White, 80 So.3d 887, 891-92 (Ala. 2011).

Discussion

We note that STV, the party seeking to compel arbitration, met its initial burden of proving the existence of a contract calling for arbitration and that the contract involved interstate commerce. Accordingly, the burden then shifted to Boyd to show that the arbitration agreement was invalid or that it did not apply to the dispute in question. During the hearing on the motion to compel arbitration, the parties focused their argument on whether Boyd's tort claims related to or arose out of the residency agreement. "Whether an arbitration provision encompasses a party's claims 'is a matter of contract interpretation, which interpretation is guided by the intent of the parties, and which intent, absent ambiguity in the clause, is evidenced by the plain language of the clause.' " Green Tree Fin. Corp. of Alabama v. Vintson, 753 So.2d 497, 505 (Ala. 1999) (quoting Allied-Bruce Terminix Cos. v. Dobson, 684 So.2d 102, 110 (Ala. 1995) ). The language of the arbitration provision in this case is not ambiguous. Under the plain language of the provision, Boyd agreed to arbitrate "any controversy or claim arising out of or relating to [the residency agreement], or the breach thereof." (Emphasis added.) "This Court has held [that] where a contract signed by the parties contains a valid arbitration clause that refers only to claims 'arising out of or relating to' the contract, that clause has a broader application than arbitration clause that refers only to claims 'arising from' the agreement." Reynolds & Reynolds Co. v. King Autos., Inc., 689 So.2d 1, 2-3 (Ala. 1996). As indicated, Boyd's tort claims are based on injuries she allegedly suffered as a result of an altercation between two other STV residents. Boyd alleged, among other things, that STV had a duty to provide a safe residential environment for Dixie Boyd and that STV had a duty to properly supervise and train employees or independent contractors responsible for providing safe residential care for Dixie Boyd. Those allegations clearly "aris[e] out of or relat[e] to" Dixie Boyd's residency at STV, which was established and governed by the residency agreement. It is " 'well established that a party may not avoid broad language in an arbitration clause by attempting to cast its complaint in tort rather than contract.' " Beaver Constr. Co. v. Lakehouse, L.L.C., 742 So.2d 159, 165 (Ala. 1999) (quoting McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir. 1984) ). Moreover, in Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, 7 (Ala. 2007), this Court observed:

"In interpreting an arbitration provision, 'any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.' Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (emphasis added; footnote omitted). 'Thus, a motion to compel arbitration should not be denied "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).' Ex parte Colquitt, 808 So.2d 1018, 1024 (Ala. 2001) (emphasis added)."

Based on the foregoing, we conclude that the plain language of the arbitration provision encompasses Boyd's counterclaims.

Conclusion

The trial court erred in denying STV's motion to compel arbitration. That order is reversed and the cause remanded for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, C.J., and Bolin, Shaw, and Wise, JJ., concur.

      It does not appear from the record that Boyd presented any further evidence in support of her allegation that the residency agreement was a contract of adhesion. Accordingly, we do not address that issue.


text:
    Shellie G. SPENCER III v. Darrell C. SPENCER
    1161095
    Supreme Court of Alabama.
    February 16, 2018
    Ronnie L. Williams, Mobile.
    James E. Robertson, Jr., of Howard-Festa, LLP, Mobile.
   SELLERS, Justice.

Shellie G. Spencer III ("Shellie III") appeals from an order of the Mobile Probate Court admitting a copy of his father's will to probate. We affirm.

Facts and Procedural History

Shellie G. Spencer, Jr. ("Spencer"), died on March 9, 2016, at the age of 96. Spencer had three adult children who survived him: Clyde Spencer, Shellie III, and Darrell C. Spencer. On April 18, 2016, Darrell ("the proponent") filed a petition to probate a copy of Spencer's will, which favored the proponent. The proponent represented that the original of the will, dated March 23, 2010, could not be found but that it remained effective and had not been destroyed or otherwise revoked by Spencer. On June 20, 2016, Shellie III and Clyde contested the will, arguing that it was the product of undue influence and coercion exerted upon Spencer by the proponent; another issue was whether the original of the will was merely lost and therefore still effective or whether the will had been revoked. The case proceeded to a bench trial.

On July 25, 2017, the probate court entered an order that contained detailed findings of fact and conclusions of law. Specifically, the probate court found no undue influence or coercion on the part of the proponent. The probate court also noted that, in Alabama, when a will remains in the possession of the testator and is not found at the testator's death, the legal presumption is that the testator revoked the will. In this case, however, the probate court determined that, although the original of Spencer's will had not been found, the totality of the evidence presented by the proponent was substantive enough to rebut the presumption that Spencer had revoked it. Accordingly, the probate court admitted the copy of Spencer's will to probate. Shellie III appealed.

Standard of Review

Because the probate court conducted a bench trial in this case at which oral testimony was given, the ore tenus standard of review applies: " 'When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.' " Smith v. Muchia, 854 So.2d 85, 92 (Ala. 2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala. 1996) ).

" 'The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.' Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). The rule applies to 'disputed issues of fact,' whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala. 1995). The ore tenus standard of review, succinctly stated, is as follows:
" '[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court's conclusion on issues of fact, and this Court will not disturb the trial court's conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.' "

Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala. 1977) ).

Discussion

At the outset, we note that the evidence was undisputed that in 2006 W. Gregory Hughes, an attorney, prepared a will for Spencer; that in December 2010, following the death of one of Spencer's children, Hughes prepared a new will (hereinafter "the 2010 will") for Spencer; and that in 2014, approximately two years before Spencer's death, Spencer again met with Hughes, but Hughes undertook no work for Spencer because he could not discern what Spencer wanted Hughes to do and Spencer was "profoundly hard of hearing."

On appeal, Shellie III challenges only that portion of the probate court's order finding that Spencer had not revoked the 2010 will. In Barksdale v. Pendergrass, 294 Ala. 526, 529, 319 So.2d 267, 269-70 (1975), this Court stated the elements necessary to support the probate of a lost will:

"In a proceeding to probate an alleged lost or destroyed will, the burden is on the proponent to establish, to the reasonable satisfaction of the judge or jury trying the facts:
"(1) The existence of a will-an instrument in writing, signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.
"(2) The loss or destruction of the instrument.
"(3) The nonrevocation of the instrument by the testator.
"(4) The contents of the will in substance and effect."

(Citations omitted; emphasis added.) Concerning the "nonrevocation of the instrument by the testator," this Court explained:

"When the will is shown to have been in the possession of the testator, and is not found at his death, the presumption arises that he destroyed it for the purpose of revocation; but the presumption may be rebutted, and the burden of rebutting it is on the proponent."

294 Ala. at 530, 319 So.2d at 271.

Shellie III asserts that a reasonable presumption in this case would be that Spencer visited Hughes's office in 2014 for the purpose of executing a new will, having already destroyed or revoked the 2010 will. Accordingly, Shellie III argues that the proponent failed to produce "substantial evidence" to rebut the presumption that Spencer had revoked the 2010 will. However, as this Court stated in Barksdale, to rebut the presumption, the proponent need only establish to the satisfaction of the trier of fact that the will was not revoked. The probate court noted in its order that the evidence was undisputed that Spencer was "a strong-willed person"; that he "made a point of 'taking care of his business' "; that he kept all of his important papers in a specific drawer in a chest of drawers in his bedroom; and that he kept his bedroom door locked when he was away from his residence. Additionally, the proponent testified that he had Spencer's power of attorney; that, before the execution of the 2010 will, Spencer and Shellie III had had a disagreement; that, after executing the 2010 will, Spencer discussed the will with the proponent; that Spencer had given the proponent a copy of the 2010 will; that the proponent did not share the contents of the 2010 will with his siblings; and that Spencer kept the original 2010 will, which was in a white envelope in Spencer's chest of drawers, along with a life-insurance policy. The proponent further testified that he was in and out of Spencer's house almost daily; that in 2016 Spencer was hospitalized; and that the proponent was the one who called the paramedics to have Spencer transported to the hospital. The proponent stated that, before the paramedics arrived, Spencer locked his bedroom door and gave the proponent the key to the bedroom. Dirk Spencer, Spencer's grandson and the proponent's son, testified that, while Spencer was in the hospital, Shelley III asked for the key to Spencer's bedroom because Shellie III wanted to paint the bedroom before Spencer came home from the hospital. Dirk testified that the proponent gave him the key to Spencer's bedroom and that he, in turn, gave the key to Shellie III. Spencer never returned to his house. Following Spencer's discharge from the hospital and a rehabilitation center in 2016, the proponent took Spencer to the proponent's house, where Spencer died. The proponent testified that, after Spencer died, he went to Spencer's house to retrieve the 2010 will, but he was denied access to the house because Shellie III had obtained a restraining order against him. The proponent testified that, because the restraining order would not let him enter the house, he sent Dirk to Spencer's house to look for Spencer's will and that he explained to Dirk where to look and what to look for. Neither the will nor the life-insurance policy was found. Shellie III briefly testified. He admitted that he had filed criminal charges against the proponent resulting in the restraining order and that the proponent was found not guilty of those charges. Shellie III denied that he and Spencer had had a disagreement before Spencer executed the 2010 will. Shellie III also testified that the proponent rarely came to Spencer's house, i.e., that the proponent came to Spencer's house maybe two or three times a month.

As indicated, the probate court concluded that, based on the totality of the evidence, the proponent had produced sufficient evidence to rebut the presumption that Spencer had revoked the 2010 will. We agree; we note that, among other things, the probate court could have reasonably inferred from the testimony presented that Spencer had not revoked the 2010 will because Spencer also had a life-insurance policy that he kept in the same chest of drawers, and that policy also was not found. For the foregoing reasons, we conclude that the evidence presented by the proponent supports the probate court's conclusion that Spencer did not revoke the 2010 will.

Shellie III, relying on a portion of the probate court's order emphasized in an excerpt quoted below, also argues that the probate court committed reversible error by placing the burden of proof on Shellie III to show that the 2010 will had been revoked. In support of this argument, Shellie III cites Lovell v. Lovell, 270 Ala. 720, 121 So.2d 901 (1960), a case in which the trial court incorrectly charged the jury that the burden was on the contestant to show the circumstances to prove that the will had been revoked. The contestants had objected to the trial court's oral charge, arguing that the instruction improperly placed the burden on the contestants to prove that the will had been revoked rather than on the proponent to prove that it had not. This Court agreed, holding that the failure of the trial court to rectify the incorrect statement of law when called to its attention constituted reversible error. In this case, however, there was no jury; the probate court was the sole trier of fact, and the court specifically stated in its order that it had considered the totality of the evidence presented by the proponent:

"In Alabama, when a last will and testament remains in the possession of a testator and is not found at his death, the legal, evidential presumption is that the testator destroyed it, animo revocandi, until the contrary is shown. See Allen v. Scruggs, 190 Ala. 654, 674[, 67 So. 301, 308] (1914). This presumption is rebuttable. The Court is of the opinion and therefore concludes that the totality of the evidence presented by the Proponent is substantive enough in nature to rebut the presumption of revocation animo revocandi. The Court further notes that [Shellie III] offered no evidence in support of the application of this evidentiary presumption."

(Emphasis added.) In other words, the proponent met his burden of rebutting the presumption that the 2010 will had been revoked and establishing to the reasonable satisfaction of the probate court that the 2010 will had not been revoked. The probate court's notation in its order concerning Shellie III's failure to offer any evidence "in support of the application of [that] evidentiary presumption" does not amount to reversible error.

Conclusion

After reviewing the record under the ore tenus standard of review and applying the prevailing substantive legal principles, we conclude that the judgment of the probate court is supported by the evidence. We therefore affirm the judgment.

AFFIRMED.

Stuart, C.J., and Bolin, Shaw, and Wise, JJ., concur.